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Fixing the Engine of JusticeDiagnosis and Repair of Our Jury System
By David Tunno
iUniverse, Inc.Copyright © 2012 David Tunno
All right reserved.
If you believe the myth that juries are representative of their communities, I urge you to observe the jury selection process in nearly any courtroom in this country. Before you take your field trip, think of the diversity of your community. Think of the tremendous variety of occupations, experiences, and skills. Having created this immensely diverse palette in your mind's eye, don't expect to actually see it in the jury pool, much less on the jury that is ultimately selected. Why not? Because large segments of the population rarely serve as jurors. The reasons are varied, but here's the short list: No-shows, lack of support from employers, flimsy excuses for not serving, and the peremptory ax.
During the fiscal year that ended June 30, 2004, 2.9 million jury summonses were mailed to Los Angeles County residents to try to drum up the ten thousand jurors needed daily, but the response rate was only 41 percent, authorities said.
Los Angeles residents aren't alone. According to a 2007 survey by the National Center for State Courts, 46 percent of people nationally show up for jury duty. That average puts some communities to shame, including Manhattan (33 percent) and Boston (24 percent), according to the same report.
Reactions by the courts varies but has included the use of law enforcement. Tulare County in California saw a whopping rate of no-shows drop from 56 to 33 percent with the help of warning letters from the court and visits by sheriff's deputies. The court enlisted the sheriff's department in Lee County in North Carolina in an even more active role, as one woman experienced when she came out of a grocery store to find a deputy stuffing a summons through her car window. He then warned her, "Be there, or you'll be in contempt."
Sometimes prospective jurors don't show up because they ignore the summons, a mandate from the court to show up. Maybe they know the system is overloaded and the chances are slim of the courts catching up to them. But at the same time, it is not uncommon to hear jurors describe multiple jury experiences. By the time they reach middle age, these individuals have served four, five, and six times on juries. These numbers are for actual service on a jury, not just those additional times when the individuals may have answered a summons but were never actually selected to serve on a case. Gavin Jones, an emergency room nurse in Ventura County, California, received five summons in five years, yet there are many who, even by middle age, have never been summoned.
How can there be so many people with multiple jury experiences when others have none or have never even been summoned? Is there a crack in the system into which many of our identities have slipped, allowing some to fall out of view of those in charge of summoning potential jurors? Could an A-list of jurors exist, and could getting on that list mean you're going to be called again and again? Is it like buying something online, where doing so assures you receive a flood of unsolicited online offers in the future? Why are we reticent to respond to junk mail? Because we fear the junk mail advertisers will then know our address is a good one and we are prone to responding, resulting in a mailbox full of junk mail every day thereafter. Do the courts act similarly? The facts suggest so.
Lack of Support from Employers
The hardship excuse then decimates the pool representing the relatively small percent who respond to the summonses, with financial hardship being the most common. For those who've never received and answered a summons, here's a brief explanation of how the system works. When you're called into a courtroom, you'll be one of dozens of other jurors in your pool. The judge conducts the first round of questioning in the voir dire process.
Voir dire, French for "to speak the truth," usually refers to the examination by the court or attorneys of prospective jurors to:
determine their qualification for jury service
determine if cause exists to challenge (excuse) a particular jurors
provide information about the jurors so the parties can exercise their statutory peremptory challenges (object to particular jurors without the need to state a cause)
In some federal courts, this is frequently the only voir dire because federal judges often don't allow the attorneys to ask questions of their own, while in other courts, both federal and state, the judge will allow attorneys to conduct their own voir dire following that of the judge. Written jury questionnaires are sometimes used at the judge's discretion, but this procedure is relatively rare. If it is used, the court writes the questionnaires, usually with input from the attorneys on both sides, who will also have a chance to review the completed questionnaires prior to jury selection. The jurors' answers to the written questions are often the source of attorneys' oral voir dire questions.
The first step in the voir dire process is determining which jurors should be excused for cause. Although the judge ultimately makes the decision, attorneys usually have input into this process, with the exception of the financial hardship excuse.
Some prospective jurors simply can't afford to serve. This is not surprising, considering a few bucks a day and free lunch just isn't what they used to be, say, during the depths of the Great Depression. For example, during the writing of this book, the so- called Washington DC sniper case came to trial. Reportedly, out of a pool of 123 prospective jurors, over one-third expressed concerns that serving on the six-week trial would cause them to suffer personal or financial hardship. At the end of the first day of jury selection, the judge had excused fifty-one. As it turns out, even that outcome was comparatively good.
Financial hardships are almost always due to the policy of an employer who pays for only limited jury service, typically ten days or less, and many pay nothing. It's the rare person who can take time away from work for almost no compensation. Nevertheless, there is a cure, which we'll visit later.
The ability to serve with severe financial hardship is usually the subject of the first question that the judge asks of the jury pool, and it almost always causes hands to shoot up throughout the group. Judge Henry Walsh of the Ventura County (California) Superior Court provided some odds: "Sometimes you get 20 percent return on a jury panel, and that can be a good day," even though, as Judge Walsh explains, the financial hardship factor shouldn't have the effect of eliminating so many jurors, as "Most trials last only two to four days."
For lengthy trials, however, the financial hardship factor kicks in to an even higher degree. The Robert Blake case in Los Angeles is one example. As the Los Angeles Times reported in November of 2004, "Jury selection in the case began last month, when more than 1,000 jurors were called to the Van Nuys courthouse for preliminary screening. Most were excused because they could not afford to be away from their jobs for the two to four months the trial is expected to last." The story went on to say that this was the second time that hundreds of jurors were summoned for that case. The chief factor is the lack of support from employers.
Most people don't work for large companies, and the lack of financial support for the jury system from small employers is understandable. Rainbow Bridge Natural Foods, a sixty-employee store in Ojai, California, may be a typical example. "We pay sick leave and vacation days and provide health insurance," said co-owner Ernest Niglio. "Jury pay is just not high on my list."
What about large companies? As Ventura County (California) Superior Court Judge Kevin McGee puts it, "Businesses use the legal system when they get involved in disputes, but if they're not willing to support it when it's needed for others, it's not a very appropriate approach to take."
In one of my jury selection assignments, I witnessed what I thought at the time was the worst example of nonsupport by an employer I had ever seen. When questioning a prospective juror for hardship, the judge was told the employer didn't pay for jury service. He wasn't talking about a limited pay period. This employer allegedly paid nothing. Zero. The judge excused the juror.
Now, you might expect, as I did initially, that the man worked for a very small enterprise. It would be reasonable to expect a very small company would find it financially burdensome to lose the production of even one employee while still having to pay that person his full salary. If you agree with me on that point, you might be as amazed as I was to learn the man worked for Bechtel, an international giant in engineering and construction.
After the jury was seated, I called Bechtel. I went as high as I could in the personnel department. I had psyched myself up to give the highest executive I could find a piece of my mind, and I was eventually transferred to someone who knew the score. But I never got the chance to chew on anyone. Not only did I discover the juror was wrong, I learned the company's jury service policy was exemplary. Bechtel's policy at the time of my call was to put no limit on the length of jury service for which they would continue to pay their employees. I complimented them. Kudos also to Costco. The retailer and employer of one hundred and forty thousand worldwide pays up to forty hours a week for the duration of a trial, no matter the length. I don't know why or how the prospective juror erred about his employer's policy. He may have made an honest mistake, or he may just have wanted to avoid jury duty.
I also don't know how many companies like Bechtel are out there, but I do know there are far too few. From comments made by jurors during voir dire, my understanding has been that, for private-sector companies who pay anything, the typical period of pay is ten days. These include companies we all know as household names. That's only a two-week trial if the individual is seated as a juror on his first day of service. Many courts hold jurors for ten days, during which time they are shuffled from one courtroom to another in a pool until they are either seated or their ten days have ended.
If the employer of one of these jurors only pays for ten days, that juror can claim financial hardship if he's not seated on a case during his first day of service, as well as if the trial is expected to last longer than ten days. I usually work on major civil litigation involving disputes between large corporations. These trials frequently run much longer than two weeks. Some extend to a few months.
The irony in this situation is that these companies that don't pay or pay for short periods only include many that are often involved in lawsuits themselves, as McGee of Ventura pointed out above. When this happens, I'm sure their attorneys want those juries to be selected from the most qualified people available. I'm sure they would rather not have most of the population, including some of the best-educated and successful members of society, excluded from possible service. This segment of our population, often through the actions of its employers, has abdicated a tremendous amount of power and responsibility. Recruits who aren't always up to the task fill that void.
It makes me wonder. When the executives of those companies see the results of their own litigation experiences, including verdicts they feel are unjust, do they reflect on their own policies? When they sit around their conference tables and talk about current events, such as a high-profile trial with a verdict they can't fathom, or a civil case with a damage award out of this world, do they put two and two together? Or do they instead keep their heads in the sand, believing supporting the judicial system is someone else's job?
Perhaps the perfect example of a company executive who viewed jury service as someone else's responsibility arose during the writing of this book. According to published stories, Jennifer Sutton, an executive assistant in Dallas, was looking forward to her first time serving on a jury. She had kept her employer, Affiliated Computer Services (ACS), and her boss, Senior Vice President Warren Edwards, informed of her starting day, but Edwards nonetheless gave her an assignment the night before her jury duty was to start.
Sutton went to work early the next day to complete the assignment, intending then to head for the courthouse. Instead, she was told to stay. She was in tears, pleading with Edwards, who, according to Sutton, fired her. Company executives confirmed the action but said it had been a mistake.
Edwards may have learned just how big a mistake it was when Sutton showed up for jury duty in District Judge John Marshall's courtroom and told His Honor the story. I love this next part. The judge issued a bench warrant for Edward's arrest because firing employees for jury service is against the law in Texas. Deputies showed up at Edwards's office, took him into custody, and brought him before the judge. A quick apology by ACS may have saved Edwards, who was not charged, but Sutton did not get her job back. She had to sue her former employer.
Again, fast action by ACS cut short what was shaping up to be something of a PR nightmare. The same day the Sutton lawsuit made the news, the company issued a press release announcing a settlement with its former employee. That fact denied us the opportunity to see what kind of jury would have sat in judgment of ACS. Would it be exactly the kind of jury discussed above, the kind that would slap ACS with a verdict completely out of proportion to the harm? If so, it would have been difficult to sympathize with them.
Affiliated Computer Services, Inc., is a Fortune 500 company. Large companies get involved in large, lengthy trials. In those trials, such companies often rely on the justice system for compensation in the hundreds of millions of dollars. Yet, here is one that, through the actions of one of its vice presidents, showed its disdain for that same system. I wanted to learn if this were the rule or an aberration.
The list of Fortune 500 companies isn't hard to get; nevertheless, for a few of them, the corporate headquarters were hard to find, so my survey ended up short of the full five hundred. I call the list the "Fortunate 474." The human resources departments of the Fortunate 474 were surveyed regarding their company's jury service policy. There were six choices: no time; up to ten days; up to fifteen days; up to twenty days; limited but over twenty days; and no limit. One hundred and sixty-five companies responded to the survey. The following chart graphs the results from those respondents:
This was not a scientific survey. It relied on the willingness of someone in each of the human resources departments to respond and to do so accurately. In the case of many, it was obvious to me the request had been bounced around the company, possibly looking for someone in a position of authority to check the appropriate box. In that process, it's possible that decisions were made to not reveal company policies. My suspicion is, if responses had been received from all 474 companies, the results would have shown higher percentages in the columns to the left, reflecting policies that companies would be less proud to share with the world.
Excerpted from Fixing the Engine of Justice by David Tunno Copyright © 2012 by David Tunno. Excerpted by permission of iUniverse, Inc.. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Table of Contents
Part I: Problems....................xix
Chapter 1 Representation....................1
Lack of Support from Employers....................3
Trial by Postal Worker....................19
Jurors Who Get the Ax....................20
Chapter 2 Competency....................23
Chapter 3 Bias and Misconduct....................35
Online and Off the Reservation....................44
Jury Instructions and Burdens of Proof....................46
Jury Nullification: An Abuse of Power....................51
Part II: The Foundation for Solutions....................67
Chapter 4 Jury Duty....................69
What Is a Jury of Your Peers?....................71
Peters v. Kiff, 407 US 493....................75
Thiel v. Southern Pacific, 328 US 217....................76
Taylor v. Louisiana, 419 US 522....................80
The Federalist Papers....................88
Part III: Solutions....................91
Chapter 5 Expanding the Jury Pool....................93
Dealing with the No-Shows....................94
No Flimsy Excuses....................95
Jury Service Insurance....................109
Trial by Video....................111
One Day, One Trial....................115
Chapter 6 Impartiality and Competency....................117
Test for Competency....................117
Sequestered Voir Dire....................125
Truth or Consequences: Swear in Jurors Prior to Voir Dire....................125
Polygraph Tests: Experimenting with the Future....................126
Take the "Ax" Away from Attorneys....................130
Chapter 7 More Recommendations....................133
Allow Jurors to Ask Questions....................133
Allow Jurors to Take Notes....................134
Simplify Jury Instructions....................135
Allow Nonunanimous Verdicts for Federal Civil Trials....................137
Chapter 8 Additional Thoughts and Parting Shots....................139
Judges: The Power of One....................139
Lawyers: The Jokes Fit, You Must Admit....................144
The Problem with Expert Witnesses: You Get What You Pay For....................147
Remedy 1: Court-Appointed Experts....................150
Remedy 2: Peer Reviews of Expert Testimony....................151
Lessons from Runaway Jury....................153
About the Author....................159