No Jury, No Justice
A true cautionary tale
This is a true story about an experience I had months ago, and I still don’t know what to make of it. One morning, in a modest county courthouse, a roomful of adults allowed their personal feelings to prevent them from helping a child find justice. Here’s what happened.
Last fall, I was summoned for jury duty. It happened to be on my birthday, but I’ve had lots of those, and I’ve never served on a jury before. So I didn’t try to weasel out of it, and on the day I was to report, I reported. Perhaps it would be an interesting case, I thought, and I’d get $40 a day for sitting around and passing judgment, which is one of my hobbies. Shoot, we got $6 just for showing up.
88 citizens gather in the halls of justice, hiding their coffee cups.
The county had called a pool of 88 registered voters, and that morning we all showed up at the courthouse, turned in our information cards, and wandered into the courtroom. We waited around some, while attorneys and clerks looked busy, and I amused myself by studying the diverse people in the pews. We were all on our best behavior, though some were ignoring the “no food or drink” sign. No one got in trouble for that, though.
The defendant was already up front — I could pick him out because he was the one person at an attorney’s table who did not look at all like an attorney. He never spoke, he showed no expression, he scarcely moved, and he seemed to pay no attention at all to the proceedings. I wondered whether he had taken a tranquilizer — I certainly would, I thought, if I were in his shoes.
I did not like his looks, to be honest.
Then the judge came in and thanked us very kindly for coming. He described the process. First, he would sort out those who were ineligible to serve or who had legitimate exemptions. After some confusion and milling about, those who had criminal records or had moved out of the county were dismissed as ineligible, and those with care-giving responsibilities and such were exempted.
The court employs its Sorting Hat.
That left 64 of us. We were sent on a 20 minute break. But upon our return, we were to wait outside the courtroom until we were called back in. During that 20 minutes, the clerk shuffled our information cards and then made a seating chart based on the order in which the cards randomly fell. When we filed in, we were assigned to our seats according to the chart.
Now the attorneys and the judge could identify us by our location and could record our answers to the questions they would ask. We were even told that the group on the right was more likely to end up serving than those on the left. I was in the eighth place on the right, so by now I thought I might actually be picked.
I began to feel sort of important. I would do my duty, I thought; I would contribute to a civil society. I modestly told myself that I was certainly the right person to ask when justice was needed, and they would surely have no reason to dismiss me.
Then we learn the actual charge against the defendant.
The prosecutor ended my reveries by telling us all that the man at the defense table had been charged with “aggravated sexual assault of a child.”
Sudden stillness. The air went out of our lungs, out of the room. No one really said anything, since we were supposed to be quiet under the ceiling mikes. But there were involuntary murmurs, and I knew minds were racing, and I knew that more than one of us looked again at the defendant. Sharply.
The prosecutor began by explaining what the charge meant. In this charge, the law defines a “child” as a person under 14 years old, and that’s why the offense is called “aggravated” sexual assault. We would only learn the exact age of the child if we became jurors. The defendant did not move and kept his eyes fixed on a high point in the back of the room.
Auditions for the Justice League begin.
Carefully the prosecutor unfolded the topic and told us what would happen next. She would ask questions of the group, she said, and the clerk would collect the answers on the seating chart. Everyone sat up a little straighter.
First, she asked us whether we could fairly hear evidence in such a case, or whether personal issues would make that impossible. Right away, a few said their personal experiences would render them unfit to experience this trial or judge fairly, and she promised they could explain to the judge privately after this first round. Others offered no explanation but just openly said no; they did not feel they could be fair in hearing this case. Period.
Next she explained “reasonable doubt” to us, and talked about different kinds of “evidence” and the burden of proof. We understood, we said.
She asked us what we thought “scientific evidence” might include: Would we consider DNA results to be expert, scientific evidence? Sure, most of us said. Everybody knows that. We’ve seen television.
But then she wanted to know, what about other evidence besides DNA? For example: expert testimony from doctors, teachers, or counselors — would that evidence be convincing? Most of us said yes. Some said no, they’d need DNA or the equivalent to be convinced. For the first time, she made a note of those denials on the chart.
We display how sensitive and upright we are.
Now we could see that this conversational back-and-forth was deadly serious, and people realized that their answers were being counted. And the questions became more nuanced and more upsetting.
Everyone seemed to need to express their horror at the sexual assault of a child, so they did, in no uncertain terms. When pressed, however, most calmed down and said that yes, they could still be fair in hearing the case.
It got worse. We were told the case involved an abortion. Without even knowing specifics, would our general beliefs about abortion prevent us from being fair? Again, several seemed driven to proclaim how very anti-abortion they were, so that they could not be fair. But most admitted they could still be (grudgingly) impartial.
But only up to a point.
The prosecutor then explained that if the defendant were convicted, he would be sentenced to prison, without parole, for a period ranging from 5 years to 99 years. A jury, she said, must be able to rationally consider the entire range of possible sentences, from the minimum to the maximum. She hammered on the difference between “considering” and “deciding.” We were only being asked whether we could consider a sentence less than the maximum.
If this defendant were found guilty, could you consider the entire range of sentence options?
And that’s when the ideologies really filled the room, like those tiny foam dinosaurs in gelatin capsules that expand when you soak them in water. One by one, and with increasing vehemence, the people announced that they were so repulsed by this crime that they could not consider anything but the harshest sentence for anyone convicted of it.
She asked again, are there no mitigating circumstances whatsoever that would allow you to consider a 5 year sentence, or a 10 year term?
Nope. No. Hell, no. Each person seemed to want to top the last one in their insistence that this offense deserved no less than the maximum punishment. And, remember, we had still heard no facts of the case. We knew nothing about the defendant or the circumstances. We knew nothing about anything.
No mercy in this dojo.
Not everyone sounded off, but no one spoke up to argue with the hard-liners. When asked, I said mildly that I would need more information, but no one jumped on my small, rational bandwagon.
More questions; more notes added to the chart. It was a morning spent thinking about horrible things and reflecting upon the strength of our own stomachs, hearts, minds, and faith. It was my birthday, but I didn’t care anymore.
At last, just before we thought we’d break for lunch, the judge addressed us all, this random pool of citizens who had been asked to serve justice. He explained that 37 of us (he did not say who) had been eliminated from the pool based on their freely given answers to the prosecutor’s questions. Now, only 27 people were left in the pool, and the defense had not yet asked a single question.
In short, the remaining pool was too small to ensure a fair process for selecting an impartial jury. The judge said he was required to halt the proceedings and would have to call a whole new pool — probably 120 or 130 people this time — just to be able to find 12 who were capable of fairly considering this crime. But us? He was sending us home. We would still get the six dollars.
Moral outrage does not ensure justice. At all.
I was dismayed as I started to consider the implications. First, this man’s trial would now be delayed, perhaps for several months. We had no idea how the child was faring during this time of waiting and uncertainty, but we had just extended that purgatory. During this delay, memories would surely fade along with the immediacy of the offense. And when the child did come to testify, they would be older, and might appear less vulnerable or sympathetic.
Meanwhile, I began to wonder with horror, was that defendant out on bail? Did we return a possible child abuser to the neighborhood? Was there a chance the alleged victim would see the alleged abuser at the grocery store?
Maybe we should have asked those questions before we postured as rigid and righteous avengers. Maybe we should have thought of the victim and the accused, instead of making that day’s courtroom all about ourselves and our flashpoint reactions. Maybe we should have realized that it wasn’t about us, after all. Too late now. And now we realized we were not going to avenge anyone today.
“Moral certainty is always a sign of cultural inferiority. The more uncivilized the man, the surer he is that he knows precisely what is right and what is wrong.” ― H.L. Mencken
A cautionary tale
This episode taught me a visceral lesson. Certainly, we humans need to have firm convictions and reliable moral compasses. However, it’s clear to me that in our era, we no longer have the will or the attention span to respect our best attempts at due process. We render instant judgments, and the only court we really understand is the court of public opinion.
But the rule of law requires we use a different compass. This compass must point 12 outraged people in the direction of objectivity and reason, so that they can deliver the justice they themselves would demand.
I honestly can’t say what I’d have done had I been placed on that jury. I can talk hypothetically about my impartiality all day long, but recall that I already strongly disliked the defendant. He frankly looked guilty as hell. Even if his guilt could not be proved by the evidence, would I convict him anyway, based on the look on his face? Based on my feelings?
I’ll never know. And neither will the other 87 people called that day to demonstrate their commitment to justice. The fervor of their ideologies disqualified them from the opportunity to live out those beliefs within the rigors of facts and law.
And that is as it should be, for justice should not depend on how much outrage we feel, we who were not even the victims.
But it’s too bad, because that day was really not meant to be our day in court. Rather, it was our duty to ensure a day in court for that child, and we couldn’t.
And we did not even consider the outrage of that child.