Over a decade ago, I was given a ticket for a moving violation. I thought I was innocent, so I demanded a trial. I showed up in court on the relevant day, and went out of my way to construct what I regarded as a cogent defense based on the law. Most of it was disallowed as “irrelevant” by a judge who insisted that I was guilty because most people accused of my infraction were: why think I was any different? Having made my presentation, the judge asked whether I had any more to say. No, I replied, but I had some visuals–some photographs–to support my case. The introduction of the photos was disallowed on the grounds that I had failed to “introduce them into evidence” at the outset. And that was that.

I lost that case, but learned a valuable lesson, one that I never forgot. Is the lesson that you should introduce your exhibits at the outset of the trial? No, the lesson is, when you venture into court, the deck is stacked against you. The Athenians allowed Socrates to “speak in his own manner” in court, but don’t expect contemporary lawyers or judges to do the same for you. They play by their own rules. Unless you have the money to hire someone who plays by the same rules, and someone who cares enough about integrity to earn his pay, you’re fucked. Courtrooms are not about justice. They’re about rules and histrionics. Hope for the best, but expect nothing–or less.

I hadn’t meant to write another post on Scot Peterson until after the verdict, but I couldn’t help noticing this little passage in an article on CNN, apparently the only national media outlet covering the Peterson trial.

After about 3 1/2 hours of deliberating, jurors asked Tuesday morning to view “poster-sized evidence” and other visual aids used by the state and defense during their presentations. The court declined to provide the visual aids since they were not introduced into evidence, and state Judge Martin Fein told jurors they had all the evidence introduced by both sides.

Better that the jurors should work at a cognitive disadvantage than that some legalistic rule be disrespected.

In reading that, I was reminded of a passage in a paper by Akhil Reed Amar that I used to teach to pre-law and criminal justice students, “Reinventing Juries,” discussing the role of juries in the American legal system, and offering some ideas for reform. Here is Amar’s proposal #4:

4. Respecting Juries

My next proposals are far more modest….Some judges do not allow jurors to take notes. This is idiocy. Judges take notes, grand jurors take notes, legislators take notes–what’s going on here? If juries today come up with stupid results sometimes, don’t put the blame on them alone. Why shouldn’t juries be told at the outset of a case–in plain English, not legalese–what the basic elements of the charged offenses are, so they can be thinking of them, and checking them off in their notebooks, as the trial unfolds? If judges are allowed to ask questions from the bench, should not juries at least be allowed to forward questions to the judge to be asked, if not substantively inappropriate?!!! More generally, we must try to design the system to welcome jurors. Like Ronald Reagan in that famous New Hampshire debate (or was it Spencer Tracy in State of the Union?) they are the ones paying for these proceedings, and they are entitled to be treated with respect. Instead, all too often, they are treated rudely by court regulars, made to wait in cramped and uncomfortable quarters, treated as if their time had no value, shuttled around without explanation, and so on. We should use juries to reconnect citizens with each other and with their government. After serving on a jury, a citizen should, in general, feel better–less cynical, more public-regarding–about our system, but our current regime, run for the convenience of the regulars, too often has exactly the opposite effect.

As an academic, the prospect of being forced to sit through a long, involved proceeding without being allowed to take notes had never occurred to me before I’d read Amar. Indeed, the idea of having to make a complex, high-stakes judgment without being able to refresh my memory at will seemed an obscenity. But that’s how courtrooms are run. The lawyers know better, or at least think they do–in what sense of “know,” only God knows.

I would add one thing to Amar’s wish list: it would be nice if jurists learned something from, say, cognitive scientists and philosophers about the requirements of cognition and the elements of good reasoning, and permitted juries the luxury of satisfying the one and observing the other. Philosophers have been making this modest plea since Plato’s Apology, but what we’ve been saying seems, for 2,500 years, to have fallen on deaf ears, sometimes willfully deaf ones.

In waiting for a verdict in the Peterson case, I can’t help thinking that, whatever the verdict, this trial itself has been a crime of its own. Nothing can redeem it, but only one thing can prevent it from becoming more of a tragedy than it’s been. Nothing to do but wait and hope. Like so many things pertaining to this trial, alas, it’s easier said than done.