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Saturday, June 7, 2003

Cutting down on trial and error in court

My faith in the judicial system got a big boost last year ... when I wasn't picked to sit on a jury.

Newspaper people are regarded as such poor juror candidates that the mere mention of our profession to the judge will normally send us hurtling out of the jury pool without even a hearty thank you from the county.

Perhaps it's because since we report the news, we could have access to information about a case that wouldn't be put into evidence by the prosecution or defense.

Or — more likely — it's the suspicion that because we are in the business of telling people stuff, we would find it irresistible to talk about a trial for which we would eventually render judgment.

Or maybe, we're just disreputable people unfit to decide anyone's guilt or innocence.

Nah.

Actually, one Daily Star staffer recently served — apparently with distinction — on a grand jury. She revealed nary a secret and completed her civic duty with the gratitude of the court.

As for me, several months back I was summoned by mail to Cooperstown and told to report to Judge Brian Burns' courtroom, where a jury would be selected in a criminal case.

As luck would have it, the lottery process of juror candidates that took the whole afternoon didn't result in my name being called.

I'm reasonably certain that given some of my past editorial opinions, neither the district attorney nor the defense council would have tolerated my presence on their jury. Still, I didn't at all regard the afternoon as wasted.

For one thing, Burns runs a pretty interesting courtroom. I was genuinely impressed with how painstaking and informative he was in talking to prospective jurors about how the system worked.

He went over the court procedure, the different roles of the prosecution and defense, what's evidence and what isn't, and how a defendant is presumed innocent until proved guilty.

I remember thinking how mind-numbing it must be for him to say that each time a trial begins. Not all judges do it with Burns' detail, but I think it's worth his time and effort because you can't take it for granted that citizens are up on their civics.

That became abundantly clear when Burns asked one middle-aged prospective juror if he felt he could go against the opinions of the majority of the other jurors if he disagreed with them.

Remember Henry Fonda in "12 Angry Men," a lone holdout who courageously sways the other 11 jury members to his opinion in a murder case?

Well, that wasn't this guy.

"No," he said, "I'd probably go along with the majority."

Judge Burns asked him if he would vote with the others, even if he disagreed strongly.

"Yes," the man said. "I would just go along and vote like the others."

As I sat there, I was thoroughly disgusted with the fellow. He didn't seem to be trying to get out of jury duty. He was just a weak individual lacking the courage of his convictions, at least as far as serving on a jury was concerned.

Guess what? The fellow was picked to serve on the jury.

It didn't jolt my faith in the jury system nearly as much as the O.J. Simpson trial ... or, for that matter, watching several episodes of "Law and Order," but jolt it, it did.

Many people are concerned about the effectiveness of juries, but until someone abolishes the Sixth and Seventh Amendments to the Constitution — rather a longshot — we can only hope to improve, rather than replace, the process.

That's what Burns is working on in conjunction with 50 other judges from around the state. It's called the Jury Trial Project.

Burns' part of the initiative is jury selection, and he's looking into prospective jurors being screened by the judge in the presence of both attorneys, the defendant and the court stenographer, who would record all that is said.

The thinking is, perhaps a jury candidate will be less reluctant to reveal personal details and prejudices while away from other jurors.

It's an interesting concept, with a lot of details to work out, including whether to give each potential juror individual instructions or continue to do it as it's done now, with one collective informational address by the judge.

Access by the media and the public at large to the pre-screening could also be an issue, although Burns said they would be welcome in his proceedings

Another idea would be for members of the jury to be allowed to question witnesses, via a note read by the judge after consulting with the prosecution and defense.

Burns said he's hoping to try some of the innovations by late summer or early autumn. He said it would be within his rights to exclude jurors based on what he hears in the pre-screening sessions.

I think that's a good thing, as long as all the judges are as thoughtful about what they do as Burns. It could help weed out a juror like the wretch who would go along with the crowd just to go along.

Of course, there was one thing Burns said after that jury selection that caught my attention. He advised the jurors not to read newspapers for the duration of the trial so they wouldn't be influenced by anything not directly in evidence.

Not read the newspapers?

I sure hope His Honor told them after the trial they could go back to reading them again.

Sam Pollak is editor of The Daily Star. He can be reached at spollak@thedailystar or at (607) 441-7208.



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