“How did you feel when you got your summons in the mail asking you to come to court?”
More often than not, it is the first question I ask potential jurors during jury selection. Most folks sigh, and then state that they weren’t happy. Jury service is regarded as an inconvenience, a bother, and, in some cases, a hardship.
The other day, I responded to a summons directed to me. I appeared in New Haven, reported to the ninth floor of the courthouse, and tried to blend in with the crowd.
“You look familiar,” a woman said, as we rode the elevator. “Are you a lawyer?” I told her I was, and redirected the conversation. I wanted to serve on a jury. More to the point, I did not want to become a distraction to others who might be called upon to serve. Writing a weekly opinion column, I understand, makes me a lightning rod of sorts.
The film shown during orientation was helpful.
A judge advised that in criminal cases, the state must prove that a defendant committed the crime charged beyond a reasonable doubt. That means that it is not enough, the judge told us, to prove that the defendant possibly, or even probably, committed the crime.
Lawyers debate endlessly whether jurors really pay attention to judicial instructions on the law. We fear that jurors convict often on insufficient evidence, reasoning that if a defendant is likely to have done what the state alleges, then he must be guilty.
That’s inconsistent with another bedrock principle, the presumption of innocence.
The judge on the tape reminded that the presumption requires a juror to disregard the mere fact of an arrest. A defendant must be presumed innocent. That presumption remains with, or, as some judges say, “cloaks,” the defendant unless and until the state proves its case beyond a reasonable doubt. The presumption of innocence alone is sufficient to acquit.
As luck would have it, my day of potential jury service fell during a brief adjournment in a case in which I am picking a jury elsewhere in the state. The result would, I realized, almost certainly create a scheduling conflict that would make it impossible for me to serve on a jury myself. I regretted that, but was determined to get on a jury if I could.
Soon enough, I was seated in a jury box. I was to be considered in a slip-and-fall case, a claim by an injured party that a property owner had been careless in the care and upkeep of their property, resulting in the creation of a dangerous premises. Someone was suing for money damages because they have been injured.
I confess to being somewhat jaundiced about personal injury claims. Life is risk, I say; it’s too easy to blame another for bad luck. There are too many lawyers out there playing spin the bottle with chance, hoping to make a living off of the mere misfortune of others.
But I knew the law firm bringing the action. The lawyers are serious, reputable people. Indeed, one of the partners in the firm is a person I routinely turn to for advice and counsel about tricky ethical issues. Surely, they would not bring a frivolous claim.
The judge disqualified me from service based on my relationship with members of the plaintiff’s firm, and because of my conflicting trial schedule. The judge offered to excuse me for the day, but I urged him not to. I wanted to be sent back up the jury assembly room. Perhaps, I would be called to serve on another case, a case involving no one I knew, occurring at a time in which I would be free.
“I believe in the jury system,” I told the judge. “I want to serve.”
Perhaps that is mere self-serving chatter coming from me. After all, I make my living, and have done so now for decades, standing in front of juries asking them to do things. I suppose it is easy for me to be a booster of a system I depend upon to support my family and employees.
But jury duty is more than that. It is a chance to have a voice on matters of profound, and often life-changing, significance to others. The other day a man called out to say hello as I walked down Whitney Avenue. He once sat beside me, accused of murder, a sentence of 60 years awaiting him if the jury found him guilty.
A not guilty verdict changed his life. Ordinary citizens did that. They had a ringside seat as the state produced its witnesses. Each juror listened to the evidence presented by the state. The jurors then listened to the lawyers argue the case. The judge then told them what the law was they must use to decide the case. Then, all 12 of them became the voice of our community and rendered a verdict.
Not guilty, they said. In that moment, they wielded as much power over the life and destiny of another as they are likely ever to have in the course of a long life.
I heard from one of the jurors shortly after the case. He told me he appreciated the hard work that went in to the trial, and congratulated me and the defense team on our win. But he also did more. His letter reflected the pride he felt about taking part in this important civic duty.
It is saddening to see how eager so many are to avoid jury service. We call ourselves a republic, and take pains to create institutions, practices and procedures designed to protect the rights of each and every one of us. Jurors sit on the frontlines of significant disputes.
You might require the service of a jury some day, to evaluate criminal charges brought against you, or to help you decide a civil dispute involving money, property or personal injury. Who better than an honest citizen to sit in judgment? Who better than someone just like you to make the decision about what justice requires?
Don’t duck jury service. Don’t look for an excuse to avoid serving. It is a chance in a lifetime to have a direct and powerful voice in the community. I regret not be asked to serve when my chance came.
As of Oct. 5, 754 people, or almost three people per day, were shot to death by police officers in the United States in 2015. This information was not compiled by a law enforcement agency, although it easily could have been. Instead, The Washington Post has been gathering the data and posting it daily on its website. You can find the tally by googling "Washington Post police shootings."
Despite its penchant for collecting data on crime, the U.S. Department of Justice has refused to gather information of this sort or, in the alternative, if it has gathered such information, it has refused to publish it.
I have no idea whether this represents an increase or decrease in shootings, or whether it is simply business as usual on the streets. Several recent violent deaths of young black men have driven the issue of police violence to the front pages in the past year.
But the statistics suggest this is not a race-driven issue. Of this year's fatalities, 28 involved unarmed black men. Almost half, or 364, involved Caucasians. The overwhelming majority of victims are men. A total of 190 were black, and 122 were Hispanic. Almost 200 of those shot demonstrated obvious signs of mental illness, and the age cohort containing the most shootings involved 25- to 34-year-olds, a total of 234 people.
The Post ought to win the Pulitzer Prize for its effort to develop a comprehensive database on police shootings, and lawmakers on the local, state and federal levels should spend long, painstaking hours studying this data. While I won't go so far as to call this an epidemic of police shootings, it is a remarkable record of state-sanctioned violence.
It will take a radical change in the law to address this level of violence. I am proposing strict liability for police departments each and every time an individual is shot dead by an officer. Only when departments are held accountable for the deaths caused by their officers will departments have the incentive to provide better training on how to avoid violence.
As things stand, officers are more often than not excused for the deaths they cause. The phenomenon of "suicide by cop," for example, pits the disturbed citizen again an officer. In these tragic cases, a citizen provokes lethal violence with the officer by deliberately threatening the officer's life.
Of course, officers should be able to protect themselves against threats. Officers should also be able to protect members of the public from imminent harm. But a recent exchange at the Practising Law Institute in New York City at a seminar on civil rights litigation showed why police violence is so easily forgiven.
Erwin Chemerinsky, dean of the University of California at Irvine law school, questioned why the U.S. Supreme Court was so quick to hold that it is reasonable for a police officer to shoot to kill a motorist who decides to flee a motor vehicle stop, thus placing others in danger. Wouldn't it make more sense to note the license number and apprehend the fleeing motorist later?
Another panelist, a member of the New York City corporation counsel's office, was quick to take exception, questioning why officers ought not pursue the person who flees officers, and why deadly force ought not to be used to protect the public from a fleeing motorist.
A little-used doctrine called the "state-created danger" doctrine could easily say that it takes two to cause a chase: the pursuer and the pursued. A chase ends once the pursuer quits. Why not train officers to make risk assessments, rather than set them lose, guns blazing, with judicial cover, in response to minor provocations?
A judiciary too quick to hold the use of deadly force reasonable does the public no service. Officers use lethal force in our name. Any one of us can be a target. Indeed, plenty of us, according to the Post, are.
When police kill someone in the name of public safety, we ought to be asking how the killing could have been prevented. Requiring police departments to pay damages to the estates of those they kill, even in justified shooting deaths, will force police departments to get creative about training on use of force.
Right now, the prevailing attitude seems to be to shoot first, and to ask questions later, all the while hoping the courts will answer the questions without the need for a trial. It's small wonder so many have lost confidence in police departments. •