Is the US justice system up for sale?

June 18, 2015 4:32 PM

Reasonable Doubts About the Jury System Trial consultants allow the affluent to manipulate the biases of those who judge them, putting our justice up for sale. via The Atlantic
posted by robbyrobs (31 comments total)

This is America.

Everything is up for sale.
posted by Horace Rumpole at 4:40 PM on June 18, 2015 [8 favorites]

Let's not pretend that everything being up for sale is limited to America.
posted by Mitrovarr at 4:46 PM on June 18, 2015 [11 favorites]

That was an awful lot of words, and I think he's preaching to the choir here. What are we supposed to do with this information? Beyond "engage in honest reflection" (as opposed to the dishonest reflection encouraged by the jury questionnaires?) Should we guarantee all criminal defendants a right to a jury consultant now?
posted by spacewrench at 4:56 PM on June 18, 2015 [1 favorite]

This argument is foolish. It has no logical conclusion.

If I had a case that I wanted to win and could pick any living or dead attorney to argue it for me, I'd select Moe Levine. Moe probably wouldn't work for an hourly wage, but if he did, it would be really high. If I hire Moe Levine, you can hire anyone else--cost be damned--and I will win because I have the better lawyer. Now if you hired a cheaper lawyer, did I buy the legal system by paying more? If you hired a more expensive litigator, did you buy the legal system (even though I will win?)

The only point to be made here is that the legal system is a very costly proposition. But what's the alternative? Public defenders for all? Where is the fairness in that? Why should I not have the best person to represent me. Everyone wants the best. And if you are going against a powerful corporate or the state that holds all the cards and has virtually limitless resources, you are going to want a highly qualified lawyer. And a highly qualified lawyer is going to try to win by paying for good experts (expensive) and using things like trial presentation AV teams (expensive) and jury consultant (expensive). But so is the other side. Are both sides trying to "buy" the justice system? No. They are trying to do everything possible to advance the interest of the person they presumably believed in when they took the case. Nothing wrong with that.
posted by dios at 4:56 PM on June 18, 2015 [7 favorites]

blah blah blah worship the legal system or face human frailty. Some people believe in God, some people believe in the the legal system. It's always so fascinating to me to meet confirmed atheists who have an intense faith in the American legal system. In my anecdotal experience, the less religious someone is, the more likely they are to want to believe in the American legal system as a dispenser of justice.
posted by wuwei at 4:59 PM on June 18, 2015 [5 favorites]

Wouldn't it be a little more equitable if you paid the Jurors (and I don't mean the Judges) better? "Gee, I need to earn that daily stipend that's triple my day job... I'm gonna bring my Critical Thinking A-game." Eh, maybe not.
posted by oneswellfoop at 5:08 PM on June 18, 2015 [1 favorite]

I've been called for jury duty. Now I'm going to listen a little differently to the questions they ask. If asked that same question about whether or not I would be biased if told they were a gang member, can I now respond "Well, now that you bring that up..."
posted by njohnson23 at 5:11 PM on June 18, 2015

blah blah blah worship the legal system or face human frailty. Some people believe in God, some people believe in the the legal system.

You forgot the free market! WON'T SOMEBODY THINK IF THE FREE MARKET?!
posted by Max Power at 5:14 PM on June 18, 2015 [5 favorites]

If the legal system means anything, it needs to be a mechanism whose first priority is arriving at the truth, not one whose purpose is to demonstrate the value for money offered by one or another attorney . The adversary process was justified, originally, as an impartial mechanism for truth. It has become something else entirely.

Part of this, as the article suggests, is the embedded notion that reason can be quickly freed of bias by simple processes. But of course this is not so; the adversary process sees honest, reasoned debate between two sides before a disinterested third party as a truth process; but in practice, this is not so. The model of mind tat the process is built upon is frankly obsolete, a sort of naiveté from the days when the mechanistic harmony of the universe and the transparent self-knowledge of the logician were assumed but never tested.

Public defenders for all? Where is the fairness in that? Why should I not have the best person to represent me.

You are defending the proposition that outcomes in the justice system depend in part on the means of the litigant. This is the most disgusting sentiment I have seen expressed here in quite some time.

The fact that not everyone can afford a "good" (by which you mean "talented") attorney means that financial status allows some people's interests to be better represented than those of others before the law. And you have the gall to call that fair?

"Fair?" You don't know what the word means.
posted by kewb at 5:18 PM on June 18, 2015 [26 favorites]

If money provided a systemic advantage in jury trials, moneyed parties wouldn't -- as they in fact do -- move heaven and earth to have their disputes heard in bench trials or arbitration: anywhere but in front of a jury.
posted by MattD at 5:20 PM on June 18, 2015 [6 favorites]

The simplest way to make this fair easy. The defendant is given a public defender, the public defender is *requried by law* to have a budget, staff, and case load as the prosecutor.

They may, if they wish, hire additional defense.

Alternative two.

80 jurors are chosen by lot. 60 are required to convict. Failure to reach conviction in one vote -- held by secret ballot, without retirement to a jury room -- results in acquittal. There are no challenges to remove a juror.
posted by eriko at 5:21 PM on June 18, 2015 [2 favorites]

Uh, I don't think 'believing in" the client is a requirement to represent them.

In practice, certain lawyers "believing in" the client probably correlates with the robustness of said client's bank account.

While paying jurors better could help, I really don't think it'd fix all of the problems. If a consultant feels that you don't fit the right profile, then it doesn't matter that you're happy to participate, they're still booting you off.

On preview: seconding kewb
posted by ghost phoneme at 5:23 PM on June 18, 2015

What's the public policy response? You couldn't ban consultants; I'd think that would be an unconstitutional violation of the right to counsel. Do we make a pool of consultants available? I'd think there'd be better uses of resources than that (more public defenders, for one).
posted by jpe at 5:28 PM on June 18, 2015 [1 favorite]

If money provided a systemic in jury trials, moneyed parties wouldn't -- as they in fact do -- move heaven and earth to have their disputes heard in bench trials or arbitration: anywhere but in front of a jury.

Your conclusion does not necessarily follow, at least not as stated. The phenomenon might just as easily be explained by the argument that money produces a systemic bias in both jury trials and in non-jury trials, but that the effect is often greater in non-jury trials.

Moreover, you ignore the other incentives someone might spend money to choose arbitration, such as the more limited discovery process and the much faster time to resolution when compared to jury trials.
posted by kewb at 5:32 PM on June 18, 2015 [6 favorites]

What's the public policy response? You couldn't ban consultants; I'd think that would be an unconstitutional violation of the right to counsel. Do we make a pool of consultants available? I'd think there'd be better uses of resources than that (more public defenders, for one).

The Sixth Amendment promises that all defendants shall enjoy the assistance of counsel; nothing in its language specifies how that counsel is chosen or compensated.

Socialize the legal profession and require parity in funding and caseloads. The practice of law, like that of medicine, should not be driven by profit because the demand curve quickly turns into a vertical line. For-profit law is financially inefficient in terms of dollars spent to outcomes achieved, and produces very poor "typical" outcomes.
posted by kewb at 5:37 PM on June 18, 2015 [6 favorites]

Trial consultants are bullshit, full stop.

(I was a research assistant on the latter study.)
posted by Eyebrows McGee at 5:42 PM on June 18, 2015 [3 favorites]

It's always so fascinating to me to meet confirmed atheists who have an intense faith in the American legal system. In my anecdotal experience, the less religious someone is, the more likely they are to want to believe in the American legal system as a dispenser of justice.

Well, given the big G's track record on dispensing justice lately, I'll take the legal system, thanks.
posted by overeducated_alligator at 5:52 PM on June 18, 2015 [5 favorites]

The problem with the jury system IS the jury system. It's an anachronism with roots in ancient Germanic tribal justice, and almost the entirety of our rules of evidence is a fig leaf covering up how badly it sucks. Most countries of the world, including those with better justice outcomes than ours, have abandoned (or never used to begin with) juries.

The question of how to fix the jury system is the wrong question.
posted by 1adam12 at 6:02 PM on June 18, 2015 [3 favorites]

The problem with the jury system IS the jury system.

Juried trials are very rare, so if we have a problem that's not it.
posted by ChurchHatesTucker at 6:08 PM on June 18, 2015 [1 favorite]

The Sixth Amendment promises that all defendants shall enjoy the assistance of counsel; nothing in its language specifies how that counsel is chosen or compensated.

I'm no attorney, but I'm pretty sure the Supreme Court has repeatedly disagreed with your interpretation here, e.g.,:

It is hardly necessary to say that the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.

I mean, I guess you could say the words "own choice" aren't literally there, in the same way that you could say the first amendment only protects the right to say some words (not your own words!), but it seems at odds with the common sense notion of what the Bill of Rights authors were trying to accomplish.
posted by dsfan at 6:21 PM on June 18, 2015 [3 favorites]

There's a lot of unsupported claims in the article, but this is particularly strange:

For those at the bottom, by contrast, the lack of access initiates a devastating downward cycle. You can’t stop losing, because every time you return from prison, you are in a worse position to gain the help you need. Each new sentence keeps you away longer from gainful employment, education, and personal connections. You never have the chance to build up the necessary capital to buy in to the secret world that hedge-fund fraudsters take for granted.

The downward cycle of prison is caused not by lack of employment opportunities and the like, but by the fact that poorer defendants can't get jury consultants? That's a humongous stretch supported by absolutely zero evidence in the article.
posted by dsfan at 6:35 PM on June 18, 2015 [1 favorite]

This icky article about patent trial juries in Texas is one I keep coming back to.
posted by RobotVoodooPower at 7:12 PM on June 18, 2015

This icky article about patent trial juries in Texas is one I keep coming back to.

"Your honor this trial is a violation of my client's sixth amendment rights. These people aren't my client's peers. They're fucking morons!"
posted by Talez at 7:46 PM on June 18, 2015

What are we supposed to do with this information?

Me, I just wish people would stop trying to get out of jury duty. Jury duty is really fucking important.
posted by shakespeherian at 8:18 PM on June 18, 2015 [3 favorites]

If anyone doubts the bullshittiness of jury consultants, just know that Dr. Phil was a jury consultant when he met Oprah.
posted by Eyebrows McGee at 8:34 PM on June 18, 2015 [1 favorite]

Fully random jury trials would probably be better than voire dire.

But we can go a lot farther. We can differentiate evidence from presentation of evidence, as the job of the jury is to evaluate the evidence, not to see through the skill of the presenter. Evidence could be presented to 3 professional advocates, who listen to the entirety of the evidence and then, after they have listened and evaluated, are then randomly assigned to sides (1 prosecution, 1 defense, 1 fairness, whose job is similar to our current judge). The fairness advocate then puts together the story of the evidence, with the prosecution and defense side helping from their viewpoints, and the fairness advocate presents it to the jury, who decide.

We could go further and demand that all evidence be presented in written form.

If we stop trying to fix the system from the perspective of fixing the structure we currently have and start imagining how to better get truth out of any system, we could imagine lots of better things.
posted by freyley at 10:03 PM on June 18, 2015 [3 favorites]

nothing in its language specifies how that counsel is chosen or compensated.

That's a pretty cramped reading, and the Supreme Court disagrees with it:

We have previously held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him.

In other words, my right to counsel is the right to choose my attorney.
posted by jpe at 4:40 AM on June 19, 2015

What's the public policy response?

Eliminate peremptory challenges, limit voir dire questioning with something like a germaneness rule, and put in place a higher standard for dismissal for cause.
posted by ROU_Xenophobe at 5:26 AM on June 19, 2015 [1 favorite]

These jury consultants remind me of SEO guys: possibly legit, but maybe charlatans.

You only need them to be right once -- as long as it's when they are working for you; the rest of the time you don't care what pollution they dump in the process.
posted by wenestvedt at 7:55 AM on June 19, 2015

Trial lawyer here. Mock juries are helpful. Trial consultants are not. Anybody who tells you they can tell you what a jury will do is...exaggerating. Juries are black boxes with random number generators in them. Even in cases where I'm on a contingency basis, I don't affirmatively advise my clients to go to trial unless the settlement offer is garbage--and I like trying cases.

Juries do things like give the injured plaintiff half of the value of the medical bills which the defendant's own doctor conceded were reasonable and necessary.

Xeno--I don't hate your first suggestion, but most courts already severely limit voir dire, and the standard for dismissal for cause is extremely high in practice. All the juror has to do is say, "Despite the fact that I believe all personal injury suits are brought by malingerers, I believe I could decide this case fairly on the evidence presented," and there goes your for-cause strike.
posted by radicalawyer at 7:57 AM on June 19, 2015

Fair enough. Since they refer to selecting on age and party affiliation, I assumed they must have been asking about those things during the voir dire process, but obvs they can get that information from voter files or other public sources instead.
posted by ROU_Xenophobe at 8:52 AM on June 19, 2015