The cornerstone of our system of jurisprudence is the American jury. The concept that randomly selected members of the local community, without bias or preconceived prejudice, resolve complex factual disputes is paramount to the continued viability of that system. We rely on the concepts of fairness and impartiality, and most important, the tenets of due process that require that our fact finders are to consider only facts produced in the orderly presentation of evidence, overseen and refereed by the trial judge. Juries are routinely instructed, at the inception of trial, that they may not consider outside interests nor be influenced by people or factors outside that orderly presentation.
Our appellate courts have jealously guarded this concept. Despite best efforts, it is difficult for a trial judge to insure a juror’s compliance with these cautionary instructions. It is a matter of honor and trust, enforced by the juror’s oath. These cautionary instructions are usually repeated several times each trial day. Jurors are admonished not to investigate news accounts, nor conduct independent research into the facts. The accessibility of the internet, particularly the creation of smartphones, computers and tablets have heightened concerns of lawyers and judges. Jurors travel with the means to instantly seek out information on the web. The more notorious the case, the more information is available.
In the post-O.J. Simpson era certain cases have captured the attention of the media. In addition to the simultaneous reporting on Twitter, blogs and internet news sites, we are now bombarded by the opinions of a legion of “legal analysts” some volunteers, some paid by networks. While the goal of these “experts” should be to explain to, and illuminate the public on the intricacies of the unfolding trial, they have morphed into the realm of play-by-play analysts. Lawyers, many of whom have no more credentials than a law degree and good looks, weigh in on trial strategies and witness testimony. Full disclosure, I have been engaged as a talking head in the past on a number of networks. There are many legal analysts, like CNN’s Jeffrey Toobin or NBC’s Dan Abrams, who bring a wealth of legal experience and objective insights to the TV trial. They are, by and large, in the minority.
We hear that Attorney So-and-So is a former prosecutor turned defense lawyer. No one tells the public whether Attorney So-and-So has ever tried a case like the one being televised. CourtTV, prior to its acquisition by Turner Broadcasting and its rename as TruTV, created the model of seeking out experienced trial lawyers who appeared only periodically to provide commentary or respond to questions from experienced anchors. Now CNN, and its progeny HLN, employ full time legal commentators who profess, despite their young years, to have expertise in the myriad of sensational cases that now make up reality TV.
The public has an insatiable appetite for real courtroom drama. The networks mentioned not only do instantaneous play-by-play, but also daily post-mortems. The thrust of these retrospectives at each day’s end, and after the verdict, is meant to stimulate viewer interest. Often they are inflammatory and intended to incite the passions of the viewing audience. The effect is apparent following Casey Anthony and the Zimmerman/Trayvon Martin case. In addition to the usual talking heads networks have given a sounding board to community activists with agendas that aren’t always focused on preserving our system of justice. Rather, these two cases suggest there is a growing trend toward undermining jury verdicts. Potential jurors now risk public vilification when their verdicts, based on the evidence they were given, is contrary to the passionate rhetoric of community agitators and special interest groups.
The efforts to denounce unpopular verdicts have almost risen to the level of the days of mob justice. Jurors’ identities are protected from the viewing public. Jurors are admonished to keep their identities private. Acquitees and their families have had to endure countless death threats in addition to the public denouncement of certain legal pundits. How many thousands have railed and rallied against Florida’s Stand Your Ground law, despite the fact that the defense never invoked it in the Zimmerman case.
While the concept of public debate of controversial cases or legal issues is healthy for a viable justice system, we must be mindful that jurors are the conscience of our communities. Inciting public approbation of juries will eventually have a chilling effect on cases that have garnered public awareness. No longer will our jurors be deciding cases based on a thoughtful review of the legally sufficient evidence. Now we must be concerned that fear of reprisal and criticism may stifle honest deliberation in controversial cases. These cases have not only dealt with the tragedies of the deaths of Kaylee Anthony and Trayvon Martin but the eventual demise of the unbiased jury as well.