Should juries be feared or revered? Retired lawyer examines their roles

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Marcel Strigberger

Marcel Strigberger.

The jury system first scared me at the age of 9. How, you ask? I grew up in Montreal, the son of parents who immigrated from Belgium. My late father was a humble tailor who worked in a factory. One day, we received a letter in the mail. It had an impressive-looking logo of a crown and the scales of justice.

My dad, whose literary skills did not approximate his ability to alter a fine pair of trousers, asked me to read and translate it. I noticed the word “jury” but did not know what it meant. My interests at the time were rather focused. I suspected it had nothing to do with hockey.

We decided to take it next door to our neighbor who was a gradeschool teacher. He read the letter and told my dad he was being summoned to court for jury duty. My father started to tremble, asking the neighbor why he was being summoned to court because he had not done anything wrong. After offering my father a drink, the neighbor explained—or rather, tried to explain—what a jury was all about, noting that he would be a vital component of the justice system.

After a second drink, my father settled down. However, after further discussion about possibilities, he asked the good neighbor to send a letter to the sheriff’s office requesting an exemption on the grounds that he could not read or speak English. (Back in those days in the province of Quebec, that shortcoming was still viewed as a deficiency.) The request was successful, and we never heard from them again.

Interestingly, my father considered this event a positive experience. He even kept the summons letter, actually viewing it as a certificate of honor. If anybody ever questioned his integrity or judgment, he would proudly say, “Come on. I was even called to be on a jury.” We once had a burglary in our house and when the insurance adjuster arrived to investigate the claim, as the discussion heated up, my father asked me to fetch the letter.

My first observation of a jury, however, was on television, watching Perry Mason. Week after week, I would notice the title character and his nemesis, District Attorney Hamilton Burger, duke it out in front of a panel of 12 people. And Mason generally didn’t even need a jury to secure an acquittal. Near the end of the episode, the real murderer usually was close by, either on the witness stand or in the body of the courtroom. Mason was so brilliant he figured that out, getting the villain to cry out a confession to the murder. That certainly saved the jury some work.

I would often visualize my father sitting in that jury box, noting that his English language proficiency there likely would not have made a difference.

A real live jury entered my life only after law school, during my one-year stint as an articling student. I articled (apprenticed) for a firm that, unfortunately, practiced mostly nonlitigation real estate and commercial work. Before applying there, I naively presumed all lawyers go to court most of the time. I was surprised to learn my presumption of the workings of the legal profession were a bit off.

So how did I satisfy my yearning to see what “real” lawyers do? I often snuck off to the nearby courthouse to sit in on heavy-duty jury trials. (If anybody wants to squeal on me to my former principals, I’ll deny it.)

I was both impressed and daunted by what I saw. I could imagine myself trying to convince a single judge of my client’s innocence. We all had a good idea of the local judges’ dispositions, ranging from a hanging judge to a lenient progressive judge who understood the defendant was not a bad person—when he jumped into a crowd swinging that machete, he acted out of character, merely straying.

But how do you deal with 12 individuals you know little more about, other than their occupations?

In addition, I was uneasy about the method of juror selection, in that their names are drawn out of a drum. It reminded me too much of BINGO: “G-57, Melvin Lubovsky, plumber.”

Although I had my share of jury trials over my four decades of practice, I preferred trials by judge alone.

For one, I did not feel comfortable with laypeople who were generally unfamiliar with the law, perhaps on a whim, making possible life-altering judgments. When I’m on an airplane (pre- and post- COVID-19), I leave all judgements to the pilot. I would not care to have a panel of 12 people sitting near the cockpit during a storm saying to the captain, “Take it down 2,000 feet.”

Yes, I watched 12 Angry Men, the classic movie in which one juror slowly convinces the other 11, one by one, to alter their initial votes of guilty. This is encouraging, but chances are a bit slim of lucking out and drawing Henry Fonda as a juror.

And yes, I also know it is called a “jury of your peers.” This notion goes back more than 800 years to the Magna Carta. These days, we locally refer to these peers as “12 folks standing in line with you at a Tim Hortons” (Canada’s answer to Dunkin’ Donuts, founded by the star hockey defenseman).

I, for one, generally have little in common with most of these guys in line unless they order a medium black coffee and a maple walnut donut.

Also of concern to me is the way the evidence is often filtered and vetted before a jury. First, there is the voir dire. Precious court time is spent arguing over admissibility while the jury is sent out like a child who is about to get exposed to an R-rated movie.

Giving the jury members some credit, it does not take a Sherlock Holmes to figure out that the arresting police officer may have also searched further and found in the defendant’s trunk something like a .44 Magnum in addition to the machete. There is at least a reasonable suspicion.

More concerning is the practice in American courts where if some improper testimony is accidentally blurted out, the judge will admonish the jury to repair the damage, saying, “The jury will disregard that evidence. I order that it be stricken from the record.” (Actually, I’ve only seen this on television; I presume it happens.)

I am sure that fixes it. I can see the jury members back deliberating and the foreman saying, “Now, ladies and gentlemen, does the defendant have a propensity for violence? Remember, we really did not hear anything about that .44 Magnum we heard about.”

We never find out what goes on in that jury room. Our judges in the opening address tell the jury the lawyers will talk to them at the beginning and the end of the trial, and that’s it. Other than that, no chatting, not even a greeting.

I actually was at mall food court once and saw a former juror walking toward me. I recall not doing well at all in that trial. She spotted me and immediately made a large side sprint avoiding my intended gaze and greeting. That was indeed social distancing, pre-COVID19.

I watched her, and she went to the Tim Hortons. She did not order a black coffee and a maple walnut donut. Had I had this vital knowledge before my trial, I would have challenged her acceptance. Obviously, she was not a peer of mine.

I never overcame my discomfort with juries. At least my dad appreciated them.

Marcel Strigberger, after 40-plus years of practicing civil litigation, closed his law office and decided to continue to pursue his writing and speaking passions. Read more of Strigberger’s work at marcelshumour.com.

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