From A Decade Past, Jury Duty

[elfs]

Well, I did my time and I'm out on the streets again. Yes, for the past couple of days I've been held by the municipal court system-- allowed to go home at night on my own recognizance, but required to report to the Public Safety Building every morning at 9:00 am. It was long and arduous and mostly dull, but at time it was an interesting experience I'd willfully repeat. I wasn't there as a suspect or anything sinister like that, but as a juror.

I will say there were several things that I found striking about the experience. The first thing that I noticed was that, while the city sends out 300 jury summonses a week, they expect only about 20%, or 60 people, to actually show up for jury duty. This week, however, a painful 43 people showed up-- 15% of those summoned, and not enough to actually supply the needs of five courtrooms. The other 85% are potentially on the receiving end of a five-thousand dollar fine and a year in jail (although in Seattle's history, nobody has ever actually been sent to jail for evading jury duty). And out of the 250 or so people who did not show up this week, the city eventually ends up processing citations against only about fifty of them. Every week.

That's shameful. People often excuse it by saying, "Oh, they can reschedule to a later date." If that's true, where are the people who rescheduled for this week? Shouldn't they have had the civic responsibility to show up? Like voting, there's little excuse for not doing jury duty. It's relatively painless, and while it's part of your civil duty, it is also your civil right to do jury duty without being penalized by your employer. I mean, Hell, one of the people sharing the jury pool room with me was Bill Nye The Science Guy. Former Seattle Mayor Norm Rice, I recall, served as a juror sometime last year. If these people have the time, so do more than just 15% of the residents of Seattle.

One thing that really bugged me was that the jury pool was almost all white. Out of 43 people, there were two black members, and I know that the makeup of Seattle is not less than 5% black. I think if justice were to be served to black defendants, then maybe more potential black jurors should show up for their summons.

One comment that came out of the conversations I had with other jurors, especially those who had actually gone through the process of deliberations, was "All my fellow jurors were such nice people. We argued and got angry, but they were nice people." And maybe that's another problem with the jury system. Only nice people show up; responsible people, people who feel the need to perform their civic duties as required by law and custom. This was rarely a "jury of one's peers," since a lot of defendants were neither white nor particularly nice (in one case, I thought the defendent was an asshole, but by six to zero we found him not guilty of the crime of which he was accused), yet in many cases their fates were being decided by nice, white people.

There was an essay on the noteboard in the jury pool room. The essay was about FIJA, the Fully Informed Jury Act, which requires all jurors' handbooks to contain information regarding a jury's right to nullification. Here, in the back room of a JURY POOL was an article that would scare the eyeballs out of every prosecutor who knew about it. It informs jurors of their right to nullification; that is, of their right to decide that, regardless of the evidence or the letter of the law, a jury has the right to decide that compassion and reason require that they find the defendant not guilty. The Supreme Court has ruled time and again that jury nullification is an absolute right at the very heart of our judicial system-- that the unanimous decision of a jury of one's peers cannot be questioned once it is entered into the record.

I wasn't in the Jury Pool room the whole time. But while I was there I did note that I was the ONLY person who read the essay. That, too, was sad.

But Jury Duty... I won't say it was fun. Educational, yeah, I now know what the bargain basement of justice looks like.

Comments

[en-ki.livejournal.com]

I thought FIJA was not an actual law, just a law that FIJA (the association) wants to exist; and that, with such a law not on the books, pretty much all judges everywhere forbade mentioning the right to nullification. Am I wrong? (It would be nice if I were, this time.)

[elfs.livejournal.com]

It's not a law, and yes judges to forbid lawyers from mentioning the right to nullification. It's contempt of the court for the lawyer to override the judge's wish that the illusion of judicial power be maintained. However, as FIJA points out, jurors are not forbidden from discussing nullification with other jurors, and cannot be punished for doing so once they are jurors and not just members of the jury pool.

Probably the most egregious case in history was that of Laura Kriho, who was prosecuted and convicted of contempt of court because she failed to inform the judge that she was opposed to all drug prohibitions. She was never asked, and she never lied. She just did not leap to her feet and inform the court that her political beliefs would not make her impartial to the law. She FIJA'd her fellow jurors and hung the jury. It took her four years to finally have the charges dismissed.

I have mixed feelings about Kriho, and I think what she did was wrong, but not illegal. If you go into a case with prior assumptions about the law, you should excuse yourself. That's what legislating is for, not jury duty. But if a case comes up where applying the law simply would not be rational, that's where you opt to nullify.

[srmalloy.livejournal.com]

And your position is why jurors are either not told about their right to return a verdict in the face of the facts, or told that they have to apply the law as the judge gives it to them. This stems from the cases before the Civil War where courts were finding it virtually impossible to get convictions under the Fugitive Slave Act. The law had been duly passed, and applied rationally -- the people charged were harboring and assisting escaped slaves -- but juries of their peers refused to convict under the law. This was cited in United States v. Doughterty, District of Columbia Circuit Court of Appeals, 1972, saying:

[The jury has an] unreviewable and irreversible power...to acquit in disregard of the instructions on the law given by the trial judge...The pages of history shine on instances of the jury's exercise of its prerogative to disregard uncontradicted evidence and instructions of the judge; for example, acquittals under the fugitive slave law.

The right of juries to judge both fact and law was stated by US Supreme Court Chief Justice John Jay, in Georgia v. Brailsford, 1794 ("It is presumed, that juries are the best judges of facts; it is, on the other hand, presumed that courts are the best judges of law. But still both objects are within your power of decision.....you have a right to take it upon yourselves to judge of both, and to determine the law as well as the fact in controversy."), and by US Supreme Court Justice Oliver Wendell Holmes, in Horning v. District of Columbia, 1920 (The jury has the power to bring a verdict in the teeth of both the law and the facts.). The 4th Circuit Court of Appeals, in United States v. Moylan, 1969, even more clearly acknowledged a jury's right to return any verdict it wants to: "If the jury feels the law is unjust, we recognize the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by a judge, and contrary to the evidence...If the jury feels that the law under which the defendant is accused is unjust, or that exigent circumstances justified the actions of the accused, or for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."

And it's explicitly written into the constitution of both Maryland (Article XXIII: "In the trial of all criminal cases, the Jury shall be the Judges of Law, as well as of fact, except that the Court may pass upon the sufficiency of the evidence to sustain a conviction") and Indiana (Article I, §19: "In all criminal cases whatsoever, the jury shall have the right to determine the law and the facts.").

[shunra.livejournal.com]

Actually, it's kind of a relief that only responsible people show up. You *want* responsible people making that kind of decision, not the sort of idiot "yeah, whatever" folks. Wouldn't you?

A couple of points

[lisakit.livejournal.com]

1) They teach us about jury nullification in intro to law. The pros and cons. The biggest fear about it is that jurys can end up ignoring long standing laws that are there for a reason. Like overriding a law that makes it illegal to attack gays. Choosing the right jury is quite a science though.

2) I have always wanted to serve on a Jury and the one and only time (so far) that I was called I was on a temp assignment and it truly would have been a hardship for me to go in even for one day (it was a 2 week assignment back when I had little hope for a job). And small businesses will frequently get their employees excused because they can legitimately say it would be a hardship not to have that employee's services for a day or two.

3) OK another one. I was told in my paralegal training that now that I had said training I would be considered a bad candidate for jury duty as I knew too much about the legal process. Lawyers on both sides wouldn't like me to sit on a jury because I can more easily see through their (well, manipulations really is too harsh a word, but it's the right flavor).

Re: A couple of points

[elfs.livejournal.com]

I am reminded that one of the great injustices of our time is the number of Jury Nullifications that happened during the Civil Rights movement as time and again assaults on non-whites were excused and people were found not guilty. Despite those occurences, justice happened more often than not, and the society as a whole clanked along.

Erring on the side of innocence, despite the intermittent injustice of it, is a feature, not a bug, of the system.

Re: A couple of points

[(Anonymous)]

Very, very few civil rights murder or lynching cases involved jury nullification. In fact, most didn't even involve anyone getting prosecuted - cop or prosecutor nullification, perhaps. Those cases that did go to trial involved cops who refused to investigate or testify honestly, prosecutors who deliberately threw the case, and judges that did everything they could to ensure that the case did not end in a conviction.

Then the juries were scapegoated for the racist results of a racist proceeding.

This is proven because the federal cases almost unanimously ended in convictions - with jury pools chosen from the same districts. Yet the prosecutors, investigators and judges were very, very different.