Juries often mess up, such as the one that wanted a ouija board to solve a murder case
That’s why a unique TV experiment, says a former top judge, is so compelling
IT WAS a tragic case. A sculptor (let’s call him John) brutally killed his wife. Every one agreed that John was a gentle, kind, law-abiding man, who had never done anything violent. He also obviously loved his wife, whom he had married only two months before.
But his wife (we’ll call her Helen) was a manipulative, spiteful and mentally unstable woman with a short fuse who abused and taunted him until he could bear it no more.
One day, after she had taken to dashing their crockery to the ground in the kitchen and hurling insults at him, John lost his rag and tried to strangle her. She began to turn blue in the face as his hands closed around her throat. Then he grabbed an industrial hammer and smashed it three times into her skull.
This is a real case, although the names have been changed. John was tried for murder.
In The Jury: Murder Trial, a four-part serial which begins tonight, Channel 4 has set up an experiment. Producers re-enact the trial word-for-word with actors — in front of two juries made up of ordinary members of the public.
The court was set up with the two juries sitting in separate compartments, partitioned so neither knew about the existence of the other. The programme-makers filmed their discussions right up to the verdict.
The object was to see whether the juries came up with the same verdict and how it compared with the verdict of the jury at the real trial.
THIS was an interesting and important exercise because, when jurors deliver their verdict, they do not give their reasons. They just say ‘Guilty’ or ‘Not Guilty’. The accused is not told why he or she is about to be sent to prison, maybe for many years. The jurors are forbidden by law to reveal what went on in the jury room. Occasionally, it is obvious that something has gone badly wrong on a jury.
There was a case in 1994 in which four of the jurors decided to use a ouija board they’d made themselves to help them decide a murder trial. The situation only came to light because it had happened in the hotel where the jury was staying, not in the jury room at court. The Court of Appeal set aside the guilty conviction.
In another notorious case, a jury convicted a man of accepting a bribe from a wellknown local politician, but another jury on the same evidence acquitted the politician of paying it.
Trials have had to be aborted because the jury asked the judge a question that showed they hadn’t a clue what the case was about.
This kind of thing probably doesn’t happen very often. But the truth is we do not know. And it matters that we do not know. Juries are at the heart of the criminal justice system.
Channel 4 has done us all a service in exploring this difficult and controversial area. It has also produced some compelling and thought-provoking television.
The real jury at John’s trial had to decide whether he was guilty of murder or manslaughter. Manslaughter is a lesser form of homicide. If John was not guilty of murder then, since he admitted to killing Helen, it had to be manslaughter. This makes a very big difference. The mandatory sentence for murder is life imprisonment, although the judge would usually set a minimum term after which the prisoner can be considered for parole. The sentence for manslaughter will be a fixed term of years, maybe as little as two. The issue in John’s case was about his ‘loss of control’.
This is a partial defence to murder, which reduces the crime to manslaughter. But it is hard to establish. It is not enough that the accused lost his temper or was consumed by rage. It has to be shown that under extreme provocation he temporarily lost control of his own actions, in circumstances where a reasonable person might have done the same.
The prosecution case was that he never lost control of his actions. John, they claim, had enough selfcontrol to stop trying to strangle Helen when he saw her starting to turn blue. In fact, he had enough self-control to get up as she lay semi-conscious on the ground, then fetch the hammer and break her skull with it.
At the real trial, the jury had acquitted the accused of murder, although Channel 4’s juries were not told that. The real judge had given him seven-and-a-half years for manslaughter. With remission and parole, he would have been out in less than four.
I will not spoil the show by telling you what verdict the Channel 4 juries reached. For my part, if I had been a juror, I would have rejected the loss-of-control defence and accepted the prosecution case that it was murder.
Does that mean I think there was something wrong with the real jury when they took a different view? Not at all. Differences of opinion about the facts are an unavoidable risk in any court trying to reconstruct what happened long after the event happened. This is true, however careful the tribunal and whether or not a jury is involved.
The distinction between losing your temper and losing control can be a fine one. Even judges could easily have come to different verdicts on the evidence in John’s case. The same is true of many of the cases that come before the criminal courts.
One of the Channel 4 jurors, in an interview to camera, said: ‘I don’t know that I would want to be tried by this jury’. In fact, both juries come out rather well in the programme.
Both took their job seriously. They listened carefully to the judge’s summing up and understood the issues.
They thought carefully about the evidence that was presented. They put aside their personal sympathies for John or his wife Helen. And they interacted courteously with each other. Several of them changed their minds in the course of their discussions.
Others stuck to their original opinion, but with reduced confidence — an important factor given that a jury must be satisfied ‘beyond reasonable doubt’ before they can convict. This is how jurors are supposed to behave.
CRIMINAL juries are still sacrosanct, and as long as that continues, their place in our criminal justice system is secure. However, we need to understand the high price that we pay for the jury system.
Juries have a well-known tendency to convict in the worst cases in order to achieve ‘closure’, sometimes accepting questionable evidence in order to get to that point.
This is what seems to have gone wrong in some of the IRA terrorism cases in the 1970s, such as the Guildford Four and Birmingham Six, which are both now recognised as miscarriages of justice.
Experienced criminal practitioners say it is exceptionally difficult to get an acquittal where sexual abuse of children is alleged, however old the case and problematic the evidence. The offence is just too horrible.
The main problem with the jury system is that it convicts and punishes people for reasons which are not declared and have to be kept secret by law. Without reasons, it is impossible to have a proper appeal system.
Most juries do a decent job, and the Channel 4 programmes show us why. But sometimes they mess it up.
The trouble is that we do not know how many cases this happens in, or which ones, or how, and we usually have no way of putting it right afterwards.
The system used in the North offers a telling alternative. During the Troubles, it proved impossible to find impartial juries, so threejudge panels were used that gave reasoned written judgments.
As a consequence, none of the notorious miscarriages of justices in IRA cases mentioned earlier happened in the North. Genuine mistakes were made, but were corrected on appeal. We should reflect on that.