Changing the way the law deals with high-tech cases

One week into the Terry Childs trial, and the jury is already overwhelmed. There has to be a better way to do this

As I've followed the case of Terry Childs, the "rogue" network administrator who was jailed 18 months ago on $5 million bail, I've often wondered about the reality of a non-technical jury trying a highly technical case. As far as I can determine, the jury in the Childs case is already overwhelmed with technical information -- and the trial is only one week old.

Is it unreasonable to think that high-tech cases should have juries of high-tech people? After all, the accused is supposed to be entitled to a jury of peers. I realize it sounds elitist (like the old saw about juries containing twelve people who weren't smart enough to get out of jury duty), but I can't get past the notion that it's simply impossible for laypeople to absorb enough technical knowledge in a few weeks to enable them to make sound decisions about a case like this one. That even applies to technical people who have a deep understanding of other aspects of technology: If they don't have a background in networking, they would be challenged in a case like this.

[ InfoWorld Contributing Editor Paul Venezia has led the way in reporting the bizarre case of Terry Childs. Consult our InfoWorld special report for a complete index of that coverage. ]

This case isn't about an alleged crime that anyone can relate to, such as burglary or assault. It's about high-level network construction, maintenance, security, and IT policies. That last is the easiest bridge to cross, but the others are almost insurmountable. There just aren't enough car analogies in the world to impart the necessary understanding; it  takes years of training and experience to develop the knowledge required to sit in judgement.

I realize that juries rule on technical matters all the time. Malpractice cases, for example -- but even then, everyone on the jury has been to a doctor, visited a hospital, or watched ER -- that're far closer to home than CCIE-level network design. To really get into the technical details of this case with a non-technical jury is like expecting them to understand a foreign language. Imagine a trial where the lawyers on each side regularly intersperse their arguments with long digressions in Aramaic. If you were in the jury box, how on earth would you decide the case?

It remains to be seen whether this disconnect will help or hinder the defense. On one hand, it's easy enough to bamboozle a jury with tech mumbo jumbo and build a case without a technical foundation. On the other, it's also easy to overload them with so much nonsense that they throw up their hands and decide they simply can't come to any conclusion. In other words, a hung jury or an acquittal based on reasonable doubt.

But what if the jury was comprised of network professionals? The trial would be shorter without all that time needed to educate (or miseducate) the jury. And the outcome would be more just, simply because the jury would truly understand the nature of the case rather than grappling with deeply technical issues using bad analogies and watered-down explanations.

There's certainly precedent for this. Special juries, also called blue ribbon juries, have been called before. From jrank.org:

A blue ribbon jury is also known as a special jury. From the earliest period of COMMON LAW, such juries were used to try cases beyond the understanding of the average person so that justice could be administered as fairly as possible.

Basically special juries are nearly as old as the law itself, with references dating back many hundreds of years. But the constitutionality of special juries has been called into question several times in the modern era, and not all states have this provision. Try as I might, I couldn't find any definitive source on whether or not California has a special jury statute on the books. If one exists, it probably should have been used in this case. If one doesn't, maybe it's time that we revisited the concept.

The world isn't getting any simpler and the Childs case won't be the last high-tech criminal case we will see. The joke in IT is that we can read everyone's e-mail and see what everyone does on their computers (at least in the office). We are omnipresent, but hardly omnipotent. The one remaining charge against Childs was written to address external threats, and was never intended to be used against the admins running the network. Thus, at least some of what we in IT do every day could conceivably be construed as illegal under some law or another if there is no distinction between the two.

That simple fact should worry all of us.

This story, "Changing the way the law deals with high-tech cases," was originally published at InfoWorld.com. Follow the latest developments in security and networking at InfoWorld.com.

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