A Jury of Peers, and Ethical Differences?
JENNIFER LUDDEN, host:
The Indy race was an easy call; not everything is. That's why our listeners write in to New York Times Magazine ethicist Randy Cohen.
Mr. RANDY COHEN (The New York Times Magazine): Hi, Jennifer.
LUDDEN: This week we're hearing from Tom Kimmel(ph) in Tucson, Arizona, and he's also on the line.
Mr. TOM KIMMEL (Listener): Hello there.
LUDDEN: So tell us about your problem.
Mr. KIMMEL: This had to do with a drug trial I was on once upon a time. It has to do with federal drug law. And I wonder what happens when you're supposed to be administering federal law and you don't really agree with it.
LUDDEN: What's the point in contention here?
Mr. KIMMEL: The point of contention was that by the time I got into the jury, we found out the federal law says that everybody in site on this trial is pretty much equally guilty. And...
LUDDEN: You mean people who are present at the scene of a crime?
Mr. KIMMEL: Well, it was at a drug transaction. To me, it seemed like bad guys really have to do something bad rather than just be present. And all that happened here was that the prosecutor had to prove that the guy was there, not that he actually did anything. To me, that seemed wrong.
The question is--well, this has to do with sort of the future. What do I when jury duty comes up again? You know, I suppose that I could--during jury selection, I could stand up in front of the judge and everybody and respectfully prefer not to and pawn off jury duty on somebody else, or I could pretend to be a law-abiding citizen, maybe get selected and hang a jury and maybe turn a real bad guy loose onto the streets.
LUDDEN: Randy, what should Tom do?
Mr. COHEN: It's a really hard question, and it's one I get all the time. It's that `What do you do on jury duty and it's apparent you're going to be asked to serve on a case where you have a profound disagreement with the law itself?' I get this question a lot about capital punishment cases in particular. If you tell the truth, that you're opposed to the law, they will not let you on the jury. But it's not just that you're going to stick another citizen with the burden of being on the jury; it's much worse than that, Tom. You're in much worse shape than you realize. It's that the person that will replace you is much likelier to convict. It's not so much the burden on another citizen having to do jury duty for two days; it's the burden on the defendant. Once you eliminate all the people that are opposed to a law, you tend to get a jury that favors the prosecutor a little more. So it's an awful situation.
Now you can't--in my view, you cannot lie. Ethics does not permit you to lie to get on a jury in the interest of--and then say, `Yes, I could hear this case fairly,' but you've already hardened your heart and under no circumstances would you convict. The importance of honest juries supercedes the problem of bad laws. We want everyone involved in the criminal justice system to be honest. We want the police to tell the truth, we want the witnesses to tell the truth and we want the jurors to be honest about their view of the law. We all have both a practical and a moral interest in an honest criminal justice system, so you can't lie.
Some people believe in something called jury nullification; that you have a right when you're in that jury room to simply say, `I don't like the law. I'm going to ignore the judge's instruction, and I'm just not going to follow the law.' I do not believe that; that we're a nation of laws and that you do not have the ethical right to accomplish in the jury room what you fail to do in the ballot box.
LUDDEN: So wouldn't that mean, though, that Tom would get on the next jury and have to vote in a way that he didn't agree with?
Mr. COHEN: Yeah, it does--yes, that's right. When you live in a democracy, you're governed by any number of laws that you think are imperfect. There are many laws, I'm sure, for each of us and for each of our listeners, that they think are deeply foolish laws, but you cannot simply ignore them when you're on jury duty.
But you have, Thomas, slightly more options than he allows himself; that one of the things he can do is he can hold the prosecutor to the highest possible burden of proof. He can seek--sometimes he can seek a lower offense to charge the person with--often you have those options--that you have a duty as a juror to be an active juror, a vigorous juror and to really demand the most of the prosecution. And if you think there's reasonable doubt, then acquit. But you can't simply ignore the law, and you can't lie about that to get on the jury.
Mr. KIMMEL: Well, my experience before has been that once we get into jury deliberations, that people bring in an awful lot of things that don't really have much to do with the law. It has more to do with how they feel, how they've grown up and what they think is right. And Randy sees this as a much bigger issue, I guess, than what I do. I'm just trying to decide, you know, what do I, a mere mortal, do when jury duty comes up for me this next time.
LUDDEN: You haven't been called again yet?
Mr. KIMMEL: No. And I think what happens is the judge stands up in front and says, `Is there any particular problem you have with this case?' And, certainly, you can stand up there on your little soapbox and say, `Your Honor, I don't agree with this sort of law.'
LUDDEN: So might you do that?
Mr. KIMMEL: Oh, absolutely.
LUDDEN: Well, Tom Kimmel from Tucson, Arizona, thanks for being on the program.
Mr. KIMMEL: Well, thank you. I was honored that you picked my letter.
LUDDEN: If you have a question for the ethicist, drop us a line at firstname.lastname@example.org. Put the word `ethics' in the subject line and be sure to include a phone number where we can reach you.
Randy, thank you again.
Mr. COHEN: Thanks, Jennifer.