A homeless, wheelchair-bound man was singing in a train station. The transit police asked him to stop. He refused and was wheeled out of the station. He came back and was arrested. At his relatively insignificant misdemeanor jury trial, his defense was his right to express himself by singing. His attorney and the prosecutor argued complex municipal regulations and First Amendment issues about disruptive behaviors in the train station. The defendant testified, smiling and happy to have what the author describes as a "forum for his humanity."
After three days of deliberations, the jury was evenly split on his guilt. A mistrial was declared. The defendant left the courthouse singing, on his way back to the train station. Thus ended public defender Andrew Guthrie Ferguson's favorite jury trial.
As attorneys we learned the constitutional basis for jury trials in law school. Those of us who work in litigation know and understand the importance of juries to our court system, but probably few of us have considered the importance of jury duty to us as citizens. Now a law professor at the University of the District of Columbia, Ferguson wrote Why Jury Duty Matters
, for those called to serve as jurors. It is an explanation of the importance of jury duty to us as citizens, how it enables us to participate in democratic government.
Ferguson notes that the Supreme Court recognizes that aside from voting, "for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process." By listening to others, tolerating dissenting views, cooperating, and expressing their own opinions, jurors exercise the skills necessary to participate in a democracy.
"Being a juror lets you develop the habits and skills of citizenship," Ferguson says. "You develop by practice. You practice by participating." Throughout the book he expands on the statement by Alexis de Tocqueville, "The jury is both the most effective way of establishing the people's rule and the most efficient way of teaching them how to rule."
Litigants, particularly criminal defendants, should feel that they are at least given a fair opportunity to be judged by a jury of the common people rather than the jaded minds of professional government officials, rendered cynical by the unending course of cases flowing before them. As the "ultimate check on governmental power," juries assure that "the power to judge-to decide for the community-is reserved for the people." The book acknowledges this benefit for participants in court, but emphasizes that not only are litigants
satisfied by juries, but jurors
generally come away from jury duty enlightened by the experience.
Ferguson includes the experience of one juror, "a cynic by nature," who, after participating in her first jury service, discovered that her input was valuable to the other jurors and she participated in shaping a just outcome to the case. Although still cynical, she found that "she trusted the system so long as she was a part of it."
Whereas going to the ballot booth may register one vote in thousands or millions, voting as a juror means one vote of twelve or even fewer. Many people feel that even though their vote counts in an election, it is insignificant compared to the power of lobbyists or wealthy political action committees. In the jury room, the votes of rich and poor, educated or uneducated count equally. "This leveling mechanism strips away the divisions of our normal, unequal society." Jurors must listen to and consider the insights of others considering the same facts. "This practice, then, spills outside the jury room," making for better citizens participating in the democratic process.
Of particular interest was the chapter on deliberation. Professor Ferguson discusses how the Constitution was formed through the deliberative process. According to Ferguson, for nearly four months, the "Founding Fathers debated issues of state power, voting rights, taxes, liberty, and structural protections, and other foundational concerns." The document they hammered out placed a high premium on preserving the deliberative process in town meetings, grand juries, community associations, and petit juries as "local bodies to collectively decide important issues." Since deliberation requires humility, the willingness to listen to the views of other people and be open to a change of opinion, "it is the process of jury deliberation," the author suggests, that teaches us how to think like a citizen.
Deliberation did not produce a perfect Constitution. As Benjamin Franklin said, people who come together to deliberate bring with them "all their prejudices, their passions, their errors of opinion, their local interest, and their selfish views." The merits and weaknesses of the Constitution are still being debated. It has been amended 27 times, sometimes with momentous repercussions.
Seldom are common citizens called upon to make momentous decisions, yet jurors do just that. Their verdicts can bring down a huge corporation, take away liberty, or even life from other persons. Ferguson says that jurors focus and think harder than they ever have before weighing evidence, presenting their opinions, and listening to others. Doing so prepares them for the complex decisions involved in self-government.
"If you can reach agreement through jury deliberation," says Ferguson, "you have a model for the more complex decisions of a democracy."
No wonder John Adams stated, "Representative government and trial by jury are the heart and lungs of liberty."
Glade F. Roper recently retired from the Tulare County Superior Court and is sitting on assignment.