In Kentucky last month, details emerged about how a jury decided on the verdict in a murder case by the throw of coin. It came out accidentally. In NSW we learnt this week of how one juror held out in a murder case in what was obviously perverse circumstances.
In the ACT things are worse. It is impossible to publish articles which show examples of how the ACT jury system works, or more correctly how it doesn’t work. Our Legislative Assembly has passed laws making it an offence to publish details of jury deliberations or voting, no matter how long after the case has closed. NSW bans such publication, but only while the trial is running.
NSW quite rightly protects jurors from being named against their will or for being harassed by the media to give details about a trial. But if jurors later voluntarily give information, it can be published. But in the ACT, our Assembly has decided not only to protect jurors, which is fair enough, but also to protect the jury system itself from any exposure. The deliberations of the jury room are to remain secret. Secrecy almost invariably spells trouble. Several hundred years of propaganda about the jury system being the bastion of liberty and the safeguard against oppression. This propaganda is hard to expose for the twaddle it is because we rarely get to see the perversity of the jury system.
It should be enough to point out that openness and provision of reasons for decisions are essential elements of justice. Decisions without providing reasons for them leave room of arbitrariness. It leaves room for abuse of power. Jurors do not have to give reasons and they are anonymous and are therefore unaccountable. Also they have to give their decision on the spot and are sequestered away until they decide. These facts should be troubling. Against that there are 12 of them and their decisions have to be unanimous, but getting 12 people to agree is not guarantee that the result will be right. People are easily led. People will vote just to get a decision and to get away. Also the requirement for unanimity means that one perverse juror can result in no result and the pain and cost of a new trial, not to mention the injustice to the community if it one person seeking an acquittal or the injustice to the accused if it is one person holding for a conviction.
This week The Sydney Morning Herald published details given to them by a juror in the trial of Tu Quang Dao for the murder of NSW state MP John Newman. The paper did a great service, though, no doubt, the legal and judicial professions are fuming and perhaps the Director of Public Prosecutions is looking at whether it can prosecute to teach the media a lesson.
Surely, if the jury system is our bulwark against oppression it is important enough for examples of how it works to be made public. In this case, it is plain the jury did not work. One person seemed perversely determined on one course of action. All the other jurors agreed the other way. The report did not say which way because it told its Sydney readers that there was only one perverse juror for an acquittal and all the others for conviction it might prejudice a new trial. That is fairly weak reasoning. If the 11 were for an acquittal the DPP would not bother launching a new trial.
The Kentucky case was more perverse. The Courier-Journal reports how a juror’s casual remark to a friend about the coin toss-up was passed on to the judge just before he was going to sentence the convicted man, Phillip Givens, to life imprisonment. (Lucky it wasn’t Texas.) The jury was 11-1 for murder. The dissenter did not demand an acquittal. He would convict for manslaughter, but one of the jurors for a murder conviction would not agree to lower the charge, so it was 11-1 for manslaughter as well. The two dissenters would not budge, so they agree to toss a coin: heads murder, tails manslaughter. It came up murder.
The judge declared a mistrial.
Proponents of jury trials will argue that these cases are aberrations. But how can we know when jury deliberations are secret and all they have to do it decide with one or two words and no details reasons? Who knows what goes on inside jury rooms?
The other troubling trend is how trials are getting longer and scientific evidence more complex while the pool of jurors capable of dealing with the complexity shrinks. Many professionals are given statutory exemptions. Others seek and get judicial exemption. Smart ones know how to get themselves off a jury easily enough.
If you were to design a system from scratch to find out the truth about crime, about the last thing you would do would be to pick 12 people randomly out of the electoral roll. Who knows what unqualified dross you might get, and it only takes one of them to muck up the outcome.
The jury system is an accident of history. It replaced earlier superstitious systems like trial by battle or trial by ordeal, but that does not mean it is sacrosanct or that far better ways can be found.
Perhaps the jury system could be put to the test. Jury deliberations could be recorded. Trial judges could record their verdicts with reasons and the whole lot out to an academic and judicial investigation after a suitable time.