Jury trial: A waste of time?

Dr. Orville Taylor, Contributor

No guilty person should walk free. However, the decision to free or convict an accused cannot be taken frivolously. In a country with one of the world's highest homicide rates, we want the guilty caught, have their culpability determined, and punished in a swift and definitive fashion.

My interest is not whether or not a person is 'not guilty' because a jury has not found him so. Rather, the concern is whether or not he is 'innocent'.

We sociologists have to constantly grapple with the age-old questions of 'social order'. Whatever our theoretical orientation, we all agree that compliant behaviour arises when the chances of the deviant conduct being detected are great. It is not high science; as children, we took small amounts of sugar from the jar under the wagon, because Granny would beat every grain out of us if she discovered that we used it to run boat and mek wash.

Nevertheless, we were equally astonished when we went to high school and met bratty middle-class children, who disrespected their parents in public places. There were two elements there. The first was the likelihood of detection, and the second, the certainty of summary and merciless punishment.

Scores of guilty go unpunished

It is the same paradigm regarding violent crimes, with just around 30 per cent of killers being fingered by the police. Thus, most of them do not get picked up at all. When the data are crunched, the majority of murderers, a whopping 95 per cent of them, never see the 'gyallaz'. Just like the unscolded ill-mannered children, scores of guilty go unpunished. Critical to the murder accused escaping penalty, despite evidence being as strong as JB overproof rum and the case as tight as Hotty Goodaz's skirt, is the desire of the jury to do what is right.

Herein lies my dissatisfaction: jurors might be the weak link in the system. We pride ourselves on having a democracy, wherein persons charged with murder and other serious offences are tried by juries 'of their peers.' Chuckle! Reflecting mindless legal rote, akin to nursery rhymes, the Ministry of Justice posts, "A jury is a representative cross section of the local community and, therefore, more likely to judge in line with generally accepted values of the society." Furthermore, "Trial by jury ensures that the people are accountable to each other rather than to a government-appointed judge for decisions made in such trials." Maybe I missed it, but where does it say anything about law and justice?

This "a cross section" is a myth. Persons unable to speak, read or write English are exempt. Ask Minister of Education Ronnie Thwaites for data on functional literacy and ability to speak 'Hinglish.'

Then, politicians, not already disqualified by the above standard, lawyers, medical doctors, nurses, soldiers, teachers, among others, are also excluded. This shrinks the pool considerably. Thus, in a country with 16 per cent unemployment, the sample is skewed away from the middle and professional classes and biased towards the less educated. Furthermore, the current crop of jurors gets recycled more often than black clothes in my wardrobe. The nonsense of a jury of one's peers is so much bull, that it makes the heifers buck in mockery. Jamaican juries are not randomly selected by any scientific method taught in statistics courses. But then again, the murder accused tend to cluster in the same demographic category.

How can we guarantee that laymen, not schooled in the fineries of law, make the most important legal decisions possible? Follow the logic, we cannot trust non-lawyers to decide if an individual stole money from his employer, or toted a firearm without a licence. Indeed, a judge will hasten to advise the citizen, however more generally educated than her, that the professor of psychology is less competent than a magistrate with a first degree in determining child welfare.

For the record, reflecting national consensus, juries are often unwilling to convict popular figures and may avoid taking responsibility for the killing of another human being.

Double standards

My suspicion is that the legislators, whether the original framers of the Constitution or the present set, are really not interested in justice, because they could hardly think that in a few short hours or days, a judge can teach an ad hoc group to judiciously evaluate if an accused committed rape or murder. It is double standards. Moreover, given the large number of lawyers, who feed off the burgeoning murder rates, I am willing to bet that they would not trust a judge or panel of judges, some of who taught them in law school, to make the unbiased judgment in law, as to the guilt or innocence of their client.

We can't have it both ways, either we feel that judges are gullible, venal, incompetent or biased, or they are capable. Interestingly, the majority of lawyers with whom I discussed the findings of Transparency International, that six per cent of Jamaicans reported paying bribes to the judiciary, doubted the survey and trusted their lordships. So, what is the issue then, learned counsel?

Between the legislature and the bar association they need to make a decision as to whether they truly think that a set of infinitely recycled persons, with little or no knowledge of law, are better able to determine guilt or innocence of individuals, whom learned prosecutors are convinced, based on their knowledge and training in law, are guilty.

In Nigeria, where the abovementioned offences are tried by judges only, that is one of the concerns, because there is suspicion that its judiciary is corruptible. However, in Singapore, the country which is often used as our standard, bench trials seem to work successfully, and the judges make their decisions based on law and sound evidence, rather than court gymnastics and juridical psychology. That country's homicide rate is one of the lowest in the world.

The jury might be out, but I would prefer these comments evaluated by competent High Court judges.

Dr Orville Taylor is senior lecturer in sociology at the UWI and a radio talk-show host. Email feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.