Kojo and Tom Sherwood chat with D.C. Council Member Elissa Silverman (I-At Large)
In the imagination of many, jury duty is something to be evaded (if possible) or endured (if necessary). But jury service is one of the most direct connections between American citizens and the Constitution. Kojo explores why jury duty matters.
- Andrew Guthrie Ferguson Assistant Professor of Law, David A. Clarke School of Law at University of the District of Columbia; former Supervising Attorney, Public Defender Service for the District of Columbia
- Lynn Leibovitz Associate Judge, Superior Court of the District of Columbia
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. It's a letter that some people savor and others dread, the jury duty summons informing you that at such and such date and such and such time, you're expected to appear at the local courthouse. First, for many, it's something to be evaded if possible, endured if necessary, but maybe, just maybe jury duty gets a bum rap.
MR. KOJO NNAMDISome people legitimately love the experience of serving on a jury of their peers, include me, an opportunity to see a side of your hometown from a different perspective, an experience that compels you to see the world as a constitutional actor, pondering the meaning of ideas like fairness and freedom and figuring out how to work with a group of random strangers. This hour, we're exploring the uniquely local experience of serving on a jury.
MR. KOJO NNAMDIJoining us in studio is Lynn Leibovitz. She is an associate judge of the Superior Court of the District of Columbia. She previously served as a prosecutor in the U.S. Attorney's Office for the District of Columbia. Judge Leibovitz, thank you for joining us.
JUDGE LYNN LEIBOVITZThank you for having me.
NNAMDIAlso in studio with us is Andrew Guthrie Ferguson. He is a professor of law at the David A. Clarke School of Law at the University of the District of Columbia. He's a former supervising attorney with the Public Defender Service for the District of Columbia. Andrew Ferguson, thank you for joining us.
PROF. ANDREW GUTHRIE FERGUSONIt's a pleasure to be here.
NNAMDIWe're encouraging you to join this conversation. You can call us at 800-433-8850. Have you had a unique experience on a jury? Has your experience affected the way you view your community? Give us a call at 800-433-8850. You can send email to firstname.lastname@example.org, send us a tweet, @kojoshow, or simply go to our website, kojoshow.org, and join the conversation there.
NNAMDIAndrew, jury service is deeply entwined with the Constitution and with our basic ideas of self-governance. In fact, it's referred to explicitly in our founding documents and many of the grievances of Colonial Americans were framed with reference to fairness and the idea of being judged by a jury, right?
FERGUSONThat's true. Jury service and the right to a jury trial literally came over on those first boats to America. It was part of the charter that founded Jamestown in 1607, and it found its way as a protection criminal jury trial, found its way in all of the colonies in each of the states. It's one of the first rights agreed to in the constitutional convention. And it does make a repeat appearance, the only right to make a repeat appearance in both the text of the actual Constitution and the Bill of Rights. And since that day, it has been a formative founding part of our democracy.
NNAMDIAndrew Guthrie Ferguson is author of the book "Why Jury Duty Matters: A Citizen's Guide to Constitutional Action." The words jury duty conjure up all kinds of images for people. You begin this book by describing a very consequential moment, an image played out 150,000 times a year around this country, a client and his or her attorney try to get comfortable on a bench outside a courtroom. Why is this the starting point for this book? Why was this the image that comes to mind for you?
FERGUSONBecause it symbolizes the faith that we put in 12 strangers. There I was as it happened many times as a public defender, sitting with my client on those uncomfortable benches in superior court, waiting for 12 people that we had put our faith in that they would do the hard work, the engaging work of trying to figure out the facts and the truth.
FERGUSONAnd what is so amazing and what ends the book is a moment when the jury verdict is announced that we have a verdict and that myself, my client got up from those benches and walked in to face those strangers. Having faith that they would have done the hard work to make the right decision in these cases, and they do it. Right now, they're doing it in D.C. superior court. They're doing it all across the country. It's a wonderful tribute to ordinary people, local people who do the hard work of democracy.
NNAMDIJudge Leibovitz, I suppose your vantage point is a little different when it comes to juries and their role. You're currently sitting on something called a Felony 1 calendar, meaning you're hearing the cases of people accused of crimes like rape and murder -- doesn't get much more consequential than that for defenders or for jurors. How does a group of 12 ordinary citizens, 12 ordinary Washingtonians wrap their heads around the implications of taking on something so consequential?
LEIBOVITZWell, first of all, I actually think that jurors come into those cases very interested in them, very serious about them and incredibly committed to doing their duty as jurors, and they listen carefully. They work very hard to follow instructions, and I think they do an incredible job from my observation.
NNAMDIWell, the first time I sat on jury duty, it was quite intimidating, even though the case was not as serious as that. When we got our instructions from the judge about how we should approach this, even people who may have been taking it lightly before, suddenly began to realize the seriousness of it, and in the jury room, you could see that. We were bringing levels of concentration to this task that we may not sometimes even bring to our daily jobs. Is that your experience interacting with jurors?
LEIBOVITZIt is my experience. Jurors take it incredibly seriously. And so when we hear that jurors dread jury service, of course, you know, nobody wants to have their daily lives interrupted by jury service. And I get called myself every two years. I have for as long as I've lived here. And it is an interruption of your life.
LEIBOVITZAnd even at the moment when jurors hear that they're selected and they're going to sit on the jury, some of them look dismayed and less than thrilled. But by the time they get the case and begin deliberations, they're so serious about it, and you can just see the commitment to doing the job and following the oath that they've taken.
NNAMDIYou get called. Have you ever been selected?
LEIBOVITZI have never been selected.
NNAMDII wonder why not? If you'd like to join...
LEIBOVITZI don't take it personally.
NNAMDIIf you'd like to join this conversation, call us at 800-433-8850. Why you think jury duty is important or not? Why you try to get out of it? 800-433-8850. Andrew, in this book, you provide a little bit of a historical perspective on the idea of jury duty, which is actually much more radical than it would seem given how tame for some people the experience is today. You say that the institution of jury duty is deeply entwined with the Constitution and the basic skills of self-governance. Can you please explain?
FERGUSONSure. And that's not my insight. That's the insight of Alexis de Tocqueville, who recognized that the hard work that Judge Leibovitz just described is learning the lessons and democracy. If 12 strangers can get together, argue, debate, deliberate, think about a hard issue and come to a resolution, well, that sort of prove that democracy can work. And it's sort of a mini democracy every time there's a jury that deliberates and comes to a verdict that there -- those voices -- the First Amendment and free speech voices get played out in front of a jury, and then they come to a hard decision.
FERGUSONYou know, the book is sort of trying to reframe jury duty as Constitution duty, a day to sort of appreciate the values and the principles that guide our nation, participation, deliberation, fairness, equality, accountability, the common good. And they're all at play in jury service, and the hope is or the desire is that those same principles that have been there since the day of Alexis de Tocqueville are still important.
FERGUSONAnd all we need to do or all I hope people do is appreciate them when they come to jury service. You know, I actually wrote this book, you know, you talked about the beginning of the insight. But I really wrote this book because for every day for nine years, I walked past the jury room in D.C. superior court.
FERGUSONAnd I saw those same expressions, that frustration, that anxiousness, sometimes boredom, and I realized that all those good citizens were missing the constitutional moment that was playing around them, that all these principles were at play if people opened their eyes to see it. And I wanted to write the book to get them to see it, and I also wanted them to realize that jury service can really be a meaningful, a personally meaningful experience to take this one day as a constitutional actor.
NNAMDIThe name of book is "Why Jury Duty Matters: A Citizen's Guide to Constitutional Action." The author is Andrew Guthrie Ferguson. He's an assistant professor of law at the David A. Clarke School of Law at the University of the District of Columbia, a former supervising attorney with the Public Defender Service for the District of Columbia. He is joined in our studio by Lynn Leibovitz. She is an associate judge with the Superior Court of the District of Columbia who previously served as a prosecutor in the U.S. Attorney's Office for the District of Columbia.
NNAMDIIf you have called, hold on the line, we'll be getting to our call shortly. Judge Leibovitz, we conducted, if you will, a random survey of WAMU staffers who live in the District and outside, two D.C. residents said they received their first jury summons the second they switched their licenses here, and that they have received summons like clockwork every two years since. One D.C. resident had never been called for five years, and one Montgomery County resident said she had only been called two times over 20 years. So how exactly are people selected to receive summonses in the first place?
LEIBOVITZPeople are selected from a series of source lists, including tax rolls, voter registrations, DMV records to include driver's licenses and non-driver IDs...
NNAMDII'm on all three of those.
LEIBOVITZ...those who receive public benefits such as unemployment benefits or TANF, and the court makes the effort to get the most recent updates of those lists and to update addresses. But D.C. has a population that moves around a lot. With administrations and within the community that lives here, there's a good deal of movement around town.
LEIBOVITZAnd so sometimes, we lose track of people, but the court makes the effort to summon people every two years on a random basis, so it's not like you have your date in 2012, and you have the same date in 2014. It's a random process. A computer algorithm causes the randomness, and I wish I can explain it better than that, but I'm not great at numbers. But it is random, but we make the effort to draw from a number of different sources so we get a cross-section.
NNAMDIWell, let's go to Jill in Chantilly, Va. because apparently Jill wants to serve. Jill, you're on the air. Go ahead, please.
JILLHi, Kojo. Thanks for taking my call.
JILLYeah. Ever since high school civic class and we went to court for a day and observed a real trial in progress, I've always wanted to be on the jury. I am 39 years old, and I'm still waiting for the day I get to serve on a jury. I was summoned once in my life, but, because I had just given birth, I wasn't able to go. And I said please put name back in the hopper so that I can serve, and I'm still waiting.
NNAMDIIs there a process, Judge Leibovitz, for people who would like to serve, like Jill, but who have not been getting summonses? Is there an agency that they can contact to say, look, I'm available, I vote, I have a driver's license, you should know me?
LEIBOVITZIn the District of Columbia, it's very easy. We have a website, www.dccourts.gov. You can go on the website and communicate with the jury office. We even have a chat line. We also have access by phone to our jury office, and anybody who wants to serve who hasn't been getting summonses can call and I imagine the turnaround time will be very brief.
NNAMDIAnd, Jill, I suspect the same exist in your jurisdiction in Chantilly, Va., so you might want to try that and good luck to you. Let's move on to John in Daisy, Md. John, you're on the air. Go ahead, please.
JOHNYes, sir. I had a good experience with jury duty, and some of your guests there have, you know, voiced that. I guess, if you look for the good, you can find it in everything. But I just wanted to go through the process and see how it worked.
JOHNAnd I was really surprised at, you know, the input from other jurors and different directions and how they perceive things as you went along, you know? So that's basically what I had to say. I think everybody should try it. As a matter of fact, I wanted to sign up again but found out that after you turn 70, you don't get called anymore. So it was really a good experience.
NNAMDICouple of questions about that. First, you, Andrew Ferguson, what are the civic values that people pick up like John for serving -- after serving in that process?
FERGUSONWell, I think you see the civic and constitutional values of participation, deliberation, fairness, equality, accountability, the common good. I mean, each one of those things, like we are -- you are literally required to participate, to come in there, which ties with all the participatory aspects of our Constitution -- deliberation, right, this idea of sitting together with people and debating out rationally the right decision in a very difficult subject.
FERGUSONYou have these equality principles. The reason why the jury rooms are such a diverse space in most jurisdictions is because of the fair cross-section requirement that you need this principle of equality. And there's a smaller equality too, right? You can walk in as a judge or as someone who's never graduated high school, and you're treated the same. One person, one vote means something in a jury room where you're each are given an equal voice.
FERGUSONAnd, you know, we talk about one person, one vote, but we don't always believe in it when we see it with the other powers. But when you're in that small room and someone's listening to your voice, it's really amazing. I remember talking to jurors afterwards. One of the nice things about the Superior Court is you can to jurors after they serve. And they talked about this sense of what it was like to have everyone listening to their views and how they felt welcome.
FERGUSONSo I think you have all of these civic participation ideas, and it's all for the common good, right? It's designedly not about you. It's about someone else. It's about your community, and you're representing your community, you're representing the community conscience, and you're able to put all of those at play, so you have the positive experience like the caller described.
NNAMDIJohn, thank you very much for your call. Lynn Leibovitz, what do we do about the kind of over-enthusiasm that we heard not only from our caller, Lynn, but this email we got from Jeff in Burtonsville, who says, "Please ask your guest why there is no possibility to volunteer for jury duty. I was called for jury duty once in 1973, loved the experience but never called again. I'm retired. I would love to serve on a petit jury duty. Why can't I volunteer?"
LEIBOVITZWell, the -- as Andrew has just said, the requirement of a fair cross-section means that we work very hard to achieve randomness in the ways in which we call people. And so I think if we had people volunteering, that could skew the randomness and, therefore, the fairness of the selection process. But if you're somebody who hasn't been called in a long time in D.C., there are ways to crawl and get yourself back on the lists.
NNAMDIGot to take a short break. When we come back, if you have called, stay on the line. We'll get to your call. The line seem to be busy, so if you're trying to reach us, you may want to go to our website, kojoshow.org, and ask a question or make a comment there. Shoot us an email to email@example.com, or send us a tweet, @kojoshow. Have you found yourself on the other side as a defendant in a jury trial? What is your view of the American jury system? 800-433-8850. I'm Kojo Nnamdi.
NNAMDIWelcome back to our conversation about jury duty. We're talking with Lynn Leibovitz. She is an associate judge in the Superior Court of the District of Columbia. She previously served as a prosecutor in the U.S. Attorney's Office for the District of Columbia. Andrew Guthrie Ferguson is a professor of law at the David A. Clarke School of Law at the University of the District of Columbia. He is a former supervising attorney with the Public Defender Service for the District of Columbia and the author of the book "Why Jury Duty Matters: A Citizen's Guide to Constitutional Action."
NNAMDIToday, you two are a law professor and a judge, respectively. But in a former life, you were on opposing sides of the court system. And it turns out that your paths as former public defender and former prosecutor actually crossed, according to this book, with a case involving a homeless man who used to sing in the halls of Union Station. Andrew, please explain.
FERGUSONJust to be clear, Judge Leibovitz was actually the presiding judge of that. She was not the prosecutor.
FERGUSONBut she did preside over one of my favorite jury trials. It was a strange case to have made it to a jury trial because of misdemeanor. And as you said, it was a homeless man in a wheelchair who was singing and asking for money in Union Station. The Amtrak Police did not like that.
FERGUSONThey wheeled him out, and he wheeled -- the client wheeled himself back in and was arrested for unlawful entry. And oddly, despite the fact that there are many other crimes in Washington, D.C., sadly, this case managed to make it way in front of an actual jury, a misdemeanor jury.
NNAMDIHow do you get a jury on a misdemeanor trial?
FERGUSONThere was, and they've actually changed the law on this. But there had been a situation -- the unlawful entry statute was the type of case that required a misdemeanor jury. But again, the -- I write about it in the book about -- under the section of the dissenting voice 'cause it shows that this idea of having a jury take the time to listen to these disputes that are disputes in society and to come to a recent decision is a testament both through the way we value law and order and also that we value the individual, right?
FERGUSONAnd what I write about is that for this man who is used to having the world walk past him and ignore him, strangely, the whole system of justice was now there and paying attention. And it was striking because it was such an, in many ways, unimportant case, but very important to him. And to me, it symbolized how important the jury system was that the courts would take the time to consider this case and this man.
FERGUSONAnd it was a rewarding experience. I'm sure Judge Leibovitz sits on hundreds and hundreds of cases. So she may not even remember it. But it was a formative case, in my brief experience 'cause it was the only unlawful entry misdemeanor jury trial I ever tried. And it was, to me, a striking example of jurors who took the time to listen to one voice, one man.
NNAMDIAnd, Judge Leibovitz, what struck me about that is that the case I sat on many years ago involved the transaction involving maybe $10 or $20 worth of crack cocaine, but there we were, 12 jurors. And I guess for the jurors, even if it is not a major murder or a rape case, somehow it brings home to us that the fate of these individuals, to some extent, lies in our hands. So whether it's a homeless man or two people on a -- what was a small drug transaction, it's something that we, as citizens, learn a lot from and about.
LEIBOVITZWell, I always notice in any trial, whether it's for very serious charges or less serious charges, that jurors hit a moment somewhere after the first or second day in which they start to take care of each other. And I look at people being courteous, having sort of quiet conversation, being solicitous of older jurors or careful of people who may need assistance.
LEIBOVITZAnd I see that there's something about the process that creates this -- I think it's magical -- but a moment in which people realize that they're in an important process together and that they do take it seriously, whether it's a very serious charge or a less serious charge.
NNAMDIWell, here's the more difficult part for me. Once you've gotten a couple of hundred people to show up at Superior Court, you need to figure out how to whittle that entire group, that body of people that's been brought into your courtroom down to 12 jurors and two alternates. Jurors are supposed to be the truth detectors that assess different sides of an argument, arrive at the kind of objective wisdom. Tell us about the selection process and the math involved, if you will.
LEIBOVITZWell, assuming you're summoned to the courthouse with a number of people, every judge who requests a jury panel is sent approximately 50 or 60 jurors depending on the case.
NNAMDII've been in that group several times. Yes.
LEIBOVITZAnd the goal is, as you say, to get 12 jurors plus two alternates. So that's 14. The first part of the process is to try to figure out which jurors have feelings about the case in particular or about the criminal justice system that would keep them from being able to be impartial. And...
NNAMDIThat is the so-called voir dire process.
LEIBOVITZThat's the voir dire process. And depending on the case, certain questions are asked of members of that group of 60. And from that group of 60, certain of them are excused for cause, we say. And that's -- then whittles the group down to a number from which each side gets to exercise peremptory challenges.
LEIBOVITZAnd that means each side gets a certain number of people whom they can excuse. If you do the math, each side gets 11 challenges. So that's 11 plus 11, and you need 14 jurors in the box. So you need 36 jurors in the room just to pick a jury. And so we go from 60 down to 36 by sort of sorting through those how really simply can't sit on the case, and then each side gets to do their challenges. And from that, we get to 14.
NNAMDISpeaking of math, what's the basis of the science, if you will, that says that people over -- well, let me read the email that I got from Carol Lee. "It seems to me that a representative jury would include individuals over 70 years of age. Turning 70, does that mean folks should be invisible in our society?" So I am curious. We had a gentleman who, I think, called earlier who said he's no longer eligible 'cause he's over 70.
LEIBOVITZI don't believe that's the case in D.C. I don't think that there is an age at which you're disqualified in D.C. You have to be over 18. And so any juror who is summoned who turns out to be 17 1/2 will be excused. But there is no age of seniority such that you can't serve. We look at physical disability, and if a person says, I'm unable to sit for more than 20 minutes or I have the following medical conditions that make it too difficult for me to serve, then generally, they will be excused. But there's not an age limit.
NNAMDIYou should know that Andrew Guthrie Ferguson reveals in this book that if somebody's wearing an ugly tie, they're not getting on any jury in which he's involved. What's up with you and the ties?
FERGUSONThat was my personal voir dire picking, of deciding, you know. And if you talk to trailers, they have their own quirks.
NNAMDIIdiosyncrasies, if you will.
LEIBOVITZI had a rule that anyone who looked like my mother would be immediately excused.
NNAMDIBut have you looked at other jurisdictions in which there is an age cut-off?
FERGUSONThere is in some jurisdictions, and perhaps where the caller was calling from, they have it. You know, some jurisdictions across the country have different jury selection processes. They have different requirements. Some jurisdictions actually have different exemptions like if you're in a certain career -- doctors, lawyers -- they might exempt. But D.C. is pretty open and tries to create the largest cross-section they can find. And thus they limit the number of exemptions 'cause, of course, if you try to exempt doctors, lawyers and journalists from D.C. jurors, you might not have as many jurors.
NNAMDINot at all. But, Judge Leibovitz, was your mother aware that any look-alike when you were a prosecutor was immediately struck from the jury as far as you were concerned?
LEIBOVITZI probably did tell her that, yes.
NNAMDII'd love to know how she responded to that. Pam in Wellesley, Mass. Pam, you're on the air. Go ahead, please.
PAMHi. I was calling in to make a comment and ask a question about my jury experience. I've actually served on three juries over the years. And one of the juries I served on was a pretty notorious case in Washington in 1995. It was called the O Street murders.
NNAMDII remember it.
PAMYes. Remember that? And I think there was -- testimony was given for, like, three weeks, and then we deliberated for a week. And there was an extraordinary thing that happened in the jury room during deliberations, and I was taken aback by it. And it stuck with me all these years, and I was wondering if your guests had heard of this before.
PAMThe jury was racially made up of 10 African-Americans and two white people, and I'm white. And when we started deliberating, after the first day or two, maybe after the first day, one of the members of the jury raised the question of whether or not the confession had been coerced by the detectives. Although we had no evidence to suggest that it was coerced -- and, in fact, it was taped, and there was -- there were -- just like on television, the detective said, you know, have -- do you want a lawyer?
PAMDo you want something to eat? Have we assist -- are you being forced, blah, blah, blah, you know, and so on. And as soon as that member -- as soon as that juror raised this doubt in the jury's minds about whether or not the confession had been coerced, our deliberations fell along racial lines. And the rest of deliberations, which became extremely emotional and really fraught with -- well, it was very stressful.
PAMBut it was a division by race even though on our first vote, we had all voted that the prosecutor had done, you know, a good job, and we had decided that the guys were guilty. In the end, I think we ended up finding them only guilty of, like, second-degree murder. And I remember the smile on one of the defendant's faces when he heard that. And I thought oh, my God, we've made a terrible...
NNAMDIWell, you raised several issues that I would like both of our panelists to address. On the one hand, there is the diversity that she talked about because the whole point of jury duties is for people to bring a variety of life experiences to the jury table. And then, on the other hand, there is the issue of race. And we know that race is often used in what are known as peremptory challenges in these court cases. So first you, Judge Leibovitz, care to comment on anything at all that Pam has said?
LEIBOVITZWell, I'll say first of all that, you know, I've been participating in jury trials in the District of Columbia since the early '90s. I think my first one was in 1991. And I do not believe that jury verdicts are the result of racial breakdown or the composition racially of the jury. People certainly bring their own life experiences, their own perspectives to the jury room, and that's why we have a jury system.
LEIBOVITZAnd that's why we want a cross-section, a diverse --a representation of the population in our jury polls. But I do believe that although those discussions are difficulty, that's one of the important things that happens in the jury room, that people are bringing in diverse concerns and experiences and that deliberation means, hopefully, the civil, respectful exchange of those views in the effort to arrive at justice.
NNAMDIWhich doesn't mean it's going to be easy, Andrew Ferguson, as it obviously wasn't in that case.
FERGUSONI completely agree with Judge Leibovitz. I think that the jury deliberations are difficult because the weight of the decision is so serious, and people will bring their life experience to the jury room, and that's good. I don't think, you know, I actually think that by and large, the jury service is a place to break down those barriers.
FERGUSONAnd one of the things, I think, that's really wonderful to see is that people who you know would never be crossing paths in their normal lives, who you know would never be sharing a lunch or be in a room together for a week on end, are doing so. And many of the social and class-based differences that do exist, still exist in Washington, D.C., get broken down in a small way in that jury room. And I think that by and large -- I'm not saying it doesn't happen, but by and large, it's a very positive experience for people. And it's a learning experience for people of all races and all classes.
NNAMDIIndeed, I think Pam probably learned a lot during the course of that jury trial about how some of the African-American members of their jury felt about police coercion because their experiences may have been different to hers. Pam, thank you very much for your call. We move on now to George in Lewes, Del. George, your turn.
GEORGEHi. Yeah. I'm in coastal Delaware, and I've served now in Georgetown, Del. twice in 15 years. I was called twice and served once. That's not my question, though. I started getting feelers from the federal courts about being on a grand jury in Wilmington, and I eventually whirled back on the second set of stuff they sent me that it was too much of an economic hardship.
GEORGEIt's a two-hour drive, plus they were offering, I think, $36 a day. It's a six-month grand jury sitting, and you only -- I think you only serve four days a week. And I'm wondering, who serves on those? Who -- where -- who can afford this to be out six months, and how can I be a jury of your peers? I know they don't convict. They just recommend indictments, right? But that's my question. How do they get people to serve on those?
NNAMDIWell, we got a tweet from somebody, who said, "They say the jury service is very difficult for independent contractors as opposed to people who are paid by their employer during their time on jury duty." I suspect, Judge Leibovitz, that more difficult than you have to be on a grand jury for several weeks.
LEIBOVITZWell, I think it's difficult for anybody who's not paid when they don't come for jury service to serve, and we certainly are conscious of that. With respect to grand jury service, the court does take very seriously economic hardship. And if a person says that they're -- that service on a grand jury would be too economically difficult for them, they usually are switched over to petit jury service. And so we do, I think, pay close attention to accommodating those concerns.
NNAMDIThank you very much for your call, George. We move on to Sean in Washington, D.C. Sean, you're on the air. Go ahead, please.
SEANYeah. Hi, Kojo. Thanks for taking my call.
SEANI'll try to make this brief. My father was actually a public defender for the D.C. Superior Court system. He retired in the '80s. In any event, he was a good lawyer, but he went into public service for idealistic reasons. I remember him watching the O.J. trial with a fascination for all the legal aspects of it. After the trial, I remember him just being shock like a lot of people but also very crestfallen because he so much believed in our American justice system. But I remember distinctly him saying, I believe this might be the end of the jury system as we know it.
SEANAnd when I discussed it with him, the two main reasons were, one, the race card had been played. And it just -- it seemed to have tainted the whole trial. Number two, all the DNA evidence and everything, and he said, maybe we've come to a point where, you know, average Joes like myself, this -- all the scientific evidence is just a bit above their heads, and they can't make qualified decisions. So that's...
NNAMDIOK. Well, the jury system seems to have survived that trial. But, Andrew Guthrie Ferguson, I'd like you to respond to some of the points that Sean said his father was making.
FERGUSONSure. The reputation of the jury was affected by the O.J. trial. But I think that, you know, one of the things that gets forgotten is that the O.J. trial, the Casey Anthony trial, whatever high profile trials, just the sliver of the number of trials that are going on right now all across the country where ordinary citizens are doing really hard work in small rooms doing their duty and most of the time, those jurors would get it right.
FERGUSONAnd it is true, you have both sort of pop cultural idea of the jury from tall, angry men to the runaway jury, and you have the sort of high profile sensational trials. But that's not the hard work that really happens. And it sort of the forgotten stories are the ordinary people who show up, do their job and really don't even -- doesn't even talk about it afterwards. They just go back to their lives, having served their community, maybe being changed forever. But they have -- they're not the O.J. cases, and they're not the Casey Anthony cases. They are the true, you know, spirit of America.
NNAMDIJudge Leibovitz, what happens when we use those really sensational cases as benchmarks for making judgments about the jury system overall?
LEIBOVITZI guess I can't say that a sensational case is ever a good thing for anyone's perception of the jury system. And in my experience, there's always a reason for the verdict that results from a case or usually an explanation that if you spent any time thinking about it, you would pause it. And so I don't think that juries that may have been described as rogue juries or juries that didn't follow the law are necessarily getting a fair rap.
LEIBOVITZI think that the quality of the advocates can affect the outcome, the kind of evidence, the credibility of witnesses and the ways in which they portray themselves on the stand. And sometimes, you know, the scientific evidence is not persuasive because it's difficult to understand, but I don't agree the jurors are not capable of understanding scientific evidence. I think there are a million good reasons why verdicts are what they are even if they weren't as expected. And the jurors try to be fair and try to make the right decision. It may not be one that people agree with.
NNAMDIGot to take a short break. We talk science when we come back. We'll talk technology and that how -- how that might be affecting jurors across the United States. If you'd still like to join the conversation, call us at 800-433-8850, or send email to firstname.lastname@example.org. I'm Kojo Nnamdi.
NNAMDIWe're talking jury duty with Andrew Guthrie Ferguson. He's a professor of law at the David A. Clarke School of Law at the University of the District of Columbia, former supervising attorney with the Public Defender Service for the District of Columbia and author of the book "Why Jury Duty Matters: A Citizen's Guide to Constitutional Action." Also joining us in studio is Lynn Leibovitz. She is a judge in the Superior Court of the District of Columbia.
NNAMDIShe previously served as a prosecutor in the U.S. Attorney's Office for the District of Columbia. You may want jurors, Judge Leibovitz, who have not made up their mind about a specific case and who are not accessing information from outside the court case. But courts around the country have been grappling with new technologies and the prospect of tweeting or Facebooking jurors.
NNAMDIIn fact, a couple of years ago, the embezzlement case against former Baltimore Mayor Sheila Dixon was almost upended. And it was revealed that numbers of the jury had friended one another. And we got an email from Stanley, who writes, "Simon Jenkins of The Guardian London writes, the juries have outlived their usefulness, quoting here, 'The age of the Internet makes the archaic rituals of our courts seem like little more than parlor games.'"
NNAMDIHe argues that juries are full of time-wasting procedural nonsense and the waste of money. With Internet, jurors can do their own research and not to be kept ignorant or restricted only to what is said in court." How, in today's world, in today's hyper-connected world, do you keep jurors from either, A, discussing or, B, finding more out about a case? What kind of challenge does that present for you?
LEIBOVITZIt presents a challenge. And we've been pretty focused on it as a court for a while now. I believe that jurors follow instructions. It may not occur to them that they can't tweet, blog, Facebook post about a case, and so most of the judges in the Superior Court are instructing panels well before a jury is seated that they must not communicate about the case online at all.
LEIBOVITZThe interesting thing is that it's more detectable than if they used to have a conversation about it with someone and not tell anyone that they had, we wouldn't know it. Now, our press representative, Leah Gurowitz, becomes aware fairly quickly if someone's tweeting about something in our courthouse or is online about a case. And so we will find out if people are disregarding our instructions.
NNAMDIThere is a digital trail. We got an email from Mike who says, "I did not hear the beginning of the program. But if you've not covered jury nullification, would you ask your panel to please do so? How often is it used if you mention it? As a perspective juror, is it automatic ground for being let go?" A couple of years ago, we spoke with Paul Butler, professor of law at Georgetown University, who's written extensively about jury nullification by which juries refused to convict people charged with certain crimes, particularly drug crimes. Care to comment on this, Andrew?
FERGUSONWell, you know, the jury nullification is part of the history of America. There were revolutionary, colonial juries that nullified in sedition trials when journalists were complaining about the New York governor and calling him a tyrant and a liar. And he may have been a tyrant and a liar, but you weren't allowed to say that. And people like John Peter Zenger were first indicted, and the grand jury refused to indict him.
FERGUSONAnd then there was a jury trial and the jury refused to find him guilty. And that history helped shape why we have the right to a jury trial. And you've seen some positive jury nullification cases in terms of maybe the anti -- the Fugitive Slave Act, anti-abolitionist prosecutions. But there also have been a trace amount of negative ones. Most -- much of the history of the South where white jurors refused to convict guilty white defendants who had committed crimes against people of color is a negative history.
FERGUSONAnd I think you don't see it as much in modern world. You don't see it in the same overt ways. And I think it's a dangerous thing. I don't really talk about it much in the book. I think I referenced it once because I think it's a dangerous reality. And it's not something you necessarily want to encourage, either that's a way to get out of jury service or that it is something to be done by jurors.
NNAMDIHave you ever faced it as a judge in -- as an associated judge in Superior Court, jury nullification, Judge Leibovitz?
LEIBOVITZI have faced jury panel members in voir dire who asked about jury nullification, and in the context of a specific case basically said that they would decline to follow the law in certain circumstances because they objected to the law. Those are jurors who would be excused for cause. In other words, we instruct jurors that they must follow the law as it's stated to them. And I agree with Andrew that the risk to fairness is high if jurors do disregard the law and disregard the instructions they are given. It can become unfair in any possible direction.
NNAMDIOn to Liz in Silver Spring, Md. Liz, your turn.
LIZThanks for taking my call. To get back to something that Andrew said earlier in the program about it being emotional, I served on a medical malpractice jury, and I disagree things the way it went. One was that the judge had an awesome sense of humor, and I would imagine that that's probably an asset when you're dealing with people's lives. The other thing was that the lawyers make a huge difference in how evidence is delivered.
LIZYou know, you get some of these guys, they're vocabularies are vast, they're confident, and I think that that definitely in some ways makes it easier for you to follow things. And then the other thing is, you know, you're -- it's not just like participating in your community, you're looking at people that are essentially you. It's another citizen who's trusting your judgment and following the letter of the law to make a decision that can alter their entire lives. Like the guy that we -- that I saw, you know, he was a guy my father's age.
LIZAnd he's professing all these intimate details about this situation that he was in, and it's very emotional and very personal. And I can't imagine what it's like for that individual to sit there in a room full of strangers and tell their story and, you know, hope that things work out the way they want. And on the other side of it because it was a medical malpractice, you have a doctor whose license was in jeopardy, and that's a huge thing, too. So no matter how you decide it, if someone is not going to get what they wanted or needed out of the...
NNAMDIWell, let me ask Andrew Guthrie Ferguson. How do you persuade a client -- or how do you talk to a client about putting his or her fate in the hands of 12 people who he or she may not know?
FERGUSONIt is a difficult task. I mean, you know, if you think about it as the, you know, many clients just assume that that's a system. But when you talk to them about why and how they'll have a role in picking these jurors -- and I used to pick juries with my clients -- it is still strange. I mean, the faith that we put in to ordinary citizens to do their job is really incredible. And as the caller said, it is emotional for everyone involved. Every case that goes to a jury trial is difficult, right? The easy one is settled right away or settled in some other way.
FERGUSONAnd so you have emotions, you have personal relationships. You know, in the civil side, right, you have the damages and professions. In the criminal side, you have liberty. And it is a difficult task, but most jurors take it seriously. And as a result, if you didn't convince your client that those jurors will take it seriously, you can convince them to walk into that courtroom and face the verdict, face the judgment.
NNAMDIJudge Leibovitz, two questions: Some criminal cases are conducted without a jury, especially in circumstances when the judge or legal counsel believe they could not get a fair hearing. What are the circumstances when the jury system doesn't seem to be the right fit for the case before you?
LEIBOVITZWell, it's usually a decision that's initially made by a defendant in consultation with his own lawyer. And having never been in that position, I can only speculate. I handled one fairly high-profile case where three co-defendants waived the jury, and it was a case in which there was a high degree of press attention, and I know that they felt that the press attention had been negative and would affect potential jurors.
NNAMDII think we all know what case that was. But we have an email from Dan, who says, "Some have suggested we have professional, full-time, well-paid jurors, who would be better trained and educated, and that experience will somehow make them better at their job. What are the pros and cons of this? Would this lead to elitism or better, more objective deliberations? How would that affect the notions of objectivity and having a jury of one's peers?" Andrew, that would undermine the entire constitutional intent, would it not?
FERGUSONIt would. And it would undermine the idea that, you know, it's the same way we don't pick people to vote for us, right? We could pick really smart people to make our voting decisions, but that's not the way we do it here because we entrust the future of our country to ourselves. And we hope that we rise to the occasion when we're tasked to do it.
FERGUSONAnd I think, you know, it's not to say that those systems don't exist in other parts. The idea of the lay jury system where you have citizens working with judges in sort of a panel to make decisions does happen, but it's just not our system, not the American system. And I think it undercuts some of the values of the jury system.
FERGUSONYou know, my hope is that we increase the number of jury trials so we increase the number of jurors and citizens who have this experience or sort of connecting to our constitutional identity, connecting to our constitutional principles, and that, instead of running away from it, we should actually be broadening it and getting all these people who are interested in the jury service who are calling in to have that opportunity.
NNAMDIRunning out of time very quickly, Judge Leibovitz, but I wanted to share this email we got from Lisa in Petworth in Washington: "My five-week, everyday grand jury duty in Washington, D.C. was one of the most interesting things I have done in a very long time. I learned a great deal about the city in which I have lived for 30 years, neighborhoods I know well and where I really go, what goes on in my youth homes and public schools, new slang and other linguistic forms, street nicknames. My sense of normal is forever changed. If summoned, go." I guess you would endorse that, Judge Leibovitz.
LEIBOVITZI would, and I'm happy to hear that there are satisfied customers.
NNAMDI"If summoned, go," says our emailer. Lynn Leibovitz is an associate judge with the Superior Court of the District of Columbia. She previously served as a prosecutor in the U.S. Attorney's Office for the District of Columbia. Thank you so much for joining us.
LEIBOVITZThank you for having me.
NNAMDIAndrew Guthrie Ferguson, he is an assistant professor of law at the David A. Clarke School of Law at the University of the District of Columbia. He's a former supervising attorney with the Public Defender Service for the District of Columbia and is author of the book "Why Jury Duty Matters: A Citizen's Guide to Constitutional Action." Andrew, thank you so much for joining us.
NNAMDIAnd thank you all for listening. I'm Kojo Nnamdi.
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