Peer Reviewed

An embarrassing amount of time has passed between blog posts. Part of the reason is because I’ve cycled back onto the felony trial team.

The Constitution guarantees the accused a trial by jury. In Ye Olde Days before the American Revolution, juries were composed entirely of people who knew the defendant personally. The premise? A jury of one’s peers will not begin a trial pre-disposed to convict; to the contrary, a jury of people who know you personally should be wholly disinclined to convict you unless the evidence is persuasive beyond all reasonable doubt.

Today, jury pools are drawn from randomly-selected groups.

Well, the selection process is actually far from random. The two main sources for names of jurors are voter registration rolls and DMV records. So the first question to ask – in deciding whether your client is being provided with a jury of his peers – is whether most of your client’s peers are registered voters or licensed drivers.

This excludes many of the people I have represented…and most of the people that they know.

But once you get past that hurdle, then the focus must shift to the actual group of 60-80 people whom are sent to your courtroom on the first day of jury selection. The systemic, though unintentional exclusion of California’s underclass usually proceeds according to this pattern:

First, the judge typically hears what are called “hardships.” Hardships are listed in the California Code of Civil Procedure. The judge will ask the jury panel who among them would like to try to get out of jury duty based on hardship. ⅖ of the people in the room will raise hands. The judge will question them one by one, and will likely exclude the following people.

1) People who do not speak English well enough to understand the proceedings. On the one hand, excusing these people is a relief for everyone involved; who would want their client’s fate decided by someone who cannot make out what the witnesses say? But consider the typical profile of a U.S. citizen who does not speak sufficient English to serve on a jury. They will have almost always been in the U.S. for more than ten years. However, English will rarely be the primary language spoken at home. Furthermore, English will likely not be the primary language spoken in the food service/manual labor jobs that employ them; afterall, English is often a second (or third) language for most of their coworkers as well.

So thus far, our jury pool has been cleansed of citizens whose professional and personal lives are so isolated from the majority culture that their English remains…rudimentary at best. How does exclusion from jury service resolve that problem? If we are truly concerned about having a fair cross-section of our community, public resources would have to be devoted either to ESL classes prior to jury service, or providing court-certified interpreters to jurors as well as to defendants.

But I understand that we have banks to bail out with that money instead. So nuts to that idea.

2) The next group of people to go will be those who are financially unable to serve; being taken from their job for the 3-10 days of a typical jury trial will cause immediate financial harm. This is so mainly because employers will not pay employees who are serving on a jury. This includes most non-union, non-salaried employees. This also includes a huge number of single parents.

3) After the first two groups are removed, the two or three full-time college students will also be excused from jury duty. Roll Tide!

Meanwhile, there will be others asking the court to be excused from jury duty who do not qualify for hardship. Maybe they care for a dependent adult or child, but are lucky enough to be able to arrange for alternative child care. More commonly, doctors and executives will explain to the court that they are very, very important and their businesses need them to do work that is much more important than jury duty. Also, their employees will suffer because they will not keep their businesses open while they are away on jury duty (because paying your employees anyway, and letting them work in your absence, is just absurd). These folks will be asked to rejoin the retirees, the salaried professionals, and the temporarily-unemployed high-skilled married parents for further jury selection after the morning recess.

And thereafter, you look at the tattoos on your client’s face before he’s taken back to the holding cell for the morning recess and wonder if he has a chance in hell of a fair trial.

Respectfully Submitted,

Norm DeGuerre

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