Through the first half (36 years) of my life, before I became a lawyer, I was never called for jury duty. In the half since becoming one, I’ve been summoned for that civic duty four times. In all four instances I was excused by judges — even though I didn’t ask to be, and in fact, requested not to be — simply for being a lawyer.
Apparently judges believe being a lawyer precludes one from being a “fair and impartial juror”. What a sad commentary on my profession. If we can’t preform that civic duty properly, who can?
First, a (very) brief history of the current American jury system – which we inherited from England via our time as colonies. There is dispute among legal scholars as to the exact details of the evolution of juries from medieval times, so what follows is my rendition based on the most reliable sources I’ve read.
The idea of the community deciding the guilt of an accused dates to antiquity. A “jury” of 500 Athenian citizens condemned Socrates to death for his anti-government sentiments — of which he laughingly admitted guilt. They wanted to just banish him, but he preferred death to banishment and asked to be condemned to death. They obliged.
The Romans didn’t use juries — unless you consider the fans in the Colosseum rendering a verdict by a show (like modern social media) of thumbs up or down to be a jury. But the Romans did formalize the concept of an accused being considered innocent until the government proved otherwise.
Jump ahead to Saxon England which was primarily blending of descendants of Nordic and Germanic tribes, both of which had a history of an accused being judged by the community. So by the time of the Norman conquest in 1066, the idea of villagers deciding such matters was ingrained in the culture.
William the Conqueror took it a step further. The Norman legal system was based on Salic law, which seems to have it’s roots in both Roman and Germanic legal traditions. So the idea of members of a local community deciding local legal matters was familiar to them.
One of the first issues William had to deal with was to figure out who, among the Saxons, owned what — so he knew who owed him taxes (“No matter what politicians are talking about, they are really talking about money!”). The best way to learn that was to ask the owners themselves, but since tax-evasion is a time-honored tradition the chances of getting straight answers was “complicated”.
So William dispatched his judges throughout England to compile the “Domesday Book” of who owned what. To sort it out, the judges convened “juries” of 12 prominent local citizens to decide disputes about ownership and boundaries. Thus introduced the idea of locals deciding local issues into the formal Norman-England legal system.
Over the next century and a half there was a constant tension between the King and the nobles
about, among other things, who got to dispense justice at the local level – the courts administered by the local magnate, or the courts administered by the central government under the King. William’s great-great grandson Henry II (of “Lion in Winter” movie fame) was able to solidify royal power over the nobles. His courts became pre-eminent, in that a local villager who didn’t like the brand of justice he got from the local lord could appeal to “the King’s justice”, which pre-empted the lord.
As to be expected, the nobility didn’t think much of that arrangement, nor of the taxes imposed by Henry’s son John to fight wars in France. So they “invited” King John to meet them on the “windswept fields of Runnymeade”, and made him a offer he couldn’t refuse to sign Magna Carta. For purposes of this discussion, there are three relevant provision of that “Great Charter”.
Section 18, requires local disputes to be decided locally, not in some far-off royal court; Section 20, requires that no fine of penalty can be imposed on a “freeman” or “villein” (villager) except “by honest men of the neighborhood”; and Section 39, requires judgement by “peers” before any “freeman” can be convicted. So the principle of “juror” became enshrined in the organic charter of England.
But who should be a “juror” was markedly different then than now in one fundamental aspect. The original concept of a “juror” was one who lived in the community, who was familiar with the litigants, or accused, the witnesses, and quite often the facts of the case. They would, presumably, know the truth and thereby render a “just” verdict.
Contrast that with out contemporary American jury system. No one having knowledge of litigants, an accused, or the facts of the case — or a modicum of legal training — is deemed to be “fair and impartial” so as to be able to sit on a jury. In cases where there has been pervasive pre-trial media coverage, extensive time is taken during jury selection to weed out those who can not “set aside” whatever “pre-conceived opinions” they may have formed because of the publicity.
During the trial, intricate rules dictate what evidence the jurors are allowed to consider in rendering their verdict. Finally, before they are sent out to deliberate they are “instructed” by the judge as to the relevant law they must follow in reaching a verdict. They are instructed to “disregard” any evidence other than what was presented in court, and to follow the law “even if they don’t like it.”
Our entire justice system is based on the presumption that a randomly selected group of lay citizens, selected for what they don’t know, will comply with the judge’s “instructions” about what to consider and what to ignore. A cynic would say the American system of jurisprudence is predicated on the assumption that twelve times zero equals justice!
Yet lawyers trained in and cognizant of the law are not considered worthy of trust to be “fair and impartial” — by members of our own profession!
I reject both the “twelve times zero” premise — and that lawyer jurors are per se anathema to a just verdict.
As to the first, I’ve always preferred smart jurors for the very reason that they are capable of following a judge’s instructions. As a prosecutor I know that if the facts support conviction, the jury will convict if they follow the law. The job of the prosecution is to show jurors how the facts prove a crime has been committed – and that the defendant is the one who done it. (If the facts don’t support conviction, the case should not be prosecuted to begin with!)
Early in my career I attended a national training seminar for young prosecutors, during which a “renowned” law professor made the rather insulting assertion that “there are no rocket scientists on juries”, so we have to learn to “simplify” the evidence for them. I pointed out to him that in my jurisdiction — wherein is located the Kennedy Space Center — we sometimes DO have rocket scientists on our juries! I didn’t waste my time paying attention to anything else he said.
Like Toto pulling back the curtain to reveal the man behind the great and powerful Oz, I’m going to tell you why some lawyers don’t want lawyers on either criminal or civil (lawsuit) juries… because we know when they are trying to obfuscate the facts with tricks, or trying to get us to decide a verdict based on emotions rather than the law. That revelation is not going to make me very popular with some of my colleagues — but, to quote Prince Hamlet, “The lady doth protest too much, methinks!”
But why judges are so quick to dismiss lawyers as potential jurors baffles me. I asked a judge why he preemptively excused me before I could even be questioned by the attorneys in the case. He said he was concerned I may respond to a question with an answer that could “taint” the rest of the jury panel. I was at a loss to know what that would be — nor could he give me an example.
Another judge who excused me said though he was sure I could be fair and impartial deciding a verdict, he was concerned that other jurors would defer to me rather than to base their verdict on their own independent evaluation of the evidence. When I told him the only way I’d express my legal expertise during deliberations would be if a juror was failing to follow the “instructions” by ignoring the law or considering facts not in evidence. He said he hadn’t considered that.
From an intellectual, and professional, curiosity perspective I would like to serve on a jury. Maybe, now that I’m retired, I won’t be considered a leper in that regard — but I don’t hold out much hope that any lawyer will let it happen. That’s unfortunate.
As a late retired judge told me after he was excused from jury selection, by another judge, without requesting so, “If we, as lawyers, aren’t considered fit by our peers to serve as jurors, is it any wonder the public holds us in such low esteem!”