Notes on the Jury System
American Nancy Ann Kissel is on trial in Hong Kong for the murder of her husband Robert Kissel. The question was whether an American can get a fair trial in Hong Kong. First, there are the judges and lawyers, for whom there should be no question about honesty, integrity, knowledge and intelligence. The judge is named Michael Lunn, the government prosecutor is Peter Chapman and the defense counsel is Alexander King; those names are listed to show that there isn't a language barrier. Then there is a jury chosen from one's peers. But this is Hong Kong and what does that mean? It is not going to be a jury of American citizens. It is a jury of Hong Kong residents. The following report describes the process of jury selection.
(The Standard) Potential juror excused after second try. By Albert Wong. June 8, 2005.
A potential juror was dismissed before the murder trial of Nancy Kissel after he told the court he would not be able to give a fair verdict when he realized the accused was Jewish. A deputy general manager of a factory in Dongguan, Lau Kin-po, originally sought exemption from sitting as a juror because his factory is going through "restructuring'' which requires his supervision. Justice Michael Lunn dismissed his objection since another employee could easily take over his role, as would happen if Lau fell ill.
After two more jurors had been selected, Lau raised another objection. Remembering that he and other possible jurors had been informed by the judge that the Kissel family were members of the United Jewish Congregation on Robinson Road, Lau said he would not be able to pass a fair verdict. Lunn asked him if he were implying that, because of race or religion, Lau could not be impartial. Lau replied that he held "a position'' in the Arab-Israeli conflict. In a stern voice, the judge said simply, "Go.''
When told that the murder trial would last until mid-August, there was a collective gasp from the jury panel. The judge reminded them that "trial by jury is one of the cornerstones of the rule of law'' and should be cherished by citizens since it was what made Hong Kong stand out from other countries in the region. Nevertheless, eight potential jurors succeeded in obtaining exemptions. Three men were successful on the grounds of their poor English.
A chef originally sought exemption because it was "impossible to replace'' him at the culinary school where he taught. The judge refused this exemption, but the prosecution dismissed him when a member of the prosecution team realized he had gone to school with him.
A female administrator at Queen Mary Hospital was excused by the defense because she was acquainted with some of the witnesses. A bus driver was also asked to step down by the defense, although the judge originally believed his English was adequate. A man whose son is suffering from a long-term illness was also excused. Some of those eventually sworn in as jurors had raised the usual issues of language ability and employment commitments.
So is this a fair jury? Will Nancy Ann Kissel receive a fair trial? As a blogger, I usually throw up my hands at such questions and say honestly that I don't know. And I don't know, beginning with the meaning of fairness.
Here I am not going to say any else about the Nancy Ann Kissel case, which is still going on. Instead, I am going to say something about jury decision-making in general. It turns out that I ought to know something about the subject. Actually, I should know a lot given that I spent a lot of time researching that subject. This pdf document on the curriculum vitae of Professor Mark Granovetter of Stanford University lists an unpublished work titled Threshold Models of Jury Decision-Making (1988). The co-author is me. In writing that paper, I did a huge literature research on the subject of juries. That paper was about how alliances, blocs or coalitions can be formed within a jury and steamroll everyone into a decision that perhaps nobody really agreed with. In 1988, before the term neural networks came into public consciousness and before Stephen Wolfram began to work on the statistical mechanics of cellular automata, I was simulating how differential influences among jury members impact the sequential group decision-making process.
The above is pretty abstract. What does it mean? If you pick 6 or 12 people from your peers, the outcome may vary drastically from one jury panel to the next. Even if you have two panels that are completely matched in terms of demographics (e.g. age, sex, race, ethnicity, income, education, occupation), the outcome will still depend on heterogeneity (i.e. not all Hispanic men are alike) and group chemistry.
To make it more concrete, here are some revelations from actual jury members in a recent major trial.
(MSNBC) 2 jurors say they regret Jackson's acquittal. August 9, 2005.
Two jurors in the Michael Jackson trial say they now regret voting to acquit the singer of child molestation charges Eleanor Cook and Ray Hultman revealed in a televised interview that they believed the singer’s young accuser was sexually assaulted. “No doubt in my mind whatsoever, that boy was molested, and I also think he enjoyed to some degree being Michael Jackson’s toy,” Cook said on MSNBC’s “Rita Cosby: Live and Direct.”
Cook and Hultman said they agreed to go along with the other jurors when it became apparent that they would never convict the pop star. The two denied being motivated by money and tried to explain why they were coming forward now. “There were a lot of people that were interested in this case from day one. People expect to know what’s going on with their justice system and how things work,” Hultman said. Added Cook: “I’m speaking out now because I believe it’s never too late to tell the truth.”
Cook and Hultman also alleged that jury foreman Paul Rodriguez threatened to have them kicked off the jury. “He said if I could not change my mind or go with the group, or be more understanding, that he would have to notify the bailiff, the bailiff would notify the judge, and the judge would have me removed,” Cook said in a transcript provided by MSNBC. Hultman said he also felt threatened and didn’t want to get kicked off the trial. A call to Rodriguez was not returned. A jury foreman cannot remove other jurors just for disagreeing.
Cosby asked Cook if the other jurors will be angry with her. “They can be as angry as they want to. They ought to be ashamed. They’re the ones that let a pedophile go,” responded Cook, 79.
Hultman, 62, told Cosby he was upset with the way other jurors approached the case: “The thing that really got me the most was the fact that people just wouldn’t take those blinders off long enough to really look at all the evidence that was there.” Hultman has said that when jurors took an anonymous poll early in their deliberations he was one of three jurors who voted for conviction.
On June 13, the jurors unanimously acquitted Jackson of all charges, which alleged that he molested a 13-year-old boy, plied the boy with wine and conspired to hold him and his family captive so they would make a video rebutting a damaging television documentary. Cook told Cosby: “The air reeked of hatred and people were angry and I had never been in an atmosphere like that before.
Now isn't it frightening to put your fate into the hands of a jury like that?
In my career as a translator for American law enforcement agencies (see the previous post Translation and its Discontents), I had watched many of the cases go through the trials while knowing the evidence well. Those cases are typically racketeering cases involving numerous Chinese gang members charged on a number of crimes (e.g. murder, assault, narcotics, firearms, extortion, gambling, prostitution, etc). I do not believe that a jury of their 'peers' (namely non-Chinese American citizens) could sort out who did what to whom over the course of an 12-week trial.
Here is an example: There was a big trial in the late 1980's of members of the Taiwan Bamboo Union gang. Famous gang members such as "White Wolf", "Yellow Bird" and others were arrested and put on trial on multiple charges in New York City. Also arrested was the co-conspirator "Little Tung" aka Tung Keui-shen. All were convicted. Upon information and belief, the evidence on Little Tung was the following. The audio tapes showed that his name was regularly mentioned by the others (in the context of "When we were young, Little Tung did this and that ..."). Such evidence is known as hearsay. If a bunch of low-level mafia types were to cite US Vice President Dick Cheney as their boss, this does not make it true; they could be just bullshitting and there has to be direct evidence.
During the course of the investigation, it was known that Little Tung was somewhere in Thailand. The others talked about importing Number 4 heroin, but it is unclear who the supplier was. Among the phone records of "Yellow Bird", there was one telephone call to a number in Thailand. That call was not monitored. The FBI did not know who made the call, they did not know who took the call, they did not know the subject matter, and they did not know where the number was except that it had a Thailand country code. On the basis of this 'evidence,' the jury found Little Tung guilty as charged in the racketeering conspiracy and he received a 20-year jail sentence. I had to believe that after a 12-week trial, the jury could no longer remember what this one individual actually did. Little Tung was a very bad person, but this was not what he was guilty of from the presented evidence.
This is not to say that I have no confidence in the judicial system. The fact is that most cases do not go to trial. In most criminal cases, the evidence is so clear-cut that the accused will plead guilty and bargain for leniency. The cases that go to trial are precisely the ones which contain some shades of ambiguity, or the case is very complex, or else the defendant can afford expensive counsel even if the evidence appears to be overwhelming. And this system is not perfect by any means.