Our “adversarial system” of litigation does not work. The chief function of the system is to enrich the lawyer industry – not to achieve justice among ordinary citizens.
So, of course, when I was summoned for jury duty in 2014 I did not want to participate. I set forth the reasons in my letter below (edited and redacted):
Mr. Darrell Mahood
Director, Jury Services
Los Angeles County Superior Court
May 21, 2014
Re: Summons for Jury Service (set for June 16, 2014)
I respectfully request to be excused from jury duty June 16, 2014, for the following reasons:
During voir dire, potential jurors are invariably asked the following question (or a version of it): “Is there any reason you cannot be fair and impartial as a juror in this case?”. My answer – “Yes” (which is explained below) – will disqualify me from serving on any jury. So, for me to attend jury service is an entirely useless act – an idle ceremony – because I certainly will be rejected from serving on any particular jury. The law does not require idle or useless acts (Cal.Civ.Code sec. 3532) – “The law forces no one to do vain or useless things.” (Black’s Law Dictionary , at p.1653 (7th ed. 1999)). “[T]he law never commands the performance of an idle ceremony, or compels compliance with an empty form.” (State v. St. Louis. Kansas City & Northwestern Ry Co. (1876), 3 Mo. App. 180).
I am not qualified to be a juror – I AM NOT A SHEEP.
A jury trial – which is an “adversary” mode of trial – requires jurors to sit passively like dumb sheep, watching opposing lawyers put on their theatrical performances playing to the jury audience. The lawyers and judge decide – based on archaic rules of evidence – what jurors may or may not find out about the facts of the case.
“New York State Supreme Court Judge Harold Rothwax argued that a defense attorney typically “will seek jurors who will not or cannot intelligently evaluate evidence. He will want gullible, manipulable, emotional, suggestible jurors – – and through our system of selection he will get them.” (Kressel, Stack & Sway: The New Science Of Jury Consulting (Basic Bks, 2004) at p. 8-9
Under such circumstances I cannot be fair and impartial:
a. Information upon which to make a decision is necessarily inadequate
I cannot rely on pre-filtered information provided by lawyers to be sufficient information upon which to base a momentous decision regarding someone’s life, liberty or property. The limited information reaching jurors is simply not be enough information upon which to make a sound decision.
This point was illustrated by the highly publicized case of Ed Rosenthal:
“In 2003, jurors revolted after convicting Ed Rosenthal of growing 100 pounds or more of marijuana in a highly disputed San Francisco federal case. The jury was outraged that they had not been informed that Rosenthal was growing the marijuana for distribution to medical dispensaries. Juror Marney Craig, . . . , labeled the trial ‘a cruel charade.’ ‘It is the most horrible mistake I have ever made,’ she said. ‘I feel like we were sheep, we were manipulated.’. . .
. . . Following Rosenthal’s conviction, five of the jurors joined Rosenthal on the steps of the Federal Courthouse, denouncing their own verdict, saying they had been manipulated and misdirected, and demanding that Rosenthal receive a new trial. . . . in the glare of negative publicity, Judge Breyer eventually gave Rosenthal – whom the federal government wanted to send to prison for six and a half years – a startling one-day sentence.” (Conrad, Jurors Revolt After Feeling Like “Manipulated Sheep” at http://www.looneyconrad.com/blog/jury-geek/jurors-revolt-after-feeling-like-manipulated-sheep.html ).
In every case jurors are manipulated like sheep. That’s the nature of adversary litigation.
b. I am not permitted, as a juror, to independently investigate the facts.
I cannot make a momentous decision regarding someone’s life, liberty or property by relying solely on information lawyers want me to know – or to not know.
I would need to conduct my own exhaustive investigation – including my own examination of witnesses. Lawyers tend to “flatten” the facts in order to fit them into the two-dimensional packages presented to the jury. This does not lead to the truth. There is simply not enough information to rely on. Because the judge invariably admonishes jurors not to do their own research, I would be unable to reach any decision at all.
Jurors are also admonished not to speak to anyone regarding issues of the case. However, I would find it very questionable to have to give up the precious First Amendment right of free speech and association.
Incidentally, my view of the juror’s proper function is not so far off from what was historically the original paradigm of jury service:
“. . . medieval jurors were chosen as jurors largely because of their familiarity with the parties and the facts of the dispute. . . . . Medieval jurors were expected to rely on their own personal knowledge to resolve the case, while today’s jurors are expected to consider only the evidence presented to them in the courtroom, rendering an uninformed juror the ideal juror. Medieval jurors were also required to engage in active, independent fact-finding as part of their role as jurors, going out into the community to interview neighbors and others who might have information concerning the case.”. (Rousseau, Privacy and Jury Selection: Does the Constitution Protect Prospective Jurors from Personally Intrusive Voir Dire Questions? (3 Rutgers Journal of Law & Urban Policy (2006) 287 at p. 280-281 – online at http://www.rutgerspolicyjournal.org/sites/rutgerspolicyjournal.org/files/issues/3_2/Rousseau_Jury_Selection.pdf).
c. I am unable to focus on courtroom charades – instead of actual justice.
The rise of an “Actual Innocence Doctrine” movement highlights the utter bankruptcy of the current jury system (see for example the NY Times article: Hope for the Wrongfully Convicted (11-22-2009) online at http://www.nytimes.com/2009/11/23/nyregion/23innocence.html?_r=0 ).
Our adversary litigation system is a gladiatorial contest – a throwback to the ancient “trial by combat” (known as “ trial by wager of battel” introduced to England by William the Conqueror). Today it has evolved into something comparable to a chess game. The winner is the one who can afford a more cunning lawyer. Why, in the 21st century, are we stuck with such a primitive system? Because it makes money for the lawyer industry.
Although US Supreme Court Justice Felix Frankfurter has said that “Litigation is the pursuit of practical ends, not a game of chess.” (Indianapolis v. Chase Nat’l Bank, 314 U.S. 63, 69 (1941)) the consensus of opinion seems to be otherwise. For example, a large body of litigation literature – just as chess literature – deals with strategy and tactics. A search of the Los Angeles County Law Library catalog for titles having the terms “Litigation” and [“Strategy” or “Tactics”] results in 159 title entries including terms such as the following: “Basic trial tactics”; “Questioning techniques and tactics”; “Eyewitness testimony : strategies and tactics”; “Pretrial discovery : strategy & tactics”; “winning psychological strategies and tactics for lawyers”; “the art of jury persuasion”; “Successful trial tactics”; “Winning jury trials : trial tactics”; etc., etc.
See William T. Pizzi, Trials without Truth (N.Y. Univ. Pr., 1999). Professor Pizzi analyzes the extent to which American trials are not a search for truth but rather a game which is all about winning. He compares our system with less adversarial systems of some European countries.
“[W]hat is different about criminal trials in the United States is the degree to which control over the direction and conduct of the trial has been ceded to the advocates and, obviously related, the degree to which judges seem themselves as somehow removed from the contest and as thus less responsible for the conduct or outcome of the trial.” (p. 118).
Tricks, lies, and gimmicks are lawyers’ tools to try to win the game. In fact, they have appellate court approval to employ even frivolous tactics (see In re Kun (1989) 868 F.2d 1069 “ . . . a party may combine sound and ultimately successful defenses with frivolous ones designed solely to harass the opposing party.”).
Litigation is a contest and the judge is a mere umpire. Chief Justice Roberts of the United States Supreme Court proclaimed the following:
“Judges are like umpires. Umpires don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules . . . .” (Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) (statement of John G. Roberts, Jr., Nominee to be Chief Justice of the United States).
Capricious decisions inevitably result from jury trials. Examples abound in the literature. See, for example, pages throughout the following books: Kressel, Stack and Sway: the New Science of Jury Consulting (Westview Pr, 2004); Wishman, Anatomy of a Jury (Times Bks, 1986); Abramson, We the Jury (Harvard U.Pr., 1994). This is just to name a few. The capriciousness of the jury has been recognized throughout its history. The observations of M. Le Bon, in the chapter “Criminal Juries” of his classic, The Crowd: A Study of the Popular Mind (Paris, France, 1858 – online at http://www.gutenberg.org/cache/epub/445/pg445.html) sound the same as observations made in “science of jury consulting” texts of today:
“Like all crowds, juries are very strongly impressed by sentimental considerations, and very slightly by argument. . . .’It is sufficient that a woman should be of agreeable appearance,’ says M. des Glajeux, ‘to win the benevolence of the jury.’ . . . The chief concern of a good counsel should be to work upon the feelings of the jury, and, as with all crowds, to argue but little, or only to employ rudimentary modes of reasoning.”.
Unfortunately, momentous decisions are based on theatrics of lawyers. Remember the jingle “‘If it doesn’t fit, you must acquit,’ [which] became Cochran’s mantra . . .” (CNN Report on OJ Simpson murder trial (September 28, 1995) online at http://www.cnn.com/US/OJ/daily/9-27/8pm/ )?
Decisions that may deprive someone of life, liberty or property should be taken seriously. However, in jury trials they are made not on the basis of evidence so much as on the basis of prejudices of randomly chosen jurors.
“In the eyes of an increasing number of Americans, who serves on the jury matters at least as much as what the jurors see and hear at trial. One critic of the jury system harshly complains, ‘No one in his senses would entrust an important decision in his life–where to live, what job to apply for, whether to have an operation, what shares to buy—to a random sample of twelve people, and yet we place our system of criminal justice in their hands. In some districts, no doubt, the jurors are above average, but in others they are stupid, feckless, illiterate and felonious in thought and undetected deed’. . . .wisdom . . . in the famous admonition attributed to defense attorney Clarence Darrow: ‘Never forget, almost every case has been won or lost when the jury is sworn.’ . . . Albert Osborn . . . lamented in 1937 that “. . . the most important work of certain attorneys in all criminal cases . . . is not the presentation of evidence, but the finding in advance of only one or two jurors of the kind they desire. In many . . . trials, it is not twelve men who defeat justice, but only one or two men.’” (Kressel, Stack & Sway, supra, at p. 7 – 8).
Rubio v. Superior Court, 593 P.2d 595, 600 (Cal. 1979) holds that people who “ . . .might well harbor a continuing resentment against ‘the system’ . . .” should not serve on juries.
Therefore, I am not qualified to be a juror because – based on my personal experience as a pro se litigant – I certainly do harbor a continuing resentment against “the system”.
In the 1990’s, as one of several beneficiaries of a family trust, I was the victim of thieving, rapacious, slanderous lawyers hired by the bank-trustee (City National Bank). City National had actually invited me to file my petition for division of trust. I did so, and I represented myself in propria persona (not expecting opposition). However, the bank’s team of expensive lawyers treacherously turned around and began charging outrageous fees (taken out of my trust income) for completely unnecessary litigation matters. They milked the trust for enormous fees. I saw at first hand how ghoulish and corrupt probate judges work together with the “good old boys club” of probate lawyers to systematically rob estates of the deceased.
These lawyers were not untypical.
Lawyers have been objects of scorn and derision by the greatest thinkers of society throughout history and even from ancient times. Examples abound in literature. For example, “The case against the lawyer has not been stated more bitterly than by Plato . . . ” (Cairns, Legal Philosophy from Plato to Hegel (Johns Hopkins Pr.,1949, p.74-75; citing Theaet. 175-177; Rep.405; Shakespeare (at 2 Henry VI, 4.2.59); Jonathan Swift’s Gulliver’s Travels, Chapter V: “[T]here was a society of men among us, bred up from their youth in the art of proving by words multiplied for the purpose, that white is black, and black is white, according as they are paid.”; etc., etc. See Roth, Devil’s Advocates (Nolo Pr.,1989) for 171 pages of more examples.
“The historian J.B. McMaster wrote that during the early American Republic: ‘. . . [lawyers] were denounced as banditti, as bloodsuckers, as pickpockets, as windbags, as smooth-tongued rogues . . . . The mere sight of a lawyer . . . was enough to call forth an oath or a muttered curse. . . .” (citing J.B. McMaster, History of the People of the United States, vol.1, quoted in Warren, A History of the American Bar (Boston, Little,Brown,1911), pg. 216.)
Lawyers were banned outright or faced tight restrictions in many colonies for much of the 18th century. The “Body of Liberties” adopted by the Massachusetts Bay Colony in 1641 expressed the typical attitudes of the time: “Every man that findeth himselfe unfit to plead his own cause in any court shall have libertie to employ any man …, provided he give him noe fee or reward for his pain.”.
The lawyer is a hired gun. He is paid money by one stranger to go into court and slander another stranger. The lawyer’s creed is the popular maxim of Cicero (a famous lawyer from Ancient Rome):
“When you have no basis for an argument, abuse the plaintiff.” (Pro Flacco, Cicero).
In other words, “when you don’t have a case – slander the other side”.
Justice is not the lawyer’s concern. His only “moral” concern is to what extent he zealously represents his client – not whether justice is achieved. And if he represents someone guilty it is his solemn obligation to see that justice is perverted.
“Under our adversary system, the role of counsel is not to make sure the truth is ascertained but to advance his client’s cause by any ethical means. Within the limits of professional propriety, causing delay and sowing confusion not only are his right but
may be his duty.” (Walters v. Nat. Assn. of Radiation Survivors (1984) 473 U.S. 305,325).
An Ancient Roman law – lex cincia – prohibited paying fees to lawyers for representing anyone in court:
“If no one paid a fee for lawsuits, there would be less of them! As it is, feuds, charges, malevolence and slander are encouraged.” (Tacitus, The Annals of Imperial Rome, Penguin Books, Harmondsworth, 1956, pg.233).
Lawyers are motivated by greed, not by any sense of justice.
The notion that lawyers are “officers of the court” and that the lawyer business is non-commercial was deemed “sanctimonious humbug” by the U.S. Supreme Court: “‘We all know that law offices are big businesses, that they may have billion-dollar or million-dollar clients, they’re run with computers, and all the rest. And so the argument may be made that to term them noncommercial is sanctimonious humbug.” (Bates v. State Bar of Arizona (1976) 433 U.S. 350,368 (n.19)).
Positive aspects of jury service are outweighed by having to participate in a primitive, dysfunctional, dishonest “adversary” litigation system.
a. I recognize the positive side of jury service. The juror does indeed have a special role.
i. Jury as alternative to corrupt judges
Non-jury trials (“bench trials”) take place in front of a judge. And American judges are, and have been, widely mistrusted. For example, Ashman, The Finest Judges Money Can Buy (Nash Pub. 1973) – includes 74 documented cases of corrupt judges, and states the following: “American justice is choking on judicial pollution. The following cases are documented proof that it is no longer a question of occasional corruption, but a decided pattern of conflicts of interest, chronic bribery, profound abuse of office, loathsome nepotism, infamous sexual perversions and pernicious payoffs. . . .”.
And, there’s been no shortage of judicial corruption since the 1970’s. In fact, throughout American history judges have been mistrusted (after all, they’re generally chosen from the ranks of lawyers).
It’s no wonder that in American law, it is only the juror can be trusted to be fair! Compare the American with the European view of the judge:
“The modern European law of evidence is fairly simple and rational; the law of evidence lets most everything in and trusts the judge to separate the good from bad. But American law distrusts the judge; it gives the jury full fact-finding power, and in criminal cases, the final word on innocence or guilt.” (Friedman, History of American Law (c1985) p.135).
ii. Power of Jury Nullification
Another dimension to jury service is the awesome power and responsibility of the juror pursuant to the doctrine of Jury Nullification whereby the juror functions as the very conscience of the community.
“This power that jurors have is the reason why we have you jurors sitting there instead of computers. Because you are supposed to be the conscience of the community. You are supposed to decide if the law, as the Judge explains it to you, should be applied or if it should not. Nothing the judge would say to you is inconsistent with this power. It’s not a request on our part that you show any disrespect for the law. It’s part of the law …. It’s as essential as reasonable doubt. It’s the same kind of function.
… You decide, considering the circumstances of the case, should you brand the defendants as criminal. And it’s very important in that regard, that you are only required to say guilty or not guilty. That’s what people call the general verdict. You don’t have to give reasons. You don’t have to give specifics. You don’t have to justify what you did; and if you say not guilty, it can’t be reviewed by any Court.” (closing argument of David Kairys, defense attorney, at 1973 trial of 28 religiously motivated anti-war activists in United States v. Anderson. Crim. No. 602-71 (D.N.J. 1973) – all 28 defendants were acquitted).
Jury Nullification is defined as follows:.
“Jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding. . . . Jury nullification appeared . . . when the government has tried to enforce morally repugnant or unpopular laws. . . . in the Prohibition Era of the 1930s, many juries practiced nullification in prosecutions brought against individuals accused of violating alcohol control laws. More recent examples of nullification might include acquittals of “mercy killers,” including Dr. Jack Kevorkian, and minor drug offenders.” (Linder, Jury Nullification at http://law2.umkc.edu/faculty/projects/ftrials/zenger/nullification.html ).
As our Founding Father and second president, John Adams, said of the juror in 1771:
“It is not only his right, but his duty … to find the verdict according to his own best understanding, judgment, and conscience, even though in direct opposition to the direction of the court” (1771) 2 Life and Works of John Adams, 253-255 – C.F. Adams ed. 1856 – Quoted in Yale Law Journal,74 (1964):173).
This doctrine – that a jury has a the power to judge the law as well as the facts – was recognized by the US Supreme Court in Georgia v. Brailsford, 3 U.S. 1 (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”.
There is little doubt that juries have the power to “nullify” the law by returning an acquittal “in the teeth of both law and facts.” Horning v. District of Columbia, 254 U.S. 135 (1920) (Holmes, J.) (dictum).
The U.S. Court of Appeals for the District of Columbia (U.S. vs Dougherty, 473 F 2d 1113, 1139 (1972)) analyzed the doctrine and (begrudgingly) stated that the jury has an “unreviewable and unreversible power . . . to acquit in disregard of the instructions on the law given by the trial judge . . .”; conceding that the power of nullification is a “necessary counter to case-hardened judges and arbitrary prosecutors,” and that exercise of the power may, in at least some instances, “enhance, the over-all normative effect of the rule of law.” See Duncan v. Louisiana, 391 U.S. 145, 156 (1968) (“common-sense judgment of a jury” and “community participation in the determination of guilt or innocence” are “defense against arbitrary law enforcement”).
Nevertheless, according to Dougherty, the court has no obligation to tell jurors of their own powers.
“The only real issue concerning jury nullification is whether or not the jury should be honestly instructed as to its authority. The value of nullification to the legal system no longer appears to be a matter of dispute.” Scheflin & Van Dyke, Jury Nullification: The Contours of a Controversy, 43 L. & Contemp.Probs. 51, 113 n. 55 (1980) -online at http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1684&context=facpubs).
It seems today that California judges don’t want jurors even to know about this doctrine. How can jurors exercise this awesome responsibility if they don’t even know about it? Therefore, if coerced into jury service, I should welcome the opportunity to inform my fellow jurors in the Jury Assembly Room (but not jurors already assigned to a case) of Jury Nullification doctrine.
The role of the juror loses its glamour when considered in the overall context of our primitive, dysfunctional “adversary” system of litigation. A jury trial presupposes an adversary mode of trial. The adversary process has been defined as follows:
“The central precept of the adversary process is that out of the sharp clash of proofs presented by adversaries in a highly structured forensic setting is most likely to come the information upon which a neutral and passive decision maker can base the resolution of a litigated dispute acceptable to both the parties and society.” (Stephan Landsman, THE ADVERSARY SYSTEM (Am.Enter.Inst.,c1984),p.2).
It sounds good in theory, but in practice it simply doesn’t work. Lawyers are not evenly matched – so, it turns out that this “sharp clash of proofs” is, in fact, sharply one-sided. With a sharp enough defense lawyer someone can get away with murder (remember O.J.?). Sharper lawyers are usually more expensive lawyers – so in a very real sense, it is money which buys justice in America.
Not only are guilty people acquitted (i.e., those who can afford the most conniving lawyers) – but innocent people are convicted more often than we might want to know about. For example, the non-profit legal organization, The Innocence Project (at http://www.innocenceproject.org ) has already led to the freeing of some 316 wrongfully convicted people, including 18 who spent time on death row and others also convicted of capital crimes but not sentenced to death. In these cases, 84% of the 316 DNA exonerations in the United States were from wrongful convictions resulting from jury trials, 7% involved bench trials, and 10% involved guilty pleas. How might the jurors in those cases feel today!
U.S.District Judge, Hon. Jed Rakoff in a recent speech at USC Law School (see Why Innocent People Plead Guilty, 4/18/2014, online article at http://news.usc.edu/61662/why-innocent-people-plead-guilty/) states:
“We have hundreds, or thousands, or even tens of thousands of innocent people who are in prison, right now, for crimes they never committed because they were coerced into pleading guilty.”.
Plea bargaining is prevalent apparently because a jury trial is, essentially, a throw of the dice.
And just recently (April 29, 2014) CBS News reported the following:
“About one in 25 people sentenced to death is likely innocent, according to a new statistical study appearing in the Proceedings of the National Academy of Sciences. And that means it is all but certain that at least several of the 1,320 defendants executed since 1977 were innocent, the study says.” (Crimesider Staff, Study: 1 in 25 sentenced to death may be innocent online at http://www.cbsnews.com/news/study-1-in-25-sentenced-to-death-may-be-innocent/).
When many guilty people are acquitted – and many innocent people are convicted – then it’s clear our jury system simply doesn’t work.
“Juries’ verdicts always seem to have been decided by lot like those of the famous judge in Rabelais, and it is proverbial at the law courts that it is impossible to foresee the issue of any case that comes before a jury. It looks as if the jury reasoned thus: “I am a chance judge, and it is only right that my judgment should be dictated by chance. . . . The jury system is nothing but a refined example of the cult of incompetence. Society,having to defend itself against thieves and murderers, lays the duty of defending it on some of its citizens, and arms them with the weapon of the law. Unfortunately it chooses for the purpose citizens who do not know how to use the weapon. It then fondly imagines that it is adequately protected. The jury is like an unskilled gladiator entangled in the meshes of his own net.” (Faguet, The Cult of Incompetence (Dutton, 1914) p.99, online at http://www.gutenberg.org/files/27368/27368-h/27368-h.htm).
5. I object to the intrusiveness of the voire dire process.
First of all, the entire voir dire process lacks integrity. Lawyers recognize that jurors are capricious – and will decide the case more on emotion than on facts and evidence. The lawyers employ a pseudo science of jury selection, based on racial, economic, body language and other stereotypes. They hire “consultants” to help them stack the jury in their favor.
To the extent this pseudo science is not effective, then the lawyers are simply prying into jurors’ privacy for no valid reason. And to the extent it is effective, then they are effectively “buying justice” – with the jurors being tools of judicial corruption.
“. . . The use of social science consultants opens up a number of difficult issues. If the work of the social scientist is really effective, those who can afford them have a major advantage over those who cannot. After Joan Little was acquitted of murder in 1975, her defense attorney, who had used a large defense fund to finance an extensive jury selection program, was quoted as saying that he had ‘bought’ the verdict.” (Wishman, Anatomy of a Jury (Times Bks, 1986) p. 109-111)
In either case, there is no justification for overriding the juror’s constitutional right of privacy and right to remain silent.
And the questioning process itself lacks integrity. Is it appropriate to demand that each prospective juror commit himself in advance as to how he/she will judge the law or its application in a specific case (e.g., when the judge asks: “And will you promise to obey any instructions in the law I may give you, even should you disagree any of them?”)? This is something the judge himself would never consent to do.
Another issue is my own right to privacy. Why must I answer intrusive personal questions – and in a public forum – just to satisfy the perverse curiosity of lawyers experimenting with jury selection voodoo pseudo science?
Jurors also have rights. I have a Fourth Amendment right to privacy and a Fifth Amendment right to remain silent.
“The makers of our Constitution . . . conferred, as against the government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men.” (Justice Louis Brandeis, Dissenting, Olmstead v. United States, 277 U.S. 438 (1928)).
Voir dire is an invasion of privacy. I should not be required to answer personal questions, especially not in a public forum.
“Melanie Wilson, professor and associate dean for academic affairs at the University of Kansas School of Law, has authored and presented an article contending that potential jurors are so regularly exposed to privacy-invading, personal questions during voir dire — jury selection — that many are driven to lie or withhold information. . .
During voir dire, both prosecuting and defense attorneys question potential jurors, with the defendant present, to assemble a qualified jury each feels will be favorable for their cause. Depending on the nature of the case, jurors are often questioned about whether they have been victims of crimes such as rape or violence, their sexual orientation, their own criminal history and what television shows they watch. Potential jurors often don’t understand the relevance of such questions and have to divulge potentially embarrassing information in a public setting, often only to be struck from the jury anyway. Jurors are rarely informed of their rights before being questioned. It is possible to answer questions in a “private setting” with only the judge, lawyers and defendant present. However, the Supreme Court has ruled that voir dire is part of the trial and therefore records must be made available to the public and media.
‘It’s ironic that most people have fewer rights when they’re in the courtroom than they had before they went inside,” Wilson said, citing the example of a citizen’s right to not answer questions posed by police’. . . .” (Law professor finds jurors have fewer rights than accused, Kansas Univ. News Release (April 25, 2012) online at http://archive.news.ku.edu/2012/april/25/wilson.shtml – final article is Wilson, Juror Privacy in the Sixth amendment Balance 4 Utah Law Review (2012) p. 2023-2065..
The issue of juror privacy rights remains unsettled.
“At issue is the historical role of the jury, the constitutional right of litigants to trial by an impartial jury, and the public’s right to open access to trial proceedings. Legal scholars do not agree on the question of whether prospective jurors have a constitutional right to privacy that must be balanced against such countervailing interests, and the Supreme Court has thus far failed to answer the question. The result is confusion and substantial variance in the courts as to the appropriate scope of voir dire and the extent to which privacy interests of prospective jurors should be considered in determining voir dire practices.” (Rousseau, Privacy and Jury Selection: . . . supra at p. 288).
Brandborg v. Lucas, 891 F. Supp. 352 (E.D. Tex. 1995) District Court, E.D. Texas, deals directly with this issue – noting that “Petitioner’s present claim of asserting her privacy rights in the refusal to answer certain questions during voir dire appears to be a question of first impression in the courts.”. In Brandborg, a prospective juror refused to answer several questions on a juror questionnaire, asserting that questions regarding her income, religion, television and reading habits, political affiliations, and health were “very private” and irrelevant. The trial court judge issued a contempt sanction against her (which was reversed by the Brandborg opinion).
The Brandborg opinion noted that: “While the parties have attorneys to champion their rights, the court must protect the privacy rights of the prospective jurors.”. But as Rousseau, supra, notes, “Unfortunately, the trial judge often has reasons of his own for being lax in fulfilling this responsibility”:
‘[W]hen it comes to prying into matters personal to a juror, the interests of counsel on either side of the aisle are not necessarily antagonistic. All the lawyers want to learn just about all they can about all the prospective jurors. Thus, the court is confronted with no objections that require a ruling; and a trial judge is well aware that . . . no ruling means no opportunity for reversible error. The easy, irreversible course is to say and do nothing and let the lawyers do their thing.’” (citing Weinstein, Protecting a Juror’s Right to Privacy: Constitutional Constraints and Policy Options, 70 TEMP. L. REV. 1, 19 (1997) note 8 (“Because jurors’ interests are not adequately represented by litigants, courts continue to permit open-ended voir dire questions of marginal relevance”)).
In other words, jurors have no protection from the prying curiosity of sleazy lawyers on both sides of the case.
In any case, the voir dire process is a charade. The opinion in United States v. Johnson, 721 F. Supp. 1077 (1990), highlights some of the silly stereotypes upon which are based decisions about which jurors to empanel:
“Louis Nizer has said he is suspicious of prospective jurors with beards or bow ties: ‘They’re usually individualists who will try to win a jury over to their view.’”.
“The more common stereotypes relied on by prosecutors include men, Republicans, the prosperous, bankers, engineers, and accountants; defense lawyers generally favor women, Democrats, poorer people, social scientists, and minorities.”
“Lawyers have been known to hire experts in body language to sit with them at counsel table to interpret what they see in prospective jurors being selected.”.
Whatever value this pseudo science of body language may have, in general, it disappears when considered in the context of our multicultural differences. The following examples are from Rugsaken (2006), Body Speaks: Body language around the world (online at http://www.nacada.ksu.edu/Resources/Clearinghouse/View-Articles/body-speaks.aspx#sthash.mPu3o9VW.dpuf ):
“While good eye contact is praised and expected in the West, it is seen as a sign of disrespect and challenge in other cultures, including Asian and African. The less eye contact these groups have with an individual, the more respect they show.”.
[So much for the “judicial rule of thumb” that someone telling a lie will look downward while answering.]
“In 1975, former Vice President Walter Mondale was invited to speak to the Japanese Diet. He became irritated when he noticed that more than half of the audience closed their eyes. When the talk was over, Mondale snapped at the U.S.ambassador, ‘Why did I bother to come and talk to them?’ ‘Why, Sir?’ the ambassador asked. ‘They didn’t care to hear what I had to say; they were sleeping.’ ‘No, Sir,’ the ambassador replied, ‘they closed their eyes to close out everything else in order to digest your speech.’”.
[So much for the “judicial rule of thumb” that someone with his eyes closed is not paying attention.]
These examples illustrate the silliness of relying on crude rules of thumb to make decisions about which jurors to select.
6. I resent being exploited as a juror by the lawyer industry
The assertion that jury service is an obligation of citizenship (either moral or legal) is questionable. In reality, jury duty is to serve the lawyer industry rather than the general public. Jury service exploits randomly-chosen people – coercing them to serve as cheap infrastructure (paying jurors $15/day) as an audience in front of which lawyers perform their theatrics in order to rake in thousands of dollars in litigation fees.
California Civil Procedure Code Sec. 191 states: “The Legislature recognizes that trial by jury is a cherished constitutional right, and that jury service is an obligation of citizenship.”. However, I don’t find the constitutional basis for this obligation. Cases upholding the Selective Service Act mention jury duty in passing. But that is mere obiter dicta – not binding authority. Jury trials are a right. But how does this imply – or require – or translate into an obligation – for citizens to be conscripted into jury service? Defense lawyers are not conscripted to work for $15/day in order to meet the constitutional requirement for criminal defendants to have a lawyer available (see Gideon v. Wainwright, 372 U.S. 335 (1963)). Other constitutionally required services do not rely on conscripts.
And jury conscription cannot be equated to military conscription.
Article 1, Sec. 8 of the U.S. Constitution gives Congress the power to raise an army. But there is no explicit constitutional power, to “raise a jury”. And, in any case, military conscription was abolished in 1973.
Jury conscription is the only involuntary servitude remaining in the United States. Involuntary servitude was prohibited by the Thirteenth Amendment of the U.S. Constitution, which reads:
“Neither slavery nor involuntary servitude except as a punishment for a crime whereof the party shall have been duly convicted shall exist within the United States or any place subject to their jurisdiction.”.
Under CCP 191 et seq, citizens are coerced to serve (for a pittance – far below legal minimum wage – and at a rate lower than the lowest E1 salary for US Army privates) in order to provide for the enrichment of the lawyer industry – this seems to be a matter of involuntary servitude. “The words involuntary servitude have a “larger meaning than slavery.” . . . The plain intention was . . . to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another’s benefit which is the essence of involuntary servitude.” (Bailey v. State of Alabama, 219 U.S. 219 (1911)).
What authority exempts jury duty from the 13th Amendment?
Respectfully submitted, __________________