Thursday, March 08, 2007


I, the jury

I've just been on jury duty. Now, what that means to me is that I've spent time sitting around and not being selected for any juries, which will get us to the third thing that bothers me about the jury system in the United States. But, as we usually do first things first....

Appearing for jury duty involves a lot of sitting around, waiting (and no, that, in itself doesn't really bother me). On my first day, I got there early to be sure I was there on time (in fact, there were still people arriving an hour and a half late, and no one seemed to care). As it happened, my name was chosen in the first batch to be interviewed. Many others — there were hundreds in the jury assembly room -- just kept waiting, and some were in the same seats when I got back there at 3:15, so it's possible that they sat there all day. Of course, mobile phones, BlackBerries, and laptops are explicitly forbidden. One certainly wouldn't want folks chattering on phones all day. But allowing laptops, and even providing wireless Internet access, could allow some of us to get some work done while we sat there... which might prevent some from trying to get out of the obligation.

As for me, I neither tried to nor wanted to get out of it. While I have concerns about the jury system in general, it's the system we have and I feel a responsibility to do my part to make it work.

They do try to minimize the number of days you're there, having you call in at night to see whether you need to come back the next day, but you can't plan ahead. And they make inefficient use of your time while you're there. At the least, they should start on time in the morning, and perhaps penalize the latecomers by adding a week to their duty cycle for each day they're late. (They do seem to start on time after the lunch break, however.)

There seem few like me there, at least if I judge from the 30 or so who went through the interview process for that first trial. There was a network administrator in the group, and that was it for the high-tech jobs. One guy had a law degree, and he and I topped the list for education level. It's possible that that was just the chance of how we were drawn — after all, random is random, and it is possible for a fair die, for example, to fail to show a “6” even after a few dozen throws — but I suspect that people who can manage it find ways to put it off indefinitely, though the system tries to make that ever harder to do.

Anyway, I brought a book, and read that during the idle time. There were lots of books in the room, of course, and magazines (and the jury room had a magazine rack for those who didn't bring their own). Quite a few people worked sudoku puzzles (but I saw no crosswords; have they gone out entirely in favour of sudoku?). But a surprising number of people brought nothing, and did nothing. They just sat there. Some appeared to sleep. Some just stared. Many fidgeted, and talked to those next to them who were trying to read or do their sudokus.

So it bothers me that there's a lot of dead time, that they make it hard for those of us who otherwise could to get work done, and that they seem to make very inefficient use of our time, starting late, making people wait without knowing what will happen next or when it will happen, and often having us all wait while one person is interviewed privately.

The second thing that bothers me is the question of whether juries even make sense today. I understand that they were there in the days when there was no division of power, and the alternative was to be judged by an agent of the king. So here, instead, you're judged by your “peers”. Except that we have a very different society than we did when it was the serfs judging each other, or the farmers and the shopkeepers judging each other. The region served by the US District Court where I was called has millions of people in it. Those people live in many different communities, have many different lifestyles and wildly varying income levels, and don't know the concerns and social pressures faced by the others in the group.

Most significantly, most of those in the juror pool don't know the law. And the law is very complicated and technical now, far more complicated than it was when “a jury of one's peers” was first applied (it dates back to the Magna Carta). If you're accused of stealing money from your neighbour, it's easy for us to judge whether the evidence supports that or not. But things like racketeering, money laundering, illegal stock trading, and falsely reporting corporate profits are complicated and legally technical, and are beyond the knowledge of most of those asked to decide these cases. Yes, the judge will give us instructions; still, I question the wisdom of having people untrained in the law make such decisions.

That said, I do accept it, and want to be on a jury. And so we get to the third thing that bothers me: the peremptory challenge. For those who don't know the U.S. system: once a set of potential jurors is chosen randomly, the attorneys, the judge, or both (depending upon the court) may remove some of them for cause. Perhaps they determine that one juror thinks that the police are evil and won't believe any accusation they make. Maybe it turns out that another of the jurors used to be a neighbor of the defendant's mother, and thought she was a nice lady. Those jurors might be thought not to be able to make a fair decision, without bias, and so they're rightly excused.

But then come the peremptory challenges. There, the lawyers tune the jury by removing potential jurors for no stated reason at all. Of course, they're not doing it randomly. They have a profile of what sorts of jurors they want and what they don't want, and their goal is to push the jury toward one that will be sympathetic to their case (and not sympathetic to the other side). That's obviously something the attorneys want, but it makes no sense to me from the point of view of the judicial system.

In some sense, I ought to be the “perfect” juror (OK, bear with me here for a moment). I believe that law enforcement authorities really do make a good-faith effort to build a legitimate case against real criminals... but they make mistakes and are sometimes overzaealous, and their evidence has to be looked at carefully. I believe that the defendant should have the opportunity to refute the evidence. I will look at the evidence with skepticism, will carefully consider what's presented, and will make what I know to be a sensible decision, giving the defendant the benefit of reasonable doubt.

But, see, that's not what the attorneys are looking for. They don't want a fair juror. They want a sympathetic juror. They're looking for jurors whom they can manipulate with theatrics. They want to have their witnesses look at the jury when they answer certain questions, they want to throw out that verbal jab that's objected to and that we're then told to ignore (Ha!), and they've studied what sorts of people are good for that and what sorts aren't. Jury-selection consultants are paid a lot of money to sort all this out.

Why does this make any sense? Why should anyone be excluded from a jury for any reason other than for cause? Why should lawyers be able to remove all the corporate types and college professors, and all those with any training in the law? That doesn't make for a jury that's representative of the community. That doesn't make for a fair jury.

An example of why it doesn't, why excluding the very people who might understand more about the case's details, is in the Julie Amero case. That's the one in Connecticut, where a substitute teacher says that she accidentally got the classroom computer stuck in a porn-popup loop while doing a reasonable lesson with her students. Her critics say that she got there on purpose, intentionally clicking on porn sites and showing them to the students. For evidence, they rely on a grotesque misunderstanding of how the web browser works, and the link above contains a communication from one of the jurors on the case, showing that he just doesn't know what he's talking about, and that he believed the testimony of a police officer who didn't know what he was talking about. Was that a fair trial? Technically, by our rules, it was. To anyone who does understand this stuff, it was a circus, and Ms Amero should be released and those responsible should be sacked.

Anyway, back to my situation: indeed, I'm always removed. So was the guy with the law degree. And the US Border Patrol officer. And it was back to the jury assembly room to repeat the process, with the same result, until we'd been there for enough days to get credit for jury service this time.


Dr. Momentum said...

In Massachusetts it's "one day or one trial" so if you're the type of person who doesn't get chosen for juries, at least they don't take up your time beyond one day.

If you do get on a trial, of course, you're there for the duration.

I got on a trial once and it was an interesting experience. On my last visit to the court, all the cases plead. So they dismissed the lot of us for the day (and our obligation was fulfilled for that time around.)

It seems like the more interested you are in serving, the less likely you will serve.

Barry Leiba said...

Same in New York, but this was US District Court. My guess is that USDC in Massachusetts would be no different.