class="body">Then as now, when rendering a verdict in a case like this, where the only issue was whether or not the defendants had committed a proscribed act, the jury was limited to three choices: guilty (of the offense alleged), not guilty of the charge but guilty of some lesser offense, or simply not guilty. The directions are explicit: “If he is guilty, you will say so. If he is not guilty, you will say so. And no more.”

The Penn-Mead jurors, however, speaking through the foreman, sought to return a different verdict: “Guilty of speaking in Gracechurch Street.” This, of course, evaded the essential question, which was simply whether the defendants had taken part in a public Quaker meeting and therefore been engaged in an unlawful assembly.

Despite verbal eructation from the bench and a repeated insistence that they reconsider the verdict, the jurors resisted, even after the judges had threatened to imprison them without food and indeed had them locked up “without any accommodation.” Finally, after two days, the jury capitulated, but only to return a straight not-guilty verdict for both defendants.

Furious, the judges took the unusual step of polling the jury (i.e., asking them individually to confirm the verdict), a procedure normally used only after a conviction. When the result remained the same, the irate Recorder fined them for acquitting against the judges’ direction (essentially for con- tempt of court) and ordered them sent to Newgate Prison until they paid. Eight did so, but four refused. Instead they obtained a habeas corpus, the great writ, which was then and is now the strongest procedure for determining the legality of an incarceration.

In a decision that, three centuries later, still remains the charter of jury independence, Chief Justice John Vaughan, speaking for the eleven-judge Court of Common Pleas, freed the hungry, thirsty, and angry jurymen. Modern lawyers regard Bushell ’s case, named for one of the recalcitrant quartet, as the source of the rule that jurors need never explain their verdict, that they may in fact disregard the evidence, especially in a criminal trial, and (although it was not an issue in the Penn trial) that an acquittal is final, subject to no appeal by the unsuccessful prosecutor.

Bushell ’s case thus has come to stand for the jury’s untrammeled right to return whatever verdict it pleases. The parallel American experience, prosecution of the New York editor John Peter Zenger, acquitted of seditious libel despite the court’s manifest desire for conviction, lacks Bushell ’s legal significance because unlike the Recorder and the Lord Mayor of London, Zenger’s judges largely gave up, so the case furnished no written opinion or precedent. John Adams did not even mention Zenger when in 1771 he was arguing in support of the jury’s absolute power.

In Bushell ’s case, Vaughan, affirming the jury’s nonaccountability, relied on a narrow rationale that reflected the very origins

of the jury system: Because jurors, summoned to the service as they are from the vicinity, can very well possess information about the case different from the evidence adduced in court; by drawing on their own special knowledge of the witnesses’ credibility or even of the pertinent facts, they may arrive at a verdict that in light of the testimony the judge might consider inexplicable.

We have of course entirely abandoned this concept. Nowadays, we are not content merely to know that a jury candidate has formed no opinion about the case or its underlying facts; we want our jurors’ minds to be even purer. Our desire to ensure the jury’s absolute impartiality causes us to hunt for and to enlist only those citizens who, as in the trial of Oliver North, do not read newspapers, watch television, or even discuss the events of the day. Claiming to pursue the ideal impartial juror, we actually seek the impartiality of complete ignorance.

Worrying that exposing jurors to pre-trial publicity may render them permanently incapable of deciding the case on the evidence they learn during the trial is a reasonable and long-standing concern. Immediately after the Boston Massacre in 1770, Henry Pelham, a half-brother of the artist John Singleton Copley, executed a detailed and grossly inaccurate cartoon depicting the soldiers (who had in fact discharged their muskets almost at random) as lined up like a firing squad, with their officer, Capt. Thomas Preston, standing in the rear, sword raised (actually he had been in front of the men, sword sheathed, when the shooting started).

Paul Revere, the silversmith, acting without Pelham’s approval, engraved the drawing and printed hundreds of vividly colored copies, which traveled throughout the colonies. Well might one judge at Captain Preston’s trial complain that “there has been a great deal done to prejudice the People against the Prisoner.” With Boston’s population less than sixteen thousand and the population of Suffolk County (whence the jurors would come) more than thirty thousand, the judge had good cause to protest.

Whatever might be the relative worth of pictures to words, the radicals also prepared A Short Narrative of the Horrid Massacre in Boston , accompanied by ninety-six “depositions” (affidavits), designed to establish that the massacre had resulted from a massive Tory conspiracy. Despite the Boston Town Meeting’s vote to impound all copies not sent abroad, lest publication in Boston “give an undue Byass to the minds of potential jurors,” the pamphlet somehow managed to circulate in Boston well before the trial.

Although we cannot measure how the print and the Narrative affected future jurors, we do know that at least two twentieth-century academic historians uncritically accepted this type of special-interest pleading. Oliver M. Dickerson took a similar radical propaganda effort as documentary evidence of

bad behavior by Tories and soldiers, and Edward Channing relied on the Pelham-Revere print as proof that during the massacre someone had fired from a window in the Boston Custom Hose, this although the customs employees indicted for that offense had been acquitted by a jury that returned a verdict without leaving the box, and notwithstanding the chief prosecution witness’s prompt conviction for perjury. If the propaganda could influence experts like Dickerson and Channing, writing with the advantage of hindsight, it is hard to believe that what people in Suffolk County were reading, seeing, and hearing did not shape the popular view of the soldiers’ culpability and in some instances affect the future jury’s impartiality.

Of course, despite pious protestations to the contrary, modern lawyers and their clients (including, in a criminal case, the government) do not want impartial jurors; they want jurors who will return a favorable verdict. Yet as anyone who spends working days around a courthouse knows, knowledge before the trial of the purported facts and even admitted prejudice do not necessarily equate with unfairness or a decisional bias. This was even true in 1770: After all, the massacre trial juries all brought in correct verdicts. It is true today, as an experience of my own sharply demonstrates.

The defendant had been charged with unarmed robbery. Because he was African-American and the complainant white, Massachusetts law required individual questioning of every prospective juror specifically to explore the possibility of racial bias. Accordingly I asked each one, “Would the defendant’s being of a different race from the complaining witness in any way affect your decision?”

One woman replied: “I’m a middle-aged white woman, with a background that includes [and she mentioned where and how she was brought up]. If you are asking whether I have any bias against blacks, I have to say yes. But if the question is whether my bias would prevent me from deciding this case entirely on the evidence, the answer is no.” Both sides immediately declared complete satisfaction, and the juror took her place in the box. (The outcome, however, had nothing to do with the jury selection: In midtrial the defendant pleaded guilty.)

Unlike many states, Massachusetts does not ordinarily permit jury voir dire, the process of allowing counsel to question potential jurors, ostensibly to ferret out prejudice, but in reality to get a head start on the process of persuasion. The secondary object is to identify jurors the lawyer does not wish seated and then to bring each one to make a self-disqualifying admission. If this technique fails, the attorney can use a peremptory challenge, which requires no stated reason or justification, but of which each side has only a limited number.

It used to be that lawyers sizing up a jury panel relied on experience, intuition, and common sense. Over the last twenty years, however, science, or rather quasi-science, has taken a seat at the counsel table, with psychologists and

pollsters supplying precise data that purport to assure a sympathetic jury for whichever side retained the experts—a development dissected and skewered in recent studies by Jeffrey Abramson and Stephen J. Adler.

With some justification, lawyers and judges like to believe that legal procedure has evolved and improved so much that trials are no longer like games. We ought nonetheless to admit that the execrated “sporting theory of justice” has merely given way to a different form of extrajudicial competition, a contest to produce the jury group most likely to bring in the right verdict. Sometimes, in a criminal case, which requires a unanimous verdict, the defendant aims for a jury that will deadlock, supposing that his defense will be sharper the second time around and the prosecutor duller, even hoping that after the first failure the government will quit or trusting, like Mr. Micawber, that by the second trial something (or someone) will turn up or, better, vanish.

This jury-picking tournament has gone on for centuries, even in Massachusetts. When John Adams was defending Captain Preston in the Boston Massacre case, he took special pains during jury selection to bring favorably inclined veniremen into the box. In this endeavor Adams received advice from a Tory merchant named Gilbert Deblois, a friend of Preston. So canny were Deblois’s suggestions that five of the twelve jurors, including Deblois himself, ended up on the panel, having been drafted as “talesmen,” or available bystanders, when challenges used up the original venire panel.

Despite the guidance for which eager litigants and their lawyers annually pay jury-selection experts $200 million, the whole process is only a high-stakes game of chance taking, as the Simpson case has shown, an inordinate amount of time. Indeed, sometimes an apparent disqualification turns out to be a badge of hidden worthiness. In a Massachusetts prosecution some years ago for assault with intent to murder, one seat remained to be filled after the defense had expended its final challenge. The man called to occupy it was, as his informational questionnaire disclosed, a police lieutenant. In the “Remarks” section he had written: “I once investigated and prosecuted a case of assault with intent to murder.”

Before the lieutenant could enter the jury box, defense counsel was, understandably, asking the judge to excuse the juror “for cause.” However, because during the usual pre-empanelment routine, the juror had sworn to his impartiality, the judge denied the request.

As the trial went on, the evidence seemed to the judge exceptionally strong, and he silently anticipated a conviction. At the end he did not pick the foreperson (as many judges do) but instead left that choice to the jurors. They selected the lieutenant and returned after only an hour’s deliberation.

“What say you, Mr. Foreman?” the clerk intoned in language unchanged since John Adams’s day.

“Is the defendant guilty or not guilty?”

Promptly and loudly the lieutenant replied, “Not guilty.”

After the defendant’s discharge several jurors, including the lieutenant, asked to speak to the judge.

“We were wondering,” said a woman, “why the government brought this case; it seemed pretty weak to us.”

“I’ll second that,” said the lieutenant. “It’s the worst, sloppiest investigation I’ve seen in seventeen years as a police officer. They should be ashamed at having wasted everyone’s time.”

“Well,” said the judge, “cases aren’t always predictable.” And, he might have added, neither are juries—or jurors.

Other factors besides counsel’s use of challenges affect the jury’s ultimate composition. For one, many valuable citizens—the intelligent, solid-thinking sort most desirable as triers of fact—have learned that excuses are not difficult to obtain. Even before the sternest judge, a juror’s coy protestation of inability to decide fairly will always gain release.

One journalist famous for his swipes at the flaws in the local judicial system was called not long ago to jury duty in Massachusetts, where, as in many states, jurors need serve for only one trial or, if not empaneled, for just one day. Less anxious to participate than to criticize, he averred prejudice and thus evaded sitting on a simple, short case involving only the calculation of an injured commuter’s damages. In his column the next day he boasted of his triumph, describing his disqualifying bias as a congenital hatred of railroads.

Sometimes a jury candidate will allege a moral aversion to “judging another human being.” Judges usually honor that ground, at least to the extent of excusing the juror from criminal matters. I am not sure we are right; after all, in many civil cases the jury must determine if the defendant was negligent—that is, whether he failed to act with reasonable care under the circumstances. Deciding whether or not someone was careless seems pretty close to passing judgment on a fellow mortal.

A more legitimate ground for exemption comes from the extraordinary length of time that modern lawyers require for even ordinary litigation. When the case has attracted serious media attention, the problem increases because judges fear—with good reason—that reading lurid newspaper accounts of the evidence (especially evidence the judge has for whatever good reason excluded) or seeing slanted television snippets may taint a juror’s perception of the case as a whole. The remedy of necessity, if not of choice, is jury sequestration, popularly known as “locking up the jurors.” The description does not exaggerate. Sequestered jurors are, in everything but exposure to brutality, inmates of a medium-security prison. They wake and retire on command, they eat their meals at specified times, they may make and receive telephone calls only in limited situations, their access to visitors is tightly restricted, they can watch only approved television programs, and their newspapers have large gaps where the court officers have clipped out stories about the trial. The risks that locking up a jury

can pose to the orderly administration of justice (to say nothing of a fair trial) have come vividly to national attention during California’s Simpson extravaganza.

Although it happens much more frequently these days than before, jury sequestration is not a peculiarly modern practice. The earliest American example occurred in 1770, when the jurors who sat on the Boston Massacre trials were confined to the courthouse for the week or so that each prosecution required. Their incarceration, however, resulted not from fear of mid-trial exposure to media accounts but from the fact that up to then no trial had ever lasted more than a day and no one knew how else to accommodate the common-law rule that a jury, once sworn, could not separate before rendering a verdict.

Occasionally throughout our history occurrences more sinister than pretrial bias or news coverage during trial have influenced jury deliberations and produced unjust verdicts. During the heated period immediately following the Boston Massacre, an unpopular customs officer, an informer, was tried in Boston for firing a musket into a crowd besieging his home, killing an eleven-year-old boy. The courtroom spectators gave the proceedings scant respect. During Judge Oliver’s jury charge, cries of “Guilty!” filled the courtroom; one man shouted, “Damn that Judge! If I was nigh him, I would give it to him.” As the jury was going out to deliberate, the noise increased. “Remember, jury, you are upon oath!” “Blood requires blood!” “Damn him, don’t bring it in manslaughter [which would have spared the defendant from hanging].” “Hang the dog! Hang him!” “Damn him, hang him!” “Murder, no manslaughter!”

After deliberations that lasted until early the next morning, the verdict came in: guilty of murder. Later it developed that at least one of the jurors had had doubts but had abandoned them when assured by others that “if the verdict was not agreeable to Law the Court would not receive it.” The advice was incorrect. Once the verdict was in, the court was obliged to receive it; only a subsequent royal pardon saved the defendant.

A century and a half later, in 1915, Oliver Wendell Holmes, joined by Charles Evans Hughes (then an associate justice of the Supreme Court, later to become chief justice), dissented from a refusal to second-guess the Georgia Supreme Court’s decision that the conviction of Leo Frank had not offended due process. Frank, a New York Jew who had gone South to manage an Atlanta factory, had been indicted for the murder of a young girl. His religion and origin together with the nature of the killing had raised violent local prejudice. Holmes’s statement of the facts, sparse and unemotional, imparts with chilling effect the terror and violence that permeated the courtroom and the jury deliberations. Unhappily, other trials, in all parts of the country, have been similarly infected; none, however, has been so starkly detailed by such a detached master of prose:

“The trial began on July 28, 1913, at Atlanta, and

was carried on in a court packed with spectators and surrounded by a crowd outside, all strongly hostile to [Frank]. On Saturday, August 23, this hostility was sufficient to lead the judge to confer in the presence of the jury with the Chief of Police in Atlanta and the Colonel of the Fifth Georgia Regiment stationed in that city, both of whom were known to the jury.

“On the same day, the evidence seemingly having been closed, the public press, apprehending danger, united in a request to the Court that the proceedings should not continue on that evening. Thereupon the Court adjourned until Monday morning.

“On that morning when the Solicitor General entered the court, he was greeted with applause, stamping of feet and clapping of hands, and the judge before beginning his charge had a private conversation with [Frank’s] counsel in which he expressed the opinion that there would be ’probable danger of violence’ if there should be an acquittal or disagreement [i.e., a hung jury], and that it would be safer for not only [Frank] but his counsel to be absent from Court when the verdict was brought in.

“At the judge’s request they agreed that [Frank] and they should be absent, and they kept their word. When the verdict was rendered, and before more than one of the jurymen had been polled there was such a roar of applause that the polling could not go on till order was restored. The noise outside was such that it was difficult for the judge to hear the answers of the jurors although he was only ten feet from them.”

The facts led Holmes to a severe conclusion: “Mob law does not become due process of law by securing the assent of a terrorized jury. We are not speaking of mere disorder, or mere irregularities in procedure, but of a case where the processes of justice are actually subverted. … Any judge who has sat with juries [as Holmes had] knows that in spite of forms they are extremely likely to be impregnated by the environing atmosphere.”

The rest of the justices disagreed with Holmes and Hughes, in effect affirming the conviction. Governor John Slaton courageously commuted Frank’s sentence to life imprisonment, but within weeks a mob seized Frank, took him across the state, and lynched him. His legacy, as expressed by Holmes, did, however, triumph.

In 1923, the Supreme Court, with Holmes writing the opinion, reviewed the conviction of five African-Americans by “a white jury—blacks being systematically excluded from both grand and petit [i.e., trial] juries”—in a trial that lasted about forty-five minutes. “No juryman could have voted for an acquittal and continued to live in [the county].” This time, the Court agreed that federal relief was available:

“If the case is

that the whole proceeding is a mask—that counsel, jury, and judge were swept to the fatal end by an irresistible wave of public passion, and that the state courts failed to correct the wrong—neither perfection in the machinery for correction nor the possibility that the trial court and counsel saw no other way of avoiding an immediate outbreak of the mob can prevent this court from securing to the [defendants] their constitutional rights.”

“The administration of justice,” the Boston attorney and legal philosopher Charles P. Curtis once wrote, “is no more designed to elicit the truth than the scientific approach is designed to extract justice from the atom.” Maybe so, but as a society we have committed ourselves to the principle that justice operates more effectively, and achieves more acceptance, in direct proportion to its reliance on truth. Furthermore, we have taken the view, constitutionally and otherwise, that in general trial by jury maximizes the truth available for administering justice.

We trust the jury system, yet in many respects we distrust the jurors. The entire body of principles we call the rules of evidence rests on the assumption that ordinary people are too unsophisticated (or too foolish) to sort out the probable from the improbable and too naive to appreciate that an out-of-court statement not made under oath is less worthy of belief than a witness’s testimony in open court. Until the late nineteenth century lack of confidence in the jury’s common sense even led to excluding from the witness box the defendant in a criminal case and all parties in civil litigation. The stated reason was that their desire for a favorable outcome would irresistibly produce perjury, as if jurors would be less likely to detect false testimony from a party’s lips than from those of an ordinary witness.

Perhaps our anxiety is misplaced. Maybe we should worry less about a jury’s inability to spot liars and pay more attention to the way a juror must necessarily acquire information. We expect average untrained people to absorb evidence for days and weeks on subjects entirely foreign to them without explanation, clarification, or even the opportunity to take notes or ask questions. Thus we imagine that they can understand a judge’s “instructions on the law,” often read to them in a monotone and containing principles that law students take a term to master and whose meaning appellate judges often have palpable difficulty establishing.

On second thought, perhaps the jury’s capacity to determine truth is indeed a cause for concern and even doubt. As far back as the early 1900s, the great experimental psychologist Hugo Münsterberg was noting the discrepancy between what people see and what they remember and the role that suggestibility plays in courtroom testimony. Modern researchers, notably Elizabeth Loftus, have carried on that work, although courts have shown themselves most reluctant to let jurors hear evidence on the subject. As Justice Herbert P. Wilkins of the Massachusetts Supreme Judicial Court has written, “State court

opinions generally note that the matter is within the jury’s knowledge and that the defendants’ rights can be protected by cross-examination and appropriate jury instructions.” As a result, science now places considerably less confidence in the human memory than does the court system, which assumes, and encourages jurors to assume, that although a witness may be mistaken, forgetful, or even dishonest, the recollective power is the principal source of trial-decisive materials.

Other research has begun to demonstrate that the decision-making process itself proceeds much less logically than we would like to believe. One recent study, for example, shows that by the end of opening statements—which come of course before the jury has heard any evidence at all—jurors have already begun to make up their minds. And having unconsciously taken a position, they typically begin to “filter” the evidence to fit the version of the case to which they have already attached themselves.

Does this mean that we should eliminate the jury’s role as primary fact finder in our system of justice? The answer, I suppose, depends on what might replace jurors in administering justice. Short of some chance-activated machine, a juryless society would have to depend on one-person arbiters—that is, judges. Speaking from experience and from numerous conversations with siblings of the robe, state and federal, from all across the country, I have some doubt that the tradeoff would be advantageous, and I am certain that the judges themselves would not recommend it. Whatever may be the flaws in trial by jury, and however ill adapted it may be for resolving drawn-out, technical matters, most judges consider a multiheaded determining body superior to a lone referee. Perhaps the jury, to paraphrase what Churchill once said of democracy, is the worst mechanism for trying cases except for any alternative.

When you reduce the problem to its basics, an unideological and astute nonlawyer seems to have had it just right when in the course of analyzing and bemoaning the vagaries of trial by jury recently he said, “Do you think maybe the only thing wrong with juries is that they’re human?”