The case against jury trials

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Yes, you read correctly: I’m not a fan of jury trials.

Case in point: The death of O.J. Simpson serves as a reminder of the failure of the jury system. Does anyone really believe that Simpson was not the murderer? If not, why would someone stab two strangers to death for no reason whatsoever?

Two reasons demonstrate that such a belief would be stupid. First, unlike a shooting, stabbings are almost always an act of passion. If a thief wants to kill his victim, it is far safer and more efficient (for the thief) to shoot the victim rather than get up close and personal. Second, no theft occurred – nothing was taken. So two dead bodies were left to explain, and no one other than Simpson would have enough desire or opportunity to get close enough to stab them to death. Not to mention the substantial other evidence that linked him to the crime. Or his book entitled “If I did it: Confessions of the Killer.”

Yet a criminal jury (a civil jury with a lower burden of proof did find Simson responsible) incomprehensively ignored the overwhelming evidence and common sense and allowed a double murderer to walk free.

Yes, the state’s case had problems (they always do), but nothing close to “reasonable doubt”  ̶  unless the jury wanted to ignore evidence and common sense. Which it did.

Such perverse verdicts are a common feature of juries. Publicly, trial lawyers will only praise the jury system. That is, of course, pure PR (and BS). Any lawyer who truly believes that the jury system is an effective way to get justice is either naïve or has tried very few jury trials.

As a felony prosecutor, I tried almost 100 jury trials. I never tried a case if I didn’t know  ̶  not just believed  ̶  that the defendant was guilty. While most of my verdicts were guilty, there were a few acquittals, most of which were understandable due to a weakness in the evidence proving guilt.

One case, however, had no weaknesses. The defendant’s guilt was so overwhelming that I did not understand why the jury deliberated more than a few minutes. I was flabbergasted when they acquitted him.

One of the key pieces of evidence was the victim’s torn pants, which I kept in my office as the victim, naturally, did not want them returned. For the rest of my time as a felony prosecutor, when a police officer or victim asked me why I was offering a plea bargain in a strong case, I would point to the pants and tell my version of an “O.J.” verdict.

My felony team captain, Jon Peter Gennrich, one of the most brilliant people and finest prosecutors I’ve ever met, put it this way: If a decision has to be made whether to have major surgery, who would you want to make it? Twelve strangers, chosen off the streets, with no experience in medicine, and whose information to decide was strictly limited by arcane rules? Or a panel of surgeons who were educated and experienced with that type of surgery, with full familiarity with all aspects of the situation, and could ask whatever questions they need to ask?

The answer is obvious. Criminal defendants very rarely waive their right to a jury trial to be tried by a judge. Criminal defense attorneys are aware that most of their clients are, in fact guilty. Therefore, the odds of a verdict contrary to justice, otherwise known as an acquittal, are more likely from 12 inexperienced, ill-informed citizens than from an experienced, knowledgeable judge.

Our jury system is so deeply ingrained in American law and culture that it will never change. But Simpson dying as a free man proves, once again, the failure of that system to consistently apply justice.