Commentary Magazine

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.

Finally, it is important not to shy away from the brutal impact of Mr. Berns’s insight. He reminds us that juries are made up of talk-show addicted human beings, and human beings often have a hard time discarding their prejudices and predispositions when they enter the jury room. That inability, however, explains not only trivial cases (which, in the scheme of things, Lorena Bobbitt’s is) but also the gravest of matters. For example, juries in Georgia in capital-murder cases sentence to death those whose victims are white at a rate nearly three times that of those whose victims are black. And a California jury, comprised, one assumes, of citizens who worry about crime in their neighborhood as the rest of us do, somehow determined that the officers who leisurely beat Rodney King to within a wisp of death did not use excessive force.

Mr. Berns is right in saying that the jury system is broken. It is broken because it represents society. We cannot fix one without fixing the other. What we ought to do in the meantime is amend the Constitution and take the jury guarantees out.

David R. Dow
Law Center
University of Houston
Houston, Texas



To the Editor:

Walter Berns’s incredulous outrage at the outcome of the Menendez murder case is entirely justified, but his strictures about the trial judge’s jury instructions are somewhat unfair. Although Judge Weisberg properly rejected the defense’s request for an instruction that this was a case where a claim of self-defense could support an acquittal (correctly concluding that the brothers could not show that they had a reasonable belief of imminent harm), he felt compelled by California precedent to instruct the jury on “imperfect” self-defense, i.e., that an honest but mistaken belief in imminent harm could support a verdict of manslaughter. This theory provided the opening wedge for all of the testimony about the defendants’ relationship with their parents and their (to me, as to Mr. Berns) untruthful and concocted claims of abuse. But any fault for this travesty of justice lies with the California appellate courts, which have promulgated this doctrine, not with Judge Weisberg who felt too bound to apply it.

Eric Kendall
Los Angeles, California



Walter Berns writes:

I thank Eric Kendall for explaining why Judge Weisberg allowed—or, to be more precise, found it necessary to allow—the Menendez brothers to sit on the stand and tell all those malicious, and evidently false, tales of child abuse. What he says confirms my judgment that something is seriously wrong with our criminal-justice system, and not only in California. David R. Dow agrees, but he puts the blame on “shrewd lawyering” and, ultimately, on American society, and suggests that the time has come to abolish the requirement of trial by jury in criminal cases. The British did this in Northern Ireland (the very model of a modern multicultural society, to paraphrase W. S. Gilbert), and it will be a sorry day if, for similar reasons, we find it necessary to follow their example.

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