smackshack: a crude digital self-portrait (Default)
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Last Monday I served on a jury for the first time. It was for a class C misdemeanor, driving with an expired inspection sticker. It's not the sort of thing that normally gets a trial, but in Texas in this situation you have the right to demand a trial by jury. That's what the defendant wanted, and it's what he got.

That's the only thing the defendant got. I, by contrast, enjoyed an interesting afternoon wherein I learned a few things.

Only a fool... I forget the exact quote, but it goes something like this: "Only a fool has himself as a client." Or maybe it's "Only a fool has himself as a lawyer." Either way, the defendant represented himself, and he did it poorly. It turns out you probably can't learn enough law on the Internet to achieve a jury nullification in traffic court.

"But what if I'm really a lawyer, and really smart?" you might ask. If I'd never sat as a juror, I'd sympathize with you. But now it seems to me that the business of managing a defense and the business of being innocent of a charge are two very different things, and doing the first is very likely to undermine the credibility of the second unless your position—and your tone, and your style, and your appearance—are all so dramatically righteous that they completely destroy the credibility of the prosecution by comparison. I suspect that outside of a TV show, this is unlikely to be the case.

Stick it to The Man, man. Just from reading the news, I carry enough active resentment towards the government that even when the defendant was badly mangling his own defense, I found myself wanting to root for him. Who doesn't cheer for the underdog? The barely contained exasperation and amusement of the judge and the prosecutor (expressed by the facial expressions but generally not the words) was enough to make me want to see this guy beat the system and Stick It To The Man. Not that the state was unprofessional, not at all, but it's precisely the machine-like professionalism of a system designed to implement control that makes you instinctively want to beat it.

But what if I'm The Man? On the other hand, I also believe that a regime of regular automotive inspections designed to encourage preventive maintenance are probably a worthwhile use of the law (exciting, eh?) and in this case the defendant appeared to be acting from a point of view of pure self-entitlement. One of his arguments was, "It's a victimless crime so it shouldn't even be on the books," or something to that effect. Everyone in the jury felt otherwise: the defendant was neglecting his role in a shared duty to his fellow citizens to help keep everyone safe on the road. Where he saw a victimless crime, we saw an antisocial act of endangerment.

Mercy? Vengeance? Justice? In spite of that, I didn't want to fine the defendant the maximum amount. A possibly misguided sense of compassion, or maybe that lingering distrust of the state, or maybe my desire to boost the underdog, made me want to moderate the penalty. The rest of the jurors wanted the maximum fine.

Now, during the voir dire phase of the trial, one of the topics discussed was whether the potential jurors thought the trial itself was a waste of time due to the minor nature of the offense, and whether they could bracket off this opinion and be impartial when deciding a verdict and sentence. Lots of people thought it was a waste of time,* but nobody regarded themselves as being incapable of impartiality.

Nevertheless, when it came time to discuss the verdict and sentence the first reason offered for the maximum fine was a complaint about the time and money wasted on the trial itself, with most jurors nodding in agreement. I resisted: "The defendant has a right to a trial by jury. We shouldn't punish him just for exercising his's the principle of the thing." 

To me this seemed like an important thing to say, though I don't know if it made an impression. So this section is really about: beware the juror. There's a lot of popular lore about how lawyers will use voir dire to try to get a jury of people credulous enough to believe whatever case they're going to make, but it's clearly not as simple as that. Potential jurors, I think, are probably pretty bad at assessing their own fitness to serve, and even if you're cynical about the lawyers, we potential jurors should raise an eyebrow at ourselves as well.

(And if you're defending yourself? The jury isn't just going to judge you based on the merits of the case, they're also going to judge what they think of your character based on your behavior in the courtroom. Playing the lawyer means the jury will judge you not just as a defendant, but as a lawyer. Talk about double jeopardy!)

Anyway...the second reason expressed for levying the maximum fine was that the guy had gone for five months with an overdue inspection, and his attempt to get a jury nullification implied that he still seemed to think the law didn't apply to him. I found that I couldn't argue with that, so I quickly relented and agreed to the maximum penalty of $200.

Jury nullification and voir dire. The idea of a jury nullification—that is, a jury committing what's basically an act of civil disobedience by refusing to rule according to the law as presented by the court, presumably on the grounds that the law or the court itself is clearly unjust—is understandably appealing to a defendant who knows the facts are against him. But if you're hoping the jury will join you in an act of civil disobedience, you'd better make damned sure you don't insult the potential jurors during the voir dire. Alas this is exactly what our defendant did: he asked nearly everyone where they worked, clearly implying out loud that if they or their employers worked for or received funding from the state in any way, then they couldn't be trusted to render an impartial verdict. In a municipal court of the state's capital city and administrative center, this is arguably a poor tactic to employ.

From the state's point of view, the voir dire is clearly an opportunity to weed out the kind of person likely to gum up the works by using jury service as a way to protest the law. If the law at stake is one you think is genuinely unjust, then to get on the jury you're going to have to testify to your willingness to abide by the law anyway, and if you clearly lie during voir dire, you could be charged with perjury.

Some people think it's your moral and social duty as a juror to aim for a jury nullification if you're being asked to decide a case where you believe the law or its administration to be unjust, and thus it's your duty to lie if necessary to try to get on the jury so that you'll have an opportunity to go for nullification. I'm undecided on the issue. I know that if we'd been trying a man for possessing a bit of pot, for example, instead of failing to get his car inspected, I'd have been very uneasy with the idea of enforcing such a law. When I was asked if I could impose the maximum penalty for owning a bit of pot—a crime I really do think is victimless and which shouldn't be on the books—I'd have probably had to stand up and say "No" in order not to commit perjury, and I almost certainly would have been stricken from the jury.

Would I have felt that I'd done my duty, telling the truth under oath, or would I have felt ashamed for failing using that opportunity to fight for a larger justice? Or is it more complicated than that: my duty is to tell the truth under oath, and then spend a lot more time outside the courtroom fighting for that more just society I'd like to live in? In most cases I suspect the latter perspective is more sound.

He fought the law, and the law won. Some people just don't know when to quit. After the verdict had been read and we filed out of the courtroom, the defendant continued to urge us all to look up the law on the Internet and learn for ourselves that the entire system was unjust: the court didn't have jurisdiction, the law only applied to commercial vehicles, etc. And his wife scolded us for stealing food from the table of their new infant.

It seems to me that if the defendant had plead guilty—he never contested the facts of the charge, just the court's right to bring the charge—and begged for mercy in terms of the amount of the fine, which could have been as low as $1, he might have succeeded. Goodness knows that money is very tight for a whole lot of people right now, and I think a lot of people would have been inclined to go easy if he had argued financial need.

But I don't think financial need was really the issue. The defendant was a bright young guy** who seemed to have a big ego and a bigger chip on his shoulder. He's not likely to have a career as a lawyer, but he might have a future as a leader in the Tea Party.

Leviathan. The lingering sense of power and obligation haunts me a bit. It's not like voting: when you vote for a candidate you know you don't know what's going to happen. You know you're voting for what you hope will be the best outcome under the circumstances, but you also know that you're simultaneously surrendering some power to another person who has to make the ultimate decisions.

But when serving on a jury you know the immediate consequences for innocence and guilt, you know the person in jeopardy, and you know the scope of the penalties at stake. And even if the process can be fascinating—even enjoyable—to participate in, there's something unsettling about being part of the system of punishment. And then there's the fact that the whole time you're there, you're aware that all this awesome legal machinery could easily be focused on you one day, and suddenly...well, "thus conscience does make cowards of us all."

I don't use "system of justice" because that's clearly not what we have. We haven't built a mechanism designed to ascertain the most accurate, most just result. We've designed a mechanism for rewarding judges, prosecutors, and police officers in exchange for levying fines and putting people in jail, and this mechanism is designed in turn to sell the participants a story about how the choices they're allowed to make from a limited set of predetermined options add up to justice. The relative justice of the mechanism, then, is entirely dependent on the laws the get passed in the legislative sphere, on whether the defense has good representation, and on whether the jury happens to be composed of competent and responsible people. And for most people these factors are entirely out of their control. 

In this system becoming a juror feels very much like being fitted as a cog to a machine. In a way that's arguably good because trials shouldn't be allowed to go willy nilly. But it emphasizes the amount of power, the amount of liberty, we sacrifice as citizens if we fail to vote intelligently and fail to be activists for what we believe in. Once you're in the courtroom it's far to late to complain: Leviathan is in control.

* I did not regard the trial as a waste of time, before or after. If you're going to aim for an idea of justice, then it can't be all about the size of the penalty at stake. Especially if you operate in a system that claims a defendant is innocent until proven guilty, a jury trial is the only time outside the electoral process that the state itself—the police and the prosecutor and even the judge—are held accountable to the people governed, even if that accountability is heavily circumscribed by procedures that favor the state. The value of this principle, it seems to me, vastly outweighs the expense of trying even a small case like this one.

** Was he really a "bright young guy?" Or just a persistent narcissist with an Internet connection? 
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smackshack: a crude digital self-portrait (Default)

June 2012


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