Community Jury Path To Controlling Obscenity

For the first time in maybe a hundred years a "community jury" has been convoked to help a judge decide a novel legal case inadequately served by existing law.

From this revival of an old and trusted custom of Anglo-Saxon jurisprudence there is support for a proposition I have made from time to time in this space - local juries to decide questions of obscenity.

Common Pleas Judge James V. Barbuto, of Summit County, last week called upon a 12-member community jury to make a recommendation in a "shock probation" hearing.

Mark Richard Fisher, 19, of Cuyahoga Falls, was convicted of selling narcotics to other youth and sentenced last October to 20 to 40 years in the Ohio Reformatory at Mansfield.

On motion of Fisher's attorney, Judge Barbuto agreed to consider probation based on an Ohio law that permits release of prisoners who have been adequately shocked into genuine repentance by a short jail stay.

Because Fisher had served only three months of a long sentence, the judge wanted society to indicate its feeling about having a dope peddler returned to its midst.  Nine members of the unique jury would have to agree on a recommendation, pro or con.

After three days of hearings, the jury recommended 11 to 1 that young Fisher be paroled after a year in the county jail rather than 20 years in the state prison.

Judge Barbuto was so pleased at the outcome of this trial of ancient common law practice that he said he was going to suggest wider use to the Ohio Supreme Court.  The press hails the use of a local jury to determine matters of opinion - rather than that of fact - as a milestone of law.

It puzzles me why attorneys have come to feel the usefulness of a jury is limited to criminal cases.  Historically, the use of the jury in determining guilt is a relatively recent development of jurisprudence.

The first jurors in ancient Anglo-Saxon days were not triers of fact in legal disputes but were persons acquainted with whatever community question had to be answered and spoke out of personal knowledge.

William the Conqueror, after his successful invasion of England in 1066, established the jury as an inquest of neighbors to furnish information about the owners and boundaries of property.  It was the first universal tax roll in British history.

The earliest function of a jury as a judicial device appears in the twelfth century to have been that of presenting accusations, not the hearing of evidence and rendering verdicts.

Through the centuries, the jury has been used for many purposes when the will of the people - rather than law or personal whim - was desired to be known.  The pix jury tested the standard of coins.  The matron's jury decided whether a plea of pregnancy by a woman awaiting execution was valid.  A sheriff's jury decided lunacy.  Some states still use an accounting jury to consider the accounts of specified public officials.

Because of Judge Barbuto's use once again of the "petit," or community jury, for social matters I am encouraged to suggest once again the custom for deciding questions of obscenity.

I propose that any citizen or public prosecutor could petition a municipal court for a determination by jury of the moral fitness of a specific publication, film or entertainment.

To me, the jury is the perfect vehicle for settling questions of morals.  The jury is chosen at random from among the citizenry for short periods of time.  Thus, over the years, the jury accurately reflects the changing standards of conduct in an evolving society.

Because tastes and standards do change constantly, the problem of defining obscenity for legal purposes has always been beyond the precise requirements of law.  Four-letter words that were in accepted use in some of Shakespeare's plays are highly vulgar today.  At the turn of the century the sight of a woman's ankle titillated the boys on the corner while today our proper daughters scamper about the beach in a couple of skimpy handkerchiefs.

The jury has been effective in criminal cases because it mirrored a community's feelings - at the moment - of what was right and what was wrong.  Goodness and badness is relative only to today.  The law deals only with yesterday.

When I have suggested in the past that community juries be used for questions of morality, my lawyer friends have attempted to convince me the idea is unworkable.  They say it would be impossible to set the authority of such a jury, or that it would tie up the courts, or that there is no constitutional basis for it

"Yes, but," I answer, "we trust a jury implicitly with deciding life and death and believe strongly in the merit and legality of the jury system.  Attorneys can't define obscenity because that quality really exists only briefly in the minds of the people.  The jury taps the minds of the people.  So let us accept the idea of 12 good men judging as truly on pornography as on murder and the law makers will soon find a way to put foundation under necessity."

Now, Judge Barbuto - a respected member of the bench - has resorted to use of a community jury for helping focus modern sentiment on the touchy drug problem.  I see no reason, therefore, why the same practice would not apply equally well to obscenity problems.

Any presentation to be viewed by someone other than the producer should be able to stand the test of acceptance by an honest cross-section of the public.  An obscenity jury would examine a questionable work and give a unanimous DISAPPROVAL to stop its circulation.

Patrons of the arts and defenders of the free press please note that the obscenity jury I propose would act only to BAN putrid material.  The twelve votes would be necessary to prohibit presentation, a single juror who saw a glimmer of art in the work under review would be enough to hang the jury and allow circulation.

I would be willing to abide by the decision of but one man in 12 to permit circulation of questionable material.  Surely the advocates of "anything goes" could live with a decision based on 12 empathic votes.

Though the odds would seem to be 12 to 1 for the pornographers, I am confident the good sense of the majority would prevail 11 times out of 12.

And even if we stopped only one-twelfth of the obscenity now drowning us, that is one-twelfth better than we are now getting.

Judge Barbuto has set the pace, now let us move forward on the path he has shown us.

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