Twelve good men and politicised

The actual phrase is ‘twelve good men and true’, and it has been used to describe English juries since the early 17^th century. In those days it meant something.

Now, any conservative certainly and any Briton probably has to cherish the English Common Law. And anyone who cherishes the English Common Law has to respect its integral part, the jury system.

It goes back to institutions that predate the Norman Conquest. And juries in more or less their present form were developed soon after 1215, when the Church abandoned trial by ordeal. Hence the institution is covered with a patina of age, which brings wisdom (for example, the realisation that making a defendant walk barefoot over red-hot coals doesn’t deliver a reliable proof of guilt or innocence).

However, age may also bring senility, thereby jeopardising wisdom. Has that happened to the jury system? Maybe. Maybe not. But the question is certainly legitimate, as are the implicit doubts.

Jurors are supposed to decide a case on its merits. They may consider the defendant a sorry excuse for a human being, a reprobate, even a monster. But as unbiased men of impeccable character and integrity, they must still acquit if they don’t feel the prosecution has made its case beyond a reasonable doubt.

Such is the theory, and by and large it still works in practice. Yet there occur more and more trials, especially those with political implications, where it’s next to impossible to find twelve people untainted by bias.

As our world is getting increasingly politicised, politics barges into areas hitherto beyond its reach. Jurisprudence especially suffers from this tendency, with judges turning into political activists and using justice as an instrument of their activism. Jurors, meanwhile, tend to decide cases on extraneous, typically political, considerations.

One such was the 1995 trial of O.J. Simpson, transparently guilty of a gruesome double murder. Yet Simpson’s defence team (assisted by inept prosecution) managed to make his negritude the central issue of the case, so much so that the predominantly black LA jury disregarded heaps of prima facie evidence.

When Simpson was acquitted, the columnist George F. Will wrote wittily that the verdict proved yet again that a black man couldn’t get a fair trial in America. Had the case been free of political animus, he added, any jury would have convicted – even if only ten per cent of the evidence had been used, and the defence had decided which ten percent to admit.

But enough history. Another politicised trial gets under way today, that of Donald Trump, who thus becomes the first former US president to stand trial in a criminal case. He is accused of falsifying his financial records to hide a hush-money payment made to Stormy Daniels, a porn star. This would normally be classified as a misdemeanour, but the prosecution insists on a felony charge because the payments might have affected the result of the 2016 election.

Since I’m not up on such intricate details of American legality, I’ll refrain from voicing a view on Trump’s guilt or innocence, one way or the other. But I do think he is perfectly capable of paying off a blackmailing lady of easy virtue to make her shut up.

Yet it doesn’t matter what I think of Donald Trump. What matters is how the selected twelve jurors will look at his case. I’m sure they are good men (and women, as one is obligated to clarify these days). But are they – can they possibly be – true, which is to say objective and unbiased?

The trial is being held in New York, where I maintain it’s impossible to find 12 people who don’t hold a strong, armour-piercing opinion of Trump. Most New Yorkers loathe him because they detest his politics. Some adore him with equal passion because they love his politics. Some see him as a saviour of America. Others see him as the embodiment of America’s perdition.

There doesn’t seem to be any middle ground – Trump is definitely the most polarising American president in my lifetime. Again, I’m not going to pass judgement on such strong emotions, although I distrust excessive political passions as a matter of general principle.

Strong feelings are in my view best reserved for one’s family and perhaps church. Politics should be a dispassionate affair, a rational weighing of pros and cons as a basis for choosing people trusted to convert public good into policy and policy into action. I do realise, however, that such expectations ignore human nature, especially what it has become these days.

That, however, isn’t my point. I have several others though.

First, it’s infinitely harder these days than it was in the 13^th century to keep politics out of the courtroom. People have been paper-trained to assign political significance to, well, everything: race, sex, music, clothes, literature, urban planning, traffic laws, you name it.

Above all, people are increasingly seen not as fallible beings capable of both good and evil, but as political agents whose personality and actions are invariably skewed or even determined by their politics. Someone who shares one’s views is a friend and a general good egg; someone who doesn’t is a foe and a general bad apple.

Second, jury selection in the distant past always included questions designed to ensure that the candidates knew nothing, or at least little, about the case. Yet our era of mass access to electronic communications has put paid to that practice whenever a case receives any publicity whatsoever.

When it comes to the trials of O.J. Simpson or Donald Trump, I doubt that even dwellers of the planets in the outer reaches of our galaxy would be ignorant of every detail. And even such aliens would enter jury service with an unshakable opinion already formed.

The upshot is that the jury system is inoperable in any publicised trial, especially since these days people don’t know how to separate their innermost feelings from the facts under consideration. Moreover, one is justified to have doubts about the jury system even when the defendants are less illustrious personages than a football star or a former president.

Are we sure it’s possible to pick 12 random people who really understand the concept of legal guilt and innocence? I’m not. In our time of politicised and ideologised psychobabble, it’s hard to persuade jurors that they are to judge the evidence, not the man.

That’s why wily advocates are known to secure acquittal by claims that the defendant had a difficult childhood, an impoverished family, abusive parents or next to no education. Belonging to a presumably oppressed minority is also routinely believed to be a mitigating circumstance, and everyone who isn’t a white, middleclass male can always find some oppressed minority he belongs to.

On balance, if we are to save the jury system, I think it requires a thorough revision. The trial of Donald Trump may be used as a test case – and please stop me before I say it couldn’t have happened to a nicer guy.