July 30, 2010

Bushell’s Case

In my previous blog post, I noted that I was dismissed from jury duty by the judge. Judge Richard Klaus had a series of standard questions that he asked of all the potential jurors. I had heard the questions during my first day of jury duty, so I had had a chance to think about them when it came my turn to answer them mid-week. They included the basic tenets of innocent until proven guilty and that the defendant does not have to testify, which I agree with. There was a question about whether I would give equal weight to all witnesses, police officers included. Yes, indeed. Then came the question that I could not answer in the affirmative: would I follow the instructions of the judge and apply the law, whether I agreed with it or not? Honestly, no.

I believe in the rule of law. I do not think people should punch others in the face, much less rape or kill each other. Yet there are a lot of bad laws on the books; generally I try to challenge them through the political process. But there’s another way to challenge the law, and it is called jury nullification. If a juror or jury does not want to enforce the law, Bushell’s case from the 17th century provides a precedent for them to “nullify” the law, regardless of the judge’s instructions. Bushell’s case arose from a trial of the Quaker William Penn and his co-defendant, William Mead, in 1670 in London. They were accused of unlawful assembly. The jury in the trial returned a verdict of “not guilty,” which the judge did not like, so the judge had them locked up and fined! Most of the jurors, after several weeks, paid the fine, but Edward Bushell refused. He subsequently challenged the case in the Court of Common Pleas and Chief Justice John Vaughan ruled that the detention and fine were contrary to law.

I wrote an article about this case in 1981 called “Does Conscience Matter More Than Law?” in Update on Law-Related Education, when I worked for the American Bar Association in Chicago. I am being lazy here and quoting myself: “The liberty of the jury to decide as it sees fit–even if it decides differently than the judge would or ignores the law in coming to its verdict–is central to our system of justice. Juries introduce a wild card into the system, but one that is necessary if the system is to have public support.” I still agree with what I wrote thirty years ago (and with Judge Vaughan), so I told Judge Klaus that I might not follow his instructions. He said, “Ma’am, you may go.” I have to say, I was a bit disappointed.

Bushell’s case got quite a bit of attention in the 1960s when juries refused to convict draft resisters; of course, jurors could also ignore laws that I believe should be enforced–thus I am unsure (along with a lot of others) about informing jurors about Bushell’s case. It seems worth stressing, though, that the jury is a political as well as a legal institution. To quote myself again: “Jurors must, as the conscience of the community, be permitted to look at more than the mere letter of the law.”

July 29, 2010

Jano Justice Systems and Jury Selection

I was recently on jury duty and did some informal inquiry and observation about the current ways in which Champaign County (IL) finds jurors. On a Monday morning, about 35 of us showed up at the courthouse in downtown Urbana and had a brief orientation. The staff handed us badges with bar codes and our juror number on them along with a brochure about petit juries. The brochure said that my name “was drawn by lot from the combined lists of registered voters, licensed drivers, holders of Illinois Identification Cards, and Illinois Disabled Person Identification Cards who reside in this county.” The county uses Jano Justice Systems software to generate the jury pool. Apparently since 2003, the county has been using Jano in tandem with New World Systems to integrate the record-keeping and data management of the courts, according to this one article I found. “Together, Jano and New World will integrate multiple agencies, including the Sheriff’s Office, Correctional Facility, State’s Attorney, Juvenile Detention Center, Circuit Court and Clerk, Adult Probation, Juvenile Probation and Public Defender so each entity has access to critical information stored on a single system.” New World indeed. A detention center or a detention centre is any location used for detention. Specifically, it can mean:


….. Click the link for more informa

Of the 35 people I saw that first morning in the jury assembly room, I saw two African Americans and one woman who was reading a Spanish language newspaper. Otherwise, everyone looked white. That’s about 8 percent non-white. There is a Champaign County Citizens’ Advisory Committee on Jury Selection that formed in 2008 to look at the racial disparities among jurors.  According to Brian Dolinar, writing on the Independent Media Center’s website: “For several years the Courtwatch study conducted by the League of Women Voters has shown that while African Americans make up 60% of defendants, they represent 5%-6% of the jury pool.”

I was called back for the afternoon and sat through the voire dire phase, without being called. It was fascinating to watch the 13 jurors being questioned and selected. The person on trial was a white male. The next day, I was told not to come in. The third day I was told to report at 9am. I did so and was called to the jury box. There was another white man on trial. I was dismissed by the judge shortly thereafter, and thus ended my jury duty for this round.

While I was waiting at various times this week, I read a really good article in Communication Theory from February 2003 (13:1, pp. 5-38) called “The Racial Foundaiton of Organizational Communication.” Authors Karen Lee Ashcraft and Brenda J. Allen noted that “the field’s most common ways of framing race ironically preserve its racial foundation.” They argued, rightly I think, that “the valuing difference approach ignores a … power problem. If corporate America is built around Whiteness–and if Whiteness is socially constructed as separate from and superior to darkness–how can we genuinely speak of valuing difference as a possibility?” (p. 16)