Posted by: chlost | March 24, 2013

In case you’ve wondered why I’ve been doing this for all of these years……

When was the last time that any random group of people, say a dozen or so, could agree on anything?

In today’s society, there does not seem to be a unanimous opinion on any topic.

Global warming?

Women’s reproductive rights?



Nope, unh-uh, no, and absolutely not. I don’t think you could get a unanimous decision from a group of people you pick off the street at random on almost any important issue.

And yet.

There is the jury system. Twelve people who must come to a unanimous decision in most cases, about an issue of utmost importance  to at least one person. And that one person is not one of the twelve making the decision.

This is Swampyank's copy of "The Jury&quo...

This is Swampyank’s copy of “The Jury” by John Morgan, painted in 1861, and now in the Bucks County Museum in England. More information about the painting can be found here: [|inline= (Photo credit: Wikipedia)

Two of my colleagues have had trials this week. Remember, our office represents the person accused of the crime.  One lawyer tried an assault case for a man accused of drunkenly kicking in the door of his neighbor (who is also his brother’s ex-girlfriend) after a party there, and hitting her.

The jury voted unanimously that the client was guilty.

The other colleague had a trial on a “felony assault by strangulation” of the client’s girlfriend. The girlfriend/alleged victim recanted her claim of the assault, both before and at the trial.

The jury apparently believed the girlfriend’s recanting testimony, and the client was found not guilty.

These past two weeks, other colleagues are handling a murder trial. We don’t often see murder charges, let alone trials in this neck of the woods. We work in a relatively small rural county. We work in a small public defender office of 5 lawyers. It is a huge job for the local county attorney office as well.

All of these trials required choosing a jury of random people off the street. Each jury was asked to agree on a very difficult and important issue. For the murder trial, the jurors must give up at least three weeks of their lives. Many prospective jurors begged off because they could not afford to miss work, and many were self-employed.

We Americans are generally proud of our judicial system.  “It’s better than any other system”  is frequently touted.

Yet there certainly are miscarriages of justice. The system is definitely flawed. It is expensive, bureaucratic, cumbersome and sometimes gets things flat-out wrong. The Innocence Project cases can certainly verify that last point. This past week, a man who had been imprisoned for 23 years was released due to his being wrongfully convicted.  The next day, he suffered a heart attack. How can we begin to explain the wonders of our American judicial system to him and his family?

Many people have recently been found to have been innocent although they were imprisoned for many years. Evidence has been withheld, witnesses have lied, public defense attorneys are overworked and underfunded.  Many years ago, “To Kill a Mockingbird” brought home many of the system’s shortcomings resulting from cultural prejudices  which continue today in many areas of our country. (As an aside, that book made me want to be a lawyer. The movie clinched it. I wanted to fight for the underdog. I wanted to fight for justice. Pretty heady stuff. And yet often there is no clear “justice” out there. But that’s a whole different story.)  There is also corruption in some areas of the country. whether on the part of prosecutors, judges, police officers or witnesses.

Harper Lee received the Presidential Medal of Freedom for her novel, “To Kill a Mockingbird”. Image via wikipedia

When you think about it, what are the odds of twelve people coming to a unanimous decision on something so important? And how amazing that this entire system continues after many decades, its format remaining relatively intact throughout all of the changes in our society?

In juvenile court, I don’t have jury trials, I only have to try to convince a Judge. My private practice was primarily in Family Court, where there is not a jury, either- just a Judge-to decide at trials. I’m perfectly happy with that. I have never yearned to have to present a case to a jury.

There are many parts of my job that are frustrating, irritating, overwhelming and depressing.

But the whole concept still amazes me. I am a sap who keeps hoping that all of us in the court system are doing our best. I think it is true of the people I work with. We all still believe. We truly think that twelve random people can, with evidence appropriately presented, make a fair and reasoned decision, and the requirement that they all agree about guilt works to ensure justice.

It is the one reason I love the practice of law here after all of these years.


Okay, just to show what a good sport I am, I will leave you with a few of the more cynical views on the whole subject:


We have a criminal jury system which is superior to any in the world; and its efficiency is only marred by the difficulty of finding twelve men every day who don’t know anything and can’t read.


Mark Twain (1835 – 1910)


When you go into court you are putting your fate into the hands of twelve people who weren’t smart enough to get out of jury duty.


Norm Crosby

The penalty for laughing in a courtroom is six months in jail; if it were not for this penalty, the jury would never hear the evidence.


H. L. Mencken (1880 – 1956)

A jury consists of twelve persons chosen to decide who has the better lawyer.


Robert Frost (1874 – 1963), (attributed)


And finally, one noble thought:


Justice is the end of government. It is the end of civil society. It ever has been and ever will be pursued until it be obtained, or until liberty be lost in the pursuit. In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive to wish for a government which will protect all parties, the weaker as well as the more powerful.


Alexander Hamilton (1755 – 1804)



  1. I’ve only been on jury once, for two trials. I didn’t try to get out of it because I believed (and still believe) that we have an obligation to serve if we can. Of course, now that I’m self-employed I might be a little less eager. At any rate, what I saw scared me. Not what happened in the court room but the purely illogical reasoning of some of my fellow jury members once it was our time to deliberate. And then, when it was all over, one of the defendants who lost her case called me at home and wanted to know how I’d voted and whether I’d be willing to write a letter to her daughter-in-law saying I had made the wrong decision. Holy hell! Is that supposed to happen? Now that I know someone can come after me post-trial, I don’t know how willing I’d be if I ever get called again.

    On the other hand, I’ve been an expert witness on several occasions (reluctantly), and it still seems a better system than many others. It’s an imperfect world we live in and all we can hope for is that most people have their hearts in the rights places.

  2. It is amazing that the system works at all. I served once for three days and felt it was a good experience with a fair outcome. Back in the mid seventies I used to stay up until three a.m. discussing all of it with my attorney roommate, who was a member of the National Lawyers Guild. He barely made enough money to live on in those days. None of his clients had any money at all, so he would do divorces for an income.

  3. When ideals and reality rub up against each other, there’s got to be a resultant grinding noise. I find myself willing to believe that the ideal holds promise but more often than not unable to stand the injustices that invariably occur. You’re in some noble work, woman.

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