12 Angry Kittens

Do not ask me how to “get out of” jury duty.

First, let me share with you the story of Sal Esposito. Sal was called for duty in Massachusetts. Sal returned a card stating he was unfit to serve because he did not speak English. According to the Jury Commissioner, he still had to appear. Apparently, there was no option on the disqualification card stating that Sal could not serve because he is a cat. This renews my hope that Human Female will someday bring me to court. The point is, if a cat cannot avoid jury service, I don't know what hope you have.

Second, and this is the answer you will not like, jury service is your duty!

Wait, did you start playing the Star Spangled Banner in your head when I said that? Have you not caught on by now that when I say “These Colors Don't Run” I mean the black and white of my fur? The closest I come to jingoism is jingly-ball-ism. No! Serving on a jury fulfills your duty to commit public disobedience!

This is no pinko-commie-rhetoric here. Public disobedience is written into the Constitution.

I'll explain. Put on your tri-cornered hat and follow me back to the 1600s, (wouldn't I look so cute in a tri-cornered hat?)

The year is 1692. The governors of Salem are trying and executing women for the crime of witchcraft. (Godfrey D. Lehman, We the Jury...the Impact of Jurors On Our Basic Freedoms, 129 (Prometheus Books 1997).)   At what appeared to be the end of Rebecca Nurse's trial, the jury returned a verdict of “not guilty.” Id. at 137. The accusers, to use a technical term, had a collective bird, “pining, consuming, screaming” and all in all creating a “hideous outcry.” Id. The judge urged the jury to reconsider the evidence and to understand that they had heard a confession. Id. The jury was pressured into asking to reconsider their decision, and returned with a guilty verdict. Id. at 138.

“Rory,” I can hear you saying, “this sounds like the opposite of public disobedience. This sounds like the jury gone horribly wrong.” I agree. But the story didn't end there. Between January 3 and January 6 of 1693, the jury acquitted seven accused witches. Id. at 140-1. In May, the Governor “issued a proclamation discharging the one hundred or so prisoners remaining,” effectively ending the Salem witch trials. Id. at 142.

The government was so intent on obtaining convictions, that it (in the person of the judge, and others), was willing to exert overt pressure upon the jury. The climate of fear was so pervasive that no one person could stand up and denounce the trials for fear of being accused themselves. The jury was able to do what no one else could. If there were to be no convictions, then the accusations had no teeth.  The government had no choice but to cease the trials.

Four years later, the jury (which had served together throughout many of the witch trials), issued a formal written apology, stating that “for want of knowledge in ourselves and better information from others, prevailed with to take up with such evidence against the accused as on further consideration and better information we justly fear was insufficient for touching the lives of any.” Id. at 138.

It is a basic principal of Democracy that the people act through their elected officials. If we do not like the laws being passed, then we vote those officials out of office. But this process can take years. It may take two years for the next election to come around, and, simply voting someone out of office doesn't revoke the legislation that person helped pass. It could take more years for the new politicians to act to change previous laws. The jury is a way for the people to almost immediately convey public opinion on a law, as the Salem jury did.

When the Founding Fathers drafted the Constitution, they provided the right to an “impartial jury” in the sixth amendment. The drafters were deeply attuned to the dangers of an overreaching government. “The guarantees of jury trial in the Federal and State Constitutions reflect a profound judgment about the way in which law should be enforced and justice administered.” Duncan v. Louisiana, 391 U.S. 145, 155 (1968). The Declaration of Independence had specifically objected to the lack of juries in Crown-controlled trials. See Id. at 151.

Not only does the jury serve as a protection between government and the people, but it also serves as a signal to the populace that the trial was fair. It legitimizes proceedings. Take for example an alternative to the jury system in our own society, the military tribunal.

In a military tribunal, there is no jury. The evidence is heard by legal experts, versed in trial procedure. They are less attuned to inherent unfairness because they are so immersed in the legal system. For example, in one case, a detainee was asked to reveal the name of an al-Qaeda operative. In Re Guantanamo Detainee Cases, 355 F.Supp.2d 443, 469 (D.C. Cir., 2005), vacated by Boumediene v. Bush, 476 F.3d 981 (D.C. Cir. 2007). Because the evidence was classified, however, the tribunal would not provide the detainee with any information that would permit him to identify to whom the interrogators were referring. Id. The detainee objected:

“I asked the interrogators to tell me who this person was. Then I could tell you if I might have known this person, but not if this person is a terrorist. Maybe I knew this person as a friend. Maybe it was a person that worked with me. Maybe it was a person that was on my team. But I do not know if this person is Bosnian, Indian or whatever. If you tell me the name, then I can respond and defend myself against this accusation.” Id.

Have you read Kafka's The Trial?

The point is, the tribunal members recognized the problem (in fact they laughed), but not the unfairness. See Id. They identified with the issue from a legal/procedural perspective, and not from the individual perspective of the detainee facing the inscrutability and power of the government.

Perhaps the detainee was guilty, but to the American public, (let alone an international audience), the outcome of a military-tribunal is immediately suspect. According to one human rights attorney, Joanne Mariner, this can create a kind of public opinion back-fire: “[r]ather than being stigmatised [sic] as terrorists, defendants...may be seen as political prisoners-- victims, not perpetrators.” (Richard Allen Greene, Analysis: Military Tribunals, (June 29, 2006), available at http: //xroads.virginia.edu/~HYPER/DETOC/1_ch16.htm.)

But, as we all know, juries are made up of people. People can be ignorant. They can be prejudiced. The term “jury nullification” often raises specters of a history of “all-white juries repeatedly refus[ing] to convict whites charged with murdering blacks or civil rights workers of any race.” (Godfrey D. Lehman, We the Jury...the Impact of Jurors On Our Basic Freedoms, 61 (Prometheus Books 1997).) We now have safeguards in place aimed at preventing race-based nullification, but it's not a perfect system. Furthermore, there are prejudices that have nothing to do with race that a defense attorney may not even know to address. There are prejudices so latent that the jury member may not even be aware of them.

All the more reason for you, intelligent, thoughtful reader, to be the one on the jury. And while you're there, ask about litter-box facilities for me.