Last week I heard a certain television personality portray the kind of “loser” who (and I paraphrase, for I don’t have every detail by heart) inhabits his parents’ basement at age 30, plays video games in his underwear, and believes that “9/11 was an inside job”. Lest I myself appear to meet the last qualification, I stress that my “takeaway” from the mass of contradictory 9/11 analysis has never been that it was an “inside job”. My concern, rather, is that we cannot know what truly happened in such a scramble of disingenuous patching and plastering. Naturally, the “wackos” turn out in full force to speculate when so little is nailed down… and this—another point I have stressed over the years—merely serves to discredit further any honest search for answers. Indeed, a classic tactic of Soviet disinformation was to publish and circulate outlandish conspiracy theories about any event that the Party desired to conceal. People quickly sigh, “There’s that annoying kid screaming about a wolf again,” and turn their backs.
I understand that the TV personality in question is something of a comic and caricaturist. I’m not going to pretend offense at the genre. There’s a real risk, though, of our admitting such witty slapdashery into our serious processing of events. Excessive finesse—not being able to see the forest for the trees—characterizes the pettifogging scholarly world, and it can be very tiresome and enervating to behold; but excessive generality typifies the undisciplined lurches of popular group-think, and—entertaining though it can be—brings great risk. At worst, it produces lynch mobs. Even at its best, it creates shallow minds that imagine they have thought through an issue just because they’ve been able to torture a couple of weak analogies into a couple of cartoonish stereotypes.
Now, I would be writing almost nothing in this space if I could speak only with an expert’s authority. I don’t have such authority in very many subjects. I actually enjoy speculating, though, and suppose it to be healthy if done in a “maybe I’m wrong, but…” vein of poking around. I hope I may attempt a general statement today that doesn’t put me in the camp of the caricaturist skipping merrily over details to sketch out a shocking, balloon-like picture.
Certainly in legal matters, I have no formal credentials whatever. I expressed some genuine vexation last time with the slipshod manner in which judgments can be made from the bench, however… and I was stunned by how much applause I drew, some of it from people clearly more knowledgeable than I. I had already planned on staying within this area for one more imaginary stroll; and I’ll begin down that path now after repeating that I’m just out for a stroll—I am not a trained jurist and expect that I will overlook a few intricate, important details.
Nevertheless… I can say with some assurance that a bad judge wouldn’t have a chance to pass an unjust sentence if the jury did not first convict; so my focus this time is on that “jury of peers”. It’s important in a free republic, to be sure, for a defendant’s case to be heard by ordinary blokes like himself, and not just Milord in a powdered wig. I see an increasing problem, though, with our “ordinariness” as jurors. Let’s assume, against everything that practical experience has taught me, that those of us with a college degree or other evidence of ability to think independently (not that the former signifies the latter any more) have a chance of being selected and seated. Even if my college major were biology, I could easily get lost in the muddy layers of today’s DNA evidence. If a prosecutor tells me that the defendant’s DNA was on the knife, and the defense attorney says, “Sure, but the cops planted it,” how am I to weigh the two claims? So the prosecutor says, “It was a hot day, and Smith’s hand sweated as he clutched the murder weapon,” that sounds plausible. Then the defense attorney says, “Too much of a good thing is a bad thing. The State has found far more DNA on this handle than sweat could possibly leave.” Wow. Now I’m ready to toss a coin. What I’ll do in reality, of course, is cast my vote on the basis of how I feel about cops, how I feel about Perry Mason over here and Hamilton Burger over there, how I feel about the defendant’s looks… and now I’m no better than the hyper-politicized judges about whom I wrote last time.
But what else can I do? I’m in over my head. I am being asked to arbitrate scientific questions over which people with graduate degrees might have an honest and long-standing argument.
In the real world, of course, the exchange I imagined above is unlikely to happen just because most of the heavy artillery is sitting behind the prosecution’s table. The State (any state) has unlimited resources to go out and recruit expert witnesses—or so its agents seem to think, sitting prettily on our tax dollars. Prosecutors appear also to know how to “share” evidence with the defense, as legally required, in ways that bury the good stuff. (For instance, in Steven Avery’s trial, a computer disk that could well have proved exculpatory was very sketchily described at the end of a long list of items submitted to the defense just before the deadline.) Unless the defense attorney is a high-priced racehorse, he probably doesn’t handle clients involved in complex cases on a regular basis. The State has a team whose members are well versed in every contingency—and they probably “click” like a team, knowing how to apply finesse here and there during the presentation without quite straying over legal foul lines.
Add to this the jury’s preconditioning. For some reason, our courtroom dramas on TV have shifted heavily to the prosecution’s side. The Defenders, Perry Mason, and Abraham Lincoln Jones have yielded the floor to Law and Order and a huge kennel of elite CSI evidence-hounds. Strange, isn’t it, that the era of Eisenhower and gray flannel suits actually seems to have registered more sympathy for the poor guy in the docks than for the Machine That Keeps Our Streets Safe…. Henry Fonda single-handedly argued a hostile jury into acquitting in Twelve Angry Men. Now we have former prosecutor Kelly Siegler lending her expertise on a serial basis all over the nation to transform cold cases into indictments.
I can’t easily account for whatever societal shift is expressed in this morphing of our popular culture. But the crux of my argument has already been made: that juries today are too often in over their heads. Would I, with three degrees, be able to understand an intricate matter of tax evasion or copyright violation? I very much doubt it. If a homeowner whose house burned in a brushfire decided to sue the U.S. government for not combating climate change, would you be able to evaluate the merits of the case on both sides… or on either side?
My very tentative suggestion is that we create a “jurist profession”. Make “jurism” a major in college. Give the major different specializations—tax, civil, criminal, etc.—and require that graduates not only be re-certified yearly through an objective test, but that they lose their certification if detected in demonstrable incompetence, bias, or abuse. Pay them well. The investment would more than justify itself in the number of cases not fouled up and cycled through retrial by our system right now.
Wouldn’t you rather be making your case to twelve people like this if the neighbor who tussled with you about the property line turned up dead in his rose bushes, and then the State decided that putting a tidy frame around you was the best way to close the file quickly? Do we even really have “peers” living around us any more, in any profound sense? Personally, I’d rather have my freedom depend on twelve people who know the law than twelve random high-school graduates with driver’s licenses and voter ID’s.