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Is jury duty a trolley type problem? What should one do?

February 2, 2014

Once again I've been called in for Jury Duty.

It's nearly a priori that they won't impanel me for death penalty or war-on-drugs type cases, since I'm up front about exercising my right to jury nullify in the case of unjust laws or state sanctioned murder.*

But I have no idea what to do with respect to someone who has both broken a just law and who should not be on the streets.

How can anyone in good conscience send another human being to an American prison?

But as a juror the only choice they give you is sending the person to prison or releasing them. And many people are too predatory to be allowed to operate in normal society.

I've got two weeks until I have to go in. Any advice about from people agree with me that this is a genuine dilemma** and/or have some experience negotiating the system would be greatly appreciated.

[*From the other time I got called in, if you tell the lawyers, judges, etc. that your opposition is religiously based, they will leave you alone, but if you try to engage them in rational dispute, they'll get pretty angry and the prosecutor will probably mislead you about what constitutes jury misconduct.

**If you don't see it as a dilemma, you could do much worse than spending this Sunday evening listening to the sermon from which the above video is excerpted. Go here and click on the little green box with the white arrow in it. I hate to contribute to what Roger Ailes' yes-people call the wussification of America, but I do prefer this kind of thing to watching people give one another brain injuries.]

Posted in #ows; Occupy Everything, anti-fascism, Capital punishment, solitary confinement, and the prison-industrial complex, Jon Cogburn

7 responses to “Is jury duty a trolley type problem? What should one do?”

Ted Levy

February 3, 2014

My advice is not on point to your question, but regards your being up front about your jury nullification beliefs. If you truly believe in the moral value of jury nullification, you are wrong to be upfront about it. That may make you feel morally superior but it helps no one being unjustly persecuted by the State. You have the potential ability to seriously aid a fellow citizen whose rights are being violated if you simply remain mute about your beliefs and subsequently ACT upon them. To tell the truth in this context makes as much sense as truthfully telling a thief holding you up at gunpoint that you’ve got an extra C note in your shoe.

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Mark Lance

February 3, 2014

Agree with ted.
In addition, i think you should serve. If there was a widespread and organized campaign of refusing jury duty as opposition to the prison system, that would be very different. Without that, you arent even a symbol, and not going just means that someone else – likely stupider and with less conscience – will be empaneled, so you make the best of it, muddling through with no good alternatives. If someone is a real danger to their neighhborhood – say truly violent or a white collar criminal – I would vote to convict. If they are nonviolent, not otherwise a threat of real harm, I would nullify.

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Different Mark

February 3, 2014

I suspect that Jon is not ‘up front’ in the sense of volunteering it out of the blue, but ‘up front’ in the sense of not telling lies when asked during voir dire about whether he could convict in those circumstances. It is possible that Jon does not aim to be a liar, especially a liar under oath. (I also suspect that Jon would not be willing to swear an oath that he did not have an extra C note in his shoe, so it may be that there is a relevant difference between the cases.)

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Jon Cogburn

February 3, 2014

Yeah, in Baton Rouge they make you fill out a long form with all sorts of questions about your opinions. Then if you get through that hoop you do have to answer these kinds of questions in front of the judge. The defense lawyer isn’t legally allowed to tell you about your constitutional right to jury nullify, and the prosecutor is allowed a wide latitude to engage in misconduct vis a vis jury bullying.
Answering the prosecutor honestly got me disempaneled from a death penalty case a few years ago.
I suspect Mark #1 is right and muddling through is the only option. Cue Sartre.

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Matt

February 3, 2014

One thing to consider is that it can be very useful to have someone on a jury who has given or can give some serious though to what “beyond a reasonable doubt” means, and that it is (and has to be) a much higher standard than “more likely than not”. When you consider than about 90% of criminal cases never go to a jury, there should be a strong presumption (beyond the presumption of innocence) that the standard isn’t going to be met. I’m sure that having someone on the jury who can explain and understand the standard would be a useful corrective.()
() This might be less clear than I’m suggesting, depending on how one things the jury is supposed to work, especially in light of the Condorcet jury theorem. As far as I can tell, there isn’t really a rule on this. The question would be, is each person supposed to think the case has been proven “beyond a reasonable doubt”, or is that supposed to be the outcome of the process, where each person votes yes or no on a “more likely than not” standard? With some assumptions, the second should, by the jury theorem, get the right answer, though in fact those assumptions often won’t hold. (i.e., if people are fed misleading evidence by the prosecution, unreasonably gives credence to the prosecution, etc.- things we know happen, among others.) But, if each person is supposed to think the case has been proven “beyond a reasonable doubt”, it should be a very high burden. I can say with confidence, however, that this often doesn’t seem to be the outcome, suggesting people are often not applying the right standard.

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Mark Lance

February 3, 2014

Yes, Matt’s point is a good one. On this and many other issues, much of the injustice in our system arises because folks without top-shelf lawyers routinely are not given the consideration they are due by law. A smart juror can help with that.
As for lying, I am not advocating lying to a judge. But I do think one should consider carefully answering the question as posed. I’ve been asked, for example, do you oppose the death penalty in all cases on principle. I am willing to honestly say ‘no’ to that, though the chances of me being on a trial in which I would support the death penalty are virtually zero. Same if a question came up of whether I would convict someone of a drug offense. (I’d convict Oliver North.) Now if they ask something like “Do you believe that drugs should be illegal, I’d have to say ‘no’, because I straightforwardly believe it and because I have publicly argued this. (Like Ted, I dont think one has a duty to speak truth to the state. It is precisely like a situation in which one has a gun to one’s head. But one has prudential duties.) So one might be disqualified depending on how this all goes. But if not, I think we should participate and try to do our best to mitigate the harms of an evil system.

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Allan Olley

February 9, 2014

Just to be clear looking at the 2010 stats (not sure they are the right ones but this is what I looked at) it looks like about 80% of juries convict, further 81% of convictions result in a prison sentence, so this suggests about a 64% chance of the case you might be called for leading both to a conviction and jail time. It is unclear whether the prison sentencing statistic includes ones where the sentence is “time already served”, if it is then those cases also result in no prison time that the jury has any control over.
Also there are other factors, you might only be selected as an alternate juror and so never actually sit in judgement and so on (I think that happens).
So at least in 36% of cases you would avoid the crisis of conscience mentioned. I have no idea if this is relevant to your pre-pre-deliberations deliberations, but I hope it is of some use.
I would think the larger problem is that you live and participate in a country that has a large institution you find morally insupportable (probably more than one).

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