The jury is in: Back when it was last glorious summer, I crowed loudly – in this column and elsewhere – in praise of jury trials. The occasion was the July acquittal of the five people accused of “criminal damage without lawful excuse”, on a hangar and US navy aircraft, at Shannon Airport in 2003.
In this winter's darker days, there's a temptation to change the tune to something more sceptical in light of last week's acquittal of Padraig Nally in his retrial for killing John ‘Frog' Ward. Was “the conscience of the community” somehow less conscientious in this case?
Maybe, but probably not. Having sat through most of the Shannon Five's three trials, I'm aware of how many crucial legal arguments and evidential details we don't see or hear about when we rely on the media for soundbites of partial information on court proceedings.
So I'll keep the faith. Compared to the obvious corruption of the executive and legislative functions of government because of the role of private money, legal and otherwise, in our system, the jury trial continues to represent the democratic pinnacle of our flawed democracy.
The vast majority of jurors, I'm convinced, do their best, uncynically. Would that the same could be said for Ahern, McDowell, Cowen and the like.
Prejudice in practice
And yet... jurors, like judges and lawyers and journalists, are part of a society that espouses and practises prejudice against Travellers. It is therefore almost inconceivable that a trial involving a Traveller, as defendant or victim, can ever be completely “fair”.
Indeed, jurors are likely to come from that middle stratum of society that perceives itself as most besieged, by Travellers or whomever. The nature of jury selection, and self-selection, means more educated and better-off members of society manage to get off jury duty, or are rejected on sight by defence lawyers who reckon they will be prejudiced against their (probably poor) clients. Obviously working-class potential jurors are tossed out on the opposite grounds by prosecutors.
In media terms, jurors are less likely therefore to be Irish Times readers, more likely to be readers of the Irish Independent, the Mail, the freesheets, the tabloids – the papers that largely took Padraig Nally to their hard little hearts. (Arguably the Times did too, to some extent.) These were the papers that were most boldly critical of Nally's initial conviction. (It must be acknowledged, in fairness, that since that first verdict was tossed out by the Court of Criminal Appeal, there were some apt grounds for criticism.)
Poisoning the air
The danger is not simply that a certain kind of pre-trial coverage “poisons the pool” – the concern that gets voiced by defence lawyers who argue that their clients won't get fair trials because so many potential jurors can't help forming opinions about cases, due to media publicity that focuses on “chief suspects”, etc.
There is an equally serious but rather different danger. Heavy media coverage of certain criminal cases before, during and after trials can also “poison the air”. That is to say, jurors are under pressure to bring in a certain verdict – in the Nally case, acquittal, though it's usually conviction – because that's what they know will earn widespread approval in the public sphere.
Even the most conscientious juror is a human whose sense of “what's right” is hard to limit to what she or he sees and hears inside a courtroom. So what do we do? If we value jury trials the best solution is a radical revision of how, and how much, the media are permitted to cover legal proceedings. Courts provide cheap, easy and often sensational copy for papers, but rarely because their proceedings are of overwhelming public interest. Surely what's most important is that the law functions for defendants and victims, not for newspapers.