Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Friday, November 11, 2005

Jury of My Peers

Earlier this year, I wanted to volunteer to sit on a local Grand Jury. If accepted, I would have been required to serve for a year. The reason I didn't do it is because it requires about 20 hours a week worth of work. Much of that time would have to be taken as personal time away from my regular job and would require me to be away from my regular job at least 20 hours a month.

It dawned on me that the only people that could do this type of civic work were retired people, unemployed people, or soccer moms, many of whom are conservative and who have agendas. If this anyway to pick a grand jury?

I have also had to exempt myself from regular jury service due to financial hardship. I can't be away from my job for 4 months dealing with a death penalty case. So what does this tell us about the fairness of juries? Does a 30-something defendant stand a chance when his jury is a bunch of gray-haired conservatives? Make the 30-something Black or Latino and then what?

This isn't illuminating to anyone. And it may have even come up before on the blog. But considering that we just had a big grand jury called to deal with Libby and co. I think it has a new relevance. Is conservatism limited to the Supreme Court or to judges? People talk about judges legislating, etc. What about juries? No. Maybe we need to start looking at the system as a whole.



Anonymous said...

Another group that winds up on grand juries and long jury trials are government employees and people who work at large corporations. These employers often allow their workers to serve as jurors for long (or unlimited) terms at full pay.

That being said, I was on a jury trial last year (2.5 weeks) and about half of the group were people who had to take vacation days to sit on the jury or were self-employed. We wound up with a couple of students, an accountant, one retired lady, a couple of dentists and doctors, a music agent, a TV executive (our foreman), a lawyer (me), a cancer researcher, some assorted office workers and retail people.

I wish more employers would pay for jury service (civic duty, blah blah blah) and that jury pay was high enough to cover more than a cheap lunch and maybe a coffee. And I wish that people had more respect for the concept of jury service.

In my jury selection pool, there was one guy that got off using what can only be called "The Big Jerk Offense." He was a big important partner from a big important firm, and sat in the jury box reading (and marking up) documents while answering every question in a condescending manner. He also used the circulars from his private club (the kind that doesn't admit the 'wrong' people) to fan himself since the climate control wasn't to his liking.

For a guy who probably built his pool house on messing with people using the civil court system, it was clear that he didn't care about one measly criminal defendant. The DA and the public defender agreed to kick him off pretty quickly.

-Seventh Sister  

// posted by Anonymous

Dr. Strangelove said...
This comment has been removed by a blog administrator.
Dr. Strangelove said...

As USWest mentioned, one possible option is for the government to pay jurors for their service. At present, California courts pay $15/day for jury service, and 34 cents/mile for travel. Furthermore, these tiny payments only start on the second day of service. That sounds only a little petty until you realize California has moved to a one-day, one-trial jury system.

Trust me: if they paid $100/day for jury service, a lot of people would want to serve. And though you may say that kind of incentive would draw the wrong people, one has to wonder if the current system is really any better.

One more pet peeve. When I served in September, I was kicked off a domestic violence case at the last minute because when the prosecutor asked me if I would be more likely to be lenient if the defendant had been under the influence, I said, "no, I would probably be less lenient." In the end, the people chose were literally only those who had given only one word answers--who had just said the "yes" or "no" that was expected of them.

No wonder people in the judicial system are sometimes suspicious that attorneys pick juries by race and sex. There's almost nothing else to go on, the way they do it.

Anonymous said...

The crux of the problem is the length of jury trials. Few criminal trials last more than a few court days. Civil trials last longer, and that is a substantial part of the problem. If it were up to me, I would enact a rule limiting civil jury trials to 20 court days except in extreme cases where both parties agree, and where the rules are that the parties pay each juror $500 per juror per day (awardable as court costs on a verdict) and the jurors are free to say "no" for any reason or no reason. Not sure how to deal with criminal trials yet, but the key would be making the government pay $500/day if it wanted more than a 10 day presentation, then limiting the defense to an amount of time equal to what the government used.


// posted by LTG

Anonymous said...

I work for an agency of the US government and no one has offered to ever pay my jury service. I have recently learned that the benefits you get are largely determined by the agency or branch you work for. I am surprised they picked you, Seventh Sister because you are a lawyer. I always thought they tried to stay way from doing that.

I like LTG's proposal. Money is an issue. So to his proposal, I'd say that Lawyers in civil cases could take less of a cut of the reward in order to better pay jurors. If someone is anxious to get back to work, then there is a big possibility for slipshod jury work.

And I am useasy that criminal cases are done in a day, ynless you are talking about "small" cases like petty theft. Talk about drive through justice!

I just worked elections and got paid $150 for the day. I didn't do it for the money, and I tried to deny it. But there is this rule that you can't. In fact, government is not allowed to accept "volunteer" work like this. Interesting considering the problem of empanelling a good jury.

// posted by USWest

Anonymous said...

Not picking lawyers is part of the past in CA. The change to one-day jury service (picked or go home in 1 day) was part of a larger set of jury reforms intended to encourage all people to serve, including lawyers and judiciary employees. If judiciary employees had to serve, they were going to make it a more humane system. 

// posted by LTG

Anonymous said...

I like that $500/day included in the court costs idea! Given the size of the judgements in the longer cases, I doubt it would deter anyone.


// posted by Raised By Republicans

Anonymous said...

If you gave jurors an economic incentive to stay, but an absolute right to beg off beforehand (for longer trials) that would provide a supply of jurors and relieve the hardships.

And make the $500/day tax free. 

// posted by LTG

Anonymous said...

I doubt I would have been picked if it had been a civil trial. Since it was a criminal case completely out of my area, the judge and the lawyers seemed fairly comfortable with keeping me. Another reason I was probably kept on was that one of the witnesses was a police officer, and the public defender was using his preemptory challenges to try and pick off anyone who had any tie to law enforcement.

However, I deliberately begged off being foreman since I did not want to get into the position of having to explain any legal terms to the rest of the bunch.


// posted by Anonymous

Anonymous said...

I'm going to tell the anecdote my wife always tells. (My jury duty stories all end with them getting the requisite number of people before they got to me.) Before that I'll just mention as a bit of trivia that North Carolina also has a one day-one trial system, and a pittance (under $20, but I don't remember if it was $16 or $12) as payment, which judges and the right-to-jury-duty-of-jury video are uniformly downright apologetic about.

Back to Rebecca's story, which may relate to Dr. Strangelove's. When she got called up as a grad student, she was asked what she was studying. When they found out she was a mathematician, they didn't want her near the jury box.

She interprets this as both lawyers weren't comfortable arguing on a rational basis and were happier trying the case through glibness and charm. I'm not quite so sure, but the nature of jury duty does skew the pool.

While I applaud the good ideas here that would reform the system, I wonder how likely it is that they would be adopted. There are enough people that show up for jury duty to empanel juries (though perhaps not as demographically representative as we would like), and any state that raised jury pay would be spending money other states don't. It seems to me that LTG's ideas on reforming tax status for non-profits has a better chance (not least because it's primarily federal). 

// posted by Bob

Anonymous said...

Bob, you make a good point about the money aspect. Correct me if I am wrong, but I think you are uncomfortable with the inequality that would be introduced in say California spent $500 per juror and other states don't. It is a valid concern. But states spend different amounts of money on a lot of things that really matter, take per student spending for education as a primary example. They also pass different laws and set different penalties for a lot of things. I don't think that raising the level of pay for jurors brings any additional inequality to the system because a jury of my peers are California residents and if that is what we decided to do as a state, then so be it. I think LTG is talking primarily about state courts, not federal. So it becomes a state matter.

I also think that by increasing the costs of a jury trial, we might see a reduction in frivolous lawsuits. People might think twice before filing a suit that is pretty much baseless. One of the things that must bugs me about these civil cases is that no one stops to consider what the cost is to society as a whole when they play with the court system I understand that everyone deserves their day in court. But I think people need to seriously consider who worthy their day is before starting a civil case.

// posted by USWest

Anonymous said...

Bob, remember that my proposal was to pay $500/day only for trials over 20 court days. For shorter trials, $50-$100 would suffice. The point of the $500/day was to keep all but the best-funded trials under 20 days.

No, I don't think that these proposals will get anywhere soon, but this blog is a place to make and discuss them.

As a lawyer, I know why I might be leery of a mathematician on a jury -- for the same reason I am leery of any juror who would rely on his or her own expertise rather than the evidence and experts presented to them. The tendency to prejudge evidence or have a closed mind is often more prevalent, in my experience, among those who think they are smart, than those who are accustomed to not understanding things immediately.

There is another cynical reason why a plaintiff's attorney might not want mathematicians on a jury. The juries tend to award really big punitive damages probably do not have mathematicians on them, who might have a better grasp of the size of the awards.

The one person a plaintiff would never, ever want on a jury is an economist. They tend to put realistically low dollar values on human life, and tend towards the sort of radical individualism that frowns on compensating victims for losses, tending to view all risks as voluntary choices. A defense attorney would love one.

All that being said, I would prefer random juror selection (kicking off those with conflicts, of course) to the current system of peremptory challenges. As has been observed here, and I know from personal experience, the problem is that jury selection relies extremely heavily on racial and gender stereotypes.  

// posted by LTG

Dr. Strangelove said...

LTG's third paragraph, which begins, "As a lawyer, I know why I might be leery of a mathematician on a jury..." sounds to me like a strongly pejorative statement about mathematicians. But I do not wish to read into LTG's remarks what was not intended. Could LTG please clarify what he meant to write?

Anonymous said...

USWest: I'm not concerned about inequality between states here; I'm saying that even though I like the idea, I don't think (like LTG says) "these proposals will get anywhere soon". One of the reasons I think that is that it'd be hard for state budget planners not to trim away this "extra" pay, especially if they compare theirs with other states' budgets that don't have it.

Making the litigants pay the jurors (as in LTG's idea) negates this issue, but raises another one. While raising the cost of litigation for frivolous lawsuits is great, raising the cost of litigation for _all_ lawsuits (or even all extended lawsuits) increases the effect of inequality. Insofar as the cost of litigation makes it a last resort, it's good, but insofar as it renders the courts more useful to the rich (particularly corporations) than to the poor, it's bad.

For the sake of argument, let me throw out another possible argument against this scheme. If the pay for jurors were significant, wouldn't that provide a motivation for jurors to delay, not coming to a decision because it offered the opportunity for a few hundred dollars more?

And I think I agree with Dr. Strangelove. Why might one assume that mathematicians in general would trust their expertise over the expertise and evidence presented to them? Despite the popularity of "Numb3rs", mathematical testimony doesn't really come up in most court cases, does it?

I can see how the "people who think they're smart" category might have a disproportionate number of close-minded people. I can see why a lawyer might assume that mathematicians (really, all academics) are disproportionately likely to think they're smart.

For future jury stereotyping, I suggest that the "thinking they're smart" issue is somewhat ameliorated by the curiosity and philosophy toward learning that academics tend to have. Personally, I would probably bias against people who are successful and/or unchallenged, rather than mathematicians in general. Someone who owns their business probably thinks they know quite a bit about the ways of the world, and their success encourages that point of view. A math professor probably _would_ fall into this category.

Grad students of every kind, on the other hand, are told every day that they know hardly anything about the field they thought they wanted to pursue for the rest of their life. They're more likely to think they don't know anything, rather than the opposite.

That's how I might prejudge my jury pool -- although maybe that's more personal history than logical reasoning. :) 

// posted by Bob

Dr. Strangelove said...

Bob says that paying jurors a high salary might have a couple of unintended negative consequences: raising the cost of a trial, thus making the courts less accessible to your average Joe, and also giving juries an incentive to deliberate longer than they otherwise would.

As for the first, a simple answer would be for the extra jury costs to be subsidized or contingent on who wins--something like that. Frankly, I am always apalled that the so-called "law-and-order" Republicans never give enough money to the court system--which is the heart of justice in America. Instead, they give money to the prisons. If we tripled the budget for courts in this country, I would guess we could have more judges and arbiters and could significantly speed up the wheels of justice. But I digress.

As for the notion of a financial incentive for juries to deliberate too long, if this is so then one would have to assume that juries are currently incentivized to deliberate too little. I think too much is probably preferable to too little.

Anonymous said...

A few things.

1. My proposal was for court days, not days of deliberation.
2. My comment about mathematicians had several parts. First, the part that experts tend to rely on their own expertise rather than those of expert witnesses. Second, that people who think they are smart are prone to prejudge things. Third, that they are less likely to award big numbers (both good and bad). I take it Dr. Strangelove was irked with the 2nd comment. Perhaps I prejudged? Just kidding. I think the comment was plainly applied to all smart people, or those who think they are smart, of whom mathematicians are a recognizable segment. I have no problem with mathematicians. Some of my best friends are mathematicians ;). Seriously, though, very well educated people can be difficult to persuade, particularly when they sense they are smarter than the lawyers, the witnesses, and the judge. And then there's the problem of trying to make a pitch. If you've got two people on the jury whose favorite movie is My Dinner with Andre, how will they appreciate it when your closing argument is more like Spy Kids II (which the other 10 will connect with)?

The other problem with mathematicians on a jury is that they are accustomed to more certainty in proof than courts. I would wager that a mathematician sees "reasonable doubt" where a non-mathematician might say "good enough for me." Too many variables. If you can't get a significant number of ewell-ducated people on a jury, then each one becomes a strange risk.  

// posted by LTG

Dr. Strangelove said...

I cannot speak for mathematicians specifically, but as a physicist I should point out that students of the hard sciences--unlike those of other disciplines--are specifically trained to evaluate the evidence in front of them on its own merits, rather than applying preconceived schools of thought (or picking and choosing only those parts that support one's thesis.) In other words, scientists would be (on average) more likely than others to set aside their personal biases, suspend their judgments, and give fair hearing to what their first instincts say is an implausible theory.

(However, as you may feel the preceding paragraph demonstrates, we scientists can be as arrogant as anyone. And sometimes that arrogance completely negates what I said above.)

I think LTG is right that educated people tend to be more skeptical and are less intimidated by "experts" than others. But I sure would rather have one smart person on my jury than none at all.

Anonymous said...

"unlike those of other disciplines--are specifically trained to evaluate the evidence in front of them on its own merits, rather than applying preconceived schools of thought"

Your assesment of the social sciences violates your own assumptions about how you make judgements. You have only introductory familiarity with one branch of the social sciences and yet feel justified in making the absurd and insulting claim that natural scientists are better at studying everything in the world than anyone else - including people who spend their entire careers doing nothing else.

Do you honestly think that economics, psychology, sociology, political science etc in their entirety are unconcerned with the distinction between normative and positive theory or the generation of falsifiable hypotheses and testing them through emerpical observation?

Of course there are limits on how we can apply scientific methods because being a non-laboratory discipline (like much of Astronomy) we are limited by what we can see when we can see it. Our projects are further complicated by ethical issues involved in human subject testing and the application of state power for "policy experiments." We aren't allowed to test theories about trade and economic growth or democratization by inducing global depressions willy nilly.

What's more scientific approaches to the study of society are only about 50 years old. 50 years after the development of the basics of experimental science, most practioners still believed that all of the unvierse was made up of "fire" "water" "air" and "earth." It took you guys a few thousand years to get that one right as I recall. So get off your high horse! 

// posted by Raised By Republicans

Dr. Strangelove said...

RxR says my assesment of the social sciences is prejudiced and insulting. Yes, I suppose it was. And clearly I hit a nerve. Sorry. I knew I was likely to provoke such a response (though I am surprised by the magnitude) and I should have explained myself a lot better and been less abrasive.

But I should point out that I did not actually say most of what RxR implies I did. I said nothing about the "social sciences" at all. (When I mentioned "other disciplines" I was thinking more about the arts and the humanities.) And my irritating remark about "applying preconceived schools of thought (or picking and choosing only those parts that support one's thesis)" was actually meant as a dig at lawyers, because they are trained to argue for one side rather than to be neutral arbiters of fact.

And you should remember that what LTG had said was that he thought a mathematician was more likely to, "rely on his or her own expertise rather than the evidence and experts presented to them." And that's what I was specifically saying did not make sense to me.

Why more likely? Physics is about as objective a field as you can find, with little room at all for subjectivity and personal judgment. It focuses almost entirely on evidence and observation... there isn't even a "normative school" of physics at all. Since this is how a physicist is trained, wouldn't it make more sense to think a physicist would be more open to reviewing the evidence with an open mind trather than less so?

That's all I was saying. But I said it in an argumentative way. So I will recant a bit and try to be clear. I believe that political sicence, psychology, economics etc. are true sciences. And they have really difficult problems because it they are younger than physics (I would go back only to Newton, though, rather than Aristotle...) and hard for them to conduct experiments.

And now for my own kvetch. My "introductory familiarity with one branch of the social sciences" (as RxR put it) is a B.A. in economics from Cal. Not a Ph.D., to be sure, but not sneeze-worthy either. While I saw a strong separation of the "normative and positive" schools in microeconomics, I often found them blurred when it came to macroeconomics. And I certainly felt that the education I had up to that point in physics was more consistently objective than what I had in economics.

Anonymous said...

While you may not have said what I attributed to you, I am confident you believe it nonetheless (because I've known you for so long). Part of the danger of us all being friends of long standing on this blog is that it is hard to seperate what we actually say on the blog from what we've said to each other in person at the pub over pints.

I knew your credentials. I still contend that is an introductory exposure. The relationship between even uper division undergraduate instruction in econ or poli sci or soc and what we do at the professional level is enormous. It is a great dissapointment to me as a political science educator that our undergraduate instruction is so far behind our professional practice. Stuffy old departments like those at Berkeley tend to be the worst at this. This is slowly changing by the way because my generation thinks this approach is silly. Nevertheless, because you were a victim of this outmoded approach, your assumption that you've had anything more than a peak behind the curtain is not justified. The pedagogical issues alone are far more complicated than you seem to imagine let alone the research agendas.

As for lawyers. They are not social scientists and don't claim to be. They are issue advocates of neccessity and often get an undeserved bad rap because of it.

As for arrogant natural scientists. You still implied - and I believe you believe it - that you are better qualified to do just about anything than just about anyone.  

// posted by Raised By Republicans

Dr. Strangelove said...

RxR... you are wrong about what I believe. And I certainly do not believe that I am, or physicists in general are, "better qualified to do just about anything than just about anyone."

Yeah, sure, I've bragged about my field (especially over a pint at a pub). We all have. But trust me, I know a lot about the faults of physicists. And they are many! I complain about them all the time... but mostly only to other physicists. (Hey. We have to keep up appearances.)

I am consistently impressed by the depth and breadth of the political thought and knowledge expressed by the experts on this blog. It exceeds mine.

As for my credentials in economics... as paltry as it may be, my point was that not a lot of other people have degrees in both economics and physics. So when I compare those two fields, I feel OK claiming more authority than most. Does that make sense?

Anonymous said...

I would suggest that the gulf between undergraduate and graduate education is far, far wider in political science than in economics. Undergraduate economists begin using mathematical tools fairly early. Undergraduate political science students rarely do.  

// posted by LTG

Anonymous said...

OK, I'll calm down. Dr. Strangelove did indeed hit a nerve. I can't tell you the number of times I've heard undergraduate natural science majors taking classes from me parot their physic and engineering TAs and professors about the irrelevence of general ed requirements particularly in the social "sciences" (they always put the quotes in) and humanities (which they always assert are the same thing. I've had to deal with screaming engineering students actually yelling at me about how "there is no such thing as a right or wrong answer in political science so you can't flunk me!"

There is a related attitude: "Of course I have a C average. But we all know if I were a ....major instead of engineering, I'd have straight A's." I had a student tell me this once while he was contesting his C in my class.

These students' attitudes are so pervasive as to be part of the "normal science" indoctrination (to paraphrase Kuhn) in the natural sciences.  

// posted by Raised By Republicans

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