Not a month goes by that I don’t receive a phone call from some family member, friend, or friend of a family member, or family member of a friend, asking “What’s the best way to get out of jury service?” With about the same or similar frequency I get asked “I see that you are involved in fighting wrongful convictions. How can I get involved?” I publish this article in the hope of getting folks to see how the two questions are connected.
When I get the jury service question, I usually ask why they don’t want to sit. Inevitably, the responses are that they are too busy, too involved in work, have a vacation planned. Such callers are usually then put through a mini-lecture on my part about the importance of serving on a jury and the importance of having open-minded, well-read and justice-minded individuals sitting on a jury panel. Certainly, they can ask the jury clerk to postpone their service to a more convenient time. That request is almost universally granted so that most excuses can be put aside. These callers are usually also fans of law-related shows (which I never watch) like CSI, Law & Order, or the true crime shows like Dateline or American Crime Story. Why not sit on a real mystery instead and see how law is actually dispensed in this country? I then give them a shortened version of my jury questioning in criminal trials, a process I call “Recapture the Flag.” In picking criminal trials, prosecutors often get to wear a badge of honor as upholders of the law. They are viewed by jurors as allies of the court and law enforcement so that the jury is often left with the impression that the ADA is protecting our American way of life and all that stands between us and anarchy. Defense counsel on the other hand, is recognized as a necessary evil whose job is to get their guilty client off by any means necessary including lying, cheating and stealing. I try to shift that dynamic by usually asking the question “Why are our servicemen and women fighting abroad?” Inevitably a juror will answer “To Protect our freedoms” I follow up with “And what are those freedoms exactly?” Inevitably, a juror or two will rattle off the First Amendment freedoms – speech, exercise and non/establishment of religion, the press, assembly etc. The Second Amendment is also usually shouted out. My follow up: “What about the Sixth Amendment?” “Are our armed forces also fighting and serving to support the Fifth Amendment?” “Are those rights and freedoms any less important than the ones you mentioned” It opens up a dialogue about my role that yes of course I am representing and defending the individual on trial but I am also defending those rights as well – and so are jurors. Just like the men and women in uniform though of course at much less a cost and sacrifice, jurors protect and defend our freedoms. I have found it a very successful way to get jurors beyond paying lip service to the Presumption of Innocence, Burden of Proof and the Right to Remain Silent.
This picture is of one month’s request for help from incarcerated men eager to have their cases reviewed. I read each one personally and respond to each person. If a case is worthy of further review, I open a file and begin the process of looking into the case. Could I use help in the process? Have I sent out a few letters to others asking for them to help and follow up? Of course. But it is a time-consuming, frustrating , lengthy process. Think carefully before getting involved. You can have a more immediate and direct impact by serving on a jury and doing the service properly.
There are many causes to wrongful conviction – bad defense lawyering; overzealous prosecutors; biased police officers; sloppy and incomplete investigation; false confessions; faulty eyewitnesses and forensic evidence, etc etc. While stories of these tragedies and miscarriages of justice are prominent these days, when it comes time to try a criminal case, folks seem to cast aside the flaws in our criminal justice system and swallow whole what is portrayed before them by the prosecution. The system needs jurors to sit on criminal trials who are open-minded and will question the evidence presented. The system requires jurors who will hold the government to its high burden of proof and embrace the presumption of innocence and the right to remain silent. To recognize that the defense lawyer is upholding valuable rights fundamental to our society and revered by our Founding Fathers. Our system of justice is one of the greatest in the world. And by a very large margin – it gets things right. But because of the number of prosecutions and because of the systemic flaws listed above, injustices occur in significant numbers as well. The best way to fight wrongful convictions is to not have the conviction occur in the first place. And remember that a person being found guilty under the law and the facts is not wrongfully convicted either.
So please, next time you get that jury notice in the mail. Don’t call me. Serve. Make the time. Do your civic duty. Uphold the Constitution. One of the best things about jury service is that if you do it right, fairly and in proper application of the law, you defend the Constitution and perform a public service regardless of your verdict. And now to that you can add that you also help fight against wrongful convictions. Welcome to the club!