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Jury selection should be a lottery, not a game of chess



THE whole ritual of a big court case starts off on the day that the jury is selected. This is an often chaotic affair in which dozens upon dozens of people are crammed into a courtroom for the judicial equivalent of the national lottery.

Each potential juror, who has been summoned to do his or her duty, has a number, which is placed into the equivalent of a draw drum. The numbers are picked out and the relevant person has been chosen.

That's the theory, anyway. When I used to cover the courts, jury selection was an often hilarious farce, in which many of those summoned did their level best to get out of it. Excuses were legion. School plays, weddings, holidays, medical appointments and agoraphobia (or was it acrophobia? ) were just some of the excuses put forward as reasons why the afflicted should be excused from jury service.

Occasionally, a person would be summoned before the judge, and would whisper in his ear, like a child communicating with Santa Claus about his dearest desires. The judge would then make a decision . . .

the person was either in or out.

It didn't stop there. As part of the jury selection process, the legal teams on both sides of the case can object to particular jurors. The rules are that you can make a limited amount of objections and give no reason, but object as many times as you like as long as you have a valid excuse as to why you don't want a particular individual on the jury. What follows is a chess-like battle of wits, in which a person's address, demeanour, age and gender are closely assessed in order to judge whether he or she might be more or less likely to favour the accused.

Juries are supposed to be made up by what are called the "peers" of the accused. Nobody, to my knowledge, has ever come up with a proper and specific definition of what "peers" actually means. If a 20-year-old working class man is on trial for robbery, can a 70-year-old woman from Ailesbury Road in Dublin or Montenotte in Cork be said to be his "peer"? If a garda is accused of assault, can he get a fair trial from a jury drawn predominantly from working-class areas where suspicion of gardai is high? What kind of a hearing can a man on trial for rape, who may or may not be innocent, get from a jury made up predominantly of women? Or, indeed, from a jury made up predominantly of men?

The jury system was imported to these parts by William the Conqueror, who believed that a jury of peers meant simply that an accused person should be judged by people from their own community. That is a nice idea, if it were possible to define community properly. For example, is there such a thing as an Irish community? In a nation where every single controversy is played out at length on radio, television and in the newspapers, and where hardly a month goes by without a major story pitting opposing viewpoints against each other, is it not more accurate to say that we are a series of communities, a patchwork quilt of prejudices, biases and preconceived notions masquerading as a society?

When Judge Paul Carney describes the Padraig Nally case as the most socially divisive he has come across, he is hitting on a key fact about Ireland . . . its obvious, bitter and increasing social divisions, which ensure that major trials are conducted and judged in the context of our view of travellers (the Nally trial), or class (the Brian Murphy trial) or some other touchstone issue.

To do their jobs properly, juries should reflect these divisions, but increasingly they don't. More and more, juries are becoming the representatives of the working class, the unemployed and the retired and they are bringing to their deliberations all the prejudices of those sectors of the community. (This is not to suggest that the middle classes and the gainfully employed don't carry a ragbag of prejudices themselves, or that the jury process wouldn't be just as corrupted by being made up entirely of the rich and comfortable. ) The result is that we are getting increasingly bizarre verdicts, which bear only the slightest resemblance to the evidence presented in court.

By his own account, Padraig Nally shot a traveller, beat the living daylights out of him, and then shot him dead. At least 10 people out of 12 nevertheless decided he was innocent. There were hardly any social divisions on that jury, more than 80% of which gave the green light to such vicious behaviour.

There has been much talk in the aftermath of the Nally trial about whether the verdict was antitraveller. That's impossible to say for definite, but it's probably reasonable to surmise that if a traveller had shot, beaten and then shot dead somebody he believed was trying ro rob him, he would be convicted of murder. But that could just be my prejudice.

The jury system in Ireland is long due a major reform. For a start, jury service should be presented by the state as an important civil right and a civil duty. The economic boom has bred a generation of people who believe that their time is too precious to be wasted in a jury room deciding on somebody's guilt or innocence. As it stands, it's too easy for them to bunk off jury service. If they can't be bothered with it, perhaps the possibility of an extremely stiff fine might concentrate minds. Exemptions from jury service should be granted only in the most exceptional of circumstances.

Barristers and solicitors should no longer be allowed to object to an individual juror unless that juror has a personal interest in the case, such as knowing the accused. At the moment, jury selection has become a game of social engineering in which lawyers try to create a panel of 12 men and women who will most sympathise with their clients. That isn't how it should be. How it should be is that the jury represents the people, all of the people, but that can only happen if individuals from all social classes are present when the juries are being selected. At that point, the first 12 people whose numbers are picked out should be the members of the jury and they can go about the business of dispensing justice and reflecting the divisions and many opinions of the community they live in.




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