A thrilled lawyer on jury duty.

     After eleven years of litigation and three more directly in politics, and being called for jury duty four times, I was finally seated on a jury.  It was a fascinating and exhilarating exercise in direct democracy - so much so that despite the typical somber atmosphere of the courtroom and years of my own practiced courtroom demeanor, I had difficulty suppressing a grin for much of the trial.  I frequently resorted to chomping on the inside of my lower lip. (Who knows how counsel read that expression!)


     Jury duty is one of the ultimate expressions of direct democracy - all the more so today because individual votes are often submerged beneath SuperPACs, the personal wealth of elected officials, and voter disenfranchisement and the apathy which results from it (infographic here).  Being able to exercise my citizenship so directly actually left me giddy at the end of the day.


      It was a straightforward criminal case - a young man fell asleep at 3:00 a.m. on a February night and stopped his car (brakes only, he kept it in gear) in the middle of his traffic lane. He was charged with driving under the influence of alcohol and driving negligently to endanger.  "Driving negligently so as to endanger" was open-and-shut - defense counsel barely defended it and ignored it his closing statement.  He (the defendant) was obviously exhausted, for whatever reason, and should not have gotten behind the wheel.  We concurred and in deliberations commented that if he had pulled over to the side of the road or demonstrated at all that he recognized and remedied his own condition, maybe we would have decided differently.  But as it was, there as no dispute.  
      The Commonwealth failed to make its case on the alcohol charge.  There was no breathalyzer at all, no blood test, and no behaviors which could be attributed specifically to alcohol.  The officer who failed him on the field sobriety tests had not followed his training procedure, the officer had imposed more rigorous standards than the manual provided in failing the defendant, and all of the signals of failure could be attributed to the cold, fatigue, and nervousness of the defendant.  I credited the officer with not manufacturing the usual observation-only classic signs of intoxication: 'stumbling', 'bleary/bloodshot eyes', etc..  His lack of testimony of such signs allowed me trust more what the officer did observe.
    The defendant had been respectful, answered 50 or so questions without a problem when being booked at the police station, and probably would have passed the field tests if the manual's procedures had been followed.  The only alcohol-specific fact was the officer's observation that the defendant had smelled of alcohol.  
     All in all, we had a reasonable doubt that the defendant's fatigue was resulting from the alcohol - enough doubt to find him not guilty of that charge.


    Interestingly, after we reached our decision, we discussed the fact that we all could have 'trigger' cases in which we individually could not be impartial.  Sexual assault and OUI resulting in a personal injury were prominent in the jury members' comments.  More interestingly, the people who spoke about their trigger cases had mentioned it in their juror questionnaires and had been queried by the judge and attorneys.


   At the end of the day, and I can not emphasize how happy I was to see this, the system worked.  Juries (from a litigator's perspective) are notoriously fickle, thick-headed, and unpredictable.  In my jury, the defendant had a fair trial, neither the Commonwealth nor the defense acted unreasonably, the facts appeared to be appropriately winnowed by the judge (based on my limited observations of objections and the Court's decisions on them), and the jury discussed the elements of the charges logically and reasonably.  We rationally discussed our disagreements over the DUI charges and nevertheless reached a unanimous conclusion which was based on the appropriate burden of proof.            
     We even discovered, afterward, that the defendant had no prior record, so we could feel pleased that our lack of knowledge of the defendant's history made for a decision that showed fairness as well as justice. While a jury should never hear about prior history, I think we would have been less happy about our decision if this was the defendant's 4th or 5th OUI conviction.


   There's a political meme which has been bouncing around since at least the mid-nineteenth century: that liberty is protected by three boxes - the ballot, the jury, and the cartridge.  Sometimes a fourth or even fifth box is added: lunch (as in a social safety net), soap (for political speech), the bandbox.(n.1) etc.  The emphasis changes on the speaker - gun-rights activists focus on the cartridge as the last defense for liberty and the women's suffrage and early African-American civil rights movements focused on the ballot.  
      But the jury box, while rarely emphasized, is included in every known statement of the meme.  This is for good reason.  The right to a trial by jury of one's peers is one of the foundations for freedom in the United States; and such a right, without citizen participation in juries, would be completely toothless. 
     In more recent history, the jury box has come under direct threat.  The National Defense Authorization Act ("NDAA") in its current incarnation and interpretation can deny the right to a jury trial to a citizen, arrested within or outside the U.S., who is accused of  having "part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners".(n.2)  


    Thomas Jefferson said “I consider trial by jury as the only anchor yet imagined by man by which a government can be held to the principles of its constitution.”  Dave Barry commented "We operate under a jury system in this country, and as much as we complain about it, we have to admit that we know of no better system, except possibly flipping a coin."
     When you next receive a summons for jury duty, as invasive and impractical as jury participation can be, consider this - that summons is an invitation to the most direct democratic activity you will ever have.  The value of jury duty should respect and outweigh virtually all the real and legitimate reservations which you may have walking into that courthouse.   Jury duty is your best opportunity to make the most impact as an individual free citizen.  Do not hesitate to exercise that opportunity when it comes knocking on your door.

    I encourage anyone interested in reading further about jury duty and its links to democracy to browse the "Jury and Democracy Blog".


(n.1)  The "bandbox" may refer to the box in which elaborate women's hats were carried, and was a reference in the nineteenth century to the power which women could wield within the family - a proposition which was both anti-women's rights and of extremely dubious accuracy.  On the other hand, my source for this information is suspect.


(n.2)  I will note that the NDAA states that it does not change existing law.  Whether or not existing law permits such detention is still being debated politically and resolved judicially - different judicial districts have reached different decisions.  President Obama stated after signing the bill that his administration would not take the position that a citizen arrested domestically would be denied the right to a jury trial.  Unfortunately, that would not be binding on later administrations, and the Bush administrations did exercise that power.