Does US jury system make justice a joke?

THE so-called "trial of the century" in California - Case No 1133603, the People v Michael Joe Jackson - was always going to be a circus.

It wasn’t jury selection that created the high farce in Santa Maria, but it certainly didn’t help. Will selection genuinely help to serve the ends of justice in the United States - a nation built on the principle of liberty and justice for all?

Superior court judge Rodney Melville has had to shield potential jurors from the mass of media sensationalism that followed Jackson’s indictment and arraignment last year on ten felony counts. These included child molestation, kidnap, extortion and providing alcohol to a minor. The judge has pared the pool of 4,000 potential jurors to 250 in a far shorter time than expected, in a bid to find 12 impartial jurors and eight alternates, a process known as voir dire. He also sliced the questionnaire given to potentials from 29 pages and 300-plus questions to seven pages and 41 queries.

As well as attempting to minimise the effects of publicity and to root out prejudice among potential jurors, his actions lower the financial cost to the court. The recent Scott Peterson murder trial, with a three-month jury selection process, cost California’s San Mateo County Court more than $700,000. Officials estimate the Jackson trial could top $3 million.

It is a situation far removed from that in Scotland, where the 15-strong jury with no alternates is seldom subject to gruelling questions from either side. Voir dire, literally "to speak the truth", originates in the sixth and 14th amendments of the US constitution, which provide for a fair and impartial jury taken from a broad representation of the community. It is hard to avoid the conclusion that the Jackson trial - and many before it - have taken this principle too literally.

Article 3 of the US Constitution grants a right to jury trial in all criminal cases except impeachment. The Fifth Amendment guarantees an indictment before a grand jury.

Research in 1965 found that potential jurors, in general, are liable to distort their answers to voir dire questions posed by a judge or attorney in the form of a questionnaire. However, the right of peremptory challenges - challenges of jurors with no reason needing to be given - can be exercised by both judge and lawyer if a particular juror is thought to have pre-determined "actual bias".

Some of the questions Melville allowed to be submitted to potential jurors in California are clues to the arguments soon to be made before them. Examples include: "Have you or family members ever made any type of claim for money damages?" and "Have you ever worked for a child advocacy group?"

In Santa Maria - and in the US system in general - jurors will hear the defence’s opening remarks immediately after the prosecution. This is important for the defence to ensure the prosecution case does not lodge in jurors’ minds without an alternative case being made quickly in response

This is different from Scottish procedure, but it is not uncommon in England.

The opposition within the Scottish criminal justice system to voir dire and to high-profile jury selection experts such as those in the Santa Maria courthouse - a profession worth $700 million a year in the US - was given in 1985 by the Lord Justice Clerk, Scotland’s second most senior judge, on behalf of the Appeal Court in McCadden v HM Advocate: "There may never be a process which eliminates the possibility of personal prejudices existing among jurors, the nearest practical one (and it is not foolproof) being possibly the ‘vetting’ of jurors, a system against which the law of Scotland has steadfastly closed the doors. Evidence of how it is used and abused in countries in which it is operated only tends to confirm the wisdom of that decision."

Herbert Kerrigan, one of Scotland’s leading QCs, says: "In Scotland, you run the risk of prejudice you don’t know about - somebody who will never convict. Alternatively, you could get somebody who will never acquit. But the random element of selection [in Scotland] means that neither side has an advantage or disadvantage. There is always going to be a problem with a high-publicity case; though [random selection] avoids having certain types of people packing the jury."

In Scotland, jurors thought to have a conflict of interest - a nurse in a trial involving an act of violence, for example - will be weeded out, although the final decision rests with the judge. Statutory disqualification of certain groups - police officers for one - also takes place.

The right of both legal teams to challenge up to three potential jurors without giving a reason - peremptory challenges - was abolished in 1995 as it was generally believed to favour the defence.

The success of jury selection in dispensing justice comes to one question: despite judge Melville’s best efforts, just how ignorant of the King of Pop’s fantastical lifestyle could any potential jury member be?

District Attorney Thomas Sneddon’s high-profile investigation and Jackson’s much-publicised $25 million settlement with Jordan Chandler date back to 1993, long before Melville put a rein on the media.

Even Jackson’s lawyer, Thomas Mesereau, said in a recent motion: "The publicity is so widespread that there is no jurisdiction in the state or perhaps in this country that would afford Mr Jackson a trial in front of jurors who have not been influenced by the publicity."

Kerrigan warns: "These show trials are over-publicised, and I hope we never have the same here in Britain. There’s always the danger, even with the most impartial jurist, that something they are not conscious of hearing will ring a bell in the courtroom, and influence their decision."

On the basis of being tried by 12 of his peers - and just how anyone could be considered a peer of the multi-platinum-selling Neverland dweller is unclear - the chance of justice being served under the current American system does not appear likely.