By Mark Esposito, Guest Blogger
Author’s note: This is the second in a series of related posts examining the American Jury. In the first installment (here), we looked at the antecedents created by the judicial system that foster Jury Groupthink. We said that seven systemic components lead to a higher risk of groupthink when citizens form isolated, cohesive work groups to decide issues in a litigation setting. We also explained that the more antecedents in the mix, the higher the likelihood of decisions based not on reason or evidence but more on the need to reach a unanimous decision and to defend that decision later. The events of this week serve almost as a scripted piece of this article as first one then another juror in the Zimmerman case came forward to exemplify aspects of the groupthink mentality. (More about that in Installment Three.) Antecedents by the judicial system aren’t the only promoters of group think. Societal constructs created by our society as a whole enhances the pattern, too, and serve as telltale markers of the bad decision-making, as we shall see.
You think your average juror is King Solomon? No! He’s a roofer with a mortgage. He wants to go home and sit in his Barcalounger and let the cable TV wash over him. And this man doesn’t give a single, solitary droplet of shit about truth, justice or your American way.
~John Grisham, The Runaway Jury
John Grisham’s crystallized cynicism surely doesn’t hold true for all jurors but the point to be made is that jurors are not “big picture” deciders of great issues of the day utilizing lofty principles. Instead, jurors tend to recoil from abstract notions of truth and justice and delve more deeply into human motivations and empathy. In their classic work on American juries, Professors Kalven and Zeisel of the University of Chicago, concluded that “in many instances the jury reaction goes well beyond” rational sentiments “and rests on empathy of one human being to another.” Appealing enough to our natural sentiments and intuitively correct, but in the battle of human versus human, the question becomes, “empathy for whom?” And how does empathy fit into the structure of a system that calls for cold-blooded reason and eschews warm-hearted sentiments? Not so well, it seems. In fact, jurors swear off these emotional human frailties (which form much of their everyday decision-making. Don’t think so? Ask yourself: “Why did I marry my wife? Wide pubic bone for ease in childbearing perhaps, there Mr. Spock?) and promise to be guided by the evidence alone. How can juries bridge the gap between their own intuition and the judge’s instruction?
As we explored in the first article, juries come to the decision-making table with little preparation or guidance in making these critical decisions that are preordained by the judge to be based on reason alone. How then to merge empathy and reason into justice? Why groupthink, of course. Why so? Because society supports that decision-making model with a whole series of social constructs that forms in the group, what Professor Irving Janis called the “behavioral consequences of a coping pattern of defensive avoidance.”
Ok, I can deal with “behavioral consequences,” and maybe even “coping pattern,” but what the heck is “defensive avoidance?” Over at Harvard University, the good scholars define “defensive avoidance of disapproval ” [the type we have here] as the ” motivated inattention to physiological, affective, or cognitive reactions arising from stressful social transactions, thereby safeguarding a self-image of social competence.” Here in Richmond (VA), we call it C-Y-A by folks who have little or no guidance on what the heck they are doing or how to go about it in the first place. It goes by other names, too, like “saving face,” or “defensive medicine.” But how do we know a group decision is premised on disregarding all reason via C-Y-A as opposed to rational decision-making in the sausage factory of the jury room? Professor Janis provides us the “symptoms” of Groupthink, and he’s kind enough to group these markers for us using the terminology of the prevailing societal constructs that foster them. Sort of an Audubon Society Field Guide for bird-brained jury verdicts:
Type I -Overestimation of the Group
Illusion of invulnerability.
Belief in inherent morality.
Type II – Closed-Mindedness.
Stereotypes of out-groups.
Type III – Pressures Toward Uniformity.
Illusion of unanimity.
Direct pressure on dissenters / Self-appointed mindguards.
Let’s look at Type I, Overestimation of the Group. Groupthink decisions tend to arise when the group sees itself as invulnerable from external pressure as it decides its issue and, while it deliberates, possesses an almost religious belief in its own inherent goodness and worth. Janis looked at the Kennedy Administration’s “perfect failure” at the lost-from-the start Bay of Pigs fiasco. There it was, the “best and brightest” of Camelot ignoring the myriad of glaring deficiencies in the plan (replete with warning sirens not-so-forcefully sounded by Arthur Schlesinger) who sallied forth into a complete disaster that a cursory review and basic understanding of military tactics would have quickly revealed. Ditto the Carter Administration’s nadir on the sands of Desert One.
In our context, one struggles to find a group meeting this “Knights of the Round Table” criteria more than your garden variety petit jury. After being praised in every form of media as the conscience of the community, the assembled venirepersons are sworn into service in a solemn ceremony presided over by our society’s version of the uber-alpha male/female, i.e., the one person in all the land who has the range of power up to and including legally sending civilians to the death chamber. And now guess what? By that simple “I do” and in the right case, you collectively have that power, too! And you can do it in secret with complete anonymity and with the full confidence that no one can disturb you as you act with absolute impunity. They don’t give that kind of power to just ordinary folks, do they? “Of course, not,” your reptilian brain says and off you go to slay your own dragon. In my mind’s eye, I can see a sword blade tapping a shoulder and hear the ringing words, “In the name of God, St. Michael, and St. George, I christen you and bestow upon you the power to bear arms and mete justice,” exactly how trusted medieval knights were commissioned to defend god and country by either prelate or potentate in merry old England. Talk about head expanding!
Type II Closed-Mindedness, is a little trickier but just as important to grasp because it revolves around the socially ordained insularity of the jury process. Jurys work in secret and only among themselves. Unlike the other society outside its door, juries are limited by two things, in theory: the evidence and instructions allowed by the judge and the collective experiences (sometimes called the “common sense”) of the panelists. This insures a close mindedness that is understandable but troubling. Compare this model of decision-making to how leading American companies decide on a new market opening for a product? Do the captains of industry gather a few senior exces together who have almost no knowledge of the product or the market ? Then, have ancillaries — over whom the decision-makers have no control — provide them the information that the ancillaries think is important? Finally, do corporations cloister their execs to permit them to put their heads together in a collective effort to get it right? Of course not. Properly made decisions require vertical as well as horizontal inputs of relevant information so that decision-makers have all the knowledge they deem pertinent to decide the issue. For example, at Apple during the heyday of the Steven Jobs era, the company’s Top 100 were called into session to make presentations to Mr. Jobs personally. The presenters ranged from project managers to senior executives — all with one goal: Get the product designed, made, and to the market as cheaply and efficiently as possible.
And lest you think this insularity is the only way for juries to function, consider the origins of the jury system in 12th century Britain. Originally, juries were a group of the leading citizens of the town or shire who assembled by royal edict to gather facts about disputes which, in turn, were turned over to the monarch who decided the issue. Invariably they knew the “litigants” involved and had knowledge of the dispute before it was explained to them by the parties or their representatives. Jurors could question the parties and conduct their own investigation. Sometimes they would be chosen as jurors simply because they had witnessed the event giving rise to the dispute. It would take three hundred years before juries evolved from their advisory role to unfettered deciders of facts, but moving to the notion that jurors had to be disinterested persons isolated from the dispute would take much longer to take hold. Between the 15th and 18th centuries, the role of the jury evolved into more of a peer system as the requirement of knighthood status was dropped. Expert witnesses began to be used especially in land cases. Exemptions from jury duty were also granted by the king, such as for Quakers, who could not swear to oaths. The more modern concept of an impartial jury was fostered by reforms which permitted a litigant to challenge a juror for cause including challenges that the petit juror had served on the indicting jury, the juror was a serf or servant, the juror has been convicted of certain crimes, the juror was related to one of the parties or the sheriff, or the juror had stated his opinion of the case in public. Thus the institution became what philosopher Herbert Spencer described as, “A group of twelve people of average ignorance” and insularity became its hallmark.
How do insular decision-making bodies think? It’s an old question but with an answer that defines and explains much of the world’s struggle to free itself. Insular bodies engage in rationalizations to justify both their existence and their authority. Because they perceive themselves as invulnerable and that their mission is sacrosanct, whatever decision they arrive at must be correct regardless of the suffering or poor consequences it engenders. Look at the recent sexual abuse scandal in the Roman Catholic Church in the United States. The decision-makers in that group are the poster children for both invulnerability and close mindedness. As the walls were burning around them what was their reaction to a crisis that could have razed the centuries-old institution? National Catholic Reporter, John Allen, Jr., revealed the groupthink in that institution:
No one [in the Vatican] thinks the sexual abuse of kids is unique to the States, but they do think that the reporting on it is uniquely American, fueled by anti-Catholicism and shyster lawyers hustling to tap the deep pockets of the church. And that thinking is tied to the larger perception about American culture, which is that there is a hysteria when it comes to anything sexual, and an incomprehension of the Catholic Church. What that means is that Vatican officials are slower to make the kinds of public statements that most American Catholics want, and when they do make them they are tentative and halfhearted. It’s not that they don’t feel bad for the victims, but they think the clamor for them to apologize is fed by other factors that they don’t want to capitulate to.
To fully institutionalize the groupthink, sure-to-be canonized Pope Benedict warned the world in 2010 that he would not “be intimidated by … petty gossip” that was the child sexual abuse scandal.
This is NOT to suggest that American juries engage in the same moral myopia so prevalent in the priest sexual abuse scandal, merely that insular bodies tend to value themselves above their mission. And while the most egregious offenders are the long-standing enclaves of secrecy, sanctimony, and self-preservation, more fugacious groups of decision-makers can take on these collective anti-social behaviors — such as misguided loyalty to the group over the mission — as well.
Where close-mindedness becomes particularly insidious is in the presence of highly homogeneous groups. As we’ve discussed, homogenous juries tend to favor litigants with the same or similar salient features of the jury be it race, gender, or even age. The opposite is also true that homogenous juries also tend to disfavor non-similar litigants (the “out group”) and to disproportionately rely on stereotypes or overgeneralizations about the outgroup rather than facts. The more highly homogenous, the more reliance on stereotypes and overgeneralizations because, after all, the jury is limited to its collective experiences. Think “suspicious” African-American kid with a hoodie here in the minds of five white, female jurors. But we’re getting ahead of ourselves now, but only by a little.
Type III – Pressures Toward Uniformity. Oh, peer pressure thy name is groupthink! We’ve all been there around age 17. Weed, Jack Daniels, or something stronger is going around and the only square in the room is you. Oh, sure you can storm out on your peer group, or stand and cite the latest CDC statistics on substance abuse among American young people, or conform and have the camaraderie of the group at your feet. Wanna guess how it turns out most times? The problem with cohesive, invulnerable, insular, sanctified by society decision-making groups is that at some point they expect everybody within the group to conform. Oh, so subtle at first; Juror 30 please sit here. Let’s take an initial vote. How about we all tell the judge we want lunch at 1:00 p.m. If we’re asked, let’s tell the judge we want to go to 6:00 p.m. today.
Insular groups demand and receive conformity. In some sense they have to achieve this to carry out their functions. But this conformity can easily turn to intimidation when fatigue, exasperation, and downright orneriness sets into the room. Just like on your last cruise, there is always someone who’s done it before; done it better; has a relative who has inside scoop; and can show you the ropes. The implicit message is “I get it. You don’t. So follow me and we’ll make short work of this.” Rush to judgment? Well, maybe but the pressure to conform doesn’t end there, it only begins.
it takes a strong personality to stand up to this kind of prodding and quite frankly most people are just not up for confrontation. And I mean any kind of confrontation. And most jurors by the time they get the case want to decide it — and quickly. It’s about family needs, employment needs, or just plain not wanting to be in this environment any more than they have to be there. The path of least resistance sure looks shorter after three weeks on hard seats and eating Pizza Hut Pizza at the NoTell Hotel. Sure you get movies and a pedicure maybe but does that compare to home?
Take a motivated “wanna get outta there-er” and a dominant personality at the head of the table, and the discussion goes like this: “Ok, does anybody really think he’s guilty after what we just heard?” Er, well maybe sir if that’s ok, sir. Think that doesn’t happen? Let’s look at Arthur Schlesinger at the Bay of Pigs final meeting when the “Go” order was given. Here’s the elegantly educated Ivy Leaguer’s own take on his performance to stop a tragedy:
“In the months after the Bay of Pigs I bitterly reproached myself for having kept so silent during those crucial discussions in the cabinet room.” He continued, “I can only explain my failure to do more than raise a few timid questions by reporting that one’s impulse to blow the whistle on this nonsense was simply undone by the circumstances of the discussion.”
The researchers call this self-censorship the promotion of the “illusion of universality” where silence or near silence means agreement. Allport, F. W. (1924). Social psychology. New York: Houghton Mifflin. If it happens to a top intellect like Schlesinger, who can easily articulate and defend his well-considered opinions, how might a minority lady with eight kids and a job at a nursing home who moved to Florida from Chicago just months earlier handle it?
For that, you’ll have to read the next installment when we consider the State v. Zimmerman jurors and their words and deeds in the context of groupthink.
~Mark Esposito, Guest Blogger