The phantom juror

Just a few weeks ago I got an official jury summons in the mail. Jury duty for the first time! Finally!

The notice mandated at least five days of availability and it listed a phone number to call after 4:30 pm. Each day when I called a female voice-recording told me no jury trials the next day, so no need to show up at the courthouse. I knew by Thursday afternoon that jury duty for the week was none and done.

Talk about anticlimactic. 

Were my expectations too high? Maybe I’d watched too many movies with 12-man heroes (12 Angry Men) or 12-man villains (To Kill A Mockingbird). I wanted courtroom drama. A recorded voice told me to stay home instead.

Not that Hollywood taught me civics. Medieval England has taught me the origins of the jury trial as institution. 

The English barons were fed up with King John. They rebelled and in 1215 forced him to sign the Magna Carta. They gave the tyrant an offer he couldn’t refuse, a royal charter that mandated the rule of law instead of rule by royal fiat.

King John’s governing methods were more personal than procedural. He arbitrarily imprisoned or attacked subjects. He routinely disseised them – wrongfully dispossessed their freehold interests.

To stop the king from terrorizing and incarcerating them, the barons made sure to guarantee their right of trial by peer. Hence Chapter 39: “No freeman shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.” 

Our own constitutional right to trial by jury when accused of crime is denoted by Art. III Sec. 2 or the Sixth Amend. The Magna Carta grounds it.

So does the Declaration of Independence. Eighteenth-century American colonials were oppressed by judges who served King George III. The Declaration of Independence thus complains against George III “for depriving us, in many Cases, of the Benefits of Trial by Jury.”

See also Alexander Hamilton. The Federalist No. 83 assures American citizens that the constitutional right to jury trial checks judicial power. But with the caveat that the right is absolute only in criminal cases. Hamilton explains why:

Arbitrary impeachments, arbitrary methods of prosecuting pretended offences, and arbitrary punishments upon arbitrary convictions, have ever appeared to me the great engines of judicial despotism; and all these have relation to criminal proceedings.

Justice Antonin Scalia’s majority opinion in Blakely v Washington (2004) presents an “originalist” frame for jury trial. The landmark case held that the Sixth Amendment right to trial by jury prohibits judges from enhancing criminal sentences beyond the facts as determined by jury or as agreed to by defendant.

Scalia argues that trial by jury is a basic tenet of the criminal justice system. Every accusation against a defendant should be confirmed by the “unanimous suffrage of twelve of his equals and neighbors.” Jury trial is “no mere procedural formality, but a fundamental reservation of power in our constitutional structure.”

Trial by jury is a democratic imperative, not legal technicality. But the sovereign people must command the judicial process. Only when the people take jury trial seriously is it as Hamilton described it – the “palladium of free government.” Perhaps he had in mind the grand jurors that in 1765 refused to indict Stamp Act rioters who had destroyed imperial tax stamps. Or the jurors that in 1735 refused to convict John Peter Zenger for seditious libel even though his press had published newspapers criticizing the royal governor of New York.

Today jurors in the Bronx more often refuse to convict defendants than do jurors in New York’s other boroughs, especially in drug cases. Bronx juries thus fight against the drug war and mass incarceration.

Circling back to my own phantom-juror experience a few weeks ago, insofar as it is typical, shame on the city of Cleveland.

Image: Free image, Pixabay license, no attribution required.

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