The Nation : Juries Demand Big Sticks, but Carry Soft Hearts

Talk to any prosecutor and he or she will tell you a horror story. There is the one about the bank robber who was identified in court by four witnesses and whose face was cap tured by the bank’s surveillance camera but who was, nonetheless, acquitted. Or the one about the assassin who shot a man in a crowded hotel but who was still acquitted. Or about two brothers named Lyle and Erik who admitted to shotgunning their parents and then were reprieved by hung juries.

It is difficult to square these tales of leniency with the deafening roar for law and order we’re hearing. But at a time when the American public cheers Singapore for caning a teen-age vandal, when a tough new crime bill mandating sentences is being weighed in a Senate-House conference committee and when TV lionizes crime fighters, there is some evidence that rates of conviction are actuallyfalling. Everyone is tough on crime these days--everyone, it seems, but juries.

In a sense, the current division between hawkish advocates of law and order and dovish jurors began more than 20 years ago, during the Nixon presidency. It was Richard M. Nixon who first politicized crime by raising the level of rhetoric and suggesting that there were actually some politicians for crime. It had never occurred to anyone before. And it was Nixon who, by abusing the power of his office, created such distrust of state authority that he would leave a legacy of doubt for at least a generation.

What Nixon bequeathed to us, then, was two radically different, competing visions of crime: one shouted from political rostrums and editorial pages, the other quietly purveyed in courtrooms; one full of bluster with little real impact on crime, the other with no bluster whatsoever but with a very real impact, albeit negative, on crime; one loudly acknowledged, the other quietly ignored.

Conservatives may claim these views simply reflect political divisions: hard-headed conservatives vs. soft-headed liberals. The problem for conservatives, though, is that while it is easy to blame allegedly liberal lawmakers and judges for permissiveness toward criminals, it is far more difficult to impugn juries. Whatever else they are, juries are not cabals of bleeding-heart liberals; rather, they are a collection of strangers without any collective political agenda. Jurors are presumably our peers, our friends, our neighbors, our co-workers--us.

Perhaps the most ready explanation for the difference between these visions is that sitting on a jury changes a person. It is one thing to rail against crime as we all do in our living rooms; it is quite another when one is confronted by a particular defendant in a particular set of circumstances and then asked to render judgment. But if that were the whole story, conviction rates would have more or less held steady over time--the experience of being a juror 20 years ago being not all that different from the experience of being a juror now.

But something else is clearly going on inside jury rooms, and every prosecutor I’ve talked to will attest to it. Juries will flagrantly ignore incriminating evidence, dismiss eyewitnesses, disregard their own senses, not to mention their own common sense. As one prosecutor sanguinely put it, “Sympathies tend to lie with the defendant.” It is not unheard of, in fact, for defense attorneys to take jurors to dinner after an acquittal.

What has effected this change is not so much what goes on inside the courtroom as the cultural atmosphere outside it. Since most of us, thankfully, are not victims of crime, we view it metaphorically: Crime isn’t a thing that happens to us; it is a symbol of what is happening to society.

For the hard-liners, and that includes many of us now, crime is the most glaring symptom of a larger social dysfunction that includes drugs, teen-age pregnancy, homelessness and racial tension. We live in anomie. End crime, and you restore the old moral order.

For others, however, the metaphor of crime is not so simple. Some see crime as a tragic expression of implacable social and psychological forces and criminals as corks bobbing helplessly on the waves of these forces. After the acquittal of Lorena Bobbitt for cutting off her husband’s genitals and the mistrials of the Menendezes, there was a great deal written about a new culture of excuse in which every defendant was also a victim--of abuse or intimidation or presuggestion or, in the famous Twinkie defense, of too much junk food. In a society where what one does is the sum total of what has been done to him or her, no one is responsible. A lawyer friend calls it the “Oprah defense.”

But even while conceding that the culture of excuse is invading our courtrooms, a larger metaphor is needed to explain the Menendez mistrials, the Bobbitt acquittal and the acquittal in the first trial of the Rodney G. King assailants, among others. In our courts today, it is the system of justice that is on trial, for it seems to have failed everyone.

Starting with the Nixon presidency and intensified by Ronald Reagan’s cynical anti-government rhetoric, the state fell into disrepute. We all feel that state authority cannot be trusted, and nothing so represents state authority as the criminal-justice system. That is why a criminal outside the courtroom may be considered a miscreant at war with society and deserving of all the opprobrium we heap on him. But once he enters the courtroom, once he becomes part of the judicial process, a criminal becomes an antagonist not of society, but of the state. Think of it in movie terms. Suddenly, you have the cold apparatus of the state against an individual. Now try and get a conviction.

Obviously, this is a metaphor with special appeal to women and minorities, groups who can identify with the individual, and, off the record, there are prosecutors who will tell you that the real problem in court is that women and some minority jurors do not want to convict. (The Menendez juries split along gender lines, with women for acquittal.)

Whether this theory, based on anecdotal evidence about women minorities, holds or not--the burden of proof for the discredited state is high, indeed. The jurors in the bank-camera-surveillance case later told prosecutors that they couldn’t be sure the defendant was the man on the tape. The jurors in the hotel shooting later said that witnesses didn’t actually see the assailant shoot the victim, though he was armed and fled. And any prosecutor will tell you how difficult it is to get a juror to believe the testimony of a police officer today. In short, it is as if the entire judicial system were a ruse.

It may not be unusual that calls for Hobbesian order should also give rise simultaneously to fears of Orwellian abuse. Certainly, given the last two decades of social deterioration and political disappointment, it should not be surprising that Nixon’s twin legacies of law and order and distrust have only grown. We continue, divided by our metaphors--wanting order while distrusting the system that dispenses it, girding to fight crime while wary of the authority that will prosecute it.

Order, yes. But from whom?*