Photo by Lara Jameson
Richard Gabriel and Michelle Rey LaRocca recently completed and published the second phase report in the Trust in Justice project. This expansive work included collected substantial survey data in the first phase, conducting numerous focus groups in the second phase, and implementing the recommendations in the forthcoming third phase. Richard and Michelle sat down with TJE editor Clint Townson to discuss the project in more detail. The following transcript has been edited for clarity, content, and brevity.
Clint Townson: Reading through these reports shows that this has really been a massive undertaking. And going back through the text of it and some of the data, it’s a lot of data that you collected as well. So first and foremost, on behalf of everybody that’s read it, let me commend you all and your collaborators on some really excellent and really important work. But sort of related to that, what motivated this project and what was the starting point for you all?
Richard Gabriel: Well for me, I just remember looking at the course of public opinion in the country. After some of the Supreme Court rulings in 2023, I noticed a significant drop in public attitudes towards the Supreme Court, but also our justice system in general. As a result, I also started seeing some animosity toward the court system in jury pools. Some jurors would say, “I don’t think I’d be a good juror, because I don’t believe in the system.” And that sentiment was becoming more common than I’d seen in the past. That downward slide was disturbing to me. I was not content to just sit around and let that continue. I would prefer to study those attitudes that are eroding trust, and then see what we can do to reverse the momentum and get things back on course. So that was the motivation for starting the project.
Clint Townson: Yeah, it’s interesting that you mentioned the prominence of the Supreme Court as being something of a touch point for this, because the Supreme Court used to be kind of an afterthought in everybody’s life. Even when it came to actually discussing politics, it wasn’t really at the forefront. It wasn’t something that was sort of a primary motivator for political action or voting behaviors, and it seems as though that you noted that the attitude sort of seeped into all these other things that really relevant to what we do in terms of participation in jury trials. So it’s interesting that this has kind of been a precipitating event. You noted as well in your report the Gallup polling that has gone on for many, many years, and the Supreme Court approval rating, if you will, has dipped particularly in the last couple of years. Are you feeling as though some of these attitudes are more of a recent thing, that it’s politics and the courts have become more intersected? Or is this sort of an acute thing related to how the Supreme Court has behaved within the last, say a half decade or so?
Richard Gabriel: I think many issues in our society tend to get characterized as political these days – as either a Democrat or a Republican issue. As a result, there’s this tendency towards a binary mindset: you’re either for this issue, or you’re against this issue. In the past, the courts were a place where issues got discussed and resolved, and there was an understanding of complexity. Even though it’s an adversarial system, the courts were a place where issues got judged and evaluated, regardless of politics. The media has also covered the Supreme Court rulings in a much more political manner. We have more coverage of these rulings, and the reporting tends to be a simplified version of very complicated issues. And as a result, the public does not appreciate the cognitive complexity of these issues.
Michelle Rey LaRocca: Media coverage of Supreme Court decisions has drastically increased over the past 10–20 years. I remember when I was in law school about 10–15 years ago, we followed these cases as students, but the general public paid far less attention. Now, even my friends outside of the legal world are aware of what’s going happening. However, as Richard said, the coverage is not a deep dive into the opinions. Instead, news sources often present a simplified interpretation, telling you what to think about these about these opinions.
Richard Gabriel: I also think that we’re actually not encouraged to be open-minded these days. There’s so much emphasis in our social media on, ‘you should have an opinion on this or that.’ I think it’s very challenging for jurors who walk into a courtroom. They’re conditioned every day through the news and social media to have strong opinions about a huge variety of subjects which twenty, thirty, and forty years ago, we had no idea about. I’m concerned that we’re actually not training people to actually be open-minded. I don’t often hear people say, “Huh, interesting point. I hadn’t thought about that before. But now that you’re saying it, that makes sense to me.” That’s something I think we have to pay very close attention to culturally, because I think it affects our jurors. I think it also affects even the way we work with our clients. I find attorneys sometimes have a difficulty in being open-minded to our recommendations, even though that’s why they hired us. So, it’s a cultural issue that I think we should pay closer attention to.
Clint Townson: The first thing that I thought of is when you were discussing open-mindedness, is when I started teaching public speaking in grad school, I had students give me something they felt really strongly about—political position, something like that. And I said, “Okay, you have to write a speech arguing for the opposite, arguing against your position.” That was something they struggled with mightily, because it’s just not something that’s really encouraged, to take that opposite perspective and think about it from a different angle. And it’s so interesting and really insightful when it comes to how jurors think about things, and it sort of encourages some oversimplification in some instances, right? Imagine somebody who core to their identity is “I’m against corporations. I think corporations are bad.” Maybe the case facts don’t really relate to anything that has to do with corporations, but they have simplified it down to that. It becomes “I have no openness to what they have to say, I don’t want to hear what they have to say, because I am an anti-corporate person.” I think I certainly seen that play out in in civil cases, and I’m sure that the same thing happens in criminal scenarios as well. But it becomes “There’s no scenario in which I’m open to hearing from the defense. If you’re here, that that signals everything I need to know.”
Michelle Rey LaRocca: And there’s little acknowledgement of the complex feelings and opinions jurors bring into the courtroom. We simply ask jurors to ‘set it aside,’ when there is no ‘set it aside’ part in the brain, as you would say, Richard. We’re not acknowledging these challenges jurors face, but ask them to be open minded, impartial, and fair, instead of having a more open conversation in voir dire about their real attitudes and allowing them to express their concerns.
Richard Gabriel: We speak about identity politics, but everything’s about identity these days. We’re so conditioned to have opinions about so many different subjects that, all of a sudden, that becomes our self-definition. When we become opinionated about something, confirmation bias kicks in and we only look for information that’s going to reaffirm our prior belief. There’s that whole study of why some voters vote against their self-interests. It’s because they become so identified with the issue, that in order to detach themselves, it feels like they’re leaving a part of themselves behind.
Clint Townson: I’m relating this back to sort of the cynicism toward the courts. Part of me has wondered if some jurors feel cynical about it because there is media coverage of judges being biased, some of the courts being biased, and this idea that they go in sort of knowing what the result is going to be. Richard, I really like your phrasing of this: it used to be sort of a gray area, but now it’s very binary, either for or against something. I wonder if part of the frustration is that jurors feel as though the tops of the court system are held up to be the ultimate neutral arbiters of facts. They’re supposed to be looking at all this stuff objectively, and some of the frustration is from jurors looking at that and saying, “Well, they’re not holding up their end anymore. They’re not being those neutral, objective folks like they’re supposed to be, like the court system is meant to be. How am I expected as a lay person, as a as a regular juror, to live up to that kind of an example?” I can kind of empathize—it’d be a hard thing for some folks to do.
Richard Gabriel: There’s also much more focus on the personalities of the justices and on their political affiliations these days. There’s this myth that judges in the past were more neutral. And the truth is, as we all know from the research on judicial decision making that judges are wired like all of us. They have their own life experiences. They have their own belief systems, and they bring their own worldview to the policy and legal rulings they’re making in cases.
The other concept that we ended up identifying with the survey and focus groups was the question of how disenfranchisement occurs. To a certain extent, it’s been the court system’s own arrogance that is at fault. We have not treated jurors and the public as actual constituents in the system. I think this was borne out in our survey work: people feel like it’s not really their system. It’s a system only for judges and lawyers to resolve things, and if you’re a defendant, you’re a victim of the system. If you are a litigant, you’re more at the mercy of your attorneys, or at the judicial rulings and the procedures that seem incredibly foreign to you. So there’s a sense that people don’t feel they have much ownership in the system. So it’s easier to be cynical about it and that erodes your trust because you feel like it’s not your system.
Michelle Rey LaRocca: I think that’s why jury service—and juries in general—are so important. Most interactions people have with the legal system tend to be negative, but jury service is the chance to be part of the process and make important decisions. If we can emphasize that jury service is way for people to contribute their voice in their community this could make a difference in helping people feel a sense of ownership and trust in the system.
Clint Townson: Yeah, this concept of sort of ownership in the system is a really fascinating takeaway from the first couple of phases of the report. Cynicism is a starting point in phase one, and it seemed like the ownership part was teased out a little bit more in phase 2 from your focus groups and actually speaking to some of these people. I also really like this concept of participating in the system might be an avenue for undoing some of the cynicism. We all have seen that jurors who participate in it find the process to be enjoyable, interesting, engaging. They feel like they’re doing a civic duty, I think. One way I’ve described it, which is similar to what Michelle just described, is it’s one of the more active forms of being a US citizen in the sense that you have an ability to really put your imprint on what is happening in the country, sometimes in a really big case between a couple of giant corporations, but sometimes in just a very high stakes situation for one individual in a criminal case. People generally get more cynical when it comes to voting where it’s: “I have one vote among millions in a state. And ultimately, what’s that going to change anyway?” The jury system’s a little different, because it’s you and maybe just as few as five of your peers. Did you notice that in the focus groups? I think this is something that I would be really curious about, just even participating in these focus groups, not quite directly in the jury system, but even just sort of tangential to that.
Michelle Rey LaRocca: Those people who had been jurors were generally more positive about the system. While they also felt that some changes needed to be made, they felt like they understood the system a little bit better, and they generally had more faith in it.
As far as our focus group participants, this was the first time anyone had ever asked about their opinions on the justice system. No one’s ever asked, and that’s part of them feeling like no one cares and that it’s not their system. And so while some of the discussion ended up being very negative and critical, towards the end, many expressed appreciation for being asked these questions and compensated for their time. One of the participants at the end said something about how the focus group reinvigorated him to get involved, which was powerful and rewarding to hear.
Richard Gabriel: I think it’s about giving people a voice. With disenfranchisement, people feel very helpless. They feel like they don’t have a say in the system. That’s why we see this profound cynicism against a lot of institutions. It’s not just the justice system. It’s all major institutions, and I think it’s because people feel like they just don’t seem to be able to have any power. And so sometimes, just having somebody sit down with them and ask them questions and listen to their opinions and saying “Thank you for telling me about that” gives people a voice. I feel like it engages them, they feel like they’re participating. And I think that’s one of the things we hope to continue in Phase 3 of this project, is to really continue this discussion.
Clint Townson: In going back to what is something that can be done, in the court system to address that: I know conversations that I’ve had with some of my clients is encouraging them to be a little less hardliner on the warpath against the other side. So much of litigation ends up being: “There’s no scenario where these guys are not full of it, and there’s no scenario where we’re wrong on this particular issue.” Sometimes you can’t get jurors out of that mindset unless you yourself are willing to concede certain things, or at minimum, treat folks on the other side with a modicum of respect, and say “I understand why they’re here, and I can appreciate some of their facts and their attorneys’ talents.” Communicating that to jurors from the outset—that this person is not my enemy, we just have disagreements on certain things—gives them that permission to say to each other as jurors, “Look, I might come in as an anti-corporate person, but at the same time, I’m open to hearing reasonable arguments in favor of a corporation, just as I would be open to hearing arguments in favor of an individual.”
Michelle Rey LaRocca: I agree, and we often advise clients, especially on the defense side, to acknowledge the other side, acknowledge the plaintiff and their injury. And then take more of an investigative tone where you’re engaging with the jury and inviting them to explore the case with you: “Here’s how we investigated this case, what we looked at, where we had questions, and what we found.” This approach allows the jury to reach their own conclusions rather than aggressively telling them, “I’m right, and you should side with me.” You’re honoring the jury by trusting to the decision, and they are generally more receptive to that.
Clint Townson: I think you guys have hit on an interesting point here that some of it is the nature of the system. And, Michelle, I know you mentioned something like juror pay. It’s a barrier in and of itself to participate. I’m sure there’s some frustration on particular demographic groups, particular income groups, particular socioeconomic groups, so on and so forth, that they feel as though there is even a barrier just to do the mere thing of serving on a jury as an example, something that a lot of people don’t want to do. They show up, and they say, “I don’t want any part of this, but can I do it? Sure I can do it.” Then you’ve got folks on the other side of the aisle that say “I would like to do this, but I cannot.” Is some of the answer to the cynicism just as simple as doing some things to make it easier for jurors to serve like increasing juror pay, increasing childcare? Some of these things that are just about getting jurors who are able to say, “This is no longer a hardship for me. I can do this.” Is that just a very simple solution to some of this?
Richard Gabriel: I think that’s part of it. Increasing juror pay is a significant concern for the courts to get more representative juries. But that’s just one element. It’s really about making the whole system accessible. So, it’s the summons process. It is the outreach into communities to give them a stake in the jury system. It’s helping jurors understand what the process is all about. There are all kinds of efficiencies and reforms that can be put into place to help jurors better understand their role, as opposed to lectures about civic duty.
So I think there are a lot of aspects to how we engage jurors in the process. How do we make them participants? And how do we really give them power that they actually should have? They are the fact finders in a case, and so we should be treating them as equal to the judge and the lawyers in the case. Now, we frame their service as, “We’re calling you, you’re being put under oath, you have to follow the evidence, and you have to follow all my rules.” This really puts jurors in a passive role. I think we need to reframe our thinking about the meaning of jury service, how we empower jurors to do their job, and how we value their service.
Michelle Rey LaRocca: I love the idea of allowing jurors to ask questions during trial. After all, it is their case to decide.
Clint Townson: Some judges have gone to pretty significant lengths in some instances to really give jurors a chance to engage with the process. Michelle, you mentioned giving the opportunity to ask questions. I know some courts have made a point of giving individual TV screens for each juror so that they can actually read documents and the like that are that are involved. Obviously, notebooks are pretty commonplace now in in most venues. But there are still some venues that that aren’t using those. So I think the more that those kinds of things can be identified is, is definitely a path to this as well.
Richard Gabriel: It’s important to understand the nature of the public’s cynicism toward the justice system. And that’s why we wanted to study this, because it’s such an important issue for us as a society. Propaganda, disinformation, and misinformation campaigns are sow distrust in all institutions. Propaganda isn’t to persuade or convince somebody to believe something antithetical to their beliefs. It’s to make them distrust everything and everyone, so that they become alienated and disenfranchised. They become apathetic, which makes it easier for authoritarians to say, “Well, we’ve got the solution. Just follow us.” It’s a very conscious playbook that authoritarians and propagandists use. I think we need to be much more engaged and conscious of these tactics. The courts are supposed to be the place where we’re looking at objective facts and evidence. You can’t just say anything that you want in court. It has to be backed by evidence, and it’s under oath. So if we allow that to erode in public discourse, despite the First Amendment,, that’s a big problem. We really need the courts to set an example for the public to believe there are objective facts and evidence they can rely on.
Clint Townson: Yeah, I like that concept as this is sort of the last bastion for some of those things, and that this is a great starting point, if nothing else, for defending those institutions and really improving them. If we can make this one work and we make it work for citizens, then maybe that helps spur improvements across the board. So we’ve talked quite a bit about the data in phase one and phase two. I’m wondering if you guys can provide a little bit of a sneak preview and plug for what’s coming in phase three.
Richard Gabriel: The phase three of the Trust in Justice project is intended to further this conversation with all the constituents. Michelle and I have a good understanding in engaging the public from the first two phases of this project. Now it’s time for us to have these discussions with judges, lawyers, police, corrections officials, politicians, law professors, and social psychologists. Let’s figure out ways we can improve the public’s feelings about law enforcement. Let’s help the public better understand how the court system works and how judge’s make decisions. Let’s look at jury and prison reforms. There’s no simple fix here. But at least we can start having discussions with a number of these groups to look at improvements. We’re going to reach out to various judicial groups, bar associations, and other legal organizations. I know judges are worried the public’s perception of their credibility. Attorneys are worried about their public image. So they need to be able to articulate what their challenges are in high profile trials or controversial rulings. So there’s a way that I think they can help the public understand their role and their limitations.
We are on a very worrisome trajectory and I think we need to be very intentional if we want to reverse this trend. Through engagement, education, training, and reforms, I really do believe we can start to rebuild trust in our justice system.
Clint Townson: There’s nothing more gratifying than hearing a judge say, “Oh, I started doing this a while ago. I noticed the jurors, and everybody really seemed to like it. So I started doing more of it.” That’s kind of the common refrain that I’ve heard when it comes to letting jurors ask questions. It sounds like what you have is a great foundation for having those kinds of conversations and getting particularly the people who are making decisions about some of these things to the starting point to recognize an issue. “Let’s try to institute this improvement and see what happens.” And then from there it’s easy, because you’ve been doing it for a while. You just keep doing it.
To read the Trust In Justice project’s reports from the first two phases in their entirety, you can visit Decision Analysis page here: https://decisionanalysisinc.com/tij/. The third phase is forthcoming, and all of ASTC looks forward to continuing to highlight this important work.