Why Juries Matter

Every once in awhile you hear about a Judge who gets it. A judge who understands just how important it is that disputes should be resolved by a Jury that is made up of average everyday people. Not by private dispute systems or private arbitrators who are well paid and who don't let voters watch what they are doing in order to decide for themselves if this private process is fair or not.

Courtesy of Dani Liblang, a Michigan Consumer Law attorney, comes this account of the thoughts of one man, a Michigan Judge, on just how critically important it is that our legal system is founded on the concept of the right to a Jury trial, and that the important decisions made by our government, like those that happen in our courts, must be decisions made by the will of the people.

The remarks that follow are a great explanation of why government by and for the people, does not mean government by and for corporations or the wealthy few. I do not know Judge Shelton, but I am lucky to be able to share with you some of the best words ever written . . .

Acceptance Remarks by Hon. Donald E. Shelton as he accepted the Blair S. Moody, Jr. Outstanding Judge Award from the Washtenaw Trial Lawyers Association on May 10, 2007:

I want to thank the members of this organization for honoring me with the Blair S. Moody, Jr award. The award has special meaning to me and I hope to all of you. Almost 25 years ago, the leaders of this fledgling group met in the library of our law office on Huron street and considered what we could do to honor Justice Blair Moody, who had just passed away while serving on the Michigan Supreme Court.

Very few in this room even know who Justice Moody was, much less what he stood for. He was a Justice of the Michigan Supreme Court from 1977-1982. As the award description suggests, he was the most ardent defender of the right to jury trial in the history of the Michigan Supreme Court.

Many years later when his portrait was unveiled, his friend (and mine) attorney Gene Mossner said:

"One of the things that Blair stood for and defended always was the right, the sacred right, of trial by jury that's written into the bill of rights. Today, when that right is being attacked in so many ways, subtle ways, it is good that we remember people like Blair and vow to defend it as vigorously as he did."

His former partner, Leonard Wilcox, said:

"His political philosophy, which was expressed in many conversations, was progressive and pragmatic. He deeply believed in the dignity of every individual, the need to redress the power relationship between the privileged and the weak, and to advance the cause of blacks and other minorities that they might more fully share in the benefits of this great land. He respected others who shared his dedication to good government, even though they chose to do so through the work of the Republican Party."

I hope that I am the recipient of this award as someone who has vowed to defend the right to a jury trial as vigorously as Blair Moody and I accept it in that spirit.

Many of you know that for several years I have taught at Eastern Michigan University in the Criminology and Political Science departments. When I teach about the American legal system, I try to convey to my students the historical context of our constitution.

This country is unique. Our founders had the revolutionary idea that a nation should be governed by its people and not by monarchs or the autocratic elite. They built in our constitution the basic premise that the government would be controlled by the mass of the population, determined by their numbers and not by their wealth or power. They built a system, one which is being tested daily by the current President, where the people's will is to be the nation's will.

But they went a step further in another unique manner. They decided that the people should determine not only questions of national policy, but that they should decide matters of justice in individual cases. The jury system reflects this country's historical constitutional commitment to be governed by the mass of the population. I would suggest to current majority justices of the Michigan Supreme Court that they take a closer look at the "Federalist Papers" the next time they are at one of their Federalist Society meetings. They would find that the insistence on trial by jury was one of the strongest demands of the framers of the constitution. As de Tocqueville observed, "[t]he system of the jury, as it is understood in America, appears to me as direct and as extreme a consequence of the dogma of the sovereignty of the people as universal suffrage."

Our justice system, like the rest of our constitutional framework, is designed to be "by the people," and in the justice system those "people" are the jurors, not the judges. The constitutional guarantee to a jury is a specific commitment to allow random representatives of the public to make decisions about individual justice. It is one of the few vestiges of direct democracy in our system and it is the quintessential example of this country's democratic ideals.

As my former law professor, Paul Carrington, said "one constant feature of the jury has been its status as a representative of the community being governed." Author Jeffrey Abramson has said "the jury version of democracy stands almost alone today in entrusting the people at large with the power of government."

If Blair Moody could see what is happening today he would turn over in his grave (and I don't just mean the fact that I am actually getting an award with his name on it!) In the last decade the appellate courts of this state have systematically sought to diminish or eliminate the right to a jury trial for our citizens. And they have for the most part succeeded.

There is a reason why the framers of our constitution insisted that people and not judges would be the arbiters of individual justice in this country. They knew that judges cannot be trusted. They knew from experiences in England and in the colonies that judges are just frail men, and today women, subject to corruption by the very power they are entrusted with and, even more dangerously, subject to making decisions to favor the dominant elite that put them in their position in the first place. They had seen judges do awful things. They had seen the judge in the William Penn trial even lock up jurors to coerce them into returning a verdict for the ruling powers.

They did not condemn all judges or think that we did not need them. But they knew that when it came to doing justice for the ordinary citizens, they needed to trust the people themselves, sitting as collective representatives of the community, to do true justice.

What we have seen in this State in the last decade demonstrates first of all that the framers were right. The ruling majority on the Michigan Supreme Court, now known as the "gang of four" has taken the right to jury trial away from many of our citizens. They have done it very cleverly and with a great deal of legal rhetoric. But their legalistic trappings are a ruse.

In medical malpractice cases for example, it is not really about whether an affidavit was signed in front of a notary public sworn under some ancient law. It is not really about whether the proposed expert has a subspecialty in the subspecialty of the organization in which the defendant is a member. It is not really about whether the notice of the claim was filed on the 181st or the 182nd day after the victim died from the medical treatment. What it is about for them is making sure that real people on a jury never get to decide whether a wrong was done and who did it.

Where a person is injured in a fall, it is not really about the legalistic citations of the rule regarding comparative negligence. It is not really about the jargon of a doctrine of "open and obvious" that says a blind man should have seen, or a lame woman should have walked around, a dangerous condition. What it is about for them is making sure that real people on a jury never get to decide whose fault the accident was and who should bear the burden of the injuries that resulted.

When a child is injured in an automobile accident, it is not about applying the legal philosophy of "textualism" to a statute that says adults should file their legal claim for compensation for their injuries within one year. What it is really about for them is making sure that real people on a jury never get to decide if the child is entitled to the insurance compensation that his or her parents paid so dearly for.

No, the reality is that this is precisely the corruption that the founders of our country feared the most. Left alone, judges can do awful things. Oh they will dress them up in legal jargon, but in the end judges are susceptible, as this State has so disastrously demonstrated, to determining what is justice by deciding what is best for the interests of the powerful autocracy that gave the judges their small share of that power.

Shame on them. And shame on us for not standing up for the people and demanding our constitutional right to a trial "by the people".

Aristotle said that democracy's chief virtue was the way it permitted ordinary persons drawn from different walks of life to achieve a 'collective wisdom' that none could achieve alone. The jury is the last best refuge of this connection between democracy and the achievement of justice both for, and by, ordinary persons.

So I accept this award in the spirit in which I trust it was bestowed. I accept it as a challenge to me to continue my commitment to democracy as it is so truly represented by the jury system.

At his 1977 swearing in, Blair Moody said:

"The position of Justice of the Supreme Court belongs to the people. It is now only loaned to me. I shall try to use it with great care, for I have the duty, someday, to pass it on in the best condition possible. And, in the meantime, I shall do my best and never forget the words of Harvard: "the greatest glory of a freeborn people is to transmit that freedom to their children."

In recognition of this award, I promise to continue my dedication to that freedom as long as the people ask me to do so and loan me their robe to wear.