Are we asking too much of jurors? The mental and emotional trauma sustained by juries deciding violent criminal cases is well documented, including anxiety, depression, physical distress and even post-traumatic stress disorder.
Opening statements begin in the trial of Aurora movie-theater gunman James Holmes on Monday. The trial will feature many of the triggers that can cause such trauma, such as emotional testimony, gruesome photos, strong public scrutiny and the possibility of the death penalty.
And it’s expected to go on for up to five months.
In the recent Boston Marathon bombing trial, jurors were moved to tears by accounts of smoke, blood and shattered limbs that are difficult to hear — but an important cleansing process for both survivors and the community.
In the Holmes trial, jurors will see 150 exhibits with graphic images and a silent, 45-minute crime-scene video related to the deaths of 12 people and attempted murder of 70 others, according to court documents. First responders will transport them to the scene of a floor covered in blood, fallen popcorn and bodies with horrifying injuries. Families will share stories of unbearable loss.
Arapahoe County District Attorney George Brauchler said during jury selection that the case will be “a roller coaster through the worst haunted house you can imagine.”
Jurors will need to ride that roller coaster again and again as they try to decide whether Holmes was sane when he committed the horrible acts and, if so, whether he should be executed. They may fight, both with each other and with their consciences. They may find it harder than expected to hold a man’s life in their hands. And when the ride is over, they may never be the same.
The opportunity for victims and families to share their stories is an integral part of our justice system. And the prosecutor has the right to present all evidence in the case. Jurors also have an important civic duty to bear witness on behalf of their community.
But we need to remember that jurors are not just cogs in a faceless system of justice, but real human beings. They are neighbors, co-workers, family and friends. We have to be careful that the search for justice doesn’t also make them victims.
“It is a costly business to try to heal a wounded and traumatized people and those engaging in this crucial task may bear the brunt themselves,” warned Archbishop Desmond Tutu after South Africa’s Truth and Reconciliation Commission heard over 20,000 testimonials from victims and perpetrators of apartheid.
“It may be that we have been a great deal more like vacuum cleaners than dishwashers, taking into ourselves far more than we knew of the pain and devastation of those whose stories we had heard.”
It’s important that the jurors in Holmes’ trial function more like dishwashers that help cleanse, rather than vacuums that hold the dirt inside.
But while other parties in the courtroom can share their feelings about what they experience, jurors have no such support systems. They’re forbidden from discussing the trial with friends, family, counselors, or even each other.
Although the court said it will provide counseling after the Holmes trial, five months is a long time to hold everything inside. What happens when the vacuum bag is full? What kind of lasting emotional damage might a juror sustain as the price of civic duty?
A survey by the National Center for State Courts found that even in short trials lasting one to three days, 27 percent of jurors said they experienced stress, and 19 percent said they “found it necessary to talk to others about distressing aspects of jury duty.”
After long trials defined as over 21 days, those numbers soared: A full 96 percent of respondents said they experienced stress and nearly half said, “There are emotions resulting from jury duty that I have bottled up inside.”
Multiple studies also show that female jurors are more likely than males to report fear, overwhelming isolation, and emotional upset. In the Holmes trial, 19 of the 24 jurors and alternates are women.
For jurors of both genders, the death penalty is a significant stressor. “For James Eagan Holmes, justice is death,” Brauchler said in court.
But while it’s one thing to believe in the idea of the death penalty, it’s another thing to actually carry it out.
“As the community looks at how we feel about the death penalty, is it too much to be asking other human beings to decide who lives and who dies?” asked Karen Steinhauser, a Denver defense attorney and former prosecutor. “Regardless of how horrific or not we think the crimes are, the enormity of what we ask people to do can’t be understated.”
A study by the Capital Jury Project found that 63 percent of female jurors and 38 percent of male jurors sought counseling after sitting on a capital trial. In addition, 81 percent of female jurors and 18 percent of male jurors regretted their decisions.
Colorado’s court system has undergone significant reforms to provide more support for jurors, including giving clear directions, respecting privacy, and allowing jurors to ask questions and take notes.
In the Holmes case, Judge Carlos Samour Jr. also sent out more than 9,000 summonses, in part to find jurors who could fairly and impartially decide the case without being penalized. That includes the financial impact of earning just $50 a day for the trial.
An 18-page jury questionnaire, now posted on the court’s website, also helped screen jurors for potential trauma. “The court doesn’t want to impose an unfair, unjust, or undue burden on jurors for doing their civic duty,” said Robert McCallum, public information officer for the Colorado Judicial Department.
In the future, the Colorado court system is also considering bringing in professionals to provide stress-relief techniques to jurors in difficult trials, without discussing the facts of the case, McCallum said.
Such limited counseling could be helpful to jurors, and should be considered by Judge Samour and the parties in the Holmes trial as well.
Outside the court system, putting time limits on trials, paying jurors more, and creating a system of professional jurors are other solutions that have been proposed for lengthy cases.
The answers aren’t simple, and may require a broader examination of how the death penalty impacts those tasked with carrying it out. But for long and difficult trials, it’s time to include jurors in the balancing act of finding just solutions.
Lisa Wirthman of Highlands Ranch is a monthly columnist. Follow her on Twitter: @LisaWirthman
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