'In the Hands of the People: The Trial Jury's Origins, Triumphs, Troubles, and Future in American Democracy'
by William L. Dwyer
Thomas Dunne Books, $24.95
The trial jury, the hallmark of the American justice system, is increasingly under attack as out of control, dangerously vulnerable to manipulative trial lawyers, and, all too often, the source of skyrocketing damage awards. Commentators from across the political spectrum have demanded, with increasing urgency, various reforms to eliminate or limit the role of a jury.
U.S. District Judge William Dwyer begs to differ.
In the just-published "In the Hands of the People," he offers a spirited defense of the jury-trial system.
The book surveys the history and purpose of the jury system, addresses the principal arguments for its demise and offers thoughtful proposals to strengthen, not abolish, the role of the trial jury.
Dwyer is no stranger to the process. As a Seattle trial lawyer, he handled some of the Northwest's most significant cases - including the lawsuit against Major League Baseball that resulted in the creation of the Mariners. He gained a reputation as one of the best trial attorneys in the state.
Appointed to the federal bench in 1987, Dwyer has since handled some of the most significant cases of the past 15 years: protecting spotted-owl habitat and restricting logging on a public lands; ruling that Metro's political structure was unconstitutional; and striking down Washington's term-limits restrictions. And he has presided over hundreds of jury trials and worked with thousands of jurors, witnesses and lawyers, and earned an unparalleled reputation as one of the most outstanding federal judges in the nation.
Dwyer begins with a review of the origins of the jury as an alternative to earlier methods for resolving disputes, such as trial by battle, torture, oath-swearing contests, or other medieval forms of dispute resolution.
From its English common-law origins, the jury slowly gained independent power and, when transplanted to the American Colonies, became a key check against governmental tyranny and an important and unique aspect of the American participatory democracy.
The latter half of the book surveys the principal objections to the jury system and, point by point, dismantles them as largely unsupported by evidence, contradicted by the actual record in specific cases, or hinged primarily on isolated, but highly publicized, aberrations.
There are significant problems with the American justice system, Dwyer acknowledges, quoting Ambrose Bierce's famous definition of litigation as a process into which one enters as a pig and exits as a sausage.
These include long delays until trial, unimaginable expense, overloaded courts and endlessly contentious counsel - but not one of these faults can be blamed on the jury and most can, and should, be addressed by reforms elsewhere.
Still, the judge concedes reforms should be taken, not to limit juries, but to strengthen them. His proposals range from modest to striking.
To increase the diversity of juries, Dwyer would increase compensation for jury service and restrict opportunities to evade service (thus increasing participation of the poor and the well off).
To streamline jury selection, he would have most questioning conducted by the trial judge, with only limited follow-up questions by the lawyers.
He would eliminate notoriously disruptive midtrial sidebar conferences between the judge and lawyers, strictly budget and control the length of trials, increase the use of court-appointed experts, encourage juror participation through questions of witnesses and note-taking and translate arcane "legalese" favored by obtuse lawyers into plain English more readily comprehensible to the average juror.
Perhaps most controversially, he would limit or eliminate the peremptory challenge, the right of a party to eliminate a certain number of potential jurors without cause or explanation.
Dwyer's proposals are not all new or novel and don't purport to be. But, built on a solid foundation of history and experience, his suggestions offer thoughtful suggestions to strengthen the role of the jury. Some of these proposals might, and perhaps should, be debated, but it would be a foolish lawyer, judge or litigant who ignored this set of proposals.
In 1670, as Quaker leader William Penn was dragged from the courtroom by the king's forces and the jury was threatened with prosecution if it did not convict him, Penn called out to the jurors not to "give away your right(s)." From the jury box came the reply: "Nor will we ever do it!"
As Dwyer closes this volume, he urges, "Our response should be the same.
