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JURY_DUTY

                                                         June 15, 2023


A few remarks I had no opportunity
to make to the judge, but it's just
as well:


    The judge continually instructs us "don't think
    about *this*, don't think about *that*, just
    think about what I tell you to think about."


    This is the kind of thing that gives one pause--
    under any other circumstances it would give
    anyone pause, but the judge can get away with
    this by relying on the authority of his position.



    If you start with the Federal Papers, No. 83 is
    interesting because it's not just Alexander
    Hamilton giving his opinion about the
    importance of Jury trials, it's Hamilton saying
    something like "Of course I believe in having a
    Jury System, I like them for same sort of
    reasons all you guys do", and one of the main
    reasons is as a check on "judicial despotism".


    In that light, the vision of the Jury system
    as described by the judge looks an awful lot
    like the result of a long campaign of the
    judiciary trying to reign in an institution
    that was specifically created as a check on their
    power.



    Consider that if a police officer is on the stand
    as a witness, we're supposed to regard them
    completely neutrally, and not, for example,
    give them extra creedence just because of their.
    uniform.

    Now consider the judge on the bench, standing
    in his robes.  Is there some reason I shouldn't
    listen to what he says just as criticially?
    Given the vision of the Jury System from
    Alexander Hamilton's time, I'm supposed to
    regard the judge as the enemy.  The main reason
    I'm their is to keep the judge under control.



    Now, I should say I have very little understanding
    of the usual practice of the law in these areas,
    and for all I know if I take that thought too
    far I could be facing Contempt of Court charges,
    but that sort of thing is just "Argumentum ad Baculum",
    it has very little to do with the ethical problem
    of deciding what I'm supposed to do.

    The judge's line throughout has been something like
    "Just trust me, don't do your own research, just look
    at what I tell you to, and think about it the way I
    tell you to."  In any other context, that would set
    off alarm bells.  You'd put your hand on your wallet
    and get out of there fast.

    Continually, throughout the days long process of
    Jury selection, I was getting the feeling I was
    looking at a social indoctrination program, an
    extended campaign of brainwashing and gas lighting
    where repetition and grand-standing is used to
    put pressure on people to go along with the judge's
    view of the process.


    To take one point: the judge states that there is
    no rule requiring more than one witness in a criminal
    case, and he goes further and says if there were
    such a rule, if you were mugged at an ATM machine
    and you called in the cops, they wouldn't even bother
    filing a police report, why should they if there's
    only one witness to the crime?

    That's a terrible argument, a ridiculous leap in logic,
    and I can't help but think he's gotten stale in
    constructing arguments because he's been on the bench
    too long: no, even if there was a rule for n>1
    witnesses, the police should still file a report, and
    then hopefully, spend some time looking for other
    witnesses (or even some of the supporting physical
    evidence that the judge hates so much).  And it might
    turn out that multiple reports accumulate, all of them
    describing the same perpetrator...

    Similarly, the judge argues that while consulting your
    own conscience "sounds nice", it would cause "bedlam".

    The judge argues that if you disagree with a law,
    you should try to change it via the political process,
    and that as a juror you must agree to "follow the law",
    no matter how extreme your disagreement.  If you don't
    you're going against the democratic process.

    (Interestingly, this challenge to democracy did not
    seem to weigh heavily on Alexander Hamilton's mind,
    nor does it disturb people like Sonia Sotomeyer,
    who points to the positive role "jury nullification"
    played in the civil rights movement.)


    And-- the judge argues-- if juries just followed their
    conscience that way, there would be no way to predict how the
    jury would vote, and no way to explain why they voted the way
    they did, and this would be a terrible disservice to
    the judge's colleagues, the prosecution and defence attorneys--

    But: is there some requirement for jury decisions to be
    predictable?  (If the judiciary can't dial-in the result
    of the jury that it wants, that would be bad?)

    And: no one can explain why a jury decides what they do
    in any case-- you need to try to talk to the jurors later,
    and if they don't feel like it they don't have to say
    anything to you.



    I would say that allowing for the possibility your
    conscience might disagree with the law is far from a
    demand that you must rely only on your conscience.

    We all take on prescribed roles in different contexts,
    where we're expected to fufill them to the best of our
    abitility, but it's just understood that exceptional
    circumstances might get in the way.  The doorman
    shouldn't abandon the post to help a little old lady
    across the street, but might very well feel the need to
    do so to provide first aid to an accident victum.

    Walking around at lunch, it occured to me that I often
    begin crossing the street before the light has turned
    green, and yet, I think it would be an exaggeration
    to call me a terrible criminal that hates democracy.


    And all of that is a ridiculously theoretical discussion
    that's unlikely to have any bearing on the criminal
    case at hand (but the judge kept talking about it, so
    I kept thinking about it further).

    More to the point: I was getting the sense that the judge
    was trying to soften up the jury so that they'd convict
    on a case with some very sketchy evidence.  He kept harping
    on how one credible witness can be enough for a conviction,
    which made it sound like there was only one.  He also
    repeatedly made fun of television shows with expert witnesses
    in white lab coats: "they make my job harder", he complained--
    which makes one wonder what he thinks his job is: he was
    telling us he's a neutral umpire, but seemed to be doing his
    best to help out the prosecution.




   The list of thou-shalt-nots:

   (1) don't do your own research

   (2) don't make inferences from
       apparent gaps in the evidence

   (3) don't think about sentencing

   (4) don't consult your own conscience


   There are others I have less trouble
   with like:

   (1) the defendent has a right to choose
       not to take the stand, don't take
       that as a sign of guilt.


   (2) don't be biased.

       Even in the case trying to be
       unbiased, I might raise an
       objection: Working to overcome               The jury selection
       your biases based on race,                   process in effect
       ethnicity, gender and religion,              includes some de-biasing
       that all sounds great.                       training.  I wonder if
                                                    there's any research
       Treating every police officer in             that supports their
       exactly the same way you would any           approach.  If it's
       other individual, that doesn't sound         effective, we could use
       like it follows at all.                      it elsewhere, if it can
                                                    be improved, then we
       A police officer testifying as a             should.
       witness is part of a system, they're
       almost necessarily on the side of the
       prosecution.

       Also, I would argue, they're professional
       culture encourages lying regularly as a
       basic tool of the job.  Do they really just
       shut that impulse off when under oath?



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