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July 15, 2007
'The American jury system is dying'

It's up to lawyers to protect the fundamental right of trial by jury
By Jan Pudlow
Senior Editor
Spellbinding and dynamic, U.S. District Judge William G. Young of Massachusetts delivered a stern warning: “The American jury system is dying.”

That is tragic, he told a rapt audience at the Judicial Luncheon at The Florida Bar’s Annual Convention in Orlando June 28, because “the American jury system is the strongest guarantor of judicial independence that we have.”

Even though more than 90 percent of jury trials in the world take place in the United States, he said, the right to a jury trial is vanishing.

“It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than on the criminal side, but it is dying,” he said.

It used to be that giving up a trial by jury required a knowing, intelligent, voluntary, case-by-case waiver. Not anymore.

Arbitration is in play. If you trade on the New York stock exchange, have long-distance telephone service, use cell phones, or work for Circuit City or other major employers, he said, you have already given up your right to trial by jury.

“It will never go entirely, but it is already marginalized. It is not at the center of our political discourse. How is this possible, with our Constitution and every one of the 50 state constitutions guaranteeing the right to trial by jury? The general answer is that we do not care.”

Judge Young then delved into the history of our nation to illustrate why we should all care greatly.

America’s founding fathers “could not conceive of a federal judge exercising the jurisdiction of a federal court in criminal matters unless she were sitting with jurors, who were to check and temper that judge, and together, they were to check the other two branches of government.”

Waving his arms, Judge Young said: “Direct democracy, the people themselves ruling directly. The New England town meeting writ large. Has there been, is there, in our form of government, any deeper expression of hope? Hope that the people themselves can come to understand the laws and the Constitution, no matter how complex, and then, without bias, can fairly and independently apply that law to the adjudication of particular disputes.

“No country in the history of the world has turned to jurors more than the United States of America. No country. And look at what has happened. The fact that it was necessary to explain the law to real, average people who came in off the streets has worked an extraordinary empowerment on the judiciary of this country.

“The fact that we share the judicial power with juries has only made judges stronger, so that today the judiciary of the United States is the most independent and most envied judiciary in the world. How so? Very practically, very realistically. Trial judges knew, from the inception of our country, that it was necessary to teach, to explain to others, what the law really meant. And if that essential role of the judiciary was teaching, as all of those of you who are engaged in teaching know so well, you’ve got to understand the subject matter.”

Once he became a judge, Young said, he had to figure out what to tell juries.

“When you do that, and all judges do, you realize in a country under a written Constitution, it is incumbent upon you to harmonize that supreme law, the Constitution, with the expression of that law by the legislature,” he said.

While trial judges must apply the mandate of higher courts, he said, “We must explain to juries in specific cases, and we cannot wait for the law to be clearly or finally resolved. And so, because we rely upon juries more than any other country, we are the only country in the history of the world to give constitutional interpretation to first-line trial judges.”

The problem of fewer jury trials is pervasive, he said, giving these figures for federal judges: In 1988, the average time on the bench was 790 hours. Contrast that with the latest available figures for Fiscal Year 2005: 437 hours on the bench, and of that, 225 hours spent on trials.

“Now, the institutional judiciary hates it when I say that, because your immediate reaction is we’re not working and that’s wrong. We are working as hard or harder.”

But the jurisprudence of federal courts has become more about summary judgments and motions to dismiss.

“Litigation management,” Young said with distain. “Hardly a shining vision, is it? Once divorced from daily interaction with jurors, our written opinions suddenly mock the very idea that democratic institutions might be made to serve the cause of justice. This leads us to prefer knowledge over hope, and the jury system is, if nothing else, our country’s finest expression of hope.”

When the courts move further away from daily jury trials and fact-finding, Young said, judicial independence is weakened and constitutional rights are in danger of erosion.

“Those judges, who thought that, by and large, we could do without juries and we would still have the same moral authority. . .we were rather stunned that the president thought that, with respect to those people he designated as enemies of the state, by and large, we could do without courts. And Congress acquiesced. And the press began to speak of a parallel track.

“And when you have done away with the common sense and practical case-by-case, nonbinding on other cases, resolution of jurors, you face some ugly issues. For the first time in my memory and, I think, our history, Congress has had to debate whether torture is a public policy of the United States. Torture! And we don’t say that, of course. We say, ‘interrogation techniques.’ But nobody is fooled.”

Regarding the writ of habeas corpus, Young paraphrased what the Supreme Court said in Hamdi v. Rumsfeld [542, U.S. 507 (2004)]: “‘Mr. President, it’s a writ of habeas corpus. It’s in Article I. That’s a congressional article. We are not clear that Congress has suspended it.’ And then Congress says, ‘What? Not clear? All right.’ And then they do something that all the marshal prowess and military power of the Southern Confederacy could never achieve. For those whom the president has designated enemies of the state, they have suspended the writ of habeas corpus.

“And I suggest to you when they did that, they took the sword of justice and dropped it in the dirt,” Judge Young said.

“Now, some of them say they want it back. But they are going to find, sadly, that regaining a right once surrendered is far more difficult than fighting for a right long possessed.”

Young concluded by asking everyone to ponder these heavy matters by going into a courtroom just as a jury is returning a verdict in a trial. The clerk, holding the verdict slip, asks each juror if that is their verdict.

“At that moment, if ever you have been there, and when next you go, you will know, with an incontrovertible shudder down your spine, that you are witnessing the purest form of democracy known to mankind.

“And, if you can, at that moment, and I ask you to, tear your eyes away from that verdict slip and give a larger vision. Holmes says at that moment, if you do that, you will touch the infinite. Because somewhere up there, behind that clerk, will be the flag. That is the flag of the United States of America. That flag still stands for freedom. You know it always will. For, wherever a jury sits, there burns the lamp of liberty. Go and make it so.”

(A transcript of Judge Young’s complete speech can be accessed here.).

[Revised: 10-30-2014]