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‘In the Hands of the People: The Trial Jury’s Origins, Triumphs, Troubles, and Future in American Democracy’

by William L. Dwyer

Thomas Dunne Books, $24.95

The trial jury, the hallmark of the American justice system, is increasingly under attack as out of control, dangerously vulnerable to manipulative trial lawyers, and, all too often, the source of skyrocketing damage awards. Commentators from across the political spectrum have demanded, with increasing urgency, various reforms to eliminate or limit the role of a jury.

U.S. District Judge William Dwyer begs to differ.

In the just-published “In the Hands of the People,” he offers a spirited defense of the jury-trial system.

The book surveys the history and purpose of the jury system, addresses the principal arguments for its demise and offers thoughtful proposals to strengthen, not abolish, the role of the trial jury.

Dwyer is no stranger to the process. As a Seattle trial lawyer, he handled some of the Northwest’s most significant cases – including the lawsuit against Major League Baseball that resulted in the creation of the Mariners. He gained a reputation as one of the best trial attorneys in the state.

Appointed to the federal bench in 1987, Dwyer has since handled some of the most significant cases of the past 15 years: protecting spotted-owl habitat and restricting logging on a public lands; ruling that Metro’s political structure was unconstitutional; and striking down Washington’s term-limits restrictions. And he has presided over hundreds of jury trials and worked with thousands of jurors, witnesses and lawyers, and earned an unparalleled reputation as one of the most outstanding federal judges in the nation.

Dwyer begins with a review of the origins of the jury as an alternative to earlier methods for resolving disputes, such as trial by battle, torture, oath-swearing contests, or other medieval forms of dispute resolution.

From its English common-law origins, the jury slowly gained independent power and, when transplanted to the American Colonies, became a key check against governmental tyranny and an important and unique aspect of the American participatory democracy.

The latter half of the book surveys the principal objections to the jury system and, point by point, dismantles them as largely unsupported by evidence, contradicted by the actual record in specific cases, or hinged primarily on isolated, but highly publicized, aberrations.

There are significant problems with the American justice system, Dwyer acknowledges, quoting Ambrose Bierce’s famous definition of litigation as a process into which one enters as a pig and exits as a sausage.

These include long delays until trial, unimaginable expense, overloaded courts and endlessly contentious counsel – but not one of these faults can be blamed on the jury and most can, and should, be addressed by reforms elsewhere.

Still, the judge concedes reforms should be taken, not to limit juries, but to strengthen them. His proposals range from modest to striking.

To increase the diversity of juries, Dwyer would increase compensation for jury service and restrict opportunities to evade service (thus increasing participation of the poor and the well off).

To streamline jury selection, he would have most questioning conducted by the trial judge, with only limited follow-up questions by the lawyers.

He would eliminate notoriously disruptive midtrial sidebar conferences between the judge and lawyers, strictly budget and control the length of trials, increase the use of court-appointed experts, encourage juror participation through questions of witnesses and note-taking and translate arcane “legalese” favored by obtuse lawyers into plain English more readily comprehensible to the average juror.

Perhaps most controversially, he would limit or eliminate the peremptory challenge, the right of a party to eliminate a certain number of potential jurors without cause or explanation.

Dwyer’s proposals are not all new or novel and don’t purport to be. But, built on a solid foundation of history and experience, his suggestions offer thoughtful suggestions to strengthen the role of the jury. Some of these proposals might, and perhaps should, be debated, but it would be a foolish lawyer, judge or litigant who ignored this set of proposals.

In 1670, as Quaker leader William Penn was dragged from the courtroom by the king’s forces and the jury was threatened with prosecution if it did not convict him, Penn called out to the jurors not to “give away your right(s).” From the jury box came the reply: “Nor will we ever do it!”

As Dwyer closes this volume, he urges, “Our response should be the same.

‘Unspeakable Acts; Ordinary People: The Dynamics of Torture’

by John Conroy

Knopf, $26

‘The Good Listener: Helen Bamber, A Life Against Cruelty’

by Neil Belton

Pantheon, $27

Torture is something that happens in other countries, at other times, to other – different – people. Or so most of us want to believe. Unfortunately, it isn’t so.

In “Unspeakable Acts; Ordinary People: The Dynamics of Torture,” John Conroy, a Chicago journalist and author of “Belfast Diary: War as a Way of Life,” explores torture in settings close to home for many Americans: the torture of suspected IRA activists in Northern Ireland by the British, the beatings of Arabs in Israel and the use of electric shock on prisoners by Chicago police. He selected these examples, not because they were the most egregious incidents of torture, but rather because they are not: State-sponsored torture is a depressingly common experience.

Conroy first details the detention of 14 Northern Irish men by the British government in 1971. All of the men were subjected to the same treatment: Their captors placed hoods over their heads, blasted noise at them and forced them to stand leaning against a wall for days at a time. Severe beatings followed any movement. Most were denied access to toilets or food. When the men were eventually released, and the episode revealed, the government denied any “torture” and publicly labeled the victims as “thugs and murderers.”

Conroy next describes the calculated beatings of Arabs in an Israeli village during the Intifada uprising. The Israeli army seized the men from their homes at night, drove them to isolated locations, and systematically beat them and broke their legs. Even the Israeli soldiers left the scene shaken, with several crying. Although the operation was eventually exposed and the responsible officer court martialed, the punishment was relatively light.

Conroy finally focuses on the torture of arrestees by Chicago police through the use of an electrical generator. Although the police denied the practice for years, one of the victims sued and won, revealing the electrical torture and subsequent cover-up.

All of these are offered not as examples of extreme violence, but to show how routine and commonplace – even in our modern world – torture is. Conroy brings us along as he sits down with many of the torturers for coffee, and quietly talks about what they did and why they did it.

Not surprisingly, they see nothing wrong with the behavior, and offer up a variety of excuses for why the torture was necessary to protect the public. It is a time-honored response. Torture, from St. Augustine (who defended the practice), to Aristotle, to the Spanish Inquisition, is often defended on strikingly similar grounds: because the victim is evil and not really “human”; because the victim himself is a criminal and has or will cause even greater pain to innocent people; because others engage in even worse forms of torture; or simply because it is perceived as an effective shortcut to obtaining crucial information.

Conroy surveys societies that condone torture, and notes that the process often begins with the marginalization of a disfavored minority (the Left, the Right, the Arab, the Jew) that is ridiculed, humiliated and ultimately dehumanized to the point that it “finds itself beyond the compassion of the public at large.”

Conroy’s approach, though, emphasizes the banality of torture at the cost of minimizing its frequency and historic and geographic reach. Although he devotes a portion of the book to the history of torture, it is a sidelong glance at best, and does not even attempt to survey the virtual catalog of state-sponsored torture present in history, much less in the modern world.

By contrast, Neil Belton’s recent biography of Helen Bamber, “The Good Listener,” takes the opposite tack by focusing on the victim, not the torturer. Bamber, a 74-year-old activist, has devoted her life to working with torture victims.

Bamber volunteered as a young woman to work with a Jewish Relief Unit in occupied Germany just after World War II. She arrived at the Bergen-Belsen concentration camp soon after the British forces liberated it, and was stunned by the thousands of decomposing bodies, human waste and barely alive survivors scattered like refuse around the camp.

Belton’s fluid and descriptive writing captures this horrific scene and the chaotic years that followed. At least some of the children rescued from the camps were brought to England where Bamber worked with them, attempting to bring them back from the unspeakable horror they had survived.

Bamber thus launched a career of working with torture victims, and fighting torture, around the world. Quiet listening and talking of her own experiences are the tools Bamber employs to salve the wounds of these broken men and women.

As Belton writes, “Fifty years after governments representing most of humanity declared that they rejected `cruel, inhuman or degrading punishment,’ an elderly, formally unqualified woman and her colleagues, working from a row of terraced houses under a railway bridge in North London, hold up a flimsy, necessary barrier against torture.”

Belton’s book is better written than Conroy’s: The writing is more fluid and descriptive, the narrative is fascinating and the attention to detail is captivating. If there is a fault in Belton’s writing, it is the odd and muddled opening chapter of the book, which describes the cold reception British veterans of the surrender of Singapore received on returning home. A far more briskly paced and engaging core lies beyond this opening stumbling block.

Both of these books shed a light on a terrible and unfortunately common aspect of human frailty. Maybe someday we can accurately describe torture as something awful that happened at other times, in other places. But until that day, these narratives shed a necessary, if not welcome, light on this perverse corner of human behavior.

‘The Corruption of American Politics: What Went Wrong and Why’

by Elizabeth Drew Birch Lane Press/Carol, $21.95

It is not difficult to find those who complain that American political discourse has become more partisan, more harsh and less statesmanlike. In “The Corruption of American Politics,” Elizabeth Drew joins the chorus, arguing that campaign-finance abuses and the corruption of public political discussion have conspired to poison the American public’s view of its government.

Drew argues that over the past 25 years, U.S. politics have degenerated into nasty partisan bickering and unfair debates, curtailed or limited by anti-democratic rules imposed by congressional leaders. She believes that Americans had “fresh confidence” in their government in 1974 following the resignation of President Nixon after the Watergate scandal, all of which has dissipated in the intervening years.

Although she focuses her fire on increasing partisanship, she reserves her most withering critique for campaign-finance abuses and the collapse of the system for regulating campaign contributions.

In 1972, Congress enacted these reforms, strictly limiting the amounts that could be contributed to federal candidates or political parties. The U.S. Supreme Court overturned portions of the new law, allowing restrictions on contributions to candidates, but holding it unconstitutional to limit citizens’ contributions to political parties for purposes other than direct candidate support. Individuals and political parties, in turn, were limited in their spending on individual candidates, but retained free-speech rights to unlimited spending on issues.

This loophole quickly swallowed the rule, and in present-day political life both major political parties take in vast sums of unregulated “soft money” to be used on “issue ads” calculated to help or hinder specific candidates without expressly saying so. While federal law still strictly regulates direct contributions to candidates and direct expenditures on their behalf, these restrictions, Drew argues, are toothless and easily evaded. And she is probably right.

Drew, who regularly contributes to The New Yorker, usually dispenses carefully reasoned analysis of the political scene in Washington, but here her writing is careless and her analysis either cliched, mushy-headed, or both.

The first portion of her treatise contends that political discourse is not what is used to be and is burdened with more partisan bickering than it was 25 years ago. It’s an interesting point and one fairly subject to debate, but Drew so relentlessly lays the blame on the Republican Party that it becomes difficult to take seriously her thesis that “partisanship” is a bad thing. Partisanship, in any event, has been a central theme in American politics, which, after all, has long featured harsh debate, canings on the House floor, dueling pistols (Burr/Hamilton), assassinations (McKinley, Lincoln, Kennedy) and even revolution (tax, sexual and otherwise). Harsh words seem unlikely to pose any serious threat to the Republic’s foundation.

Drew’s complaints about campaign-finance abuses are equally misplaced. She is right in complaining that loopholes in federal campaign laws are routinely exploited by the major parties. But the cure for this is difficult to imagine and likely worse than the disease.

Drew herself devotes only a few short pages to endorsing campaign-finance reform, but without any serious effort to consider the constitutional implications. One is left wondering whether or how one might limit debate over “issues” by individuals or political parties without posing serious threats to speech rights thought fundamental not only by the Supreme Court, but a majority of Americans. It’s a difficult issue, but you’re won’t find any help in resolving it here.

Federal financing of campaigns, free airtime for political campaigns, or other solutions that might actually relieve candidates of the relentless demands of fund raising for ever-increasing campaign costs are barely mentioned and quickly rejected.

Drew’s book draws a compelling portrait of problems facing our democracy at the turn of the century. It is, unfortunately, empty of any real solutions.