Friday, October 28, 2005

Teaching High-Schoolers about the Jury System

Ever since the American Bar Association, thanks to Virginia attorney, and ABA Prez. Robert Grey, started to recognize that the jury system was falling into disuse and disrepair, a number of organizations have started to prepare programs to teach high school students about the jury system.

The American Board of Trial Advocates reportedly spent $400,000 on their interactive CD-Rom based program, Justice by the People. Another program has been prepared by the Texas Young Lawyers Association, entitled We, the Jury. Other programs are out there as well.

There is a common problem to all these programs, in my mind: they all are built around the concept that the justice system, at present, works. This concept is a dis-incentive for people to want to get involved as jurors. If everything is fine as-is, then everything will stay fine if I stay home. The message should be more brutal, but more honest: the legal system cannot be counted on to do justice; too high a proportion of jurors come from too few segments of society; the perspectives, and viewpoints, of other members of society are not brought to bear.

Also, citizens looking at jury duty do not feel empowered. They feel like they are there to sit down, shut up, to speak only when spoken to, and to do as they are told. Not exactly an experience most people are dying to participate in.

These are all part of the same problem: few Americans can give a cogent explanation of why trial by jury is important. In large part, this is because lawyers shy away from discussing the topic of jury nullification. Without explaining that juries are empowered to do justice, when the law is unjust or unjustly applied, leaves the jury a hollow, powerless shell of the institution the Founding generation knew. It is not that juries should nullify in every case, or that they should enter court with a presumption that they are going to nullify. It is simply that they should be aware that they have this prerogative when justice demands it be employed.

Last week, I spoke to four high-school classes at Alief-Taylor High School about the jury system. At each session, a judge participated as well. One judge took great umbrage at my speaking so frankly to high school students. In particular, he was upset by my truthful statement that a trial judge’s interests are not in seating impartial jurors, but in having jurors who are compliant and who will come back in time from lunch. Yet those are the institutional interests the judge represents, no matter how distasteful it may be to a judge to admit it. (One adjunct professor I had in law school put it even more bluntly: "a judge's main interest is in maximizing his golf time." He is now a judge.)

Now, I aim to provoke when speaking to students, to make them want to hear what I have to say, and so do not shy away from being controversial. I believe my remarks represented a point of view students need to hear: that jurors are called to try cases because they represent the only truly independent voice in the American legal system. A judge is there to administer a case, not decide it. The judge is not empowered to decide the case because We, the People do not have that level of confidence in judges due to their institutional biases and lack of independence.

Historically, trial by jury cannot be divorced from the concept of a skepticism towards the judiciary. The history of the jury in the American colonies, and in the United States, is that there are certain judgments that, for good reasons, we do not allow judges to make. "The (jury trial) clause was clearly intended to protect the accused from oppression by the Government . . ." Singer v. United States, 380 U.S. 24, 31 (1965). Moreover, "when juries differ with the result at which the judge would have arrived, it is usually because they are serving some of the very purposes for which they were created and for which they are now employed." Duncan v. Louisiana , 391 U.S. 145, 157 (1968) . Obviously, the jury provides a protection a judge cannot be trusted to provide; Singer begs the question of why? The importance of trial by jury (and the answer to that question) cannot be understood without exploring the dimensions, and necessity, of the unique protections provided by the jury.

And unless the importance of trial by jury is understood, people will continue to ignore their jury summonses. So long as the role of a jury appears to be to act like a rubber stamp, people will continue to stay home -- and jury pools will not be representative, consisting only of the self-selected few who appear.

I believe my remarks gave a ‘real-politik’ view of how the justice system works, and gave the students reasons to respond to a jury summons that a more doctrinaire presentation would lack. I see no value in giving students a view through rose-colored glasses. Instead, I choose to focus their attention on the warts in the legal system, in the hope that they will be inspired to do better than their elders have.

Friday, October 21, 2005

A Juror Identity Theft Case

An interesting item just showed up on the NCSC Jur-E bulletin:

"A very resourceful man in NY County (Manhattan) designed his own juror qualification questionnaire. He mailed them out to select affluent zip codes in Manhattan using the telephone directory. People responded to a PO box that he opened returnable to The Questionnaire Processing Center (we do not have such a Center). He even provided envelopes. When he received responses, he then mailed the responders out a Juror Proof of Identity Form. Citing that NY State was asking for personal information in order to protect their identity. This form asked for Social Security number, outstanding loans, credit card information, employer name and mother's maiden name. From those who responded to that form he was now armed with enough information to wipe out several bank accounts. He was caught via a stakeout of the PO Box. He received 2 ½ to 5 years."

If he'd managed all this from a foreign country without extradition, he'd be enjoying his stolen money today.

Remember, boyz and girlz, it's just like Nancy Reagan used to say: when asked for personal or financial information, whether by a real or an ersatz government official, a phisher, or a pollster, JUST SAY NO.

Wednesday, October 19, 2005

Restoring New Orleans Culture (A non-jury posting)

Many readers understand that I am concerned about what has been referred to as the "cultural diaspora" from New Orleans. What New Orleans artists want and need isn't a handout. What they want is to make more money by selling more records. And the best place to buy those records from is from a New Orleans distributor.

I'm told that the Louisiana Music Factory is back in operation, and that they are working through a backlog of orders. I'm giving nearly everyone on my disk NOLA music this Xmas - and hoping I whet their appetite so that they buy more on their own.

And I'm going to avoid the big names. Aaron Neville is going to be fine; I'm more interested in folks like those who record for smaller, local labels like Basin Street Records.

No better present for you and yours than a fine disk by Kermit Ruffins, Henry Butler or the Dirty Dozen Brass Band.

It's a start.

Friday, October 14, 2005

Unreasonable Jury Criticism

For years, the folks at Reason Magazine have had an ineffable hatred of juries. It seems to have began with Virginia Postrel - an elitist jury hater, and former editor of that magazine. A recent article by a Tim Cavanaugh states that "American jurors are a bunch of louts, nincompoops, and media whores who need to stop trusting their guts and start listening to people smarter than themselves."

Well, well, well. Strong words - with no indication that Mr. Cavanaugh has anything to back them up. Jurors are not only the conscience of the community - they are also the most conscientious actors in the American legal system. What Cavanaugh complains of are the consequences not of bad jurors - but of bad lawyering.

When juror John Ostrom states that "[w]henever Merck was up there [on the witness stand[, it was like wah, wah, wah," he is demonstrating the failure of Merck to present a cogent case through its witnesses. Lawyers are supposed to be communicators and persuaders -- yet many are incapable of making their case understandable to a lay jury (perhaps because they don't understand it all that well themselves). Lawyers, and expert witnesses, who lean on legal buzzwords and technical jargon, or who talk down to jurors, are not doing their jobs, and can expect to lose.

The average juror in America has about half a year more education than the average American, and tends to take their job far more seriously than judges or lawyers do. Jurors have one case - and they want to get it right. Lawyers and judges become jaded, and have numerous cases on their dockets at any one time.

Is the jury system perfect? Of course not. Is the alternative -- trial by judge -- any better? Again, of course not. While any individual juror may not have an advanced scientific or business background, the chance of one or more people on a jury understanding such evidence (and being able to help the remaining jurors through it) is relatively high - especially in light of the fact that almost none of the judges in American courtrooms are trained in such disciplines.

Anecdotal stories are easy to find to impugn any human institution - yet such anecdotes rarely give a full, fair or balanced picture. Out of the hundreds of thousands of Americans who serve on a jury every year, the vast majority do so with intelligence, a sense of justice, and the willingness to give all sides a fair hearing. Scapegoating the jury for the failure of bad lawyers to communicate a coherent case has it backwards. We should not reform (deform?) the jury system, merely to make the world a safe place for bad lawyers.

The jury system is, as Thomas Jefferson noted, the only way known to man to hold a government to the principles of its Constitution. It is the one place where average Americans get to participate in the administration of government power, and to understand how their government works in practice. We need to start by publicly recognizing that American jurors are US, and that, given good information and by paying attention to our sense of justice, we, the people are capable of coming to the right answer more often than not. We do not need some self-appointed elites (those Cavanaugh refers to as "people smarter than themselves") to make our decisions for us.

That was the principle our American democratic republic was founded upon. And, if it no longer holds true, we need to rethink far more than the institution of trial by jury.

Friday, October 07, 2005

The Jury Duty Scam: Fact, Hype, or Fiction?

Many stories of appeared recently on incidences of juror identity theft. Even the U.S. Military has chimed on on the issue. The way the scam works is described in one article:

"The scammer calls claiming to work for the local court and claims you've failed to report for jury duty. He tells you that a warrant has been issued for your arrest.The victim will often rightly claim they never received the jury duty notification. The scammer then asks the victim for confidential information for "verification" purposes.Specifically, the scammer asks for the victim's Social Security number, birth date, and sometimes even for credit card numbers and other private information -- exactly what the scammer needs to commit identity theft.So far, this jury duty scam has been reported in Michigan, Ohio, Texas, Arizona, Illinois, Pennsylvania, Minnesota, Oregon and Washington state. " (There are recent reports of the scam being utilized in Alabama, as well.)

Apparently, the scam began being used by February, 2004; since then, it has rapidly spread around the country.

Apparently, these scams are all too real. The FBI has gotten involved in publicizing the scams. Even, the pre-eminent urban legend busters, have announced that this scam is real, with an unknown potential for financial harm. It is, by all accounts, widespread and growing.

What Jurygeek finds most interesting is that Snopes described this as a "social engineering" scam: " a technique which preys upon people's unquestioning acceptance of authority and willingness to cooperate in order to extract from them sensitive information. "

My, my. This sounds strangely similar to something Jurygeek noted back in June: that the tendency of people to obey authority allows them to be too easily manipulated. While in that post, Jurygeek was referring to the tendency of jurors to be too willing to convict against their own conscientious judgment in order to satisfy or appease authority figures, in the jury duty scam, people are being asked to comply with the request of a (feigned) authority figure.

When someone saying they are about to issue a warrant for your arrest calls, people tend to respond out of anxiety and a wish to appease the threatening authority figure. What is needed to protect ourselves from these sorts of scams, as well as to protect ourselves from manipulation as jurors, appears to be a cultural paradigm shift, away from the obedience to authority and in favor of exercising individual judgment.

One can hardly envision such a paradigm shift in our educational system: what public school teacher is going to begin class by saying "I want you to question and challenge everything I tell you"? (While I try to instill this value in my own child; my wife has resorted to pulling hair - mine!) Yet so long as we treat reflexive obedience to authority as a positive, rather than a negative, trait, we are subject to malevolent manipulation - whether by judges, prosecutors -- or scammers.