Peers
Peers
By Joe Bob Briggs
January 10, 2002
NEW YORK, January 10 (UPI) -- Everybody hates the jury. It's become a spectator sport to bash courtroom juries as rigged, biased, "unbalanced"--whatever the heck that means--or just downright stupid. We have the most excruciatingly drawn-out jury-selection process in the known civilized world, and people still think it's a fixed carnie game.
And to tell you the truth, I'm startin to think so myself.
Last week the two black guys who got nailed in the Brooklyn race riots of 1991 were sprung from prison. The reason, according to the U.S. 2nd Circuit Court of Appeals: the actual judge in the case had rigged their jury.
Apparently His Honor was trying to put an equal number of blacks and Jews on the jury, because the riot was mostly black people beatin up on Jews. What happened is that a 7-year-old black boy got run over and killed by a Jewish limo driver who was working for the ultra-Orthodox Lubavitcher community (yes, the guys in the black hats, trenchcoats and curly sideburns). Since a Lubavitcher is about as easily identifiable as a red-headed midget at a convention of Norwegian bodybuilders, the black crowd got hostile and pretty soon a mob had formed, some of them shouting "Get the Jew!"
Yankel Rosenbaum, always described in the press as a "mild- mannered divinity student," happened to be walking nearby in his Lubavitcher garb, which might as well have been a giant target on his back. He was surrounded by the mob and stabbed to death.
At a trial in 1992, a guy named Lemrick Nelson was accused of the murder, with witnesses claiming he plunged a knife twice into Rosenbaum. The jury voted not guilty. (The jury, for the record, was composed of six blacks, four Hispanics and two whites. No Jews.)
But the concept of "not guilty" is not what it once was. The idea of double jeopardy doesn't seem to apply when enough people want to see somebody go down. So there was a second trial, in federal court this time, with Nelson charged with violating Rosenbaum's civil rights. And meanwhile another man, Charles Price, had turned up on a videotape, where he could be seen provoking the rioters. So he was tried as well on the civil- rights rap. Both men were found guilty this time, but, oddly enough, Price got the longer sentence--21 years and 10 months, compared to alleged killer Nelson's 19 years, six months.
And now there's gonna be a third trial. It turns out that Brooklyn Federal Judge David Trager went out of his way to make sure the jury in the second trial had an equal number of blacks and Jews on the jury. But there weren't enough Jews in Trager's jury pool, so His Honor "jurymandered," according to the appeals court, and one juror in particular, a Jewish man who had expressed doubts about his ability to be objective, was actually seated on the final panel.
Which brings me to my question: What the hell does "jury of peers" mean anyway? That's what the Constitution says Lemrick Nelson is supposed to have--a jury of his peers. A peer is simply somebody from your own social class. But in this case, the judge seemed to be determined to put people on the jury who were not only not in Lemrick Nelson's social class, they were in the class of the person he allegedly killed. Wouldn't that make it a jury of the victim's peers?
This is not the only trial where I've seen this. A white man is accused of killing a black man, and there's an insistence that there be blacks on the jury. A rich man is charged with murdering his wife, and ends up with a jury of poor white women.
What's going on here?
When the Constitution was written, there were basically eight classes of Americans. At the top were the great land owners. At the bottom were the slaves. And in between there were- -in rough order--small farmers, merchants, sailors, "frontier people" (hillbillies), servants and convicts. Then as now, we had a fluid open economy, so all but the highest and lowest class would move up and down the scale, even in a single generation. But a judge in 1800, with a small farmer on trial, would not allow him to be put before a jury of plantation owners or servants. They took the word "peer" very seriously.
So what happened? How did we go from making sure a man was judged by his own class to making sure he's never judged by his own class? When Tom Wolfe wrote "Bonfire of the Vanities," he described the frustration of state prosecutors over what they called "South Bronx juries"--mostly all-black panels that would almost never trust the word of a policeman. But since most of the defendants they were passing judgment on were part of that same culture, they were simply doing what juries are supposed to do-- enforce the rules of that society, not the rules of some guy who commutes to the Bronx from Westchester County every day.
Today we have the most sophisticated demographic profiling systems in the history of mankind. We can not only tell you who's watching "West Wing," but we can tell you how old he is, how much money he makes, where he shops for his sneakers, whether he drinks wine or beer, and everywhere he's lived since 1947. Why not simply take the jury information form, feed it into a sophisticated computer profile matched up with the defendant, and end up with peers? Let the rich try the rich, the poor try the poor, blacks try blacks, whites try whites?
The idea of putting peers of the victim on the jury is not only perverse, it's mean-spirited. First of all, the Constitution says nothing about it. The Constitution is concerned with the defendant's peers. More important, the victim is not a victim, in the eyes of the law, until the trial is over. We assume that no crime has even occurred until the evidence is presented by the state. And the jury is picked before the first scrap of evidence comes down. It's as though we're saying, "Well, just in case this does turn out to be a white crime against a black victim, we'd better put some blacks on the jury"--thereby ensuring that, if you do have the wrong guy, he'll probly get nailed anyway.
And yet the "jury of peers" idea is neither new nor untested. It had become fairly well established in England even before we revolted, partly to keep the peace. Lords in frock coats and wigs, passing judgment on illiterate pig farmers from Sussex, was the kind of thing that can lead to riots and revolts. The British also considered it out of the question for the working class to pass judgment on the privileged classes.
We don't have such rigid classes anymore, but we definitely have classes. We know we have classes because that's why the victim's family is trying to stack the jury in the first place. They're saying "Our class is not represented." Well, guess what? Their class doesn't have any meaning to the court. The court is concerned with the guy who's being accused. Or at least it was until Judge Trager came along.
There are two good reasons for this. One is that, if one class is oppressing another class, then the jury-of-peers can say, "Even though we think he's guilty, we think he oughta walk." And the second, more interesting, reason--discovered by the British early on in the game--is that a jury from a man's own class will frequently be more severe in punishment than a jury from an alien culture. They tend to hammer those who have done something to truly upset the neighborhood.
But then that was a time when people trusted the jury system. We don't really like juries anymore, so it's no big surprise that we don't want to restore the peers to the realm.
Joe Bob Briggs writes a number of columns for UPI and may be contacted at joebob@upi.com or through his website at www.joebobbriggs.com. Snail mail: P.O. Box 2002, Dallas, TX 75221.
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