Remember in high school when you learned that light acts both as a collection of individual particles and also as a wave moving through space? It was hard to get your brain around, but very cool.
Juries are like that. It is equally accurate to describe them as a collection of individuals and as a single group organism. And it's hard to get our brains around that duality.
Lawyers get the "particle" part. We may not be good at it, but we try to approach juries as a collection of individuals, and to connect with their individual psychologies. But lawyers have a much more difficult time understanding how the jury acts as a separate whole.
We got a recent tutorial in the wave theory of juries in juror Denis Collins's essay on the deliberations in the Lewis Libby trial, published in the Huffington Post.
Unusual individuals
Even at the "particle" level, this was an unusual jury. The Census Bureau's 2005 American Community Survey confirms what we know about the two demographic faces of D.C.: while the district's poverty rate is the third highest in the nation, it also has a far higher proportion of college graduates than any state.
That educated population was fully represented in the Libby jury. "[O]ur foreperson Susan [was] an accounting manager at one of DC's biggest law firms and, more impressive to us, a marathon runner, yoga diva and all around sweetheart," Collins tells us. Carl was a computer specialist and avid reader, while Kate booked conventions for hotels and knew "a scary amount of pop culture."
One juror was a lawyer. (Collins didn't say which, and I couldn't confirm online, but from his other quotes she sounds like Anya, the "champion note taker" who was able to "report that 25 of Fitzgerald's 36 objections to Wells' cross examination of Russert were sustained.") And of course there was Collins himself, a journalist who had just written a book on the CIA, had worked for a few years under Bob Woodward, and had been Tim Russert's neighbor.
An extraordinary group
This was the group that, when the trial was finally over, closed the jury room door behind them and sat down to deliberate. They hadn't talked about the evidence until then; all they knew about each other, Collins said, was that "that we like each other, laugh a lot and take the job seriously." They were startled by the challenge of their task when one juror began, "I think they're lying. Every one of them."
It's clear that the most critical decision these jurors made was how to structure their conversation. "When Judge Walton sent us to begin deliberations," Collins says, "he did not include a how-to guide." It was clear to them that a straw vote was not the right first step; Collins doesn't say exactly why, but it sounds like they feared, with reason, that from such a strongly partisan beginning, the discussions would quickly become arguments.
Instead, the foreperson, Susan, suggested, "Why don't we start at the beginning? We'll take the witnesses one by one and review the testimony." And that was what they did, asking for "giant Post-it sheets" and photos and making notes on the posters, until "more and more of our witnesses looked down at us from the lounge walls." Collins describes how they spent days collating the evidence and the witnesses' credibility, never talking about what their verdict would be.
Group checks, group balances
As they went along, the snippets of conversation Collins recounts are rich with the checks and balances of a group at work. One juror, Kate, protested at one point, "I could go down the list and find a lot to make him guilty but is that why we're here? Maybe I'm wrong, but I feel like my job is to prove his innocence." Anya (the one I'm guessing is the lawyer), replied, "We're not here to prove his innocence. He's already presumed innocent. We're here to judge whether the government has proven him guilty."
When "someone suggests Fleischer got immunity so he could lie to the Grand Jury," Anya is there again. She "explains, in her gentle way, that immunity only protects you if you tell the truth." Another juror, Delia, adds, "My mother had a saying. 'When you let yourself be led by emotion, you will usually end up wrong.' I think we need to keep emotion out of this."
"We ask them instead to change ours"
They were still stuck when they finished the witnesses and started making posters for each of the five counts in the indictment. Even something as simple as who was sitting where made a difference in how the conversation progressed:
At one point a few of us decide to change seats. It is a providential move because it put Steve next to the Post-it board. He immediately takes over the presentation of the five counts against Libby. For more than six weeks, Steve has been logical, self deprecating and unbiased. Now he uses that reservoir of trust to guide us through our hesitation. When count 3 the False Statement made by Libby to Time magazine reporter Matthew Cooper runs into a dispute over a technical point, he tables it before any rancor develops and moves to another.
Finally they took the straw vote, nine votes to two. The steps from there to the unanimous verdict are a marvel of group process:
The next morning we begin again. Revisit our charts. We do not ask the two holdouts to change their minds. We ask them instead to change ours. After 20 minutes we vote again.
400,000 sides
I find all this amazing and humbling. Imagine how easily it could have gone differently. What if they had taken a straw vote at the beginning, and launched into debate instead of the evidence review? What if, when Kate said her job was to prove Libby innocent, one or two others had chimed in to agree? What if there had been no Anya, or Delia's mother had not been so wise, or Steve had wanted to sit closer to the door? What if, in the end, the majority had laughed at the two holdouts, instead of inviting them to make their case again?
Change one guest at a dinner party, and you've changed the evening's conversation. Change one person at a staff meeting, and you've lengthened it by half an hour. There are 400,000 potential jurors in the District of Columbia, more or less; picture rolling twelve dice, each with 400,000 sides. This trial got this jury, and no trial ever will again. It's hard to get your brain around, but it's cool.
(Image by Matt Fetterley at http://www.flickr.com/photo_zoom.gne?id=25712600&size=s; license details there.)
