In November of 2019, I completed my “duty” as a member of a jury pool in Hardin County, Kentucky. It was an interesting experience where I learned how the process works–at least in my small corner of the country. Now that it’s over, I’ve concluded that I was forced, under the threat of violence (my notice came in the form of a summons), to participate in a process I found morally unacceptable. Not because I believe the concept of jury trials is wrong, but because of how it was administered. I learned that if I truly wanted to contribute, I would have no choice but to lie under oath, not just once, but many times as the process unravels.
In a way, I looked forward to participating because I thought I might get the opportunity to let some poor soul off the hook for a non-violent, victimless crime. I would soon learn that unless I was willing to lie under oath, there was zero chance I would be selected to serve on a jury.
I was required to attend a juror orientation where I was given a juror handbook and learned how the process would work. The orientation also included the jury pool being required to swear under oath that we would abide by the rules of the court. The implication of course is you can be held criminally liable if you fail to adhere to the oath. At the end, I did not utter the words, “I do,” though no one cared to check if all of us actually did so.
On page 10 of the Juror Handbook, there is a seemingly innocuous statement under the heading of Judge’s Instructions:
“You cannot substitute your opinion of what the law should be.”
This statement alone made it impossible for me to honor the “rules of the court.” It is a direct instruction to the jury pool that they may not exercise their right of jury nullification. Jury nullification occurs when a jury returns a verdict of Not Guilty despite its belief that the defendant is guilty of the violation charged. It is often employed when the jury believes the circumstances justified the defendant’s behavior, or, that the law is either immoral or unjust. The U.S. Supreme Court has ruled that while the power of jury nullification exists, state courts and prosecutors are not required to inform jurors of this power. Note that the court did not rule that jurors are explicitly required to convict if the prosecution proves the law was violated. In my less than humble opinion, this sentence in the handbook is unlawful, unconstitutional, and should be stricken.
District court, for which I was selected, requires a six member jury. Twelve of the twenty four members of the jury are selected randomly. These twelve members are subjected to the voir dire examination, where the attorneys for both the prosecution and defense ask the twelve members questions to determine if they are suitable for the final jury of six. Prior to the questioning, the pool of twelve are once again given an oath where they pledge to tell the truth when questioned by the attorneys. It is at this time, the prosecuting attorney will ask the pool if they will agree to convict even if they believe the law is immoral or unjust. If you say no, you will be dismissed. So as a libertarian, if I actually want to become part of the jury, the only possible way is to lie about it because of my belief in jury nullification.
I was selected twice to be among the pool of twelve. The first was a case where the defendant was accused of driving under the influence (DUI). He had refused to take a breathalyzer or blood test. During the voir dire questioning by the prosecutor, we were asked if we believed that all drivers have a right to refuse breath or blood tests. Most of us stated that yes, we believed we have a right to refuse. The prosecutor became very frustrated and scolded us that we were wrong. She said, “You do not have a right to refuse to be tested,” claiming we drive under implied consent. I was mortified at hearing this, meanwhile wondering that if this was the case, why a charge of refusing to take a test was not included in the charges against him. I’m not sorry to say, that I do not subscribe to the theory of implied consent. Of course we have a right to refuse a test. This kind of behavior by a prosecuting attorney is unacceptable. Either she was blatantly misleading the jury pool or a grossly incompetent prosecuting attorney. Of course, as a lawyer, she would no doubt quibble about the meaning of the word ‘right.’
The first time I was selected for voir dire questioning I was dismissed because I refused to acknowledge the claim by the prosecutor that a driver does not have a right to refuse a breath test. The second time I was dismissed because I personally knew one of the witnesses. The latter made sense to me and seemed to be a legitimate case for dismissal. The former? Not so much.
In retrospect, I wish I had been able to participate as a juror. I believe I am able to objectively review the facts and assumptions presented by the attorneys. I’m not trained in law, but it seems to me jurors have rights too. If I am to be inconvenienced for two months to be a member of a jury pool, I should at least be allowed to participate on a jury and not be dismissed because I believe in liberty and rights. That I was not only shows that I was being punished with involuntary servitude merely because I am a citizen of the state.
Overall, I am disappointed, but not surprised at how the system works. In the end, defendants in a jury trial are always fighting with the odds stacked against them when jurors are given illegal, and in my view, instructions by the attorneys and judges of the very institution which proclaims that unbiased and objective truth are their goals when subjecting defendants to potential loss of freedom.