An extraordinary coincidence of events inspires this essay about a subject dear to my heart: juries.
Last month, at the invitation of Second Circuit Chief Judge Dennis Jacobs, I had the privilege of attending the judges’ annual conference, and presiding over a panel appropriately captioned “Judges as Jurors.” Yes, four jurists—one Second Circuit judge, one Northern District judge and two Magistrate judges—had actually served to verdict on state court juries.
Having myself dutifully responded several times to jury summonses, and actually been “voir-dired” and then turned away, I look upon it as a genuine compliment for a judge to be selected for jury service. It’s the ultimate proof that both sides see you as a fair person, and are confident that you will not inappropriately dominate deliberations or ignore the judge’s instructions. Then too, it’s a disappointment for many, once having been extensively examined by the court and counsel, to be rejected. I realize that, for those of us with busy lives, the rejection is not necessarily bad news, but it is nonetheless a downer. The lawyers thought I couldn’t, or wouldn’t, be fair? Really?
The Second Circuit judges’ conference (of which our panel was a part) was a training session in many administrative and substantive areas, and I believe there were good takeaways from our session, apart from the pure pleasure of it.
Just listening to the panelists describe their own experience as jurors to my mind proved that lawyers and judges who have been jurors are a good source of lessons about the process. With New York state (more than a decade ago) having wiped all automatic exemptions off the books, by now many lawyers and judges have been called to jury service and many have served to verdict. Apart from increased empathy, inevitably service on a jury provides insights that could be useful in our own work and in improving the process. Also, I continue to believe that the message—we all stand equal, no automatic exemptions—is a good one, even if lawyers and judges are most often bumped off. The prevailing One-or- Two-Day/One-Trial policy makes it equally possible, and equally difficult, for everyone to participate.
Which brings me to the second part of the coincidence that inspires this essay. I began writing as I was seated in a jury room—my second day in modest but clean and comfortable surroundings masterfully overseen by knowledgeable, caring, respectful court personnel, even from time to time injecting a note of levity as we “Jurors” waited to be called.
I arrived on a high, my first day of service having been dominated by a lengthy voir dire effectively conducted by the judge and then by counsel. As I listened to responses to the initial background questions I became increasingly impressed by the broad spectrum of potential jurors in the room, people from every walk of life. Hearing them describe what they do(half would have been automatically exempt in an earlier day), hearing their challenging, thoughtful exchanges with counsel on matters that concerned them about the case, and—best of all—every now and then hearing a fellow juror express admiration for the jury system, put me way over the top.
It helped to compensate for the sad news that, though I thought I had satisfied any doubts by my answers, I was not among those selected for what promised to be a fascinating trial.
Back to the jury room for Day Two, where again I was promptly sent out, with several dozen others—many of them by now familiar to me from the prior day’s intensive examination—for a trial that might go on for a month. The judge’s announcement sent shivers through the courtroom, though surprisingly few among us accepted his invitation to seek excusal on that basis alone. It did, however, explain why so many of us had been called to the room. Again, a full-day’s probing of successive panels fortified my pride in the system, its administration, and the citizens called for service.
This time, however, I didn’t even make it into the jury box for questioning. I cannot in all candor deny that I am pleased to be finalizing these thoughts from Times, rather than Foley, Square.
Finally, by wonderful coincidence, in early October I will be at Northwestern Law School for a day or two, part of a high-level jury symposium the American Bar Association continues to sponsor every other year since its own groundbreaking jury initiative more than a decade ago. The symposium will bring together academics, practitioners and judges—by now many among us having themselves had an additional experience “in the box.” Given immense changes throughout society, and the need always to revisit reforms to assure their continued vitality, I am delighted to be part of this ongoing initiative.
I will be bringing with me to Chicago an article by a retired California Judge, “Judges as Jurors: The Bench; We Don’t Want No Stinking Judges!”1 as well as my own new insights and continuing passion for our prized American jury system.
Judith S. Kaye, former chief judge of the State of New York, is of counsel to Skadden, Arps, Slate, Meagher & Flom, whose offices are in Times Square.
1. Judge Jacqueline Connor (ret.), “Judges as Jurors: The Bench,” http://www.adrservices.org/pdf/Judges as jurors.pdf.