Monday, October 12, 2009

Jury Nullification Is a Moral Obligation

This is my latest post in a series of posts arising from my recent experiences with jury duty for the Los Angeles County Superior Court. In this post, I cover the topic of jury nullification -- .i.e., the legal theory/reality that juries can and do ignore the law and rule the way they want. Other things being equal, I believe in jury nullification, whereas many of the people who mention this topic are people seeking to be excused from jury duty and are hoping to use this as a "get out of jury free card." For the reasons set forth below, I believe that this is exactly the wrong way to look at jury nullification.

When summoned for jury duty, I was prepared to serve on a jury for up to two weeks, at which point I had a non-refundable plane ticket so I could get to one of my regular consulting gigs in another state. As it so happens, my jury duty was limited to waiting at the courthouse to be called to a courtroom and being cut loose at about 2pm when it was clear that no more jury selection was going to take place that day. With California's recently implemented One-Day or One-Trial [pdf] system of jury duty, this is the norm. To wit, most people are able to discharge their obligation for jury duty by calling in to the court for five days or showing up at the courthouse for one day.

In those instances where a potential juror is assigned to a courtroom and/or chosen as a juror, they'll probably be done with their jury duty in five to seven days. In those rare instances where jury duty is expected to last longer than that, the court will probably exclude those people who would suffer a financial hardship. In sum, jury duty under the One-Day or One-Trial system is much less onerous and has dramatically reduced the motivation for potential jurors to seek to be excused.

If you are motivated to get excused from jury duty notwithstanding the fact that you are already at the courthouse and/or in a courtroom, you can probably get yourself excused from serving on a criminal trial by revealing any bias that you have against the prosecution (or the defense); in a civil trial, you can probably get yourself excused by mentioning the concept of jury nullification. Of course, if you really believe in the concept of jury nullification, the time to bring it up/act on it is during jury deliberations.

Far from an excuse, jury nullification is a moral obligation. To wit, it is an effective weapon to be used against The Man when he tries to put someone in jail under the pretext of an unjust law, and it works just as well when the black letter law [pdf] unjustly favors a particular civil litigant. As such, if you truly believe that the law as it is currently being applied by the courts is unjust, then you have a moral obligation to keep your thoughts to yourself until after you have been selected for a particular jury. Then and only then should you make your case to your fellow jurors that the law is unjust, and that it should be ignored.

Even if you are unable to convince your fellow jurors that the law is unjust and/or that it should be ignored, your single vote of "not guilty" will cause a mistrial in a criminal case. As such, if the prosecution wants to put that particular person in jail, they will be forced to prosecute their case against that person all over again. This doesn't necessarily mean that justice will be served in the long run, but for one bright shining moment, your voice will be heard loud and clear.

Some might say that jury nullification is a moral hazard, and that the law should be observed, even when it is unjust. However, the true moral hazard in this situation arises from the fact that too many people who serve on juries defer to the authority of the court or the anonymous authority of the crowd rather than listening to the small, still voice of their own conscience.

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Friday, October 09, 2009

The Folly of Avoiding Jury Duty

As a followup to my earlier posts entitled Post Mortem on Jury Duty and Replacing Mandatory Jury Duty with Voluntary Jury Service, this post covers the trials, tribulations, and concerns of those who hope to avoid jury duty altogether. The nature of this challenge has changed dramatically in California with the implementation of the One-Day or One-Trial [pdf] system of jury duty, so much so that trying to avoid jury duty altogether is usually more trouble than its worth.

Once upon a time, California courts would send out questionnaires to prospective jurors before summoning them for jury duty. Now, when someone's number comes up, a jury summons goes out with a ten-day deadline for responding by phone and a date certain for beginning jury duty. When you respond to this summons over the phone, there are a very limited number of excuses that you can use that the court will still accept, such as a physical disability verified by a medical doctor. However, you are usually given the option to postpone your jury duty for as long as three months. You are also warned that this will be your one and only chance for a postponement, which is totally untrue; what is true is that this will be your one and only chance to request a postponement over the phone. Further postponements must be requested in person, and are routinely granted for up to three additional months at a time, provided your jury duty is completed within one year from the time you were summoned.

There was a time when you could safely ignore the questionnaires that were sent out to prospective jurors, as the courts would snare enough people for jury duty out of the people who actually responded to said questionnaires. And while the jury summons that go out now do not go out by registered or certified mail, there's a pretty good chance that you'll end up being served with an order to show cause if you ignore the initial jury summons. As for calling in to register with the court within ten days, that's probably not all that critical, but I'm hard pressed to imagine what benefit could be obtained by putting off this task absent good cause for doing so.

After receiving a jury summons and calling in to register with the court and/or getting a postponement over the phone, you'll be instructed to call in to the court again the weekend before your jury duty is scheduled to begin. And when you call in again as instructed, you'll be given another call in date or a date certain when you are required to show up at the courthouse for jury duty. If and when you are required to show up at the courthouse, you'll probably be given the opportunity to postpone your jury duty for up to three months, as I alluded to above. However, if you choose this option, you'll be going through this whole process again in three months time. On the other hand, if you just accept the fact that your morning is blown and stick around, there's a good chance that you won't be called to a courtroom, and that you'll be cut loose shortly after lunch with proof that you have fulfilled your legal obligation for jury duty.

In the unlikely event that you are sent to a courtroom for jury selection, it's relatively easy to get yourself removed from consideration as a juror by just being candid about any prejudices you might be harboring. To wit, if you have an inherent distrust of police and prosecutors, just say so. Any prosecutor who has two brain cells in his head will either have you excused for cause or exercise his or her right to strike you peremptorily. Similarly, if you are inclined to believe that everyone who appears in a criminal court is probably guilty of some crime, just say so. Things get a little trickier if you're being considered as a juror in a civil case - i.e., a court case where someone is suing someone else rather than one where someone is being prosecuted for allegedly committing a crime. In these instances, your best bet for being excused from consideration is to mention jury nullification. This makes you a wildcard that one or both attorneys in the case will want to avoid, if not the judge.

In sum, trying to get out of jury duty altogether is simple folly. The best that you can hope for is to minimize your jury duty to no more than five days on call or one day at the courthouse as a potential juror. And if your employer pays your salary or wages while you're serving jury duty, make the most of it. When you're required to show up at the courthouse, bring a good book or your laptop, and take good notes so you can blog about your experiences later.

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Wednesday, October 07, 2009

Replacing Mandatory Jury Duty with Voluntary Jury Service

I recently posted a blog entry entitled Post Mortem on Jury Duty in which I narrated my recent experiences pursuant to being summoned for jury duty by the Los Angeles County Superior Court. In this followup post, I will consider the issue of whether mandatory jury duty should become voluntary jury service. As a matter of course, I will cover the advantages of the One-Day or One-Trial [pdf] system that California has recently adopted for jury duty.

As a lifelong libertarian, I rail against virtually all government-imposed duties, and mandatory jury duty is no exception. However, as a practical matter, I acknowledge the fact that the oligarchical government collective is much more powerful than I am as an individual, and I am not interested in fighting this particular quixotic ideological battle over jury duty, as jury duty is one of the least objectionable duties that the government imposes on me.

If mandatory jury duty became strictly voluntary jury service, I would probably be willing to step up to the plate on those occasions when my number comes up, other things being equal. At the same time, I do not believe that this makes mandatory jury duty any more of a legitimate form of government action. To wit, no innocent third party should feel obligated to put his or her life on hold just because The Man wants to put someone in jail. Similarly, no disinterested third party should feel obligated to put his or her life on hold because two or more civil litigants are unable to resolve their personal legal disputes.

Like many other states, California recently implemented the One-Day or One Trial system of jury duty. Under this system, you can discharge your legal obligation to perform jury duty by being on call for five days and/or showing up at the courthouse to which you are assigned on one of those five days if and when your presence is required. If and when you are required to show up at the courthouse, you become part of the pool of potential jurors; if you are not assigned to a courtroom by the end of the day, you will have discharged your obligation to perform your jury duty and cannot be summoned for jury duty again for at least twelve months.

Under the One-Day or One-Trial system, many people who call in for the full five days do not even have to show up at a courthouse. Of those people who do have to show up, most do not even get assigned to a courtroom; even fewer are selected to serve on a jury. Those who do have to serve on a jury are usually done with their jury service in five to seven days; when jury duty for a particular case is expected to last longer, the court can excuse those people who would suffer a hardship. In other words, the overall inconvenience of being a juror has been greatly reduced by the One-Day or One-Trial system. However, the underlying question remains: Should jury duty be mandatory?

There's a school of thought that mandatory jury duty is a necessary evil. Pursuant to such a school of thought, the ends justify the means. However, the means one chooses to employ have a way of defining and changing the ends one pursues, so when one employs unjust means, one ends up achieving unjust ends. Mandatory jury duty is no exception, as many potential jurors are people who have been shanghaied by the courts and who do not have the wherewithal to come up with an excuse that the court will accept.

There are many people who genuinely believe that it is their duty as a citizen to serve on a jury, and just as many people who wouldn't mind serving on a jury if there were some sort of tangible benefit for doing so. As such, replacing mandatory jury duty with voluntary jury service would mean providing incentives to people who might not otherwise be willing to serve as a juror, such as financial aid for students and tax breaks for the wealthy. Even voting rights and access to the courts for civil remedies could be tied to jury service. In sum, there is no reason for mandatory jury duty.

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Monday, October 05, 2009

Post Mortem on Jury Duty

After years of being ignored by the courts in re jury duty, I recently received a summons to appear for said jury duty. The date the court in question had set for me to call in/appear was very inconvenient, so I called in and rescheduled using the court's automated system. Rather than postponing as long as possible, I picked the earliest date that I knew I could appear, as I never know where I'm going to be or what I'm going to be doing three months from now. In the future, knowing what I now know, I may do exactly the opposite. The jury, so to speak, is still out on that one.

As I stated above, I've not heard from any court regarding jury duty for several years. I have strong suspicions about what prompted the Los Angeles County Superior Court to send me my most recent summons, and things may or may not return to the status quo ante of my being ignored by the courts for jury duty in the future. Prior to this, the last court that I heard from regarding jury duty was California's Eastern District Federal Court, which sent me a questionnaire regarding jury duty when I was still in law school. Being a law student/certified student attorney at the time apparently prompted them to exclude me from future jury pools. State courts play by different rules, and I suspect that ambiguity about my place of residence is what kept them at bay for so long. That ambiguity was ignored by the Los Angeles County Superior Court when it sent out its most recent summons to me, but I had no particularly strong objection to showing up at the designated time and place, other than my innate distaste for being compelled to do so by The Man.

Being summoned for jury duty filled me with ambivalence, but I was not particularly motivated to get excused. Rather, never having performed jury duty before, I was (a) intrigued by the possibility of being involved in some real life courtroom drama in a way that I had never before experienced and (b) concerned about just how long the court would expect me to put my life on hold. Regarding (b), I allotted a minimum of one week and a maximum of two weeks before this would become an issue for me. Ninety-nine percent of the time this is apparently enough of a commitment, even if you are actually selected for a jury. As it so happens, my jury duty, such as it was, was limited to waiting to be called to a courtroom for several hours; about 2pm, those of us who had not been called to a courtroom and/or selected for a trial before lunch were sent home.

But for the fact that I had lost my jury summons - a blessing in disguise - I would have been calling in to the court every day for a week to see if they wanted me to show up. Instead, being unable to determine over the weekend if and when the court wanted me to show up, I showed up at the courthouse on the first Monday for which I might have been scheduled, and was processed along with all of the other people who knew they were actually supposed to be there. Even now I have no idea whether I was supposed to show up on that Monday or any other day that week. However, given my druthers in the future, I'd rather show up on the first day and serve my commitment/get an extension than be forced to call in/wait around every day for a week. Unlike other people, I do not have to be at the same place every day for work, and every day that I might be waiting around to be called for jury duty is an enormous inconvenience.

One of the early matters covered during jury orientation was requests for postponements. Apparently, these requests are routinely and repeatedly granted by the Los Angeles Superior Court for up to three months at a time, up to one year. This might be a quick and dirty way of minimizing the amount of time that you actually spend satisfying the court's demands on your time when it comes to jury duty. Not having requested a postponement, and having fulfilled my obligation for "one day/one trial," [pdf] I may hear back from the court as soon as one year from now. Had I requested an initial postponement some three months into the future, I could have continued to request postponements in three month increments, preparing myself for the possibility of an extended commitment of time at the end of one year. The jury's still out on which strategy would work best for me, but chances are that I will need at least one postponement if and when I receive a summons for jury service again, as I will probably have to find a date that fits in with my business travel plans.

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