A cultural moment was asserted, a reestablishment of a line in the sand that had been drawn and erased over so many decades. And yet Lerman, the accused at the center of this incident, must still remain innocent in the eyes of the law and the jury. Open justice and the private nature of the jury system have already been contrasted.
Lerman’s lawyer argued that after all this, he could not get a fair trial. The ACT Supreme Court, in a decision released on Wednesday while the jury was still deliberating, found he could. Instead, in the two weeks since the 12 jurors went to trial, the burden of the public verdict has fallen on them. Are they getting a fair trial? Who is arguing on their behalf? When a juror misbehaves, the entire system is under attack.
Considering how few first-hand advocates they can have, it’s amazing that jury trials lasted for about 900 years. In much of the world, the idea of a jury is stronger than ever. Japan, which knew it was in trouble when 95 percent of criminal trials ended in guilty verdicts, adopted a modified jury system, choosing the best of the French inquisitorial jury (where the tribunal can cross-examine witnesses) and the Anglo-Saxon adversarial system (where cross-examination takes place before a silent jury). In a populace under authoritarian rule, civil jury trials and open justice are cherished dreams.
However, here, where we have a jury, there is already an atmosphere of distrust between citizens and their 12 elected representatives. Television productions portray dysfunctional juries according to the Tolstoyan principle that all happy juries are the same and all unhappy juries are unhappy in their own way. If your world was shaped by these kinds of dramas, you’d think that everyone was getting killed and that life was all about scripted conflicts, but that doesn’t stop many of us from believing that’s what juries are like. This then feeds into the media, both social and mainstream, which heightens the disagreement and creates a point of view on which the jury “falls”.
After every jury verdict in a high-profile case, some observers will thank the heavens for the system, while others will say it should be abandoned. Both viewpoints are based on ignorance (of the issues at trial) and hubris (the belief that we know better). We tend to be for or against a jury system based on the last verdict. Credibility in an objective jury is undermined, and the power returns to us, the watching crowd.
There is no easy solution, but Lerman’s trial has once again stretched the tension between open justice and civilian juries even further. Should the courts alone be binding when the publicity surrounding a case has reached a certain threshold? This can seriously undermine the accused’s right to a fair trial, as there is no way to determine what that threshold should be and whether a judge is a better trier of fact than a jury.
Should there be stricter restrictions on publicity before or during a trial? This leads to a slippery slope of secret courts. Can defamation law be deployed as a check against pre-litigation disputes? Lerman did not choose this option. And serious defamation hearings require deep pockets.
Each of these arguments has its public defenders. Lerman’s trial at times looked like nothing more than a public defense of rights that took a dramatic form. There is a public defender for each of these interested parties, except for the jurors, who are prohibited from speaking or even naming themselves. As long as they remain unprotected and unprotected, a democratic criminal justice system built over 900 years that has survived ignorant attack after brazen attack risks becoming yet another victim. When one juror causes dismissal, as happened in Canberra, they harm more than just one litigant.
Malcolm Knox is the author Jury Room Secrets: Inside the Black Box of Criminal Justice in Australia.
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