The first thing New York State Chief Judge Judith Kaye did in her mid-1990s campaign to reform the state's jury system was commission a video to introduce jurors to the history and heritage of what she liked to call "our prized American jury." The video was done in high New York style—foundations made a couple of handsome grants, professional producers and cinematographers volunteered their services, distinguished law professors wrote the text, and celebrity tv journalists Ed Bradley and Diane Sawyer narrated the story, which opened in medieval England and closed in a New York City courtroom. The praise all round was lavish.

Not long afterward a world-famous historian stopped by one of the courthouse ombudsman booths run by my Citizens Jury Project. (Judge Kaye's second reform was to eliminate all exemptions, thereby requiring every New Yorker, including the famous ones, to serve.) "I'm not normally one to defend the Church of Rome," thundered the eminent historian to our young law intern, who dutifully took down his complaint verbatim,

but that video's re-enactment of trial by ordeal is a disgrace. The clichÉd stooped monk in cowl luridly signing the cross over a drowning woman! Really! Bigoted tripe! Surely Judith knows it was the church that stopped the whole thing, ended trial by ordeal and compurgation. Not lawyers. It was the twelfth century, for God's sake. There weren't any lawyers, just canonists trained by the church. And it was the canonists who developed rational proofs of guilt and innocence and who set up standards of impartiality that became our standards.

Cowed momentarily though our law intern was, she logged onto her computer for a Lexis search—though she didn't really believe the court's video had it wrong. But the historian was right on: In 1215, the Lateran Council, convened by Pope Innocent III to regularize ecclesiastical law, forbade priests from participating in trials by ordeal. Since the ordeal required an authoritative interpretation of divine judgment, this was the end of it. Even more astonishing, she found that for this as well as his general contribution to establishing the principles of Western law, Pope Innocent became one of the 23 jurists in history honored by a medallion in the House Chamber of the U.S. Capitol. She also learned that her hero Adam Smith admired trials by ordeal for their ability to "put a speedy end to a dispute." The incident gave us all pause for thought.

Not the least of the merits of William Dwyer's book on trial by jury is that he looks at the modern jury in the context of other forms of dispute resolution—such as battle and ordeal or potlatch, used by Indians of the Pacific Northwest—without assuming that these systems were invariably irrational. Nonetheless he writes—surely correctly—that "the rise of trial by jury amid medieval superstition and violence is one of the great stories of human advancement."

It has never been easy for human beings to regularize a system of judging their fellows, yet the survival of civil society depends on it. There is nothing anywhere in the world like our American jury. While many countries have authorized modified juries, no other country—not even England—permits this pervasive intrusion by citizens into both its criminal and civil courts. No other country abides so completely by criminal jury verdicts, nor does any other country permit juries to decide substantial civil awards. Yet every attentive American can readily name several instances of seemingly egregious criminal and civil jury verdicts. Does this make sense?

Judge Dwyer answers that indeed it is does, and that our jury system is superior to any alternative—including the obvious option of judge-only trials. He should know. After practicing law for 30 years in the state of Washington, he was appointed a federal judge in 1987. After his death at age 72 on February 14 of this year, The New York Times headlined his obit, "A Judge of Vast Influence." Dwyer is no cheerleader for the American justice system, which is guilty of what he calls the "Six Deadly Sins of American litigation: over-contentiousness, expense, delay, fecklessness, hypertechnicality." These are sins, he says, of process and access—failures in how we do things, and for whom, and at what cost to budgets and sanity. But they are sins of the adversary system as it is run today, and not of the jury—though the jury, he notes, is often blamed.

My favorite among his many vivid examples is Texaco v. Hasbrouck handled by his firm when he was in private practice. In 1975, twelve gas dealers in Spokane, Washington, claimed they were being forced out of business by their supplier, Texaco. Other Texaco stations were selling gas retail at less than these dealers were paying wholesale. They couldn't match the prices without selling at a loss. In discovery, it turned out that Texaco was secretly charging a large chain operator of Texaco stations three cents a gallon less than it charged the smaller retailers. Worse, Texaco was also secretly giving a six-cents-a-gallon discount to minor-brand retailers who sold the same gas under another name.

Common sense says this is unfair, and indeed the federal Robinson-Patman Act bars price discrimination in wholesales to competing retailers. Though Robinson-Patman imposes triple damages for violations, the technical difficulties in proving discrimination are so enormous that few have ever actually won damages. Dwyer's firm took the suit under a contingency fee, which was the only way the small retailers could have paid. Represented by New York lawyers, says Dwyer, Texaco "waged all-out war, as it was entitled to do: every possible argument was raised, delay sought, discovery effort frustrated." At last the case went to trial before a federal court jury in Spokane, which awarded a "handsome verdict for the plaintiffs."

But Dwyer's joy was short-lived. The trial judge decided he had erred in his instructions on how to compute damages, and he set aside the jury's verdict, entering judgment for Texaco. On appeal, the U.S. Court of Appeals for the Ninth Circuit reversed the judgment: the trial judge had wrongly instructed the jury on how to compute damages, but the case should not have been dismissed. Rather, the court should have held a new trial, with correct jury instructions—which is what was then ordered. In 1985, the case went to its second trial before a new federal district judge and a new jury. Again the plaintiffs won, though this jury set a lower amount. Texaco appealed.

The plaintiffs were now getting a sense of geologic time, says Dwyer. The Court of Appeals ruled that the verdict was correct. Texaco petitioned the Supreme Court for review. To Dwyer's astonishment, the Court granted the petition. An ominous sign, since the Court takes very few cases. In 1999, six months after oral arguments, the Supreme Court filed its decision, unanimously affirming the judgment. Texaco had violated Robinson-Patman, the price discrimination was not legally justified, the plaintiffs could collect their award—now more than $5 million.

But was justice done? No, says Dwyer. In the 15 years that had gone by, one plaintiff had died, others were in poor health, nearly all were out of the gas station business. Time had taken away "the best fruits of victory." Adam Smith's high regard for the ordeal's ability to put a swift end to a dispute is looking pretty sensible.

Dwyer doesn't rub it in, but juries had of course twice come up with what the Supreme Court ultimately decided was the correct legal verdict—as well as what most of us would call simple justice.That's what juries are supposed to do—bring the moral sense of the community to bear in judicial proceedings. Juries are to the judiciary what elections are to the legislative and executive branches. They are the participation by the people in government.

And the people are often right when their representatives are wrong. The Dred Scott case is a historic example. The Supreme Court's 1857 decision, widely regarded as the most infamous Supreme Court opinion in history, said that blacks were not citizens within the meaning of the U.S. Constitution and therefore could not sue in federal court. What almost no one remembers today is that the original trial jury in St. Louis had come to what we regard today as the right decision: Dred Scott and his family had lived for seven years in territory closed to slavery and were therefore free. The jury abided by the principle of "once free, always free," which was established law in Missouri. Scott's owners appealed to the Missouri Supreme Court, which rejected the jury verdict and ruled against Scott, as did every subsequent higher court. Only the local jury—the lowest level in the elevated American judicial system—rendered the just verdict.

The St. Louis verdict is rarely emphasized in law review articles, and is little known to the public, in part because jury verdicts never set precedents. Their importance lies only with their immediate consequences—not with any future case law. As a matter of controversial moral judgment, capital punishment—perhaps as controversial in our day as slavery in its time—is rightly given to juries to decide. Yet that isn't quite what the system does. The capital jury is "death-qualified." That is, jurors are screened ahead of time for their willingness to vote for the death penalty. Any juror with what Justice Story in 1820 called "scruples" will be excused. Death-qualification hands the prosecutor the ability to select a hanging jury, to use Supreme Court Justice Potter Stewart's phrase.

Death-qualification is a serious interference with the jury's role as a reflection of the community. Many studies have shown that death-qualified jurors are distinct from the larger community on substantive grounds, tending to be more distrustful of defense attorneys, more likely to be suspicious of a defendant's failure to testify, and more prone to convict. Judge Dwyer is circumspect about the death penalty, though he seems to agree with federal appeals Judge Betty Fletcher that our system

has it backwards. The intense effort and resources are concentrated at the wrong end. We have inadequate representation at the trial level, which erodes the capacity of judges and juries to acquit the innocent and to save from death those who deserve less severe punishment.

Nonetheless, he believes the system usually "gets it right," and that only a tiny fraction of the 3,600 people currently on death row are innocent. This is the only harsh note in an otherwise generous book.

Copyright © 2002 by the author or Christianity Today/Books & Culture magazine.
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