For many years, regular people would ask a common question: How do I get out of jury duty? My pat response was to explain to them how they, if they were on trial, would sincerely hope for regular people to be willing to sit as jurors so they, if they were on trial, would have a shot at a jury chosen from a cross-section of the community. People didn’t like my answer, because jury duty is intrusive, inconvenient and, well, boring, but they generally accepted the premise. Yeah, sucky as jury duty may be, it’s necessary to get as fair a panel as possible.
But much as they may have loathed this civic “right,” they didn’t sign up to be afraid that someone would beat them or protest outside their home or threaten their children on the way to school. Loathing is part of the gig. Fear is not.
One potential juror was excused when she had a panic attack and couldn’t enter the courtroom, the judge overseeing the case, Maxwell T. Wiley, said Thursday.
The day before, another prospective juror told the judge that she was hesitant about serving because she was “nervous.” Justice Wiley asked her to return for another day of selection, at which point he would see how she was feeling.
Acting Supreme Court Justice Maxwell Wiley was a former Manhattan prosecutor appointed to the Court of Claims and assigned to the Supreme Court, Criminal Term, in 2004. He was a decent and honorable prosecutor, and he’s a fair, experienced and smart judge. He’s what criminal defense lawyers call a “decent draw,” one of the judges you hope you’ll get for trial. It’s not that he’s pro-defendant. He’s not. But he’s not anti-defendant either, and that’s pretty much the best you can hope for and, frankly, what a good judge should be.
Dafna Yoran, an assistant district attorney in Manhattan, asked this week that the jury be anonymous. She made her request, she said, “based on prior threats that have been received on this case by all sides.”
Justice Wiley granted her request, ordering that the jurors’ identities be kept secret and that they be identified by number, as they were in former President Donald J. Trump’s criminal trial in New York earlier this year.
“There’s a lot of not just opinions but very, very strong opinions,” Justice Wiley said in court. “There’s been people who have not been afraid to make threats.”
Justice Wiley is trying the Daniel Penny case, and there are most assuredly “very, very strong opinions.” But opinions aren’t the problem. The problem is that strong opinions have manifested in actions. It’s bad enough that groups, both right and left, sometimes led by elected politicians, have created a belief that it’s proper to try to exert influence over judges by protesting and threats. Judges, at least, know what they signed up for, and it can include making unpopular decisions which will give rise to “strong opinions.”
But the manufacturing of misguided outrage toward judges has metastasized into threats on regular citizens performing a civic duty most loathe by sitting on a jury. It goes without saying that the way to prevail at trial is to persuade the jury that the defendant has, or has not, been proven guilty beyond a reasonable doubt. Some in the outrage mob are unwilling to leave it to chance, believing they have some sort of right, duty, to strike fear into the hearts of jurors if they fail to find in whatever way the mob demands.
Leave jurors alone.
By law, no potential juror can be completely anonymous. The prosecution and defense are entitled to know their identity so they can ascertain whether they can be fair and impartial. And, in a more rational world, the public too would be entitled to know the identity of jurors so it can be assured that whatever verdict is reached, it comes from an honest venire, regular people who sit in judgment of their peers based solely on the evidence presented at trial. Can fearful jurors do this? Can the public rest assured that fearful jurors will reach a verdict solely on the evidence at trial, or will their verdict reflect their fear and be influenced by concern for their own, or their family’s, safety?
The problem is that once threats are made, the calculus that weighs against anonymity shifts. No longer does it favor the public’s right to know who is deciding important trial, but it puts the integrity and safety of the jury first.
Judges have to weigh anonymity against due process, the guarantee of an open trial and how anonymity may prompt jurors to draw unfair conclusions about a defendant’s danger, said Rebecca Roiphe, a professor at New York Law School and a former Manhattan prosecutor.
“It’s something that they should use sparingly, only when it’s absolutely necessary to preserve the integrity of the proceedings or the safety of the jurors,” she said.
The “hidden” problem with an anonymous jury is that it suggests to the panel that they are , indeed, facing a true threat of danger, and it is almost always presumed to come from the side of the defendant, the person in the room accused of violence or harm. And if the jurors believe they or their children are at risk of harm, they will almost certainly harbor a bias against the person who they believe presents the threat. The jurors may not have wanted a seat on the panel in the first place, but they surely don’t want to be placed at risk for performing this unpleasant civic duty.
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[Ed. Note: You know the rules, Bill.]
You know rules are meant to be broken, just like inflation goes up, not down. That’s why they call it inflation. Actually, my comment was only half on-topic. The back half was my predictable rant against the state and its judiciary, which leave a lot to be desired.
Hey, we worked hard on that comment, but it was pretty much off-topic,… if true and accurate. So sorry, Admiral ____?
[Ed. Note: So close, Bill. So close.] Now go outdoors and rake some leaves before you go for a joyride in your Austin Healy.
The media would like to pretend it is on the outside looking in on this problem, but how much of it is less due to the cases themselves than due to their own astroturfing of outrage to maintain eyeballs, in complicity with national political demagogues? (The ubiquitous Trump angle included by NYT aside, since that case has the demagoguery baked in.)
Then again, to imagine a world where that wouldn’t happen is a fairy tale.
“A jury is made up of 12 people not smart enough to get out of jury duty.”
Yeah …. no.
Between a segment in Evidence class and a couple of CLEs, it’s pretty clear that the “regular” view of juries just ain’t right. It’s folks who are there to do their best. They are also folks who are aware of civic duties and take them very seriously.*
As such, they need to be honored for what they’re doing, and absoeffinglutely should NOT ever have to be in fear (as our Benevolent Host points out, loathing is okay) for doing something that’s an absolute bedrock of the legal system.
Sidebar jury story: DUII trial. Bog standard voir dire, including the “do you know any of the parties, attorneys, or witnesses?” question. Crickets. Jury is selected. Opening statements commence forthwith, and in the middle of defense’s bit a juror raises his hand.
Well, this is new, despite a couple decades’ experience in court.
“Yes, Juror Number Number?”
“I just realized I *do* know one of the parties. I know the officer and he totally screwed over a friend of mine.”
“Oh, look at the time! We’re going to break for a bit of an early lunch and reconvene at 1:00.”
The prosecutor, oddly enough, did not ask for a mistrial, even when asked. Went ahead to try the case.
Ooooookay….
End of the trial …. Defendant 1, Prosecution 0.
*Mostly. I’ve heard a few horror stories, but they’re the exception.
I recently received my summons, and applied for a deferral. I’m still in the immunocompromised portion of my leukemia recovery. I ended up getting dismissed. I was hoping for a deferral because I can’t in good faith speak about civic engagement and not willingly engage myself.
More to today’s topic, I do think now and again about the seeming increased frequency of … outside influence … exerted on jurors by the self proclaimed just. In the end I conclude I have a pistol grip pump and a pocket full of shells.