The right to trial by jury is so fundamental to American democracy that it is enshrined in the Bill of Rights. Thomas Jefferson said the jury trial was "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." The Declaration of Independence excoriates the king for "for depriving us in many cases, of the beneﬁts of trial by jury" precisely because American colonists were furious that the British tried to deny them just that right.
All that was hundreds of years ago, of course. Nowadays it has become something of an American tradition to call into question one of the most American of institutions.
When Casey Anthony was acquitted last week in the killing of her 2-year-old daughter, the nation collectively went nuts. Anyone who had watched the trial for even a moment—or who had followed the noise of the trial coverage for weeks on end—was certain that Anthony was guilty. The pundits who opined for hours, and from vast distances, about the case on cable news were similarly certain. So when a jury determined that it simply didn't have enough proof to find Anthony guilty of first-degree murder, most Americans decided that those jurors were blind morons. The alternative—that these jurors saw something the rest of us may have missed—was unthinkable.
The Casey Anthony jurors felt that the prosecution left too many open questions and failed to prove guilt under the extremely high standard required by law. They wanted a motive and a cause of death. America wanted revenge. The jurors wanted proof of Casey Anthony's guilt beyond a reasonable doubt. America wanted justice for Caylee. Underlying the difference between these two goals is the fundamental premise of the American system of justice: avenging innocent victims matters less than protecting innocent defendants.
As Alan Dershowitz explained last week: "A criminal trial is never about seeking justice for the victim. If it were, there could be only one verdict: guilty. That's because only one person is on trial in a criminal case, and if that one person is acquitted, then by definition there can be no justice for the victim in that trial." If all that sounds cold, lawyerly, and inhuman, that's because the justice system is designed to be all those things. Juries are not driven solely by the bottomless outrage of Nancy Grace. That's what makes them juries. There is nothing much to like about the slick reality show that was the Anthony trial. But that the jury understood the difference between what their guts told them and what the law demanded of them may be called its sole success.
So when Mitch McConnell scoffed Sunday that the real lesson of the Casey Anthony verdict is that we need to try all suspected terrorists in military tribunals since we now know "how difficult it is to get a conviction in a U.S. court," he got it precisely wrong. The lesson here isn't that we need rigged trials and vengeful jurors to obtain convictions. It's that convictions require good evidence, ably presented. Doing away with due process, which allows the authorities to lock up anyone who resists the crown or simply looks like a "terrorist," is precisely what the framers were fighting against. If obtaining convictions without sufficient objective evidence of guilt is really the aim of the justice system, juries will often get in the way. By McConnell's logic, we should have tried Casey Anthony at Guantanamo Bay, too.
This brings us to the Houston jury that determined last Friday that Jamie Leigh Jones had failed to prove her claims against KBR, a former subsidiary of Halliburton, and firefighter Charles Bortz, whom she claimed sexually assaulted her when she worked as a contractor for KBR in Iraq. The standard of proof in a civil case is far lower than that in a criminal case, yet the jurors still didn't accept Jones' story as true. As Mother Jones' Stephanie Mencimer—who knows this case as well as anyone—explained last Friday, once Jones' claims finally came before a jury, some important elements began to collapse.
Among the problems with the case, several are worth noting here: Jones had claimed that the night of her assault she had been slipped a date-rape drug. But no such drug was ever found in her system. Testimony reflected that she later admitted that she had had much more to drink than she initially suggested. She had alleged that her breast implants had ruptured in the assault, but there was no evidence that the implants had ruptured. Ultimately, as Mencimer puts it: "None of this means that Jones was not raped in Iraq. But the evidence does undermine her credibility and could create serious doubts in jurors' minds."
The temptation in this case, as in the Casey Anthony case, is to condemn the jury as biased, stupid, incompetent, or just sexist. But it's important to point out that no jury found that Jamie Leigh Jones was lying, just as no jury found that Casey Anthony was innocent. The real lesson of the Jones case is that if her charges had been tested before a jury five years ago, KBR would have been off the hook a lot sooner. The company, which complained about having been maligned in the media for almost six years, spent most of that time fighting tooth and nail against an open trial. If anyone can celebrate the transparency and finality of open trials today, it's the company that still doesn't believe in them.
Sen. Al Franken, D-Minn., used the Jones case to launch a congressional campaign against mandatory arbitration clauses for military contractors, and he managed to amend the 2009 Defense Appropriations bill to bar the Defense Department from contracting with companies that use arbitration clauses to resolve cases of sexual assault, battery, or racial discrimination. As a result, other women who claim to have been assaulted in Iraq can have their claims tested in open court, as opposed to off the books in a secret conference room at a Sheraton hotel. That's the best possible outcome for anyone who believes in the rule of law: Testing your claims in a court. Franken made the point in a statement he issued Monday: "This has never been just about one court case. Now countless others with similar circumstances will get to have their rightful day in court. No corporation should be able to deny anyone that right."
Those who are whooping today about Jones' loss in court should be aware that this outcome was the result of Jones' years-long effort to get into court in the first place. That was and is the best way to test her claims. If we are going to take the position that courts eventually find the truth, we must accept the reality that all plaintiffs—not just the ones you like, or the ones I find sympathetic—deserve their day there. The framers understood that trial by crazed mob, by the media, or by the crown, did not produce justice. The jury system was their best guarantee of something to mitigate those powerful forces.
Juries don't get it right all the time, or maybe even most of the time. But if, like Mitch McConnell or the opponents of "frivolous lawsuits," you'd prefer legal systems in which courts always reach the verdict you would like, well, there's always Afghanistan. I'm told they call it justice there as well.