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A few weeks back, I received in the mail a notice for jury service. Now, I know no one likes receiving that notice from the court ordering you to appear for jury duty. Fail Not – or a not so friendly sheriff will be sent to personally escort you. I have never had the privilege of actually sitting on a jury. I have been called, but never chosen. Usually, once the lawyers find out that I am a trial lawyer, they don’t want me anywhere near their jury. It is felt that attorneys on a jury might be too persuasive and may bring other impermissible factors into the deliberations.
My day came and as always I hoped that I would be selected to serve on the jury - admittedly for personal and professional reasons. I wanted to know how juries worked from the inside. I wanted to go undercover to uncover what factors jurors considered in rendering a verdict. Before the morning session began in earnest, you could hear people buzzing about prior jury service and the types of cases they had been a part of. One particular gentleman caught my attention. He was expounding on how he was disqualified from a jury, when he sent a note to the judge, asking if the jury could be told how much the criminal defense attorney was being paid hourly. The gentleman went on to discuss how impeccably the defense lawyer was dressed, that he wore an expensive watch, and that he surely must have come from Buckhead. The relevance he confessed was, if these young defendants were innocent – how could they afford such a high priced lawyer! So what did I learn – do not dress too well when on trial, it may be held against you and your client.
Later, I was sent to the judge’s courtroom as part of a panel of approximately 40 prospective jurors. The case was that of a twenty-ish African American male accused of theft by taking. In my group of perspective jurors there were a total of three African Americans, myself and two others, a male and a female. The lawyers (as we always do) asked the question or some variation of the question, “Do you believe that you could listen to the evidence and the instruction from the court and render a fair and impartial verdict". The African American man raised his hand and said he did not believe that he could render such a verdict. He continued by saying that the American criminal justice system is historically and inherently unfair to black males and that he could not render an unbiased verdict against this young black male. The 37 others began to squirm as though the topic was uncomfortable. To be honest, I was a bit uncomfortable.
This issue that his comments raised, in light of the Jena 6 controversy, is the fairness and/or disparity of the American criminal justice system. My discomfort was that while I believe that the gentleman was making a factually accurate statement, I did not believe that this was the appropriate forum to wage this battle. The problem is that jurors are typically “struck" for cause – meaning disqualified, if they cannot state that they can render a fair and impartial verdict. So while contending the system is unfair, this gentleman chose to opt out, when he had an opportunity to participate and maybe make a difference. While the odds were long that he would make the jury after his comments, there was a chance that he could have sat on the jury to deliberate the fate of the young accused. If he felt that the state had not met its burden of proving this young man guilty beyond a reasonable doubt, then he could have voted for acquittal.
I take my hat off to the judge who would not disqualify the prospective juror. To do so would not have served the ends of justice. At the very least by not disqualifying him, the prosecutor in the case would have to use one of his precious strikes to eliminate him from the jury.
Afterwards, I thought about why do we serve? Does it make a difference? Can I make a difference? The answer should be obvious - Yes. My law partner reminded me, it is similar to the right to vote. You can choose to opt out of the election process because you feel it doesn’t work or that it is corrupt, or you can choose to participate and have your voice heard. No one deserves the right to complain about the government, when he or she chooses not to participate in the elections of those that govern. Likewise, no one deserves the right to criticize the criminal justice system, when they choose to forego an opportunity to participate and affect the system.
So this is why we serve. ~ W. James Moore