My Jury Duty - and How Screwed up Our Criminal Justice Is
Nothing dramatic happened in my day of service, just jury selection, and that's a big part of the problem
So I had jury duty yesterday. Along with roughly sixty other people called in that day, we were there to serve as a jury pool for a trial.
It was a relatively low-level crime and my first thought was surprise it hadn’t been settled in a plea bargain, since 97% of criminal convictions are the result of plea bargains.
The fact that it took all day to pick a jury for this case adds to the costs of trial that pushes all parties into quick plea bargains. Most defendants can’t afford to pay a lawyer for a week-long trial for a minor case - and it requires many weeks of trial for more major crimes. Public defenders appointed to represent poor defendants often have caseloads of hundreds of clients, so going to trial on more than a handful of cases is financially and logistically impossible, so plea bargains are mandated by the low funding we allocate to public defender offices.
Which made my experience all the more irritating since its inefficiency is what makes a trial a luxury almost no poor defendant can afford. (Unsurprisingly, while the defendant in my case did not appear to be rich and the crime happened in a poor neighborhood, he apparently had found the means to hire a private lawyer. )
The 60+ in the jury room showed up at 9 am. Between rounds of paperwork and waiting, we didn’t even enter the courtroom to begin jury selection until past noon. Given that people are taking time off from work and from family obligations, the collective loss of jurors’ time lost to such waiting is not just disrespectful to those showing up, but encourages many to avoid service in the first place- which would play out in the next few hours.
In the first hour or so, the judge would begin asking a series of questions to the whole pool, such as whether anyone had ever been convicted of a felony - automatic exclusion in New York as in many states. Many of the questions involved just asking whether people felt that could sit in judgment on another person or whether they were comfortable dealing with the subject of the crime (sexual in nature), which allowed people to self-select out of the jury pool. Potential jurors were told police officers might testify and asked whether they had positive or negative views of the police that might make them unfairly judge their testimony, which led a large number of people to remove themselves from the pool. Eliminating those with negative views of the police from the jury pool seems like a recipe for skewing juries towards even less accountability for bad police behavior.
Whether out of conviction or just people taking the chance to get out of a trial that could last more than a week, the upshot was within an hour almost two-thirds of the pool had removed themselves. That left just twenty-two of us - and notably a whiter and more upper-class group than the overall pool at the beginning. Given how low jury pay is - just $40 a day which New York has not raised in over two decades - it’s no wonder working class New Yorkers take every chance to excuse themselves from getting tied up in a case for weeks. But the result is having juries that are systematically less diverse than the general population.
After a lunch break, the rest of the afternoon involved each individual left telling the judge, prosecutors, and defense counsel a bit about themselves, where they live, their education, their legal training or past jury service, as well as hobbies or other activities. These would be followed up by questions by the judge and then later a limited number of questions by the prosecutor and the defense counsel. The skew of the jury was evident with most of the 22 either working in the financial sector or some other professional occupation. After all the questions, the judge and counsel huddled and when the nine final jury members were picked, it was notably even less diverse. I was not picked, no doubt because I am a lawyer and teach criminal justice, about which the judge himself expressed worry I might have my own opinions about the law separate from his own jury instructions (probably an accurate assessment).
Aside from all the preparation to get to that point, that day just for picking a jury would have cost the defendant on average about $2000 (at the average rate of $250/hr in NY). If I had stayed for the week-plus of the trial, I would have seen the many other delays and legal maneuvering that would end up costing the defendant tens of thousands of dollars. All that on top of the costs to the government to conduct the case and the lost wages and time of the jury members, all for what was clearly a relatively simple case, where the main job of the jury would be basically deciding if they thought the victim’s testimony was credible.
No wonder everyone loves the idea of jury trials in theory but government and defense seek desperately to avoid them by channeling all but a tiny, tiny minority of cases to plea bargains.
How the Warren Court Drove Mass Incarceration
Over two decades ago, scholar and Harvard Law Professor William Stuntz made the counterintuitive claim that all the Warren Court decisions expanding the legal rights of the accused, which lengthened trials and appeals, had actually helped drive mass incarceration, expanded guilty pleas by the innocent, and encouraged prosecutors not to indict the wealthy.
Warren Court Justices might have thought they were helping defendants, but if legislators refused to adequately fund public defenders, longer trials just meant the poor couldn’t afford to take advantage of those legal rights and were forced to make plea bargains waiving those rights. Add in the threat of mandatory minimums and other increased sentences passed by legislators and prosecutors could easily coerce plea deals by defendants who couldn’t risk either the astronomic costs or punishments that faced them in a jury trial.
Conversely, wealthy defendants who COULD afford to take advantage of those new legal rights to appeal every faulty warrant became so expensive to prosecute that most local prosecutors increasingly stopped even trying and focused almost exclusively on indicting poor defendants.
Fixing the Courts
It doesn’t have to be this way - and criminal justice reformers are fighting to change it - but fixing inefficient jury selection systems and speeding up trials to make them less expensive should be a bigger focus of those criminal justice advocates.
My jury duty was instructive mostly in how unremarkable it was. It was a typical day in the courts, wasting a lot of time for sixty potential jurors, prosecutors, and the defense. The simplest solution would be to draw random names from the pool in the first hour and eliminate all the peremptory challenges, excusing people only if they have direct personal knowledge of the case or had some outside commitment absolutely preventing service on the jury. Trials could start immediately, saving jurors time and defendants money. That would also require paying jurors a real salary for their service to insure it was not too large an economic burden on them.
The bonus would be far more diverse and representative juries - a point Justice Thurgood Marshall made decades ago when he called for eliminating all so-called peremptory challenges by prosecutors and defense.
Lots of arguments juries in such a system would harbor prejudices that might hurt defendants but the point is the costs of trials are already deeply hurting the 97% of defendants who feel pressured to take a plea deal and never get a jury trial. Slightly less perfect but faster trials would benefit that 97% far more.
That would fix just one small corner of our pervasively dysfunctional criminal justice system. But it’s one good place to start.
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