So You Want to Be on a Jury

The criminal legal system in New Orleans, like the rest of America, is racist, brutal, and unjust. Orleans Parish jails a thousand poor New Orleanians in cages, give or take, and those thousand have thousands upon thousands of family members and friends on the outside hoping they can come home.

NOPD targets almost exclusively poor, Black New Orleanians1See page 7-8 of NOPD’s own most recent bias-free policing report available online, or go visit Orleans Parish Criminal District Court on any given weekday morning. to be thrown into prison. Bow-tied prosecutors refer to these New Orleanians as “Mr.” or “Ms.” as they ask judges to set outrageous ransom sums for them to be let out of prison while never looking a single defendant in the eye or speaking directly to them.

Most criminal cases resolve in a plea bargain. There are simply far too many criminal prosecutions for everyone to exercise their right to a trial. Plea bargains minimize risk for New Orleanians charged with a crime. A guilty plea can guarantee lesser sentences—including probation rather than prison—instead of gambling on an unknown, but defendants will almost certainly receive a more punitive sentence if found guilty at trial. It’s reasonable for individuals to plea even if they’re innocent of some or all of the charges, because the system is stacked against them.

In the rare instances a case makes it in front of a jury, the power of the prosecutors and the judges wane. This is why some judges and prosecutors may work so hard to extort pleas before a jury is picked. Once that jury is picked and sworn in, the ultimate power to free a person rests with the jury—and the jury’s power is nearly unassailable. A judge can attempt to sway the outcome by displaying a negative attitude towards the defense or making flagrantly incorrect evidentiary rulings that benefit the State but probably won’t trigger a new trial on appeal—but at the end of the day, the jury controls whether the person charged with a crime is convicted. If a person accused of a crime exercises their right to a jury trial and is found guilty, the judge may take revenge on them for exercising that right by sending that person to jail for as long as the law will let them. The sentence is usually years, if not decades. The judge typically will not tell jurors that (or even let defense lawyers mention it2With some exceptions, the law forbids jurors from knowing the potential sentence(s) a person is facing. because the system rightly fears that jurors would hesitate to convict if they knew the kind of violence they were doing.

A jury trial is maybe the best opportunity in the punishment system where normal people have power. But we don’t have that power simply by showing up for jury service—though that’s a good start! In order to exercise that power, we first have to get on the jury.

Let’s start from the premise that we, as a community, do not want other people in our city spending years locked up and forced to labor for the State, regardless of what they’re accused of doing. “So,” you’re saying, “I have the power to help free a person from the clutches of modern slavery. How do I get on a jury?”

Jury selection (voir dire, as the insufferable lawyers call it) is a process of both sides (prosecution and defense) asking large groups of jurors (called panels) questions to determine who will serve on the jury. The jury is “selected” not by picking people for the jury, but rather by each side removing jurors from the pool until they have arrived at a jury of either six or 12, depending on the charge.312-person juries for charges that must, by law, be punished by imprisonment at hard labor, six-person juries for charges that do not necessarily carry imprisonment at hard labor (meaning it’s legally possible for the person found guilty to be sentenced to probation, with the threat of imprisonment hanging over their heads for the duration of probation). La. C.Cr.P. Art. 782. Many judges will enforce a “trial tax” and sentence more for a guilty verdict at trial than a guilty plea to the exact same accusation. This coerces pleas and means judges have to work less. Each side removes jurors who they believe will be hostile to their presentation of the case, or who may genuinely find it hard to be unbiased. A common example of the latter is someone who was themselves or has a loved one who was a victim of a crime similar to the one alleged.

Removing a juror is done by strikes, which can either be “for cause” (when a person has answered questions in such a way that shows they cannot follow the law as stated to them by the judge) or “peremptory” (each side gets a set number of peremptory strikes). “For cause” strikes have to be justified to the judge, but peremptory strikes can be based on nearly anything.4Technically you cannot strike a person for race, gender, or other protected characteristics, but this is difficult to prove and the State only needs to present a barely plausible lie to the judge as to why they’re striking the juror.

From the juror’s perspective, the process looks like this: You arrive at the courthouse around 8:30 a.m. You sit for an indeterminate period of time in the juror lounge. At some point a judge will come down and give a brief orientation about the mechanics of jury selection. If there is a trial happening, a large group of jurors will be called up to begin the selection process. The jurors will be seated in the courtroom, and the State will begin questioning.

The State will almost certainly take an hour or more to question the first panel of jurors, and then the defense will get an allotment of time (it will almost always be less than the State—not a law, but one of the many ways judges can make trials easier for the State). Some of these questions will be about biographical information, some will be whether the jurors know anyone involved with the case, some will inquire about views on guns or drugs. Some will educate jurors on (or ask jurors’ views on) legal concepts like “reasonable doubt” or “intent” (prosecutors love to use jokey hypotheticals about running their co-counsel over with their cars, which they think is deeply funny). Jurors should answer these direct questions truthfully, albeit awkwardly in front of strangers.

After both sides have had their time with potential jurors, the judge and the lawyers will go into the judge’s chambers and make strikes. If a full jury is still standing after all those strikes, then the jury is sworn. If there’s not a full jury, another panel is called up from that waiting room and the process resumes, and the impatient judge cuts the questioning time for both parties.

So if this selection process determines whether or not you sit on the jury, and your seat on the jury can provide the stalwart not-guilty vote that might keep a person from being locked up, how do you get on a jury? You get on a jury by shutting the fuck up and saying, “Oh sure, I can follow the law.”

Your goal as an abolitionist or freedom-inclined juror is not to tell the State they’re fascist, or that the criminal justice system is illegitimate, or that drugs should be legal. Jury selection is not your chance to show how much you know about the system, and how much you hate it. It is your chance to actually get on a jury and free a human being.

A good juror can help keep people free in many ways. A juror can carry the defense’s arguments back to deliberation. If jurors are fairly sure a defendant did some variation of what the person is accused of, a good juror can remind others of the extremely high burden placed upon the State to prove beyond a reasonable doubt the defendant’s guilt. And even if the facts are stacked against a defendant, a good juror can push for nullification, which is when jurors vote “not guilty” even if they think the State has met its burden because putting someone in prison for what happened would be immoral.

Jury nullification is recognized in Louisiana law. The Louisiana Supreme Court defined it as a “recognized practice which allows the jury to disregard uncontradicted evidence and instructions by the judge.”5State v. Porter, 639 So. 2d 1137, 1140 (La. 1994) n.5. Judges will not instruct jurors on it, and defense lawyers are forbidden from mentioning it directly. Jurors may even directly ask the judge during deliberations whether or not they can find a person “not guilty” even if they think the State has proven their case, and the judge usually refuses to give them a straight answer on nullification. But it exists, and the jury will never, ever have to justify its reasoning for finding a person not guilty, or finding them guilty of a lesser “responsive” charge.6“Lesser responsives” are verdicts of guilty but for a less serious crime than what the person is accused of by the State. For example, a robbery (stealing using force or threat of force) charge could come back guilty of only theft (stealing without using force).

While remembering that you should not lie during voir dire, here are things to keep in mind during jury selection, under questioning from lawyers and the judge.

You should tell the judge and lawyers you can follow any and every law as the judge tells you, regardless of your personal feelings. And this is true, even if you choose to nullify, because nullification is available to every person charged with a crime and is the right of every jury. Sure, you may not be a fan of guns, but people have a legal right to own them. Personally, you may feel that drugs should be legalized, but the law is that they’re not and you will adhere to the law. Do not, under any circumstances, cast aspersions about the legitimacy of the system.

Lock down social media before you report for jury duty! Both sides will likely be looking for social media accounts to get a better idea of political leanings and attitudes towards issues relevant to the case. Being an inoffensive, blank slate is the best way to avoid strikes by either party looking to get rid of problem jurors. You are the most unremarkable person on Earth.

Prosecutors will ask if you could convict off the testimony of one witness alone. The law is that, if the jurors find a witness convincing, the testimony of a single witness is legally sufficient to sustain a conviction.7State v. Bell, 197 So. 3d 358, 361 (La. 4th Cir. 2016). Prosecutors rarely ask this in good faith. They do this to identify people who take the presumption of innocence and the high standard of “beyond a reasonable doubt” seriously and strike those jurors. When the State asks this, it’s reasonable to say, “I’d like to see more, but if I believed the single witness, I could convict.”

If you make it through the selection process and are sworn in, you are a juror, and you now hold the defendant’s fate in your hands. The lawyers can’t compel you to discuss deliberation, and the judge can’t ask you to justify your decision.

Trials can be done in a single day; sometimes they take multiple weeks. If you are serving as a juror, be prepared for potentially grueling days—for the low wage of $50 per day. Many judges want to get trials done as quickly as possible, so they’ll keep trials going from 9 in the morning to extremely late in the night. Food will come at irregular hours, and judges will blame lawyers for the long days, and late or missing lunches. Judges set and maintain the schedule, but keeping jurors late at night and hungry is a great way for judges to tip the scales ever so slightly against a defendant.

After the closing statements, the judge will read a long list of instructions on the law to the jury. This will include the lesser-responsive verdicts, and applicable legal concepts like intent or self-defense. Then the jury is sent to a room alone to deliberate, and the jury will likely stay in that room until they have a verdict.

Deliberations frequently take many hours. Some judges will have jurors leave at the end of a workday and come back and continue deliberations the next morning. Some judges will force jurors to stay into the early morning hours. These late hours are frustrating and arduous to jurors, and it’s an intentional choice by the judge to coerce the jury to come to a verdict, which, if placed under pressure and frustration, is more likely to be a guilty one. A good juror in the room can remind the rest of the jury of their duty to hold the State to its burden, of the gravity of taking someone’s freedom away, and the fact that it’s not anyone’s fault but the judge’s that you’re all there at two in the morning instead of coming back at 10 a.m. the next day.

Mass incarceration is a system operated by hundreds of thousands of small tyrants all across the United States. It has opaque processes and rules, all meant to stack the deck against defendants while maintaining a facade of fairness and neutrality. It seems impossible to fight against. But maintaining that facade has meant maintaining a weak point in that system that people of good conscience can use to keep people free. If an accused person can take the risk of exercising their right to a trial, a good juror can do the song and dance necessary to get onto a jury. And once that good juror—once you—are on that jury, you have the power to influence your fellow jurors to decide not guilty, to nullify, and to fight like hell in that jury room to free a human being.

illustrations by Maegen Guidroz


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