Our legal system in the United States is a wondrous thing. If you are arrested and charged with a crime, you have the option to a jury trial. Theoretically, we pick a representative sample of 12 of your peers to sit in judgment of you. Except if you are already a felon, or disabled, work in a profession where serving on a jury would be a hardship for you, are self-employed, or are the primary caregiver for another human. Or if you have a medical issue that is exacerbated by sitting for long hours. Or have a medical appointment you can’t reschedule. Or if you have already paid for a vacation during the scheduled trial period. Or are pregnant. Or a college student who might miss classes. Or you just might be one of those people who ignores the jury summons. Or you may not be a registered voter or have a driver’s license. Or you may not understand English well.
If you are any of those people, you will not be represented by your peers.
As I sat in the hallway with 200 or so other prospective jurors this week of my county courthouse, most people considered the call to jury duty as an inconvenience they would beg and embellish the truth to get out of. The prospective jurors chatted amongst themselves about the ways that jury duty inconvenienced them, about the “waste” of a morning they would spend as potential jurors, and how their time was more important than the trial at hand.
My favorite excuse of the day, which I overheard while grading papers on my computer, sitting on the floor of the hallway waiting to be called to the courtroom, was from one of the county employees. Her uniform shirt identified her as a county employee, and as she chatted with a friend, also called as a potential juror, she said she was “too frickin’ busy for this shmit” (I wondered who she thought she was fooling with the language tweaking), and that with “just my luck”, she’d be chosen for a civil case that she wouldn’t be able to conflict out of. Missing out on pay wasn’t a concern for her though, because her county job ensured she would still get paid fully for her jury duty by her employer, she told her friend. Because here’s the thing: her employer knows how important serving on a jury is.
And the State of California understands as well. State law protects employees and students from being fired or harassed for missing work or school due to jury duty. Regardless, the majority of hardships that day were school or work related.
At first, it was amusing, and I listened and commiserated a bit with other potential jurors. But after awhile, I wondered when the privilege of jury duty had become so disdained in our culture.
My group of fellow prospective jurors was called to the court room almost 3 hours after we arrived at the courthouse. We sat in rows on each side of the courtroom, were handed a court calendar, turned off all of our cellphones, and waited for the judge.
During his introduction, the judge reminded us that it’s a privilege to serve on a jury, and to live in a country that gives the People a voice in the legal process. And then he asked if anyone had a hardship claim that needed to be considered for dismissal. The range of hardships was a long laundry list of medical issues, work issues, school issues, hearing issues, and vacation plans. Nearly 150 in total.
I had fully intended on asking for a hardship dismissal, by the way. I’ve got two young kids who rely solely on me for transportation back and forth to school and I work as a college lecturer; missing three weeks of class time for a trial would have been a hardship on my employer. But the judge was very clear: the exemption would be granted only if it was a hardship on ME, and honestly, it wouldn’t be since I wouldn’t have to report until 9 am each day and would be done by 4:30. My students would survive without me for three weeks.
What was left of the 200 or so prospective jurors after the hardship dismissals? Well, folks like me. And like my mother. Of the prospective jurors who filled the court room for a civil matter this week in my home county, just over 40, or under 25%, remained after the “hardship” phase of jury selection. We were a group of nervous-laughing, mostly 40 to 65 year old, overwhelmingly white men and women who have been privileged enough to be healthy enough, wealthy enough, or civically minded enough to show up and not have matters pressing enough to be excused from jury duty. All of our legal knowledge probably was gleaned from watching fictional legal dramas on TV.
And this was before the Voir Dire or “conflict” stage in which attorneys often “shape” the jury to favor their cause and dismiss prospective jurors for clear conflict (if a juror worked for the company being sued, they would be dismissed immediately).
As I looked around at the other remaining prospective jurors, I realized my odds of being chosen for the jury had become great: I had a one in three chance of sitting on the jury. Except, I knew I would likely be dismissed for bias during the “conflict of interest” phase.
The case was an asbestos case, and the building I work in, in fact the floor I work on and the one right above, has been the subject of a “cancer cluster” inquiry. The suspected cause of the cluster? Asbestos. And guess what? I’m one of the cancer survivors. My colleague, Andy, was not so fortunate. The building was deemed “clean” and that asbestos was not the cause of the relatively high rates of cancer in a very small section of the building, but still, sitting on that jury, I would have had a hard time separating my feelings from science.
But we never got to the “conflict” phase.
The judge and attorneys must have known I, and the majority of other jurors, would be dismissed due to bias or conflict, After the prospective jurors gathered in the courtroom and all the hardship cases had been dismissed, the judge called the attorneys to his bench, leaned in close and whispered in not-so-whispery tones, shook his head gravely while staring unbelievingly at the lot before him, finally sat up straight, and addressed the prospective jurors.
Just like on TV, he thanked us for our service, told us we were dismissed, and bid us farewell.
But my brush with potential jury duty gave me an insight I’ve never had before, since I’ve never gotten this close before.
We tell people in America that they can have their day in court, a fair trial, a group of people who are able to give them that chance to explain what happened to them without preconceived prejudices about your race, ethnicity, social status, and gender. In practice, that only happens with unbiased jury selection; the reality is much different.
We pretend, in America, that people who understand you, people who have been in your shoes before, people who might share your perspective, and thus be more likely to treat you fairly if you are tried for a crime, will be those who then judge you, but we are wrong. We are so wrong. Certain groups, based on a range of characteristics including age, race, education level, and socioeconomic status, are more or less likely to serve on juries, creating “shaped” juries. The consequences of a “shaped” jury, either by self-selection or by attorneys and judges, are catastrophic.
If you’re thinking of committing a crime in America, wait a bit, if you have time, until you are 50 or so. Don’t be a felon already, or pregnant, or caring for a young child or an elderly parent. Don’t be attending college, or chronically ill; don’t have any vacation plans, but do have an understanding employer who will pay you for your jury time. You might get close to having a jury of your peers, as long as you aren’t a racial or ethnic minority. In other words, be just like me, although I miss the age mark by a few years. I’m still waiting for the big caper.
I knew the issue of bias in juries before answering the call for jury duty, but didn’t grasp the extent of it until I sat in the courtroom, and watched the process myself. I hope you get the privilege soon as well, to be a prospective juror. When you do, take a look around, listen to the folks around you, and try to stay until the end, to see who’s left to judge the accused. Then look at the accused, and see if the jurors are truly a jury of peers.
For a summary of the article about age bias in jury pools, jury selection, and the consequences of older and younger juries, check out this site.