LET’S REVAMP HOW WE PICK JURIES

(This Op-Ed by yours truly, appears in the June 30th, 2017 issue of Florida Today)

More than 2 centuries later, let’s revamp how we pick jurors

       “There is nothing in the U.S. Constitution that mandates trial by jury “of our peers.”

 

The hung jury in the rape trial of Bill Cosby raises questions, once more, about the composition of juries in the American trial system. Perhaps it’s time for America to innovate and make criminal trials more efficient, fair and precise for the 21st century.

The answer? Professional jurors, certified, trained and/or experienced in basic law and court procedure, selected for trials in a random process of picking jurors’ names from a hat. No more than six to a trial. That would expedite the process and do away with long, arduous and costly juror selection processes in thousands of jurisdiction in the nation and save citizens the anguish of losing time from jobs, kids and other responsibilities. It would also eliminate the emotional factor which comes into play with average citizens.

There is nothing in the U.S. Constitution that mandates trial by jury “of our peers.”

During my years with Miami-Dade Police, I witnessed numerous cases where emotion and/or corruption, and not the hard-cold facts, played a role in acquitting obviously guilty defendants or, hanging the jury with one or two holdouts. Of the 200,000 criminal trials held per year in the U.S., roughly 6 percent result in mistrials from a hung jury, per the National Center for State Courts. That’s a lot of time and money for all concerned.

In 1968, Anthony Esperti, a Mafia-connected hood, shot and killed another Mafioso in a crowded Miami restaurant. The act was witnessed by at least 50 people. The evidence against “Big Tony” was strong, including the gun powder on his hand. After a one-week trial, the case was ruled a mistrial because 11 members of the jury voted “guilty” with one holdout. Hung jury. Buzz spread through the courthouse that the mob had surreptitiously contacted the juror’s family.

In 1992, after being caught in a sting, a circuit judge in Miami was being tried for chronic corruption, taking money in exchange for legal favors. During trial, the former judge actually took the stand and admitted his crimes, claiming he was addicted to cocaine and needed the money for his “medicine.” Hung jury. One juror, it was rumored, held out for the defendant.

Then, there’s the racial component. In Miami in 1980, and later in Los Angeles in 1993, unarmed black men were beaten by police officers with clubs. The Miami man died. The L.A. man, Rodney King, lived. The cops were white. The juries were white. The evidence in both cases was plentiful. Verdicts: not guilty.

What about the subliminal influence of celebrities? O.J. Simpson, a famed athlete/actor, allegedly murdered two people. His DNA blood drops were found in a trail at the scene. The soles of his shoes were stained with the victim’s blood. Nevertheless, he could afford the legal “Dream Team.” O.J. was acquitted by a jury of “peers.”

Rapper Snoop Dogg and TV star Robert Blake were each acquitted of murder, though the evidence was significant in each case. Blake was charged with killing his wife. Her family sued Blake in civil court when the trial failed and won $30 million in damages.

Wealthy defendants can afford to spend fortunes on high-priced attorneys, investigators and juror appraisers, helping lawyers weed through prospects who would most likely side with the defendant.

Criminal trial systems should be improved so that corruption, ignorance, insolvency, wealth and fame can no longer play a role in assessing evidence. The only way to do that is with trained, professional and independent jurors who know and understand court process. What matters in any criminal trial is the weight and validity of evidence, and nothing else.

If a nobody like Joe Blow had been charged with rape instead of the beloved Bill Cosby, with the same evidence, I’m sure the taxpayers wouldn’t be funding another expensive trial after a hung jury.

It’s been 229 years since the ratification of the U.S. Constitution. Now we have 50 states, not 13. And more than 320 million people, not 4 million. Plus, now we have the age of technology. Maybe it’s time to modernize.

23 Responses to LET’S REVAMP HOW WE PICK JURIES

  1. Pete July 1, 2017 at 3:14 pm #

    Some you win, some you lose and some you get rained out. Don’t see the issue here. We are never going to have a 100% conviction rate. I would be more worried if we did. Yes, some who did the dirty deed will not be convicted. But this is the whole point of a justice system, as flawed as it may occasionally be being viable enough to handle the weight of being imperfect some of the time. In my humble opinion we need more conservative and less activist judges, more state attorneys with better pay to compete with the teams of lawyers that can sometimes be hired by the affluent. Perhaps a jurisdiction needs to go out and bring back on a subcontractor basis some of the best and brightest who moved on because the pay was better in the private sector.

    We could change it and even then there would be imperfection which would only come to light when changed.

  2. Helen Bennett July 1, 2017 at 3:41 pm #

    You are right on this one, Marshall!

  3. Bill July 1, 2017 at 4:16 pm #

    Professonal jurors are the way to go. The know the law and the elements needed for a guilty or not guilty verdict. I think England does it this way. However, my opinion is that there is still decent chance for mistrial with a professional jury. Remember, professional or not, all it take is one vote for mistrial.

  4. Jack Milavic July 1, 2017 at 4:17 pm #

    I like the idea of a professional jury.

  5. Howard Bernbaum PE July 1, 2017 at 4:42 pm #

    We have a bureaucracy of “professionals” and that scares me away from professional anything. Thanks, I prefer peers. If f it ain’t broke – – –

  6. Rico July 1, 2017 at 5:06 pm #

    You make a compelling case Marshall, but it won’t fly! It makes too much sense, and liberals will oppose!!!

    I thought to myself as the jury was deliberating the Bill Cosby case, the chances of getting a unanimous vote from 12 people and have them vote objectively was at best slim!!! Whether he was guilty or not, I know not, but getting 12 people in America today, to agree on anything, is nearly impossible.

  7. Alan July 1, 2017 at 5:21 pm #

    I like the idea of 4 profs and 8 peers for major trials. For all others 2 profs and 4 peers

    would probably save time and money with better outcomes

    • Bill July 1, 2017 at 6:06 pm #

      I think you have a good idea

  8. Mike Carr July 1, 2017 at 8:02 pm #

    More study needed, Marshall. Not grabbing my approval rating yet due to understudied. Of course a professional juror could also be corrupted, but over a longer period of time. Good writeup as alwsys.

  9. Kay Williamson July 1, 2017 at 8:34 pm #

    You are absolutely right about professional jurors. I’ve often thought I’d rather be tried by a judge than a jury!

  10. Bob James July 1, 2017 at 10:15 pm #

    Lawyers for Bill Cosby managed to get two Negroes on the 12 man jury. This guaranteed the outcome of the trial right then and there, and everyone knew it. Just like the outcome of the farcical O.J. Simpson trial.

    A “professional jury” might work in a racially and culturally homogeneous society, but America has become an overcrowded multiracial, multicultural polyglot of people, and within each of these groups are militant minority subgroups who are increasingly vocal about their “rights” and inclusion in just about everything. So, a 6-man professional jury that might be empaneled to try several cases over a period of time, each case of a different issue, might be required to have 1 white, 1 Negro, 1 Latino, 1 Asian, 1 homosexual and 1 transsexual. After all, we want to be fair, don’t we?

    By default, the 12-man jury of our peers is as close to getting a fair trial as you are going to get in the America of today.

  11. Frank Mina July 2, 2017 at 8:46 am #

    Right on! it is amazing that you could ever get 6 or 12 people to agree on anything.
    verdicts should never be unanimous ,with one exception, deciding the death penalty, viz a viz the Supreme Court.

  12. I Richard Jacobs July 2, 2017 at 11:00 am #

    I.Richard Jacobs
    PROFESSIONAL JURORS-ABSOLUTELY NOT !
    There were two main reasons for the American Revolution :
    a) taxation without representation
    b) trial by jury.

    The crown wanted both in order to be able to fix the result.,

    Only God is perfect but to attempt to make his point a human will always point to a strainge result in any situation.and then Chaim that this exception represents the majority result(s) – when this exception is just what it is:, AN EXCEPTION AND NOT THE GENERAL RULE!

  13. I Richard Jacobs July 2, 2017 at 11:11 am #

    P.S. The jury convicted Anthony Esperti of 1st° murder with a recommendation of Mercy which required the trial judge to impose a sentence of life immediately prisonmeant

  14. millicent gustafson July 2, 2017 at 12:09 pm #

    I worry most about the innocent people in prison. Would a professional jury prevent that? I agree we need a better system

  15. Ron Fischer July 2, 2017 at 1:17 pm #

    The solution to the jury problem may well be “Watson”, a totally impartial Artificial Intelligence jury of one.

  16. George Sigrist July 3, 2017 at 8:31 am #

    Great article regarding selection of jurors. I agree with you. Most folks selected are chosen due to occupation, world outlooks, parenthood, etc. Unfortunately, very few are educated concerning the judicial system and the judicial process. The result is that criminal court proceedings end up with jurors who know very little, if anything, about criminal law, prosecutorial issues, etc. Sadly, the end result is that some of the innocent are therefore incarcerated, and some of the guilty are acquitted, allowing them to continue to go free, and out into society. If the attorneys, judges, arresting officials, and all other members of the courtroom process have to be professionals, then the jury should also be made up of professionals, at least to some degree.

    Great stuff

  17. Dave July 3, 2017 at 8:32 am #

    I’ve telling officers in my classes that the definition of a jury is: 12 people not smart enough to get out of it. The intricacies of the law and Supreme Court Decisions related to Officer Involved Shootings is too complicated for the average juror. If I were put on trial in a shooting I would request a bench trial. Example Baltimore. Good article

  18. Jan Siren July 3, 2017 at 11:45 am #

    Marshall,

    I never served on a jury, but came close; summoned just once, I was one of the veniremen who was peremptorily challenged (both sides in that civil trial had a specific number of perpemptory challenges). By definition, no “reason” has to be given for a peremptory challenge, unlike a challenge “for cause.” I suspect that the unstated reason for my challenge was education. All those challenged by the side that rejected me had college educations (yes, the educational level of the prospective juror may be asked). Go figure. That said, it was a good experience, and if we go to professional juries, the average citizen will no longer get even this much exposure to our judicial process. Let’s think long and hard before taking that big step.

  19. Ali L July 4, 2017 at 10:42 am #

    I totally agree
    I lost my FEDERAL Litagation against
    A former Vero Beach Police Officer
    Who brutally beat me after scraping a light post.
    He resigned after my brutal assault!?!??!
    He had 8 other allegations filed
    Against him in the same year and 5 others
    Previously. Remember he resigned!
    The Indian river county sheriff
    Hired him???
    I spent 3 days in. Trauma unit diagnosed
    With a sub dual hemorrhage, a broken
    Nose and extensive jaw damage.
    I underwent 2 surgeries to re-construct
    My nose and surgery to remove
    All the broken cartilage in my face.
    That I paid for.
    He also drive my car ( while I was unconscious)
    And beat up the back of my car.
    He lied and said I was in a car accident. However, there was no blood in my car
    Or anywhere else. Only at my front door
    Where he pulled me out of my house. Before calling EMT he called to see if there was a lien on my and took it in a forfeiture and I
    Was forced my car from the police.
    He then concocted a story that I tried to kill him
    He “thought I had a lethal weapon”
    And I was fleeing and eluding??
    Really he pulled me out of my house.
    Then he decided to throw in a DUI
    Stating I had a strong order of alcohol on me
    Blood shot eyes and slurred speech???
    BUZZ words
    Interesting since I never had a conversation with him
    Oh and by the way he was “out if jurisdiction ” and was instructed NOT to pursue me. Obviously he did not listen.
    My attorney in Vero Andy Metcalf forced me to plea to a DUI and
    They would drop the 3 (fake) felonies
    At one point he said the case would be dropped since he was out of jurisdiction, no proof of DUI and he pulled me out of my house.
    Then Andy started to work on me, and told me I would go to prison for trying to KILL a police officer, which he was well aware was all fabricated.
    I never received the “ten” day letter revoking my license either. It was all
    Concocted. He was clear he was working with them
    (They all sleep together in Vero)

    I was still in shock this all happened and I did plea to the (fake) DUI
    Andy told me u could not start my civil Litagation
    Until I took care of the “criminal” part, which is also a lie.
    My case (almost 5 years) later was tried in Federal court
    By an attorney in Stuart, Florida

    Judge Graham refused to allow crucial evidence
    About Fletcher McClellan into court. The jury NEVER
    Heard about all his 13 other allegations for use of unnecessary Excessive
    Force.
    His attorney made the JURY feel sorry for him
    Fletcher does not own a home
    I owned 2 in”Swanky ” gated country club communities
    Fletcher has 5 small children

    Despite all our concrete evidence
    And my injuries the Red neck jury found him
    NOT guilty!!!
    BTW I am a petite Senior citizen.
    I have lost both my homes now
    All my savings
    Approximately close to a million dollars
    In attorney fees
    Loss of real estate
    And I suffer every day with PTSD

    Even if I requested a bench trial Judge
    Graham was already biased and would not have found him guilty.
    It is frightening to know this stupid violent cop
    That can not control his fist or his penis is still out there. Next time he will kill
    Someone.
    I am forced to go back to work at 64
    But can not find employment, despite my professional
    Background NYU grad
    A former adjunct professor at University of Miami
    It seems I can not pass a background check!

    We need to Drain the Swamp in Vero beach too
    Excessive force happens right here in Vero Beach
    My local newspaper refused to write about this
    Case. They all sleep together
    The Press Journal is FAKE news

    We need to find a better way then leaving your fate in the hands of uneducated
    Jurors that are only interested in their free lunch.
    I tried to contact Marshall several times about this corrupt
    Case but he Never answered me.?

    My entire life has been taken from me.
    I suffer every day

    I was not drunk in fact had dinner that night with my former husband
    A double board certified physician .
    Everyone on the jury forgot the case was about a brutal
    Beating and use of excessive force
    Not about who had more Toys!
    Sickening

    • Ali L July 4, 2017 at 10:46 am #

      Sorry for the typos

  20. Adamsalan July 4, 2017 at 4:07 pm #

    What is the goal? Is the goal to get the 6 percent mistrials from a hung jury each year down to zero? Would this professional/educated jury be immune from corruption?
    Maybe this country would be better served if judges didn’t come from the bulging pool of attorneys. One of the requirements for a judge is that he/she has never been an attorney.
    Maybe the most effective way to reduce this 6 percent number is to change the “rules of evidence.”
    I do agree with you Captain, changes need to be made with the judicial system. Maybe changing the jury makeup is a start but, I believe, many fundamental changes need to be made to the entire system.

  21. freewoman July 12, 2017 at 12:53 am #

    As someone who has been called on to serve as a juror many times agree that our judicial system is in serious need of top to bottom review and improvement.

    Our courts are overloaded with cases awaiting trial. On one occasion was summonsed to serve for an entire week in order to help resolve the problem. The judge in charge, either overworked or simply foul tempered, warned all of us potential jurors from the start that if we appeared in his court one minute late he would charge us with contempt of court. When he, on the fourth day of proceedings, returned from lunch 45 minutes late and tripped on his gown ascending to his bench and us potential jurors chuckled he informed us that if he heard one more peep out of us he would charge the whole lot of us with contempt of court.

    It is common knowledge in our area that if you are charged with anything – from possession to murder – which attorneys will “get you off” for an exorbitant fee, and I am aware of a relationship between a psychiatrist and attorney who play the mentally incapacitated card.

    While many attorneys serve pro bono, believe that it would be extremely beneficial if those representing defendants were properly reimbursed for their services. This might attract those very well qualified to serve.

    Certainly agree that those currently subpoenaed to serve as jurors would benefit greatly by receiving some training in basic law and court procedure and that “It would also eliminate the emotional factor which comes into play with average citizens.” Don’t mind admitting that when called upon to serve in a criminal case, and the young man (about the same age as my son) charged with murder shuffled, manacled, in an orange jump suit into court and his family sat sobbing their hearts out, I became undone. Prayed swiftly that I would not be called upon to judge him. Prayer answered almost as swiftly. Prosecution rejected me as juror.

    Perhaps when one of our Men or Women in Blue knock on potential jurors doors and smilingly hand them a subpoena to appear in court they could also hand them some information on basic law and court procedure.

Leave a Reply