Why to Fear a Jury of Your Peers

  • Share
  • Read Later
Richard Grasso, the embattled former head of the New York Stock Exchange, is demanding that a jury decide whether he deserved $190 million for doing his job, and who can blame him?

• Why Can't Felons Vote?
Once they've served their time, punishing them further by taking away a basic right isn't just unfair to them; it's bad for us

• Sue Up or Shut Up!
A curious case may mean that debt collectors can't threaten to sue their targets unless they really mean it

• Missing the Target
The disabled have lots of buying power and rely heavily on computers and the Internet. So why does it take a court case to get Target to make its website accessible to the blind?

• Why to Fear a Jury of Your Peers
Most people think that juries are more likely than judges to let defendants off the hook. The conventional wisdom, however, may be dead wrong

• Why the Wiretapping Ruling Is Vulnerable
Even opponents of President Bush's surveillance program have to be dismayed by Judge Taylor's thin legal reasoning

• When God is in the Lyrics
All the little girl wanted to do was sing "Awesome God" at an after-school talent show. Instead she became the focus of a federal lawsuit - with a strange coalition of legal backers

• If Daughters Decided
Even Supreme Court Justices ruling on major constitutional issues can be swayed by their families. Is that a bad thing?

• Does the Plame Lawsuit Have a Chance?
Analysis: Many legal experts think it won't survive motions to dismiss based on claims of presidential immunity, but it may not be that simple

• Whatever Happened to Drug Testing?
The percentage of businesses that force their employees to pee in a cup is dropping - largely because it never made much sense in the first place

When you're in the government's sights, your best friend would seem to be a jury, that lovable amalgam of ordinary Americans with a simple, if sometimes mistaken, sense of justice. Did nothing wrong? Don't worry, jurors will sniff out the truth. Cheated a bit? No problem — prosecutors would rather cut a deal than risk their case before a fickle jury. And if you do end up at trial, there's a good chance that jurors will be so sympathetic, confused or hostile to the government that they'll disagree on a verdict or let you off the hook.

That at least is the conventional wisdom, and probably what provoked Grasso's lawyers to appeal when a judge ruled that he alone would decide whether 190 million big ones were unreasonable pay for the head of a nominally not-for-profit corporation like the stock exchange. (The lawyers have decided not to comment, having failed to amuse the judge with past quips to the press.) If the answer is yes, as New York Attorney General (and gubernatorial candidate) Eliot Spitzer contends, then Grasso must pay back most of the money. If it's no, then the case moves to a second stage, a jury trial on whether the exchange board got tricked into paying the dough or was lax in enforcing its rules. Festivities are scheduled to begin October 16.

The thing about conventional wisdom, though, is that it's not always right. And in this case, according to a new study by professor Andrew Leipold at the University of Illinois College of Law, it's dead wrong, at least in federal criminal trials. Though Grasso's case is a civil action in state court, the study's findings are so dramatic that they make you wonder why he or any other defendant would let a jury near a case.

Leipold looked at the records in more than 75,000 federal criminal trials from 1989 through 2002. In about three-quarters of the cases, defendants chose to have a jury rather than a judge decide the outcome, as is their right under the Constitution. This was generally not a smart move. Judges convicted about 55 percent of the time, while the jury conviction rate was a whopping 84 percent.

The results surprised almost all the lawyers — defense attorneys as well as prosecutors — Leipold interviewed for the study. The defense folks said they preferred juries because judges feel too much pressure to convict, are wise to defense tricks, or hear a lot of negative information about the defendant before trial. Prosecutors admitted that they had believed that juries probably gave the accused a better chance at acquittal.

So how could the supposed experts be so wrong? Leipold isn't sure, though he meticulously explored a variety of possibilities. A promising one is that since neither side wants to spend a lot of time and money on the many cases involving misdemeanors, or minor crimes, defense lawyers typically request a quick trial before a judge, prosecutors don't bother to prepare thoroughly, and the result is often acquittal. Another possibility is that judges so resented the federal sentencing guidelines, which replaced judicial discretion with strict and frequently harsh rules, that they demanded stronger proof of guilt when the prescribed sentence seemed unfair. Leipold leans to this explanation because judges started to acquit even more often at about the time the guidelines went into effect.

Still, none of the theories quite explains why juries are so quick to find guilt, no matter the type of offense, the quality of the lawyer, or the region of the country. It seems that the inspiring scenario of a Henry Fonda-like figure prevailing over those angry men in the jury room really does only happen in the movies. And that can't be good news for a guy who wants to persuade a jury of his peers that he deserved a $190 million paycheck.

Holding is the former executive editor of Legal Affairs magazine and legal columnist and investigative reporter for The San Francisco Chronicle.