August 2005

Arts & Letters

One in the Box. Twelve exposed men (and women).

By Julian Burnside
‘Secrets of the Jury Room’ by Malcolm Knox

There is a famous story from the American trial bar concerning juries. The accused was charged with murder. The case was entirely circumstantial – the body had never been found. During his final address, counsel for the accused said to the jury: “See the clock above the door to the courtroom. By the time the second hand reaches 12, the so-called victim will walk in through that door.”

The effect was electric. The jury sat, their eyes riveted to the door, as the second hand clicked inexorably around the dial to the 12. The door did not open. Counsel spoke: “See what just happened. You were all waiting to see the supposed victim walk in through the door. You aren’t even convinced that he is dead. You must acquit my client.”

The jury retired to deliberate and returned fairly quickly with a verdict. “Guilty.” Counsel for the accused was dumbstruck. Later, outside the court, he approached the jury foreman and asked what happened. “You were all staring at the door,” he argued. “You can’t have been sure the guy was even dead.”

“That’s true,” the foreman replied. “We were all looking at the door. But I glanced over at your client – he wasn’t.”

The story is possibly apocryphal but it captures a feature of juries which has impressed lawyers for generations: they usually show great commonsense. It also highlights another feature of juries which attracts fewer compliments: their tendency to become sleuths, to devise their own theory and to work things out in ways counsel had not foreseen or intended. The story could not originate in Australia because the Australian jury room is a place of the utmost secrecy. As Malcolm Knox explains, the law in each state and territory creates a range of offences designed to protect jurors and to hide forever their deliberations. If an Australian defence lawyer approached a juror in the same circumstances she would be guilty of an offence.

Secrets of the Jury Room (Random House, 352pp; $32.95) is a remarkable book with remarkable origins. Knox was called for jury service and had the good fortune to be empanelled for a fascinating trial. He tried to get out of it but failed. His excuse (journalist, may need to travel out of Sydney at short notice) looked pretty feeble by comparison with some others in recent memory:

My friends are criminals so I wouldn’t be able to help.

I have to stay home and mind my sick budgerigar.

I couldn’t come in because I was pissed and stoned.

I am a night person.

I hear voices that tell me I shouldn’t attend.

I can’t leave home due to the impending holocaust.

One potential juror had his doctor write:

This person should not do jury duty as he has a mind like a computer; sometimes it is overloaded and crashes, then he needs to reboot, sometimes causing his thoughts to be scrambled.

When Knox arrived at court on the first day he had no faith in the jury system and no interest in spending days or weeks sitting on a jury. By the time the trial was over he was convinced of the profound importance of the system and the robustness of most juries. Despite this, he had seen at first hand some of the system’s shortcomings, and so decided to write a book about the trial. This brought him into collision with the laws designed to protect jurors (including himself). The Jury Act of New South Wales makes it an offence to ask a juror a question about a trial or to identify a juror. It is an offence to reveal a jury’s deliberations. These provisions mean the classic movie Twelve Angry Men would not be possible in Australia if it were a true story. So it is that Knox begins his author’s note with the observation: “Australians haven’t read a book like this before. Our law has done everything possible to stop this book being written.”

It was written in adversity and was for several years held up by the manoeuvrings of the accused in the trial Knox’s jury heard. Now, three years after it was completed, the book has been published. It is, I think, unique in its structure. One strand is a strongly told crime story, another strand is a courtroom drama and the third strand is a serious treatise on the jury system – its origins, development, rationale, strengths and weaknesses. Because the defendant in the trial raised legal objections to the book’s publication, the facts which gave rise to the trial have been modified to shield the identity of the participants. Nevertheless the book’s narrative is a strong one and essentially true to the original, providing a backbone for the drama Knox eventually witnessed from the privileged position of the jury box.

The accused, “Stephen Rusher”, is separated from his wife, who has begun a relationship with someone else. Rusher is concerned for the welfare of his child, although the level of his worry seems disproportionate and obsessive. He establishes contact with a person who claims to be a contract killer and discusses, in a series of elliptical conversations, whether the hit man can “serve legal papers” on the ex-wife and her new lover. The conversations are taped and everything hinges on the real meaning of what is said. As the prosecution points out, $30,000 is quite a lot of money for process serving.

In real life, court proceedings are for the most part exceedingly dull for members of the general public. They do not move with the speed and excitement we have come to expect from several generations of film and TV dramatisations. But Knox is a writer of formidable talent who succeeds in keeping the courtroom scenes engaging and yet faithful to reality – no small task. In addition, he has garnered some fine stories from the Australian trial bar:

Not everyone can hold back. Bill Hosking, a leading QC who was to become a judge himself, once had a lively exchange with Justice Adrian Roden, a known martinet. Asked by the judge how he was going to explain why his client’s gun was loaded, Hosking said: “I don’t fucking know, Your Honour.” Roden spluttered and threatened to have Hosking disciplined unless he answered the question politely. How would he explain why his client’s gun was loaded? Hosking replied: “‘I don’t fucking know.’ This was answer number 46 in my client’s record of interview, Your Honour.”

Knox’s book will hold a special fascination for lawyers because it gives a juror’s view of various techniques of the advocate. Most advocates will recognise the tricks, some will admit to having used them; some will blush at the frigid indifference – or worse, the hostility – some of these techniques provoke in real jurors:

In my researches after the Rusher trial, I heard several versions of a story about the male barrister who had established eye contact with a female juror early in a trial. All the way through, she acknowledged his winks and he always looked at her when the court was laughing at something. The barrister kept telling his team, throughout the trial, that he had this one juror onside. Then, late in the trial, the jury foreman passed a note to the judge, who read it to the open court: “The jury asks counsel to please stop winking and making faces at them, as they find it an unpleasant distraction.” (Or, in another version, the jury gave a quick unanimous verdict against the charming barrister. Later, a juror told the barrister: “She wasn’t smiling at you because she liked you. She was playing with you because she thought you were a fuckwit.”)

Counsel in any trial are always eager to find out what their audience thought of their performance (unless they know in their hearts it was terrible, in which case an “urgent conference” usually has them rush off). The keen interest in performance, Knox records, runs both ways:

Most of our jurors were loving how Mr Nisbet got stuck in, Les fought back, and Mr Crown bounced up and down with his objections. Mr Crown and Mr Nisbet were snapping at each other. At last, some needle!

Secrets of the Jury Room draws not only on Knox’s own experience but on research from the US, New Zealand and several Australian states. Such an endeavour carries the risk of becoming tedious for all but practitioners and academics. Knox avoids this risk by hanging the discussion on a few interesting pegs, including the script of Twelve Angry Men, the TV dramatisation of Joh’s Jury and (so far as he could) the dynamics of the jury on which he served.

All of this prepares the reader for Chapter 15: “12 Angry Suggestions”. In a succinct, simple, punchy way Knox makes a dozen proposals for reform of the jury system. He answers each proposal with the predictable establishment response, then argues each proposal as lucidly and cogently as ever I have seen. The skill of it lies in this: without the story that precedes Chapter 15, the 12 proposals would be interesting but not necessarily convincing. Coming as they do after a detailed account of a real case, and after plenty of references to other real cases, the proposals seem constructive and compelling.

Most lawyers are concerned that juries should not be scrapped. Unfortunately the debate tends to focus on that single question alone. Knox presents a compelling case for retaining juries, then tackles the real questions. How much information should jurors be given? Should they get transcripts of evidence and other written material? Should they be forever gagged once the trial is over?

Knox advocates widening the range of people eligible for jury service and limiting the scope for avoiding it. In compensation, he argues that jury fees should be increased, both to reflect the importance of the task and to reduce the burden it represents for those who serve on juries. He suggests juries should be given written guidelines for the process of deliberation, thus reducing the chance of a forceful or corrupt foreperson hijacking the process, and protecting jurors who are conscientious but weak. Jurors should be told in advance whether they will have access to transcripts and exhibits, and they should receive – early in the trial – a written summary of the legal principles that will be raised. Knox also makes a forceful case for jurors being given better facilities in the court building. Jurors are constantly reminded of the importance of their role; a room with a window and decent food might be more consistent with that message than cramped quarters and a stodgy lunch.

The jury system can be traced back to Magna Carta, although it has changed so radically and so often since then as to be unrecognisable to King John and the barons. Through all of its changes it has served society well. Knox’s book shows how it can be improved again in order to maintain its strength in the 21st century. “Judges and trial lawyers,” he writes, “have wide-ranging, heartfelt and interesting opinions about juries, but they are excluded from being on one. All their accumulated knowledge of juries is, by their own account, guesswork.”

Knox studied law but did not finish his degree. He has served on a jury, he thinks like a lawyer, he writes like a gifted novelist and he knows what he is talking about. His book is a useful contribution both to law and literature.

Julian Burnside
Julian Burnside is a barrister based in Melbourne. @JulianBurnside

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