THE OPEN MIND
Host: Richard D. Heffner
Guest: Colleen McMahon
Title: The Jury Project
I’m Richard Heffner, your host on The Open Mind. And some months back, when Joyce Purnick wrote a particularly touching and quite positive piece about jury duty in The New York Times, entitled “A Few Days on Court Jury Duty Isn’t Always a Trial,’ I wrote this fine journalist complementing her on such an upbeat, uplifting approach to our civic duties, suggesting that after I, in turn, served as a juror in a few weeks, we ought to do a program together in support of the jury system. And I trust that someday we shall do just that.
But in fact, my jury experience turned out to be so darned awful, so frustrating and disappointing, that singing praises had better wait just a bit. Instead, I want to talk about reforming the system, about how to make it much, much better, not just in one state of our union, but everywhere in America, to the end that we can all someday echo Joyce Purnick’s version of jury service when she said, “It can actually make you feel good about judges and D.A.’s. it can reinforce an oft-challenged belief in the common sense of one’s fellow citizens. It can give you a sense of pride in a criminal justice system that, however flawed, remains society’s noble measure of right and wrong.”
Let’s start then in New York, start with The Jury Project. A March 1994 report of a panel of 30 distinguished Americans chosen by Judith Kaye. chief judge of New York’s highest court, and led by its indomitable chair, Colleen McMahon, partner in the Paul, Weiss, Rifkind, Wharton & Garrison law firm. First I’ll ask Ms. McMahon what she thinks most important about her committee’s labors and about its report to Chief Judge Kaye. What’s number one?
McMAHON: Number one is that we attacked the project from the perspective of the juror. There are a lot of players in the courthouse drama. You have the people who work there every day: the judges, the clerks, the administrators, people who make the system operate behind the scenes. Like the TV crew. You have the lawyers and the litigants who come into court, who perform, who are the central actors in the drama, and who really have something at stake in the individual case. And they’re all insiders, in a way.
And then you have the jurors. The jurors are outsiders. Citizens who have nothing whatsoever to do with either the case or the court system. We invite them in. We ask them to come to a strange and unfamiliar place. And we ask them to suspend their normal lives for a period of time so that they can adjudicate disputes, be they criminal or civil, between citizens of the state, or citizens and the state. And it’s an incredibly difficult thing that we ask of them. It’s almost a rude thing that we ask of them. It’s an intrusion, a tremendous intrusion into their lives. And no one had ever looked, in this state anyway, at jury service from their perspective. What’s the problem here? What’s wrong? Why do so many people view this as something to be evaded if they can’t avoid it, an avoid-at-all-cost kind of thing? And precisely because we were charged with the responsibility of viewing every aspect of the jury system from the jurors’ perspective, I think that what we did was tremendously important, and has a real chance of starting us down the road to reforming the system to make it both effective for the people who are in it and more juror-friendly for the people who we invite in from the outside.
HEFFNER: That was March 1994. July 1994 this citizen went down as a juror and found, I guess, all the things that you’re talking about. When can we hope for something different?
McMAHON: Well, Richard, I almost want to ask you what you found.
HEFFNER: Well, I could go through your own report.
McMAHON: And tick them off.
HEFFNER: And tick them off.
McMAHON: The clerks were rude.
McMAHON: There was no place to sit.
McMAHON: You sat in a room day after day after day, pretty much doing nothing. Eventually somebody called your name. You marched into a room. There was no judge. Were you on a civil side or criminal side?
McMAHON: Civil side. So there was no judge in the room. Just some lawyers. They began asking you a lot of questions. A lot of questions. They asked you about this and that and the other thing. And they asked you if you could be impartial, and you said, “Yes.” And they went back into a corner and talked and they said, “Aw, we don want him.” And you were out of the room. Right?
HEFFNER: No. Wrong there. Wrong there.
McMAHON: Okay. Did you get on a jury?
HEFFNER: No. But because I eventually felt, though initially I said yes, I could be, I began to wonder about whether, yeah, I thought in a criminal case I could be impartial, but not in a civil case, because I had been too closely involved myself, no so much to make them dissatisfied. So that I gained great respect for the lawyer players in the game.
HEFFNER: I must say there were three lawyers in both of the voir dires that I participated in. Six of them were excellent.
McMAHON: You actually had a better experience than a lot of people who go in for jury duty in Manhattan. Because you went to two voir dires, in what period of time, a week?
HEFFNER: Two days.
McMAHON: You went for two voir dires in two days?
McMAHON: I have a hard time feeling sorry for you. There are people who sit there for two weeks and never go to a voir dire.
HEFFNER: Okay. Now, why is this the case. Why did it take until March 1994 for there to be such a commission, and why does the fact remain that months after the commission, the situation was, in your terms, not very different?
McMAHON: Well, first of all, it’s not totally fair to say that there hasn’t been a commission like this before. There was a study done in 1984. Now, the question of why it languished in the bottom of a desk drawer. It was not as comprehensive a study. Why it languished in the bottom of a desk drawer, I don’t know. But it was not a very high-profile commission. When Judith Kaye became the chief judge of this state, her first priority was to do the jury project. It was the one thing she came into office knowing that she wanted to do, and she was determined that it would be trumpeted everywhere. So that we couldn’t possibly expect that our work would be done in a vacuum.
HEFFNER: Yes, but you say, you trumped my ace about having been done before. But then, of course, I realize that in the preface to your report you make the point that it was way back in 1930…
McMAHON: Oh, yes.
HEFFNER: .. .that the Columbia Law Review published an article relating to jury reform, and you ticked off many of the same things that you had to tick off more than a half a century later.
McMAHON: And that’s appalling. Now, what is it within the courts system to change, and is it going to change? A number of things have changed already. For example, there’s a section of the report that deals with what’s called the ‘permanent, qualified list of jurors” that we use in 61 out of 62 counties in New York. It’s a way of making life easier for some very overworked jury commissioners. If you’ve already qualified for jury service, if your name came out of the computer and you’ve already qualified for jury service, they put you on a list and they just call you over and over and over and over and over again because they don’t have to re-qualify you. They have too much work to do. So it makes life easy for them. We recommended abolishing the permanent, qualified list, even if it makes more work for the jury commissioners, because it’s not fair to the people who are on that subset list. It’s a highly technical point, but it affects a lot of lives. If you’re on the list in Manhattan, every 24 months you know that a jury notice is going to come. Your next door neighbor may not be on the list and never gets a jury notice.
Now, we recommended that that change be implemented. It has been. Beginning January 1 in every county but two – and Manhattan and the Bronx present special problems, so it’ll be phased in Manhattan and the Bronx – in every other county in the state, the permanent, qualified list is history. It’s a thing of the past. We won’t have it anymore. We recommended that there be a pilot project on attorney-supervised versus judge-supervised voir dire on this civil side. Several models for that pilot project are, even as we are sitting here speaking today, in front of the administrative board of judges of the State of New York. That pilot project will be implemented.
Now, there are things that have to go to the legislature. The legislative package will be submitted to the new legislative session in January. Some of those things were the kinds of things that were mentioned in the Columbia Law Review article. An end to the mandatory sequestering of jurors in every criminal case in this state. An end to the tremendous number of exemptions, occupational exemptions for this one and that one and the other one that really weed a lot of white-collar people out of jury service altogether, and make it look like there’s almost a caste system of lucky people who don’t have to serve, and unlucky peons who do have to serve. Raising jury fees from the ridiculously inadequate $15 a day that we now offer, to $40 a day, which is what they paid in the federal system. Those all have to go to the legislature. And every time packages of reforms like these have come before the legislature, it’s been like clockwork almost, every two or three years, they get lobbied away. And that’s unfortunate.
HEFFNER: Indeed, what are your legal colleagues going to do with this suggestion that judges do more of the voir diring?
McMAHON: Well, the voir dire is less in the control of the legislature and more in the control of the court system, and there’s no question that, well, some of my legal colleagues think that lawyer-supervised, non-judge-supervised voir dire on the civil side contributes to a lot of ills in the system on the civil side, and I can tell you that jurors feel that way because we got that through the mail, and we got that through the public hearings. They’re very resistant, most trial lawyers in this state are very resistant to the notion that a judge would be supervising voir dire. It was for that reason that we recommended pilot projects. It’s for that reason that the issue will actually be studied in a practicum, in a courthouse, in courthouses in several areas of the state, so that we can, once and for all, dispel the myth, either that judge-supervised voir dire doesn’t work, or that judge-supervised voir dire takes the judges away from other jobs, or that judge-supervised voir dire is the greatest thing since sliced bread. One of those things is a myth.
HEFFNER: How effective would it be – and I’m really talking about effectiveness and efficiency now – if we were able to leave behind us this devotion to the jury system, and function basically in terms of guilty, innocent, in terms of awards in courts by judges?
McMAHON: You know, I’ve thought about that a lot, because we are, in the legal profession, seeing a move away from in-court resolutions of civil disputes into that they call ADR, alternative dispute resolution, which means arbitration, which, if you get behind it, really means that somebody sits effectively as a judge and decides how to solve the problem. It’s not that different from litigation in most circumstances. But there’s no jury, and there’s no appeal. And people are liking that idea, that concept.
HEFFNER: Do you?
McMAHON: You know, I do and I don’t. Because I think of the jury cases that I myself have tried. And as an advocate, I can sit back and think about every one of them and say, “You know, my client got a fair trial. And these six people, or these 12 people, they came up with the tight answer. They may have done it for the wrong reason, or it may not be the answer that my client likes the best, but if I’m really objective about it, they understood what was happening, and they came up with the right… They did justice. They did justice.”
HEFFNER: What’s that got to do with our legal system?
MCMAHON: It ought to have everything to do with our legal system.
HEFFNER: Well, by using the word ought,” you’re suggesting that it doesn’t.
McMAHON: Well, you know, it’s very much under fire today. It’s very much open to question when you have, oh, a situation like the situation in California with the Menendez verdict, which has spawned a lot of shows like this talking about is the jury system dead, is it passe? You have to start to wonder if the jury system has gone past its social utility. But I guess I come down on the side of it really hasn’t. And for people who want recourse to a jury of citizens, of impartial citizens, it’s probably the best thing going. Now, we’re not going to get rid of it.
McMAHON: We’re certainly not going to get rid of it without a constitutional convention at both the state and the federal level.
HEFFNER: Well, I wondered, as I read your report, if I had been a fly on the wall, would I have heard anguished comments on the part of your colleagues on the commission about the whole business of the jury system. I mean, is this something, you and I are talking about, and you say there are others around the country. But is this an item to be considered, or did you just take it for granted your mission was to do something about the jury system in this particular state?
McMAHON: Very much the latter. Did it never come up? Oh, it came up. And people would make comments and people would talk. But we had a mission, which was to assume a constitutionally-mandated jury system, to try to figure out how to make it work better for jurors without compromising the rights of the litigants.
HEFFNER: Okay, now, you said before you were of two minds. Let’s give you only one.
McMAHON: I only get one mind? (Laughter)
HEFFNER: Only one mind. You’ve got to make a choice, jury system, and you…
McMAHON: I’d keep the juries.
HEFFNER: You would.
McMAHON: I’d keep the juries.
HEFFNER: Okay. Efficiency and effectiveness?
McMAHON: I, you know, as long as I had the right to opt not for a jury in any case, which anyone can do in any case, it’s even possible to opt, to go to a judge in a criminal case, although the prosecution then has something to say about it. But it is possible to say, “Yeah, I’ve got a right to a jury trial, but I’d rather a judge tried the case.” As long as you have that option, if you want recourse to a jury, I would have it available for you.
HEFFNER: Let me ask whether, you focused here on New York because your mission was, you were appointed by the chief judge of the State of New York. Do we find these kinds of problems elsewhere? Someone watching this problem, perhaps in California, today, perhaps in Texas, perhaps in Massachusetts, elsewhere, they find the same kinds of problems?
McMAHON: You find some of the same kinds of problems everywhere. You will not find the problems that jurors identify with the unsupervised voir dire, because voir dire tends to be judicially supervised almost every place else. But you will find the problems with the inefficient bureaucracy, you will find the problems associated with dilapidated courthouses. Not everywhere, but there are pockets everywhere in the country, you know. Courthouses in many large, urban centers are not the way they ought to be. You will tend not to find all of the administrative and bureaucratic quirks that we have in New York. And there’s a greater tendency, I think, on everybody’s part to be willing to experiment.
HEFFNER: Greater tendency elsewhere.
McMAHON: Massachusetts, for example, has abolished all occupational exemptions. They have even abolished the occupational exemption for judges. And they’ll let judges sit on juries. We couldn’t go quite that far. All occupational exemptions. And, I’m sorry; they’re trying cases with fair juries in Massachusetts. It is possible to have a jury system that doesn’t say, “If you have a medical degree or a law degree, you don’t have to serve on a jury. But if you’re just, you know, a guy who works in a factory, you do have to serve on the jury.” And it’s important that our jury system make that change. It’s important that people see and feel that this burden of citizenship is conferred on everyone, because everyone is entitled to the benefit, everyone is entitled to invoke his or her right to a jury trial. And with the benefit should come the burden. That’s an essential element of fairness, from where I sit.
HEFFNER: The question of cameras in the courts doesn’t really surface in this, but is it a question that jurors might be concerned about?
McMAHON: Yes, although in the jurisdictions where they allow cameras in the courts, jurors are always told in advance, “Don’t worry, the camera will never be trained on you. You will never be on camera. You don’t have to worry about the camera.” That’s the rule. I think cameras in the courts are less of an issue for jurors and more of an issue for judges and lawyers, quite frankly. It’s been a non-issue in New York, because until very recently we haven’t really had cameras in the courts in New York. And I think that there are jurors who would be bothered by being on camera, particularly in criminal cases, because there are people who are terrified to have the section of town where they live or the identity of their child’s school or their husband’s or wife’s office address be revealed in a voir dire. So there’s a safety issue there, particularly on the criminal side.
HEFFNER: Well, isn’t there another question, though? Aren’t there pressures that are likely to come from the fact that there is another juror sitting looking over the shoulders of the jurors in a particular case, whether it’s civil or criminal?
McMAHON: Well, you know, possibly. Because I think there would be pressures that would be brought to bear on me as a lawyer, as a trial lawyer, knowing that the reviewers were sifting back in the studio critiquing my performance during gaps in the trial. I know that would have an effect on me, so I suspect it would have an effect on jurors. I think the greater effect of cameras in the courtroom is kind of an insidious effect over time. People who watch courtroom drama on TV, real courtroom drama, not LA Law – I’ll take it back – people who watch LA Law, this happens too, they develop expectations of what should or should not happen in a court. And when you have something like a Court TV, where there are – I’ve been a commentator on Court TV – and people see other lawyers or experts critiquing performances and saying, “No, it should have been done that way,” or, “I think I would have done it another way,” and those people get on a jury, they may find themselves bringing that bit of knowledge that they have, or think they have, to bear on the process that they’re supposed to be adjudicating as though really coming out of a vacuum. I have some concerns about that. That’s not an immediate, “Oh, my gosh, I’m a juror in this case, I’m in a trial that’s on a camera” issue. That’s more insidious, and it develops overtime. You have the telegenic juror.
HEFFNER: But isn’t that… What you almost said now, “I’m a juror, I’m on trial. Mustn’t that be the case in a very popular case, in a case that’s very well publicized? We’re now sifting here…
McMAHON: The Simpson case.
HEFFNER: .. .in October ‘94 and the O.J. Simpson case will gather momentum. I would think that juries there would be very much concerned that their performance, guilt or innocence, or whatever, will be judged by this court of public opinion.
McMAHON: You know, I have sort of a different reaction to the O.J. Simpson case. I have a great fear of volunteer jurors. That is, people who are really eager to serve on a particular jury. And I don’t really know what’s going on out in Los Angeles, because I don’t watch it on television, and I glance at the newspaper articles.
HEFFNER: On principle?
McMAHON: Yes, on principle. I don’t want to watch the O.J. Simpson trial on TV. I have more important things to do. But what I’m concerned about are people who have a, they’ve developed an attitude, and they’re trying to find ways to get onto this extremely well-publicized jury. I think that’s more of a danger in this particular case, in the Simpson case, than the other, that is, people worrying, “Oh, my gosh, I’m going to be second-guessed wherever I go because it’ll be on TV, and then they’ll know who I am and what I decided.”
HEFFNER: You know, coming to the end of our program, we have a few minutes. But I just want to come back to this point that, the personal observation but I suspect that you share it, that as I sat waiting to be called, and then waiting to serve – I never did serve, though I had before – I developed a tremendous respect for the people sitting next to me, a tremendous respect for what I would think would be, in the final analysis, their fairness, their sense of responsibility, their real determination to do the right thing.
McMAHON: I think we lawyers are almost too clever by half who are involved in the voir dire process, civil or criminal. We discount the tremendous willingness of people to serve, and their desire to do the right thing. A major focus of the Jury Project Report is that we should design the system so that the maximum number of people who get a notice in the mail actually sit on a jury. Jury service is like nothing else so much as childbirth. It is a pain in the neck. To get this thing, to get off work, to go down, to sit, to do this, to do that, to be herded in the hall. If you sit on a jury, you forget it all. And suddenly it’s become a wonderful experience. And you’re glad, you’re proud. They all say they’re proud to have participated. And we must have talked to six dozen jurors who said exactly what you just said. “I developed such respect for the people who were in the room with me. They were really trying.” And I think we’re so interested, we lawyers are so interested in looking for that angle, that little edge, that we tend to discount the desire of people to do the right thing. And as I said, in my own experience, if I make myself be objective about it, I think that the juries that I have appeared before have done the right thing.
HEFFNER: Well, Ms. McMahon, then why, really, in the final analysis, the question is: Why has this become a lawyer-friendly, a judge-friendly, a bailiff-friendly, a court-attendant-friendly system, but not a juror-friendly system?
McMAHON: Well, because nobody’s there to talk for the jurors. Nobody’s there to speak up for the jurors. In that sense, the citizens of our state are very fortunate. We have a chief judge who cares about the jurors. And she will speak up for the… She will be in that legislature in January testifying on behalf of jurors for a jury reform package. I have no doubt that that’s going to happen, that the will be there. And if it doesn’t pass this time, she’s going to go back again and again and again. She cares passionately about this. The jurors finally have a spokesperson.
HEFFNER: You talk about the legislature. Legislature is made up largely of lawyers.
McMAHON: Lawyers. I’ve heard this.
HEFFNER: So, it really has to do with you and your colleagues, right? You and your professional colleagues.
McMAHON: Yes, and the bar does need to get behind jury reform in more than a lip-service way. It really does.
HEFFNER: Do you think it will?
McMAHON: Yeah, actually, I do. There are things I would like to see that I’m pretty sure won’t happen. There are things that I would like to see that I wasn’t able to sell to my colleagues on the commission. So there are things that I would like to see that are recommended in the report that will emerge only in modified form.
HEFFNER: Colleen McMahon, thank you for joining me today. You must come back another time and tell us about what the things were that you wanted to have done that you couldn’t convince your fellow commissioners of.
McMAHON: (Laughter) I’d rather come back in the Spring and tell you that the legislature has passed some wonderful jury reforms.
HEFFNER: Good. Thanks for joining me today.
McMAHON: Bye, bye.
HEFFNER: And thanks too, to you in the audience. I hope you join us again next time. And if you’d like to share your thoughts about our program today, please write: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts, send $2 in check or money order.
Meanwhile, as an old friend used to say, “Good night, and good luck?