I was almost on the jury for this Pacific Beach hit and semi-run trial. I hadn’t heard about the incident beforehand, because I don’t watch the news any more. Of course, once I became free to learn more about it (I was thanked for my service and excused by the defense) I had to google the guy’s name. Two observations come to mind:

1. If you’ve been hit for seven DUIs you might want to consider walking and taxis. Irrespective of whether Mabrey did whatever he’s charged with, this was Pacific Beach on a Saturday night. If he was going anywhere in PB it would have been faster to walk¹ and if he was going outside of PB, a taxi doesn’t cost more than a couple of beers at a bar. With seven DUIs you’re going to get blamed no matter whose fault it was.
2. The courts have not entered the Internet age at all. They’re still telling us to turn away when we see the case on television. No one seemed to have any idea that some people no longer watch television, and there was no mention of not googling the defendant’s name; no mention of not googling the case while the court is in session. The potential juror next to me had an iPhone. Being right next to her I could tell she was checking her messages (something the judge allowed), not browsing the web, but there’s no way the bailiff, lawyers, or judge could.

It used to be possible to assume that when you shut twelve people into a room, their world contracted to that room. We can no longer assume that ignorance can be artificially enforced. Like movie theaters that used to confiscate cameras before letting you in, isolation is an unsustainable strategy. Cameras became part of cell phones; they even became part of expensive cell phones that no one would be willing to leave in a common box as they walk into the theater.

Now, web browsers are part of the cell phone, too. Unless they lock people away in radio-proof rooms and refuse to let them talk to their families, some jurors will browse the web, not just after hours but during the case. And some will check their e-mails, and some will Twitter. When iPhone-like phones are ubiquitous, when everyone has one and uses it to manage their day, what does that mean for jury deliberation when the courts assume isolation?

The citizen juror system is an integral part of our court system and our rights. I don’t want to lose it. I also don’t want to see it restricted into irrelevance. If juror instructions become as irrelevant to the average person as, say, speeding laws, they become a joke.

Dismissals are part of the joke. Our current system of jury selection and individual dismissal reminds me of B.F. Skinner’s pigeon experiments, where pigeons trained themselves to perform rituals to get food from a machine—the machine didn’t respond to the pigeons at all, but their nature assumed that it did. Later experiments showed that if the results were random, the pigeons would develop ever more complex rituals.²

So, for example, the judge, telling us not to take dismissals personally, said that when he was a defense attorney he’d routinely dismiss jurors who reminded him of his high school gym teacher. Given the “science” of dismissals as it exists, this is probably as reasonable as any other reason. But it’s still nonsensical.

The magical science of jury selection is self-reinforcing: jury selection becomes part of the opening arguments. In our case, the defense attorney tried to instill a sense of extraordinary caution in us, not to let our feelings overcome our fairness, probably in the hopes of getting us to overcompensate. The prosecuting attorney had her theory, too: we needed to use our own common sense to infer facts based on our own life experiences³. (But then she went on and told us we shouldn’t trust any of our own experience with medicine, or trucks, or Pacific Beach. So her overall strategy was less obvious.)

By making jury selection part of the trial, it is treated as part of the trial. What will the next step in the pigeon dance be? Peremptory dismissals for anyone who follows your gym teacher on Twitter?

We need jury duty to be a duty to be proud of, not a task to avoid, and not a joke. As connectivity advances, our only hope for the integrity of the system is that jurors want to play fair. We either need to ensure that jurors don’t want to look for information elsewhere, or, more likely, we need to integrate knowledge into the jury deliberation process. Pretending that people won’t do what people naturally do—communicate—is not a solution when isolation disappears.