“You don’t judge someone guilty because of the color of his skin, do you?” he calls out. A pause. We’re puzzled about how to proceed, but by the next question, we’ve got the hang of it. “You don’t think someone is a murderer just because he sells drugs?” “No,” we sing in unison. A few more rounds, and he’s finished. I look at the defendant and wonder if he can get a new lawyer.
The jury system, Tocqueville wrote, “should be regarded as a free school which is always open and in which each juror learns his rights, comes into daily contact with the best-educated and most-enlightened members of the upper classes, and is given practical lessons in the law. . . .”
I’ll sign on to Tocqueville’s statement as long as the phrase “best-educated and most-enlightened members of the upper classes” is replaced with “legal professionals whose level of competence varies wildly.” Jury duty is, indeed, a free school in the nation’s system of law and its application by and for citizens. But the court professionals are not all Tocqueville’s best and brightest. Like the professionals in every field, they include talented practitioners, mediocrities, and the occasional bad apple. In the United States—a democracy shaped by grotesque socioeconomic inequality—the poor often get stuck with the mediocrities as defense lawyers and can suffer dire consequences.
The system operates differently with judges. They include the same mix of competencies, but luck of the draw determines whether or not you get one who is skillful and fair. Even a billionaire with a phalanx of silk-suited lawyers can find herself in front of a second-rate judge. The defendant obviously has the most at stake, but everyone involved in the trial feels the effects of the judge’s caliber. Judges set the tone and pace of the proceedings; they influence the course of the trial with rulings; they have the most direct relationship with the jurors, a relationship of authority. When judges say, “This is my courtroom,” they speak the truth.
Several years after the drug-related murder case, I was part of the voir dire for a case involving a drug bust by an undercover narcotics officer. The defense was clearly going to argue entrapment, so the lawyers tried to get a sense of how the prospective jurors felt about the police, drug users, and drug pushers. The lawyers were doing their jobs well, but after a minute and a half, I knew the presiding judge was a complete jerk. He snapped at the lawyers for no good reason, ridiculed them with sarcastic jokes, rolled his eyes when no one laughed, belittled us with wisecracks when we were answering questions, and disparaged the procedure. Worst of all, he didn’t offer the prospective jurors a chance to speak to him in private about experiences they didn’t want to discuss in the courtroom. I didn’t notice that he had skipped this step, which every other judge had included, until the first of three women had to answer questions about being raped.
“When did it happen? Inside or outside your home? Did you know the perpetrator? Was he apprehended?” The silent screamer inside my head began: She doesn’t have to answer those questions here! She can speak to the judge in private if she wants! Actually I wasn’t certain about that. Was the chance to speak in private the judge’s prerogative or a court regulation? Afterward I berated myself for not speaking up from the jury box. I don’t know how the judge would have reacted (probably not well) or if anyone would have wanted to approach him at that point. In any case, I sat there outraged while calculating how I could make sure I stayed off that particular jury.
Tocqueville wouldn’t have approved of shirking. I don’t either, in principle, but I cringed at the thought of being in a room for several days with that judge. My problem had an easy solution: all I had to do was tell the truth. When the prosecutor asked how I felt about the police, I replied that I knew there were officers who performed their jobs very well (I was searching for words; there were four armed cops in the courtroom), but those on the street often used excessive force. I trailed off with, “You know . . . Amadou Diallo.”
I was referring to the highly publicized case of the unarmed Guinean immigrant killed in 1999 at the doorway of his Bronx apartment house. Four plainclothes officers mistook him for someone else and fired forty-one shots.
The judge immediately asked, “How would you like to get to know some police officers here?” Was that an invitation to join the jury? An arrest threat? I hesitated. “Oh, never mind,” he said.
At the end of the seven-hour day, the judge set the continuation of the voir dire for the following morning. Only five jurors had been selected. I wasn’t one of them.
Recalling that day (and, to my surprise, feeling my heart race again and my mind spin), I realize that I had experienced it as a brush with the oppressive authority of the state: the tense silence as the women made the required revelations, the feeling of intimidation, the suppressed outrage, the callous judge administering the operation, the uniformed police with guns in their black leather holsters.
Had I overreacted? After all the judge who ran the voir dire was a jackass, not a thug enabling a repressive regime. And yet he turned what should have been an orderly democratic procedure into a scene of intimidation and disrespect. How easily this can happen was, for me, the lesson of the day in the free school that Tocqueville rightly, for the most part, admired.
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