July 2020 Criminal Waste of Space – The Thirteenth Juror

by Justice William W. Bedsworth

Mark Twain said it quite well: “We have a criminal jury system which is superior to any in the world and its efficiency is only marred by the difficulty of finding twelve men every day who don’t know anything and can’t read.”

Most of what Twain said about the justice system was said in 1873. His spleen was vented throughout much of that year because of a New York murder case that caught his attention. It was a high-profile case that involved the drunken assault by a workingman on a wealthy New York “gentleman.” It turned upon whether a drunk could form the requisite intent for a first-degree murder verdict.

The trial judge was later-Supreme Court Justice Benjamin Cardozo’s father, Albert, whose charge to the jury was very much in favor of a lesser verdict. The jury returned a first-degree verdict but later all twelve joined in a petition to the governor for clemency, saying they had been intimidated by public opinion (as represented in the newspapers of the day) which was generally in favor of a first-degree conviction. It was this that prompted the famous Twain quote.

But it was hardly all he had to say on the subject. In commenting on the case elsewhere, he said, “The humorist who invented trial by jury played a colossal practical joke upon the world, but since we have the system we ought to try and respect it. A thing which is not thoroughly easy to do when we reflect that by command of the law a criminal juror must be an intellectual vacuum, attached to a melting heart and perfectly macaronian bowels of compassion.”1 Twain was thirty-seven when he wrote that. And—obviously—not given to retracting his claws.

That means I’ve spent almost as much time on the bench as Twain had spent on the planet when he wrote those words. And while I won’t take issue with his evaluation of the occupants of the House of Representatives, I think time has overtaken his low opinion of the jury system.2 I presided over hundreds of jury trials and talked to thousands of jurors.3 They often commented about the near-impenetrability of the jury instructions. I generally sympathized with them4 but often shared with them my sense that the main reason the instructions were not better was that juries kept getting to the right result despite them. If it ain’t broke . . . .

And I was unfailingly impressed with how hard jurors worked and how desperately they tried to do the right thing. They aren’t perfect—any more than the doctors and bridge-builders and airline pilots to whom we daily entrust our lives are perfect.

My own count was that they were right about 98% of the time. Twice I thought they blew it, and there were a few times I felt they’d ended up in Midway City when they were looking for Westminster, but in the vast majority of cases I shook my head and marveled that they’d cut through all the vaudeville and legalese and gotten it right.5 It’s better now than it was in Twain’s day. For one thing, we’ve added women to the jury pool. For another, we’ve got 150 years of experience and a much better education system under our belts. And while we still have a long ways to go, we’re a much more inclusive society. Let’s face it, anything delegated exclusively to white males—as was the jury system of Twain’s day—is a chancy proposition.

So while I’ve always gotten a laugh out of Twain’s observations on the jury system, I’ve always regarded them the way I assume readers of this column regard my own observations: designed to entertain, not to inform. I figure reading my opinions exhausts your ability to take me seriously long before you ever get to this space.

But, as I say, the system is not perfect. Take, for example, one of the last jury trials I sat on in Superior Court. I think it was 1996.

We spent a full day picking the jury. In fact, since we were close to finishing, we stayed until 6:00 p.m. so the extra members of the venire would not have to come back for a second day, only to be excused.

It was late, the trial had a three-day time estimate, and we were all tired, so I decided against risking another hour trying to get alternate jurors. We went with twelve. And, at the end of this long day, I gave all twelve the standard admonishment about not discussing the case and ordered them back the next day.

The next morning at 9:00 a.m., as counsel and I were finishing a pre-trial conference in chambers, my bailiff stepped in and informed me all were present. “Twelve in the box, Judge.” “Great, I’ll be right out.”

I took the bench, surveyed the courtroom and assured myself the defendant, both counsel, the clerk, the bailiff, the court reporter, and all jurors were present.6 I welcomed everyone back, explained the purpose of an opening statement, and invited the prosecutor to give one.

He was about eight minutes into what I remember thinking was a particularly fire-and-brimstone stem-winder when the doors to the courtroom opened and a person with a familiar face walked in. She stood there a few moments, looking at the jury box. She was visibly confused.

As were we all. We recognized her as one of the people we had chosen to sit on this jury not sixteen hours ago. We all knew she was a juror. But how could she be? We had twelve jurors seated in the jury box.

There was much bemused looking around. Jurors were looking at each other. Counsel were looking at their jury charts. I was looking at my clerk.7 After the longest, most uncomfortable silence since Rose Mary Woods, one of the jurors in the box, slowly stood and stammered, “Um . . . Your Honor . . . I, uh . . . I think I might be in the wrong court.”


She was. She was in the wrong court.

We had her take a seat in the audience and seated the “new” juror in the box while we tried to put Humpty Dumpty together again.

Turned out our cowbird was a juror in Judge Rheinheimer’s court, two doors down the hall. She’d confused the number of the department and seeing a bunch of jurors waiting for court to begin, had happily joined them. Judge Rheinheimer was happy to have her back. They’d been waiting for her with growing impatience, and when we sent her there, they were able to resume their trial.

A trial they had begun three days earlier! That’s right. The fact that none of the jurors she had joined for the fourth day looked familiar had not set off alarm bells in her head.

But the kicker may not have yet occurred to you—unless you were familiar with Judge Rheinheimer. JEANNIE Rheinheimer was a fiery, red-headed woman with an incandescent smile. She weighed about a hundred pounds sopping wet. I was sporting a full, dark brown beard in those days, and my lunches weighed more than Jeannie.

I never asked our interloper how she could have not realized the moment I took the bench that there was something rotten in Denmark—that the part of Ophelia was being played by Prince Hamlet.

But I think about her every time I get on a plane. “There’s a stranger flying this plane: a stranger no one has voir dired. How sure are we she’s on the right plane?”


  1. “Foster’s Case,” New York Tribune, 3/10/1873. This is also the piece in which he said, “To my mind Judas Iscariot was nothing but a low, mean premature Congressman,” a description that makes Will Rogers sound like a congressional sycophant.
  2. I also think he was exaggerating for effect—pretty much a sine qua non of humor.
  3. I talked to every juror willing to meet with me after trial, and that was most of them. Twice I did not invite the jurors to stay after—because I was convinced they’d gotten it absolutely wrong and was afraid of what I might say to them.
  4. They’re better since the revision.
  5. An experience I now have with the trial bench.
  6. See, you never gave that a moment’s thought did you? You thought taking the bench involved no more than not stepping on your robe—which I did once. But there’s also a certain amount of roll-calling involved. It usually takes a few “Uh, Judge, we don’t have a court reporter,” or “Your Honor, my client is in the men’s room,” moments to learn that you have to make sure all hands are on deck before going to “All ahead, full.”
  7. Dwayne Roberts, the greatest clerk in the history of western civilization, was my clerk. He was a human life preserver. Whenever I was in trouble, I always looked to Dwayne for rescue. But this time, even his palms were facing the ceiling.


William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.