Dramatic Reform Proposed for California Jury System

Seeking to make jury service more humane and efficient, an influential statewide commission has proposed allowing nonunanimous verdicts, encouraging jurors to confer during trials and punishing citizens who shirk jury duty.

The far-reaching reform proposals--outlined in a draft report by the Judicial Council’s high-powered Blue Ribbon Commission--would transform California’s jury system.

Jurors would be able to meet to discuss their case at intervals during trial. They could pass written questions to the judge, asking for clarification or probing for facts. They would get a glossary of key terms before taking their seats for opening statements.

And in the most controversial provision, they would be able to render a decision on an 11-1 vote, except when the defendant faces the death penalty or life in prison.

Implementing the draft report in full would require amending California’s Constitution at least twice, passing several laws and changing policies that courts have been following for decades. Some proposals to make life easier for jurors could be implemented by Judicial Council mandate while other suggestions would require legislative action.

To some legal scholars, at least, that dramatic overhaul seems like overkill.

“We have to ask why we’re so eager to have jury reform in the first place,� said Laurie Levenson, a Loyola University law professor.

Even some on the commission refused to endorse the draft report’s call for nonunanimous verdicts and smaller jury panels in some cases.

“I don’t feel we should tamper with 200 years of democracy to try to fix something that isn’t really a problem,� said Gerald L. Chaleff, a commission member and Santa Monica defense lawyer.

Divisions on those points did not, however, prevent the Blue Ribbon Commission’s members--including judges, lawyers, court officials and business leaders--from agreeing that California’s jury system is near collapse, suffering from poor participation and a terrible image.

“We started with the premise that a democratic society relies heavily on citizen participation and service as jurors,� said Harry G. Bubb, a committee member and chairman emeritus of Pacific Mutual Life Insurance Co. “We need to do things to make that participation possible.�

So the commission’s draft report urges tough measures to prod more citizens into judging their peers.

Citizens who ignore jury duty summons could have their driver’s licenses suspended under the proposals. On the plus side, those who show up would earn at least $40 a day--as much as they could take in at a minimum-wage job and far more than the $5 daily stipend Los Angeles County now offers. To further boost participation, the report calls for courts to provide jurors with free child care.

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The county already has adopted a harsh attitude toward jury-duty scofflaws. Those who ignore summons face a fine of up to $1,500--and the first batch of offenders are scheduled for hearings in June. The county is also trying incentives to reward good behavior, including sprucing up the jury assembly room and making it easier for people to reschedule jury duty.

Still, it remains tough to get compliance: In Los Angeles County, at least 1,500 citizens ignored jury summons in the first month of this year. Until recently, local courts were clogged with thousands of unopened letters from county residents seeking to defer their jury service. And the “three strikes� law has stoked the need for ever more jurors, as defendants facing a second or third “strike� increasingly opt for trials instead of plea bargains.

Asked whether the jury system really is slipping toward collapse as the report suggests, Los Angeles County Assistant Presiding Judge Robert W. Parkin responded glumly: “It’s getting there.�

To ease the courts’ insatiable need for jurors, the Blue Ribbon Commission called for shrinking the size of jury panels from 12 to eight for all misdemeanor and civil cases handled in Municipal Court.

Also, the report recommends abolishing jury trials in misdemeanor cases when the defendant would not face a prison term if convicted. Under that proposal, a person accused of petty theft or even some drunk driving offenses would not have the right to a verdict from his peers; instead, the trial judge would decide guilt and hand down the sentence.

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Between the call for nonunanimous verdicts and the proposal for smaller jury panels, some critics view the commission’s draft report as dangerously hard-line--a series of radical steps that could imprison innocent people and jeopardize defendants’ rights to fair trials.

“One of the reasons given for these reforms is that people have lost faith in the system,� said Los Angeles County Public Defender Michael Judge. “But some of the proposals they have called remedies would make that loss of faith even worse.�

Over the past 20 months, Judge said, only 11% of the cases his office has handled have ended in hung juries. And only one-fifth of those cases hung on a 11-1 vote. So Judge contends that the proposal to allow convictions on 11-1 votes would end up saving little court time. As for justice, Judge points to the handful of cases--four or five, he said--in which the defendant was found not guilty on a retrial after a first jury deadlocked 11-1 in favor of conviction.

Allowing juries to ignore a lone holdout, Judge argued, “would be running a very substantial risk of putting innocent people in prison.�

Prosecutors, of course, tend to favor the idea of nonunanimous verdicts. Los Angeles County Dist. Atty. Gil Garcetti, who served on the Blue Ribbon Commission, has been calling for just such reform for some time.

While prosecutors and defense lawyers split on the verdict-reform proposal, they unite in vehement opposition to another of the commission’s ideas: reducing lawyers’ authority to bump prospective jurors from panels by using “peremptory challenges� to weed out those with possible biases.

In most criminal cases, each side can now reject 10 potential jurors without explanation; the reforms would whittle the number of peremptory challenges to six. In the most serious cases, including death penalty trials, lawyers for each side would get 12 challenges, instead of the current 20.

“Giving attorneys unbridled power to remove people from the jury does not work well in the service of justice,� said Municipal Judge Phil Mautino, who supports the proposal to limit peremptory challenges. “It’s also insulting to jurors to have good people kicked off for no reason.� But attorney Bruce Brusavich said that proposed reform is sure to cramp his ability to get a fair set of jurors in the personal injury, medical malpractice and product liability cases he often handles.

“Don’t just take a meat ax to the system,� Brusavich said.

As president of the Consumer Attorneys Assn. of Los Angeles, Brusavich also intends to fight the provision that would slash jury size, arguing that fewer slots on a panel means less diversity in the deliberation room.

“The last thing we want to do is to implement a system that makes minorities feel excluded from the legal system,� he said.

Some of the proposed reforms are already part of judicial experiments in other states--notably the idea to give jurors a more active role during trials by allowing them to ask questions and even hold preliminary discussions.

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“It goes back to man as a social creature,� Bubb said. From what he heard on the committee, he said, jurors routinely hold covert conversations as a trial progresses, even though they are not supposed to deliberate until after closing arguments. The commission’s proposal would formalize and legitimize such discussions.

“I’d far rather acknowledge and deal with it positively rather than close our eyes and pretend it doesn’t exist,� Bubb said.

The Blue Ribbon Commission will submit a final report next month to the Judicial Council, a policy-making board that establishes rules for state courts. The council will deliberate and vote on the recommendations, deciding which to try pushing through the Legislature and which to go ahead and implement.

Because even the commissioners remain divided on some of their suggestions, the report’s ultimate chances of success are unclear. But, Judge Parkin said, “the people on [the commission] are fairly influential, so their recommendations should carry some weight.�