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Jury Duty

I had to get up unusually early for jury duty, a bit of a cruel twist when the alarm goes off and proper sleep is a challenge I regularly face these days. But I roused.

Arriving at 8:30 AM at the county courthouse, we enjoyed about an hour of education on how important all of us are to the process. Which is true as a point of fact of course. And the jury herdsman did a very fine job, so I cannot fault him in the least.

I wonder how many of those people, like myself, are self-employed and thus lose a day’s work (and more if selected)? A forced donation to the State which corporate employees do not suffer, since nearly all large companies pay employees for jury duty. And some people really have it tough with additional daily obligations (like a nursing baby)—but they too have to show up and wait like everyone else. Well, it could be far worse: being on call for a week for federal court an hour’s drive away in Oakland. I just wish I weren’t called every 18 months—one has to wonder just how random the process really is with the millions of people in San Mateo County—what are the odds? The jury pool is selected primarily from DMV records, but also voter registration records and possibly other sources (see California legal code 197).

Around 11:30, we were told to have a long lunch and come back at 13:30, but not to leave since parking could become an issue with another group arriving. So I had a lovely two hours in the parking lot which had no usable cell service. Returning at 13:30, another group was now with us, 200 or so prospective jurors sat until 15:30.

The presiding judge appeared to thank us around 15:30, and even to hand out our 1-year exemption forms. I appreciated the presiding judge taking his time to do this; it showed respect for the jurors and their time, and that’s about all the judge can offer, the system being what it is. It’s good PR.

The presiding judge told us something remarkable: there were 100 potential jury cases that morning, but of the 100, 98 (!) decided to not go to a jury trial and the remaining two were vacillating. But we were off the hook since those cases would have to wait until tomorrow. Apparently, letting defendants know that 200 jurors are down in the basement ready for voir dire* has a certain influence on the decision to plead or go to trial.

* Voir dire : From old French, the legal phrase means "to speak the truth" or "to see them say." Voir dire is the preliminary examination of a prospective juror by a judge or lawyer in the case to decide whether that person can serve on the jury.

It would be very interesting to actually sit on a jury, but so far I have never made it to the voir dire stage. Being selected would be tougher still, since the California juror pledge 232(b)** would require me to check my own moral compass at the door, that is, among other things, I view jury nullification as a fundamentally important check on the legislature and judiciary. Since the California Supreme Court recently rejected jury nullification, no judge would want such a nettlesome person as me on the jury. Which makes this message from the Chief Justice of California rather rich:

Trial by jury is one of the fundamental ideals of American democracy; serving as jurors reminds us that these ideals exist only as long as individual citizens are willing to uphold them.

“Uphold” what? It is an interesting choice of words when jury nullification is deemed grounds for dismissing a juror. Exercising independent judgment as to the validity of the law itself is a prerequisite to any concept of justice, unless one views the State as infallible. But of course the courts do not concern themselves overly much with justice, but rather, The Law. If I am asked to render a judgment that may incarcerate a person, I cannot suspend my moral compass just because it makes the judiciary or legal scholars squirm.

Apropos a day after I wrote the above: at least one US Supreme Court justice understands prosecutorial abuse, as per the quote in the 28 April 2016 Wall Street Journal:

“We’re worried…because, like any other organization, the prosecutors, too, can be overly zealous,” Justice Stephen Breyer said at an oral argument in the case. He and other justices said they feared the government’s legal theory potentially could make a congressman a criminal if he accepted lunch from a constituent and then sent a letter on his behalf.

It’s too bad the supreme court hasn’t figured this idea out before; what about police or prosecutors faking or losing or suppressing evidence, biased judges, racism, etc? And yet the idea of jury nullification is for repudiated in this country as criticized as “dangerous”, as if police killings and judicial and prosecutorial misconduct does not exist—far more insidious and dangerous than a juror of principle. Checks and balances are very appropriate, and to have 10 guilty people go free so that one innocent person may walk remains a valid operating principle.

I also object to the threatening tone of the voire dire pledge of California legal code 232(a), which demands that all questions be answered “accurately and truthfully”. It’s not truthfulness that concerns me. Rather, given rampant prosecutorial abuses and the grotesque politicization of the judiciary (up to the Supremes), the idea of agreeing to this pledge given the threat of criminal prosecution ought to chill anyone’s blood, particularly anyone contemplating being a nail to stand up and be hammered down (jury nullification). According to that pledge, one is a criminal simply by refusing to answer a question or by virtue of prosecutorial assertion/opinion no matter how absurd as to whether the answer is accurate or truthful. I pride myself on honesty, but I am not stupid enough to put my head into a noose. The threat of fines and imprisonment were already upon me simply to appear for jury duty: a summons for jury duty need only be mailed via first class mail; the threats of fines and imprisonment do not require proof that the mail was received (see 208, 209, etc). In other words, the US Post Office stands between you and prosecution (what if you are on an overseas trip and don't pick up your mail for months—y0u finally arrive home with a warrant out for your arrest).

** California legal code: emphasis added:

232. (a) Prior to the examination of prospective trial jurors in
the panel assigned for voir dire, the following perjury acknowledgement and agreement shall be obtained from the panel, which shall be acknowledged by the prospective jurors with the statement "I do":
    "Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court; and that failure to do so may subject you to criminal prosecution."
(b) As soon as the selection of the trial jury is completed, the following acknowledgment and agreement shall be obtained from the trial jurors, which shall be acknowledged by the statement "I do":
    "Do you and each of you understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court."

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