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Oft May Ye Waive
Written April 7, 2019


The date was 1215, and the reforms seemed like good ideas at the time.

On June 15 of that year, within four miles of the future Heathrow Airport in a meadow called Runnymede, England's King John granted to his barons a bill of rights called Magna Carta Libertatum.  Henceforth if the King had a dispute with a baron (typically over land), the King could not simply decide it in his own favor without first consulting a group of the baron's equals — “a jury of peers,” men of his own rank and status.

Five months later, a ruling that trials could not longer be conducted by Catholic priests also led to trial by jury.

Until then, writes Geoffrey Robertson, criminal trials “took the form of ‘ordeals’ by fire or by water, supervised by the local priest.  God was the judge, and he would ensure that the innocent survived.  Thus, suspects dunked in ponds were declared guilty if they drowned.”  But too many victims were later proven innocent.  Could God be making mistakes?

“In November 1215, Pope Innocent III, perhaps concerned that wrongful convictions were destroying faith in divine providence, forbade clerical participation, and so ‘trial by ordeal’ lost its point.  It was replaced by a method of fact-finding used in land disputes and by coroners — the summoning of local men likely to know the circumstances of the crime.

Then 650 years after that, the Thirteenth Amendment to the United States Constitution outlawed “involuntary servitude, except as a punishment for crime.”

Over time, all these common-sense rules have changed.

• A policeman accused of a crime is not tried by a jury of his peers.  That would be a group of fellow law-enforcement officers of his own rank and status.  Instead, he's tried by a jury of civilians, ordinary people who have no personal experience of what it's like to confront a suspect.

• These civilians are deliberately selected from low-information citizens who don't follow the news.  They should not know the circumstances of the crime, lest they prejudge the case before the legally-permitted evidence is presented to them.

• Moreover, these civilians do not willingly offer their advice.  Although they themselves deserve no punishment, they must involuntarily serve on a jury.

These conscripts have little knowledge of the law.  The presiding judge does know, but he isn't allowed to decide the case!  Instead, he has to explain the rules to the jurors.  Sometimes failing to comprehend what they've been instructed, they may need to return asking for further clarification.  Can we be confident they'll apply the law correctly?

And so we have twelve random people, incurious about current events.  They've been torn from their homes and their livelihoods against their will.  Grumbling, they've been coerced to sit in a courthouse for possibly days on end.  There they must listen to the details of complex matters and then debate them.  Is this any way to arrive at the truth?

Personally, I can see both sides of most arguments, which is sometimes an advantage.  It wasn't when I served on a jury in Pittsburgh.  At the start of deliberations on two charges, I hadn't formed a firm opinion on either.  We took a preliminary poll; I voted guilty on one and innocent on the other, but I was in the minority both times.  Nevertheless, I was open to being swayed.  In the interest of reaching unanimity and getting out of there, I allowed the majority to convince me to see things their way.  We returned one “innocent” verdict and one “guilty.”  That was my original preference, so no harm, no foul.

Another story comes from Mark Evanier, who was summoned for possible jury duty in Los Angeles last Friday.  Excerpts from his blog:

From 8:00 to 9:00, a lady explained to us how jury duty works, the forms we have to fill out, etc.  Each topic was covered a half-dozen different ways in microscopic detail, including this point:  At the end of your service, you will be given a Certificate of Completion that affirms you have served and need not serve again for twelve months.  If you are to be paid $15 per day, a check will be mailed to you.  Do not take the piece of paper you will receive at the close of your service to your bank and attempt to deposit it.  It is not a check.

No kidding. They really had to explain that, no doubt because people have made that mistake. Frightening to think that those same people sat on juries and made decisions that altered the course of someone's life.

They also vote.

At the end of the orientation, they tell you to pass your filled-out summons down to the end of your aisle.  Someone comes by and picks them up and that's how they know who has reported for duty that day.  The nice lady who conducted the orientation told us about this at least five times.  Over and over, she said, “If you don't hand in your summons, we have no way of knowing you're here.  You will not get credit for your service today if you don't hand in your summons.”

Were there really people who were so stupid that you had to tell them this five times?  Turns out the answer to that is yes.  And they still wouldn't get it.

This was, I think, my fifth stint on jury duty.  I have never been dispatched to any courtroom to be interviewed.  Wasn't the last four times.  Wasn't this time either, though I sat there for a good eight hours.

When we were dismissed at the end of the day, it worked like this:  One by one, our names were read off — this was to make sure we were still in the room — and you were to answer “Here!”  Then you were to go up to a clerk, turn in your plastic badge holder and pick up one of those certificates that said you'd completed your jury service. Then you were free to go.  I was one of the last ones out.

The woman who passed out the certificates was talking with a befuddled lady who was holding her summons.  She was being admonished as follows:  “You were supposed to turn that in at the end of the orientation this morning.  We told you several times and everyone else turned theirs in.  Didn't you see everyone else passing theirs to the end of the aisle?  You've been sitting here all day holding onto it and now you're not going to get credit for your service!  You're going to have to come back another day and do it again!”

That's kind of a frightening thought.  If you live in Los Angeles, you might want to be real careful to not do anything that could cause you to be charged with a crime.  That woman might be among those deciding if you go to prison and share a cell with a guy named Spider.

The Sixth Amendment does guarantee “the right to a speedy and public trial by an impartial jury.”  But I would like it to be clearly understood that in most jurisdictions, with the assent of the court,


Then it becomes a bench trial, with the judge (or judges) not only making conclusions of law but also findings of fact.

To me, bench trials are much preferable.  There's no need for jury selection and instruction and sequestration, so bench trials are usually much faster.  Also, the decision will result not from the groping guesses of amateurs like me but from the wisdom of an expert in these matters — someone who has not only seen it all before but even went to law school.

Keep this in mind, future defendants!



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