The Signs of the Times, vol. 13

February 17, 1887

“The Defeat of Justice” The Signs of the Times 13, 7, pp. 104, 105.

A MOST important factor in the almost continuous defeat of justice which is so widely prevalent, is the present jury system. Trial by jury has been called the palladium of our liberties; and against the legal system of trial by jury, we shall never have a word to say. It is not trial by jury of which we complain and against which we lay the charge of the defeat of justice; but it is trial by such juries. It is not the jury system of legal procedure with which we find fault, but it is the present jury system. SITI February 17, 1887, page 104.1

First, in cases of the most importance and of the most widespread interests, it is next to impossible to obtain a jury that is capable of forming an opinion of any value upon the subject. Because if a man has formed any kind of an opinion of the case he cannot be a juror. Whereas if he be a man of intelligence, one who reads the papers and takes notice of the events of the day, one who associates with his fellowmen to any fair extent, and especially if he thinks, it is hardly possible to prevent forming some sort of an opinion. And so the primary effect of this rule is only to shut off the intelligence of the community from the very cases in which the community has the most vital interest. SITI February 17, 1887, page 104.2

The secondary effect of the rule is consequently to create a jury of less than the average intelligence of the people; a jury of men who either do not read or converse or associate with their fellow-men at all, or else do not think enough to be impressed with what they would naturally learn by all the means of intelligence that nowadays are mere matters of course to everybody but an ignoramus or a recluse. Such a jury is incapable of reaching a decision of any value in any case that requires close attention or thought; any weighing of evidence or sifting of testimony. And, practically, juries are not expected to reach a decision in any such way. Under this rule every case becomes neither more nor less than a contest between the lawyers as to which shall make the strongest impression upon the jury, and so to carry, or at least hang it. Indeed, how could it be otherwise, as by the rule a jury has been chosen of men who are not capable of forming an opinion in the case, it becomes the duty of the opposing lawyers, each to form the opinion which he wants adopted and then project that opinion into the minds of the men composing the jury. The lawyer who does that with the most force, gets the jury; or if the impression of opposing counsel be about equal, the jury being incapable of forming an opinion must disagree. SITI February 17, 1887, page 104.3

That this is practically the theory upon which the majority of cases are conducted before a jury, must be patent to every disinterested person who studies the argument and conduct of the one who is pleading. One of the best proofs of this is the fact, which any one may notice on occasion, that no lawyer ever talks to a judge as he does to a jury,—unless perchance it be an instance of some country justice of the peace who knows as little as the average juror; we have known instances of that kind were the lawyer fairly threw the judge out of his wits. But to the intelligent judge an advocate speaks with a calmness and a consideration that spring from a consciousness that there is one upon whose mind his argument will rest with only the weight that its real merit deservers. But when he begins to address the jury he is fairly turned into another man, especially if he be a criminal lawyer pleading in a criminal case. Then he flatters and cajoles, pleads for sympathy, and sheds crocodile tears; in one sentence asserts the absolute innocence of the prisoner, and in the next appeals to the jury for mercy; in short he exerts every conceivable influence that he can bring to bear, except a calm and considerate presentation of facts and law, and an appeal to that, to win the jury. This is precisely why and how it is that so many cases are gained directly against law and evidence. SITI February 17, 1887, page 104.4

This would not be so if our juries in the most important cases were composed, as they ought to be, of the best and most intelligent men in the community. Let a lawyer understand that he is talking to twelve men who will bring to the rigid test of the law and evidence, everything that he says, and it will soon be found that he will appeal more to the law and the evidence, and depend upon that more than upon the impression that he can make upon them by personal exertion and appeals to their sympathies. It would be as it was with the famous Tom Marshall, of Kentucky, when once he found three staid, sober, intelligent Presbyterians on a jury when he was in doubt about the rightfulness of his side of the case. As he said himself, “They listened attentively to what I said, and appreciated it, but in their faces I could see written plainly, ‘Good, good, Mr. Marshall, but to the law and to the testimony.’ I redoubled my effort, and if ever I was eloquent I was in addressing those three men, but I could make no impression upon them. ‘To the law and to the testimony’ was written all over their faces.” In the argument Mr. Marshall did succeed in gaining the other nine, but in the jury room the three drew back the nine to the law and to the testimony,—and to the right side. Give the jury-box twelve such men, whether they be Presbyterians or what not, and we should soon have different arguments to our juries, and what is much more we would have different verdicts from the many unjust ones which are now rendered, justice would come near and iniquity would begin to hide itself instead of stalking abroad as now. SITI February 17, 1887, page 104.5

But with juries chosen as the system is at present, which shuts out the intelligence of the community, we cannot fairly expect just verdicts. How can an intelligent verdict be rendered by an un-intelligent jury. If the verdict be just it is only so by chance. A case is actually reported from New York wherein two men on a jury voted in direct opposition to the real sentiments because they did not know the meaning of the words “plaintiff” and “defendant,” nor the difference between them. Yet those were duly qualified jurors. They had not formed an opinion in the case, neither before nor after the trial, and the reason is obvious—they were incapable of forming a just opinion. SITI February 17, 1887, page 104.6

Another illustration from the same State, in fact from New York City. A case was on trial in which a certain firm sued an insurance company for the amount of insurance laid on a cargo that the firm said had been lost at sea. The insurance company claimed that the merchandise in question had never been put on the vessel; and presented evidence to this effect so conclusive that in an informal conversation between the opposing lawyers, after the jury had retired for deliberation, the counsel for the firm admitted that they had clearly lost their case; that the insurance company was right, and the cargo really had never been shipped. Then the weighty remark was made, “Well, is not this an extraordinary situation? Here we are, the opposing counsel, fully agreed about the case, and prepared to settle it without further parley, yet we must sit here and wait for twelve men to guess upon it.” And the upshot of it was that after two hours’ deliberation (?) their guess amounted to a unanimous verdict against the insurance company!—that is, directly against the evidence, and against the perfect agreement of the opposing counsel. SITI February 17, 1887, page 104.7

Now a very proper question is, Why is it that a jury cannot be chosen, sufficiently intelligent to render a verdict that will not be a “guess”? Why is it that States will continue to follow a system of legal procedure whose proper and effective working can never in an important case result in anything more than a guess? It is but just to say, however, that there are places in the Union where intelligent juries can be chosen. We know of one instance, in Washington Territory, where the judge gave instruction in selecting juries, that the formation of an opinion should not be a disqualification unless the opinion was so fixed that it could not be changed nor affected by evidence. Such a state of mind as that, would of course be sheer prejudice, and ought to disqualify anyone who held it. But an opinion formed and held upon what evidence has been contemplated, and subject to alteration or reversal by fuller evidence or more explicit testimony, is evidence of a clear intelligence and a fair judgment, and ought never to be a disqualification, but rather a qualification in the selection of a jury. SITI February 17, 1887, page 105.1

Again, Vermont has a law which provides that in cases of unusual importance or great complexity, whether devil or criminal, there shall be a picked jury,—a jury selected especially with a view to their intelligence, and their ability to decide intelligently upon the questions at issue. The first case that was tried under the new law was one in which suit was brought by a railroad company against its former president, to recover $200,000, which the company claimed that he had embezzled. The trial lasted nine weeks, and the testimony included 725,000 words. At the conclusion of the case, it was in 1885, the Oregonian gave expression to some views upon it, which are so eminently sound and practical, that we quote them:— SITI February 17, 1887, page 105.2

“The jury was composed of prominent farmers and business men, selected under the new law with a view to their ability to comprehend intelligently this mass of evidence which dealt with the complicated matters of railroad accounting. The result was a verdict in favor of Governor Page, and this was followed by the spontaneous movement of the people of Rutland with a great demonstration of popular approval. SITI February 17, 1887, page 105.3

“Although this was a picked jury, selected under a special law, it probably exemplified the original and true idea of a jury of one’s peers, or a jury of the country, more truly than the average haphazard panel that would have been utterly unable to understand the complicated evidence in the case. It is absurd to speak of the lazy, listless loafers who hang around courts in many country places, as well as in many of the cities, for the purpose of being called to the jury-box, as the peers of a man who had been the able financial and executive officer of a State and the successful manager of a railroad for many years. Neither is such a jury a fair representation of the country, such as could be called the jury of the country in which such a man had occupied a leading position. Under the old system, men who could barely draw the simplest note of hand might have been chosen to sift this mass of evidence. Any person of sound intelligence can see how unfair to both sides the trial of this Vermont case would have been before an ignorant jury. The trial of the star route cases in Washington was a simple mockery because of the incapacity of the jurors. SITI February 17, 1887, page 105.4

“The recent acquittal of Richard Short in a New York court through the cowardice and ignorance of the jury was not an exceptional instance of the scandalous failure of justice for the same cause. Here were twelve jurymen who, the judge says, were guilty of ‘cowardice and ignorance,’ and whom the district attorney styles ‘cowards,’ who brought in a verdict contrary to all justice, reason, and evidence.” It is but a little more than a year since the Cincinnati riots, in which scores of men were shot down and the heart of the city was devastated with fire, because the people had become exasperated by failures in criminal administration through a system of selecting jurors which enabled criminals or their attorneys to exclude from the box men who would render honest verdicts. The experience of courts in all parts of the country will show that ignorant or depraved jurors, even when free from bias, in particular cases are less likely to reach sound conclusions on evidence which they can comprehend than intelligent and moral men. If trial by jury is to be prevented from becoming more than a mockery of justice—a positive menace to the social order—greater care must be taken to provide honest and capable jurors, and prevent lazy, listless loafers, the ‘professional jurors,’ from finding their way into court. SITI February 17, 1887, page 105.5

The following, also, from a late number of the Interior, is to the point, and illustrates the deplorable defeat of justice under the working of the present jury system:— SITI February 17, 1887, page 105.6

“The shrewd criminal lawyer who gets rich by helping rascals to escape the punishment they deserve, so that they may continue to prey upon the community, don’t want a good jury. He prefers ignoramuses and scalawags—fellows whom he can cajole with his sophistry or who are naturally in sympathy with his client. If a bad man is drawn on a panel, he, of course, will swear that he has formed no opinion. He wants to get on the jury, for he knows that he will have inducements offered to him to hang it, and thus save the prisoner. For we have in our jury system a strange and absurd anomaly. In the Supreme Court of the United States a majority of the judges decide. But a jury must be unanimous or there can be no verdict. A single cranky, mulish, or corrupt man can stand out against the other eleven, and prevent conviction in the clearest case—against both law and testimony. This has occurred again and again, and will continue to occur, and more frequently in the future, since there has sprung up in all our large cities a class of men known as professional jurors—known so at least to the criminal lawyers. They try to get on juries for the very purpose of defeating the ends of justice; and in too many cases they succeed. Let the jury system be modified so that ignorance shall not be the one special qualification, and that two-thirds can bring in a verdict.” SITI February 17, 1887, page 105.7

There can be no question, therefore, that the workings of the present jury system are more for the defeat of justice than for the proper administration of justice. There must be a thorough reform, a reform indeed so thorough as to be a reversal of the present system, before Justice can have the seat of honor that is hers of right. But will there be any such reform? We fear not. The great and crying need of it is known and recognized in the highest courts ad the best circles in all the land. But of the thing itself we see no sign, but rather the working of elements which can only make against a reform, and for the increase of injustice and the growth of violence. And what can the end be? SITI February 17, 1887, page 105.8

J.