THE OPEN MIND
Sunday, April 21, 1957 MODERATOR: Richard Heffner
GUESTS: Florence Kelley, Judge Hyman Barshay, Morris Ernst
ANNOUNCER: THE OPEN MIND, free to examine, to question, to disagree. Our subject today, The Jury System: Is Justice Done? Your host on The Open Mind is Richard D. Heffner, author and historian.
MR. HEFFNER: G.K. Chesterton once wrote that he would trust twelve ordinary men but could not trust one ordinary man. He was referring, of course, to the jury system and, in a sense, the jury system is on trial today here on The Open Mind. A good many of us who have served on juries and who have thought about the consequences of putting your faith and your fate in the hands of twelve men good and true, feel that there’s something to be desired in the way of reform of the jury system. Over the past few years a good number of members of the bar have been concerned with proposing changes in the system.
Today we’re going to be talking about the jury system and we were reminded of it by seeing some weeks ago the preview of a motion picture called, “Twelve Angry Men”.
1st Character: Brother, I’ve seen all kinds of dishonesty in my day, but this little display takes the cake. You all come in here with your hearts bleeding all over the floor about slum kids and injustice. You listen to some fairy tale. Suddenly you start getting through to some of these old ladies. Well, you’re not getting through to me. I’ve had enough.
2nd Character: What’s the matter with you guys? You all know he’s guilty. He’s got to burn. You’re letting him slip through our fingers.
3rd Character: Slip through our fingers? Are you his executioner?
2nd Character: I’m one of ‘em!
3rd Character: Perhaps you’d like to pull the switch.
2nd Character: For those kids? You bet I would!
3rd Character: I feel sorry for you. What it must feel like to want to pull the switch. Ever since you walked into this room you’ve been acting like a self-appointed public avenger. You want to see this boy die because you personally want it – not because of the facts. You’re a sadist. (Sound of scuffling.)
2nd Character: I’ll kill ‘im! …kill ‘im!
3rd Character: You don’t really mean you’ll kill me, do you? (Sound of door opening, jury being seated at table.)
4th Character: I suppose somebody has to start off again.
5th Character: I beg pardon.
4th Character: Beg pardon. What are you so polite about?
5th Character: Fo r the same reason you’re not. It’s the way I was brought up. This fighting – that’s not why we are here – to fight. We have a responsibility. This I have always thought is a remarkable thing about democracy. That we are – what is the word – notified, that we are notified by mail to come down to this place to decide on the guilt or innocence of a man we have never heard of before. We have nothing to gain or lost by our verdict. This is one of the reasons why we are strong. We should not make it a personal thing. Thank you.
MR. HEFFNER: A person could come away from this picture with contempt for the jury or one could come away with an added faith in the system. Today we want to discuss this system, and so now let me introduce you to my distinguished guests.
My first guest is Judge Hyman Barshay of Kings county court here in New York. My second guest is Miss Florence Kelley, Chief of the Criminal Division of the Legal Aid Society. My third guest is Mr. Morris Ernst, well known attorney.
Now suppose I begin this program today, Judge Barshay, by repeating the quotation from Chesterton. He said that he would trust twelve ordinary men – a jury – but he wouldn’t trust one ordinary man – a judge. What would be your comment on that?
JUDGE BARSHAY: I think time has proven that Mr. Chesterton was right. I have been a practicing lawyer a prosecutor and a judge, and I have come to the conclusion that the best system of justice within the law can be obtained by determination of a question of fact by twelve men who come to the court with different experiences in business, in education, in emotional background, in cultural background. I think their composite use will in the ultimate, with rare exception elicit the truth far better than if one man is permitted to make the decision.
MR. HEFFNER: How do you feel about that, Miss Kelley ? Mr. Ernst?
MR. ERNST: Go ahead, Florence. She’s an expert.
MISS KELLEY: Well, I agree with Judge Barshay. I must say that a jury can surprise you. I don’t mean that I think that they’re wrong, but I’ve had bad juries come out with what I thought was the right verdict and often even for the wrong reason. But by and large, I think the jury system is a real safeguard to every defendant. And what concerns me is not the fact that so many co-members of the bar are thinking of changes in the jury system, but so many of them are talking abolition of the jury system.
MR. HEFFNER: Mr. Ernst?
MR. ERNST: I am confused about our culture at the moment because at Nantucket, where I go summers and have my roots, you can’t get a jury in a criminal case or any case where some juror is not related to a witness, an attorney, or party to the suit, whereas in a big city like New York we have a totally different jurisprudence. In effect, if a juror has ever heard of the defendant or the case, he’s likely to be excused just because he’s familiar with the situation. So we really have two different streams of thought.
MR. HEFFNER: Supposing we limit ourselves today to the second stream – the jury in a large metropolitan area . I suppose this in a sense is a divergence from the traditional concept of a jury.
MR. ERNST: Originally it was people from the vicinity who knew the character of the defendant. I should think in the big city the present distortion – and I’m entirely in agreement with the jury system as opposed to any one judge in a criminal case – or the trouble is due to the press, and the influence of the press before trial, which is making our people doubt whether the jury can do an objective job. Plus one other factor. Leadership of the bar is composed primarily of people who do not get much concerned about liberty. They’re much more interested in property and wealth. So the leaders of the bar, by and large, never get into a criminal court. And so, when they lead a bar and the public in the direction of abolishing the jury system, I think the public ought to be on its toes and be very wary.
MR. HEFFNER: Well, do you think they’re distinguishing between the criminal and the civil cases – that they’re thinking in terms of civil cases?
MR. ERNST: If they only made their distinctions clearer, I’d be less troubled. They’d like to see the jury abolished of course in all negligence cases as would, I think, any attorney for a big insurance company.
JUDGE BARSHAY: That’s where the battle is taking place. I’ve never heard any responsible authority, either from bench or bar, who suggested the abolition of the jury system with respect to criminal trials.
MR. HEFFNER: And yet – excuse me, Judge Barshay – it seems to me that in his book, “Courts on Trial” Judge Jerome Frank came very close to suggesting that even in criminal cases …
JUDGE BARSHAY: Close, yes. But no one has suggested the elimination. Of course that would require a Constitutional amendment. I don’t know whether many people know the Constitution today permits a defendant in a criminal case to waive trial by jury. But in the four years that I’ve been on the County bench only one lawyer has seen fit to make the application. I don’t know what’s happened in General Sessions. I don’t think many more – maybe just a few more, Florence.
MISS KELLEY: I don’t think so. No case comes to my mind right away at all, but that’s no proof that there hasn’t been. Of course in the Federal Courts it’s permitted to waive a jury. It doesn’t mean that you’re not entitled to a jury, but you can waive one, and I think it’s done with a little more requency.
MR. ERNST: I have great curiosity. I must find out what happened in that one case.
JUDGE BARSHAY: In that one case Judge Sobel found for the defendant.
MR. ERNST: I’m glad of that.
MR. HEFFNER: The lawyer was right. Let’s limit ourselves just for the moment to civil cases. Do you feel that the jury should be eliminated or severely limited in civil cases? Mr. Ernst, what would you think?
MR. ERNST: I have no great concern about the civil cases today, the negligence cases. If I had my way I’d take them all out of the courts – these accident cases – treat ‘em like Workmen’s Compensation, which means no jury and just masters or referees.
MR. HEFFNER: Why ?
MR ERNST: Well, because I think nobody gets injured by an automobile on purpose anymore than I think any workman malingers on purpose, or gets in an accident on purpose.
MISS KELLEY: It’s not actually been unheard of.
M R. ERNST: Oh, no, it’s not unheard of. But by and large I’d take the entire process out of court the way we do Workmen’s Compensation. I think we’ve tested out the ability of the administrative machinery to make …
JUDGE BARSHAY: You’ll find the vast majority of the bar against your hearing.
MR. ERNST: That’s right. You see, the negligence cases and the great numbers of them that appear on the calendar have sort of congested our court. We haven’t kept pace. And so to speed up justice, a great many men, like Judge Peck and Judge Sidney Foster of the Appellate Division have suggested the elimination of the jury system and that the cases should be tried by a judge, but the vast majority of responsible bar has opposed it. I’m for the bar. I don‘t think it should be eliminated at all. I wonder how many people really know the few cases percentage-wise that actually are decided by a jury. Only five per cent of the cases that are tried, are disposed of, are actually decided by a jury. And that’s a very small percentage. The tendency is to speed up justice, but in the speeding up of justice, of the administration of the law, we may dispense with justice.
MR. HEFFNER: But why is it that there are those criticisms that the jury tries the lawyers rather than the litigants? Why does Judge Frank, for instance, say that in any jury of twelve good men and true, the 13 th is prejudice perhaps, and the 14th is sympathy? In this film clip that we just saw, quite clearly there was personal animus involved. Why do we assume that one man – a judge – cannot remove himself from his prejudices and his feelings, but that twelve men can?
JUDGE BARSHAY: Now you’re speaking of a criminal case.
MR. HEFFNER: In “Twelve Angry Men” a criminal case, but if there are objections to the jury system in civil cases, wouldn’t the same objections carry over to the criminal trial?
JUDGE BARSHAY: I haven’t heard it. I don’t know. “Twelve Angry Men” is a great picture from an entertainment point of view. You can readily realize that the entertainment point of view is not the view that we meet in court. The selection for a jury may result in the precluding of a bigot sitting on a jury. The presence of a bigot in a jury room may cause him to be afraid to express his prejudices in the jury room as he did in this picture. He may be timid, he may be outnumbered, he may be persuaded by the other people. You know, this picture, “Twelve Angry Men” – while it’s excellent entertainment – shows one weakness to me. In all the years that I’ve tried cases I’ve never had one juror persuade eleven. It would be easy for eleven to persuade the one. And the weakness in this picture is the second statement made after they get into the jury room when Mr. Fonda gave a great portrayal. He said, “I vote Not Guilty.” Eleven said they vote Guilty. And his next statement, without giving any reasons for it, was this. He said: “You gentlemen take one more vote. If eleven of you are still for Guilty, I will change my vote, and vote Guilty.” He took that chance. Of course that could never happen in a jury room in real life.
MR. HEFF NER: Why?
JUDGE BARSHAY: Because even if a man has reasons for voting Not Guilty and he would express them as quickly as he could with great vigor and with great determination, he just wouldn’t leave the chance that the passing of a minute, without ascribing any reasons…therefore, eleven men would all of a sudden change their vote. In this picture, one man did change the vote so he gained a friend. But that’s the theater; that’s not real life.
MISS KELLEY: I don’t know of any case in which one juror changed the minds of the other eleven, but I have known of a case where one juror influenced enough of the jurors so that it ended in a hung jury and there were many that were going to vote for acquittal. It was never tried again, which in effect almost accomplished the same thing.
MR. HEFFNER: But what about the recent cases – criminal cases – in which we found that he criminal has been incorrectly identified or the witnesses swore incorrectly, or what have you, and we found later on that the wrong person went to jail?
JUDGE BARSHAY: That used to happen often. As a prosecutor I convicted three men completely innocent of the charge and they were sent to prison by the presiding judge for a term not less than fifteen nor more than thirty, and every court affirmed the conviction, and thirteen months later by the merest accident Detective John Broderick came upon the forth man who was being sought and Mr. Broderick didn’t know a single fact about my case. My case was in Brooklyn. But the moment this man saw Mr. Broderick, who had a reputation for being a very vigorous law enforcer, he was frightened and he said, “Please send for Mr. Barshay. He’s convicted three innocent men.” And then Mr. Broderick phoned me and I came down and took his confession. I sent for the identifying witness. He still persisted that the three new defendants were not the ones that held him up. But the facts conclusively proved that they were absolutely innocent and were praying for me to move for their discharge. And then I tried the other three and this defendant, who was arrested by Mr. Broderick, and they were all convicted and sent to prison. That happens very often.
MR. HEFFNER: You say it has to happen.
JUDGE BARSHAY: It’s unavoidable.
MR. HEFFNER: You think it will happen less often with a jury than with a judge?
JUDGE BARSHAY: It happens perhaps more frequently with a jury. A judge might have more experience, but he’s forced to submit the case to the jury if an issue of fact is created. I have taken the bull by the horns many times since that case that I told you about, and unless the identification is so unshakeable that I feel it ought to go to the jury, I won’t send it to the jury. And that doesn’t always meet with the approval of either the District Attorney or the complaining witness. But we have those cases. Mr. Warshauer has written a book including 93 identifications which resulted in conviction by a jury, but all the persons proved to be innocent.
MR. ERNST: I’d like to say that I think the percentage of error in Canada and England is much lower. Because in our culture it is a game between the prosecutor and the defendant’s attorney. And there’s no desire for justice. They talk about it at the bar associations. But in England, you know, they say the Crown can’t win and the Crown can’t lose. See what this means. The prosecutor who would announce his percentage of convictions in England would be disbarred. This means that there’s no inducement, no incentive for a prosecutor to hold a man incommunicado to get a confession, to use a rubber hose, to have the police hound people. It doesn’t do him any good. Moreover, he turns over all evidence of innocence to the attorney for the defendant. Now in this kind of a jurisprudence you’ve got a much better chance of avoiding these errors.
MR. HEFFNER: With the jury or without?
MR. ERNST: Either way. Except I would say that on your original question of prejudice and sympathy entering in, I just think it enters in much more acutely where you have one person to gamble on. You know that if I have a coin and I’m betting you that the next ten tosses will be all heads, the odds are a thousand to one against me. But I could bet you even money that out of a thousand tosses I’ll get ten of them all heads in succession. In other words, if the class or group is big enough, I reduce my odds.
MR. HEFFNER: Yes, but the man who is aware of the possibilities of tossing the coin once is probably g oing to be considerably more responsible in his decision.
MR. ERNST: The judge? Yes, but you see I’d rather gamble on the lowest common denominator of twelve prejudices than the responsibility of one human being.
MISS KELLEY: I’ve been trying to say something. And that is: sure, there’ve been mistakes in the jury system, and we have to accept them, but I don’t think that you test the value of a system entirely by the mistakes. You don’t condemn it outright because you admit that under the system there have been mistakes made.
MR. ERNST: What’s the alternative?
MISS KELLEY: That’s right.
MR. HEFFNER: Granted. However, the British have come up with something of an alternative. Haven’t they been tending in recent years to limit in criminal trials – I’m passing the civil trials – but haven’t they been tending to limit the use of juries even in criminal trials? Is that not true?
MR. ERNST: Only in civil cases.
MISS KELLEY: I don’t know either.
MR. ERNST: They’ve abolished the Grand Jury.
JUDGE BARSHAY: What makes you think, sir, that a judge can’t make mistakes? Who is a judge? A judge is a practicing lawyer who is a very fortunate man in getting up one morning and finding himself either appointed or nominated for office. It’s a matter of luck, it’s a matter of geography, it’s a matter of politics. If I lived in a place other than Brooklyn, I doubt whether I’d be a judge. If I lived upstate, I doubt whether I’d be a judge.
MR. HEFFNER: That’s very modest of you, Judge Barshay, but I think the fact is that if you hadn’t established your reputation as an excellent lawyer and a very responsible member of the bar, this stroke of luck would not have occurred. And I think that you have a very different attitude toward the judicial process than, let’s say, the twelve men who sat in the jury room when I was on a jury. As you come to this question with your own backgrounds, I have to come to this with the prejudice of a lay person who has sat on a jury. And I question whether I would be so happy about having my fate in the hands of twelve men and women rather than in the hands of a responsible judge.
MISS KELLEY: Were you sitting on a criminal case?
MR. HEFFNER: No, this was civil.
JUDGE BARSHAY: You must understand that every judge is a human being. He comes to the bench with certain biases, certain prejudices, a certain background, cultural, educational, and certain training. One man is completely anti-crime; another wouldn’t hesitate, for example, to chastise a prosecutor who went beyond the ordinary duties of a prosecutor. Some judges favor the defense. One judge is learned in the law. Another judge is not. That’s why we have the greater protection of the Appellate Division and, over that, the Court of Appeals. A judge is merely a human being. He’s no different than a juror. He has been given authority which is greater than that of a juror as to the law.
MR. ERNST: If you’re guilty, which would you rather have, a judge or a jury?
JUDGE BARSHAY: I would rather have a good lawyer. (laughter)
MISS KELLEY: I agree. What some people would say is all they really want is one witness.
MR. HEFFNER: Why do you say you’d want a good lawyer?
JUDGE BARSHAY: I’d want a good lawyer to protect my legal rights. The law gives to a defendant accused of crime a great many rights. Regrettably, the art of the selection has been lost. The lawyers who would investigate the case thoroughly, who would look up the law are rare exceptions. I’m not talking about the average case that comes before us. Lawyers don’t spend the time, because economically it doesn’t pay them. They don’t show the interest. And the judge has many times had to come to the protection of the defendant and meet with the disapproval of the District Attorney. And they don’t have the experience to defend the defendant as our law intended he should be defended. You must remember the guilt or innocence of a defendant is not the issue. That’s the issue in the mind of the layman. The issue is: Did the District Attorney, upon whom there is imposed the burden of proving the defendant guilty, did he – in this courtroom, before this judge and before this jury – present sufficient evidence under the law which convinces a jury beyond a reasonable doubt to the defendant’s guilt? That’s the issue.
MR. HEFFNER: Is that the way the jury functions now?
JUDGE BARSHAY: That’s the way the jury should function. If the judge is competent he’ll see to it that the jury functions that way. He should guide the jury in that direction from the beginning to end.
MR. HEFFNER: How can he do that?
MISS KELLEY: Proper instructions.
JUDGE BARSHAY: By proper charge, by proper conduct of the trial.
MR. HEFFNER: But what happens when you get into that room after the trial is over? After the judge –
JUDGE BARSHAY: You can’t do anything beyond that.
MR. HEFFNER: All right.
MR. ERNST: With the press picking up only a part of our jurisprudence, convicting anybody who’s mentioned long before he gets to the courtroom, it seems to me you have great embarrassment with the jury system. When the press keeps on behaving the way it does before it gets to trial people are forgetting it’s the duty of the State to prove people guilty.
JUDGE BARSHAY: That’s true, Mr. Ernst. I’ve had that experience when I defended men who, in the eyes of the public, committed an infamous crime. They were highly publicized. But that could be avoided to a great extent, and the result showed it, by the selection of the jury.
MR. ERNST: As in the Hoffa crime with all these front page stories, can they conceivably get a good trial anywhere where the papers behaved the way they have in New York?
MISS KELLEY: I think this is where the judge’s duty comes in.
JUDGE BARSHAY: Mr. Ernst, excuse me. I once defended a man for murder by assignment of the court. He had been twice convicted. The public press condemned him to the point where it wasn’t safe to pass the station house at the time that he was there. It took a long time to select a jury. But in the end justice prevailed.
MR. ERNST: But this is one case. The fact that it stays in your memory.
JUDGE BARSHAY: Many lawyers could give, Sir, a similar example.
MR. HEFFNER: I would like to go back for a moment to your emphasis upon the judge’s charge to the jury. There seems to me to be some contradiction here. On the one hand you’re talking about the value of the jury system, on the other hand you’re talking about the obligation upon the judge to charge it correctly. You’re talking about the judge who speaks to the defense attorney and indicated that he is not presenting a good enough case over the objections of the prosecution.
JUDGE BARSHAY: Not just that way.
MR. HEFFNER: Maybe not just that way, but this is the judge. Why do we then put our emphasis upon the jury?
MISS KELLEY: But everything we’ve been talking about is the whole conduct of the case. It is the judge’s role as well as the role of the jury.
MR. HEFFNER: Well, why do we have directed verdicts?
JUDGE BARSHAY: That’s when the law, in the opinion of the judge, is not met by the facts. For example, the judge concludes that the facts presented do not constitute a crime within the meaning of the law as he sees it. Then he takes the case from the jury. There’s nothing for the jury to decide when he does that.
MR. ERNST: May I say what I think has confused the public?
MR. HEFFNER: Go ahead.
MR. ERNST: Some judges have been honored in our community because a jury has brought in a verdict of Guilty. This shocks me because the duty of the judge is to lay down the rules of law. And the duty of the jury is to find the facts. And when judges are honored because juries convicted or didn’t convict, then we’re in real trouble. Without mentioning names, everybody knows whom I mean.
JUDGE BARSHAY: The judge must see to it that the jury is free of prejudice, free of sympathy, free of bias, free of favor, free of fear, that they must make a decision completely independent of whether or not the District Attorney, the judge or the lawyer for the defendant or the public is pleased. If the judge does his job, I’m sure he can implant it in the minds of those jurors, their coming to a fair decision based upon the evidence. And if there’s a failure in that it’s the judge’s fault and no one else’s.
MR. HEFFNER: You feel the same way, Miss Kelley?
MISS KELLEY: Yes, I do.
MR. HEFFNER: It seems to me just as a lay person that you’re putting a great deal of emphasis upon the judge and not the jury, but thanks so much for our discussion. I think it’s probably fair to say that there’re a lot of questions concerning the jury and the jury system that haven’t been raised and some that have been raised that haven’t been answered completely today, and I hope that I’ll be able to get our panel back again sometime in the near future to discuss this problem.