A fresh look at jury sevice
FOR IMMEDIATE RELEASE DATED OCT. 30, 2001
THE LIBERTARIAN, By Vin Suprynowicz
A fresh look at jury sevice
Those who have served on Nevada juries have been invited to testify Thursday in Las Vegas -- or Nov. 7 in Reno -- before a state Supreme Court panel evaluating possible changes to Nevada's jury service system.
The 15-member panel was appointed by the court last month to review whether the current system deals properly with the thousands of citizens summoned for jury service each year.
Jury service is a conundrum because involuntary servitude was rightly outlawed by the 13th Amendment, just after the Civil War. Yet, while prosecutions of "no-shows" are rare, and jurors are compensated with a minimal $15-a-day stipend (the rate of pay being one of the aspects this panel may now review), jurors are not volunteers. Though themselves accused of no crime, they are required under penalty of law to appear when called -- no better system of gathering unbiased panels of citizens who represent a cross-section of the defendant's peers having yet been devised.
This review of state jury service is a good idea. Waiting long hours or days through cumbersome jury selection procedures can be tedious -- and then jurors are often sent home when a settlement is reached, just as a trial was set to begin.
Is this all necessary? To the extent it cannot be streamlined, can its necessity be better explained to jurors who often feel they're herded about like cattle, without a word of explanation? Almost certainly.
Though it could prove controversial, this panel is also duty bound to examine whether current voir dire procedures and jury oaths verge on jury-stacking, by screening out those who might represent the conscience of the community by refusing to enforce bad or misapplied laws -- just as the Salem witchcraft trials and later prosecutions under the infamous Fugitive Slave Act were finally ended by randomly selected juries that simply refused to enforce those bad laws.
Are Nevada juries being instructed by our judges to swear to "enforce the law as I give it to you"? Then why, in the 1969 case U.S. vs. Moylan, 417 F 2d 1002, 1006, did the United States Court of Appeals for the District of Maryland rule: "We recognize, as appellants urge, the undisputed power of the jury to acquit, even if its verdict is contrary to the law as given by the judge, and contrary to the evidence. This is a power that must exist as long as we adhere to the general verdict in criminal cases, for the courts cannot search the minds of the jurors to find the basis upon which they judge. If the jury feels that the law under which the defendant is accused, is unjust, or ... for any reason which appeals to their logic or passion, the jury has the power to acquit, and the courts must abide by that decision."
And why, as recently as 1972, did the U.S. Court of Appeals for the District of Columbia rule in U.S. vs. Dougherty, 473 F 2d 1113, 1139, that the jury has an "unreviewable and irreversible power ... to acquit in disregard of the instructions on the law given by the trial judge ..."?
Shouldn't Nevada judges be required to inform jurors of this aspect of their well-established and never-repealed power to serve as the "conscience of the community" -- a last line of defense for fellow citizens against inappropriate or overzealous prosecutions under laws lacking wide public support? (see www.fija.org/juror-handbook.htm)
But the jury commission will move onto dangerous ground if it goes beyond this, to seriously considers calls for secret or anonymous juries.
This is a recurrent cry from those who worry jurors may be subject to intimidation or worse as they sit in judgment of gang members whose associates might try to tamper with juries during trials, or harass them after the fact.
Taking precautions in those specific cases may be justified, on a case-by-case basis. But once we allow judgment by hooded and anonymous figures, we have only the judges' and the prosecutors' word that defendants are still being tried by randomly selected juries of our countrymen, rather than hand-picked stooges of the state -- an abomination all-too-familiar from the authoritarian dictatorships of Nazi Germany and Soviet Russia.
Finally, of course, the main problem with jury trials these days will probably not come under the purview of this panel at all, but is instead subject to the discretion of folks like incoming Clark County Public Defender Marcus Cooper -- that is to say, the need to discipline both police and prosecutors to spend more time putting away truly dangerous predators, de-emphasizing prosecutions under lesser "malum prohibitum" statutes -- a task most likely to be accomplished only when the system tolerates fewer plea bargains, bringing more cases to trial, and explaining to jurors why these non-violent defendants do not deserve state room and board at a cool $40,000 per.
Thursday's local hearing begins at 4:30 p.m. at the Clark County Courthouse.
Vin Suprynowicz is assistant editorial page editor of the Las Vegas Review-Journal. Subscribe to his monthly newsletter by sending $72 to Privacy Alert, 561 Keystone Ave., Suite 684, Reno, NV 89503 -- or dialing 775-348-8591.
Vin Suprynowicz, vin@lvrj.com
"When great changes occur in history, when great principles are involved, as a rule the majority are wrong. The minority are right." -- Eugene V. Debs (1855-1926)
"The whole aim of practical politics is to keep the populace alarmed -- and thus clamorous to be led to safety -- by menacing it with an endless series of hobgoblins, all of them imaginary." -- H.L. Mencken
