You, The Jury

THE OPEN MIND
Host: Richard D. Heffner
Guest: Joyce Purnick
Title: You, the Jury
VTR: 6/15/95

I’m Richard Heffner, your host on The Open Mind. Now, last year we broadcast what turned out to be a quite compelling program with attorney Colleen McMahon, chair of the so-called Jury Project Commission appointed by Judith Kaye, chief judge of New York’s highest court, to make greater sense of the jury system. Under Attorney McMahon’s guidance, the Jury Project had done just that. And I began our program by recalling that some months earlier, when New York Times columnist Joyce Purnick had written a particularly personal and quite positive piece about jury duty, entitled “A few days on court jury duty isn’t always a trial,” I wrote this fine journalist, complimenting her on such an upbeat approach to our civic duties. Indeed, I also suggested that after I, in turn, served as a juror in a few weeks, we ought to do a program together in support of the system. Well, in fact, my jury duty turned out to be so awful, so frustrating and disappointing, that singing praises seemed to have to wait. Now enough time has separated me from that last encounter with the jury system, and so I’ve asked Times woman Joyce Purnick to come here to The Open Mind to get a little closer once again to her good feelings about jury duty, and what I’d really like my feelings to be too, even in this age of the O.J. Simpson trial.

Indeed, let me ask Ms. Purnick just what impact the Simpson jury experience has had on her own thinking about the jury itself.

PURNICK: You know, it’s suigeneris, the Simpson case, from beginning to end – if there ever is an end (Laughter) – it’s having no impact on my thinking about the jury system. It is having a big impact on my thinking about the criminal justice system and what works and what doesn’t. But I can’t draw a parallel, really, to that in my own experience; it was so different.

HEFFNER: So, you’re as much of an advocate of the jury-duty experience as you were back when you wrote that piece?

PURNICK: I loved it. I mean, I had a bad experience too earlier, a few years ago, when I was called for jury duty and I was empaneled one time, I was empaneled four times, I served ten days, and I was never called for a jury. That was terrible. I mean, it was a complete waste of time. I was never selected for a jury because I’m a reporter. Somehow, two or three years later when I was called – that was in Brooklyn; this was in Manhattan – somehow I got on this jury. I don’t know how it happened, because I’m still a reporter, still a journalist. And at the time, I was on the editorial board of The New York Times; I am now back in the newsroom writing a news column. I can only tell you that it was a gas. I loved it. It was fascinating. It was a fascinating study of human nature, it was a fascinating insight into how seriously some people took it, if not all people on the jury. And it worked, so how could I not?

HEFFNER: What was the insight? What did you come away with?

PURNICK: Well, the insight was that whatever group of people – and I sort of had this experience in meetings, I’ve had this experience in my co-op board – whatever group of people you have, ultimately the members of this group fall into categories, sort of self-selecting categories. There are the leaders, and there are the followers. There are the conservatives, the liberals, and the middle-of-the-roaders. There are the people who couldn’t care less – although in this case there was probably only one who couldn’t care less – and there are the people who get all churned up. And a group dynamic forms. Inevitably, a group dynamic forms. And a group dynamic formed in this case. And it was fascinating both to watch it and to participate in it.

HEFFNER: Now, you said it was a gas.

PURNICK: I loved it.

HEFFNER: It was a good time. But then, we’re not going to judge social or major political or other issues on the question of whether Joyce Purnick had a good time.

PURNICK: No, but Joyce Purnick had a good time because the system worked.

HEFFNER: Tell me about that.

PURNICK: So when I’m saying it was a gas, I don’t mean that I enjoyed every minute of it. A lot of it was very dull. But I’m a professional observer. And so, as I was also a participant in this case, I was freely watching it more than, the way that journalists have of sort of, you can be involved in something, but you pull yourself back a little bit and you’re the observer, even if you’re involved in it. And I was fascinated by what went on. What went on was, it was a very simple case. It was a misdemeanor, it’s the kind of case that I would have expected to be plea bargained. I don’t know why, to this day, it wasn’t plea bargained. It was a very low level bar brawl. There were no racial complications, no ethnic complications. It was two white guys in a First or Second Avenue bar, and one beat the other over the head with a bottle and he had 23 stitches, and the question was basically, came down to: Was his banging one guy over the head with a bottle self-defense or was it assault? And it was clear that it was assault. There were only six jurors because it was lower court. And it was a clear, open-and-shut case. There wasn’t a question. It was just ridiculous.

HEFFNER: How long did it go on?

PURNICK: And it went on for two days. The point is, even though – and as I wrote in this piece – even though it seemed to be an open-and-shut case, everybody was very serious about it, the judge was very serious, the assistant district attorney was very serious. I mean, it was … The legal aid lawyer for the defendant was quite serious. And the witnesses came in, I mean, broke up their day. They had to come in and they had to testify. And then we go into the jury room after about a day and a half, I guess. It was on the second day. In other words, we had some testimony in the morning. There was a full day of testimony, then there was testimony that next morning, and then we went into the jury room. And immediately a dynamic formed. And I don’t know if this, it’s the first time I’ve been on a jury, I don’t know if this always happens. I suspect that a certain dynamic forms in every, single jury room. That’s certainly what I’ve read, and it’s certainly what happened here. And we took a paper ballot. And even though it was an open-and-shut case, two jurors wanted to let the guy go. And within about five minutes, one of those two changed her mind and she went with the majority. And there was a holdout. There was a holdout! What do you do?

HEFFNER: Henry Fonda? Was he there? I mean, was this …

PURNICK: There was, it was a woman Henry Fonda. She simply said, “Well, I don’t believe that it wasn’t … It must have been self-defense.” And so the rest of us started arguing with her, quietly, saying, “Look, maybe it was, but you’ve got to go with the evidence. The judge said, the judge charged us, we got this whole explanation, it’s got to be proven in court. There was no evidence that it was self-defense. So maybe it was, but they didn’t prove it. It has to be proven. It has to be demonstrated.” “Well, I just don’t think it couldn’t have been.” “But it’s not a matter, ma’am, of what you think; it’s a matter of what was said in court.” So then she got specific and she said, “So-and-so testified to X, Y and Z.” There were basically two members of the jury who were very strong. Guess what. (Laughter) I was one of them, and there was one other. And we said to her, “No, that’s not what this witness testified to.” “Yes, it is. I’m sure I remember the witness said that.” So at one point I said, “Look,” I said, “I can’t believe I’m saying this for a misdemeanor, but let’s have the testimony re-read.” So it took like another two hours, they had to get everybody back in court, the court reporter had to find the right place in the transcript, and the transcript, just like on television, the transcript was read back to us. And we came back into the room, and she said “Well, okay, you’re right.” In other words, the one argument where if she had been right might have changed the rest of us, she had remembered it wrong. So she said, “Okay, but I won’t go for count one; I’ll go for count two.” Which all of us had decided anyway, because the first one was that it had been premeditated. It clearly hadn’t been premeditated; these two guys had just gotten into a bar brawl.

So the second day, after this whole dynamic, and after this paper ballot, and after the testimony was read back, in a nothing case, the system worked, and we went back in and we said he was guilty, and we were individually polled, and that’s how it worked.

HEFFNER: But let me ask you. You say the system worked. Clear. Wouldn’t it have been simpler, wouldn’t it have saved time and money if this had just been decided by a judge.

PURNICK: Yes. Yes. I’m not making that judgment. I am not a student of the law. I really don’t know enough about the pros and cons of a judge making a decision versus a jury of, quote-unquote, “one’s peers” reaching a verdict. I have a certain emotional attachment to the concept of the jury of one’s peers reaching a verdict. But maybe … I’m not saying that you’re wrong. If your argument is it’s better to have a judge, it’s faster, it’s more efficient, that well could be true. On the other hand, I do have to wonder whether, in a more complicated case where there are more subtleties, whether that group dynamic, which, as I said before, I suspect happens in every case, whether that group dynamic isn’t fairer. I don’t know.

HEFFNER: Tell me why you say “fairer.”

PURNICK: Because the judge is one person.

HEFFNER: You mean you need to go through the process, you need the questions and the balance.

PURNICK: What if that woman had been right? What if we had all been so sure it was an open case that, like Henry Fonda, one person had a question, and let’s say her memory had been better than the rest of ours, and she had been right. If she had not been there, we would have declared somebody guilty, we would have come up with a guilty verdict, and it would have been unfair. There was this one holdout. In this case, she was wrong. What if she had been right? If you have just one person, I don’t think you can have those subtleties. But I don’t know. I’m not making that argument. I’m just wondering.

HEFFNER: But you’re a citizen, and you’ve got to either be for the jury system and say, “We don’t want to change this at all,” or you’ve got to say, “Look, it is so expensive, it does lead to such delays, perhaps we can do a little better.”

PURNICK: Or perhaps we can do some of the things that Judith Kaye, who is the chief judge in New York, has been talking about, which is not to eliminate the jury system, but to simplify it. She and others have talked about the necessity for sequestration, for example. They have talked about, and New York is probably about to eliminate, the exemptions for a lot of people, so that they won’t be, be a larger pool, so that doctors and lawyers and all these people would at least be in the pool, which means you would serve less frequently. The idea of not having to wait around, that if you’re called, you’re called, and if you’re not called, you’re not called, and you don’t have to do what I did a few years ago, which is wait around ten days and not serve on a jury. I think there are ways to modify it while still preserving the concept of a jury of your peers.

HEFFNER: You think that there is something about the majesty of the courtroom – even though my experience in New York was that the courtrooms sure as hell didn’t look very majestic …

PURNICK: No, they don’t.
HEFFNER: — but that there’s something about the majesty of the responsibility that you have, here you are deep within the criminal justice, or the justice system, that brings forth from us as citizens, the best, maybe sometimes the worst. But your experience was, for the most part, the best.

PURNICK: It’s been my experience, and it was also my experience the first time. My frustration the first time was that I didn’t get on a jury. But it was my experience dealing with the jurists, talking to them, listening to the way the questioning went, both the first time and the second time. I mean the questioning during the, I think they call “empanelment.”

HEFFNER: The voir dire.

PURNICK: The voir dire. Where they ask you these questions about yourself and what you think about different issues. I have to say that I felt that people took it very seriously. And I don’t know exactly why. I know I took it very seriously. I know I thought it was very important. I know I wanted to be on a jury. There were some people who didn’t, and they would say so, and they would be dismissed. So I think people do rise, in most cases, to the occasion.

HEFFNER: I guess it’s that expression that’s uppermost in my mind, and as a question, do they rise to the occasion, it would seem to be, from when one watches jurors in the past come out of cases, important cases, difficult cases, you have a sense from what they say that these were people, ordinary people from ordinary rungs of life who had been elevated in some way by the majesty of this experience. Now, why do you want … It’s June, the middle of June 1995. Who knows what’s going to happen with the Simpson case? We don’t know. You don’t know. I don’t know. It may go on, as you suggested a moment ago, forever. Why do you say that it’s suigeneris?

PURNICK: I think it’s become a circus. I think it was from day one. I shouldn’t say “become.” It was from the day the white Bronco was floating around on the highways of California, Los Angeles. And there was a report at the anniversary, the year anniversary, on one of the networks, about other cases, other murder cases pending in Los Angeles, that the murders had taken place at about the same time that the Simpson case arose. And it was appalling, because the level of resources, the amount of attention, I mean government resources, that were thrown into the Simpson case versus what’s going on with these other cases, where they can’t get to square one, the amount of money he is capable of spending with his array of lawyers, the way everybody seems to be playing to the camera, both inside the courtroom and outside the courtroom, the nightly reports on every local television station in the country, or at least certainly in New York it’s true. How can you compare that to a normal murder case which is not normal because it’s murder to begin with?

HEFFNER: Yeah, but is that an indictment of your profession rather than, the journalistic profession rather than of …

PURNICK: Well, that’s a very complicated question. I differ from most of my colleagues in that I oppose cameras in the courtroom, at least in a case like this. I think that’s having a very damaging effect. People say it’s an extension of First Amendment rights and, you know, I could be in a lot of trouble with my colleagues for saying it. Tough. I think that that has had a deliterious effect on this case and has led to this circus. It has fed the circus atmosphere. And there’s the argument I had not long ago with some colleagues, “Well, you know, what do you mean? The circus atmosphere is outside the courtroom. It’s when everybody runs around with the microphones going to talk to people when they come out. I think you’ve got what goes on outside the courtroom because of what’s going on inside the courtroom. I don’t think that the judge … I think the case would be moving more quickly if it weren’t televised. I think the judge wouldn’t be subject, or subjecting the case to so many delays. I think that’s a problem. I know that’s not what you asked me. You asked me about the media as a whole.

You know, I’ve even given speeches about this. What’s the media? Is it David Margolick, a serious journalist and lawyer who’s writing long, textured stories in The New York Times, nine times out of ten played on the inside, simply chronicling what happened in the court that day? Or is it Inside Edition? I have no problem with what David Margolick is doing, or what his counterparts are doing at The Washington Post or The Los Angeles Times or other serious newspapers. I have a big problem with the tabloidization, both in television and in print, and those are different categories.

HEFFNER: You say you have a “big problem.”

PURNICK: Yeah.

HEFFNER: What would you do about it?

PURNICK: They can’t do anything about it.

HEFFNER: What do you mean, you can’t do anything about it?

PURNICK: You can do nothing about it. We have a First Amendment. That’s the price we pay. If you don’t like it, you don’t read it. I mean, look, if the public didn’t want to read this stuff, if the public didn’t want to watch this stuff, it wouldn’t be there for them, because this … Right? I mean, Ted Koppel said one night when there was a complaint, he did a whole show on this issue of the media coverage of O.J. Simpson. And he had a little, I remember, a little close in which he said, “If you weren’t watching it, guys, if you weren’t watching it, we wouldn’t be doing it.” So, in a country with a First Amendment and a Constitution, there is no way that you can put curbs. I just wish people wouldn’t watch.

HEFFNER: Now, there is a Preamble to the Constitution that talks about “the general welfare.”

PURNICK: Yeah.
HEFFNER: It is clearly there, and you clearly feel that what has happened has not been in the general welfare.

PURNICK: But who am I to decide that? That’s my personal opinion, but I can’t extend my personal opinion to the way juries and courts are run in the United States and the way the media does its business, does their business. You start putting curbs on the media, and you’re in trouble. So we have to live with it, is my view.

HEFFNER: You’re in trouble with the media.

PURNICK: No, I think you’re in trouble as a democracy. I think you can’t do it. Not in this country. I think, I wish there were voluntary curbs that the media would, they would adopt. I wish that they’d calm themselves down a little bit. But that’s not about to happen.

HEFFNER: Well, then, two questions. One, if you wish there were voluntary curbs, would you be in favor of a national news council? I mean, I don’t want to sneak up on you with that.

PURNICK: I don’t know what that means. With what power? The answer is no. What could it do?

HEFFNER: You wouldn’t be in favor?

PURNICK: What could it do? I mean, let’s say that this national news council says – I don’t even know what it could say, but let’s pick something out of the air …

HEFFNER: “It’s bad for us.”

PURNICK: What is?

HEFFNER: The coverage that you say you don’t like.

PURNICK: So it says, “It’s bad for us, and it’s inflammatory and it’s creating a …”

HEFFNER: It says what you said.

PURNICK: “… circus-like atmosphere …” What does that translate into, in practicality?

HEFFNER: It translates into nothing other than a group of people who have credentials, as you do, in the media, in journalism, who are making some kind of judgment. Do I mean regulation? No. I mean some kind of judgment. Now, your paper, The Times, killed the national news council when it existed before.

PURNICK: I didn’t even know that, and I’m automatically coming out against it in this conversation, and I didn’t even know that history. When was that? I don’t know much about it.

HEFFNER: Oh, more than a decade ago.

PURNICK: Oh, well, I didn’t remember it, or didn’t know it. But I think these, we’ve got enough debate in this country. We have enough opinions in this country. I don’t see any benefit to having some kind of a group that makes theoretical judgments. What are you going to do with them?

HEFFNER: Well, now, cameras in the courts.

PURNICK: Yeah.

HEFFNER: Let’s go back to that one. Here, in the state in which we do this program, New York, unlike many other states around the country, most other states around the country, there’s been a running dispute on the question of …

PURNICK: That’s right.

HEFFNER: … cameras in the courts. They were not permitted. Where subpoena power existed, cameras were not permitted.

PURNICK: Now they are, on an experimental basis.

HEFFNER: Now they are on another experimental basis.

PURNICK: Right.

HEFFNER: And your attitude toward them here in this state?

PURNICK: I wish we didn’t have cameras in the court.

HEFFNER: Now, wait a minute, wait a minute, wait a minute. You say you wish.

PURNICK: Yeah.

HEFFNER: There are a lot of things you wish. In this instance, either the legislature continues an experiment, or says, “Okay, from now on they can be …”

PURNICK: Yes. And this is a …

HEFFNER: … or it doesn’t. You’re a citizen.

PURNICK: Yes, I’m a citizen. I wish that the legislature would discontinue the experiment. It’s not going to. I mean, I was talking about this not too long ago, and someone said a similar question to what you asked, and I said, “It’s not going to happen. It’s sort of like owners of mom-and-pop stores saying, ‘I wish we didn’t have superstores.’” Superstores are here to stay, and cameras in the court are here to stay. They are a major piece of American life, and it’s not going to be reversed. But if I …

HEFFNER: Why do you say that?

PURNICK: Because I think, I feel it.

HEFFNER: It was almost reversed just a couple of months ago. The legislature almost didn’t …

PURNICK: They were play acting. They were doing a number for the trial lawyers. No, that’s not what happened.

HEFFNER: You mean the pressure of the media was too great?

PURNICK: No, the lawyers.

HEFFNER: Now, you can’t say that the lawyers …

PURNICK: Oh, oh, I see what you mean. Yes.

HEFFNER: The pressure of the media made it impossible for them?

PURNICK: Probably. Probably. Yeah.

HEFFNER: The self-interest of the media.

PURNICK: Probably. Probably. The electronic media. Probably.

HEFFNER: Well, you don’t just say the electronic media; the print media were right there too.

PURNICK: Yeah, this whole First Amendment argument. Absolutely.

HEFFNER: Do you agree with the First Amendment argument?

PURNICK: No. I think that the concept that a camera is an extension of the pen or the pencil is erroneous, because as long as you have open trials, as long as you have, of course you have to have, so you don’t have, used to have in the past in other countries, sort of star-chamber proceedings. I think that as long as you’ve got it open to reporters, fine. I don’t know why that has to include cameras. As long as you’ve got people who are in there who represent the media who are covering the proceedings, why does that mean that you have to have every, single minute recorded for Court TV? I don’t get it. I don’t know why. I don’t know why it’s become that argument.

HEFFNER: I’m delighted to hear you say that, because that’s my prejudice, my feeling. But we only have a couple of minutes left. Let me go back to the question of juries. I understand your personal enthusiasm for your experience. Does it lead you to want to be more protective of our continuing insistence on trial by jury rather than be more willing to, perhaps, to experiment with more responsibility for judges and fewer cases in which juries …

PURNICK: That’s a very broad question. And I think it depends, for example, in many civil cases, I don’t see any reason for juries. But if you’re asking me when we’re talking about the fate of somebody, not necessarily in a murder case, but even a guy who hit another guy over the head with a bottle in a bar on Second Avenue and whether he’s going to spend 90 days in jail, or whatever the sentence might have been, you’re talking about another human being’s life, and I think yes, I think my emotional soul would go towards continuing the jury system. Again, maybe modifying it, and maybe simplifying it, and maybe speeding it up. But I, if I were ever charged with a crime, I would like to have my peers make the decision as opposed to an individual judge.

HEFFNER: Feeling that your experience would indicate that you’d have a fairer shake.

PURNICK: Yeah. Yeah. Totally unscientific, I admit, but …

HEFFNER: You know, I’ll probably get a call for jury duty right away because of the things that I’ve said, but …

PURNICK: Now, what happened to you, quickly? I mean, did you just not get on a jury? Is that what happened?

HEFFNER: Fortunately, we have just 30 seconds. Not even 30 seconds; 20 seconds. So I can’t go into that. It was just a lousy experience.

PURNICK: Maybe like my first one.

HEFFNER: Okay. Anyway …

PURNICK: There’s hope.

HEFFNER: There’s hope. Thank you for joining me today, Joyce Purnick.

PURNICK: It was a delight. Thank you.

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, about jury duty, perhaps, please write: The Open Mind, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts, send $4 in check or money order.

Meanwhile, as an old friend used to say, “Good night, and good luck.”