Kopf: 12 Angry Men (And Women)

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.

22 thoughts on “Kopf: 12 Angry Men (And Women)

  1. Chris Van Wagner

    Thanks, judge, for these ideas and thoughts. As an assistant prosecutor in Trenton NJ in the 80’s we would scour the old newspaper TV listings for the weekend before a serious-case jury selection, looking for “12 Angry Men” on the Late Show. If it had aired, we tried to get the judge to ask prospective jurors if they’d seen it. As young prosecutors, we viewed that movie as the bane of our existence. As a long time CDL now, on contrast, I WISH jurors could watch it as part of orientation. Oh well.

    1. Richard Kopf

      Chris,

      As you may well know, it is in vogue for AUSAs, especially in “dry” drug conspiracy cases, to ask prospective jurors whether they watch CSI. Someone always raises their hands. Then the AUSA explains there will no CSI-type evidence in this case. After that, a CDL in a “dry” drug conspiracy case will invariably tell the jury there won’t be any CSI evidence cause there ain’t no drugs while breezing by the 11 lying snitches, and the gun, two meth pipes and a huge bundle of cash found on the defendant’s person after the execution of the no-knock search warrant.

      All the best.

      Rich

        1. Richard Kopf

          “Smoking kills. If you’re killed, you’ve lost a very important part of your life.”
          ― Brooke Shields

  2. Skink

    Rich–we treat jurors like shit on a good day. They’re jewelry to our momentous arguments, which ain’t all that momentous. Few of us ever really consider what a bag of crap they’re handed. Sure, we thank them for their “service,” but we never really think about what it takes for them to hear our eloquence.

    Add in the shutdown and it shit gone to some word I don’t have. I wouldn’t want to try a case while these dopes fight over their tiny dicks. Either fund it or close the courts. I know that might stress some criminal defendants, but do they really want to be judged by a jury under these circumstances?

    1. Richard Kopf

      Skink,

      As I may have told you (and please don’t be mad if I repeat myself–old men tell and retell the same story frequently) but I have met privately with the jurors after each case I have tried. I have done so several hundreds of times.

      I do so for a variety of reasons, but especially to help them decompress. It is stunning how seriously they take their jobs. I can count on only a few fingers cases where the jury was just lazy. In the overwhelming number of cases jurors put their hearts and souls into their task, and that is particularly true in criminal cases. I can’t count the number of times I have seen jurors weep after handing down a verdict. I assure them that they did the best they could with what they had.

      I go around the jury table and shake hands with each juror. I catch the eye of each person and try to reassure him or her. I hope that helps them. I think it does.

      All the best.

      Rich

  3. B. McLeod

    Jurors won’t like not getting paid. I’m sure they don’t like missing their regular jobs for the $50 or $60 either. I don’t see that it follows that they will take it out on the defense. they might well be more angry with the government (which is, after all, compelling their attendance and not paying them).

    1. bacchys

      That may be what happens, but the government doesn’t have the same skin in the game as the defendant.

  4. albeed

    As a matter of fact, at this very moment I am under summons for federal jury duty both this week and next. I was not needed when I checked on Sunday and need to check in again on Thursday. Not being paid is inconsequential to me as I am retired but would need to drive a long distance.

    The inability to pay for any of my expenses by the government however, would make me favor the defense, if only out of spite. Also, a long speech by the judge, thanking me for my service before the case would anger me and make me favor the defense. When the “arbiter” of a proceeding pisses on me and tells me its raining, whom am I to believe?

  5. Jill P McMahon

    Great movie. We watched it (again) a couple months ago. The other one we love of similar vintage is Anatomy of a Murder. Great book and movie.

  6. losingtrader

    Rich, does the system routinely provide meals to jurors during deliberation? And now?
    What about if you have to sequester a jury? Will the system no longer pay?

    VEGAS RULES: No Comps/ no show

    1. Richard Kopf

      LT,

      Not normally. We allow them to take whatever breaks they want. I have never sequestered a jury and never plan to do so. I have absolutely no idea how funds could be obtained to pay the costs (hotel, etc) for a sequestered jury. I would probably take them home, and ask Joan to handle the problem. As you know, I do that a lot.

      All the best.

      1. losingtrader

        Oh, then you wouldn’t want me as a juror . I deliberately delayed a verdict in my county because I knew Jason’s Deli would be delivered in 30 minutes.

        As to sequestering a jury, you never know when OJ will cut his way through the courthouse.

          1. Losingtrader

            Skink,
            Are we related? Have we dated?
            I usually only receive that comment from family members and sex partners.

  7. Jim Doerty

    My Bailiff used to try to alleviate the miserable situation of our jury room by routinely bringing in a box of donuts. Then when I was on a bench-only calendar for a time security asked if a swat team could hang out in our unused jury room for a couple weeks to be nearby some high profile gang case on the other side of the building. Nice people and a great K-9, the SWAT team.. They left haiku on the white board from time to time. We sent in donuts. Eventually they asked in the nicest way if we could skip the donuts because they were just sitting all day bored without any exercise and were concerned about their SWAT physiques. So we sent apples thereafter and jurors seemed to like that too.

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