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In Search of Justice in Juries

By Allan S. Galper

The head junior rises to read the verdict as all eyes turn toward the jury. When the word "innocent" pierces the air, the courtroom audience erupts in calls of protest as the judge slams down his gavel in an attempt to restore order. No, this is not the closing frame from a recent "L.A. Law," but it is reality in all too many cases.

Juries acquit defendants whose culpability is so clear that their own lawyers later admit they were almost certain of a guilty verdict. A 100 percent track record may be unrealistic, but courts must do better to convict those who clearly commit unlawful acts. It is the current inequitable process of jury selection that is largely to blame.

We saw it in the L.A. Police Department trial over the Rodney King incident. Officers filmed repeatedly beating King were acquitted of almost all charges brought against them.

An Arab-American charged with murdering Jewish extremist Meir Kahane two years ago was found innocent on all major counts even though witnesses provided overwhelming evidence that the defendant was the man who pulled the trigger.

More recently, Lemrick Nelson, Jr. was acquitted in New York State Supreme Court of all charges in the death of Yankel Rosenbaum that occurred during the riots in Crown Heights of August 1991. Police claim they saw the defendant flee the scene of the stabbing, caught him in possession of a blood-stained knife that matched the victim's blood type, brought Nelson before the victim who identified him as the attacker and produced a confession from the defendant within two hours after the crime was committed. Yet the defendant was found innocent on all charges.

When the King verdict was announced, Blacks and others screamed "No justice, no peace!" When the defendant was acquitted in Kahane's murder, supporters of the slain leader shouted "A Jew was murdered!" And when Nelson was declared innocent two weeks ago, Hasidim poured into the streets of Crown Heights to attack what they called "an outrageous miscarriage of justice." Gov. of New York Mario Cuomo compared the verdict of the Yankel Rosenbaum trial to the outcome of the Rodney King case and said he would order an investigation into "how the justice system functioned in this case."

In fact, how the system performed in all of these cases is indicative of a larger legal problem. Lawyers have too much influence in the selection of jurors who will decide the fate of their clients. A new field comprised of professional jury experts and social scientists has developed to advise lawyers how to select jurors who will favor their side.

The rise of such "designer juries" not only threatens the objectivity implicit in the Constitution's sixth and seventh amendments that call for impartial bodies to rule in criminal and civil cases, but also leads to gross violations of justice.

For example, when lawyers, claiming that it was not possible to find 12 jurors in Los Angeles who had not seen the videotape of the beating, requested that the L.A. police officers' trial be moved, the alternative venue was Simi Valley, a predominantly white L.A. suburb. A jury of non-Blacks was selected and decided that the police officers in question had, almost without exception, not violated the law by their actions.

Federal and state legal systems, as decided in Duren v. Missouri (1979), require that juries be drawn from pools that represent a "fair cross-section of the community." Surely, if lawyers hadn't forced the trial to take place in an overwhelmingly white locale, some members of the jury would have been Black, and perhaps would have seen the beating in a different light.

However, a lawyer does not need to switch the locale of his or her client's trial in order to increase the chance of winning the case. It is much easier to stay within the city limits and play games influencing who will sit on the jury.

The Kahane case is a perfect example. In the days preceding the trial, the defendant, El Sayyid A. Nosair, seemed headed for conviction on a second degree murder charge. The case was so stacked against him that his lawyer, noted defender of the legally oppressed William Kunstler, advised his client to plead insanity or at least claim extreme emotional distress in order to receive a lesser sentence. But Kunstler prevailed in getting his client off the hook regarding the serious charges.

In a New York Times article titled "Jury Selection Seen as Crucial to Verdict," the lawyer said that he and his co-counsels "strove for a jury of Third World people and people who were not yuppies or establishment types." He also said that the defense eliminated any potential jurors who supported Israel and who thus could have been biased against Nosair, an Arab. Clearly, were it not for his "made-to-order" group of nine female and three male jurors, Kunstler himself felt Nosair would have had no chance combating the prosecution's 51 witnesses.

Like the Kahane case, the Rosenbaum trial of three weeks ago resulted in a verdict of "innocent" when a jury comprised predominantly of minority members found "reasonable doubt" in what had been considered solid police evidence of the defendant's guilt. A panel of six Blacks, four Hispanics and two whites confirmed what legal experts have been saying--that a distrust of police testimony is rising, particularly among Blacks, Hispanics and people who live in poor neighborhoods where suspicion of police misconduct runs high. The defense's selection of minority members to fill the jury produced a greater chance of acquitting an individual who seemed guilty by all accounts and testimony.

The actions of the jury in the Rosenbaum case are even more disturbing if one takes into account the jurors' actions following announcement of the verdict. In a staff editorial, The New York Times reported that the defense lawyer, Arthur Lewis, Jr. took the defendant, Lemrick Nelson, Jr., and the entire jury out to dinner to celebrate Nelson's acquittal.

The Times said that "jury members hugged and kissed Nelson, toasted him and some angrily defended their verdict." Such an "insensitive celebration," as the newspaper described it, exhibited not only callousness, but may be an indication of improper collaboration between lawyer and jury beyond the already shady relationship developed in the pre-trial selection process. As a federal investigation continues to uncover the perpetrators of the Crown Heights violence, many feel justice has not been served.

Clearly, trial by jury is a necessary evil, as many legal experts argue. It is a popular check against abuses of authority that could occur in an independent judiciary. Federal judges may feel indebted to senators who appointed them. Or state judges may be connected to governors or lawyers who nominated them. In a judicial system without checks and popular participation, these judges might engage in corrupt political dealings and remain unaccountable to the public. The current case of Sol Wachtler, chief judge of New York State, who has resigned from the bench in the wake of charges that he threatened to extort money from a woman with whom he had an affair, is indicative of such improprieties.

But the institution of the jury is a mixed blessing. Professor of Law Alan M. Dershowitz, in his recently published Contrary to Popular Opinion, describes the American jury as the "conscience of the community." This "quixotic conscience," he says, sometimes reflects the best of what we stand for and other times the worst. Thus, in the '60s, all-white juries acquitted Klansmen who had murdered civil rights workers in the South and today, inner city juries acquit Black defendants charged with murdering law enforcement officials--a trend of minority distrust of police officers that was evident in the Kahane and Rosenbaum cases.

The issue of jury selection is a crucial one since the composition of the panel of jurors who will decide the defendant's fate can mean the difference between guilty and innocent. The fact that different juries can arrive at different conclusions in cases with similar facts highlights the great effect lawyers' jury choices have on the outcome of trials.

Certainly lawyers must have the right to oppose selection of a jury member who would be unfairly biased against his or her side, but the extent to which attorneys are permitted to veto inclusion of potential jurors by using "peremptory" challenges must be limited. Such opposition is not based on clear possibilities of bias on the part of the potential juror, but to a non-"cause" related reason.

These disqualifications must be supported by a "neutral explanation" and cannot simply be a factor of the potential juror's race. But improper disqualifications still occur that prevent cases from being heard by an impartial jury of the defendant's peers.

The current system of jury selection that produces panels in favor of either the defense or prosecution is not that different from the "blue ribbon juries" of the past where only the most intelligent people in a community were placed on jury rolls. Such elitism prevented justice from being served in the courts. From looking at recent cases where defendants were acquitted by juries stacked with members friendly to the defense, it's clear that giving lawyers too much freedom in the selection of jury members does not produce just results either.

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