Trial by Jury
To the Editor:
Walter Berns’s discussion of the defects of the criminal-jury system [“Getting Away With Murder,” April] is right as far as it goes, but, alas, it does not go far enough. Mr. Berns spends almost all of his time discussing the Menendez brothers and Lorena Bobbitt, confining his discussion of innocents wrongly convicted to less than a paragraph. His focus is unfortunate for several reasons. First, even if Mr. Berns is right in saying that the jury got it wrong in the Menendez and Bobbitt cases, which I think he is, the nature of the error he scorns is as firmly rooted in our culture as is the jury system itself. That is, the system prefers that if the jury errs, it errs on the side of acquitting the guilty rather than convicting the innocent.
Second, at least with respect to the Menendez brothers, Mr. Berns’s critique is not sufficiently heedful of the relationship between shrewd lawyering and jury success. This relationship is evident in civil trials as well as criminal prosecutions, but it strikes me as a great deal more serious in the criminal arena where so many defendants are indigent and therefore unable to afford hall-of-fame trial lawyers. (In the civil arena, contingent-fee arrangements make this problem somewhat more tractable.) Simply put, good lawyers are able to sabotage the truth-finding function of juries, by means ranging from the effective use of peremptory strikes to downright obfuscation. Sometimes the lawyers who win are those who have the facts on their side, but not always: Mike Tyson’s facts were every bit as good as Erik Menendez’s.
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