Friday, December 3, 2021
Dec. 3, 2021

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Press Talk: Is our jury system broken?

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What if I told you one of the fundamentals in our democracy, the ability to get a fair outcome in a jury trial, is so broken because of politics that our great country is in peril?

OK, that’s a bit of an overstatement. But let me introduce you to one juror on a high profile civil trial and when it was over, felt that — indeed — the system is broken.

Meet Gloria Hanson.

“Mr. Brancaccio, I’m a subscriber of The Columbian and always read your (columns). I also unfortunately was a juror on the Benton trial. In fact I was the lone dissenting juror. The trial verdict was decided as soon as the jury was selected.”

The “Benton” Hanson is speaking of is — of course — Don Benton. He has been around Clark County politics for decades. He’s been a state senator and was a big shot in the local Republican Party. He was in more than his fair share of tight spots throughout his public career but always — always — managed his way out of them. And not only did he land on his feet, he made a good living. A very good living.

So it surprised no one when he sued after the county department he was heading was eliminated and, by extension, his county job too.

To no one’s surprise, the jury gave him a big award. There were a couple of other members of that county department who also joined the suit, but Benton was always the main player.

In last month’s column, I speculated that it was time to give Benton credit. He has been a genius in working the system. Our plodding government was no match for this guy. You mess with him, you’re going down. Benton is the greatness and the power and the glory.

Of course that was yesterday’s news and I was ready to move along, but then the above e-mail from Hanson came in. Please go back and read it one more time. Especially the line “The trial verdict was decided as soon as the jury was selected.”

Put simply, that is not the way our jury system is supposed to work.

Of course this was one juror’s opinion. And when asked, she said her politics lean liberal. So you could argue conservative jurors sided with Benton and a liberal juror was against him. Hanson also said she was absolutely ready to get behind Benton’s accusations that he was wrongly booted … if the facts led her there. But that simply didn’t happen, she said.

Is the system broken?

Before I continue with Hanson’s view, I wanted to bring in county Prosecuting Attorney Tony Golik. First, I like and respect this guy. He’s a straight shooter. I’ve always listened closely to what he has to say. So I asked him if politics has crept into the jury system and by extension has broken it.

“No, I don’t think the jury system is broken,” he responded. “I agree with your comment that it’s unfortunate that the justice system is more politicized than it used to be, but I don’t think that the … justice system and the concept of jury trials is a broken system. I don’t think that at all.”

Another attorney I spoke with echoed Golik’s comments.

“I was a trial attorney for over 50 years. I tried some very heavy civil personal injury cases on behalf of defendants. The jury system is not foolproof, but it works 95 percent of the time. Would you rather have a bench trial with a judge who has some preconceived idea of what’s right or wrong, or 12 jurors of your peers? The case that goes off the rails gets all the publicity.”

Neither of these attorneys was speaking directly to the Benton case but generally about the system.

And their comments are fair. Truth is we’re not talking about science here. All of this is very subjective. The juror I spoke to felt after sitting through the trial and deliberations, the system was broken. Others disagree. And in a civil case like this one, all you need to win is a 10-2 favorable vote or better.

But let’s get back to the juror’s experience.

Hanson is a 64-year-old retired geologist who has lived in Clark County for a decade. After her jury experience she was quite disillusioned with the system, she said.

Her disillusionment started soon after deliberations began. Of the 12 jurors, she said nine had their minds made up immediately. She and two others appeared to start with an open mind. But the others sided with the Benton supporters pretty quickly, leaving her alone.

Look, being the only one in a situation like this is a very difficult task. Those who have seen “12 Angry Men” can appreciate how improbable it was for one guy standing alone to somehow convince 11 other jurors that they were wrong and he was right. But this ain’t the movies.

Still, I asked her if she gave it the ol’ college try. Was she tough?

“Initially I was. I tried to stay very professional, I stayed calm. They would say stuff like ‘I bet this happened’ and they would go off for hours on making up stuff and I would say ‘You can’t say that, we don’t know what happened’ and they would say “Well, we’re pretty sure that’s what happened.’”

“They all ganged up (on me.)”

Another example of the heavy leaning toward Benton was what they thought of him … and the county.

“(Benton and the two others) were saviors, angels, experts. They were in the right on everything, the county was totally wrong. They all said the county should provide everybody with a job for life.”

Huh? A job for life?

Hanson said the jurors also rationalized their award wasn’t coming from the county taxpayers’ pockets. It was coming from an insurance company.

I’ve always felt this was a goofy rationalization. Does anyone actually think insurance companies aren’t making money? Believe me, it’s costing taxpayers money.

Any answers?

I’m not sure there are any easy answers to this issue. If it’s true that 95 percent of the cases are fair, do we just put up with the anomalies? But what if only 50 percent of the cases turn out to be fair? Would having judges make the decisions be better? They, of course, know the law, but what of their prejudices? Should we be more diligent in selecting jurors? How about asking tougher, more “difficult” questions to prospective jurors? What about creating a group of professional jurors? They would all be heavily vetted. That would take the wildcard aspect of getting jurors on a case that are not fit.

My sense is we’re trending in the wrong direction here. And it’s probably the right time to ask ourselves some questions about how to make the system better.

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