Abstract
In 1972 Angela Davis stood trial on charges of conspiracy, kidnapping, and murder before a White jury. A professor of philosophy, a Communist, and a member of the Black Panther Party, she had no reason to believe that any of the jurors were her peers. Yet, after three days of deliberation, they returned a Not Guilty verdict on each of the counts. Through an analysis of the case, this essay argues for a new approach to peerhood that defines it as a combination of (1) demographic similarities to the defendant and (2) a worldview orientation of contestation and anticorruption that emerges from the jury’s function in the trial. Greater clarity on how these factors are important for peerhood provides insights into how jurors can best fulfill their role and what remedies are necessary to achieve a jury of one’s peers.
There are no Black people sitting on the jury. Although I cannot say that this is a jury of my peers, I can say that, after much discussion, we have reached the conclusion that the women and men sitting on the jury will put forth their best efforts to give me a fair trial.
1
Angela Davis, a professor of philosophy at UCLA fired for her affiliation with the Communist Party and one-time member of the Black Panthers, went underground in August of 1970. She disappeared from the public eye for two months after a warrant for her arrest was issued by the FBI. The Wanted poster read: “Angela Davis is wanted on kidnapping and murder charges growing out of an abduction and shooting in Marin County, California. She allegedly has purchased several guns in the past. Consider possibly armed and dangerous.” After her eventual arrest in New York City, the case against Angela Davis continued to be national news because of the protests around the world advocating for her innocence and calling for her to be released on bail while she awaited trial. Her trial was a symbolic event that tested whether all Americans—even a Black feminist, communist, philosophy professor—could be treated fairly in a court of law.
The incident in the Marin courthouse was led by Jonathan Jackson, in solidarity with the Soledad Brothers, three inmates at Soledad Prison who were accused of killing a prison guard in 1970. In their name, Jackson led an uprising in the courtroom where he armed the defendants and then took a judge, the prosecutor, and three jurors hostage. In Jackson’s attempt to drive away from the courthouse with the hostages, the police opened fire; the shootout resulted in the deaths of the judge and the three defendants. One of the jurors and the prosecutor were also injured. A friend of Jackson’s and romantically linked to his brother, Davis had, in fact, bought some of the guns used in the incident. After a change in the location of the trial, from Marin to Santa Clara County, because it was thought that it would be difficult to get a fair trial at a courthouse where everyone knew the judge who had been killed, a seemingly all-White jury was seated. Davis had no reason to believe that any of the jurors were her peers. Yet, after a three-month trial and three days of jury deliberation, they returned a Not Guilty verdict on each of the counts.
This is the puzzle that motivates the essay and raises the question of what exactly it means to have a “jury of one’s peers.” While the logic of a defendant’s right to a trial by jury is taken as a meaningful tradition within the American legal system, the full significance of a “jury of one’s peers” is underexplored. The Davis case provides an unusual example of jurors who did not appear to be peers of the defendant yet forged a different form of affinity against the power of the state. It was a peerhood based on the structural elements of the trial and the logic of adversarialism, not just as a path to legal truth but as a philosophy of the necessary constraints on the agents of the state in questions of punishment. This essay will argue that the Supreme Court has had an ambivalent relationship to the concept of a jury of peers, using it to scaffold other requirements of the jury system (such as the prohibition against discrimination based on race) but shying away from interpreting it as a necessary check on the elite consolidation of decisions about law and punishment. A more robust understanding of the concept will be offered, one which emphasizes the role of the jury as the check on the abuse of power by the state, including the Department of Justice and its representatives, federal and local prosecutors, and law enforcement. Through an analysis of the Davis case and the 2019 Supreme Court decision, Flowers v. Mississippi, this essay argues for a new approach to peerhood that defines it as a combination of (1) demographic similarities to the defendant and (2) a worldview orientation of contestation and anticorruption that emerges from the jury’s function in the trial. This second factor, best understood as an orientation against the potential soft despotism of the legal establishment, is often obscured by the urgency of representational concerns. Greater clarity on how both of these factors are important for peerhood gives us an insight into how jurors can best fulfil their role and what remedies are necessary to achieve a jury of one’s peers.
To be a peer to the defendant is to be in a conflictual orientation to the self-serving tendencies of the legal and political elite, a term defined by its class status and closeness to political power. 2 While discrimination against Blacks and other people of color during voir dire (jury selection) is an urgent issue that must be addressed, changing demographic representation on the jury will only partially achieve the ideal of peerhood. Demographic changes must be coupled with seating jurors who have a distinct attitude that is particular to the trial but, ironically, is unlikely to be cultivated in the courtroom or through legal remedies. Rather, it is a form of citizenship that should be nurtured prior to jury service. Accepting the adversarial nature of the jury (that is, between the jury and the officers of the court) inherent in the concept of a “jury of one’s peers” is to move from a focus on the perceived legitimacy of the jury system to its substantial legitimacy in which justice for the people is truly done by the people.
The argument is sympathetic to epistemic defenses of the jury, as considered by Jon Elster, Hélène Landemore, David Estlund, and Josh Ober, in that it suggests that juries, rather than judges, are better able to decipher what justice means in a particular case because of the intellectual and experiential resources they bring to the process, but I emphasize the adversarial orientation between the jury and the officers of the court in a way that these authors do not. 3 Landemore’s discussion of the value of cognitive diversity in collective decision-making allows us to see what a more adversarial approach to the jury adds to the epistemic defense. She writes, “Cognitive diversity is the difference in the way people approach a problem or a question. It denotes more specifically a diversity of perspective, diversity of interpretations, diversity of heuristics, and diversity of predictive models.” 4 This type of cognitive diversity is undoubtedly important for the jury in criminal trials, and the lack of representativeness we see in jury selection today undermines the epistemic function of the jury.
Yet, there is an additional function of the jury—to act as a check on the officers of the state and the court—that is not captured with advocacy for cognitive diversity because it neither explicitly recognizes the value of this function nor facilitates the cognitive perspectives necessary to achieve it. To act as a check on the officers of the court means holding them accountable for their actions and judging these actions against the ideals of governance in a democratic polity. Cultures of corruption develop as those in leadership positions lose their focus as representatives of the people; a jury made up of outsiders is best able to point out such oversights and ensure that others are not penalized for it. 5 I acknowledge that bringing concerns of power into discussions of the merits of collective wisdom, as Ian Shapiro and Jane Mansbridge also do, threatens to turn all deliberation into an attack on the elite, with all other goals becoming effaced and other contributions by participants muffled. 6 Yet, by remaining quiet on the centrality of the watchdog function of the jury and the discomfort that this sometimes causes jurors, scholars aid in obscuring a notable aspect of the legitimacy of the institution. The particularity of the jury’s reactive task—to decide on the outcome for one case in response to charges brought by the state— means that the lay wisdom and cognitive diversity celebrated by epistemic democrats must be adjusted to highlight the structural function of the jury as a check on power.
As German jurist Francis Lieber describes it, the jury must prevent the court from “falling entirely into the hands of the executive or of a separate and closed caste,” and Albert Dzur has highlighted this function as one that is in tension with the Tocquevillian celebration of the didactic function of the jury as a “schoolhouse” for democracy. 7 Melissa Schwartzberg has argued that in attributing to Aristotle an epistemic reason for appreciating the wisdom of the many, scholars miss the assumed equality of each citizen’s ability to offer judgment. 8 Truly giving each citizen a chance to participate in the work of politics and receive its honors is necessary for a polis to flourish. The variety of opinions and outcomes that this produces is critical for good laws in an Aristotelian framework.
I push this line of inquiry further to suggest it is the agonistic struggle between laypeople and the legal class, within the structure and constraints of the trial, that is the critical aspect that provides the jury with its democratic legitimacy. Jurors must harbor a considered and contextual distrust of expert management in the courtroom and a recognition of the fallibility of the law and law enforcement while still respecting the institution of the court. Much as Machiavelli presents the need for institutional checks on the grandi by the populi as a way to resist domination and prevent revolution, the jury system is the bulwark against the ways elite interests become calcified within legal and bureaucratic processes. 9
Selecting the Davis Jury
The Davis case demonstrates how the check on the abuse of power by the jury is undermined by the process of voir dire. Questioning of potential jurors by attorneys and the judge makes it difficult for jurors to appreciate that their views are meant to be distinct from those same officers of the court. Bettina Aptheker, a friend of Davis and a member of the defense team, described the selection process in the following way: “The majority of prospective jurors questioned during the voir dire were middle aged and white collar workers, usually employed in the electronics or defense industries. . . . There were only a handful of blue-collar workers, and almost all were excused for reasons of economic hardship. . . . One prospective juror [of 150] was Black, four were Chicano. The vast majority were apolitical, anxious to avoid conflict. They tended to say whatever they thought examining counsel wanted to hear.” 10 Her comments capture the ambivalence potential jurors feel about being questioned by attorneys, let alone being selected to serve. They have internalized the undesirability of jury duty and are uncertain about taking on the responsibility that accompanies it. The role of a juror is not one that is meant to bring attention or glory to the individual, yet an individual must see herself as capable of authorizing the verdict, in conjunction with her fellow jurors, despite pressures from multiple directions, including the pressure of the perceived desired outcome held by the officers of the court. More tellingly, the fact that the jurors did not want to be reprimanded by the judge or embarrassed in front of their fellow citizens means that they may have difficulty taking on a contestatory attitude in relation to the exercise of state power. Yet it is this attitude that must be transformed to fulfill the peer function. Yet cultivating the desired relationship between jurors and officers of the court is difficult because (1) recalcitrant jurors who show no deference to the lawyers or the judge will likely be dismissed for cause and (2) jurors who show too much deference will fail in the critical function of the jury, particularly the function to resist the furtherance of soft despotism by the legal system when necessary.
The Origins of Peerhood
The provision of a jury of one’s peers is so deeply integrated with the American idea of one’s right to a jury trial that it is surprising to note that it is not articulated in the Constitution. 11 The Sixth Amendment provides defendants with a right to an impartial jury, stating that “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.” This language of impartiality suggests a disinterested jury, one made up of individuals who have no prior reason to be predisposed for or against the defendant and who can examine the evidence in a direct manner, yet the adversarial trial, with its burden of proof placed on the prosecution, gives “impartiality” a specific meaning that is reinforced by the standard of a jury of peers. The ideal of selection by lot, what Aristotle considered to be the most democratic form of selection for political office, is meant to aid in the cultivation of impartiality as well as peerhood. 12 Yet, the increasing emphasis on the language of impartiality as a type of neutrality between the prosecution and defense in considerations of the jury masks the contestatory relationship between the jury and court professionals. 13
The concept of a “jury of one’s peers,” so enmeshed in American narratives of the legitimacy of punishment by the state, is derived from the Magna Carta, drafted in 1215 by the Archbishop of Canterbury in order to broker a truce between elites and the king. The charter states “no freeman shall be taken or/and imprisoned, or disseized or outlawed or exiled or in any way destroyed, nor will we go upon him, nor will we send upon him, except by the lawful judgment of his peers or/and by the law of the land.” 14 The “peers” mentioned refer to a group of barons, distinct from the proxies and appointees of the king, who should be given the power to issue judgment when one of their own has been accused with a crime. The Magna Carta makes clear that the king should not be able to issue the charge and also have the conviction be verified by his own apparatus. The jury must be a separate entity. The recognition of the interests of the barons as separate from the interests of the king gives substance to the meaning of a formal check on the power of the king and thereby serves to forge a legal process that relies on a form of authority independent from absolutist rule. In signing the charter the king realizes that the provision of peerhood undermines his power, but he also realizes that it is a necessary component of the process of the legitimacy of the court and ultimately the stability of the regime. 15 The establishment of a jury of peers was a decision by the state to share authority at the critical moment of punishment in order to preserve the substance of authority as such.
A Brittle Victory: Flowers v. Mississippi
The intuitive idea that a jury of one’s peers should reflect jurors from similar racial, class, and gender backgrounds has been repeatedly taken up by the Supreme Court even though it does not appear in the Constitution. Just as the Davis trial was notably marked by having a White jury for a Black defendant, the exclusion of Black jurors from the jury remains a salient issue for the Supreme Court, which in June of 2019 intervened in discrimination against potential Black jurors in Flowers v. Mississippi. They reversed and remanded the conviction of Curtis Flowers, a Mississippi man tried six times for allegedly murdering four people in a furniture shop in 1996. 16 In each of those six trials, he was tried by Doug Evans, a local prosecutor who was repeatedly found to have inappropriately dismissed jurors on the basis of race. While the decision, authored by Justice Kavanaugh, is celebrated as a win for liberals in the context of a conservative court, it also reveals the blindspots that have become ingrained when thinking about the standard of peerhood in the jury. 17 Censoring a corrupt prosecutor is a much easier remedy for an ideologically mixed court to make than fully exploring what a jury of one’s peers substantively means.
The peerhood ideal was previously interrogated by the Supreme Court in Strauder v. Virginia when, in 1873, a former slave was tried for murder in Ohio County, West Virginia. He was found guilty and appealed the conviction on the grounds that he did not receive a fair trial because no Blacks were allowed to serve on the jury. The Court agreed and found that while a defendant does not have a right to jurors of the same race, the exclusion of Black jurors was in flagrant violation of the Fourteenth Amendment of the Constitution. 18 In the opinion written by Justice Strong, the Court acknowledges that merely trusting the states to act in a nondiscriminatory way or trusting its officers to ensure fair trials is an inadequate solution for mitigating the pernicious discrimination they know exists. With the Strauder and Flowers decisions, the Court was compelled to intervene in order to ensure a jury is selected without using outright discriminatory procedures.
The Court offers the hypothetical scenarios of (1) a White man tried by a jury of Black men and (2) a jury in which “naturalized Celtic Irishmen” were excluded to demonstrate what they perceived to be the obvious discrimination present in Strauder and to explicate the idea that one’s peers should never be purposefully excluded from a jury. The race-switching of the defendant and jury in the hypothetical situations above shows how critical shared life experiences based on race or ethnicity, including experiences with the state, are to the term “peer” in the eyes of the Court. The decision in the Curtis Flowers case, consistent with the Court’s treatment of the issue since Strauder, shows a willingness to tackle blatant challenges to the perceived legitimacy of the jury system while staying away from the issue of what type of structural orientation jurors should have in a legal system where all other decisions are made by elites and bureaucrats.
Yet the Court’s remedy in Flowers shows how hamstrung the Court is in achieving a “jury of one’s peers” either in terms of identity characteristics or in terms of attitude. The decision in Flowers v. Mississippi relied on the Batson v. Kentucky precedent for addressing discrimination during jury selection. When jurors are questioned by the judge and the attorneys during voir dire, potential jurors are dismissed for cause if the judge deems them unable to perform their duties because of their knowledge of the case, past experiences, or preexisting biases. 19 After this process of exclusion, both the prosecution and defense have a set number of peremptory challenges that can be used on any remaining juror. Exercising this challenge results in a potential juror’s dismissal without the attorney having to state a reason— this is where “hunches” about a potential juror’s leaning come into play (and jury consultants earn their fees). Yet, as shown above, the Supreme Court has ruled that dismissing jurors on the basis of race is unacceptable. As a remedy, an attorney may call for a Batson hearing before the judge to investigate whether such an improper dismissal has occurred and the opposing attorney will be asked to state their reasons for using a peremptory strike on a particular juror. Batson challenges are notoriously difficult to win because an attorney will always be able to make up a racially neutral reason for the dismissal and judges are inclined to believe what attorneys tell them in this context. 20 This dynamic of legal elites protecting each other as a way to protect the perceived rectitude of their profession when it comes to racial discrimination is yet another reason that jurors must become more aware of their anticorruption function.
In his concurrence in Batson, Justice Thurgood Marshall warned that the post-hoc consideration of discriminatory dismissals in jury selection would not be enough to seat a jury of peers. It was too weak a measure and unable to combat the unconscious bias that binds judges and attorneys together in ways they don’t always recognize. In response to the concern that prosecutors would likely lie about the reasons they are dismissing jurors in order to avoid a violation, he wrote, “Nor is outright prevarication by prosecutors the only danger here. ‘[I]t is even possible that an attorney may lie to himself in an effort to convince himself that his motives are legal.’ A prosecutor’s own conscious or unconscious racism may lead him easily to the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization that would not have come to his mind if a white juror had acted identically. A judge’s own conscious or unconscious racism may lead him to accept such an explanation as well supported.” 21 Here, Marshall notes that is impossible for an officer of the law to separate out good reasons from racially dubious ones because of the tendency toward trusting others in the profession when they offer their reasons for a dismissal. There must be another way to save attorneys and judges from themselves at this most critical step in the jury process.
The regularity of racial discrimination over time means that attorneys should now lose their privilege to act “on hunches” during voir dire and eliminate jurors for nebulous reasons. For Marshall and others, if jurors are only to be dismissed by the judge for cause, the default orientation becomes the acceptance of all potential jurors. While the bias that Marshall mentions could also be present in dismissing jurors “for cause,” it is a more rigorous standard enforced by the judge, not meant to be advantageous for either side. Eliminating peremptory challenges would ideally mean that a jury is more likely to represent a sample of the demographic makeup of the vicinage where the trial is held and a fulfillment of the “fair cross-section” requirement. It is also worth noting that a representative venire would be more likely if the list of jurors was not drawn from DMV lists or registered voters, the norm currently, but instead from residency lists, updated yearly, which would be more affective at generating a venire whose racial, gender, and socioeconomic status paralleled the population at large.
The case of Flowers v. Mississippi is indicative of how the Court’s strategy for insuring a jury of peers for Black defendants is severely limited. On the likelihood of continued prosecutorial misconduct in relation to juries, the Harvard Law Review concluded: “The history of Flowers demonstrates how a prosecutor may easily evade Batson; but even where one is found to have violated it, there exists no meaningful remedies to ensure that the guilty prosecutor does not violate the law again. Overturning convictions is insufficient deterrence.” 22 Jury componsition, a formerly consensus-driven part of the trial, now needs an adversarial remedy, and it should come from the jurors themselves. The opinion in Flowers v. Mississippi provides a powerful example of an ideologically mixed majority on the Supreme Court defending the integrity of the jury system using the legal tools at their disposal, but they can only do half the job of seating a jury of peers. Attorneys should not hold all the power to seat (or dismiss) jurors fully aware of their role as peers of the defendant. To truly achieve a jury of one’s peers, an enlarged pool of potential jurors must be aware of their function as the check on the abuse of power from the outset, thereby giving less power to the prosecutor to dismiss all jurors who show such an awareness.
Working with the Jury She Had
As the epigraph that opens the essay suggests, Davis tried to make the most of the jury she was given, and accounts of the trial reveal the strategies she used to build a rapport with the jurors despite early indications that it might be difficult. From the very first potential juror interviewed by the judge who thought it was “illegal and improper for Communists to teach at a university” to the juror who claimed she had some “very dear Black friends who moved away last year” but whose daughter contacted the court to say otherwise, Davis’s fears about jurors as prejudiced proxies for the prosecution seemed to be repeatedly confirmed. 23 The process of jury selection was itself rigged in the way Justice Marshall feared when the only Black juror to have remained in the jury pool after questioning by the judge was dismissed via a peremptory strike from the prosecution. Yet, out of the eight women and four men, ages 22–67, who made up the jury, the defense team were optimistic about a few potential jurors such as Mary Timothy, a White woman in her 50s whose son refused to be inducted into the army and who Davis described as “a fiercely independent person who, we thought, would know how to hold her own.” 24
While Davis did not consider the White members of the jury to be peers, she recognized their agency and ability to thwart stereotypes about White fears of Black activists. Rather than attempting to assuage these fears, she chose to be straightforward in her opening statement about her political commitments and her love for George Jackson, indicating her hope in the jurors’ ability to understand her life circumstances, its challenges and opportunities. She admits to owning guns and tells the jury about how from a young age she saw the necessity of guns for her family and other Black families in Birmingham: “You will learn why the neighborhood in which we lived—where my parents still live—came to be called Dynamite Hill. . . . Because of the constant threats and actual incidents of violence, my father had to keep guns in the house,” and she continued to talk about the threats she received while at UCLA and the reasons for her gun ownership. 25 Through this type of disclosure, Davis was able to explain to the jury how the coercive reach of the state or the violence sanctioned by the state affected her everyday actions. Throughout the trial, she looked for clues from the jurors about how they were hearing the evidence against her, finding confirmation in some of their faces when the prosecution seemed to be straining credulity with its presentation of her as a woman driven to violence because of a consuming love affair. She also saw a glimmer of hope in the pin in the shape of a peace sign on Timothy’s sweater one day, indicating her willingness to take a position presumably contrary to some of the officers of law enforcement.
A People’s Victory
Understanding the role of the jury as providing a check on the state when it intimidates, coerces, and imprisons political critics requires understanding the trial process as made up of differentiated actors and interests. This includes the interests of the people as jurors in contrast to that of the officers of the court whose reputations and careers benefit from the verdict. Davis has called her acquittal a “people’s,” victory and the expansive nature of the term “people” may be part of the reason why Davis uses it, given her lifelong commitment to social movements from the Black Panthers to the Che-Lumumba Club of the Communist Party to the prison abolition movement. 26 Yet her autobiographical work chronicling the trial never presented the jury as part of the “people” in the way I am suggesting. She had come to see the criminal justice system as an undifferentiated institution for wielding force for political and racist ends and calling it justice. This was in part due to the harassment, intimidation, and violence by the state she had experienced by the time of the trial, including having lost her position at UCLA because of her political affiliations and the many months she had spent in jail awaiting trial. Yet, a more robust definition of a jury of one’s peers makes this differentiation of interests a critical part of the integrity of the trial.
Prior to the trial the jury did not have an identity for Davis apart from the closed caste of legal functionaries who they emulated in spirit if not in profession. Observing the architecture of the courthouse in Marin Country, she wrote: I discovered that in designing the courtrooms, [Frank Lloyd] Wright had had something very definite in mind. He wanted to depict the nature of justice in the United States. The participants in a trial, he believed, should not be seen as struggling against one another. On the contrary, judge, jury, prosecutor and defendant are holding hands around a circle in the common pursuit of justice. When I learned about Wright’s handholding message, I thought about the game we use to play as children—“Ring around the rosie” . . . —and the way the game itself picked certain children to be “out.” There was absolutely nothing I had in common with the men sitting around the courtroom circle. My comrades, my friends and I—we all saw these men as the manipulators of a judicial game that was rigged against me.
27
Here Davis tethers the jury to the judge and prosecutor and her observation of justice as a game based on complicity and exclusion raises a question: what could happen if the game did not feel rigged? If instead of hand-holding between allies, the trial allowed for a contained yet pointed struggle between different forces that considered the rule of law, the mechanisms of political repression, and the protection of liberties for citizens in a democracy in their complexity. These are the stakes of the civic education of jurors; they must know when and how to disrupt the seemingly harmonious circle of players.
Davis’s discomfort with the image of the circle as a metaphor for justice brings to mind contemporary discussions of restorative justice and circles of victims and perpetrators. While the greater presence of restorative justice practices in schools, colleges, the municipal court system, and in prisons has dramatically changed discussions of punishment in ways that were unthinkable even ten years ago (and have increased support for the abolition of prisons and restructuring of the police), the adversarial system still holds some advantages, in addition to its many flaws I have described elsewhere. 28 When there is disagreement about the events in question and the accusations are some of the most serious possible, a defendant is arguably best served with all the protections afforded in a criminal trial, including the right to remain silent, to be presumed innocent, and have a trial by jury. As Robert Burns writes, “The hard tension of opposites created by the trial actually reveals something that could not be stated more directly,” and the competing narratives of the Davis trial not only allowed the jury to see her lack of culpability, but they were also given insight into the mechanisms of a politically motivated prosecution. 29 The evidence against Davis was so insubstantial that, in my opinion, it should not have led to trial, yet the format of a trial was the best opportunity for a consideration of justice she could have received.
The Enfranchisement of Jurors
The Court’s commentary in Flowers v. Mississippi on peerhood within the jury leaves unspoken the type of citizenship that jurors should exemplify. Currently citizenship, in the context of jury service, is assumed to refer to the legal status of an individual rather than a practice of contestation, and no preparatory education is required. In fact, ignorance on the part of the juror about her role combined with a sense of deference to the majesty and grandeur of the court may be desirable for attorneys and the judge because these attributes may inculcate a willingness to listen to the instructions of the court and predisposition toward compliance. Alexis de Tocqueville famously observed, “The jury contributes most powerfully to form the judgement and to increase the natural intelligence of a people, and this is, in my opinion, its greatest advantage. It may be regarded as a gratuitous public school ever open, in which every juror learns to exercise his rights, enters into daily communication with the most learned and enlightened members of the upper classes, and becomes practically acquainted with the laws of his country, which are brought within the reach of his capacity by the efforts of the bar, the advice of the judge, and even by the passions of the parties.” 30 For Tocqueville, it is the education jurors acquire in the presence of the elites of the courts that is particularly admirable. Judges are the closest thing America has to an aristocracy and, if we follow Tocqueville’s thinking, a small dose of its charms could do wonders for American democracy. An appreciation of the storied history of the jury system is often conflated with a sense that there should be harmonious cooperation between the different units of the court, including the judge, jury, and attorneys. 31
In contrast, the framework for jury service that underlies my argument for peerhood is based on the contestatory nature of the relationship between jurors and elites and the preparation that is required for it. While Aristotle is often celebrated for his doctrine of the wisdom of the multitude, which suggests that the differentiated knowledge and skills of a group can be combined to yield a superior result, Schwartzberg highlights another reason for Aristotle’s emphasis on lottery-based participation in political and legal deliberation. This is Aristotle’s belief in the ideal of equality (among propertied men) as it manifests in judgment by laypeople, a belief that on the surface seems to be in tension with what we know about the range of talents present in the demos. The capacity of laypeople to judge comes from experience as political subjects, in both senses of the term, as they are recipients of the decisions of others and have their own individuated perspectives. Schwartzberg writes, “The political force of the argument is that the fact that officials possess expertise that ordinary citizens lack does not mean that the latter are incompetent to judge the performance of the former; each individual knows the effect that these officials’ decisions have had on him.” 32 It is this experience of felt power—the power of officials, the laws, and economic circumstance—that create the substance of political and legal judgment in an individual. Aristotle and proponents of the modern American jury share the belief that citizens should deliberate about the best ways to achieve shared ideals within a community, even beyond the question of corruption. The correct regime provides the institutional context for the many to exercise this capacity of judgment, and the current danger of the vanishing jury trial is a loss of this institutional opportunity. 33
Embedded within his political writing, Nicolas de Condorcet’s warning about the nature of despotism in modern democratic societies gives an insight into the contestatory role of the jury in relation to the legal system. 34 While direct despotic power comes with the unchecked power of the sovereign, indirect despotism can in fact be furthered through the law itself, when for example, representatives fail to represent the interests of their constituents and instead work for the consolidation of power among an elite group. As Steven Lukes and Nadia Urbinati write in their gloss on Condorcet’s claim, “Indirect despotism can develop in a democratic or free society when social classes (constituted by honors or nobility, by economic and financial power, by religious prejudices and by ignorance) hold an unequal power to influence the law.” 35 The jury represents a check on this type of despotism in relation to the law and the path toward political freedom grounded in self-legislation that is consistent with Condorcet’s republican orientation.
Condorcet’s analysis of the ways in which de facto despotism can exist without conditions of de jure despotism draws attention to the problem that a jury of one’s peers is meant to prevent. The procedural elements of the adversarial trial are the safeguards against the tyranny of the state, and they include trial by jury, the right to counsel, the burden of proof, and the presumption of innocence, among others. These safeguards are jeopardized not only when they are abridged or suspended but when there has been such ideological consolidation that necessary tensions within the system disappear. When defendants do not see any value in contesting a charge because of the penalty of going to trial (plea-bargaining taken to the extreme) or when jurors see themselves as proxies for the prosecutor, there is an erosion of legitimacy. Davis herself noted this when talking about how unusual it was for her to choose a trial by jury rather than accepting a plea bargain: “Court-appointed attorneys, acting in the twisted interests of overcrowded courts, convince 85 percent of the defendants to plead guilty. Even the manifestly innocent are advised to cop a plea so that the lengthy and expensive process of jury trials is avoided. This is the structure of the apparatus which summarily railroads black people into jails and prisons.” 36 When jurors are aware that their role is to be a critical check on the abuse of power by the state, this has implications for what other actors in the legal system will do. Speculation about how a trial jury will decide a case structures the actions of the prosecutor and judge, including what charges are brought and the terms of the plea bargain. If attorneys and defendants had greater confidence in the peers that would be deciding their case in the jury box, this would have an impact on prosecutorial strategy as well.
Jurors must understand the danger of what Condorcet called “soft despotism” before they arrive at the courtroom, because the question of where the jury stands, as a matter of default, in relation to the defendant has implications for the trajectory of the trial. Davis recounts how there were two competing strategies considered by her defense team. The first suggested placing the prosecution’s inflated claims and unsubstantiated charges within the broader context of political repression in the United States and the many ways President Nixon and Governor Reagan had stifled civil liberties. The second approach was one of “no defense” as a way to further communicate that the burden of proof lay with the prosecution: “If the prosecutor could not prove his case ‘beyond a reasonable doubt,’ then we were not required to utter a word of defense.” 37 Yet, this “no defense” approach only works if the jury understands the logic of the trial and is already willing to side with the defendant on the question of the burden of proof. Emphasizing the peer requirement of juries reinforces many of the other protections of the defendant that are necessary for the integrity of the trial.
To Interrupt the Game
Just as intersectional approaches to political alliances eschew unitary categories as the basis of analysis, peerhood in the context of being a juror does not only mean similarity along a singular dimension of identity. Rather, it refers to the relationship between an individual and the defendant in a court of law, a space distinct from the voting booth, political rally, and community at large. Such a relationship is open to jurors from all subject positions. Mary Timothy recounts why another juror nominated her for the role of foreman: “She explained that since Angela Davis was black, a woman, and a Communist, and there were no black jurors, and also no Communists (as far as any of us knew), Roz felt that it was crucially important that a woman be selected. It was the closest we could come to a peer of Ms. Davis.” 38 Timothy was not wrong to highlight her sex, but I argue that equally important to her status as “peer” was her understanding of the role that the juror plays in relation to the officers of the court.
Timothy gained greater clarity about this role as the trial progressed. In her memoir she observed, “While we were sitting there in our jury box the whole ritual of a trial took shape. The court was run by men, and men had long, long ago worked out trial procedures to make it possible for them to function with a minimum of conflict. Court processes have become so formalized and established that sometimes the purpose of it all becomes lost in the routine. Like the game of baseball, the ground rules were set and past performances recorded in minute detail. It was as though, once started, there was no way the orderly progression could be stopped.” 39 Her awareness of the role of the repeat players of the court and the danger of routinized conviction and punishment served as a critical awakening for her. It heightened her understanding of the potential for corruption by the state even if the formal procedures to check such power are followed.
Timothy understood that the jury stood apart from the prosecution, the judge, and even the defense counsel because of its watchdog role, despite the many cues from the environment that told her to be deferential to the court (including the ritual of the proceedings, the grandeur of the courtroom, the number of rules governing juror conduct, etc.). While an opponent of the Vietnam War, she did not consider herself to be “antiestablishment,” and as the foreperson, she did not put forth any explicit structural argument about the role of the jury to her fellow jurors. She was no stealth activist juror. In fact, she appeared to be the opposite–methodical in organizing her notes about the testimony the jury heard along the lines of “motive” and “evidence” for each of the charges. Her behavior suggests that the attitude that marked her as a peer of the defendant did not overwhelm all other critical responsibilities, but underscored them by drawing attention to the relative weight of the different tasks of evaluating the evidence and determining the verdict.
She was thus able to be both impartial and a peer of the defendant as the requirement of an impartial jury can coexist with the contestatory function of the jury. An attitude of impartiality does not refer to giving equal attention to the prosecution and defense; this would be in violation of the standard of proof. Having a jury of one’s peers reinforces the idea that the standard for punishment is very high within an adversarial system and that laypeople who have experienced the force of the state should ultimately be the ones to decide whether punishment is warranted in a particular case. Yet, impartiality is still important as it restricts jurors from having prefigured notions of the outcome of the case or the credibility of witnesses. Impartiality also refers to the idea that a juror’s own ambitions and grievances should not be projected onto the trial.
According to Timothy’s account, the Not Guilty was the result of the jurors not finding the weight of the evidence sufficient to convict; it was not a nullification—that is, a verdict intended as a critique of the prosecution or the law that is not primarily based on the evidence. 40 The jury’s longstanding power to nullify is an important element of their watchdog power; the acquittal of publisher John Zenger in 1733 is a notable example of a jury refusing to apply the law as written because of the political motivations for the charges. 41 Yet, being a peer of the defendant and being attuned to the ways that the state may be abusing its power exists even in cases where the power to nullify is not salient. 42
While the liberal-contractarian tradition looks to justify punishment by considering what reasonable people would consent to if they were consulted in the process of making the legal code, the provision of a trial offers an additional type of legitimacy premised on the idea that an event-specific deliberative process is necessary for determining whether or not someone is guilty of a violation and whether or not they should be punished. While it is important that the jury represents reasonable people who give consent to punishment, they should also be able to take into account the particular circumstances of the crime and make adjustments to the verdict as necessary. Jurors must recognize, as Mary Timothy did, that their lack of familiarity with the norms of the institution is an asset, not a weakness, and the very characteristic that will stave off the demise of due process protections.
Prioritizing the anticorruption function of the jury may appear to be discounting its other functions, including its responsibility to respond to the facts of the case and egregious violations of the law. If a jury resists any attempts at adjudication because of their opposition to the legal establishment writ large, this would not be in the contestatory spirit I am suggesting. In fact, this would mean that the jury was acting like an obstructionist party in Congress, willing to halt the entirety of the system with dire consequences for the people in order to make an ideological point, and this would likely herald the end of the jury system. What is needed, then, is an appreciation of how the colliding of different narratives—of culpability, corruption, compassion, etc.—make up the necessary ingredients of a successful trial. Burns suggests that we should understand the trial as an admixture of literary and rhetorical practices that come together to produce a verdict that is contextually grounded and reflects a type of practical wisdom. 43
The logic of the verdict depends on the experiences jurors have had during the trial itself; it cannot be assessed in advanced or from the outside. A structural understanding of the jury’s value as peers of the defendant vis-à-vis the legal establishment should be seen as one among several tensions they must navigate, but it is not the only consideration. However, it would be erroneous to take the judgment of laypeople out of the equation, equivalent to the erasure of class-based advocacy, in the form of unions, taking place in the market. Burns writes, “The deepening tensions among the linguistic practices of the trial thus represent serious and sometimes tragic conflicts among those values within a practice that is fair to the important values on all sides. . . . The trial is a space in which the agonistic or competitive phase of civilization still lives.” 44 The agonistic essence of the trial is as a space where competing values of democratic life may clash and must be resolved in a particular case. It would not make sense to prescribe how a juror should assess or rank the tradeoff between various considerations of justice when coming to a verdict, when compassion should take precedence over consistency in the rule of law, for example. It may be a subtle point to say that jurors should understand their role as a check on the abuse of power by the state, but they should not interpret all acts of the state as such. Yet this is the challenge a jury faces and for which they must be educated. If jurors can acknowledge the soft-despotism that comes with the consolidation of an elite class, this can be a productive part of the agonistic space of the trial and can exist alongside the other functions of a jury. It does not automatically mean a “Not Guilty” verdict.
Another Jury of Her Peers
While a White jury was able to serve as peers of the defendant in the Davis case, this does not mean that demographic similarities between jurors and the defendant are irrelevant to achieving a jury of one’s peers and opening up new lines of questioning in the jury room. The identity of a juror and her orientation to checking the abuse of power by the state are linked in myriad ways. The 1917 short story “A Jury of Her Peers” by Susan Gaspell highlights these two qualities that accompany peerage in a vivid way. 45 In the story, a man is murdered and his wife is the prime suspect. Two women, the sheriff’s wife and a neighbor, have been summoned to gather some personal belongings for the detained suspect.
While in the suspect’s house, the women share their memories of her—including her talents as a vocalist and her sorrow at not having had children. They also take stock of the objects in her kitchen, including a bird cage and the pieces of a quilt in progress, as one of them remarks, “Women are used to worrying over trifles.” They come to an unspoken agreement that their friend was likely the victim of domestic abuse but are hesitant to say it, knowing that it would be difficult to produce evidence. When they find a dead pet bird, lovingly preserved, they find it to be indicative of a woman driven to the edge of sanity by the violence of her husband. They come to believe that the woman likely killed her husband but they have compassion for her situation. The turn of events in the story indicates both meanings of peer that I am suggesting—as women they are attuned to the lifeworld they share with the defendant, the tasks that make up their everyday lives, and the opportunities for freedom open to them. At the same time, their understanding of their structural position in society means they have an acute sense of the violent possibilities that can occur within the home and that will be overlooked by the officers of the law, despite those officers’ best intentions to apply the law in a neutral fashion. One of the men on the scene, frustrated with an apparent lack of motive, says that juries need a “story,” especially when it comes to female defendants. Certain stories involving the defendant are only legible to peers, and it is this particular knowledge that is also embedded in the concept of a jury of one’s peers. The women in Gaspell’s story were able to see a broader range of possibilities for what happened the night of the murder than their male counterparts, and this comes from their position in society and the family.
“A Jury of Her Peers” shows how intertwined the attributes of identity and orientation to the law often are. Given the extent of discrimination faced by women, Blacks, and others, it is plausible that an orientation of anticorruption follows from their lived experiences with discrimination and the phenomenological experiences that accompany it. One might argue that choosing a jury of peers solely based on identity would achieve the ends I am suggesting, without the demand for the type of orientation described above. This may be true in some cases, but the two aspects of peerhood should still be separated for analytical clarity about the jury’s function. Given that it is the responsibility of the juror to be a conduit for humanistic intervention in the bureaucratic mechanisms of the legal process, (1) we cannot count on an anticorruption orientation to automatically emerge from one’s identity because of the possibilities of false consciousness, coercion, or lack of confidence, and (2) the anticorruption function of the jury includes particular tools that are most clearly understood in the context of the institution of the jury, separate from particular identities. If we collapse orientation into identity when thinking about peerhood, we miss the opportunity to think about what individuals must learn about being jurors—their rights, responsibilities, common mistakes, and the role of unconscious bias—because we assume they either already know about them or that jury service will be an intuitive process. While social science research has shown that racially diverse juries deliberate longer, ask more questions, and are more likely to acquit than all-White juries, this should be seen as a promising argument for the diversity of juries, but even more can be done to fulfill the function of a jury of peers. 46 The skills of judgment actualized in the jury are not solely intuitive. Understanding one’s role as a juror in the particular institution of the legal establishment and the patterns of mistake and bias jurors face requires education and reflection. Some of this emerges through racially diverse juries, but some does not.
On the Education of Jurors
Having juries that better reflect the communities of defendants would be significant advancement in the effective functioning of the jury system, yet more comprehensive civic education is required for citizens to be the kinds of jurors defendants need in the courtroom. Currently, it seems that only some portion of high school students have any training in civics, and whatever information high school and college students know about juries is primarily historical, not practical, and their education does not focus on the skills they need to be responsible jurors, such as skills of attention to bias, interpersonal communication, and statistical understanding. Additional training in the form of community workshops would fill this gap and could communicate to potential jurors the nature of the task and the range of discretionary powers they have in a format that includes the risks of mistakes and bias.
The Juror Project, founded by William Snowden, a former public defender in New Orleans, is an example of such a workshop. 47 In 2018 I attended a workshop held at the Urban League in New Orleans on a Thursday evening and, over the course of an hour, Snowden gave a brief history of the jury system and included the ways people of color have been prevented from being seated as jurors. He simulated the process of voir dire and gave examples of how the prosecution and defense attempt to uncover bias in potential jurors and talked about how the dynamics of racially diverse juries affect the legal process. Many people in the room, mainly Black professionals in their 20s and 30s, were critical of the criminal legal system but seemed to leave the workshop thinking that jury duty was an unusual opportunity for intervention on behalf of others in their community. They were more aware of their competence to serve and the costs of them avoiding the job. One woman talked about a wrongful conviction in her family and how the workshop gave her hope about a path for citizen involvement going forward. While the Juror Project does not put forth any specific agenda or discuss the controversial power to nullify, Snowden’s workshops provoked resistance among local judges and prosecutors who were unhappy that it existed. 48 The fact that this type of civic education would be seen as tainting the jury pool gives a clue as to how threatening a more ambitious form of juror education may be to those repeat-players in the criminal legal system. It also suggests that it is badly needed.
A jury of one’s peers is the best way to ensure that the defendant will be judged by people who are not repeat-players in the legal system and who can protect against the inhumanity that blind instrumental-rationality may entail. The jury is and should remain the least rationalized component of the legal system—namely, the component least marked by goals of technocratic efficiency and replicable outcomes; this allows it to retain some necessary connection to the communitarian ideals of its earlier instantiation. Jurors are in a unique position to recognize the humanity of the defendant and incorporate compassion into their decision, alongside other ideals of the justice system. To see oneself as a peer of the defendant is to value the face-to-face component of being in the courtroom with the defendant, deliberating with others about the circumstances of the crime and then offering a verdict. Without racial, gender, and class diversity in the jury box, attempts at justice in the service of anticorruption will be hobbled because of a lack of customary knowledge and a lack of appreciation of the experiences of the defendant. At the same time, a racially diverse but overly deferential jury will not be able to complete its function. The history of jurisprudence about the integrity of the jury reveals that the Supreme Court is much stronger at identifying the problem of juror exclusion, evident in Flowers v. Mississippi, than at putting forth a robust ideal of what constitutes a jury of one’s peers. This is work that the Court cannot do; we must, as so often happens with the work of politics, do it ourselves.
Footnotes
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
