Books, Jury Duty, Trials

Defending The Jury: An Interview With Laura Appleman

How can we improve the American criminal justice system by strengthening the community's role in the process?

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Over the past few decades, jury trials have become increasingly rare, as more and more matters get settled or resolved outside the courtroom. In 2015 so far, we’ve seen a number of high-profile cases go to juries — Alexandra Marchuk v. Faruqi & Faruqi, Ellen Pao v. Kleiner Perkins, United States v. Dzhokhar Tsarnaev, Commonwealth of Massachusetts v. Aaron Hernandez — but these cases are the exception, not the rule.

One law professor would like to restore the jury and the community voice it represents to what she argues is its rightful place at the heart of the criminal justice system. I recently caught up with Professor Laura Appleman of Willamette Law, a friend of mine since our law school days together, to talk about her new book, Defending the Jury: Crime, Community, and the Constitution (affiliate link).

ATL: Congratulations on the book, Laura! Can you give our readers a quick overview of what it’s about?

LIA: Thank you, David! Very glad to be here. In a nutshell, the book discusses the much-neglected role of the community in our criminal justice system, and why restoring public participation in criminal justice will not only reduce frustration and confusion, but will also make the process more transparent and inclusive. If the recent widespread public protests and “die-ins” arising from the shootings in Ferguson, Staten Island, and Cleveland teach us anything, it’s that we, as Americans, have a tremendous need and desire to be more involved in the procedures of criminal justice. As a bonus, better integrating the community’s voice tends to result in greater investment and satisfaction in the system. Ultimately, the people’s right to participate in the criminal justice system through the criminal jury – a right that is all too often overlooked – is essential to truly legitimizing the criminal process and ensuring its democratic nature.

ATL: What led you to decide to write this book? Was there a particular impetus or inspiration?

LIA: The book was actually inspired by two things. First, the frustration and unhappiness I saw when I was a public defender in New York County, much of which stemmed from a feeling that criminal justice was this secret process run by “the Man,” with offenders’ families and communities completely shut out of the process. Second, I was struck by the irony of having a criminal justice process based heavily on the tenet of community participation — that a jury of your peers, from the surrounding neighborhood, would determine any punishment you might receive — while at the same time experiencing a system that, with the advent of plea bargains, has almost completely excluded any community voice.

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ATL: Your book powerfully documents how the voice of the community is being excluded from the criminal justice system, which should certainly trouble all Americans. Our readership here at ATL consists largely of lawyers. Why should lawyers in particular be concerned about the realities you describe in the book?

LIA: Obviously, any attorney who interacts with the criminal law, whether prosecutor, defense attorney, or judge, should be particularly concerned with the problems of the criminal justice system, because the public’s unhappiness with our current process is growing, and that will at some point spill out into criminal practice. But more broadly, all lawyers should be concerned with the lack of transparency and community participation, because these procedure-less, overly casual processes governing criminal law give law a bad name. Criminal law gets a huge chunk of media attention; the more troubled it seems, the more public protests it garners, the less the rule of law in general is respected. And we as lawyers should care when rights are being shortchanged, because that has a negative effect on everyone.

ATL: You outline a number of possible reforms to the criminal justice system in the book. Can you give us an example of one of your proposals and how it would improve the status quo?

LIA: So one of the reforms I champion in the book has to do with the community’s involvement in post-prison release. Recidivism is a big problem in the criminal justice system, with 30-40% of our prison population consisting of repeat offenders. Part of the problem lies with our very minimalist support system for released offenders; unless you are fortunate, once you’ve served your time, you are released without much help to find a job, housing, etc. — all of which can be very difficult if you’re a felon. In response to this problem, I would form a community-probation alliance that would be tasked with helping those released offenders get back on their feet — both for their sakes and, equally importantly, for the larger community’s. More community support means less recidivism, and thus fewer crimes and less money spent!

ATL: Defending the Jury argues in favor of giving the community a larger role in the justice system. But are there cases, perhaps involving major crimes that terrorized an entire city, where perhaps the immediate community is too affected to be objective? For example, do you have any thoughts on the recent trial of convicted Boston Marathon bomber Dzhokhar Tsarnaev and whether it should have been held in Boston?

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LIA: There is always a potential concern that an individual jury or community is going to be too biased to fairly rule. But I think we don’t tend to give juries enough credit. Study after study, researchers have found that community members selected for jury service tend to take their job very seriously, and strive for equanimity in their decision making. Take the Tsarnaev trial, as you mention. Despite the defense motions to remove to a non-Boston venue, the judge there felt that the specific Boston community not only could judge fairly, but had the right to determine Tsarnaev’s fate. And I think this belief in community decision-making is reflected by the various polls taken in Boston after Tsarnaev’s conviction; over 75% of Bostonians think that Tsarnaev should get LWOP, not the death penalty. So if the very community that suffered the carnage of the Boston Marathon Bombing can still choose life over death for the perpetrator, I think we can trust the average jury or community’s objectivity.

Defending the Jury: Crime, Community, and the Constitution [Amazon (affiliate link)]

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