The jury acquittal of Casey Anthony on the charge of murdering her two-year-old daughter Caylee, in a case that’s held the attention of so many around the world, is good reason to post. A better reason is to examine the jury, who have said they felt physically ill while deciding to acquit.
As a law school grad, I’m a big fan of the US legal system. I think it generally works well. There are exceptions: the death penalty is a big one, as research has repeatedly shown that, often, people who didn’t commit crimes are convicted of capital ones. The growth of technology needed to interpret DNA evidence has made huge challenges to those verdicts, as it should.
Here’s another aspect that needs to change: the selection of juries.
Jury selection – choosing a “panel of one’s peers” – has always been a problem. Up to the middle of the 20th century, if you were a woman charged with a crime, there was no way you would get a US jury that included even one woman who would understand your life – all jurors held XY chromosomes. Examination of the Salem witch trials shows that those women were convicted (and thus killed) by a jury made up of men who wanted their lands or were angry at the women’s fathers/husbands/brothers. The accused women were innocent, but court officials, including the jury, used guilty verdicts to make the women’s assets available. The short story, “A Jury of her Peers”, shows what 19th century women thought of single-sex juries.
It used to be, too, that juries were chosen only locally. That way, the court system reasoned, they would – in times of small family farms and cities that had not yet become metropolises – be acquainted with all the people involved in the case: victim, plaintiff, alleged perpetrator, defendant. Their neighborhood knowledge was regarded as a plus. Currently, big trials are moved from one venue to another, because press coverage (too much pre-trial information and speculation) is regarded as potential tainting of the jury.
Both sides’ attorneys seek a jury to help them. In cases with highly technical evidence, it helps to have at least a few jurors with expertise to understand the evidence and to explain it to their fellow jurors. Because DNA evidence was not widely understood in the past, prosecutors often sought jurors with scientific expertise or intelligence – yet now, when every other “CSI” or “Law & Order” script involves DNA, familial DNA, or “cold case” references, that special expertise is no longer needed.
Intelligence and critical thinking, however, are still at a premium. I’m not talking about IQ tests alone, but also EQ, emotional intelligence. Surely we all want a jury to be made up of people who know what the world is like, who recognize the differences that arise because of people’s separate genetic and environmental histories, who can understand scientific evidence, and who are still objective enough to rely on facts or probabilities rather than emotion.
See twelve of those people on an average jury? Thought not.
Because trials are more complex, the evidence presented (whether scientific, technological, or sociological) more complicated, current jurors — in order to make a fair finding of fact — ought to be among the most intelligent people in their communities. Truth is, they aren’t.
If you’ve ever been drafted as a juror, you know how they got your name: voting rolls. Perhaps you objected when responding, saying you could not fulfill what is, after all, your civic duty. I recently spoke to a woman who several years ago got her first jury call. At the time, her elderly husband was ill, so she pleaded with the court and was released from duty. The second time, she mentioned she was hard of hearing – in a community known for its high over-65 population, “hard of hearing” could describe a large percentage of prospective jurors. Again she was let off from jury questioning.
Then there are true hardship cases, where parents of small children have no one to care for them during long days in court; or who will lose work if a case takes weeks.
Nonetheless, it seems to me that we as a nation should be making every effort to attract and retain for jury service people who possess intelligence, understanding, curiosity, and stamina. If that means a test or brain scan before entering the jury box – in addition to the extensive attorney questioning called voir dire – then that’s what we need. If it means reaching a certain level of education, then let’s call for it.
Would a jury using a great deal of intelligence and critical thinking, with an understanding of psychopathy, have acquitted Casey Anthony? We don’t know. Part of the strenuous objections made by watchers came from their profound sense that the jury was not doing high-level critical thinking about the evidence – including Anthony’s words and behaviors – presented to them.
As the next weeks unfold, as Anthony searches for a safe place to live and gives what promises to be a series of interviews, we’ll hear from psychiatrists and forensics experts. Given Anthony’s tendency to party, chances are she’ll slip up. Perhaps she’ll drive while impaired by alcohol, or take a jab at someone joking about her. Maybe she’ll just drink enough that the truth will emerge.
One thing’s for certain. Those partying, dancing, bottle-flashing defense attorneys and aides forgot that a little girl died, and no one seems to know quite why. We’re all waiting. I imagine we won’t have to wait long.