Prior to our retirement, we were engaged in the private practice of law in New York, for a full period of fifty years. Our practice included complicated business litigation (viz., Civil Fraud, Unfair Competition, Breach of Contract, and Business Torts). Accordingly, we feel competent by our past education and practice experience to voice the (radical) views set forth in this writing.
Initially, we are of the view that the jury system as presently constituted is at best a vestigial entity, analogous to the human appendix and tonsils, and, similarly is salubriously excised from our judicial process. The “right to a jury,” or more fully expressed, the “right to a jury of your own peers,” is archaic and judicially anachronistic. The age of social or “privileged classes (i.e., “your peers) is a museum relic of the Medieval past. What is essentially meant is, “the right to a jury of your own equals.” That being said, it has been our (radical?) view that the jury procedure, purposed to ensure the fair assessment of the disputed facts in a case, criminal or civil, must be amended or eliminated, in the interest of justice.
Our felt opinion was catalyzed by our concerns relating to the pending criminal case against Donald Trump, still in process, in which, as we see it, the elements of the accused felony of fraudulent accounting processes to hide Trump’s promiscuity and thereby evade public criticism prior to an election, (“election fraud”), has (already) been sufficiently demonstrated. Testimonial and documented proof have been adduced beyond the criminal law’s mandated stricture requiring a showing of guilt beyond a reasonable doubt. Our serious concern is that the empaneled jury, may not, for any reason, legal or otherwise, return a unanimous verdict of guilty.
Under our scrupulously fair system, as known, no less than a unanimous jury must find an accused defendant, “Guilty.” Eschewing, the possibility that a juror may be “planted” or influenced by the accused, or his acolytes, we are of the view that the demonstrated “populism” of the extant American public, invokes an empirically based concern for a justly determined verdict. The latter conundrum, we fear, overshadows the critical elements of excessive expense and delay.
The pre-trial procedure, known as the “voir dire,” in which contesting counsel has the opportunity to question prospective jurors in an attempt to filter out unfit prospective jurors, albeit historically and legally appropriate, in our view is jejune and presumptuous; there are no legal “X-rays” to detect privately undisclosed bias or interest. The assumption that strategically worded questions will, with any certitude, uncover the true intentions of an impartial jury candidate, is a tribute to arrogant narcissism.
Most worrisome to us is the observed state of ignorance and thoughtless impediments to justice, evinced by the disappointing, populist character of many of today’s American citizens. Our caliper is based upon the millions of MAGA cultists who consistently support Trump’s, criminality, his philosophy of “alternate truth” and who subscribe to bizarre conspiracy ideation. The conclusions to be reached by such prospective jurors, to be kind, may not exactly square with rational expectation or, more to the relevant point, with the goal of objective and appropriate justice.
Empirical logic would dictate the cogent necessity that should the jury system be continued, it needs to evolve to a more predictably responsible and reliable entity. Summoning random citizens for jury service, in principle, is, democratically laudatory; however, for the reasons annunciated above, jurisprudentially hazardous. American law needs to procedurally revisit and repeal or replace the “Sixth Amendment” of the Constitution. Perhaps a new configuration of the “jury” can be construed, for example, one populated by law students (for school credit), or trained civil servants, retiree schoolteachers, etc. The present gamble on America’s John Q, Public is, as shown by his recently evinced character, rather precarious.
We wait, apprehensively, for the outcome of the current jury trial of the miscreant former President.
-p.
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