As I begin to write this, I have just been released from my position as a juror in a Common Pleas case. With all the hoopla about presidential candidates, confederate flags, ISA spying, and police brutality, this chance to look inside one of the principles of a somewhat-free democracy was interesting.
Have you been called for jury duty? Have you ever served? If you have been called but not served, you are familiar with the initial part of the process. It is a cattle call. You and anywhere from 60 to 120 other members of your community receive a summons in the mail. You are to report to a courthouse at such time on some date. You are given options for exemptions based on age, ability or other extreme requirements along with a number to call if you can meet those conditions. If you are like me, none of them applies.
You go to the courthouse on the appointed date and time and file in with the cast of peers that received the summons. The most common comments are concerns about duration, with lots of hopes that somehow the full burden will be avoided. You and your peers sit in the courtroom and listen to instructions about the selection process. At some point, you must stand and state your occupation or work considerations as well as those of your significant other if you have one. This is part of the strike process, a chance for the attorneys to look you over and form some quick gut decision about your suitability for the case or cases to be tried. It is also an opportunity to determine if you are related to or connected in any fashion with the Plaintiff or Defendant, or may possess some bias that can affect your inclusion in the case. Once every potential juror is heard from, there is one last chance at exemption. If you have made it this far, the odds are not good that any of these exemptions will apply.
This part of the jury building process is interesting in itself. Potential jurors are assigned numbers. Numbers are scrambled. All these rules and requirements to be sure there is an evenhanded attempt to isolate a group from which to draw a jury did not simply spring into being. The rules determine who might be subject to an undue burden, who might be invested or in conflict, who is eligible and who is not. It is a process with sufficient steps that very few of us would be able to design it from scratch without injecting some possible bias or burden errors. I am not suggesting the system is perfect. It probably contains many selection flaws, but they certainly are elusive.
With a somewhat purified jury pool remaining, a random draw begins. Your odds are something like 1 in 6 to 1 in 10, depending on the size of the jury pool, the number and type of cases, and how many alternates are needed. Suffice to say at this point you are still in a fairly good position. A computer randomly draws from the remaining pool of available juror numbers. The attorneys are given a list of numbers, a new smaller jury pool. Each potential juror has been assigned a new number, though the attorneys know whom each number represents. Back and forth they go, calling out a number to be stricken, or disputing their opponent’s strike. Hence the new numbers, you have no way of knowing who they are talking about. With number after number stricken, your odds are getting better, whether or not you know it. You may already be in the clear. You may not be on the list they are debating. With the strike process complete, the clerk of court prepares to call out the final list of names. If it is your name the clerk bellows, you must stand and file toward the jury box. A juror has been born. You may have the luck I had today. The clerk voiced my name.
Magistrate court and cases, as well as traffic court, often have panels of six. The cases are small disputes that result in some form of inconvenience. I am not suggesting those cases are unimportant. They are a great concern to the parties involved. One person’s inconvenience may still be a weighty consideration. However, life and liberty are not at issue. The debates are over a few hundred or a few thousand dollars or something in that range.
Juries of twelve, with at least two alternates, try criminal and grand jury cases. Life and freedom are at issue. Common Pleas, or civil cases, are somewhere in between. Like a criminal case, they use a jury of twelve with either one or two alternates. Life and liberty are still not in question, but quality of life, recovery from damages and some degree of negligence or guilt are involved. It is not Perry Mason or Law and Order, but it is very important to the parties. The decision may change the Plaintiff or Defendant’s life for years to come.
Those spared the burden are dismissed. The Judge turns his attention on us and gives us instructions. Note taking is not allowed. It is important that we observe and that our noses not be in a notepad. We can consider only what is presented. No deliberation or discussion is to take place until the case is concluded and the Judge gives us instruction to deliberate. We must select a foreperson. Objections or sustains from the Judge have no bearing. Nothing the Judge does is to suggest he leans this way or that. Consider only what the parties present. He is the judge of the law. We will be the judge of the facts, the truth.
My twelve peers and I are lead into the deliberation room where we receive more instructions from the bailiff. Talking in court is not allowed. Each of us are given a badge to wear that shouts out, “JUROR” as a means to prevent passersby from talking to us. We were forbidden to use public restrooms, our own private spaces provided for us in the deliberation room. No cell phone or tablet or any other device that can communicate with the outside world is allowed.
Rules and law piled on law and rules. This process did not just spring into being. I know it is flawed, but I sure as hell cannot think of a better way. Some minor tweak here or there, perhaps. The process has grown out of centuries of trial and error. Cracks must exist, but they are difficult to spot. We select a foreperson, the liaison between the court and us. The bailiff leads us back into the courtroom. We take our seats in the jury box.
Opening arguments begin with each attorney putting forward their slick and polished view of the events. A traffic accident is in dispute. The Defendant and then the Plaintiff are sworn in and express their views, each cross examined by the opposition. Exhibits are entered into the case. The court reporter, her face buried in her transcription mask, records every word. She numbers and marks every exhibit. She controls the pace. If an attorney moves too quickly, not allowing her to number and label an exhibit before he begins speaking, she will have him put on the brakes until she is ready. More important rules and regulations necessary to insure a proper record exists of this private matter resolved with public funds. A complicated and demanding task with which I have some personal knowledge. Respect the reporter. It is a difficult job.
Contradictions are highlighted. Both parties have done something wrong. Both parties have reversed themselves at some point. Both parties said one thing in deposition months earlier and something else now. Both parties have done something before or after the moment in question, which seem to the attorneys to have some bearing on the matter. A break is called and we file back to the deliberation room.
Our private sanctum is a very solemn, quiet place. On occasion, a few of us crack a joke or make some soft statement about job or family, but even these are clipped short for fear of stepping over the boundaries of deliberation.
The bailiff comes for us, and back into the courtroom we march, single file, pouring ourselves into the jury box. More discussion, more debate. Everything has a spin. Twelve-thousand dollars hangs in the balance. Someone will win and someone will lose. I do not know about you, but if I had to come up with twelve-grand, my life would change for many years to come. If I had already been committed to that sum with the hope to recover it and that recovery did not materialize, again my life would be turned upside down for a long time. It may not be life and death, but it is a big deal to both of these people. Someone was going to lose, and we bore the burden of deciding whom.
Lunch break is called. Again we file out, lemmings on the march. We find spaces in the deliberation room. The bailiff gives us more instructions. Talk to no one. Keep your badge on. Do not use any public restrooms in the building. Do not do any research outside of the courthouse. Avoid the internet. Eat wisely, there is a fine for falling asleep in court. Be back early. Use a special entrance. He would be waiting for us.
We are all back in our segregated room by the appointed time. Some seem to have not considered the glucose in their meals. In the somber quiet, as we wait for court to be called to order, heads begin to droop, perhaps from the food, perhaps from the burden. The bailiff arrives and leads us back in.
An expert witness gives their testimony, with objections, overrules, and sustains. I wondered what the function was. I knew what we were charged to do. How did this information pertain? Still we listen. It may have some bearing at some point.
Both sides rest their case. Closing arguments begin. This is the last chance for each side to slant the spin to win us to their cause. A prickly point is raised. Suddenly, as with a knee-jerk response, we are ushered out of the courtroom while the Judge and attorneys go into sidebar. The bailiff leads us back to the box after a short moment, the final statements resume.
The Judge then reads us the considerations and conditions of the law. So long and detailed, even the Judge runs out of wind and throat. He coughs and resumes. He explains the verdict form, filled with more instructions, and with very precise questions. If you answer “Yes” to question 1, you must move on to question 2. If you answer “Yes” to 2, you must move on to 3, and so forth, at times jumping questions. It is possible to split blame, assigning some amount of responsibility to each party. This was the reason for the expert. If we, the jury, got so deep in the verdict form, we might begin to divvy the burden. Talk about splitting hairs.
All the rules, regulations, and law, and we could not take notes. You may not have faith in the system. Everyone says it is not perfect, even judges and attorneys. However, a clear attempt has been made to look under every rock and around every potential corner. We had to cram all these things heard for the first time in our lives into our minds and memories to carry back with us to the deliberation room.
The bailiff ushers us back to our isolation booth. The alternate is allowed to leave. For the first time we can really talk. For the first time we get to examine the exhibits, pictures, reports, and bills. Human emotion comes to play. Why did the defendant do those stupid things after the accident? We are not here to judge their youth or stupidity. We are here to judge the truth of a single moment before they acted stupid. How could the plaintiff not see under these conditions? We are not here to judge what happened before the moment. We are here to judge the intentions of the parties at this one moment in time. Can we use our own knowledge of the terrain? Yes, the Judge said as much. The system is based on the common knowledge and common sense of twelve. We did not check our common sense at the door.
The foreperson wondered what the accident report said. It is not in the evidence. Can we ask for it? Well, we can ask. A note is handed to the bailiff. He leads us to the courtroom. The Judge reminds us we can use only what was presented. If it was not presented, it cannot be used. We march back to our sequestered space. I jokingly say, “Like a giant centipede.” Everyone laughs. The bailiff chides us about talking in court as he closes the door.
We are there to determine the balance of the justice scales. Are they level or do they tip one way or the other? We can use only what was presented. Both parties told lies or contradicted themselves, as well as each other. Both attorneys toyed with emotional considerations that had no bearing on the moment to be judged, yet crept into the hearts and minds of the deciders. I wondered at my own emotions and conflicts. It is not easy to dispatch your own bias. Look at the pictures. Ask questions. In the end, it is an assumption to some degree. None of us had seen the moment. The testimonies presented the moment in each person’s favor, a condition that cannot be. Human error is abundantly evident. Someone will lose, and will lose because we bore the burden of choosing whom.
We made our choice. It was the splitting of a hair, but the hair had to be split. The bailiff is informed. We march back into court. Foreperson, have you reached a verdict? Yes, your Honor. Please hand it to the bailiff.
It does not matter which way this case went, for the Plaintiff or the Defendant. You do not need to know that. What you do need to know, or at least examine, is that the process, while riddled with flaws, is rather thick and quite burdensome. Even simple matters like car wrecks will weigh on the mind of not just the parties, or their attorneys, but the twelve ordinary citizens plucked out of their daily lives to decide someone’s fate. Rules and regulations are piled, layer upon layer, in a clumsy attempt to make it fair and make it safe. It is not perfect. Nothing is. Have you reached a verdict?