Mimesis Law
22 March 2019

Jury Duty: The Ultimate Protest

Jan. 7, 2016 (Mimesis Law) — My partner returned to the office the other day from Manhattan Criminal Court with a bit of news. He had taken part in the very New York ritual of seeing a famous person, acting like he didn’t care at all about seeing said famous person, and then told the first person he knew that he saw a famous person.  I was the person he told.  The famous person was our former mayor, Michael Bloomberg.

Interestingly, Bloomberg was not in the criminal courthouse on business or pleasure. The diminutive billionaire was in court for jury duty.

The potential juror in seat No. 5 played down his résumé when the judge asked him about his occupation during jury selection on Tuesday for an assault trial. “I manage a company,” he said, “a financial information company.”

The juror, Michael R. Bloomberg, did not mention that he had been mayor of New York City for three terms, nor that the company in question was Bloomberg L.P., the market research and news giant that he founded.

It is odd to think of the person who ran this city for twelve years sitting in a jury box next to bus drivers (there are always bus drivers), college students and sassy retirees.

Mr. Bloomberg participated on Tuesday in one of the great leveling rites of American democracy: jury service. In the end, he was rejected for a panel chosen to try the case of Wan Li, a 55-year-old woman accused of assaulting a man in Chinatown. A prosecutor asked that Mr. Bloomberg be dismissed because he said he had travel plans on Friday. The defense quickly agreed.

Bloomberg’s dismissal was inevitable. Busy people almost always get out of jury duty,*  No one can argue that Bloomberg is not a busy man.

To the unwashed masses, though, jury duty is greeted with the same level of excitement as a dentist appointment. And much like the dentist, avoiding those jury service cards can eventually lead to pain and discomfort (usually in the form of hefty fines).

A big part of the problem with jury duty is that the court does not check your schedule. They order you to appear at whatever random time and place they choose.  Of course there are ways to postpone, but they are limited.  Yes, jury duty is inconvenient, and at some point, everyone’s time comes.**

So we all slog down to court with our shoulders sufficiently chipped and wait our turn to tell some judge why we are too crazy to get picked. But as someone who has done a lot more picking than being picked, potential jurors tend to get cold feet when it comes to telling a room full of strangers that they are insane.  Odd that our innate desire to be liked overrides such airtight plans of escape.  Most potential jurors answer the questions rather honestly and give a thin, but workable basis for the attorneys and judge to decide who should stay or go.

The process begins with the boring questions, usually asked by the judge, like where do you work, are you married, have you ever been on a jury before, etc. We attorneys are so hungry for any hint of insight that we devour every morsel of this boring demographic information.  But once the pleasantries are over, things get interesting.  Then the attorneys get to ask the questions.

I have often opined on trial strategy that if you can make it about the cops, make it about the cops. For such a strategy to be successful, the attorney must try to find out who in the jury pool will believe anything that comes out of a cop’s mouth.  This is not easy work, as people who think the police can do no wrong are often fairly tight-lipped about these views during jury selection.

While it is vital to find and discard anyone who will convict your client solely on the word of the police, there is a danger lurking. Much as we are taught at a young age to bring enough candy for everyone, it is considered rude to leave people out of the conversation.  Especially when those people are jurors.  So, when asking about people’s views on the police, you often end up exposing those people who distrust the police, a/k/a, exactly the kind of person a defense attorney like me wants on a jury.

Nowhere is the temptation apparently greater to shout out that the whole damn system is rotten than during jury selection. Although the government has a frequent tendency to disrupt our lives, jury selection is the only time when they do it and then ask you, “Hey, what do you think about these cops out there?”

Had Bloomberg made it to the question and answer round, it would have been interesting to hear his response to that question. Unfortunately, what with his busy schedule and all, we will never really know his true views on the police.

But for many other potential jurors (at least here in Brooklyn), they decide to hold their heads high and announce to the judge, court staff, attorneys, court officers and the other lucky panelists that they just don’t trust the police and that they cannot be a fair and impartial juror. While it might feel incredibly cathartic to tell the government (however indirectly) to its face how bad of a job it is doing, the only thing this accomplishes is that it makes it that much easier for the government to continue putting cases in front of juries that require nothing more than just a police officer’s say-so.

Granted, jury trials are rare, only accounting for less than 10% of criminal cases. But America arrests a lot of people, and less than 10% of a lot is still a bunch.  And at the center of each one of those trials is a person who deserves fairness.  But as the protesting juror walks out of the court building thinking that she stuck one to the system, she should remember that she left someone behind whose fate will now be judged by one fewer person who won’t take “Well, the police think he did it,” as proof beyond a reasonable doubt.

I understand that there are plenty of reasons to be upset with the police right now. Hell, I may have even written a few words on this very topic. But jury selection is not the time to unburden yourself of those views.  Wouldn’t you rather use your voice during deliberation to ensure that someone is judged fairly than a completely forgettable and counter-productive mini-protest?

I am not suggesting that you lie. If you honestly believe that all cops are liars and monsters, then say it.  But know that you are wrong. Saying that all police are monsters or that all police are dishonest is a cop-out (pun intended) that allows you to be generically angry at the idea of a problem, while doing nothing to solve that problem.  And if you are honest with yourself, it is also a cop-out that allows you to go home early.  And ironically, by taking the easy way out, you just might be ensuring that the defendant of that trial will not be going home for a very long while.

But if you, as a potential juror, can acknowledge that the police involved in your case are not the same police that have broken our trust, then you can become an actual juror. You can still think with your heart, but when the topic turns to the police, answer with your head.  Then if you get selected, you will be in a position to make your protest count.  Because when that trial is over, if you are not satisfied that the police and the prosecutor proved the case to you beyond a reasonable doubt, then your protest can save someone.

That is why we need to step up.  Our jury system can work for us, but only as much as we make it.

*  Except for my wife, who sat on a federal grand jury for the month leading up to her taking the New York State Bar Exam.

**  Well, not everyone.

3 Comments on this post.

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  • Mike
    7 January 2016 at 11:45 am - Reply
  • Tom H
    7 January 2016 at 4:58 pm - Reply

    You are making me feel guilty I never took the local police chiefs offer to get me on the Grand Jury. He was sure once I saw the evidence I would understand why police officers were regularly no billed.

  • Emma Love
    8 March 2017 at 6:49 pm - Reply

    What if you think the whole system is corrupt and it’s not about individual cops being “rotten”, but about the system being flawed.
    Conscientious objectors don’t say “I don’t like generals”, they say, “I will not fight in a war”.
    I wouldn’t call the police if a crime was committed against me. So I can’t see how I could serve on a jury. I would vote no to any conviction under all circumstances.