I suppose it is because I know something about jurors that I love an old film where jurors are the focus. In 1957, and adapted for the screen from a book of the same name, 12 Angry Men, directed by Sidney Lumet, hit the theaters. The cast was unbelievably talented, and included Henry Fonda, Martin Balsam, Lee J. Cobb, E.G. Marshall and Jack Klugman.
The story of 12 Angry Men takes place inside the jury room, where a group of twelve personalities from different backgrounds gather together to decide the fate of an eighteen-year-old Hispanic man who’s accused of stabbing his father to death. The jury knows that if they convict the man will be given the death penalty. The room is sweltering. There is no air conditioning. With the preliminary vote indicating that most of them have already made up their minds and consider the defendant guilty, one juror sets in motion further discussions regarding the case by voting “not guilty.” The rest of the film follows the jury’s difficulty in reaching a unanimous verdict.
If you are a lawyer who tries criminal cases, you really ought to watch this film if you haven’t already done so. Here is a snippet:
Now, I am going to switch gears on you a bit. Did you know that if prospective jurors fail to show, I can put them in jail, fine them and make them do community service? Well, I can.
28 U.S. Code § 1864(b) states that persons who are summoned to appear for federal jury service and fail to appear may then be ordered to show cause why they should not be held in contempt of court for non-compliance with the court summons. Persons then failing to appear or to show cause for non-appearance may be fined $1000.00 and/or imprisoned for not more than three days and/or be required to perform community service. The same holds true if a prospective juror misrepresents something on the jury qualification form to avoid jury service.
I am very serious about vigorously pursuing those who fail to show up for jury service. I have on at least one occasion sent the U.S. Marshals out to knock on the door and personally serve a summons to make a particularly recalcitrant man travel a long distance to my courtroom where he was upbraided by me, but not otherwise punished. I thought it was enough to ruin his day and cost him a bunch of money to travel to Lincoln from western Nebraska to redress his bull-headed refusal to honor the original jury summons.
Jurors are not paid very much and if they are employed their employer is not obligated to pay them while serving on a jury.[i] Petit jurors are paid $50 a day.[ii] These jurors can receive up to $60 a day after serving 10 days on a trial.[iii] Jurors are also reimbursed for reasonable transportation expenses and parking fees. Jurors also receive a subsistence allowance covering their meals and lodging if they are required to stay overnight.
Federal jury service impacts a lot of people. For example, about 54,000 people served on federal juries in 2016. That number probably does not include those who were summoned and not selected. In other words, federal jury service is a large pain in rump of a lot of our fellow citizens even when they are paid a pittance. And, to make matters worse, as of January 25, 2019, the federal judiciary will not be able to pay jurors.
And this bring me to the end of this puny post. The federal courts have been instructed to try criminal cases despite the shutdown and the inability to promptly pay jurors. No sane criminal defense lawyer wants to pick a criminal jury knowing that jurors are going to have to serve without prompt payment of their daily fee and subsistence. At the very least, a CDL will face a jury of 12 angry men (and women).
Perhaps more importantly, the shutdown will force criminal defense lawyers to self-select jurors who can afford to serve without prompt payment of fees and subsistence.[iv] Many minority jurors, and ordinary working people generally, will present CDLs with a horrible Hobson’s choice. Take one or more jurors who want to get the damn thing over so they can feed their families or pick only jurors who have deep pockets.
There is an easy solution to this problem. The President could agree not to veto and Congress could then appropriate the $51 million[v] necessary to pay jurors. They could otherwise keep the shutdown in place. I don’t think that is too much to ask for citizens, who serve as jurors and who otherwise have no connection to the government. It is one thing to use federal workers and contractors as pawns. They assumed the risk (at least theoretically) when they decided to get in bed with the government. It is an entirely different thing to compel citizens, on pain of imprisonment, who have no connection to the government, to come to court without the assurance of prompt payment of their pitifully small stipend.
Richard G. Kopf
Senior United States District Judge (Nebraska)
[i] According to the Washington Post, a March 2017 survey by the Bureau of Labor Statistics, indicated that 38 percent of workers reported that they did not receive paid jury duty leave. The top half of income earners were twice as likely to get leave as the lower half.
[ii] This is eight dollars below the minimum-wage rate of $58 a day. Id.
[iii] Grand jurors are also paid $50 a day. They can receive up to $60 a day after serving 45 days on a grand jury. Otherwise, the same rules apply to grand jurors regarding subsistence. And, again, if employed by someone else, the employer is not obligated to pay the grand juror. Federal grand jury service ordinarily lasts eighteen months.
[iv] While jurors will, presumably be paid sometime, many jurors simply don’t have the resources to wait until some unknown date. Their kids desire to eat on a daily basis.
[v] See page 51 under “Fees for Jurors and Commissioners” in the President’s budget submission to Congress made at the request of the federal judiciary regarding fiscal year 2019. The PDF of that submission may be found here.