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JURY_DUTY
June 15, 2023
A few remarks I had no opportunity
to make to the judge, but it's just
as well:
The judge continually instructs us "don't think
about *this*, don't think about *that*, just
think about what I tell you to think about."
This is the kind of thing that gives one pause--
under any other circumstances it would give
anyone pause, but the judge can get away with
this by relying on the authority of his position.
If you start with the Federal Papers, No. 83 is
interesting because it's not just Alexander
Hamilton giving his opinion about the
importance of Jury trials, it's Hamilton saying
something like "Of course I believe in having a
Jury System, I like them for same sort of
reasons all you guys do", and one of the main
reasons is as a check on "judicial despotism".
In that light, the vision of the Jury system
as described by the judge looks an awful lot
like the result of a long campaign of the
judiciary trying to reign in an institution
that was specifically created as a check on their
power.
Consider that if a police officer is on the stand
as a witness, we're supposed to regard them
completely neutrally, and not, for example,
give them extra creedence just because of their.
uniform.
Now consider the judge on the bench, standing
in his robes. Is there some reason I shouldn't
listen to what he says just as criticially?
Given the vision of the Jury System from
Alexander Hamilton's time, I'm supposed to
regard the judge as the enemy. The main reason
I'm their is to keep the judge under control.
Now, I should say I have very little understanding
of the usual practice of the law in these areas,
and for all I know if I take that thought too
far I could be facing Contempt of Court charges,
but that sort of thing is just "Argumentum ad Baculum",
it has very little to do with the ethical problem
of deciding what I'm supposed to do.
The judge's line throughout has been something like
"Just trust me, don't do your own research, just look
at what I tell you to, and think about it the way I
tell you to." In any other context, that would set
off alarm bells. You'd put your hand on your wallet
and get out of there fast.
Continually, throughout the days long process of
Jury selection, I was getting the feeling I was
looking at a social indoctrination program, an
extended campaign of brainwashing and gas lighting
where repetition and grand-standing is used to
put pressure on people to go along with the judge's
view of the process.
To take one point: the judge states that there is
no rule requiring more than one witness in a criminal
case, and he goes further and says if there were
such a rule, if you were mugged at an ATM machine
and you called in the cops, they wouldn't even bother
filing a police report, why should they if there's
only one witness to the crime?
That's a terrible argument, a ridiculous leap in logic,
and I can't help but think he's gotten stale in
constructing arguments because he's been on the bench
too long: no, even if there was a rule for n>1
witnesses, the police should still file a report, and
then hopefully, spend some time looking for other
witnesses (or even some of the supporting physical
evidence that the judge hates so much). And it might
turn out that multiple reports accumulate, all of them
describing the same perpetrator...
Similarly, the judge argues that while consulting your
own conscience "sounds nice", it would cause "bedlam".
The judge argues that if you disagree with a law,
you should try to change it via the political process,
and that as a juror you must agree to "follow the law",
no matter how extreme your disagreement. If you don't
you're going against the democratic process.
(Interestingly, this challenge to democracy did not
seem to weigh heavily on Alexander Hamilton's mind,
nor does it disturb people like Sonia Sotomeyer,
who points to the positive role "jury nullification"
played in the civil rights movement.)
And-- the judge argues-- if juries just followed their
conscience that way, there would be no way to predict how the
jury would vote, and no way to explain why they voted the way
they did, and this would be a terrible disservice to
the judge's colleagues, the prosecution and defence attorneys--
But: is there some requirement for jury decisions to be
predictable? (If the judiciary can't dial-in the result
of the jury that it wants, that would be bad?)
And: no one can explain why a jury decides what they do
in any case-- you need to try to talk to the jurors later,
and if they don't feel like it they don't have to say
anything to you.
I would say that allowing for the possibility your
conscience might disagree with the law is far from a
demand that you must rely only on your conscience.
We all take on prescribed roles in different contexts,
where we're expected to fufill them to the best of our
abitility, but it's just understood that exceptional
circumstances might get in the way. The doorman
shouldn't abandon the post to help a little old lady
across the street, but might very well feel the need to
do so to provide first aid to an accident victum.
Walking around at lunch, it occured to me that I often
begin crossing the street before the light has turned
green, and yet, I think it would be an exaggeration
to call me a terrible criminal that hates democracy.
And all of that is a ridiculously theoretical discussion
that's unlikely to have any bearing on the criminal
case at hand (but the judge kept talking about it, so
I kept thinking about it further).
More to the point: I was getting the sense that the judge
was trying to soften up the jury so that they'd convict
on a case with some very sketchy evidence. He kept harping
on how one credible witness can be enough for a conviction,
which made it sound like there was only one. He also
repeatedly made fun of television shows with expert witnesses
in white lab coats: "they make my job harder", he complained--
which makes one wonder what he thinks his job is: he was
telling us he's a neutral umpire, but seemed to be doing his
best to help out the prosecution.
The list of thou-shalt-nots:
(1) don't do your own research
(2) don't make inferences from
apparent gaps in the evidence
(3) don't think about sentencing
(4) don't consult your own conscience
There are others I have less trouble
with like:
(1) the defendent has a right to choose
not to take the stand, don't take
that as a sign of guilt.
(2) don't be biased.
Even in the case trying to be
unbiased, I might raise an
objection: Working to overcome The jury selection
your biases based on race, process in effect
ethnicity, gender and religion, includes some de-biasing
that all sounds great. training. I wonder if
there's any research
Treating every police officer in that supports their
exactly the same way you would any approach. If it's
other individual, that doesn't sound effective, we could use
like it follows at all. it elsewhere, if it can
be improved, then we
A police officer testifying as a should.
witness is part of a system, they're
almost necessarily on the side of the
prosecution.
Also, I would argue, they're professional
culture encourages lying regularly as a
basic tool of the job. Do they really just
shut that impulse off when under oath?
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