Glen Ford writes in Black Agenda Report:
A Black People’s Grand Jury in St. Louis, Missouri, this weekend delivered a “true bill of indictment” for first degree murder against former Ferguson police officer Darren Wilson in the death of Black teenager Michael Brown. Black people “can and must take matters into our own hands,” said Omali Yeshitela, one of four prosecutors that presented evidence[.]
The 12 jurors, all of them from greater St. Louis, spent January 3rd and 4th reviewing some of the same evidence presented by county prosecutor Bob McCulloch to the mostly white grand jury that failed to indict Wilson, in November.
One point that this story highlights is an obvious one: The very different outcomes of the Black People’s grand jury and the state’s official grand jury is a testimony to the power of those convening the jury and controlling the proceedings to determine the jury’s decisions.
A more interesting point is that one possible application of sortition, one that doesn’t require official recognition, is as a way to elicit the public’s informed view about issues of high importance and visibility. A jury examining such an issue – properly constituted as a representative sample of the public, and properly organized so that it has the power to conduct its own business independent of outside influence – could become a focal point for the public’s attention and garner popular support and confidence. In this way the jury’s decisions – whether or not it has official mandate – would carry significant political power and would justify the time and effort required by the jurists to examine the issue in some depth.
Putting in place such a process would require the establishment of an administrating institution with enough resources to convene the juries and publicize the proceedings and the decisions. Some seed money would be needed at the outset but once widespread attention to the institution is garnered, any further funds could be raised through contributions from the public. The administrating institution would have to be organized in a way that would guarantee political independence and inspire public confidence. This can be done by having the authority of the institution restricted to technical matters, while delegating all political matters to the allotted jurists.
The main difficulty, in my opinion, would be selecting issues that on the one hand would be important and visible and whose scope on the other hand is restricted so that the time and effort required to understand them are acceptable for the average person. This requirement of limited scope is quite severe unless membership on the jury is the main occupation of the jurists for a period of time measured in months, which is not realistic for non-official bodies. The case Ford discuses is of one type of situations that could meet these criteria – deciding whether to issue indictments in high profile cases where there is a conflict of interest for the professionals of the legal system. This would include, in addition to cases of people killed by police officers, whistleblower cases such as the Wikileaks and Manning cases, and cases with potential politically powerful criminals, such as the issue of torture by the CIA and the US military and banking fraud cases associated with the housing prices bubble in the US of the previous decade.
Filed under: Applications, Juries, Proposals |
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Ford’s conclusion is not that the first verdict was contaminated by sinister influence, but that the jury was “mostly white” (not sure how he was privy to this information). What the post really indicates is the danger that different juries will return different verdicts (especially when one jury only spend two days and reviews “some” , of the evidence), so which one is the true one? (Ford and Yoram clearly believe it was the all black jury, whereas agnosticism its the prudent position for anyone who wasn’t on the jury and heard all of the evidence.) What the post really indicates is the need for large, statistically representative juries and consistent and balanced advocacy, so we should resist siren calls to any experiment that does not fulfill these requirements, especially due to the controversy regarding grand jury verdicts.
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> Yoram clearly believe[s]
Your clarity of thought it always impressive.
> balanced advocacy
Where, as always, “balanced” means “managed by people Sutherland approves of”.
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My model for balanced advocacy is derived from judicial practice. It’s also the approach the media take when debating controversial issues, ditto with Fishkin’s deliberative polls. The problem with grand juries (apart from their poor descriptive representativity) is that there its no adversarial clash of advocates. As such the grand jury is a very poor model on which to base appeals for sortition.
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> no adversarial clash of advocates
And what arrangement would assure us that an “adversarial clash of advocates” would exist? The case Ford discusses, for example, is one in which the prosecutor, nominally out to get the killer, is in fact acting as a defender, trying to protect him.
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Finding defence advocates is rarely a problem — in Ford’s own words: “Omali Yeshitela, one of four prosecutors that presented evidence”. The problem with the grand jury is that, unlike trial juries, only one party is involved (in this case the county prosecutor Bob McCulloch). A similar criticism can be made of UK judge-led enquiries — for example Leveson, when the press was put on trial and there was no counsel for the defence (there was also no jury). The adversarial clash of advocates may be crude and polarising, but it’s the fairest way of arriving at the truth. If we want to follow juridical practice, then it’s better to focus on juries that work, especially as they are modelled on Athenian legislative practice — the implicit model for many sortition-based proposals.
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Among all those who would want to make their case to the allotted, who would get to speak?
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In the present example, those with the professional competence (barristers, attorneys and other legal advocates). In civil rights cases there are generally a number of campaigning advocacy groups who would be keen for the opportunity (from which, I imagine, Yeshitela and his three colleagues were drawn), often on a pro bono basis. So the civil rights groups would provide the advocates on one side and county prosecutor’s office on the other.
Similar principles would apply to the more general case of determining the public’s informed view about issues of high importance and visibility. I have made a proposal to decide the issue of Britain’s relationship to the EU using the judicial enquiry + jury model and there would certainly be no problem finding advocates for and against EU membership from the various civil society groups already campaigning in this area. The role of the citizen jury would be to evaluate these competing claims and determine the outcome. Another way of finding advocates is election by party manifesto and direct initiative (subject to public votation).
I make no apology for the elite nature of advocacy in this model, but then I’m predisposed to limit the debate to people who know what they are talking about (but to leave the outcome in the hands of a statistically-accurate sample of the demos).
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> I make no apology for the elite nature of advocacy in this model, but then I’m predisposed to limit the debate to people who know what they are talking about
So, as always and inevitably, removing the thin cover of hypocrisy, “balanced” turns out to mean “filtered to include only those people and points of view that Sutherland considers acceptable”.
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“Acceptable” in the sense of having passed the threshold of professional competence mandated by society, but these are general standards, as opposed to some sort of personal idiosyncrasy, so I don’t see the relevance of “Sutherland”. I had no personal hand in setting the law exams that candidates have to pass to gain entry to the bar and have no influence over who people vote for or who choose to make online petitions. I also don’t see that requiring people to know what they are talking about and/or to have demonstrated some degree of public approbation is particularly idiosyncratic.
>the [jury’s] power to conduct its own business independent of outside influence
Given that the jury is supposed to represent the “outside” (rather than just contemplating its ever-diminishing navel) and that its business is res publica rather than res privata, insulation against outside influences is a strange requirement.
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> whereas agnosticism its the prudent position for anyone who wasn’t on the jury and heard all of the evidence
As usual you ignore all context to cast more Fear, Uncertainty & Doubt on this blog.
Robert McCulloch (Prosecuting Attorney for St. Louis County) conducted a highly unorthodox grand jury process.
Why? Quite simple really – to continue working as Prosecuting Attorney he needs the full cooperation of the police (for gathering evidence, record keeping etc.).
So there’s a massive conflict of interest here. What’s needed is a Prosecuting Attorney who is completely independent of the St. Louis County police).
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The concern of this blog is not the particular circumstances of the St. Louis grand jury, it’s Yoram’s suggestion to use this flawed model as a basis for experiments in sortition. As for your three Apocalyptic Horesemen, a little agnosticism, prudence and scepticism is in order for anyone making proposals with far-reaching constitutional significance. It’s certainly an improvement on Foolhardiness, Certainty and Conviction, history being littered with the carcasses of projects based on these crusading virtues.
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> It’s also the approach the media take when debating controversial issues
Is that supposed to be an argument in its favor?
This is a hole wide enough to drive a truck through. You can see exactly how it plays out in the media, for instance in TV debates. The more blatant propaganda channels don’t much bother to hide that they pick either straw-opponents easy to cast in a bad light, or loyal opposition pets to provide a thin illusion of presenting “both sides”.
If you hand pick advocates, you’ve got autocracy, plain and simple. If you let bureaucracies pick them according to “general standards of professional competence”, you’ve got China-style authoritarianism (the recent protests in Hong Kong were over a body picked out in just this way). If you elect them, you’ve got all the problems of electoralism all over again.
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Vintermann,
My preferred example is the BBC (as opposed to partisan US networks), where producers and researchers strive to achieve a genuine dialectic. They don’t always succeed, but the usual problem is an excess of heat over light, as opposed to obvious bias. In the example I provide (Britain’s relationship with the EU), achieving balanced advocacy would be remarkably easy as the campaigning organisations already exist.
What problem do you have with the process by which defendants choose their own advocates in criminal trials and litigation? Obviously the best advocates are usually the most expensive ones, but it would be perfectly possible to level the playing field by either capping fees or providing state funding. Or is your objection to market mechanisms per se or letting people make their own choice? (“electoralism” as you refer to it). IMO the problem is not electoralism but that this leads to a situation where advocates are judges in their own cause.
More importantly, what is the alternative? Do you agree with Yoram that the grand jury is a useful model for experiments in sortition.
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Your preferred example is the BBC? You don’t have to go further than the Scottish referendum. Their bias was extensively documented, yet they got away with just dismissing it all, and writing condescendingly at the people protesting their behavior in the streets outside
Yes, I agree that juries not recognized or empowered by the government, could be a tool for change. As long as the selection is demonstrably random, and they are reasonably empowered to ask questions and seek out information on their own.
This seems, however, to not at all be the case with the Black People’s Grand Jury. From what I can see it’s little more than a front for a black separatist group. Well well, at least it’s probably no less effective than protesting in the streets
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> This seems, however, to not at all be the case with the Black People’s Grand Jury.
Yes. But also not at all the case for the state’s official jury (in this case or in any other case).
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Vintermann,
I’m glad that we both agree that the grand jury is a flawed model and I’m happy to defer to your point on the BBC (although their coverage of the Scottish referendum did not strike me as particularly one-sided). The key point in both cases is that there was no independent and competitive process for the selection of advocates. However, random selection, per se, does not guarantee equitable advocacy, so there needs to be some independent means of ensuring balanced input to the deliberative process. Do you not agree that the Deliberative Poll is a valuable move in this direction?
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