[Cons] Article 3, Section 1 - A Right to a Trial By Jury (2 of 10)

Why is it that in American courts, the distribution of power looks like this:

When it should look like this?

Let's look at this in detail, shall we?

I doubt many people are going to argue with this, but in the small chance that they are going to, let's examine the current status of things:

The Judge has almost limitless power in their court room to keep order, to hold people in contempt, to instruct the jury, to decide what evidence does or does not make it into the trial etc.  There are limits but primarily, they involve appellate courts.  Within an actual trial, the judge has a lot of power.  And definitely the most of it.

The prosecutor is next.  They select the jury with the defense.  They make plea bargains with the defense.  They get the first look at evidence given by law enforcement, and even though they are legally obligated to share it with the defense, often they don't, so in terms of practical power, the prosecution is the 2nd most powerful entity after the judge.

The Defense is still more powerful than the jury, because the jury gets selected by the defense.  The defense gets to ask questions, just like the prosecution, and also gets to make a closing argument and help argue about what the jury does or doesn't get to see.

The poor Jury is often selected down to the lowest common denominator with people who couldn't find a reason to get out of Jury Duty, people who have no expertise in law or the case are often selected above those that do, they can ask no questions, and even after the dog and pony show of what evidence can or can't be seen, they are often forced to find against defendants or for them given explicit instructions on the law by the judge.  They can't ask for their own advice from an independent source.  They can ask for clarifications but almost never do, and also can be held hostage until they come to a unanimous decision.

Summary of Events as Stand
It's a pretty pathetic system all around, but then why do we have them? The idea of jury trials started with the Magna Carta, in which nobles demanded a trial by other nobles (a jury of their peers) rather than the capacious judgement a king could often hold over them.  This continued down by tradition until commoners also got this right.

But in the UK, they have barristers and actual lawyers who get up and make arguments in trial vs those who make the legal arguments.  They won't say it, but if you have lawyers who specialize in making argument in court only, perhaps you can recognize the fact that the whole thing is a show and often comes down to makes the most convincing argument to the jury.

So if it's to some degree all a show, why still bother? Well in part, because it helps increase our confidence in the courts knowing that 'our peers' can help protect us from criminal abuses and we can argue (or have someone argue) our case.  More importantly, even though people recognize that juries make mistakes, especially in highly technical cases, the appellate courts can make it up by fixing things down the line.

But confidence in the courts is on the wain.  Why? In part because we now recognize what has always been true, that the vast majority of judges, being human, are political, and as such more likely to follow their politics than their respect for the law.  And until such time as we can have an AI programmed specifically to follow the law and the law only, ignoring politics, we must acknowledge that justice, being a human institution, is inherently political.

So the question then in courts is how to maximize faith in the Rule of Law, while at the same time reducing politics as much as possible.  Life time appointments and confirmations between branches seems well and good, but such a mix got us a court that decided that corporations are people and have unlimited free speech and religious exemptions as well.

In short, American courts are now a total joke.  But try telling a judge that, and he has unlimited power to lock you up for nearly as long as he likes until appeal or you apologize in sack cloth and ashes for your 'contempt' of court.  Your 1rst amendment to free speech doesn't matter too much if you insult a judge in their court.

What to Do About It?

I mentioned in my last post on this that we need to rebuild from the ground up, including the elimination of Common Law.  I'm entirely certain anyone who currently works with the law might find this a horrible idea, just like creating a new constitution, especially anyone with a stake in the current system including lawyers, judges, some politicians and law enforcement.  But the people at large?

Maybe.  If you can make a case for it.  And I think there is a case to be made.  To keep politics out of the courts you need to democratize it, disburse the power away from institutions and away from the elite few who can be corrupted by corrupt interests.  If anyone can be on a jury then bribing the entirety of the population can be much harder.  Protecting the minority is important, but in our current system, all minorities aren't protected, just the select few who happen to be favored by the current factions in power.  Any justice system which does not protect ALL minorities; racial, sexual, genetic, political, or economic, is an unjust system prone to abuse.

A judge should be there to ensure the rules are followed, not to decide what evidence does or does not get presented.  A prosecutor should represent the interests of those enforcing the law, not the political aspirations of an idiot who needs a head.  And the defense should represent their client, fairly and with equal information to the prosecution, of equal ability with the prosecution in resources and the like.

Each of these things needs to be informed, but to me it starts with the Jury.  Juries need to be able to ask questions and they should be able to organize themselves, and they should not be able to have to be absolute to convict.

Let's look at the counter arguments:

People are Stupid, so thus will Juries be: Yup.  This is true.  But the idea that judges and the prosecution somehow counter this is ludicrous.  Millions of people are thrown into jail in this country to satisfy the political aspirations of prosecutors who want career advancement by being 'tough on crime.'  Justice is political, and politicians are slime.  So do you want corruption or stupidity? Corruption is hard to fix without a justice system that is just, whereas stupidity can be fixed with time as people learn the fact and are able to educate themselves.

Majorities will oppress minorities.  Well first, this happens all the time with  our current system, but if you can design a political system that gives the minority power (such as requiring multiple votes over time to amend a constitution or pass a referendum) you can also fix this by allowing multiple juries to see the same case.  It does mean that the ability to avoid being tried for the same crime twice might be out the window, but then again, given the fact that our current system of government essentially allows a prosecutor to charge someone with something different but for what is essentially the same crime over and over; or that a federal prosecutor can charge for something when a local prosecutor can't, that argument is by practicality also made null and void.

There should be rules in a court room. There should be lawyers.  But the basic of how the trail occurs and the law that is being tried need to be fundamentally rewritten and the best place to start is with the idea that it is the JURY not the lawyers or judges who make that determination.  

Five solutions to make this happen:

1) Give Juries, not judges, the power to declare contempt of court.

2) Give Juries, not judges or lawyers, the power to determine what evidence is seen by the court.

3) Allow the creation of technical juries for technical trials or sub aspects of trial.  Have a case that involves DNA evidence? Allow a jury of scientists to hear the evidence rather than a jury of people who think that science is evil.  

4) Allow Jury duty to serve as donated Civic Time (see a future as yet written post on this).  If all citizens are trained in law and law enforcement from the day they enter school, then it becomes much more possible to have quality juries.

5) Hold Jurors accountable for deviant or corrupt behavior.  If a juror or jury takes a bribe, acts in a fashion that is inappropriate (mocking the defendants, lying, conviction of guilty for racist reasons etc) and is held accountable for it by another jury, then they will take this much more seriously.  Higher courts from wider jurisdictions (especially federal ones) can find the unreasonable behavior of a small pocket of the country (like say...East Texas) and convict appropriately.

It's not a perfect solution, but I think its better than our current system and worthy of experimentation.  I'll address Jury Selection in my next post.