To Be 19 and Ignorant

Texas community college freshman Kelsey Gloston did not want to fulfill jury duty.  Called with 59 other prospective jurors to federal court in Houston, Gloston ignored the summons.  When the court clerk called to ask where she was Gloston blamed her absence on a flat tire.  When the clerk offered to drive her to court she said she was going to class instead.  When the clerk called back to say the judge himself wanted her in court the next day to explain herself, Gloston “repond[ed] rudely and hung up.”  The following day U.S. Marshals “rounded up” Gloston and brought her before Judge David Hittner “in ankle and wrist restraints . . .  wearing flip flops, a tight white T-shirt, short-shorts and sporting green streaks in her hair.”  The angry judge said “I’m going to hear exactly what your problem is with jury duty and what your problem is with how our country operates. . . . Nobody hangs up on our people.”  Judge Hittner released Gloston on instructions that she appear with a lawyer the following day for a contempt hearing.  Gloston appeared as ordered, apologized for her disrespect, and was let go with a lecture and a copy of the Constitution.  At first Gloston’s father planned to sue–of course–and blamed the judge for overreacting, saying of his daughter “she’s 19, she’s ignorant, she’s a kid. They don’t take anything seriously.”  (Way to have my back, Dad!)   Now he’s happy to put it behind.

Juror #131

I’ve not had jury duty for at least a dozen year.   A jury summons used to arrive in the mail every three years and then–nothing.   Last year the jury commissioners rediscovered me but the date, October 9, conflicted with teaching.  (That conflict existed only in my eyes.  It would not likely have excused me from serving.)  I rescheduled to today, March 9, the first Monday of spring break.  The numbers worked in my favor.  Most of those summoned for jury duty are not seated on a jury and if I were to be seated the average trial in Middlesex Superior Court lasts four days.  I could satisfy my civic responsibility and not miss any class time.  I would like to be a juror.   In recent years my wife and two of our three sons have sat on juries and they all thought it was interesting and rewarding.  I’m jealous.

Then a hitch developed.  Judy wanted to visit her father this spring in Florida, I have this week off from teaching, so why don’t we go?  We dealt with the potential conflict with jury duty by scheduling the trip for the end of the week and next weekend.  Not much margin but how likely was it that I’d be selected for a jury?  I’m a lawyer, a college lecturer, once a defense counsel used a peremptory challenge to bounce me from a criminal case because family members have been victims of crime–the numbers made actual jury time unlikely.   I approached today with an odds-maker’ s confidence.

I drove through fog, heavy wet snow, and morning rush hour traffic to arrive on time at Middlesex Superior Court in Woburn.  After passing security–my hip set of the metal detector–I checked into the jury assembly room with 143 other souls.  After the obligatory judge’s welcome and instructional video I opened the privacy text I’m using in a seminar starting next Monday and read while I waited for something to happen.  We were told that eight judges had jury trials starting today–that would be 112 jurors at 14 jurors (12 +2 alternates) per panel.  With conflicts, challenges, and excused dismissals and factoring in the number gaps caused by absentees my #131 looked vulnerable.

The court officers made an announcement: 40 jurors were needed upstairs for a criminal trial.  Numbers were called out, ending at 48 because of absentees, and the pool walked up two flights.  I returned to reading about digital searches and seizures.  Twenty minutes passed.  Another announcement:  70 jurors were needed upstairs for another criminal trial.  I packed my bag before they called my number.  Seventy of us climbed two flights of stairs to Judge Fahey’s large, light, and airy courtroom and I took a seat in the first row on the visitors side of the bar.  The Woburn courtooms are much nicer than those in the old courthouse in East Cambridge.   Judge Fahey entered, we all rose, the judge sat, we all sat, and then she told us about the case.  Three counts: attempted murder, assault with a deadly weapon, assault.  She read the list of prospective witnesses:  there were more than 20.  Uh-oh.  There go Florida and maybe the first few days of post-break classes if I am chosen.  The judge questioned us aboutour  potential bias, conflict of interest, difficulty understanding the proceedings, and substantial hardship if selected for the jury.  With a dozen others I raised my hand on the last question, prepared to mention my non-refundable airline tickets to visit my 88-year old father-in-law.  The clerk recorded our numbers–if we were called we could explain our hardship to the judge and counsel, and the judge would decide whether to excuse us from this trial.

The clerk called the first number.  The juror rose and took seat #1 in the jury box.  The clerk called another number, and another, repeating the process until jurors filled 14 seats.  The judge excused a few before they were seated.  Her sidebar conversations with the jurors were out of our earshot.  The prosecutor and defense counsel studied the juror questionnaires for five minutes, then approached the judge with their peremptory challenges.  The judge excused the challenged jurors and new jurors were called in sequential order, seated in the box, and subjected to the same scrutiny.  In this fashion it took almost an hour to select a jury.  The last one chose was juror #88.  Plenty of warm bodies before they would have gotten to me.  I was disappointed because it looked like an intersting trial, but relieved not to have to explain to Judy that I couldn’t come to Florida.  All of us not chosen returned to wait in the assembly room.

Twenty minutes later there was another call for jurors, 70 for a civil case.  I did the math. 28 jurors had been selected for two trials, they needed 70 more, there were a number of gaps in the number sequence–I might be called for another impanelment.  The court officers read out the numbers:  “44 . . . 48 .  . . 49 . . . 52 . . . ”  I cheered when a string were called in sequence:  “90, 91, 92, 93, & 94.”  The numbers rose from 100 to 110 to 115.  It was getting close.  “120 . . . 121 . . . 122 . . . Okay, that’s it.  The 70 jurors called report to the 6th floor with the court officer.”


I returned to privacy law and read for a while, until another court officer spokeinto the podium microphone.  “Two more judges upstairs need jurors.   Unfortunately, there are not enough of you left to fill the pool so one trial is put over to tomorrow and the other is putover to Wednesday.  This completes your jury duty for three years.   Thank you.”   Two minutes later the room was empty.  It was 11:50 AM, unprecedently early to be excused from jury duty in my experience.

Writing this and watching heavy snowflakes fall through gray mid-afternoon light, I’m happy to be home.  I have much work to do before next Monday and will enjoy a few days by the ocean in Florida weather.  Part of me would like to be seated in that criminal trial hearing the prosecution’s case.  Not the most part, but a part.

How Not to Serve

If someone asks how to get out of jury duty I tell them what they don’t want to hear–it’s their civic duty, everyone should serve on a jury, etc.  Massachusetts makes it easy to preach this line its “one day, one trial” system provides little wriggle room to escape jury service.  Everyone does serve on a jury in Massachusetts–judges, lawyers, law students, law professors, doctors, failed presidential candidates (John Kerry served on a jury about six months after the 2004 election), students who live in Massachusetts eight months out of the year to attend school . . . everyone. I have no sympathy for people who try to duck it.

I did, however, just read a story about a juror who was deservedly discharged from a Massachusetts jury in a criminal trial.  The defendant was convicted and claimed on appeal that the judge abused her discretion in discharging this juror.  The Massachusetts Appeals Court did not agree and upheld the conviction.  The title of the story merits a spoiler alert; click to read The Case of the Stinky Juror.

To Be* or Not to Be*

My recent posts about careers in law (Legal Careers and Not Covered By LSAT Prep) is generating interesting discussion both online and off. My wife, a very happy solo practitioner for over 21 years, takes a more expansive view of the value of a legal career. She considers a law degree to be a great credential that opens doors to many fields. I did not mean to suggest that the cost/benefit calculation is, or should be, the only way to assess the value of a law degree. Every prospective law student should ask at least three questions: The first is can I afford law school–that is, can I make enough money after I graduate to pay back student loans and live the type of life I want to live? The second is what will a law degree enable me to do that I could not do without a law degree? If your only answer to this question is “practice law” then you need to consider it more thoroughly. Most non-lawyers equate “law practice” with “litigation,” but most lawyers are not litigators. The only times I’ve entered courtrooms since graduating law school in 1981 were to get sworn in, to hear oral arguments as a law clerk, and for jury duty. My law degree led to practice in real estate and municipal finance, which led to expertise in the arcane field of non-rated tax-exempt bonds, which led somehow–here the trail gets fuzzy–to teaching full time in a business school. This is not the type of career you map out in your first week of law school, but it is the type of career a law degree makes possible.

Which does not mean, of course, that I agree with my wife’s position. The third question is do I want to do those things that law school allows me to do? Too many law graduates discover that they really do not like being lawyers. A lot of what lawyers do is mundane, tedious, repetitive, and nit-picky. When I left my BigLaw life in 1988 I learned that I enjoyed being the client much more than I enjoyed being the lawyer, even though as general counsel I was still practicing. I enjoyed it even more when I left practice behind to make business decisions. I only started to enjoy law again when I was free from the constraints of practice. I was lucky to find in teaching an outlet for my interests and talents, but it was not only luck. I was willing and to make profound changes in the nature of my work. When success in practice requires becoming the go-to guy or gal for Section 1031 like-kind exchanges or local permitting for shopping center development, the horizon can become too limiting. Not for everyone, but for many.

*A Lawyer

No-Show Jurors

Nationally, 20% of those summoned for jury duty fail to show. In Miami the no-show rate is “as high as 90%.” Ninety percent! According to US court challenge: How to corral 12 not-so-angry jurors in today’s Christian Science Monitor, the federal judicial groups have investigate the high rate of no-show jurors. The cause? The Monitor reports that “[o]utdated juror lists, rundown jury rooms that feel like jails, and growing time pressures on Americans are mostly to blame.” The high rate of juror deliquency results in unrepresentative juries which in turn can lead to skewed verdicts. The Monitor quotes jury expert Scott Sundby: “Research shows that death-sentence convictions drop by 30 percent in black-on-white murder cases when at least one juror is a member of the minority group.”

One solution proposed is the one day/one trial system which Massachusetts (and about 1/3 of the courts in this country) use. (I discussed the Massachusetts one day/one trial system in a comment to A Trial by Jury.) Another is more rigorous enforcement of the penalties for skipping jury duty. The article reports a combination of education about the jury system and pursuit of delinquent jurors enabled Massachusetts to cut the no-show rate from 14% in 1996 to 6% today.

I understand why people regard jury duty as an imposition. I don’t agree with it, but I understand it. I’ve learned in the classroom that many people have gross misconceptions about the court system. Students in my Introduction to Law course must spend at least two hours observing a trial court and write a short paper about the experience. Students may drag their feet about going but most find it a revelatory experience. Some go back to court to follow a trial. Students report every semester that judges took the time to answer their questions, that lawyers patiently sat with them to explain what happened in the court room, that court officers served as tour guides/legal encyclopedias/courtroom commentators/big brothers. Students are stunned to see a criminal defendant of their age sent to prison for a long stretch. I know that many students will remember visiting the court long after they’ve forgotten the prima facie case of negligence or the duty of care owed by a gratuitous bailee.

Thanks to Carolyn Elefant and’s Legal Blog Watch for reporting today on the Monitor story.

A Trial By Jury

I’ve never served on a jury. I’ve come no closer than voir dire and that only once, on a sexual assault case in which defense counsel rejected me. I know of at least 30 students who’ve been called for jury duty since January, yet I’ve not received a jury summons in at least eight years. I’m quite curious about what it would be like to participate on a jury. Recently I experienced it vicariously.

The vehicle for my jury experience was the audio book of A Trial by Jury, D. Graham Burnett’s account of his service as a juror on a New York City murder trial. It’s a fascinating glimpse into the dynamics and deliberations of one particular jury. Burnett is an academic historian who finds himself elevated to jury foreman shortly before jury deliberations begin. His brief and entertaining summary of the trial testimony sets the stage for the heart of the book, the days of discussion, argument, high emotion, and drama that constituted the deliberations.

Burnett states up front that the book is his personal account of what happened on the jury: he did no independent investigation of the evidence and interviewed none of the other jurors. He acknowledges that the other jurors would have quite different stories of how they arrived at their verdict. Viewing this jury trial through his eyes is a revelation. He’s an articulate and exceeding thoughtful–had I been a fellow juror I might have found him maddeningly thoughtful–stranger in a strange land. He began the experience as a legal naif (he studies the history of science) and we learn as he learns.

Burnett doesn’t preach. His stated goal is to turn the trial, the testimony, the jury’s contentious arguments over the defendant’s guilt, into a “text” (his word) that one can return to, again and again, to find meaning. He succeeds. This is an excellent read (or listen–Burnett read the audio book edition) for any one interested in the criminal justice system, or the ways in which non-lawyers understand and engage with the law.

Burnett succeeds in part because of his honesty. I give away neither the story’s tension or its ending if I reveal that Burnett decides early in the trial that a hung jury is his goal. Each time he repeated this goal my frustration increased. As smart as he is, Burnett never seemed aware that ending the trial with a hung jury would pass the buck, most likely putting the expense and burden of deciding the defendant’s guilt on another trial and another jury. Burnett writes that “[a] hung jury would turn our jury duty into a symposium, an intensive discussion group, an interpretive seminar . . . It would mean something different to everyone, like art.” Like art? LIKE ART? Every tiime he wrote in this vein I nearly drove off the road. Yet this is why A Trial By Jury succeeds. As the jury proceeds to its verdict Burnett reasons his way to profound insights about the nature of law and justice, insights that shape the jury’s result. He tells his story honestly and leaves to his readers the search for its meaning.