'Three dull, stupid, human donkeys!'


"The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity and perjury. ... Why could not the jury law be so altered as to give men of brains and honesty an equal chance with fools and miscreants? ... I wish to so alter it as to put a premium on intelligence and character, and close the jury box against idiots, blacklegs, and people who do not read newspapers."

-- Mark Twain, "Roughing It"

Now, ol' Sam was mighty rough on the Nevada courts and the way juries were selected back then.

The process is called voir dire, which some derisively explain is French for "jury rigging." Actually it is French for "to speak the truth," but it is how lawyers separate the wheat from the chaff ... and, as Twain might suggest, keep the chaff. In fact, in the same chapter as cited above, he describes the jury in a murder case as being made up of "two desperadoes, two low beer-house politicians, three bar-keepers, two ranchmen who could not read, and three dull, stupid, human donkeys!"

This was because everyone who'd read, heard or talked about the case was excluded.

Of course things are much different today. Aren't they? Well, aren't they?

This past month I dutifully showed up for the daily cattle call down at the Regional Justice Center and milled about with several hundred other civically responsible citizens, each clutching a six-digit badge number that would spell our fates in the great jury lottery.

A couple of groups were called to go off to court. Then my number fell into a specified range and the cheerful clerk, to a resounding chorus of cheers, announced that we could go home ... as soon as we filled out a little questionnaire. Oh yes, we'd be expected to return in a couple of weeks. Groans were audible.

It was a 113-question questionnaire. The first page explained that attorneys expected the civil trial to last 16 to 24 weeks.

That's not being asked to serve on jury duty, that's being press-ganged off the streets of Liverpool and forced to sail 'round the Horn.

As for that questionnaire, it contained a number of sensible inquiries as to whether I was personally familiar with any of the parties or attorneys. But then it got downright impertinent, asking about the age, gender, education and occupation of my children and siblings -- questions I completed only because I am too familiar with the consequences of contempt of court.

A few questions did seem relevant. Such as, "Do you believe that, notwithstanding what you may have read, heard or discussed about this case, that you can fairly and objectively render a fair verdict based solely upon the evidence and testimony which is introduced during the trial of this matter?"

How nice, after pages and pages of asking whether I knew anything or had any biases or experiences that might influence me, they asked the only question that mattered. Yeah, right. What was the point of all those other questions if they'd believe me on this one?

I fully expected to be asked if I'd ever heard of the term "jury nullification," but no. I'd've answered that one in the affirmative, too. It basically is the concept that no matter what the judge instructs, the jury is the final arbiter of the facts and the law. The lawyers probably didn't ask because judges have been known to go into apoplexy at the mere mention of the phrase.

Then there was the question that nearly sent me into paroxysms.

No. 81 asked if I'd read any articles on the American jury system, civil lawsuits or reform of the jury system or lawsuits. Then it asked me to list them.

I came contemptuously close to writing, "Have you flipped your curly powdered wig, counselor? After more than 35 years in the newspaper business I've read untold thousands of articles, editorials, op-eds and books on the topics. Hell, I've written a couple of hundred myself." A little knowledge must be a dangerous thing.

As luck would have it. The case was settled and none of us potential jurors had to serve our months before the mast ... or in the jury box.

Oh yes, the verdict from Twain's jury: Not guilty. Obviously, because none of them read newspapers.

Thomas Mitchell is editor of the Review-Journal and writes about the role of the press and access to public information. He may be contacted at 383-0261 or via e-mail at tmitchell@reviewjournal.com.

 

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