Sorry for the screaming language, but I feel like Mrs. O'Leary's cow these days, unable to effectively communicate the obvious. I wrote a little about jury duty last week, and it's importance in creating better verdicts -- results that better represent the evolving America that we are. We cannot expect our government to do it for us; for then it would not be a democracy at all. Nor can we expect "the free market" that conservatives worship, but never existed, to render equity. Buying justice is not the way it is supposed to happen, but all too often the courtroom is just one more thing for sale here in America. Justice for all? How much justice can you afford? Or maybe we should ask ourselves instead: how much injustice can we afford, before our republic is no longer of any utilitarian use? It is up to us, we the people to demand that our justice system evolve, as we have.
Our system of justice was created at a time when those doing the deciding had a greater similarity in culture with those whose matters were being decided upon: a jury of one's peers. But who really has that in practice today? Historically, it has only been within the last 50 years that jury service, voting rights and greater opportunities in general have even begun to be available to all persons, regardless of race or gender. This is a relatively new concept on paper, and even newer in general practice. For it takes more than 50 years of starting to get it right to overcome centuries of getting it wrong. Those who have been excluded are more readily able to recognize the subtle signals of a subconscious bias towards them in others. White people, not experiencing the "otherness" of non-whites, are not likely to notice something that doesn't happen to them. This has nothing to do with good or evil; it's just human nature.
I have experienced how this shows up in jury verdicts. One of the cases I pursued in civil court early in my career is forever in my memory as a very confusing and humbling joke on American justice, or maybe on me. I represented the plaintiffs, a very kind and lovely Shiite Muslim couple, in an auto accident case in Orange County, California. The defendant was a blue-eyed, blonde-haired Marine. Do I even need to tell you who won? What if I told you that I called the Chief Engineer of the City of Buena Park, CA, who explained the way the traffic lights worked, the manner in which that particular traffic light in question was timed, and that his conclusion was that the accident could not have happened the way the defendant said it did? That's what happened. I was so proud of my direct examination of my expert and I was so filled with ego then, a bad thing for a Mexican in Orange County.
When the all white, and mostly retired, jury came back in a matter of hours for the defense, I was just crushed. I had proof! Isn't that what trials are supposed to be about? Evidence, right? I kept it together because I had to professionally. I tried to keep a poker-face, but I don't know how successful I was. I wanted to talk to the jurors because I was desperately seeking an explanation for my clients. And I knew that I needed to just listen, asking very few questions, and remaining objective and academic throughout. I thought it would be harder to listen than it actually was. I did not hear any overt hostility or negativity. I was grateful that some of them were willing to talk to me at all because they didn't have to; and they were all kind and gracious. As I listened, I really didn't hear them say anything of any real substance. They were just being polite. Some of them thought that maybe the light was broken, even though I entered records of their recent maintenance and no subsequent record of repair. I knew better than to try to challenge them with facts at this point.
I came away with a different understanding, a little bit of rage, and nothing to tell my clients except, "I'm sorry." My clients, however, were not nearly as upset as I was. In fact, they weren't really upset at all; but seemed to take it all in stride. They had a new baby and lived in a small apartment and were very happy together. They invited me in for tea and I asked about Ramadan, which they explained as we sat. They were very a lovely people. They brushed the whole thing off and seemed none the worse for wear.
It took a while for the many lessons of this experience to seep into my marrow. My clients' ability to let it go, instead of complaining, made it easier to step back from it without judgment of anyone. Then, came a feeling of genuine compassion for those jurors, instead of resentment and animosity. They were just doing what made sense to them. My anger could not change that; it could only block me from absorbing this lesson in a positive way, and accept what is, even as I try to change it. White people and non-white people in America experience this country differently.
I began to realize that my clients, being from another culture altogether, never expected a different outcome. They did not expect justice from American courts. I did. They didn't grow up with all the hyperbole of American values; reciting them every day in the Pledge of Allegiance. How empty that pledge seemed on that day. This is not how I had imagined my law career unfolding. I wanted to stamp out injustice with my brilliance and bravado. I was the one who was the most disappointed because I was the one who expected the most. I expected justice -- global equality style; but what I got was justice -- American style. How naïve I must have appeared to my Shiite Muslim clients.
On another occasion a few years ago, I was co-counsel on a civil jury trial in downtown LA, where there are usually more ethnically diverse jury pools. Since our plaintiff was African American, as was our chief trial counsel, we were hoping for at least 2, maybe 3 black jurors. We had to settle for one -- an African American woman that we were lucky to get because the defense tried to kick her off. Even though this was not a racial discrimination case, when there are parties of different races, race matters. It just does, as my first example demonstrates. This jury deliberated for quite a while because the one black juror held out for a long time. In the end, however, the others simply wore her down; probably much like the one juror in the Zimmerman trial was worn down. It is really difficult for a lone non-white juror in any circumstance, much less one where race is the backdrop, to educate the non-whites about how the non-white experience in America differs from the white experience.
We spoke to her after the verdict and she recounted how difficult is was for her to be heard, as well as having her perspective honored in that jury room. She was tearful at times because the animosity toward her from the other jurors became unbearable and she just couldn't stand it anymore. She finally gave up just so that she could go home and not have to deal with the other jurors for one more day.
These examples are real and they are but two of dozens of stories any trial attorney could tell you on any given day; that is, if they're honest with you. This happens every day in courthouses and jury rooms all over the country. And the reason it happens is because non-whites are less likely to show up for jury duty. So if you are not white and you are unhappy with this verdict, show up for jury duty! In most jurisdictions, jury pools are created from voter-registration rolls, as is the case here in California. Voting, of course, is another duty of citizens to its republic. So, register to vote and then, show up for jury duty!!! Don't make me come and get you.
As I was standing in line to get into the courthouse one day, I began chatting with a young African American man who worked for a big law-firm and was showing up for jury duty. I can still hear him saying to me, "I just can't understand why the brothers don't show up for jury duty."
Neither can I, Brother; neither can I.
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