By Dr. Ken Broda Bahm:
The dramatic capture of Boston bombing suspect Dzhokhar Tsarnaev last Friday immediately ignited a debate on whether the suspect should enjoy the protections of the Constitution. Republican Senators John McCain, Lindsey Graham, and Kelly Ayotte, along with Congressman Peter King, issued a joint statement applauding the initial decision not to Mirandize the suspect, and calling for the Chechen immigrant to be declared an enemy combatant. “We do not want this suspect to remain silent,” they noted. Fellow GOP Senator Rand Paul disagreed, noting that the veterans who have fought for our rights would be disheartened to think,” We’re just going to tell people, ‘Oh, no jury trial anymore.'” That immediate conversation was stilled by a quick word from the White House: “He will not be treated as an enemy combatant,” Press Secretary Jay Carney clarified, because “United States citizens cannot be tried in military commissions.”
While that declaration reassured many civil libertarians across the country, the debate continues on the broader question of whether we can count on the conventional criminal justice system when it comes to national security targets. To put it in popular terms, can we trust the same jury system that let Casey Anthony walk out of court a free woman to deal with accused terrorists like Tsarnaev? Or to consider the flip side, can we trust the jury pool for a federal trial when it will be made up of Boston citizens zealous to convict? In the Boston Marathon bombing case, it may not be a make or break issue if the reports of overwhelming evidence, potentially including a confession as well, turn out to be accurate. But the larger issue — our faith in the jury system when it comes to the most critical cases — still matters. So for those discussions and debates that will no doubt continue in living rooms, backyards and Facebook walls, this post shares three arguments supporting the view that we can and should trust our jury system to deal with even the most heinous cases.
Juries Tend to Get it Right
Of course, there is no objective or infallible way of knowing what “getting it right” means for any decision maker. But if it means that a jury reacting to the same set of facts would generally make the same decision as a judge, then jurors get it right. The classic demonstration of this was in Kelvin and Zeisel’s The American Jury study which asked thousands of judges to report both the jury’s result, as well as to answer how they would have decided the case. That is a very old study at this point — 1966 — but the main finding that judges and juries agree in both criminal and civil cases 75 percent of the time was recently replicated (Eisenberg et al., 2006) with researchers again finding 75 percent agreement. In each study, there was some variation in the remaining cases, with judges appearing to have a lower conviction threshold. But if jurors are prone to show a little more leniency or apply a higher standard of proof in some cases, that doesn’t necessarily mean that they are the ones in the wrong. And there are plenty of examples of individuals tried and convicted on terrorism charges in U.S. courts: Ramzi Yousef, Tim McVeigh, Abdel Shehadeh, Jose Padilla, Hamid Hayat, and the al Shabaab case in San Diego to name a few. If one is worried about the jury diverging in the direction of leniency from what a judge would do, then terrorism cases are probably not the cases to worry about.
Juries Differ From Public Response for Some Good Reasons
Returning to the Casey Anthony example, of course you wouldn’t likely see child murder cases as an avenue for greater juror leniency either, but that example — the O.J. Simpson of this generation — is probably in the minds of those who doubt the reliability of the jury system: the perception at least of overwhelming evidence supporting conviction on a particularly heinous crime while the jury votes nonetheless for acquittal. As I’ve written in that case, however, the story was not one of a jury simply ignoring evidence, but of the jury applying a standard that the prosecution didn’t appear to expect. What was also lost in the public’s outrage over the verdict is the fact that the jury had not heard the same case as the one presented in the court of public opinion. When juries differ from the public response, there is no basis for saying that it is the public’s response — driven by half-attention to sensationalist media stories — which is the correct one. Actually hearing a trial is a very different experience from hearing about a trial. Those in the best position to judge the jury would be the judges themselves who say, that in three-quarters of cases, they would have done the same thing.
Juries Serve a Larger Legitimacy Role
So skeptics, and those who just don’t like jury duty, might wonder, if there is that generally high level of agreement, why we actually need juries at all. The answer is that juries are an exemplar of participative democracy, providing both the symbol and reality of a response by the people. That rationale applies just as well or even better in terrorism and national security cases. After all, what better response to the carnage and spectre of lawless appeals to power that we saw in the Boston Marathon bombing than the careful and dispassionate review and judgment of a federal jury? Decision by jury continues to play an important role in providing legitimacy to this decision, and this is true in two ways. For those on the jury, we find when conducting post-verdict interviews that nearly all former jurors are glad they’ve done it and have gained an important appreciation for the jury’s role. It is also true at the broader political level, as I’ve written before: When the judgment does come, it is the voice not of a single appointed judge or tribunal representing the government, but the voice of the typical citizen representing all of us.
That, perhaps, should be the larger lesson of our response to the Boston Marathon bombing and other acts of mass violence: When the institutions of a civil society are under attack, don’t abandon them.
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Other Posts on the Role of the Jury:
- Consider the Jury’s Political Role
- Know the Costs of Plea-Based Justice
- Bring the Jury Into Your Mediation
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Eisenberg, T., Hannaford?Agor, P. L., Hans, V. P., Waters, N. L., Munsterman, G. T., Schwab, S. J., & Wells, M. T. (2005). Judge?Jury Agreement in Criminal Cases: A Partial Replication of Kalven and Zeisel’s The American Jury. Journal of Empirical Legal Studies, 2(1), 171-207.
Photo Credit: Image released by the FBI, April 19, 2013