Kaiser, D. Nolan

English

Chicago-Kent College of Law

Chicago-Kent Law ReviewVolume 60 | Issue 2 Article 5April 1984Just Justice: A Reply to Mr. McConnellD. Nolan KaiserFollow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreviewPart of the Law CommonsThis Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusionin Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, pleasecontact dginsberg@kentlaw.iit.edu.Recommended CitationD. N. Kaiser, Just Justice: A Reply to Mr. McConnell, 60 Chi.-Kent L. Rev. 215 (1984).Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol60/iss2/5JUST JUSTICE: A REPLY TO MR. McCONNELLD. NOLAN KAISERWhen institutional practices are subjected to criticism from theperspective of a different tradition there is a tendency for practitionersto invoke in its defense highly visible principles and technical expertiseintegral to the institutional practice. Law is no exception. Footnotesmay document the technical basis of the legal practice in question, butit is not its legal existence, it is its moral coherence which is called intoquestion. Again, little progress can be had when we are invited tochoose between conventional beliefs exhibiting blindness about blind-ness, and a basic constitutional right.I will indicate five areas where Mr. McConnell's arguments failand provide reasons for some of these failures. I will close with a posi-tion statement that places the controversy in moral and legalperspective.ENSHRINING A MISCONCEPTION"No man can see with another's eye, no more can a man concludewith another's understanding or reasoning." It is true that I do not seewith your eye, nor reason to conclusion with your faculty of reasoning.It is false to say that I cannot understand and accredit what you reporthaving seen. This does not mean that I cannot understand what youreport understanding, nor that I cannot reason to conclusion on prem-ises supplied by your reasoning. In the first sense these words are truebut trivial, and no one would think it important to dispute them. In thesecond sense they are false, though their failure is informative. Vaughnand McConnell have confused the true statement: "One who cannotsee does not know by seeing" with: "One who does not see what othersknow by seeing does not know that thing." A misconception is notgiven greater believability because it is articulated by a chief justice.The presumption that it does colors nearly everything that follows inMr. McConnell's review.ALLEGATION OF CONFUSION CONFIRMS ITMcConnell draws the distinction between the litigant's right totrial by jury and the mythic right of individuals to sit on a jury. He215CHICAGO KENT LAW REVIEWsays that I have confused these two rights, only one of which is recog-nized at law, and he pushes this theme in variation. True, I complainabout legal practice which systematically denies blind persons an op-portunity to serve as jurors and he reminds me: "It is only the litigants,not prospective jurors, who may complain about the exclusion of a par-ticular person or class of persons from jury service." He confuses myprescriptive statements about the law for a descriptive statement of thelaw. I do not force blind jurors on litigants who would not have them.The belief that I do misses my position and so the program of mypaper.THE LOGIC OF THE RIGHT TO JURY TRIALIn Michigan as in other state jurisdictions, when the law summonsblind persons as prospective jurors, the law recognizes them as primafacie qualified for jury duty. It remains for examination in voir dire todetermine actual qualifications for the particular case being litigated.Because the logical corollary of a litigant's right to challenge is the rightnot to challenge, litigants have the right to claim those jurors they havenot challenged. It follows that a full statement of the esteemed right tojury trial can encompass jury duty for blind persons.RETENTION AND DELIBERATIONFrom the fact that persons accustomed to both seeing and hearingdo not retain as much of the information as they normally would whenone of the avenues of perceptual information is blocked only tells usabout the fall-off in retention rates among normal persons who havebeen experimentally handicapped. It tells us nothing valid about reten-tion rates among blind or deaf persons who are accustomed to theirhandicapped manner of information gathering.In deliberation, jurors provide evidence missed or forgotten;through argument they increase or decrease the weight that a particularpiece of evidence commands; they draw parallels and interconnectionsand so persuade or dissuade each other at various points and on vari-ous issues. This milieu of information exchange conjoined with accessto exhibits and needed parts of the trial transcript makes available allthe competent evidence upon which independent judgment and justverdict must rest. In this information-rich environment it is as reason-able to believe that a blind person can acquit his juror duties as it isthat a blind person can acquit his judicial duties. Perceptual limitationJUST JUSTICEmust not be confused with absolute data deprivation or conceptualincompetence.THE BLIND JUDGE ARGUMENT MISCONSTRUEDSome, like Emerson, may think that enslavement to consistency isthe hobgoblin of little minds, but lawyers and logicians know better. Ifthe judge be blind and assigned to the case and the litigants waive theirright to trial by jury, is there any coherent doubt remaining that the lawaccepts blind triers of fact? Since the judge's knowledge of law pre-sumptively is of no effect in his "reasoning to finding" on the facts,consistency demands the legal possibility of blind lay jurors.Between the legal duty to serve in the armed forces during na-tional emergency and the legal duty to pay a tax liability, there is theintermediate area of jury duty over which there is geniune controversy.In many states, legislators have attempted to resolve the controversy bystatutory enactment. In other jurisdictions jury commissioners or simi-lar court officials have modified rules which previously excluded blindor deaf persons from jury duty. Many legislators and a growingnumber of court officials, including judges, share my view that absentconvincing arguments by litigants in voir dire, blind and other percep-tually handicapped persons may be seated on juries. Such jurors donot pose a generic threat to a litigant's constitutional right to swift andpublic trial by an impartial jury. If any litigant continues to think so ina particular case, his right to peremptory challenge remains to defendboth his belief and his interest. Amending legal practice in the way Isuggest breaks down one more barrier to a full and active civic role forsuch persons. It is a desirable policy goal, but even more, it is therecognition of a perceptually handicapped person's right to equal con-sideration in the society. In honoring this principle we satisfy one ofthe requirements of social justice.

Just Justice: A Reply to Mr. McConnell

https://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=2526&amp;context=cklawreview

Just Justice: A Reply to Mr. McConnell

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