12 really angry men

Imagine you’re sitting at counsel’s table, ready to start trial. The jury walks in and is seated in the jury box. The judge shuffles his papers, looks over at them and opens his mouth his start instructing the jury.

Suddenly, one of the jurors leans forward and says: “He’s brave enough to go out and get shot at by anyone but he couldn’t handle this?” Another juror pipes in: “I think severe emotional distress is what is happening in Haiti. I don’t think you could have such severe emotional distress from that”.

The case was a suit for emotional distress in the workplace, but that’s irrelevant. What’s relevant – and a little disconcerting – is the anger, resentment and frustration displayed by the jurors. This outward display of vehemence isn’t necessarily caused by the facts of the case; in fact, under other circumstances, they may have made appropriate jurors.

The troublesome matter here is that these jurors made it through voir dire and were selected – over their own objections. Both those jurors above attempted to be excused based on hardship.

Here’s how it works: a bunch of potential jurors are brought into a courtroom for voir dire. The judge explains the basics and gives them a time frame. Then the judge asks if anyone cannot serve for family or financial reasons. Those that have legitimate excuses or hardships are summarily excused.

The hardships are only getting worse in these tough economic times and courts are getting more reluctant (at least in some parts of the country) to excuse jurors. That jury duty is an important civic duty is unquestioned. Many people who are summoned want to serve, some because they recognize the need to do so. But no one wants to give up days of their lives if it is at the expense of their livelihood. The longer a trial, the smaller the jury pool.

Here, in CT, your employer is required to give you 5 days pay for jury duty. After that, you receive a stipend of $50 per day. Judging by the numbers quoted in the article above, that’s on the high side. In California, jurors get $15 a day. In Dallas, they used to get $6 before it was sensibly raised to $40. But even that’s a pittance.

Imagine forgoing your income for 7 days in exchange for $350? Not many can and want to do that. Yet, somehow, we have to fill our juries.

Lawyers will agree that the last thing one wants on a jury is a reluctant juror. I shudder inwardly every time a judge hesitates to excuse a juror who claims a hardship, no matter how weak or blatantly made up it is. If it’s not a real hardship, but the juror claims it anyway, it reveals a distinct lack of desire to serve. And if they’re forced to serve, they’ll make poor jurors. Forget fair and impartial. They’re pissed off they’re there and they’ll do something to get back at the system. I don’t want that to be at the expense of my client.

That these two jurors made it onto the jury is telling: the system, the economy, all of it is straining under the pressure of the financial downturn. Finding a suitable jury in a criminal case is difficult enough as it is, having 12 angry men is another burden we don’t need.

I understand that the jury pools are small to begin with and are only getting smaller, for a variety of reasons, but to seat reluctant jurors who might vote based on the facts of the case but also might vote their frustration doesn’t serve the interests of anyone.