Yesterday, 3/29/2011, I was a juror and
today I feel like I'm the one who put the last nail in the
coffin of justice. I did my job, but I couldn't deliver
participated in a system that no longer works and by doing so
allowed the illusion to persist that we are a nation of laws
and that justice in America is blind.
In so doing I helped validate a system that allows
injustice to persist. I
can’t change today what I did yesterday. And yet I
can’t honestly say that had I done something else, it would
have made any difference at all.
My heart is breaking.
I was called to be a juror.
It was a case involving an individual who was charged
with driving under the influence.
In the jury room I and others struggled with the facts
in the case; i.e., Did the prosecution prove its case?
After long deliberation all of us finally agreed that
the defendant was guilty of the crime for which he was
accused. I don’t
believe we made a mistake in that regard.
Before I was seated as a
juror, I agreed that I could and would follow the instructions
of the judge. In the end, even though I was aware of what I am
about to share with you, that’s what I did:
I simply did what I was asked to do.
We were informed that as
jurors we were officers of the court, but we were never told
what that means exactly in legal terms.
I assumed it simply meant that I, like the judge and
the two attorneys in the room, have a duty to protect and
defend the Constitution of the United States (which is to say,
the defendant’s rights, and every citizen's rights) against
all enemies, foreign and domestic, to the best of our ability.
It was our duty to be vigilant, honorable, and steadfast in
making sure that justice was done.
But can any ordinary
citizen today get a fair trial?
I’m not at all sure that it's possible.
Our police officers are charged with policing certain
members of our society while other members of society are not
policed (or properly regulated) which can make it possible for
some criminals to do great damage and unravel the very fabric
of our society leaving the rest of us to pay the price. In
fact, the crimes of those of whom I speak, work to impoverish,
more than anyone else, the most defenseless citizens among us,
many of whom become trapped in persistent poverty,
homelessness, and despair because of our failure to enact fair
laws or uphold laws that are already on the books.
To make matters worse,
unthinking lawmakers often try to make up the losses caused by
these unprosecuted criminals by unraveling the social safety
net that was put in place to prevent the most vulnerable among
us from having to face the level of hopelessness that the
crimes I’m talking about help create.
The Fourteenth Amendment to
the Constitution promises citizens equal protection under the
law. But there can
be no equal protection under the law if some people are
considered to be above the law, and when the law only
prosecutes the weak and vulnerable members of society for the
crimes they commit while allowing the most dangerous criminals
among us to profit from their crimes and go free.
Where’s the justice in that?
I don’t think there is any… so what are we to do?
In the final analysis, what
convinced me to find the defendant guilty in my case, was my
carefully considered decision to accept the arresting police
officer's testimony to be, in and of itself, proof beyond a
reasonable doubt... because I believed the officer to be a
decent, honorable man who was doing his job to the best of his
ability and I believed he was qualified to recognize that at
the time of the arrest the defendant was highly intoxicated
and unable to safely operate his motor vehicle.
But that police officer was
cheated, and so was the defendant, and so was I and so were
you by this proceeding because the laws of this land are not
fairly enforced. Only
certain people are prosecuted for the crimes they commit.
Only certain people are investigated, arrested, and
face a day in court for their crimes, even when we all know
that grave and serious crimes have been committed that
diminish all of us. The
system is broken and by participating in it as if it were not,
and narrowly focusing on instructions of judges and other
people in authority, we keep the injustice in place, and by
doing so participate in the demise of our Constitution, the
rule of law, and our children’s birthright — the right to
live in a just, fair, and decent society.
You might argue that it was
not my job to do anything other than sort out the facts of the
case and find the defendant innocent or guilty of the crime
for which he was charged. You might argue that that’s
the only way the system can work; i.e., with each person doing
his or her job to the best of their ability — that my
suggested grievance needs to be pursued somewhere else.
For example, if I had removed myself from the jury box,
what good would that do. Someone
else would have taken my place and maybe that juror would have
been less diligent than I was in sorting out the facts of the
case. Would that have been a better choice?
The system is broken.
It doesn’t work. The problem is that everyone is not
doing their job, particularly those at the highest levels of
government and at other powerful institutions that form the
backbone of our society. Today,
in America, there is no “somewhere else.”
There’s only here and now wherever we are, whoever we
When my time came, I
couldn't think of what else to do other than what I did do,
and yet when I had the chance to speak up for justice in the
courtroom, I didn't do it.
I can’t change yesterday, but can say something now,
even as I doubt that anything I might say will make any
difference at all.
Following a judge’s
orders can only forward the cause of justice if every officer
of every court, and every citizen in every city and state,
does his or her duty to see that the full measure of justice
is done, that the Constitution is preserved.
Otherwise our country is lost.
As I see it, We The People,
are in great and imminent danger of losing everything we hold
dear. If we can't find a way to restore the integrity of our
Constitution — and soon — the Great Experiment will be
over, and we will at long last know the answer to the question
in Ben Franklin's mind when, after the Constitutional
Convention of 1787 had adjourned, he was asked by a woman on
the street as to what kind of government had been decided
"A republic, madam, if
you can keep it."
presidents and/or other government officials can declare and
prosecute illegal wars; commit ongoing war crimes; suspend
habeas corpus; 'render' suspected persons to other countries
to be tortured; detain suspects indefinitely without a
legitimate trial or defense; suspend attorney/client
privileges; search homes, cars, persons and private communications
without a warrant; torture a suspected whistle blower for
keeping his oath of office and telling the truth; refuse to
investigate and prosecute known and suspected criminals for
their crimes; authorize special agents to commit murder and
other offenses; infringe on the right of citizens to exercise
their right of free speech; and deny citizens equal protection
under the law among other assaults to our Constitution, one
can’t help but wonder if we already know how the question in
Ben Franklin’s mind has played out. Perhaps the
question before us ought not to be can we "keep it,"
but rather are we going to try to get back, and if not now, when?
And if now, how?
“Liberty lies in the hearts and minds of men and women;
when it dies there, no constitution, no law, no court can
no constitution, no law, no court can even do much to help
—Judge Learned Hand