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“Unnecessarily Handicapped”: The Zimmerman Trial Shows It’s Time To Reconsider The Six-Member Jury

Small juries, like all small samples, carry big costs. Doesn’t a jury in a serious criminal case have 12 members? Not in Florida.

Florida is one of only two states where a jury as small as six can decide a serious felony case. It is the only state where a murder case goes to a six-member jury. And second-degree murder in Florida is serious indeed, carrying a sentence of 25 years to life. The circumstances of the shooting that killed an unarmed teenager, moreover, are sharply disputed, implicating the use of guns, the limits of self-defense and race relations. As we often do, we have given the jury in this case a challenging task.

Why should we care if the jury has six or 12 members? The Sixth Amendment guarantees the right to trial by jury, but it does not specify jury size. When the Sixth Amendment was written, was the number simply assumed? James Madison thought it was: He thought the number was 12.

For almost 200 years, the U.S. Supreme Court consistently accepted this view, defining “jury” to mean the 12-member jury. For instance, in 1930, the court said that “it is not open to question” whether juries may consist of fewer than 12.

In 1970, however, the court reversed its position in Williams v. Florida and found no constitutional objection to Florida’s six-member jury. The court labeled the general use of 12 throughout history as an “historical accident.” The court’s characterization of the historical record has been widely disputed, but even more egregiously, the court joined its new historical assessment with a strikingly inaccurate behavioral claim.

It proclaimed that the behavior of six- and 12-member juries were “functionally” equivalent, and therefore the six-member jury was unobjectionable. In fact, the overwhelming weight of empirical evidence shows that juries of six do not perform as well as juries of 12.

How do six- and 12-member juries differ? Two differences are particularly relevant in the trial of George Zimmerman. First, numerous studies of all kinds show that cutting jury size in half decreases the likelihood that the jury will reflect a representative sample of the community. The lone non-white juror on the George Zimmerman jury is just one instance of that effect. The all-female jury is another.

The gender make-up of the jury cannot be explained merely by the majority female jury pool or attorney use of challenges. A total of 10 jurors was selected, the jury of six and four alternates. Two of the alternates were male. A larger jury that included the additional four would not have been homogeneous on gender.

Ethnicity and gender are not the only dimensions of difference shortchanged by a smaller jury.

Any background or set of beliefs or life experiences that may affect reactions to the evidence is substantially less likely to be represented on a six-member jury than on a 12-member jury. Simply due to chance, unrepresentativeness is more likely when only six jurors are needed to constitute the jury. That loss is particularly troubling when the jurors are evaluating crucial and disputed evidence, like the identity of the voice in the background on the 911 tape in the Zimmerman case.

Second, jury research finds that larger juries spend more time deliberating and their discussions of testimony are more thorough than smaller juries. More vigorous debate reflects the expanded pool of abilities and perspectives provided by the larger jury. Similarly, the ability of dissenters to resist majority pressure is promoted by the increased likelihood that a dissenter whose position is not simply idiosyncratic will have one or more other jurors who share that view. The dissenters might not carry the day, but their views will be more seriously considered.

There is no evidence that jury size is associated with more pro-prosecution or more pro-defense verdicts. Thus, the key here is not that the six-member jury systematically advantages one side or the other. Rather, the point is that a serious charge demands serious procedural consideration.

Even Florida, like every other state with the death penalty, uses a 12-member jury for capital offenses. Second-degree murder does not carry the death penalty in Florida, but it does call for thorough deliberation from a variety of perspectives. The six-member jury is unnecessarily handicapped.

What should be done? Ample empirical evidence on the jury demonstrates the need to reverse course. Perhaps in the wake of the Zimmerman case, Florida will reconsider its unique position on jury size. Even better: In recent years, the Supreme Court has turned down several opportunities to revisit the question of jury size. Perhaps it should accept the next one.

 

By: Seidman Diamond, The Miami Herald, July 15, 2013

July 18, 2013 Posted by | Zimmerman Trial | , , , , , , , , | Leave a comment

“The Temptation Of Renown”: Juror B37 Considers Writing Book About The Zimmerman Trial, Then Comes To Her Senses

It’s sort of quaint that when the winds of national attention float past someone who never would have otherwise gotten the chance to receive something resembling fame, their first thought so often is, “I should write a book!” The publishing industry may be dying and 99 percent of authors may never get sales out of the four figures, but everyone, even people who haven’t written anything longer than an email since they were in their teens, thinks the world would be eager to read 300 pages of their thoughts and feelings.

So it was that Juror B37—since she hasn’t revealed her name, I’m going to call her Gladys—emerged into the bright light of a Florida morning and said to herself, “There’s gotta be a way for me to cash in on this.” And she decided to write a book, because like most Americans, Gladys isn’t non-famous, she just isn’t famous yet. She quickly retained a literary agent, who no doubt told her that this thing was going to be huge. After all, it’s all over the news. Folks just can’t get enough of this Zimmerman trial. How many millions of people would gladly plunk down 25 bucks to read the real inside story of what went on in those two days of deliberations? Maybe Hollywood would option the book, and then Gladys could be played by Anne Hathaway, who would want to learn all about the trial from her personally, and then they’d totally become best friends, and then…

Let’s say this for Gladys: After running through all that in her head for a day or two, at some point she said to herself, “Who the hell am I kidding?” After all, it would take her ghostwriter at least a month or two to spit out a manuscript, then it would take weeks more to get it into stores, by which time nobody could possibly give a crap what Gladys, or anybody else on the jury, thought about the trial. After all, the whole thing was televised—it isn’t like what went on in the courtroom is a mystery. And the trial itself wasn’t particularly dramatic. There were no stunning moments, no “Oh my, I can’t seem to get this glove on my hand,” no gripping testimony from the one person who was actually there when the crime took place. All Gladys would be able to tell anyone is what she and her fellow jurors discussed, which probably isn’t that interesting. So Gladys quite sensibly decided not to write a book after all.

Gladys’ return to reason notwithstanding, it never ceases to amaze me how many people think that their lives will be improved if they achieve some measure of fame, not as validation for their efforts, and not even the kind of fame that comes with enjoyable privileges, but just being known to strangers as an end in itself. There are dozens of reality shows which exist to let us gawk at people so despicable that we can feel much better about our own lives and relationships, and they not only have no trouble finding people willing to let them turn the cameras on every pathetic detail of their lives, they have to beat off the potential stars/subjects/contestants with a stick.

OK, you got frustrated and yelled at your kids the other day, but have you seen those monsters on Dance Moms? If you’re in the mood to have your faith in humanity’s fundamental goodness obliterated, I highly recommend the program, although it turns out, not too surprisingly, that the producers work hard to make the show’s participants seem as horrid as possible. What I’ve always wondered is whether the moms themselves think that they come off as sympathetic. What are they getting out of their participation, other than the contempt of millions? Perhaps they and others like them think that, like the Duck Dynasty fellas, once the cameras are on them they’ll be able to turn their brand of homespun charm into an entire multimedia empire. (Right now a book by the Duck Dynasty patriarch stands at number 3 on the combined print and e-book New York Times bestseller list, trailing only Sheryl Sandberg’s Lean In and the publishing phenomenon of the last couple of years, Proof of Heaven, in which a doctor describes how he went to heaven for a while when he was in a coma, and there’s just no possible way it could have been a dream, because, you know, Jesus is awesome. There are a couple dozen Duck Dynasty books of wisdom, cookbooks, kids books, wall calendars, and who knows what else available for purchase.)

The best move Juror 37B made this week was doing her interview with Anderson Cooper in darkness, so we can’t see her face. She probably did that because she was afraid that if everyone knew who she was, she might get harassed by people who disagreed with the verdict she rendered, which is possible. But being a regular person is its own kind of privilege, one she may have learned to appreciate.

By: Paul Waldman, Contributing Editor, The American Prospect, July 16, 2013

July 17, 2013 Posted by | Uncategorized, Zimmerman Trial | , , , , , , | Leave a comment

   

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