Monday, September 5, 2016

Jury Reform Proposed Changes

In a previous post, I stated we need jury selection reform.  The process, as is, treats every prospective juror as a criminal before the prospective juror has even balked at serving.  The initial summons is sent with ample warning that failure to comply could result in fines and possible jail time.  Just how receptive should our government people expect a prospective juror to be when right off the bat they are sternly warning and threatening the prospective juror with fines and jail time?  And since the summons is sent regular mail, how can the government people threaten a prospective juror with fines and jail time when they don't even know the prospective juror received the summons?

Business 101: don't threaten a customer with the first contact.  Offer them options.  That is a lesson almost every government employee didn't pay attention to in their Business 101 class.

Since the days when our Founding Fathers wrote our Constitution, society has changed.  The mandate that the accused is entitled to a trial by a jury of his peers hasn't changed.  What should change is how we select a jury to meet the Sixth Amendment's demands.  Our society is a lot different than it was over two hundred years ago when our Founding Fathers penned the Sixth Amendment.  In the old days, it was understood the farmers and the watermen would be out in the fields or on the water in the typical nine-to-five time frame and wouldn't be available for jury service.  A trial would have to be held after sundown when the farmers and watermen returned from the fields or water.  Today, our courts have lost that respect once afforded the working man or woman.

With the introductory thoughts in mind, below are my preliminary suggestions for jury selection reform.


Our Constitution provides, under the Sixth Amendment, that the accused has a right to a trial by a jury of his peers.  Every American citizen should take jury service as an honor.  The roots of the Sixth Amendment can be traced back to the 11th century, but our Founding Fathers enshrined the concept that has made our legal system one of the best in the world and one that many countries try to emulate.

There is no debating the Sixth Amendment nor that every citizen has an obligation to uphold his/her civic responsibility to make the Sixth Amendment work.  The jury selection process, however, can and should be reformed to accommodate the changing workforce and economy.  Being called to jury service shouldn't become a second job.

Historical background

Our Founding Fathers believed that the only fair trial would be one where everyday people judged the accused.  Pawns of the government (or pawns of the King as was the historical experience for our Founding Fathers) should not sit in judgment of the accused.  This shared belief among our Founding Fathers gave rise to the Six Amendment.

When  our Constitution was written, the total population of the original thirteen colonies sat at an estimated two and a half million people stretching from Georgia to Massachusetts.  While there were a few metropolitan areas, most of the population was spread out in rural communities.

Amazing how convoluted this simple
amendment has become.  When has a
speed camera shown up in court to
testify what a bad citizen your were? 
And where does the amendment say you
are REQUIRED to serve on a jury?
By today's standards the metropolitan areas were simply large rural towns.  As an example, in 1790, the population of Baltimore stood at about 13,000.  Today's population of Salisbury, alone, is almost three times the colonial estimates for Baltimore.  In fact, the population of the entire country in 1776 is nearly the same as the population on Delmarva today.

In simple terms of numbers, one can safely claim that an average citizen in colonial times rarely served on a jury during his life time.  While our Founding Fathers saw the ideal of being tried before a jury of one's peers, it can be argued that they didn't foresee a day where the average citizen would be yanked from his farm, the water, or his business on a yearly basis to, in effect, work for the court system free-of-charge.  Back in the Colonial Era, the couple of times in one's lifetime an average citizen was pulled for jury service was seen as a patriotic duty and a minor inconvenience in the form of missing dinner that came with the price of freedom and a fair court system.

Contemporary view

Ask anyone about the importance of maintaining a trial system where one is judged by a jury of his peers, and most will defend the concept as being a very important part of our judicial system.  Send the same person a jury summons, and one will hear a lot of belly-aching about the inconvenience and questions of why couldn't the court select someone else.

The complaining is human nature.  People don't like their lives interrupted, especially when the interruption is coming from "the government" and the only return to the individual is an esoteric sense of "patriotic duty".  The sentiments are compounded further when the summoned juror realizes he stands to lose a day or more of pay.  For the average citizen living from pay check to pay check, the possibility of losing pay only furthers one's disgruntlement with being summoned for jury service.

Further complicating the average citizen's sentiments is the fact that being summoned for jury service isn't a once every five or ten year inconvenience, but has become an annual inconvenience, at least for rural citizens.  Jury service has, in effect, become a seasonal job for the average citizen, but, unlike other seasonal jobs, jury service provides no tangible benefits other than the esoteric sense of "patriotic duty".  Patriotic duty doesn't pay one's mortgage.

Philosophy behind suggested changes

The Sixth Amendment to our Constitution provides for the right to a trial by a jury of one's peers.  What the Constitution does not provide for is an explanation or guidelines for a jury selection process. 

Since the Constitution does not spell out how a jury selection process should be conducted, our courts should take the constitutional mandate as being given a product, the product in this case being a service, to sell to the average citizen.  Unfortunately courts, for the most part, have looked at the constitutional mandate for a jury of peers and decided to treat every citizen as a potential criminal if they didn't willingly accept their "patriotic duty" to serve on a jury. 

In light of the fact that the Constitution does not state an average citizen is a "criminal" for balking at serving on a jury and the fact that courts must provide a jury trial, a happy medium must be reached to satisfy the court's constitutional mandate without penalizing the average citizen.

Proposed changes to the jury selection process

-         Every summons comes with a form that needs to be filled out.  The information, for most people, does not change from year to year or even decade to decade.  Once a prospective juror has completed the form, all future summonses should include a copy of the original form as filled out in a previous year with instructions to return it if, and only if, any of the provided information has changed.  Include a self addressed, stamped envelope for the prospective juror to return the updated information.  A prospective juror shouldn't have to pay to provide the information a court requests.  In light of identity theft problems, the form should be limited to asking for a name, primary address, and "yes" or "no" questions concerning one's criminal record or current involvement in the judicial system.
-         If no changes need to be made to the form, instruct the prospective juror to call a number or visit a website to acknowledge he/she received the summons and all information previously supplied is still valid.
-         If no response to the initial summons is received within a prescribed time period (minimum, two weeks), a follow up summons is sent certified mail, signature of addressee required.  Whether or not the addressee responds to the initial summons becomes immaterial in that the court has proof the potential juror was properly notified of his/her civic obligation if he/she signs for the certified notification.  If the addressee does not sign for the certified letter, the sheriff or employee of a court can be dispatched to personally serve the summons.
-         Courts will be required to call and/or email jurors who will be needed the next day by 9:00 pm the night before.  Potential jurors are still encouraged to call or check in the night before to ensure they do not miss a message.  A missed call or email will not be an excuse for failure to show.
-         All summonses will list mitigating circumstances, exemptions, and limited service requirements with detailed instructions of how to apply for any of these exemptions.
o       Mitigating circumstances
§       Loss of pay
Since businesses are not required to pay employees while they are absent from work to serve on a jury, a prospective juror can claim a mitigating circumstance for loss of pay.  Depending on one's income status, the potential juror can be excused from service or requested to serve (or be available for) service for a period less than the expected period of service.  The loss of pay mitigating circumstance also tells the court that the prospective juror shouldn't be called for a high profile case that may last many weeks, but the prospective juror would be more suitable for a trial that is expected to last one or two days.
§       Transportation
For many living in rural areas, driving to the court is a good thirty or forty mile drive.  For a one-vehicle household, getting to court may be problematic.  Even if getting to court is not a problem, spending ten to fourteen dollars in gas, round trip, and the wear and tear on the vehicle can add up, especially for trials that last a couple of weeks or months.  For a potential juror who lives more than thirty miles from the court, a trial that is expected to last one or two days would be more suitable.  The state or county must provide transportation for any service longer than two days.  If the prospective juror lives in a one-vehicle household, the state or county must provide transportation for any day the prospective juror is called.
§       Child care
Simply put, if the court does not provide a daycare center for children, either the prospective juror is excused from service or the court provides extra pay to cover day care services for the prospective juror. 
§       Unemployed
The unemployed are busy looking for a job, may be taking any job, no matter how temporary, to help make ends meet, and may be called in for an interview when least expected.  The unemployed prospective juror should be given specific days out of the month to call in to see if they are needed.  Knowing which days they may be called in for service allows them to schedule any odds and ends jobs or, more importantly, a job interview.  For the unemployed, possibly being needed for two days out of the week, for example, every Tuesday and Thursday of the month, allows them to schedule their job interviews in advance without needing to cancel an interview last minute.
o       Exemptions
§       Small business owners
Many "Mom and Pop" businesses, particularly those in business for less than ten years, rely on the business owner being there to open the store and run the business.   If a small business owner can show a substantial loss or hardship by being absent from the business, then the business owner should be exempted.
§       Independent contractors
 Don't let the judges squash you!
More and more, many businesses turn towards independent contractors to fill positions that the business once filled on their own.  Independent contractors need to be present every day or pay someone else to perform the work for them in their absence else lose the contract.  Independent contractors are not a new concept (think small business owner), but who has become independent contractors has changed.  Case in point: Shore Health Systems hired their own couriers to run mail and pick up specimens between the hospitals and doctors' offices.  They outsourced the courier position to a third party company, which hires "independent couriers".  In simple terms, Shore Health decided they didn't want to pay benefits, sick leave, vacation time, and annual pay raises to regular employees so they outsourced the job to another company, which also didn't want to pay benefits, sick leave, vacation time, and annual pay raises.  The old Shore Health Systems employees found themselves doing their old job, but with none of the benefits and the possibility of losing their job if they got sick tomorrow and couldn't run the route.  If the third party company can't find a replacement on a day the independent contractor calls out (or the independent contractor can't get his trained replacement to work in his place at last minute), the outcome is simple - the independent contractor is replaced with a new independent contractor and the prospective juror is out of a job.
§       Farmers and watermen
Farmers and watermen could fall under small business owners or independent contractors, but there is no denying they are working from sun up until sundown.  If they are pulled from their job, they lose a day's pay for each day they are sitting in court for jury service.  Unless courts hold evening (that is, after sunset) hours, farmers and watermen should be exempt most of the year.
§       Age exemption
Currently, if a prospective juror is over the age of 70, he/she can be exempted from service.  Age, alone, should not be a reason for exemption.  It is a form of age discrimination.  Any prospective juror, regardless of age, who can show a physical or mental impairment that would prevent them from serving in any capacity can request a permanent exemption.  Age, alone, is not a valid exemption.
o       Limited service
Limited service includes many of the above listed circumstances.  Other reasons for extending a limited service requirement may be because of job requirements that take the prospective juror out of town for extended periods, care of a family member outside of a court's jurisdiction, or simply scheduled vacation time during the month one is called for jury service.  Again, a prospective juror should not be inconvenienced by the court simply because the court has a constitutional mandate to provide a service.  A prospective juror, when called up, should have the option to notify the court (and it should be made clear in the initial summons) that he/she can state what days he/she won't be available and the court needs to judge the limited service requests on a case-by-case basis. 
o       Change court hours
In lieu of exempting prospective jurors due to their employment status or modifying their expected service times due to mitigating circumstances, courts should consider extending hours to include nights and weekends.  Many of the self employed, independent contractors, one vehicle families, and families with children could more easily accommodate a more flexible court schedule.

These suggested changes, while not in formalized or in legalese language, are submitted for consideration and public debate.  As our population increases, our economy changes, our job market redefines "employee", family dynamics change, and the demands of a court system become more burdensome on the average citizen to meet the court's constitutional mandate, jury selection needs to be redefined to reduce the "inconvenience factor" that many now see as nothing more than "the government" finding new ways to control and threaten to extort money in the form of fines from the average citizen.

TL;DR folks:
If you're eighteen or older, you're going to get called for jury service.  You might want to read this entire article now.  If you're under eighteen, you might want to read it so you can explain it to your older siblings, parents, or relatives.

For your listening pleasure:

Posted by Five Drunk Rednecks

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