One of the things that strikes me as I read the transcripts of the various Enron-related trials is how messy, unscientific, and non-deliberative the process really is. We have this image in our minds that a trial by jury is a solemn search for the truth through an objective examination of the “facts”. But it really is nothing like that at all.
A trial is a lot more like the ongoing Presidential campaign, an adversial struggle in which both sides present their spin tales. The “facts” are nothing more than conveniences or inconveniences in the attempt by each side to convince the jurors to vote for their guy. Of course, the degree of the spin is greatest on the side that is in the wrong. So, for example, in the Enron Broadband case (which is the one I am immersed in right now), the defendants stayed close to the facts, but the prosecutors had to spin like tops in their attempt to fabricate a case. And the overall result for the jurors was undoubtedly quite confusing.
Honestly, part of the problem with trials is that the typical jury is really not equipped to handle a case in which there is any significant degree of subject matter complexity. Most jurors have never performed a document-intensive objective analysis in their lives, and they have no clue how to deliberate on a legal case. The jurors have zero experience in the process, and the instructions by the judge are of little help. Plus, the attorneys realize that jurors have little deliberative experience and that they can be manipulated by spin tales and emotional appeals. Therefore, the jurors never even get to hear a rational, clear presentation of the facts. For example, in the Enron Broadband case, the prosecutors worked hard to obfuscate the facts because the facts worked against them; as a result, the defendants had to spend a considerable portion of their time un-spinning the prosecutors’ lies — this was time being wasted on a debate of non-factual issues. The poor jurors, most of whom had no background or understanding of the subject matter at all, were probably completely overwhelmed by all the noise and distraction.
I can understand why innocent defendants, like Ken Lay, sometimes become noticeably frustrated by the process. There the defendants are, fighting for their lives, and all they are seeing in the courtroom is a circus of whirling dervishes and crazy clowns. And imagine the Enron Broadband trial in which a couple of the defendants were technologists — the lack of a rational presentation of the facts must have seemed completely insane to them!
The idea behind the right of a defendant to be heard by “a jury of his peers” is that a defendant can reasonably expect that the jurors have enough background and understanding of the basic subject matter of the case to be able to objectively deliberate and reach a decision based on the facts. In reality, this seldom happens in white collar cases. So in most jury trials, a white collar defendant can expect to get a jury that neither understands the essential subject matter of the case nor has any experience in document-intensive deliberative analysis.
I’m not sure how to fix this. I have heard a few suggestions as I have talked with people — I will present a couple ideas in a future post. It is a crucial issue because until we improve the quality of the trial-by-jury process, it is impossible to have any real confidence in the outcome of complex cases.
Scary, isn’t it?
