Jun 23

final-jur-e headline

The Virtues of a Jury Trial in a Politically Charged Case

Cardozo Law School Professor Deborah Pearlstein was a guest commentator in the New York Times last week.  Her piece is entitled “The Genius of Leaving Trump’s Fate Up to 12 Ordinary Floridians.” Her notable viewpoints include:

It is hard to imagine a case that places more pressure on the functioning of the jury — or that more dramatically illustrates its unique value. The case against Mr. Trump does not just put a question of national security in the hands of the jury. It puts in its hands a case that is unprecedented, involving a former — and perhaps future — leader of the nation. The security policy stakes are high. The political stakes may be higher.

The jury system’s constitutional authority makes it, at its best, an essential check on government overreach. In a case like this, its democratic legitimacy also gives it a better chance than any other governing institution to render a judgment that can withstand the political firestorm ahead.
Leaving such a consequential judgment up to ordinary citizens may seem jarring in a political culture accustomed to assuming national security is best reserved to the most expert, most secretive corridors of military and intelligence agencies in and around Washington. Jury trials are, after all, the opposite of this. Neither juries nor judges — especially in courts outside Washington — are known for their national security expertise. And like any jurors, those in Mr. Trump’s case will bring with them their own partisan political views that might shape their interpretation of evidence. Jury decisionmaking is never without risk, and rarely more so than it will be here. …
[A]ll prosecutions of this kind carry special dangers of government overreach. Ordinary citizens remain the most democratically legitimate way of stopping it in its tracks.
That fact gives the jury in this case a uniquely authoritative voice. Mr. Trump’s supporters argue vociferously that the prosecution of a current presidential candidate by an administration of the opposing party could be motivated only by politics and revenge. However unjustified, these beliefs matter. They matter because the justice system cannot function unless most Americans view it as a legitimate arbiter of social disputes.
Nothing that the current president or attorney general can say will resolve such doubts. For seeing justice done and for preserving the public’s democratic faith, the citizens of Florida are the best chance we’ve got.

Iowa Journalist Praises Juries

One day after Professor Pearlstein’s NYT op-ed piece, retired news reporter and Iowa Writers’ Collaborative member Ed Tibbetts extolled the virtues of juries in the Iowa Capital Dispatch.  He states, in part, “Even as Americans demonstrate dwindling confidence in the courts, especially the U.S. Supreme Court, they still retain a high level of trust in juries. A 2022 poll conducted for the National Center for State Courts found that 84% of those surveyed said a trial by jury would ensure courts and judges only make decisions based on the Constitution, the law and the facts.  Maybe that’s because people believe juries are us.”

Jury Trials in Divorce/Child Custody Cases – Improper Trade Offs Found by Texas Supreme Court

The Supreme Court of Texas, in Interest of J.N., remarked, “Rarely is the right to be heard by a jury in competition with the right to be heard at all. Yet Section 153.009(a) of the Family Code puts this choice to litigants. Under this statute, parents in a divorce or custody proceeding may request either a jury trial or an interview of their children by the judge—but not both. The question in this case was what should happen when a parent is forced to trade one right for the other and receives neither. In this divorce proceeding, a mother withdrew her jury demand for the stated purpose of invoking the trial court's statutory obligation to interview her thirteen-year-old daughter regarding which parent she would prefer to have determine her primary residence. The trial court did not conduct the interview and ultimately granted the father the exclusive right to determine the primary residence of the couple's four children.  The high court held (1) the trial court erred in failing to conduct the interview, (2) such an error is subject to a harm analysis, (3) the error was harmful because it resulted in the loss of a jury trial on disputed fact questions, and (4) the mother is entitled to her requested remedy that the trial court comply with Section 153.009(a). Consequently, the supreme court reversed the lower court judgment in part and remanded the case for an interview under Section 153.009(a) followed by a new judgment regarding the child's primary residence.

"How Shall I Introduce My Jury Consultant at Trial?"

That is  question jury consultant Christina Marinakis poses to her professional colleagues in the June 13 issue of JD Supra, an online legal-business magazine.  She alludes to the spotty reputation trial consultants have had in times past, and squarely gives advice to readers who face a situation where a judge asks the parties to introduce themselves.  She suggests ways to explain the presence of the consultant to a jury and the court. While trial counsel might prefer to skip over introducing a consultant, hoping not to draw attention to them, the author suggests reasons why that may not be the best approach—especially when there are simple and effective ways to conduct the introduction.  If nothing else, she gives readers an entertaining lesson in how to confidently speak about trial consultants.