Threat to justice?

I have just completed my second and final week of jury duty. Last week I wrote about my experience, well this week I can’t resist but do the same. Firstly, because it was so different, and secondly because I have spoken to a number of people about jury duty, so this time I can write more about this very important topic. My feeling is that we must start talking about this a lot more so that we can do something about it. I can see a big, nation-wide campaign happening. This is a big issue and people are anything but indifferent, even those who wish they were not called for the duty.

Few years back I organised a small event for ‘Justice Matters’ campaign to mark 17^th July. I remember how easy it was to get people involved. I wasn’t surprised, after all, you don’t need to be a genius to realise that justice is really important. Now, I would go as far as to say that justice is to most if not all people top of the list of priorities. It seems people can imagine injustice very easily and that thought frightens them.

I was, of course, a lot more prepared for my second week of the duty. In fact, I found myself more than once telling new-comers what they can expect and answering their questions. I also found myself talking to other, random jurors a lot more; the question ‘how are you finding jury duty’ turned out to be a great icebreaker. I was surprised to find a number of people who said that that was not their first time as a member of jury, some have experienced it decades ago. When I asked them if they think deliberation has changed, I was surprised to learn that they think it has not. “Even though information technology was very different back then?” I said. They didn’t reply but appeared deep in thought. It was more than evident that people were not asked what they think of the jury duty ever before and that they really wanted to talk about it. One juror said “I don’t know. We’re just told that this is the best way.” I replied that the law of evolution dictates that there is always better, and the law of change means if we are not improving we are going back. The juror smiled and asked what do I suggest. I said I think we need to start talking about it.

Another juror said that in their country there was a very serious case and the plaintiff played the jury and managed to get away with it, so the whole system was changed removing citizens from this duty. I said that I am from Bosnia and I know about corruption and how easily it can spread, so I do see some merit in the jury, but that I can’t help and see the flaws as well.

Everyone I spoke to agreed that something should be done. We spoke about the likelihood that this is a job anyone can do. “I’ve seen people who can’t clean, smart people. And cleaning is a ‘remove the dirt’ job. So you see dirt, and you remove it. Cleaning. When you see someone who can’t do it, you don’t even know what to say to them because there is nothing more to say” I said a number of times, speaking to different groups of jurors. Large majority nodded, smiled, agreed and spoke about some event in their lives. But there were some who looked puzzled as if they had no idea what were we talking about.  

During the second case, which was a much smaller crime so the emotions didn’t get in the way quite so much (I will say more about this later on), the defence lawyer made a big deal out of ‘four people watched the CCTV before deciding which parts are suspicious and took those to the police’. The persecution lawyer asked ‘did anyone else ask to see the rest of the footage’. I kept thinking ‘any of those four people could have been on a jury in a similar case, would we question them then?’ As it turned out, out of twelve of us, two jurors had similar job to that of the witness. I found it fascinating how many jurors thought that this meant we should trust the opinion of those two jurors more than others. For me, I feared those two jurors may jump to conclusions. In fact, at one point, I found myself raising my voice saying “Procedures are not worth the paper they are printed on unless they are followed, and it is not the job of the court to ensure (plaintiff’s) procedures are followed. They mentioned nothing of the sort during the hearing so I can’t say if they do what you have just said they must do.”

Also, during the hearing there was a witness who struggled to understand the questions. I thought back to the previous case and realised we had a similar witness there also. I couldn’t help but wonder what would happen if those witnesses were in a jury.

Generally speaking, people are honoured to take part in this duty even though it is hard and they have to readjust their whole life to fit it in. I’d say most people wanted to do the right thing, go down the honest and just path, but how much they were able to leave their views behind is a big question. Another question is whether they were meant to leave it behind. We are told that our own experience is what is needed ‘at the table’ to reach a true a just verdict, but what if due to our experience we are unable to view the evidence with ‘fresh eyes’, clear mind and not jump to conclusions? On the other hand, there are some who do not care. They had to show up for the duty and they really just want to go home. One juror told me that they were once on a jury and two other jurors told a third ‘however you vote we will vote, we just want to leave’. And then there are some jurors, despite their best intentions, feel they have to get back to their lives. We had one such juror on our ‘team’. While I understood what they meant, deep down I really couldn’t rush the decision as I considered it too important. But then, surely, this juror’s life is also very important. I was surprised to hear how many jurors had calls from their managers telling them they have to get back, that there is some problem or another. It was as if they thought of jury duty, the justice and everything else involved as big nuisance.

Our deliberation for this second case was a chaos. This time the ‘selection’ of foreman was laughable. We came into the deliberating room, two people were suggested, in the chaos one just took it, no one complained. In short, it is not that we agreed, or that we were even asked, we just didn’t put an objection and that was that. The juror clearly had no idea about moderation and they didn’t even think to attempt to bring some order. I stepped in a number of times asking for one conversation at a time, asking everyone to stick to the topic, asking those who were chatting among themselves to repeat to the whole group what they had said, asking if we can let a quite juror who raise their hand to have their say – it reminded me of a lunch break in high school. Luckily most of the evidence was CCTV footage and I spotted some things that I thought were very ‘telling’. Other jurors didn’t see those things but agreed that that would be something that would help them make up their mind. So we went back to the court, watched the footage again, other jurors saw what they saw, we went back and a decision was made despite the chaotic deliberation. In fact, before we even started deliberating some members of the jury were previously on a case that involved a lot of CCTV footage and they got the footage in the deliberating room so they could play it as they wished. They thought we would have the same in this case. We agreed to send a message to the judge. The message was quickly scribbled, unchecked, sent to the court. Short time later we were called up to the court. Confusion commenced. So much confusion, that the jurors were stuck in the door, literally. I was one of the first to walk into the deliberating room, so of course I took one of the chairs further from the door; let everyone else in. As a result I was in the room telling them that we have to go to court, that we’ve now been called, that they are waiting for us. However, my words didn’t mean much until I repeated them about three or four times, getting more and more serious each time. By the time I made it out into the hall, it seemed other jurors explained to the usher what we wanted and we were preparing to write another note. This time I was not going to let it go unchecked. Others also took a far more serious position making sure we say the right thing, telling the judge what it is, exactly, that we want. Hence, another note was sent on the same issue. We made it to the court to be told that we can’t have access to the footage, I believe both lawyers wouldn’t permit this, however, I do remember that on more than one occasion defence lawyer was more reluctant to let us see all the footage. I felt that in both cases where I took part, everyone was extremely stingy with information. Anyhow, that day we didn’t have much time left, the next day we had a day off, and when we returned we managed to agree very quickly that we will see the CCTV footage only if after deliberating we feel the need to see it. As I said earlier, we did have a need to see at least some parts of the footage, ironically it wasn’t the parts that either the defence or the persecution highlighted in their questioning, but it was there so we had the right to use it. And the questioning did help to clarify and reaffirm what was going on.

Not being emotionally invested made me feel like my decision was purely rational. Voting guilty or not guilty felt the same. It was then down to the evidence to see how I would vote. I also felt that I could observe the evidence and ask questions as I am observing it; there wasn’t so much empathy, I didn’t wonder so much about ‘what if that happened to me’. In fact, I didn’t wonder only about the evidence, I had many other questions and I noticed many other things that were going on. I found the court an unnerving place. Naturally I assumed that that was because it is a court of law and that is very serious. However, that might be only part of the reason.

There was a point where the persecution lawyer was helping the defence lawyer. I thought that was very nice and civil, and surprising. Why would I find it surprising that one side is helping the other side show evidence? Did I expect that they will do all they can to make sure the other side doesn’t win? The simple answer is, yes, yes I did. Which basically means that I didn’t expect lawyers to fight for justice, I expected them to fight for their side. I thought the lawyers only care about winning, as if the court was some kind of battlefield. It was at that point that I wondered: Is the defence lawyer’s wisdom and motives the first point for potential failure in the justice system? The second point would then be the wisdom and motives of the persecution lawyer. If they knew they were defending or presenting the side that did a crime, it is then down to their abilities to persuade. What does that mean for justice?

I mentioned it earlier but I don’t think I can repeat this too many times: Both sides were extremely stingy with information. Unanswered question lead to doubt. Doubt leads to inability to reach a verdict. Lawyers seem to consider what is important to a case and they present that, I assume bearing in mind how much time it will take. So even if we assume that the lawyers are presenting the truth as they truly believe it, there is a second point: Which bits of information will they present to court? I think if they find themselves removing a piece of information on the grounds of ‘this may make the jury think (whatever)’, then they have removed the information for the wrong reason. They cannot possibly know how members of the jury will understand something.

So there I was seeing the court more like a battlefield for lawyers than a place to seek justice, a point that played in my mind for quite some time, when the judge spoke and then we were asked to leave because the defence lawyer said there was a legal issue to deal with. We left the court for a moment, came back, the judge repeated what he said and then added a paragraph. At that point I thought ‘Is the judge a threat to our justice and must be kept on a leash, and a very short leash at that?’ The person with most experience and knowledge in the room suddenly became the biggest threat? I do understand that people value judges (in our first case we sent a question to the judge, once he answered it, we realised we knew it all along, but just him saying it gave us a peace of mind), and I also understand that knowledge is power. However, I also know that power is not always bad. Assuming that the judge must be a threat goes against the core of our justice system: Innocent till proven guilty. And wasting the potential of a judge is not reasonable. We have great wealth in judges. Why are we throwing that away? It seems the world has taken one extreme side or the other, and extreme is never good. We see that everywhere. This world is built on moderation. Too much rain equal flood. Too much sun equal fire. Both destructive. Finding the right balance and the right method of balance is wisdom and the way to go. Think of Lady Justice herself. And I have thought a lot about her lately. She’s become like a real person to me.

So to sum up, I do not believe that jury can be trusted to moderate their own deliberation. And I do believe this is very important. Perhaps a point to think about.

I believe more needs to be done to inform the public about the jury duty, highlighting the importance of justice so that no employer thinks their business is over and above and no member of public comes completely unprepared of what the duty is, what it means, what their role is etc.

We must rethink the role of judges. Wasting the wealth must be some kind of ‘crime against society’. Keeping them on a leash is a thought that makes me feel ashamed.

Different crime, different rules. I believe it is unreasonable to assume that everyone can do jury duty, let alone that anyone can make decisions on any case. This ‘whatever’ approach is frightening.

The role of everyone involved is so important. I did not realise how important the role of the usher is. In our first case our usher was friendly but professional. We took her for granted.

The police, as the first point of reference, the information gatherers, vital. I thought the typed transcripts of the interviews was extremely important in both cases. We could not have done it without them. Perhaps the ‘…anything you might not say and later rely on in court…” needs to be underlined a lot more. I don’t think many people understand that part and it is one of the most important parts.

And last, but not least, I hope others will openly talk about their experience. No need to say anything about the case or reveal anything about some juror. I believe we can figure out the weak points from just genderless information. And figuring out the weak points, is the first step.

THE END

Should justice be a lottery?

I have just completed one week of jury duty. During that week we were deciding on one case. The case is now officially over. However, since we, the jury, couldn’t reach a verdict, the Crown will now decide if they want to repeat the case. I do not intend to talk about the case at all, I’d like to talk about my experience as a member of the jury.

Let me start from the beginning.

I went into this duty without any knowledge or preparation, except that I read a small brochure mostly about what I can claim and when I need to be where. I had some idea about how serous this duty was mostly because I work in the Voluntary Sector so I’ve met many people who have suffered a great deal due to lack of justice. However, I felt completely unprepared for the burden of responsibility I felt once I got into the courtroom and the hearing started. Not only did I find myself in a position of deciding a fate of a complete stranger, but I also felt I am taking direct part in delivering justice, something I consider the Holy Grail, the cornerstone and the main pillar of a peaceful and prosperous society.

There were three charges in total, all related, two smaller ones and one extremely big. After the hearing we retired into deliberating room. On the first day we only had an hour. In this hour we elected the foreman which was done on the grounds of how many notes the juror took. At the time, I thought nothing of it. I felt it didn’t matter as this person is only responsible for reading the verdict. I thought if the juror is not able to moderate our deliberation I could step in with that regardless whether I am the foreman or not. On the first day, I believed there might be a need for this as our conversation went all over the place and more than once we had a number of conversations going on at the same time. However, I decided I will see how we do the next day before I suggest that I moderate our deliberation. I happened to meet one of the jurors in the lift and I said that I wasn’t pleased about how the moderation was going and that I might suggest stepping in if it carries on like that. The juror said that perhaps I should suggest that either way. I said that I am a strict moderator and then we joked about my style of moderating. During this one hour on the first day we also decided to deal with charge number three first, as there was more evidence for this charge than the other two.

The next day the foreman started our deliberation with the suggestion that we deal with charges chronologically. This was accepted with smiles and nods. I didn’t say anything, mostly because I felt confused. The deliberation started, I accepted this change even though I believed it to be wrong. Soon, the conversation returned to evidence relating to charge three, as charge one was impossible to consider without considering charge three. At the point where the deliberation naturally went to evidence regarding charge three, I said that perhaps we should go back to the initial decision of dealing with charge three first as that’s what we were talking about anyway. No one said anything, but to me it was obvious they didn’t agree despite the fact that they themselves reverted the conversation to evidence related to charge three. At this point I believe they unwillingly accepted my suggestion. Later on this came up again; it was after we had vote on the questions given to us relating to charge three and when we were deciding on charge one. One of the jurors said “The charge one happened first, so this is why I thought dealing with that one first was a good idea.” There were some other comments before I gave my view on charge one and then I said “The only way I can make any decision relating to charge one is by looking at charge three.” I believe at this point others agreed and this issue was dealt with. However, I did wonder if there was a conversation about me while I was not present and if it had anything to do with my suggestion that I help with moderating.

I believe the moderation of our deliberation did not go well and I tried to help as much as I could. Few times I said that we have to go back to the topic and once I said “The chit-chat is fine, but we do have decisions to make.” I mean no disrespect to the foreman. I believe this juror had excellent intentions, they contributed, however I do think they didn’t know how to moderate. Moderation is not an easy task, especially when you also have to take part. I hope I didn’t not insult the juror with my stepping in and I hope they do understand that I had best intentions at heart.

At this point I’d also like to mention that a relationship between jurors developed very quickly. This was both positive and negative. Positive was that, generally speaking, it created a friendly and relaxed atmosphere, which was very much needed to balance out the burden of the task. On the other hand, it was negative, as it created a connotation that we should vote the same. I felt that for some jurors voting differently meant they had to make an excuse rather than an explanation.

With respect to charge three, despite the evidence, three jurors voted not guilty. From what they said before the voting and later on, I had the impression that one juror decided on the not guilty verdict because they did not believe the plaintiff (I will say more about this), second juror decided not guilty because they didn’t think the defendant realised that was the wrong thing to do, and the third juror couldn’t vote guilty because they need to be 100% certain which they were not.

At the very beginning of our deliberation we mentioned something about the 100% certainty. After the whole experience, I believe this is one of the key issues that perhaps needs to be addressed on social level: 100% certainty vs reasonable doubt. I believe no person should ever take part in jury duty unless they have a moderate idea of what this means. I’m not sure I understand what it means even now after the experience. I would certainly like to at least discuss this point, if nothing else I’d like to compare my view to other views.

With the vote of 9 guilty and 3 not guilty on charges one and three, we moved to the big charge, the charge two. I confess, I lost sleep over it. I examined myself over this more than I’ve done in many years. For me, it helped that we were not permitted to talk to anyone about it because I need silence when I have an internal turmoil I feel I need to sort out. I did wonder about other jurors. I can’t be certain, but I believe one juror mentioned they spoke to their partner.

I felt voting not guilty would be easy. However, it felt wrong. I couldn’t justify such a vote. On the other hand, voting guilty was very hard. It felt right because I could justify it, but voting that way… Eventually the time came to vote. I was shaking. I remember my hand wanted to go up, but I couldn’t let it. Another conversation with myself, asking other jurors for reasons which they failed to deliver, I found myself telling myself “Stop being a coward, you idiot”. I raised my hand to guilty. The moment my vote was taken I felt relieved. I felt I did the right thing. After that I was at peace with my decision. However, I realised that a decision like that took a lot of courage. It was only after I felt calm that I realised why it was so hard to vote ‘guilty’. It had nothing to do with the evidence. It had nothing to do with doubt. It was about saying, under oath and in court of Law that someone had done such a bad thing. For lesser offences it is much easier to cast your vote. However, for such a big offence… A lot of courage is required even if you are certain beyond reasonable doubt. And this is what frightened me. This means that those guilty of lesser offences are more likely to be found guilty than those who have done greater crimes. In my view reasonable doubt is a given – considering how many times scientific evidence was disputed and in time considered not so trustworthy, how can we ever be certain? Besides, why would it come to court if it is certain? If the evidence was unquestionable, there would be no need for a hearing. I don’t think I was the only one who felt like this. One juror changed their mind when we voted the second time. Their eyes watered as they did it, and they felt compelled to justify the change. The justification described that they felt the same way I did. A number of other jurors who maintained a not guilty vote kept repeating: I just can’t be sure.

I have wondered what they would say under different circumstances. For example if we were in a pub just gossiping about this case. I believe in those circumstances a number of other jurors would have decided that the defendant was guilty.

In this case, for this charge, persecution had plaintiff’s word as evidence. I explained to other members of the jury that my thinking was to check the validity of this evidence by looking at: 1. Defendant’s claim to innocence, 2. Plaintiff’s actions and 3. Possible motive for the plaintiff to claim this if it were not true. After some deliberation I believe we all agreed that plaintiff’s actions support the claims. In other words, plaintiff’s deeds and words went hand-in-hand. We also couldn’t find a motive why the plaintiff would claim this if it were not true. In fact, there was some evidence why the plaintiff would say this if it were true. We all agreed that the defendant was capable of such action. The question was: Just because they are capable did the defendant do it? We agreed that there were times when the defendant lied on important matters. We also agreed that in defendant’s mind some things that are wrong are not wrong, which would make it easier for the defendant to do such a deed. However, this wasn’t enough to conclude that the defendant’s claim is without doubt true. As a result, many jurors continued to have doubt about the plaintiff’s word. This doubt lead them to vote not guilty. When asked what would make them believe the plaintiff, the only answer given was ‘Scientific evidence’. I wondered why cases that depend on someone’s word even make it to court since no one can ever be certain who is telling the truth. One juror said that perhaps the defendant was lying because the defendant was afraid the truth would imply guilty even though the defendant was innocent, thereby justifying defendant’s lies even under oath and trusting the defendant more than the plaintiff.

As I mentioned earlier, one juror openly said that they did not believe the plaintiff from the very beginning. Initially the juror said that it was because the plaintiff did not show right emotions. After some deliberation, the juror said that they didn’t believe the plaintiff, because they just didn’t believe. Considering that this was the first evidence presented at the hearing, this juror viewed the rest of the hearing in this light and this showed during our deliberation. I believe it is vital to underline at the very beginning, before the hearing starts, that members of the jury must listen to evidence without making up their mind until everything is heard. In fact, if a person cannot help themselves but make up their mind so strongly after hearing just one piece of evidence, should they even be a member of the jury? Could someone with prejudice and subjective thinking be trusted to make a fair judgement? This particular juror at one point said ‘If (this) was said I could vote guilty’. What the juror required, two witnesses apart from the plaintiff claimed was said. Yet the juror maintained not guilty vote.

Another issue that struck me was the difference between excusing behaviour and calling it wrong. I believe one juror could excuse the defendant’s behaviour even though they agreed it was wrong on the grounds of defendant’s upbringing. This lead the juror to vote not guilty. During the deliberation a number of jurors tried to explain that just because the defendant did not realise the magnitude of the actions it do not make the defendant innocent, the juror seemed to fail to understand and maintained not guilty vote.  

Another juror said that they can’t vote guilty because they watch a lot of ‘prison break’. To balance it out I was trying to think of TV shows that are about someone guilty getting away with it and I couldn’t think of any. I remember thinking how insane it was that some poor person out there who might be a victim of a horrible crime may not see justice because I don’t watch that much TV.

In short, for me, deliberation was of some value but very limited since no one had sufficient knowledge of the law just to point out some explanations and we all just swapped views. It had some effect, at least for some jurors, so I wouldn’t call it a complete waste of time, but did very little for the outcome.

As far as the hearing in concerned, we all felt that more information should have been presented. I was confused about the statements that lawyers on both sides made to which the witnesses responded with ‘incorrect’. Are witnesses obliged to make a response to any statement a lawyer makes? If so, how much is a witness permitted to say about the statement?

Key piece of evidence delivered by the defence was not brought forward before the hearing to anyone. Persecution saw it at the same time we did. I could have checked the validity of this evidence myself and it was very difficult not to; however, I didn’t and I don’t think any other member of the jury did. While I do understand the need for the defence to have the right not to present all the information, I believe that that right was abused in this case and it prevented the truth. And since I saw my job being finding out the truth, I felt the defence prevented me from doing just that.

I think many members of the jury were very influenced when the defendant’s lawyer said: “My client didn’t need to be here. (my client) didn’t need to say anything at all. It was the job of the persecution to prove (the case). If you have any doubt they have, then you must find (my client) not guilty.” The judge later gave us written statement regarding this, however, these words were far more powerful and I believe they stuck in minds of a number of jurors.

Having experienced this duty, I feel justice deserves more. While I agree with the idea of having a jury, and I do agree that each person has contributed at least to some degree and in some way, I do not think this is the way to deliver justice. We should not leave something so vital to our society in the hands of inexperienced citizens who pretty much walked off the street and into the court. No one is able to do everything. There is a great difference between ‘opinion’ and ‘judgement’. This is not like ‘judging’ our neighbour’s behaviour with other neighbours at a local pub. While the idea that anyone can do jury duty sounds fine in theory, I think it is naïve to believe that in practice.

Anyhow, since the jury couldn’t reach a verdict the Crown has the opportunity repeat the hearing. This is a small consolation. However, I can’t help but wonder who will be the next jury. Will the plaintiff or the defendant be luckier next time? How did it come down to justice being a question of luck? What kind of society can we expect if justice is depending on ‘the names that come up’? At this point, if something happened to me, unless I had scientific evidence, I don’t think I would report the crime.

Considering the vital role justice plays for social peace and prosperity, is it worth considering educating the citizens from an early age about the jury duty? Would it help to make literature now to be sent to future members of jury? Perhaps testing would help? I believe even some experience in court might be at least a little helpful – for me, it was the first time in court. I have watched recordings of hearings, but I have never been in a court. I wish I had at least some idea of what to expect. Perhaps there should be a ‘shadow jury’? I don’t know, but I do know that what we are doing now is nowhere near enough. In my opinion, more must be done. Justice is as complex as it is valuable.

In the end, I’d like to point out that I thought we were very fairly treated. The staff are very pleasant. I thought it was very well organised.

Facilities need attention: Issue with lockers, toilets and such are quite important. Crown Court should not be worse than a school gym.

THE END

Let's talk

Look around you; people have power not because some nice leader offered it to them on a silver platter and begged them to accept it, but because people fought for it. Democracy is about the ‘people power’. Our ‘right to vote’ is only the beginning of the story. We the people have to continue our fight if we want to continue to have power.

I am starting this blog in hope that we, the people, will start talking about the justice system, and more specifically how the justice is ‘handed out’. My experience as a juror has left me worried. And I am someone who believes in people. However, I am also someone who knows about ‘people’ – the faults and virtues.

If you are like me and your experience as a juror really moved you, please get in touch. Either write to me mbavdic (at) gmail.com or write your own blog and post a link here. Please feel free to add a link to this blog on your blog. Talking about it is the first step. Let’s talk.