Sunday, June 30, 2013
This post is my third and final reflection on my recent experience of a voir dire during a term of jury service in Orleans Parish Criminal Court. During a voir dire, potential jurors are questioned to determine who will be the best jurors for the particular trial. Although the judge and attorneys at this particular voir dire were polite and friendly with us potential jurors, I still found aspects of the system to be disturbing. This post will focus on the responsibility of jurors.
What exactly IS the responsibility of jurors?
THE VIEW OF THE JUDGE AT THIS VOIR DIRE
According to the judge at the voir dire in which I participated, jurors are judges only of the FACTS. Jurors are to set aside any consideration of whether the law in question is a fair law or not or whether the sentence (if the defendant should be found guilty) will be a reasonable one or not. The jurors must simply consider the facts by answering this question: Has the evidence presented by the prosecution proved to me, beyond a reasonable doubt, that the defendant did the actions of which he or she is accused? If the answer is yes, the jury is to bring a verdict of guilty; if not, a verdict of not guilty
The case under consideration for this particular voir dire involved a charge of possessing cocaine two years ago in an amount between 28 and 200 grams. Therefore, the jury would be asked to determine whether or not we were convinced beyond a reasonable doubt by the prosecution's evidence that (1) the defendant possessed something on the date in question, (2) the something possessed was cocaine, and (3) the amount of cocaine possessed was between 28 and 200 grams. If yes--guilty. If no--not guilty.
Our feelings and beliefs about whether or not cocaine should be a legal or an illegal drug or what sentence would likely be given if the defendant should be found guilty were not to enter into our deliberations. We were only to judge the FACTS. The law was the province of the legislature, and any sentence was the province of the judge. The province of the jury was limited to the facts.
MY CONCERN: THE POSSIBILITY OF A PRISON SENTENCE IN THE CASE OF A GUILTY VERDICT
I had some serious concerns about the possibility of a prison sentence in the case of a guilty verdict, which I expressed to the judge when I was questioned during the voir dire. Consequently, I was not chosen for the jury.
I strongly suspected that the sentence for possession of between 28 and 200 grams of cocaine would include time in prison, probably the infamous Orleans Parish Prison (the O.P.P). Sending a person to the O.P.P is like sending that person to criminal school. I find this an unreasonable punishment for someone convicted of cocaine possession in this amount. The charge did not include any violent offense and was two years old. In no way did I want to see someone sent to prison, and definitely not the O.P.P., simply for possessing cocaine two years ago.
If the prosecuting attorney were to prove to me beyond a reasonable doubt that the defendant did indeed possess between 28 and 200 grams of cocaine two years ago, I (as a juror) would (according to the judge) be obliged to find the defendant guilty, even though this would lead to (for me) the unacceptable sentence of a prison term in the O.P.P.
And I have since found that my suspicions about the sentence were right. The La-Legal.com website, on its "Louisiana Cocaine Laws" page states:
Any person who knowingly or intentionally possesses twenty-eight grams or more, but less than two hundred grams, of cocaine or of a mixture or substance containing a detectable amount of cocaine or of its analogues as provided in Schedule II(A)(4) of R.S. 40:964, shall be sentenced to serve a term of imprisonment at hard labor of not less than five years, nor more than thirty years, and to pay a fine of not less than fifty thousand dollars, nor more than one hundred fifty thousand dollars.
Thus, I was correct. In fact, a prison sentence of between 5 and 30 years at hard labor is MANDATED for possession of between 28 and 200 grams of cocaine. I believe that a far more effective sentence for this non-violent offense would be some combination of community service, participation in a drug rehabilitation program, and fine.
Even though the judge had explained that the jury is in no way responsible for sending someone to prison--the sentence being the province of the judge and not the jury--I disagree with this chopping up of responsibilities. If I bring a verdict of guilty for a non-violent drug-possession charge, knowing that the sentence will likely or definitely be a term in prison, then I have most certainly participated in sending someone to prison.
So, again, what exactly IS the responsibility of jurors?
A BROADER VIEW
There exists a broader view of juror responsibility--the view said to have been held by the authors of the Constitution of the United States and of the Bill of Rights. This view is presented on the homepage of the Fully Informed Jury Association website:
The primary function of the independent juror is not, as many think, to dispense punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuses of power by government. The Constitution guarantees you the right to trial by jury. This means that government must bring its case before a jury of The People if government wants to deprive any person of life, liberty, or property. Jurors can say no to government tyranny by refusing to convict.
I believe that we do see government tyranny today when people are charged with crimes for engaging in civil disobedience to protest government injustice. I believe that we see government unreasonableness when people are sentenced to prison for non-violent offenses like drug possession.
The Fully Informed Jury Association explains that it is the responsibility of jurors to exercise their conscience and their judgment beyond the bare facts. Jurors are to be judges, not only of the facts, but also of the law (Is the law a just law?), the sentence (Will the defendant, if found guilty, receive a reasonable sentence?) and any mitigating circumstances (Even if guilty according to the facts, are there mitigating circumstances that lessen or eliminate guilt?). A jury may find a defendant not guilty by virtue of the fact that the law has been found unjust, or the defendant undeserving of the mandated sentence, or the mitigating circumstances sufficient to lessen or eliminate the defendant's guilt.
This seems to me to be the correct understanding of the jurors' responsibility. It is certainly preferable to the narrow understanding promoted by the judge at the voir dire in which I participated. The judge was, in effect, asking us to put aside our consciences and to decide guilty or not guilty solely on the basis of bare facts, regardless of the law's rightness, the sentence's reasonableness, or any mitigating circumstances. I believe that I, as a juror, have the responsibility to refuse to convict in a case of a non-violent drug-possession with an unreasonable mandated prison sentence, in a case of civil disobedience to protest government injustice, in a pre-Civil War case of refusal to return an escaped slave to his or her southern "owner."
I believe that it is extremely important for jurors to use their consciences and their judgment far beyond the bare facts of the case. That a judge would not so instruct the jurors is, to me, highly disturbing.
This post continues my reflections on jury service, based on my recent experience as a potential juror in a voir dire in Orleans Parish Criminal Court. Although I felt that we jurors were treated in a respectful and friendly way by the individuals with whom we interacted at the courthouse, I also noticed that the system itself has several disturbing elements. My previous post focused on the prohibition against juror note-taking. This post will focus on late hours.
I was disturbed to find that jury service in Orleans Parish Criminal Court may require hours that are (to my mind) unreasonable. Jury service may require hours that go well into the evening or even well into the night. No one goes home until dismissed by the judge, and the judge may decide to keep going, even though it may be past 10 p.m.
Although I myself was not subjected to late hours during my recent jury service (the latest I was at the courthouse was 3 p.m.), others were subjected to late hours. I find this disturbing, and especially so since the preliminary information one receives from the Orleans Parish Criminal Court about one's coming jury service says NOTHING about the possibility of these late hours. Potential jurors can show up for jury service expecting the day to end by 5 p.m. and find that they are not dismissed until much later. This can pose a serious problem for single parents or for anyone with responsibility for others' care.
Although I am not responsible for the care of others, I see two difficulties for myself with these late hours. First, I am very much a morning lark--not a night owl. The later it gets, the less well I function. If I were expected to deliberate as a juror at 10 p.m., I assure you that the quality of my deliberations would be greatly diminished by fatigue. I find it unreasonable to expect quality work from jurors at such a late hour.
Second, Orleans Parish Criminal Court is located in a dangerous neighborhood. I would have safety concerns about walking back to my car after dark, especially at such a late hour as 10 p.m. or 11 p.m. This concern in the back of my mind would very likely affect the quality of my deliberation. Of course, one can walk to the parking lot together with a number of other jurors and an accompanying deputy, but still, there is the drive through the dangerous neighborhood to get home. Also, not everyone has someone waiting at home to insure that they arrive safely or that a search is conducted immediately if they don't. For some, if they don't make it home safely, this won't be discovered until they don't show up for work the next day--or even later, if they are retired or don't work.
I believe that jurors' days should end at a reasonable hour, such as 5 p.m. Going later into the evening should be a rare occurrence, and going into the night simply shouldn't happen at all. Most important, jurors should be TOLD, in the preliminary jury service information, about the possibility of late hours.
My previous post provided information about jury service, based on my recent experience as a potential juror at a voir dire in Orleans Parish Criminal Court. During a voir dire, the judge and attorneys explain the case to be tried and question the jurors so that they can choose the best ones for the particular trial. While I found the judge and the attorneys to be polite and friendly with us, I was nonetheless disturbed by some aspects of the system.
This post will begin a deeper reflection on those disturbing aspects, beginning with the fact that Louisiana law does not allow jurors to take notes.
In Louisiana, jurors may not take notes but must rely on their memories. I find this disturbing. It might be okay for a trial that lasts just a few hours, but some trials go on for days or weeks or even months. Even in a trial of a few hours, though, I believe that notes would greatly improve the effectiveness of the jurors. Here are my own reasons why.
FOCUS. First, taking notes helps tremendously in focusing my attention. If I have to listen for an extended period of time, my mind is apt to wander. Note-taking prevents this.
VISUAL BIAS. Second, I am a very visual person, so seeing something written down, especially if I have written it myself, helps me tremendously in remembering. I remember far more readily what I have seen in print than what I have only heard spoken. When I used to take tests in school, I would often remember the correct answer by visualizing it printed on the page of my textbook or written in my notebook. I would see, for example, a mental image of the correct answer printed in the last paragraph of page 42. Also, when I would memorize piano music, I would actually memorize the printed score; as I played a piece from memory, I was actually reading the score in my mind.
RELIANCE ON NOTES IN DAILY LIFE. Third, my memory is not as good as it was when I was younger, and I find that, in my life in general, I rely more and more on notes. If I want to remember something, it is important for me to write it down.
STRAIN, RESENTMENT, INDIFFERENCE. Fourth, not being allowed to take notes in something as important as serving on a jury would probably have a negative effect on me that would unfold like this. I would be apt to strain very hard to remember what was being said because remembering what unfolds in the trial is so important to the fate of the person on trial and to society in general. That is, it would be horrid to find an innocent person guilty and subject that person to undeserved punishment, and it would also be horrid to find a guilty person not guilty and subject society to the presence of a dangerous individual. So I would work very hard to remember, and this would be mentally and emotionally exhausting. This exhaustion would lead me to resent the system that required me to work so hard to remember when it would be so much easier if I were simply allowed to take notes. This resentment could have some unconscious effect on my perception of the trial. Alternately, I might find the process of remembering without notes to be simply too much and so decide not to try so hard to remember. My attitude in this alternative scenario would be, "Well, if they don't consider a trial to be an important enough occasion for note-taking, why should I strain to remember?" I would just sit back, listen passively, and whatever I remembered, I would remember, and whatever I didn't remember, I wouldn't remember. None of this is conducive to good juror-ship.
I understand that the prohibition against juror note-taking used to be much more widespread, but that now many states allow jurors to take notes. Louisiana, however, does not. One reason given is that note-taking prevents jurors from observing the facial expressions, gestures, and body language of witnesses. Well, an experienced note-taker like myself can easily take notes and observe those things as well. In fact, those non-verbal communications would be an important part of my notes! Another objection to note-taking is that, during jury deliberation, jurors might tend to trust one juror's notes more than another juror's memory. Well, jurors simply need to be reminded that notes can be mistaken just as memory can be mistaken.
To my mind, the reasons in support of juror note-taking far outweigh the reasons against it. I believe that Louisiana law needs to be changed to allow jurors to take notes. When you have an important event where memory is crucial, YOU TAKE NOTES!
My next post will continue my reflections on my experience with jury service.
Saturday, June 1, 2013
Recently I had my first experience of jury service. This was in Orleans Parish Criminal Court. My schedule required me to show up for four days in a row and to wait in the jury pool until called. On Day 1, I was called for a voir dire but was not chosen for the jury. (During a voir dire, the judge and attorneys explain the case that will be tried and question the potential jurors to see which jurors would be the best ones for this particular trial.) On Days 2, 3, and 4, I simply waited in the jury pool and was dismissed about mid-day. On Day 2, I ran into a colleague who had the same schedule as mine, so we passed the waiting time pleasantly by chatting.
This post will list some things to know about jury service in Orleans Parish Criminal Court. Since I was not chosen for a trial, my experience and information are limited to waiting in the jury pool and attending a voir dire. My next post will reflect more deeply on jury service itself.
INITIAL SUMMONS. I received an initial summons to appear in the jury room to receive my jury schedule. Since I teach and would have been scheduled for the middle of the academic semester, I requested a postponement. This was easily granted. I did have to show up very briefly on the scheduling day, but this could be accomplished during lunch time. I appreciated the friendly and accommodating nature of the staff in providing me with a less disruptive time for jury service.
SCHEDULE. Orleans Parish Criminal Court requires four days of jury service, usually twice a week (Monday & Wednesday or Tuesday & Thursday) for two weeks, but there is also the option (which I was given) to serve all four days in one week. Of course, if one is chosen as a juror for a trial (I wasn't), one may have to serve longer, depending on the length of the trial. In addition, one has to serve all four days. For example, if one is chosen on Monday for a trial that lasts through Wednesday, one will have completed three days of jury service and must still appear for the fourth day to wait in the jury pool.
PARKING. I received a juror parking permit in the mail to hang on my rear view mirror so that I could park for free in one of the nearby parking lots.
ENTRANCE. Entrance is MUCH quicker if one enters through the side door on South Broad Street instead of the main door on Tulane Avenue. At the main door, one will nearly always find a long line and harried guards.
WAITING ROOMS. There is a large and a small waiting room, where jurors wait to be called. The smaller room is usually designated as a quiet room, but it wasn't quiet while I was there. The larger room was actually quieter. Upon arrival, one signs in and then finds a seat and just waits.
COUNT-DOWN. There are twelve courtrooms in criminal court. In each juror waiting room, there is a screen that initially shows the number 12. As each courtroom acquires the jurors needed for the day or reaches an out-of-court settlement, the number on the screen goes down. When the number reaches 0, the jurors still in the waiting room are dismissed for the day. When this happens, a cheer goes up from the waiting jurors!
FOOD AND BEVERAGE. Food may be taken into the juror waiting room, but not beverages. Beverages (including water) cannot be taken into the building at all. There is a water dispenser where you can get free water. There are also machines where you can purchase bottled water, soft drinks, and junk food. I heard that there is a sort of cafeteria on the second floor but that the food choices aren't very healthy. It's probably best to take one's own food.
HOURS. This is important because it is not included in the preliminary information sent to potential jurors by mail. It is important to know that there is no clearcut end of the day during jury pool wait time, voir dire, or trial. Potential jurors and jurors can be required to remain at the courhouse until well into the evening or even into the night. It is NOT necessarily the case that one will be able to leave by 5 p.m.
VOIR DIRE. While waiting in the jury pool, one may be called for a voir dire. I was called for a voir dire on Day 1, along with 50 potential jurors, from whom 12 jurors and 2 alternates were to be chosen. (The alternates must attend the entire trial so that they can step in should any of the jurors become incapable.) During this voir dire, the judge and attorneys explained the case to us and questioned us to see who would be the best jurors for this particular trial. I felt that the explanation and questioning were done in a friendly way.
NOTE TAKING. I learned that jurors are not allowed to take notes during voir dire or during a trial. Jurors are required to rely on their memory. I find this odd.
JURY SERVICE VERIFICATION FOR EMPLOYER. If needed, a juror can receive a jury service verification slip to give to his or her employer. This must be requested and obtained at the end of each day of jury service.
STAFF. The staff in the juror waiting rooms were friendly and helpful.
This post has provided some information about jury service in Orleans Parish. My next post will reflect more deeply on jury service.