McFreedom

David Bernstein, guest-blogging at the Volokh Conspiracy has an idea for reforming jury duty. He admits that a prerequisite for his idea is that "the officials in charge of jury pools would have to start acting like potential jurors' time is actually valuable..." In my most-recent encounter with the jury system, at the San Mateo country courthouse, in May of 2002, that was the biggest problem from my perspective.

I wrote a little on the subject at the time, but I found the whole process very disheartening and never really summed up my experiences.

This is the only county I've been called for jury duty in (twice!), so I don't know how representative this is to experiences in other jurisdictions. You begin the day in a big, overcrowded basement conference room where you are signed in and told that you'll be called in randomly selected groups. Jurors wait in and around this room (there's also a nightmarish cafeteria right next door you can go to). In this room there are a half a dozen computers and a couple of television sets; that's it for entertainment.

I was in the first group of the day called, and seventy of us made our way up to the courtroom. Outside, the bailiff (a marvelous middle-aged but very fit woman who was about 5'1" but had a very commanding presence) stood on a bench and told us the ground rules: No talking, stand when the judge enters, etc. She further informed us that it was disrespectful to read in the courtroom, since we were supposed to be paying attention, but that she knew we would anyway, so she wanted us to be discreet - no newspapers, keep your book in your lap, and don't read if you're in the front row, on one of the aisles or in the jury box.

In we filed. To "seed" the procedure, the court called out eighteen names of prospective jurors. I was one. We all shuffled up to the jury box and took our seats. Now the real fun began. The judge went down a standard set of questions, which basically boiled down to, are you in law enforcement or related to someone who is; have you ever been the victim of a crime; and have you ever sat on a jury.

It became very clear very early that it was very easy to convince the judge you were biased. In my previous jury-selection experience (I was preemptorily challenged out of that one) he quickly disposed of the bias concerns - very few jurors were considered too biased to sit - and we went straight to financial hardship, and that was where most of the effort was expended, trying to convince the judge that jury duty would be an unreasonable financial hardship for you.

For the second jury, the judge was so sensitive to the supposed biases of the prospective jurors not once did financial concerns arise Anyone who wanted to get off the jury just talked of some minor property crime that had happened fifteen years ago and how it had made them want to personally torture to death any accused criminal. In the few couple of cases there was nothing they could so twist, loud, unprovoked outbursts about how obviously guilty the defendant was did the trick. On top of which, the judge was slow in his work. My favorite part was when someone would be uncomfortable:

Judge: Have you ever been a victim of a crime?
Prospective Juror: Er, uh...
Judge: Would you be uncomfortable talking about it in open court?
Prospective Juror: Yes, your honor.

The Judge would then adjourn the court. Everyone except the court reporter, the clerk, the attorneys and the accused would file out of the courtroom and stand around in the hall until they were done, then we'd file back in.

Here is where the "no reading" in the jury box came in. I was seated in the jury box from the get-go, one of only two jurors to make it through the whole process from the first step (since, after all, it was not difficult to get out of). My questions were asked and I was done, but since it would be rude to read while the judge was interviewing other people about their personal lives, I had to sit there and stare off into space for ten hours. That's how long jury selection took. They called in seventy people to the courtroom. Fourteen remained as jurors. Nine were never called. The rest were excused. Particularly frustrating to me (and no doubt to the defense) was that the defendant was Hispanic, but every Hispanic prospective juror either didn't know English well enough or pretended to not know English well enough to sit, and got out of it.

It got slightly more interesting from there, but the overwhelming theme of the jury duty was a total lack of respect for the jurors' time. We would be instructed when to arrive for court, and, of course, if we were five minutes late, we could be charged with contempt of court. But if the judge is running half an hour late returning from lunch - as happened once - we just had to stand around in the hall. And I know for a fact it wasn't because he had emergency court business, because we'd eaten at the same restaurant and he asked me to inform the bailiff he'd be late.

The root problem in all of this is that there is absolutely no cost to the members of the court for the jurors' time. If the members of the court can save five minutes by costing the jurors forty-five minutes, that's a fine trade in their minds. I'm sure some members of the court also enjoy exercising their bureaucratic power over such people. My first thought is that it would be nice if there were some incentive to the members of the court to use our time efficiently - but, of course, no one wants "justice rushed."

One thing that was much improved over my previous jury experience was that the overall system's attitude was changed from one of "you'd better be here or we're going to put you in jail" to "we recognize that you're here because you want to be, and appreciate that." Since they almost never actually do put anyone in jail for avoiding jury duty, it was obviously an empty threat, and I think most of us were there out of some sense of civic duty, even if most of us were hoping (perhaps a little too strongly) not to be called.