About four years ago, local defense attorney Colin Dunham was trying a gun case in Superior Court. The police had found an AK-47 in his client’s back seat.
When the case went to trial, Dunham braced himself for an uncooperative jury pool. In his experience, people will go to extraordinary lengths to avoid servingon any case, but especially in gun cases. “In every case involving guns, you’re going to find people squeamish on weapons,” says Dunham, counsel for the Independent Public Defender Bar Association.
And machine guns are particularly troublesome. “[The AK-47 is] an ugly gun,” Dunham admits, so he was not surprised to watch a series of prospective jurors tell the judge that they could not be fair because they harbored anti-gun sentiments. Misgivings about guns, cops, and the American way of justice winnowed the pool to a handful of undesirables.
Then an old, gray-haired lady approached the bench. “I was wincing even before she opened her mouth,” Dunham says. When she got up to the judge, the lady owned up to a sympathy Dunham had never heard before. “She liked machine guns,” Dunham says, gleeful even now. “She said words to the effect of, ‘I’m interested in weapons. I’m interested in machine guns. I don’t see why everybody shouldn’t have them.’” As defense counsel, Dunham was delighted, figuring he’d found his dream forewoman. The judge was not. The old lady was immediately dismissed.
For all the kvetching people do about jury duty, getting out of it requires little imagination. Even though the courts have tried to limit the reasons for disqualification, legions of peoplepeople just like youtry to weasel out of serving as if they were dodging the draft for an indefensible war.
Each day, more than a thousand red-white-and-blue Superior Court jury-duty summonses land in the mailboxes of lucky voters and drivers across the city. “Jury service is one of the highest duties of citizenship,” the notices read. “It also is an interesting experience that will teach you more about your system of justice.”
Most people, it turns out, aren’t looking to learn. Only a third of those summoned actually surface in the court’s third-floor jurors’ lounge. That’s when the real excuse-me antics begin.
Many people cite reasonable and true explanations for why they should be exempt. They have friends or family who have been victims of crime, or they themselves believe they just can’t trust the police. But othersonce they get to court and glimpse the ordeal that lies aheadwill stop at nothing to get a free pass back to normalcy.
The jury pool summoned to hear a drug case on Wednesday, April 29, appears no different from any othera smattering of 50-odd middle-aged folks who look eager to be somewhere else. Once the lawyers in the case begin their screening exerciseknown as voir direit’s clear that Juror No. 162 is more anxious than the rest.
When the prosecutor asks any jurors who have “moral or philosophical” problems with drug laws to stand, up pops Juror No. 162, a slight man dressed in jeans and a green pullover. Then comes the de rigueur question about whether the jurors know any cops. “Number 162,” says the man, snapping to attention. How about prosecutors? “162,” he says. Defense attorneys? Oh, yeah. Any qualms with the principle of innocent until proven guilty? No. 162 has qualms. Any friends or relatives in the criminal justice system? Indeed.
By the time it’s over, Juror No. 162 is walking back to the jurors’ lounge, awaiting dismissal.
He’ll join the 75 percent of summoned jurors who do not serve on a trial in D.C., according to a recent report by the Council for Court Excellence. Despite a stern printed warning (“Failure to appear as directed by this summons may result in a fine of not more than three hundred dollars ($300) or imprisonment for not more than seven (7) days or both”), a shameful 20 percent of recipients just ignore the summonses altogether. And 40 percent of the summonses get sent to old, incorrect addresses.
In the District, then, juries of your peers are pieced together out of a bullpen of about 115,000 people. Fair trials are brought to you by a tiny sample of less than 22 percent of the city’s population.
Concerned about the shallow pool of jurors, a group of lawyers and experts organized by the council recommended a number of fixes in the report. They suggested paying the jurors a transportation stipend that won’t leave them stranded at the courthouse. (Jurors now get a $2 check each day for their commute, which will get you into downtown from Brookland, but not home.) They advised updating and expanding the master list used to cull jurors. And to recognize jurors as the oppressed minority they are, they recommended creating a “Jury Pride” task force.
For now, though, the courts are loath to implement what might be the only real solution. Unlike many suburban counties, D.C. does not back up its summonses with enforcementall threats aside. “You’ve got about as much chance of being jailed in Bosnia as being sanctioned for not going to jury duty,” says one attorney who’s been roaming the halls of Superior Court for more than 20 years.
If you ignore a jury summons in Alexandria or Loudon County, you can wind up with a subpoena and then a bench warrant for your arrest. In Montgomery County, you can be blacklisted at the board of elections and prohibited from voting. In D.C., the worst-case scenario is that you’ll get a second letter reminding you of the first. Partly because the list of jurors is riddled with incorrect addresses, judges are reluctant to send marshals after no-shows. And since urban courts have a harder time luring jurors, they don’t want to incite any additional resentment toward the already unpopular judicial system.
Benjamin Ford is Juror No. 162. When he gets that jury summons in his mailbox, he feels insulted. “They do it every year to me,” Ford says. “It’s really crazy.”
Ford bitches all the way, starting in the jurors’ lounge, where the staff shows videotapes to prospective jurorsa ploy that Ford views as a means of pacification. “It’s like they brainwash you with the same National Geographic tape. Something about animals and how they reproduce,” Ford says. “They keep showing it over and over again. It’s the same tape. Every year it’s the same tape.”
A black man who lives in Anacostia, Ford says he’s been harassed by the police more than once. He has not a whit of faith in the criminal-justice system, he says, and that’s why he won’t serve. “I keep telling the judges to stop wasting my time,” Ford says.
Other jurors achieve more dramatic dismissals. Defense attorney John Carney remembers a case a few years ago in which an older woman approached the bench and reported that she could not serve because of her profession. She was a psychic, she said, and she just knew the defendants were guilty. “We had no problem with excusing her at that point,” Carney says.
The jurors who do serve tend to be older. After all, many retired folks haven’t relocated in a while, so the notice is more likely to actually reach them by mail. And they can’t use work as an excuse. “Older people tend to not mind serving,” says court reporter Derrick Coney, “as opposed to younger people, who think it’s a pain in the butt.”
Of course, seniors have other ready-made excuses at their disposal. “It seems like a third of the jurors have health problems,” says attorney Daniel Oshtry. “They’re diabetic, they need their insulin, they fall asleep….It’s incredible.”
One woman fell down in the jury room in the middle of a trial and claimed her resulting injuries precluded further service, remembers attorney Charlie Stow, a 30-year veteran of Superior Court. Health problems tend to pop up rather suddenly at the courthouse, Stow says. “They get put on the panel, and all of a sudden they remember they’ve got to have surgery,” he says. “All of a sudden they say to you, ‘Eh? I can’t hear you.’”
Some older people have irrefutable defenses. Sam Harahan at the Council for Court Excellence remembers sitting in on one voir dire session where a juror was dismissed for incontinence. Hard to imagine a better excuse.
Except maybe the explanation defense attorney David Niblack heard about five years ago in federal court. He was picking jurors for what promised to be an excruciating drug case, lasting five weeks at least. Jurors were trampling each other to get sprung. In his 33 years in court, Niblack has not heard a better line than the one an older lady used that day. In front of the judge, the lawyers, God, and everybody, she said, “‘Your honor, I can’t serve because I have gas,’” Niblack remembers. The judge demanded a fuller explanation. “‘I have flatulence,’” she answered concisely. She was dismissed without further questioning.
“It was aut-o-matic,” Niblack says. “I mean, whaddya gonna ask? Is it loud or is it silent?….That’s one excuse that always works.”
After the trial ended, Niblack offered the court reporter cash for the transcript. She declined and reminded Niblack that justice is a serious matter.CP