January 26, 2014

Is it really wise to allow ordinary people to be such a powerful force in our justice system?

Illustration: Jim Pavlidis.

When you have a complex and demanding task to be done, you’d be asking for trouble if you just went out and hauled in the first person you met on the street to do it. But that’s pretty much how things work in our justice system, where randomly selected people are required to listen, to understand, interpret, weigh up and finally evaluate days’ or possibly weeks’ worth of detailed evidence and decide whether other people accused of committing offences actually did so.

If you are like me, you probably grew up without ever much questioning the idea of “12 good men and true” nobly upholding the glory of democratic justice. And you have probably not had much reason to do so, if you have not yet found yourself in a room with 11 other “good” men and women. But take it from me, once you are in that room, you are likely to ask yourself if you would want these people sitting in judgment on you, should you be unfortunate enough to be in the dock. And you are likely to decide that you wouldn’t.

Don’t get me wrong. Being on a jury has the power to make you just as much aware of your own limitations as those of others. One bleak morning, I sat in a courtroom – all panelled wood and black-gowned barristers – and listened as a list of rape and sexual assault charges was read out. To each of them, the accused man responded, “Not guilty.” Sitting in the jury box, I tried to stop myself trembling and steeled myself to look at the kind of man who would do such things.

It took a comment from the judge to shock me back to reality. Remember those old words, “innocent until proven guilty”? The man said he was not guilty and the law concurred with him. He had been charged, not convicted, and it was up to us, the jury, to decide if he had done the crime. That’s why we were here.

I suspect many other jury members did as I did: heard the charges and simply assumed the guilt. I am not sure many of them ever questioned that response.

So from day one, the accused man was pretty much a condemned man. Which is not to say the jury did not take its duties seriously, because mostly it did. But to put it in the nicest possible terms, the jury was made up of an all-too-human group of, let’s face it, humans. Which means, in blunter terms, that it contained a distressing proportion of know-alls, know-nothings, don’t-cares and cod psychologists.

Pick any group at random, and you’d get a similar result. The kind, well-meaning, earnest character who has trouble grasping the concept of “unanimous” let alone “beyond reasonable doubt”. His pal who admits on day three that he can’t follow the arguments or language in court, and relies on the jury room talk to know what is going on. A few who also don’t know but show no sign of caring. And the body language experts (1) “Look at him stretching: he’s so relaxed he must be guilty”, (2) “Look at him shifting; he’s so edgy he must be guilty” and (3) “Look how still he is; he must be guilty.”

Someone’s fate rests in the hands of such people. It is also at the mercy of the dominant character loudly sharing hopelessly simplistic “psychological” insights; of the go-getter who can’t understand why an alleged criminal – however poor, young and uneducated – wouldn’t get straight on the blower to a solicitor to get out of this mess; and the smart-alec who knows what’s what long before anyone else, and wants to wrap it up before it compromises attendance at a family party or just wastes any more of his valuable time on a man who is really not one of us.

And chances are, it seems, he won’t be. Juries are randomly selected from the general population, but criminals? Not so much. A 2007 study found that 25 per cent of Victorian prisoners came from 2 per cent of postcodes. In our case, we knew where the accused man lived, and if it wasn’t in one of those 2 per cent, it might as well have been.

No jury member shared that postcode. We were all ordinary people, so far as you could tell: no one seemed particularly rich or poor, morals and mores were standard issue, and apart from a couple of mild foreign accents, everyone spoke middle-class Australian. But we were not the same as the man at our mercy. He revealed, the minute he opened his mouth, his lack of schooling, of money, of prospects. Many of the (non-expert) witnesses did likewise, as indeed did the complainant. No juror actually said, “These people are not worth it,” but the thought was in the air.

I am not suggesting that jurors should try to cultivate a fellow-feeling with rapists or murderers, but it was hard to avoid thinking that not just in life but also in the court this man was up against the odds – and those odds were not softened by the golden tradition of selecting 12 ordinary people to sit in judgment on him.

Just how a mix of prejudice, ignorance, boredom, narrow-mindedness and downright stupidity is meant to give rise to justice is not immediately apparent. Yet juries are said to get it right, most of the time. And of course, the law of averages suggests that any jury will also contain in its mix a few cautious, careful thinkers. They are also flawed – left to themselves, they would still be cogitating and agonising in five years’ time.

But perhaps all these faulty elements of a jury somehow, through some strange human alchemy, achieve something that is greater than the sum of its parts. In our case, the slow-to-judge ones eventually came around to sharing the view of those who had made up their minds in the first three minutes, a conclusion to this small drama that was as reassuring as it was disconcerting.

We had a verdict. We all agreed. We not only understood unanimity: we had achieved it.

But did we, in fact, get it right? We will never know: this was no detective novel, with Miss Marple rounding up the characters in the last few pages to explain exactly who did it, and how, and why. Looking back over the whole uncertain process, one thing, however, was clear: in matters of law, the gut response may be just as reliable as – and possibly more influential than – any amount of detailed, complex, legal argument.

Just don’t tell that to the barristers. Or the people who pay them.

Mary Thompson is a pseudonym.