NEW YORK — My U.S.-Japanese business consultant friend John Gillespie dropped by and, upon hearing that my wife Nancy had been summoned to jury duty, said Japan should introduce a similar system.
At the time, the Lewis “Scooter” Libby case — about whether the former chief of staff of U.S. Vice President Dick Cheney had lied about his role in revealing the identity of a CIA officer — was being deliberated by a jury. My immediate reaction to Gillespie’s suggestion was skeptical. Let me explain.
Before I left Japan in the late 1960s, there were, as far as I was aware as an ordinary citizen, two major complaints about the Japanese judicial system: slowness and political bias.
In retrospect, they were two sides of the same coin, or so I’ve come to understand. Some of the most famous cases were political in nature and, accordingly, they took a long time to resolve. The infamous Matsukawa Incident, for example, took 14 years until all of the accused were found not guilty (1963). Other than that, I did not have the impression that law was something you were conscious of in daily life.
After I arrived in the United States, it did not take me long to be impressed by the overt role that law plays in American society. The major political dramas that played out in my early years here were also legal.
First came the Pentagon Papers, in 1971. The New York Times started publishing a top-secret history of U.S.-Vietnamese relations, President Richard Nixon issued an injunction, and the Supreme Court moved with uncustomary speed: Within two weeks it handed down its decision, 6-3, upholding the freedom of the press. This was followed by the Watergate hearings, in 1973, the impeachment proceedings, and Nixon’s resignation.
It was in those days that I learned two expressions that Americans seem to like to quote: “the system works” and “a government of laws and not of men.” The system, of course, refers to that of checks and balances and the government to that of the United States. But if the idea of law superseding man struck me as vaguely inhumane, “the system,” as I have learned since, assumes ideal conditions that seldom prevail.
Law, yes, reigns supreme in this country, but always as manipulated by man. That’s why the president, senators and governors are given the right to pick justices, judges and attorneys. And the interpretation of law depends on those same justices, judges and attorneys. The problem is that, because law is made to supersede all others, it grows ever more complicated, subjective and arbitrary. The jury system is no exception.
Take the two premises for jury selection that seem to hold sway for now: exclusivity and inclusiveness. Exclude certain people to minimize bias and include as many kinds of people as possible — yes, to minimize bias. On the face of it, these premises seem admirable. The murder of Emmett Till in 1955 and the murder of three civil rights workers in 1964 — two cases recently revived — reminded us of their importance. Initially the murderers were acquitted because all the jurors were white.
But the process of ensuring exclusivity and inclusiveness can be arbitrary. There is, for example, the right to “peremptory challenges,” reserved for both the prosecution and the defense. As “The Oxford Companion to American Law” puts it, it is the right to ask potential jurors questions “on hunches and intuition” to get rid of anyone who might harbor a bias.
But what is bias? Don’t we all have views and opinions, be they well-grounded or impressionistic? In a way, it is as if the selection process is meant to arrive at a bunch of nincompoops, uninformed and unthinking or, as Gillespie put it more kindly, those “largely uneducated and not widely read.” He is for the jury system but has doubts about the elimination process. The problem is compounded by the practice of sequestering the jurors during part or all of the trial, as was done during the Libby trial. One juror was dismissed because she was “exposed” to outside information during the jury deliberations.
The jury system, indeed, has produced some strange practices and professions. The use of “expert witnesses” is one. In a hearing preceding the Libby trial, a Dr. Elizabeth Loftus, who offered herself up as a “memory expert,” turned out to be anything but. It was, I think, when a rape trial in 1991 was at the jury selection stage that I was dumbfounded to learn of the existence of “jury selection consultants.” It came to light because the defendant happened to be Sen. Edward Kennedy’s nephew. The rich can afford anything.
Where the law profession is indulged, as it is in this country, “the law’s delay” often seems deliberate, as it probably is. My wife tells me of her accountant, who was selected to be a juror but was so incensed by the days ticking by with nothing happening that he left in the middle of the case. Nothing was happening because of the judge’s schedule, the lawyers or witnesses failing to show up, and so forth. Nancy was lucky this time: She was kept waiting only for two days before dismissal.
As has been reported, Japan has taken steps to introduce a hybrid jury system. Called “citizen judgeship” (saiban-in seido), it is scheduled to start functioning two years from now.
In this system, six citizens will be selected for each felony case to join three judges to reach a decision. A simple majority decides the outcome. That may sound all right, but the rules for the system seem largely designed to inflict another bureaucratic burden on the citizenry. Most likely dreamed up by some law professors, the rules include, for example, imposition of heavy monetary penalties on those “citizen judges” who provide false information or fail to play their role.
The Japanese Constitution neither proscribes nor requires the jury system, and it may not be a bad idea to try citizen participation in judicial procedures. Also, the general belief that the Japanese are not as “legally oriented” as Americans may be false, as a law professor friend of mine has argued.
But from what I’ve learned about the jury system in America, I doubt if “citizen judgeship” will improve Japan’s justice system.