This last week I went to jury duty. I think I’ve been called four times now. Only once was I selected for a (civil) jury, a two-week experience that was a waste of the time of everyone involved. This time I was called to a courtroom together with seventy-two other people, but I was dismissed in a peremptory challenge on the second day. This last experience got me thinking about a number of things, some having to do with local circumstances, others with the way we think about the law more generally.
In San Diego, you can be called every year, though you get a three-year break if you are selected for a jury. When you get your summons, assuming you don’t ask for a delay or have an excuse, you have to show up at 7:45 AM at the courthouse downtown. You sit around for two hours, during which you watch a movie about the jury system bordering on fantasy and hear a short presentation by one of the judges and fill out a very short form. The actual randomized selection of people for jury selection doesn’t begin until almost 10:00 AM. Two hours are spent doing what could easily be done in twenty minutes on a computer at home or in a public library. Of course, this makes jury duty a burden, one that people with children or other responsibilities are likely to be unable to undertake, whatever claims we might want to make about civic duty.
If someone is selected for a jury, they are reimbursed for their time, at a rate of $15 per day, starting on the second day. That is about enough to buy lunch in the vicinity of the court house. The first day you get nothing; likely this is because they make many more people show up than they could possibly need, because it all must be done in person, rather than online or on-call. There is no law in California that an employer must pay an employee for time they are on juries, so that means again that many, many people are simply unable to sit on juries. In San Diego, you also get reimbursement for travel, at a rate of $0.34 a mile, again starting on the second day. The first day, you’re on your own. There is also no free parking. Alternatively, you can get a transit pass for each day that you serve, again starting on the second day.
What effect does this have on the court system? It is obvious when you look around a court room after prospective jurors have been seated. In my courtroom the majority of prospective jurors fell into one of the three groups: college students, retirees, or middle-aged professionals. Almost all appeared to be upper-middle-class and the group skewed heavily white. San Diego is, however, a very diverse city and county. It was a room of lawyers, doctors, nurses, a few academics, executives, a whole bunch of engineers, and the retirees and students. Many others had been excused from service because of economic hardship. Those who remained are those who could afford to be there.
The defendant in the case for which I was in the selection pool was a young, heavily tattooed Latino man who appeared to be working class. He didn’t look like much of anybody in the jury pool. Once anyone who had ever had a negative experience with police officers was removed for cause, the pool looked even less like the defendant.
This all connects to the other thing I was thinking about during selection and after. Prospective jurors are asked again and again whether they can be objective and impartial. The answer that is expected is a resounding, “Yes.” A response of even, “I can try to be,” results in an admonishment from the judge. The pool is further instructed that they cannot feel or be guided by sympathy or feeling either for the defendant or his victims. Nothing about the appearances or backgrounds or anything else about any participants can have any bearing. They must be guided only by evidence. And, importantly, they cannot let any thought of possible punishments effect their judgments. Nor, of course, can they think about the law, only the facts. This was perhaps most striking when several prospective jurors who were lawyers, including one who was an Assistant Attorney General, were asked whether they would be able to look at the evidence as laypersons.
It seems to me that this is very high-minded bullshit, but it’s bullshit nonetheless. It is asking us to go behind a Rawlsian veil of ignorance to make our judgments. How precisely will the lawyer cordon off her legal knowledge when hearing the case? How will the juror for whom tattoos are a sign of gang affiliation forget that? How will I make sure that my sympathies, identity, concerns about the justice of prisons, etc., do not touch on my judging the evidence? I don’t mean to say that I can’t work to minimize those effects, but I can’t do that by pretending that I am capable of absolute objectivity and impartiality, as if I were retreating to my heated room to consider the Evil Demon. Rather, I’ll have to be aware of my subjectivity to fight it. Pretending that I am capable of absolute objectivity and impartiality will only make me more likely to act on my unexamined prejudices. And, if we were capable of objectivity and impartiality, we wouldn’t need a jury of twelve. One would suffice or maybe three to be on the safe side. Nor would we be concerned that the jury be a jury of one’s peers. Any old people would do. This is absolutely essential, I think: if we are going to treat defendants as innocent until proven otherwise, they need to be judged by their peers.
It’s not a jury of his peers that this case’s defendant ended up with. The economic incentives guarantee that it can’t be. In a system where the resources of the “people” are much greater than those of the public defender system that matters. He was at numerous disadvantages.
In the end, I was dismissed. I had been Juror 36 and then I was briefly Juror 8 before the defense thanked me for my service and dismissed me. I don’t know whether it was because I had shared that family members of mine had been victims of crimes similar in some respects to those he was accused of or because a middle-aged, white, gay man who generally looks angry, in spite of his actual emotions, didn’t seem like a sympathetic juror.
I don’t know what they outcome will be and he may very well be guilty, but I’m not more trusting in the fairness of our system—the orientation film explaining the benefits of our unique(!) system just wasn’t enough—especially towards those without power, wealth, and influence.
Some other time I’ll worry about what a reasonable doubt is.