Tony Lenehan: Juryless trials – fact and fiction

Tony Lenehan: Juryless trials – fact and fiction

Tony Lenehan

Now that the ‘not proven’ debate has been settled, defence advocate Tony Lenehan writes about the impending juryless trials pilot and questions the authority on which it has been proposed.

I cannot now remember what I was doing in 1994 which distracted me from watching the OJ Simpson trial on television. Reading Jeffrey Toobin’s book about it more recently allowed an understanding of why it is said that OJ’s trial changed the way the public looked at defence lawyers in general, and not for the better.

For younger lawyers, it’s worth casting an eye over the OJ trial process, because I doubt you’ll even be able to guess how cynical the defence team were, or how poorly many witnesses were treated, and how little procedural control and dignity the court retained by the end of it.

There is ample room for the view that the OJ Simpson trial was won by the defence in the jury selection process. Jury selection in US trials can involve paying ‘jury consultants’ tens or even hundreds of thousands of dollars to identify the perfect stratum of society from which sympathetic jurors should be selected. They would then run ‘focus groups’ with a concentrated selection of such jurors, and see how different defence lines and tactics should play out.

In OJ’s case, the jury consultants recommended female black juror selection, and discouraged selecting men, and the white middle class generally. They predicted (correctly) that the prosecution wouldn’t want the poor optics of opposing black juror selection, and so it was that OJ’s jury came to be a markedly unrepresentative bunch, designed by one side to deliver what they alone wanted, and let justice be damned.

To a Scottish lawyer it seems unbelievable that a court would allow such social profiling and vetting of a jury. We have no inquiry into what jurors think or believe. Once you’ve been cited, age doesn’t matter (unless the juror is over 70), nor does gender. Income doesn’t matter. Race and ethnicity don’t matter. Education doesn’t matter.

In the result, you have a jury composed of all the ages, walks of life, beliefs, religions and morals that represent our society. Neither side can tailor that composition to suit their own ends. It is this breadth of experience and judgement that underpins faith in the justice that Scottish juries deliver.

The jurors cannot be asked about their individual pathways to conviction or acquittal. It is a criminal offence to do so. The teachers, pensioners, unemployed people, builders, dentists, students, homemakers - whoever else is balloted, young and old- hear the evidence, and the speeches and then the rules and bring their experiences and judgement to bear in their verdict. This is democracy in action.

You’ll maybe know where I’m going with this.

There are moves afoot, indeed far advanced, to strip the democracy out of the higher criminal courts, and replace it with a single judge sitting alone. All of the benefits of variety in life experience that the public jury brings are replaced by middle age, university education, most likely white and male. No doubt decent, highly intelligent and capable people, but remote from the slack knit worlds of drink, drugs, casual sexual encounters, and violence that compose the dismal backdrop to most jury trials.

And these judges, I suspect, will be watched carefully by the special interest groups to see how well they comply with their drive for more rape convictions. The judges will be intelligent people, and will feel those eyes upon them, and it will be the strong character indeed who pays them no heed. How many judges could ignore completely the prospect of a tabloid backlash in deciding that a rape complainer wasn’t convincingly truthful?

OJ’s defence attorney Johnnie Cochrane warned the jury in his speech that there could be consequences for those of them in the black community for anything other than an acquittal.

That thinking, perhaps, is in the mind of some of the strident minority who are driving the elimination of the Scottish public from these trials. By these means they may hope for subtle control and influence over the decision makers, in the way OJ’s ‘dream team’ did to bring about that shocking acquittal.

I have never seen any official recognition of this motivation, it is true. What is asserted time and again is what they consider to be an unacceptably low conviction rate and the asserted inability of the public to understand the sexual affairs of fellow citizens. For evidence of that they point to the Scottish (Mock) Jury Research, details of which have featured recently in these pages.

I’ve written before about the Scottish (Mock) Jury Research, and the limitations forced upon the esteemed academics involved in it. Our criminal law meant that they couldn’t ask real jurors about real trials, and so conducted pretend trials with pretend witnesses and pretend jurors. Then the pretend jurors were asked questions about the simulated experience, and conclusions drawn therefrom, for what they were worth.

I am certain that the academics involved would have preferred access to real jurors, from real cases, selected at random rather than relying on volunteers. They’ll tell me if I’m wrong. But if I’m right, then the reason they’d have preferred access to real jurors from real trials is that the resultant analysis would patently have carried more force.

If that reasoning is correct, and such a study would have greater value in the discussion, then it’s surprising to see how little mention there is of exactly such a study conducted by Professor Cheryl Thomas QC (hon), director of the Judicial Institute at UCL, University of London. In 2018 and 2019 65 discharged juries from four different regions of England and Wales were involved in an anonymous process of questioning. Nearly eight hundred jurors were involved- real jurors from real cases taking real decisions that changed the course of people’s lives in both sexual and non-sexual offence cases.

Professor Thomas was brought in by the senior judiciary in England and Wales to conduct her research. The professor was given leave to make the sort of enquiry from which the Scottish Mock Trial academics were excluded by law.

Professor Thomas concluded that the special interest groups’ arguments to exclude the public from sitting in judgement, such as general public subscription to ‘rape myths’, is not supported by the evidence, in stark contrast to the Scottish Mock Jury research findings. The professor has a great deal to say about the limitations of ‘mock’ research projects, and why we should be circumspect about their value.

Mock trial research was the only option available to the Scottish academics, I fully acknowledge that. But we know that real jury research has been conducted, and is available. Professor Thomas’ research should surely be the cornerstone of the discussion now, and the fact that it isn’t turns the cynically minded lawyer towards the suspicion that those with special interests embrace only the research that suits them, and blind themselves to that which doesn’t.

Among the great many moral and professional failings of the lawyers in the OJ Simpson trial, seeking and exploiting control over the jury brought disrepute to the profession of criminal defence in America.

The lessons for fair-minded trial lawyers to be learned from the OJ Simpson trial misdeeds are myriad and salutary. Whether in the 1990s or today, a Scottish court would never have tolerated even a hundredth part of the Simpson goings on. From the trivial (like lawyers saying “but you’re my bud!” to the judge in open court), through the serious (like the judge giving media interviews during the trial process), to the unforgivable (like Mr Cochrane threatening the black members of the jury with the social repercussions of a conviction).

But it was in allowing one party to exercise control over the decision makers, the jury, that it seemed to me the whole trial process was robbed of objective validity.

I hope I’m wrong in thinking that is exactly what’s planned by a vocal minority in Scotland, in eliminating the anonymous balance of 15 members of the public from serious criminal trials and then replacing them with a named person, who, be in no doubt, will be vulnerable to attacks in the press for every decision the vocal minority don’t like. To achieve this change, that minority seem to embrace the hypothetical research which suits them, and ignore the hard evidence from Professor Thomas’ work, which definitely doesn’t.

An unbroken line of great legal minds stretches back centuries in their commitment to the refinement towards perfection of the Scottish system of criminal justice. To upend such a tried and tested system any arguments must be based on reliable independent inquiries. Opinions don’t become fact because of how loudly they are expressed.

The arguments the special interest groups pray in favour of abolishing juries in criminal trials involve trying to extrapolate from pretence into reality, from their reading of the mock trial research. In contrast, Professor Thomas’ seven hundred and seventy one genuine jurors, from real cases with real lives at stake, are solidly grounded in reality and need no extrapolation.

It will be obvious I have a view on the inadvisability of eliminating the public from deciding guilt in serious sex crime cases. I recognise that my voice is but one of many, and I cannot command the outcome in the issue. What I can ask is this: please will those charged with deciding on the seismic change to juryless trials familiarise themselves with the reality of juror actions and perceptions, charted by Professor Thomas, and set that against the artificiality of the work forced upon the Scottish academics in the mock trial research.

In my view there are many arguments against removing the public from serious sex crime trials in Scotland. As it did in Orenthal James Simpson’s trial, allowing or risking one interested party exercising control over the decision makers robs this most important of civic functions of public confidence, and of the essential transparency of justice. To take that step on a blinkered view of the research would surely reflect poorly on our Parliament and its professed democratic aspirations.

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