If there was ever an argument that the jury, as presently constituted, has outlived its usefulness, this is it:
ALEXANDRIA, Va. -- The jury in Zacarias Moussaoui's death penalty trial has finished deliberating for the week without reaching a verdict...It's not just that the jury is deciding a case that hinges on a word that they don't understand, it's that the judge refuses to let the jury gain the knowledge necessary to do the job. Frankly, I don't care if the terrorist bastard hangs or not, but I care very much that his fate is in the hands of people who are incompetent to decide it. Who knows, some day I might need a jury, and I want them to understand what they are doing.
Earlier Friday Judge Leonie Brinkema admonished jurors not to do their own research. The scolding came after the court learned a juror had looked up the meaning of "aggravating."
That word is central to the deliberations. The jury must weigh aggravating and mitigating factors as it decides whether Moussaoui should be executed or sentenced to life in prison for his role in the Sept. 11, 2001, terrorist attacks.
Brinkema decided in a closed hearing that the juror's action wasn't significant enough to stall deliberations further. But she told the jury not to look up words again.
Earlier this week, the judge refused to supply the jury with a dictionary.
But note I said the jury "as presently constituted" has outlived its usefulness. Juries remain an indispensible cornerstone of our system of justice, and rather than being eliminated (which would put the fate of citizens completely in the hands of often overzealous prosecutors, rather than just mostly as they are today), the system ought to be reformed to be what it was when established: a true jury of peers who have the knowledge, ability, and desire to do the job.
Think about it for a minute: when a person is called for jury duty, what's their first reaction? "Oh, man, not that!" With that kind of an attitude, how can anyone be expected to do a good job? And when a man's life is on the line, how can we consider it justice when we have a dozen uninformed and uninterested people deciding his fate?
Therefore I suggest the following:
Fully-informed juries. Juries should hear ALL the evidence - even evidence gathered unlawfully and evidence the judge does not think is relevant; and yes, this includes prior accusations against the defendant and prior accusations by a witness. The judge may be trained in the law, but he is not the one deciding the case. That people reading the paper know more about witnesses than those deciding a case is ludicrous.
Jury nullification. If the jury finds a statute to be unfair, unclear, or unreasonable, they should acquit the defendant. Actually, they have the power to do so (and have always had that power), but they should be informed of it and be able to excercise it without repercussion. If a law is not good enough that a jury can in good conscience convict, then the defendant should walk. There's no better way to get clear and good law than returning to the people the power to make unclear and bad law unenforceable.
Voluntary juries. The act of punishing people for not taking part in a legal process in which they have no interest delegitimizes the entire process. Juries should not only be made up of any individual who is chosen from a voluntary pool (no exclusions unless a juror is shown to be unable to perform the functions of the job) they should be paid well enough - by both prosecutor and defense - that they want to take part. If the defendant doesn't wish a jury, then that desire should be respected in all cases, civil or criminal.
Elimination of jury resource restrictions. If the jury wants to take notes, research case law, or ask questions of witnesses, they should be able to without any interference from the judge. It's preposterous that juries are expected to rule on laws that in some cases they are not even allowed to read and in many cases do not understand.
The purpose, strange as it may seem, is the make the jury the most powerful force in the courtroom, rather than putty for a defense lawyer, prosecutor or judge to mold according to arcane rules and winking gentleman's agreements. The ritual where people all rise before a magistrate in flowing robes who has the power to tell the jury they can't use a dictionary is a farce. That a jury that doesn't know the meaning of the word 'aggravating' is deciding next week whether a man should die because of it is a travesty.