Can we really be fair?

So I did my jury service. More details later, but first I want to consider all the preliminaries that go up to the actual trial, namely jury selection and the question of “fairness.”

I went through the selection process for two different trials (the first trial was settled in a plea bargain just after the jury was selected and seated, which meant I was shepherded to another courtroom for another round of jury selection). In both courtrooms the assistant district attorney asked every member of the jury, several times, if past incidents in our lives would affect our ability to be fair.

We are expected, in a criminal trial, to put aside all past experiences and enter the courtroom as blank slates. A number of times, a fellow jury member was asked if some experience, say, their own divorce from a physically abusive husband, would affect their ability to be fair, here, today, in this trial of a husband accused of assaulting his wife and child. The jurors in the first trial all answered yes, they could be fair, or at least they would like to think they could be fair.

But could they really? Can anyone ever really be fair?

I think fairness is a myth. We all have our biases and they don’t disappear when we enter a courthouse. A fair juror is like the rational consumer economists premise their calculations on: they don’t exist.

At the same time, however, I believe most people will not be unreasonably unfair due to their past experiences. Although, a few potential jurors in the second trial seemed to be counting on this as a way to be excused from service. One of the witnesses was to be a police officer, and so the judge asked if any people in the juror pool had family members who were also police officers. One woman’s brother-in-law was a cop, and so the judge asked her directly if that would influence in her mind the credibility of the cop’s testimony. She thought about it, and said yes: because she trusts what her brother-in-law says, she would automatically trust the cop in the courtroom. The judge visibly scoffed at this. He said, “Do you mean that because you find your brother-in-law credible, you’ll automatically believe this totally different man whom you don’t know?”

The judge was accusing her of faulty logic and he was correct, it is flawed logic. But again, this is how people operate. There’s too much data in the world so we have to take shortcuts when we can. In this case, the juror relied on an association fallacy (my brother-in-law is truthful; my brother-in-law is a cop; therefore, all cops are truthful). To a rational outsider, the logic obviously doesn’t make sense. But that doesn’t make the logic any less real for the woman.

The judge dismissed that juror and a few more too. Several hours later, the judge and lawyers had finally found twelve “fair” jurors and one alternate juror (that would be me), who was presumably “fair” as well.

How to get out of jury duty

Actually, this post is not about how to get out of jury duty. I’d be the wrong person to write that, since I’m in the jury assembly room right now, waiting to hear if I’ll be called to serve for a trial.

As I wait, I keep thinking back to the last time I was on jury duty. It was late September 2001 in Philadelphia. Security was tight and it took 45 minutes just to get inside the courthouse. I ended up serving on a jury for an armed robbery trial. It was, perhaps, the most maddening experience of my life. The whole trial took eleven days. Our juror deliberations were like 12 Angry Men except in this case, there were men and women, and it took four days instead of ninety minutes. And oh, the one juror who believed the defendant was not guilty actually believed he was guilty, but just didn’t like the Philadelphia police, so she refused to change her mind. As a result, after four days of deliberations, we were a hung jury, 11-1. The whole thing, the whole freaking eleven days was a wash.

I can’t blame the juror too much. The only thing worse than the jury deliberations was the trial itself. The incompetence of the public defender was matched only by the ineptitude of the the young assistant district attorney, who was dressed as sharply as the p.d. was shabbily. Both men were jokes, and I had to sit on my hands during the trial to avoid raising them to ask questions myself.

Law and Order it was not.