Be the Change You Want to See in the World, Jury Duty Editon


Jason Kuznicki

Jason Kuznicki is a research fellow at the Cato Institute and contributor of Cato Unbound. He's on twitter as JasonKuznicki. His interests include political theory and history.

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8 Responses

  1. Avatar James Hanley says:


  2. Avatar Jaybird says:

    I’ll tell this story (from 2009) again.

    So I get the Jury Duty summons in early November telling me that I have to show up on December 7th.

    This is, like, the 5th time that I got such a summons. In the past, I went to the courthouse, I listened to a speech about how great it was to have civil responsibilities and then they wrote two judges’ names on the blackboard in the front of the room. Please fill out this jury questionnaire. Twenty minutes later they erased one name… and twenty minutes after that they erased the other. Thank you for showing up, here is your paperwork for your job, please go home.

    This is just as well. Despite most of my libertarian leanings, I tend to think that the Grand Jury system works for the most part in this country… so those that tend to make it past are probably guilty of something. On top of that, I figured that if/when I ever did get called to a jury, it’d be a DUI, or Domestic Violence, or a meth lab or something like that. When I woke on the 7th, I figured that I’d be going down to the courthouse and sent home at 11 (again) or seated on one of those trials.

    Well, I got to the courthouse, listened to a speech about how great it was to have civil responsibilities and then they wrote nine judges’ names on the whiteboard. Please fill out this jury questionnaire. Erased one name from the whiteboard, erased a second… then they started calling names. I was not in the first group of names called, but I was in the second. Indeed, I was in the first 12 names called of the second group.

    I walk into the courtroom and see a guy at the defense table who is about 60ish years old. Like, you call central casting and you say you need an old guy for a scene at the VFW and you need him to say something about how the country is going to hell in a handbasket… this guy was that guy (those of you who are familiar with Colorado Springs enough to know who Ed Bircham is? This guy could have been Ed Bircham’s twin brother). Probably not meth lab, then.

    We all get seated and the judge comes in and talks for a little bit about how much he appreciates us and how great it is to have civil responsibilities. He starts asking questions about whether anyone has religious views that would prevent them from being able to judge another person guilty (I understand the non-Nixon Quakers would theoretically qualify). Nobody said anything, the judge then broadened the question to the point where he asked if anybody thought that they wouldn’t be able to be objective for any particular reason and, of course, they could talk about it in the back if they didn’t want to talk about it in front of God and everybody. Three people raised their hands, went in the back, they came out and two of them left and one of them sat back down. The judge then started asking some fairly boilerplate questions that may jog everybody’s memory about why they might not be objective jurors. Does anybody recognize the defendant? The prosecutor? The defense lawyer? Is anybody in the jury box a lawyer? Does anybody work with the police, the sheriff’s office, married to someone who does, etc? Fairly straightforward so far. Then he hits us with this particular broadside: He has spoken with both the prosecutor and the defense and they both expect this to be a 4 day trial. Whoa. Definitely not meth. Probably not DUI or spousal abuse either. Huh. Then he says there are six charges related to this trial. Oh good, here’s where we find out.

    The first three charges are something to the effect of “attempted to influence a public official through threats or coercion” and there is one charge each for three different politicians. The second three charges are something to the effect of “filing a false lien”.

    The wheels are spinning in my head very quickly at this point with what those charges are likely to mean in practice… holy crap. He filed a lien against politicians because he said that they were stealing from him and he wanted his money back.

    My eyes widen as I realize that I may not only not be predisposed against the defendant but actually predisposed in his favor.

    One of the jurors asks about foreclosure. Yes, the judge points out, there may be facts related to a foreclosure in this case. The juror’s house is in foreclosure, you see, and he doesn’t know whether he could be objective. This juror is thanked and allowed to leave. A couple other jurors who have had issues with foreclosure (their own or a loved one’s) have conversations over whether they could put those issues aside and be objective. They affirm that they can. We recess for lunch.

    We come back. I walk past the defendant as he stands in the hallway talking to three other guys who all look like they would be much more comfortable sitting in the VFW hall. They were all standing and shaking their heads. We get back into the jury box, all rise, his honor hands over to the Prosecutor so she can ask us a handful of questions.

    The opening part of the speech was a good one. It’s a discussion of the burden of proof. The defendant is innocent until proven guilty. The defendant is not compelled to testify. We should not hold the defendant not testifying against him. This is a right he has. If we all went to the back right now and deliberated, we would have to find the defendant innocent because the prosecution has not proven anything at this point. Right? Right. Now to get to the probing questions.

    One of the first was “Who here has heard of the Constitution Party? The concept of the sovereign citizen?”

    My hand goes up. I look around. There aren’t a whole lotta hands up.

    “What do you know about the Constitution Party, Mister Bird?”

    “They’re Paleoconservatives who thought that the Constitution was done right the first time and so they’ve pretty much kept with the interpretation of the Constitution that they had around the 1830s.”

    “On your jury questionnaire, you indicated that you’d have a problem being objective on a Medical Marijuana case.”

    “That’s correct.”

    “Could you say why?”

    “I read about a case in California where a seller, licensed by the State of California, was not allowed to introduce into evidence the fact that he was licensed by the State of California and ever since reading about that, I figure that the prosecution would be likely to withhold exculpatory evidence from the jury.”

    Nervous laugh. “Well, this isn’t a medical marijuana case.”

    The Judge speaks up. “Mr. Bird, are you familiar with the concept of jury nullification?”

    “I am, your honor.”

    “Are you aware that it is illegal in the State of Colorado?”

    To my shame, I did not answer “you’re going to have to prove it, your honor” but instead asked some variant of “oh?”

    He explained that the job of the jury was to look at the evidence, look at the laws, and then follow his instructions. I asked “if all we’re doing is following instructions, why is a jury necessary?” He deflated a little and explained it again, a little slower this time, that he wasn’t going to tell us how to find, just that it was our job to follow his instructions with regard to the evidence presented and hold that up to the law and we weren’t judging the law. We discussed things for a bit including how jurors in Colorado are arbiters of fact but not of law, how the morality of the law is not what jurors are for, how jury nullification would lean to anarchy, and the like (this wasn’t a 10 minute conversation, we hit these notes in less than 2 minutes, I think… both he and I knew what we were talking about and we were coming at it in good faith). He asked if I could follow his instructions and I said “yeeesssss.” He nodded and said “good enough.”

    The prosecutor probably didn’t expect this sort of thing when she woke up that morning.

    Anyway, she moved on to discuss the concept of “reasonable doubt”. Who in here has ever had a milkman? Various hands get raised. Let’s say you go out in the morning and you check the box by the door and there are the two quarts of milk you ordered. Did the milkman come? Is there a reasonable doubt that the milkman came? My eyebrows knitted.

    Well, it was the defense lawyer’s turn. He pointed me out and said “we’ve already discussed whether juries are really necessary” and I knew, in that moment, that I would be one of the peremptory challenges from the prosecution.

    Anyway, he asked if anybody had kids and gave an example where if you walk into the kitchen and find your kid eating ice cream and he says “mom said I could” and you punish him… and then find out that mom *DID* say that he could have some, what then? You can’t unpunish the child, right. You could say that you had no reasonable doubts that the child would not have been allowed to eat ice cream before dinner… but there you have it, mom said that he could. How could this situation have been avoided? Well, by talking to the mother before punishing the child. Fair enough. He didn’t really nudge the jury in the box that much with probing questions. He speechified for a while about how many unnecessary and unwarranted punishments could be avoided if only the various parties involved would have spoken to each other. He closed with a quote he attributed to James Madison. “A government big enough to give you everything you want will be powerful enough to take everything away.” My eyebrows knitted. That’s not James Madison. (I googled it when I got home. It’s Gerry Ford.)

    Any for cause dismissals? The prosecution named three people, Mr. X, Mrs. Y, and Mr. Z for “for cause” because all three indicated that they may have problems finding people guilty. (I admit to thinking “what am I, chopped liver?” when the names were read and I was not one of them… not because I wanted to not be on the jury, mind… but because, at this point, I knew I wanted to be on it.) The judge then denied the dismissal because these three people had then gone on to say that they could follow instructions, put aside any feelings they had, and so on.

    The judge then asked if anybody needed a 10 minute recess and everybody looked around and I raised my hand because, heck, I needed to pee and I’d already established myself as the pushy guy. I did my business, came back, and had a crisis of conscience and so I went up to the Prosecutor and told her that I didn’t know that I could be objective in this case and I’d need to go into the back and discuss this with the judge, her, and the defense lawyer.

    We went into the back and I opened with “I don’t know that I can be an objective juror here. How’s this? I have a reasonable doubt that I can be an objective juror.”

    The judge chuckled and said “you might be the only person at the table who indicated a decent understanding of ‘reasonable doubt’.”

    He then got into the whole talk of the responsibilities of a juror and asked whether I could put any feelings aside and hold the evidence up to the law. I said “I know that this case out there isn’t even close to Plessy vs. Ferguson” (and he chuckled again) “but I don’t know that I can find a guy guilty of a law that I know to be immoral. If it’s a law that I see as an important law, of course. But if a law is immoral… you can’t do that.” He explained to me again and asked me if I could hold up the facts to the law and, within that framework, find that the prosecution proved that guy broke the law or that the prosecution did not. I said “I can try.” He said something to the effect of that that was all he could ask for and he had no problem with me being on the jury.

    The prosecutor asked me a few questions and it came out that I figured that if I got called to a jury that it’d be for a DUI or domestic violence or something and I certainly didn’t expect to feel sympathy for the defendant right out of the gate, and, hey, he’s a crazy third party voter guy… hey, I am also a crazy third party voter. (That was a direct quote from me. “crazy third party voter”.) The judge again asked “can you put aside your feelings and follow instructions?” “I can try.” He nodded.

    The defense lawyer then said “I have no problem with you being on the jury.”

    We went back out.

    Any peremptory challenges? “The prosecution would like to thank and dismiss Mr. X.”

    Mr. X leaves, new juror comes up to the box. The defense says “we have no peremptory challenges but would like to reserve a challenge if the composition of the jury changes.”

    “The prosecution would like to thank and dismiss Mrs. Y.”

    Mrs. Y leaves, new juror stands up, the defense says “let’s save everybody some time and we’d like to thank and dismiss new juror.” The next guy on the line comes up.

    “The prosecution would like to thank and dismiss Mr. Bird.”

    Well. We could have seen that coming, right? I get my paperwork, I go back to the office, I have a fairly interesting story but one without an ending. Sigh.

    Then Friday rolled around. It was a wacky week at work, it’s the holiday season, it’s the weekend… heck, let’s go to the local liquor warehouse to get a bottle of red something. I find a decent bottle that I haven’t explored before and wander to the beer section to see if, maybe, Pete’s Wicked Winter Brew might have come back, maybe (it hadn’t). Anyway, one of the guys in the liquor warehouse’s uniform walked past and said “hey, aren’t you the guy they kicked off that jury?”

    Turns out, the guy was also on the jury. “Did you find him guilty?”, I asked.

    “We found him not guilty on all six charges.”

    I exhaled and thanked him heartily for ten seconds before I asked “SO WHAT HAPPENED???”

    He and I spoke for about 10 minutes and he explained what happened at the trial. There were a *LOT* of really interesting things that happened. The defendant apparently did not file a lien as much as he went to a Common Law court and sued the three politicians. Now, I hear you ask, does Colorado recognize common law courts? No, Colorado does not. So it was established that filing such a thing in Colorado is the equivalent of writing “this guy owes me money!” on a piece of paper and putting it on the fridge. What law has been broken? It also sort of came out that the defendant sort of discovered that the political dude who had a major role in foreclosures in Colorado had sort of not filed paperwork related to his oath of office or something like that since 1993… and part of the requirements of the job was to re-up that paperwork on a yearly basis. Part of the Constitution of Colorado says that “If any person elected or appointed to any office shall refuse or neglect to qualify therein within the time prescribed by law, such office shall be deemed vacant.”

    Apparently the defendant found this out and started filing claims in Colorado Common Law court (which, you may recall, is not recognized by Colorado) related to all of this.

    He told me stuff about how the Sheriff’s office got a warrant to search the defendant’s home, took 10 boxes worth of papers from the guy’s house, and out of all that, *ONE* piece of paper was found relevant to the Prosecution’s purpose. Apparently, the judge also talked to the jury afterwards and said that the second he got off of work on the day he saw the evidence regarding the failure of the government official to file that oath affirmation or whatever it was, he made sure that all of his paperwork had been in order (it was). One of the jurors asked “is that really *THAT* important?” The guy told me that the judge said something to the effect of “Oh, yeah.”

    The guy also passed on that the defendant apparently has excellent grounds to start suing people. A lot of people.

    I thanked him again. I then went home and started writing this. Whew.

    And that’s my jury duty story.Report

    • Sounds like Constitution Party Guy would have been better off going to a real court and suing for declaratory relief about the foreclosure and the validity of the public official’s actions relating to the foreclosures.

      It also sounds like the guy did file a false lien. The “common law court” is not a valid court and cannot issue a legally binding judgment upon which to lien real property. With that said, the appropriate response to such a thing would be a civil suit to clear the cloud on the title, not a criminal prosecution.Report

  3. Avatar DensityDuck says:

    This sounds like less of a thing than you describe it. The lawyers, on seeing the difficulty of jury selection, worked out a plea where the guy basically pled to time served, a cash fine, and “no conviction on record”. I’m pretty sure that if the lawyers had wanted to go the distance, then a bunch of those potential jurors would have been slapped with Contempt charges and they’d have got a new batch.Report