'A jury of my peers?
... I don't think so'

The jury system may be on the
brink of collapse, but bar leaders say reform must be visionary,
not idle tinkering

Staff Writer

... Continued from frontpage

Mr. Marshall/Sen. Calderon

Board member Ray Marshall and Sen. Charles Calderon

"The jury system in California is on the brink of collapse," according to the report of a blue ribbon commission appointed by the California Judicial Council.

In its report, the commission said that it did not find one single source of dissatisfaction with the jury system, but a general unhappiness with the current structure and management.

Many problems could be termed "quality of life" issues, dealing with matters such as poor, crowded jury facilities, lack of parking, lack of child care and hours of sitting around with nothing to do -- a "hurry up and wait" problem.

Sen. Charles Calderon, D-Montebello, chairman of the Senate Judiciary Committee, has expressed interest in carrying legislation which deals with the "care and feeding" issues of jurors, but some of the more controversial proposals from the commission may not be snapped up as quickly.

After the commission released its list of more than 50 recommendations for improvement, the State Bar Board of Governors found itself in the position of disagreeing with proposals to reduce the number of pre-emptory challenges and the size of juries, and permitting identification of jurors by number only.

Ray Marshall of San Francisco, a member of the bar's Board of Governors who also served on the blue ribbon commission, says the board's position has been relayed to the Judicial Council and he prefers to take a "wait and see" attitude before getting too excited.

"It won't die," says Marshall. "There are some serious and legitimate issues." Some of those issues fall into the category of "if it ain't broke, don't fix it," he said.

State Bar President Tom Stolpman, a Long Beach trial lawyer, agrees with Marshall and says he is prepared to defend the bar's position. Attempts to tinker with jury size and voir dire seem to pop up every year, says Stolpman, but he doesn't know of any evidence from pilot projects that shows significant savings or fairer trial results. "Why change whatever is a good, working system?" he says.

Heating up

Marshall expects there will be more heated discussions this month when two task forces will be appointed by the Judicial Council: one to work on implementing jury improvements and the other to deal specifically with improving deliberation instructions to jurors.

The council is also expected to decide which of the blue ribbon recommendations it will sponsor in the state legislature, offering background research and full participation in lobbying efforts.

The State Bar addressed the issue of jury system improvement earlier this year by holding forums in northern and southern California and producing a video promoting jury service.

In addition, the state Senate held hearings and the Assembly Judiciary Committee will listen to testimony on the issue in Sacramento on Nov. 18.

California is not exactly the leader of the pack, but it joins several other states across the nation working to fine tune the jury system, considered a cornerstone of democracy.

G. Thomas Munsterman, director of the Center for Jury Studies at the National Center for State Courts in Virginia, says jury reform measures have been trickling along for many years, but admits there has been a recent acceleration.

"There's always been a level of movement," says Munsterman, "but California, Arizona and New York are the big, serious ones."

New York recently increased its juror fees and wiped out its list of juror exemptions, which included doctors and lawyers.

Reform measures in Arizona were enacted about a year ago, designed to increase juror participation and comprehension. (See related story.) Among the most significant changes is that of giving jurors the chance to question witnesses in writing, through the trial judge.

Questioning witnesses

The California blue ribbon commission has recommended a similar change for the state's jurors, saying "the benefits of juror questioning outweigh the largely speculative concerns that have been raised about the practice."

This is a big issue in California, says Professor Clark Kelso of the McGeorge School of Law in Sacramento. "It's not radical, because some judges are already doing it," he said, but it is one of the more significant proposed changes in the state.

Perhaps the most radical and one of the more controversial proposals involves the issue of juror anonymity.

There are two main criticisms of juror anonymity, said Kelso. Many people see it as a "star chamber" issue and attorneys worry how they will conduct voir dire when they can address jurors only by number.

It's like being blindfolded, said Kelso, "like that old television show, 'What's My Line?'"

Munsterman also sees the issue of anonymity uniquely Californian and problematic. It's a tough subject, he says, especially "because the jurors like it" and it makes them feel more comfortable.

Offering anonymity

Judge Philip K. Mautino of the Los Cerritos Municipal Court in Los Angeles County found that to be the case when he received feedback from jurors who feared for their safety in deliberating gang-related cases. In 1994, he offered the anonymity option to more than 2,800 jurors called for service, with only six declining to be solely identified by number.

Although some may say recent high-profile cases have stirred up the jury reform movement, Munsterman feels their impact is minimal.

In California, he said, the real impetus came from Los Angeles County, where some reports indicated large numbers of jurors summoned for duty never showed up in court.

In fact, according to the Judicial Council's blue ribbon commission, nearly 4 million juror affidavits were mailed in the county in 1994-95.

However, 36 percent did not respond, 15 percent were undeliverable, 12 percent were returned for updating and 26 percent were excused as either unqualified or due to hardship.

This left only 10 percent who were qualified, and only half (172,154) actually served on juries. These numbers represent a 5 percent "juror yield" which is considered low when compared nationally.

Proposed laws

The blue ribbon commission has recommended that the legislature enact several statutes. The legislature, said the report, should enact laws which would:

The legislature was unable to a pass any major bills dealing with jury improvements during the past session. At least 15 pieces of legislation were introduced, but most fell by the wayside after dying in committee or from lack of support.