When I Held Your Brain In My Arms (Jury Duty)

I’ve served as a trial juror and grand juror on various occasions. Without discussing dates or cases, I’ll share some general observations, as well as a couple of funny videos.

Most jurors want to do a good and conscientious job, but the system tends to be slanted toward the will of prosecutors, in subtle and not-so-subtle ways. Many judges are former prosecutors, and court officers usually share with police a law & order stance which favours quick indictments or convictions of persons accused of crimes. In the distant past, I even knew of one court officer who told a jury to “hurry up and convict this guy.” I was shocked at the time, but many of our fond ideals of justice are compromised daily by the volume of cases and the jaded attitude among court personnel.

Process can determine outcome; and one way the process is manipulated is that novice jurors are instructed by court officers to adopt quick-voting procedures. Quick votes tend to be rubber stamps for the prosecutor; but when a jury takes more time to go over each charge against each individual and discuss the details, they’re more likely to act as a genuine, much-needed check on prosecutorial excess. (Traditionally, grand jurors were meant to be both a sword and a shield. But there’s much discussion in the legal community that today’s grand jurors do precious little shielding.)

Prosecutors do tend to pile on charges, and a good jury will take pains to distinguish between what the target of an investigation really or probably did, and what a prosecutor is piling on just because he or she can.

Some jurors fancy themselves technocrats, and imagine that they hold no discretion as to how the law is applied. But actually, if the function of jurors were merely technocratic, a supercomputer could probably be programmed to do the job. One of the most important functions of jurors is to put a human face on justice. The letter of the law cannot possibly account for all the fine shades of people and situations. It often takes subtle human judgement to arrive at a just outcome. Yet, some jurors will claim that they’re slaves to the letter of the law, rather than being its interpreters.

Grand jurors are routinely advised that they don’t work for the prosecutor, but rather the court. Still, the prosecutor is described as the jury’s “legal adviser.” And while grand jurors can (in theory) ask questions of witnesses, they must do so through the prosecutor. It’s not unheard of for a prosecutor to simply blow off jurors who ask questions which are legally valid, but which might weaken the prosecutor’s case. In theory, a juror could complain to the judge that their questions aren’t being answered; but that’s rarely done in practice.

I’ve observed that jurors often function in one of two very different modes. In the first mode, jurors tend to shoehorn the subject of an investigation into the charges provided by the prosecutor. It may be a tight fit or even a bad fit, but some jurors operating in this mode assume it’s their responsibility to justify the charges given by the prosecutor. Instructions to the contrary notwithstanding, they may have slipped into feeling that they work for the prosecutor, or they want to give the prosecutor everything he or she asks for. And since the grand jury process is notoriously non-adversarial, there’s usually no one there (except perhaps a fellow juror) to question this “prosecutor rules” approach.

In the second mode, jurors stand back from the process and ask whether the charges are really appropriate and justified, based on the acts committed by the subjects. In this mode, jurors engage in more independent thought, and don’t necessarily assume that the prosecutor should get everything he or she asks for. They’re more willing to vote down some charges which seem harsh or excessive, which are not justified by evidence, which require too many leaps of inference, or which charge the target with multiple crimes for what appears to be a single act. I generally prefer this more critical approach to jury duty since it tends to empower jurors, allowing them to reach better (and sometimes more humane) decisions.

Based on my reading and experience, I think conspiracy charges are an area where prosecutors tend to pile on charges more or less automatically. John Doe and Jane Doe didn’t merely commit a certain act; they must have thought about it (if only for a moment); so let’s also charge them with conspiring to commit that act. Or perhaps John Doe was the main actor, and Jane Doe merely had knowledge of his actions or tolerated his actions. Mere knowledge or toleration does not rise to the level of conspiracy, but this tends to be a gray area in the minds of jurors — a slippery slope they can easily fall down or be led down by a prosecutor. (If a ham sandwich was in the room and didn’t vocally object, it must have been a co-conspirator!)

It’s easy to think of cases where conspiracy charges are totally appropriate, as when mafia Dons sit down to lunch and explicitly conspire to divide up a certain territory by borough or region and commit crimes there. They’ve clearly entered into an agreement and are all equally culpable, so it’s appropriate that they should be held responsible for each other’s actions.

But conspiracy charges are sometimes filed against groups of defendants who have wildly divergent degrees of culpability or blame. Sometimes a criminal organization has one or two kingpins who are active in planning and conspiring how crimes will be carried out. It also has lower level actors who are not planners or decision makers, who are assigned to perform simple tasks by rote, and who show some fear, hesitancy or reluctance to do so.

Yet, when all such defendants are tied together by the rope of conspiracy, the least culpable are held liable for the actions of the kingpins. This seems less than just. I think our intuition from an ethical point of view is that a low level participant who is not responsible for planning and who shows some fear or reluctance should not receive the same charges (and eventual punishment) as a ringleader.

To the extent humanly possible, we want the charges to be tailored to specific individuals and their varying roles in a criminal organization. Conspiracy charges often have the opposite effect, obliterating important differences between individuals, and assigning equal blame to all.

Another question which often arises among jurors is the question of personal responsibility for the ultimate fate of those processed by the justice system. Our jails are widely reputed to be hell-holes — overcrowded, with little true rehabilitation taking place. Spokespeople for the justice system have a ready-made answer: As jurors, you’re not judging people or meting out punishment; you’re only making a narrow technical assessment about whether or not they committed certain crimes.

This is something of a fig leaf. The justice system has come to resemble a huge (often impersonal) conveyor belt. What happens at the end of the conveyor belt is ethically relevant to those participating at the middle stages. While Holocaust analogies can be tiresome and overly dramatic, we ought be mindful of the train conductor who fails to ask what happens when the train finally reaches Auschwitz.

Another broad distinction between different types of jurors is that some favour a philosophy of “Indict them all on every count and let God sort it out.” Others recognize that even when dealing with the criminal element, there’s still a moral obligation to only indict for acts actually committed, or reasonably believed to have been committed.

Grand jurors favouring the “hang ’em high” approach often assume that if there’s anything wrong with an indictment it will be fixed at a later stage, such as a jury trial. But jury trials are quite rare these days. Although we’re taught that any accused person has the right to a jury trial, the reality is that prosecutors punish defendants who demand a jury trial by piling on additional charges. The consequences of losing a jury trial are so mind-boggling that the vast majority of defendants accept a plea bargain rather than risk trial. This has the effect of making prosecutors (rather than judges and juries) the most powerful players in the criminal justice system. Not ideal!

Broadly speaking, if as a juror you see something wrong at the indictment stage, you would do well to stop it there rather than assuming it will be fixed somewhere up the line. The impersonal, conveyor belt nature of our justice system means that there’s absolutely no guarantee anything will get fixed later on.

As a juror, when people come before you as defendants or subjects of investigations, you hold their fate in your hands. So take your time, do it right, consult the evidence, but also your conscience. Don’t be afraid to speak up for what is right. Respect your fellow jurors, but don’t let them steamroll you. Make sure important issues receive at least some discussion, then let each person vote their conscience.

I promised you some funny videos, and the “fate in your hands” concept gives me an excuse to segue into this song by the gang at Mystery Science Theater 3000:

Naturally, I have the most respect for jurors who don’t “accidentally plop” those persons in their care!

One of the funniest courtroom scenes of all time is from Woody Allen’s 1971 film Bananas:

And if you’re a Britcom fan, it’s hard to beat this scene from The IT Crowd, s04e03:

As I mosey on off into the cleftal horizon, I offer my good wishes to all jurors everywhere. Decisions are made by those who show up, so hats off to you for not pretending that your wife was sick and your cat was pregnant (or vice versa!).

Michael Howard

The views expressed are my own, and do not represent any other person or organization.

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