This morning I’ve been summoned to serve on a jury. Here’s wishing Stone County, Missouri good luck with this adventure.
I’ve always wanted to serve, but I was disqualified in Los Angeles. And I might see a similar sad fate here in the Ozarks, too. I hope not, and I’ll let you know. Anyway, my disqualification for a jury had nothing to do with my profession as a poker player. It had everything to do with my approaching decisions logically. Let me explain.
I call it the “Great American Jury Flaw.” Our system is so obviously distorted that if it were a poker game, you couldn’t rationally play. It would be as if pots could only be awarded if 12 impartial observes had to unanimously vote first on whether you played the best shown-down hand correctly “beyond a reasonable doubt.”
Your chances of winning wouldn’t depend so much on whether the observers thought you probably played the hand well. It would depend on how each observer defined “reasonable doubt.” Maybe some observers would leave it to whim to decide what a reasonable doubt was emotionally.
Now, you and I know that poker decisions during the game itself aren’t built on whim. They’re built on logic and evidence. And they’re always made in consideration of the pot size — both now and projected beyond this decision point, the prospects of the hand winning, the immediate bet size, and the estimated cost of pursuing the pot further. Great players then try to gauge whether it’s most profitable to fold, check, bet, or raise, and — when betting or raising — how much. Fine. It’s complicated, but at least we have guidelines.
What are the guidelines for jurors in a criminal case? “Guilty beyond a reasonable doubt.” Huh? What does that mean?
Well, in Los Angeles, I posed that question during jury selection. I wasn’t trying to be cute or difficult, as I may have been perceived. It was simply that I couldn’t ethically swear to decide beyond a reasonable doubt without knowing what one was. I teach that you should try to make all important decisions — in poker and in life — in accordance with probability. So, I’d need to know how reasonable doubt translates statistically. Clearly 51 percent probability of guilt leaves reasonable doubt. What about 75 percent, 83 percent, 99 percent. Is one chance in a million reasonable doubt? One chance in ten? What?
And so I was honest and said to the judge that I wanted to pledge to carry out this mission, but needed clarification on what a reasonable doubt was.
He said — I’m sure correctly in accordance with law — that he couldn’t advise me about that. It was whatever it meant to me.
So, I said something like: “Then, for the sake of this case, I’m going to define reasonable doubt as one chance in 20. Please tell me if that’s too high or too low and I’ll adjust it.” Bam! I was immediately disqualified by one of the lawyers selecting the jury.
Not only that, when I was summoned again years later, I called in to explain what had happened and was disqualified on the phone! Apparently I had made the equivalent of the “No fly” list for Los Angeles juries.
In truth, I believe a one in 20 chance of innocence is a scary standard to impose. That might mean you’d be condemning someone to prison who you thought had a five percent chance of going there in error. But I’m wise enough to know that the system doesn’t assume “beyond a reasonable doubt” to mean one chance in 10 million of innocence. So, if you’re on a jury in a criminal trial, you need to live with the haunting notion that you might have done wrong if you vote to convict. But I was happy to fulfill my civic obligation — if only some guidance were given on what reasonable doubt meant.
If you’re a little confused about why this is a big deal, let me give you an example. Suppose that Mary decides to use probability to decide guilt or innocence and that a reasonable doubt to her is a 20 percent chance of innocence. After hearing the evidence, she estimates that there’s only a 10 percent chance the guy didn’t kill his girlfriend, so she obviously votes guilty. But Sam thinks a reasonable doubt is two percent. He thinks there’s a five percent chance the guy didn’t do it, but that’s too much doubt by his standard.
Now you have the absurd situation where Sam is more convinced of guilt than Mary, but votes not guilty, while Mary — who thinks it’s less likely the guy did it — votes guilty. And that isn’t just theoretical. It’s probably happening often among juries. And it’s all because of the Great American Jury Flaw.
If you want Mike Caro to decide “beyond a reasonable doubt,” you have an obligation to tell him what one is. Otherwise, assign him to a civil case where the “preponderence of evidence” guideline means anything over 50 percent.
Do you see the issue here? It isn’t silly or picky. One thing I know for sure is that if you don’t understand it, you’re unlikely to play poker profitably. You’ll make too many decisions at whim, rather than analytically. Please think about it. Meanwhile, I’m off to the Stone County Courthouse. They need me. — MC