Twelve Angry Football Fans?

God help us if O.J. Simpson and his band of legal eagles convince the jury to let him off.

I say this not because it matters one bit to me what happens to an aging football player (it doesn't). Nor do I make any claim about his guilt or innocence. I say this because if he gets off scot-free, every talk-radio show in America will be deluged with callers demanding that trial by jury end.

The fact is, plenty of people feel the evidence against their formerly favorite running back is ironclad. And if the decision goes against their opinion, then as far as they will care to know, jury trials will be to blame. Various members of the legal profession have shown themselves to be--not surprisingly--alarmed by this prospect. Harvard law Professor Richard Parker wrote an article in the New Republic discussing the potentially disastrous ramifications of an acquittal.

I think the legal profession is justifiably nervous for several reasons. First, lawyers have never been the most beloved members of our society. They occupy the same position as a math nerd in junior high--we go to her when we need help, but that doesn't mean we'd like to take her to the movies.

In addition, over the past few years a steady stream of popular and scholarly works have criticized the judicial system. These often scathing critiques of the profession have come from both within and without.

Clearly this confluence of scholarly and popular dissatisfaction with a historically unpopular group will present a very appetizing meal to any number of politicos. Though I do not believe that all politicians are fools and idiots, a fair number are. More frighteningly, recent history shows that the counsel of the most foolish and extremist figures tends to be given the most attention (though fortunately such ideas are not always heeded). So if Orenthal James Simpson is acquitted or let off by a hung jury, we should expect to see talk-show hosts and Congressional firebrands call for an end to jury trials. This returns me to my original observation: God help us if O.J. goes free.

Let us consider the merits of trial by jury. I am fairly certain that for the foreseeable future we will have juries in criminal trials. Richard Posner--the eminent and brilliant scholar-judge--supports this supposition in a recent article in Commentary. So let us restrict our analysis to civil cases. What about them?

In his article Posner points out the improbable evolution of our conception of juries. As first conceived, jurors had the advantage of first-hand knowledge of the participants and served as good representatives of the moral sense of the community. This was the meaning of "a jury of ones peers."

Today, juries are meticulously purged of jurors with any outside knowledge of the case, and--popular sentiment to the contrary--jurors are supposed to follow the law not their moral senses.

Because of this little-noted evolution, can we say that juries have lost their original purpose? As bodies which represent a community's moral sense and know the trial participants, juries are well suited. But if blind justice given by impartial legal experts is what we want, how about those supposedly impartial, supposedly expert, judges?

Posner--who'll you remember is himself a judge--makes the perverse argument that because judges are often so incompetent (especially at the state and local level) a good jury is often preferable to an idiotic judge.

He further argues that juries are likely more similar in social background to the witnesses and defendants than the judges are. Though Posner is himself one of the greatest legal minds around, he admits that he is often less able to judge the reliability of a witness than the jurors are. It is difficult to understand how he can ascertain that a jury's collective intuition is better than his own without appealing to some sort of God's-eye viewpoint, but let us put aside such concerns and continue with his argument. Therefore, he asks, might not these juries be better judges of character than the judge himself?

He suggests a system whereby judges in civil cases can elect to have the help of a jury or not. In highly complicated matters of economic theory or complex interpretation of maritime law, the judge would go it alone, relying on his or her superior knowledge. But in cases where a jury might help, the judge can call one.

This seems to me to be a very absurd remedy for the admitted incompetence of the judiciary. If many judges are incompetent can we really trust their judgment about when they need help?

It seems like a system which would help those judges with the best judgment--in other words, those judges who need help least. In any case, it seems very unconvincing that juries should exist to offer a sheltered, bookish judge the services of their collective street smarts.

But Posner's first-hand experience as a judge--and his inarguable brilliance--means that we should listen to his reason about why juries sometimes fail. As a legal scholar and a judge, he has a privileged standpoint from which to argue that a jury of laymen cannot be expected to understand the complexities of certain types of civil cases.

So what is to be done? I believe that the current system is--for all its flaws--the best available. Its justification rests on the most American of values: a mistrust of officials and institutions.

Perhaps here I betray my Jeffersonian political leanings, but I suspect that many people feel strongly that the danger of an entrenched and all-powerful judiciary lies in its tendency toward indifference and corruption. The reasons why power inspires indifference and fatuousness is a matter for political scientists and is beyond the scope of this article. Nonetheless, one should note that the legal system is often criticized for being too far removed from basic ideas of fairness and simple justice. If juries were eliminated the system would only become more arcane and technical.

The current system does provide adequate--though costly--protection against incompetent juries. The protection comes, of course, from the appeal process.

For these reasons, and others, I believe that our current system is the best of all possibilities. It would be a shame if the general strengths of the system were forgotten in the melee following the acquittal of an ex-football great.