The college friend, having just gotten a jury questionnaire, asked whether a person over seventy can take an exemption from New York jury duty. He has a medical condition that keeps him close to a bathroom in the morning. The 45-minute subway ride would be scary. Otherwise, he would be happy to serve.
He had found previous jury service fascinating. He confesses that his Columbia University neighborhood is insular. At past jury duty he observed a much wider range of people than he usually encounters. This is not surprising since the Manhattan jury pool is deep. It is drawn from the entire borough—about 1.7 million people–which includes people other than academics, lawyers, investment bankers, and rich housewives. The friend told me in one jury selection the prospective jurors were told that the case would depend heavily on police testimony. The New Yorkers were asked about their ability to evaluate such testimony. The friend said that a Yorkville bartender said that he would never believe that a police officer would not tell the truth. Right after him a man who lived in Washington Heights, an area heavily populated by people with roots in the Dominican Republic—Manny Ramirez played high school baseball there and Alex Rodrguez was born there—said that he distrusted the police stemming from the murder of his closest friend.
Despite his past jury experience, my friend was pleased that he could take an exemption for being over seventy.
When I first started trying cases oh so many years ago, there were many other exemptions from jury service in New York. Most were occupation-based. The relevant statute said “a clergyman officiating as such; a practicing physician, surgeon, or surgeon dentist having patients requiring his regular daily professional attention; a licensed pharmacist, a person belonging to the army, navy, or marine corps; a captain, engineer, or other officer actually employed upon a vessel; an attorney regularly engaged in the practice of law; a duly licensed embalmer, a woman” could all claim an exemption from jury service.
Yes, being a woman was sufficient to get a jury service exemption. As the title suggests, no women were on the jury in Twelve Angry Men. It was set in New York at a time when women could be automatically exempted. When the spouse got a jury service notice back then, I was working as a public defender. I could not imagine that she would get selected for a jury. She took the exemption.
A few years later, however, the United States Supreme Court held that the systematic exclusion of women from jury pools violates the Constitution. New York revised its criteria for juries. Women were no longer exempt, and the job-based exemptions also disappeared. (The spouse has never served on a trial jury, but she was a grand juror for a month.)
My exemption as an attorney also ended, and I have been called for jury service several times. This process begins in a large room with a hundred or more people who have been called as potential jurors. The first time I was in a central jury room we were addressed by a clerk about jury duty, but that was later replaced by a slickly produced film about the importance of juries. I did not know whether to be amused or shocked by it. The film told us about the seminal trial of John Peter Zenger in 1735.
German-born Zenger, in a time when this land valued immigrants, published a New York City newspaper, at a time when this land valued newspapers. The Weekly Standard viciously, sometimes amusingly, attacked William Cosby, the greedy and arrogant British colonial governor of New York. Cosby, who appreciated neither the viciousness nor the humor, had Zenger charged with criminal libel, a crime not known today. Cosby handpicked the judges and had Zenger’s first attorneys disbarred. Andrew Hamilton, no relation to Alexander Hamilton, the Founding Father and later a rapper, came up from Philadelphia. The judges would not allow Hamilton to prove the truth of the supposedly libelous statements. Truth, they held, was not a defense. The only issue was whether Zenger had published the statements, which was admitted. Instead, Hamilton turned to the jury and appealed to them directly. Jurors, he argued, you are of this locality, and you know the facts. You know what Zenger said was true. He should not be punished for speaking the truth. The jury, after a few minutes of deliberation, acquitted John Peter.
In our history’s lore, the Zenger trial shows that juries can provide a bulwark against an executive’s dangerous use of criminal charges and also as a bulwark against dangerously compliant judges. The jurors formed that wall in Zenger’s case by ignoring the judicial interpretation of the law, what some call jury nullification.
The film shown to us potential jurors praised the Zenger jurors. The film then went on to the duties of today’s jury service. Buried in this information was the statement that jurors find “facts” but must apply the law the judge instructs them to follow. So much for jury nullification. The film’s producers had either forgotten about the ramifications of the Zenger trial or had never understood them, for no explanation was given as to why the law should be different today from those days of yore.
One of the times I was voir dired (voir dire, in legal lingo, is the process for the selection of trial jurors), I was specifically asked about whether I could accept the law as the judge gave it to me. I was not alone. I and thirty or forty others were called from the jury room and told to report to a specified courtroom. I was shocked when I entered. There was Kevin. I had played tennis with him several times at a nearby club. I knew his name and that he was a better tennis player than I. Although occasionally I might take a set, I generally lost by 6-3 and 6-4. He was not in tennis whites now. Instead, he was in a robe sitting up high. He was the judge for the trial.
When it was my turn to be questioned, he flattered me by saying that he knew that I was an author of a standard New York evidence book, but would I be able to accept his rulings? I assured him that I could. He asked if there was anything I would like to add. Earlier Kevin had introduced the attorneys who would try the case. Although I did not recognize him by sight, I was familiar with the name of one of the lawyers from my days as a public defender. I told the judge that I had no specific memory of working with him in those days, but Mr. Peck and I must have encountered each other. Peck who had had his head down taking notes, looked up, and squinted in my direction without a look of recognition. He asked for my name again, and when given, he gave the slightest nod to me. I was excused from that jury.
I was also excused from a federal criminal jury after I told the judge and attorneys that I had been a public defender and taught criminal law and criminal procedure., In a civil trial, the plaintiff was suing the landlord about a window that had fallen shut on her. In the voir dire we potential jurors were asked whether we had knowledge of personal injury law, had connections with medical personnel, or had been a landlord. I told him that I taught torts, the basis of personal injury law; that although the spouse was not a medical doctor, she had received her Ph.D. from a medical school; and that I had rented out two floors of my four-story house, so I had been a landlord. In a somewhat amazed tone the lawyer averred that often someone had something to say about one of the three areas, and once in a great while about two of them, but this was his first “trifecta.” I was excused from that jury.
I was never selected and was never upset by that. A subset of my fellow potential jurors would take it personally when they were not chosen. (Most, however, sighed with relief when they were excused.) I had never expected to be selected. I had picked juries as an attorney. I had written a book about the jury system. And I knew how important juries were to the Founders and to our present justice system. It would not have been right to avoid jury service, I thought, and I didn’t avoid it on purpose.
For me, however, confident that I would not be picked for a trial jury, it was a stress-free time. Instead, I could reflect on the astonishing diversity of Brooklyn’s potential jurors. These were people with many shades of color and many kinds of jobs and differing education levels and wealth. As the juries were assembled, it was easy to see what I already knew: Juries are our most representative institutions. They better mirror who we are as a community and a country than our legislatures, governors, presidents, or judges. The Founders knew the strength of juries, and it has made me a proud American to see the jury system in operation.
