Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action

8. Judging Accountability

139 8 Judging Accountability A Seat of Judgment You sit in judgment. Literally and figuratively you sit— twelve jurors judging a human being or human problem. While your seats may not be as elevated as the judge’s, your position is just as important. As you sit in that jury box, across from the defendant or plaintiff, you act as judge. Sure, no one gave you a black robe, but you act as a force for accountability. You represent the community— a community conscience.1 As jurors, your responsibility is to hold someone accountable. You bear witness to the violation of the community order. In a criminal case, the government has alleged a violation of a societal rule—a legal norm. In a civil case, one party to the lawsuit has alleged a breach of law—a negligent act, a broken promise . A juror holds the parties in both cases accountable. If you think about the premise of law—criminal or civil— it exists as a mechanism to hold people responsible for 140 / Judging Accountability breaking the rules. A juror thus sits in judgment to decide the legal and moral blameworthiness of an individual or entity. Judgment involves an awesome, unfamiliar power. In my criminal cases, jurors would comment that there had been no harder decision than to pass final judgment on another life.2 It is not unusual to see tears or flushed faces at the end of a case. Jurors write letters weeks or months later still trying to process the weight of final judgment. Everyone knows the irrevocable consequences of a verdict . Similarly, some civil cases have resulted in irreversible financial damage to the losing party. In 1984, Pennzoil sued Texaco over a contract dispute. The jury awarded an $11.1 billion judgment against Texaco.3 The size of the damages award (even after being reduced by an appellate court) forced Texaco into bankruptcy.4 A handful of jurors helped end the financial life of a billion-dollar company. While the Texaco/Pennzoil result is not typical, the jury system does give ordinary citizens tremendous legal authority to hold a wrongdoer accountable. Yet jurors also have another role. The jury holds the legal system accountable. In our system, the jury is the ultimate check on government power. The Sixth and Seventh Amendments are reservations of constitutional power to citizens. Those Amendments assert that the power to judge—to decide for the community—is reserved for the people. In criminal cases, jurors stand between the entire prosecutorial power of the state and the individual accused of a crime. A jury determines if the government has proved its case—has met its “burden of proof” to prove guilt “beyond a reasonable doubt.”5 That means that the government has a constitutional obligation to develop sufficient evidence to convince each juror of guilt beyond a reasonable doubt. A defense lawyer need not introduce evidence, cross-examine witnesses, or give an opening Judging Accountability / 141 statement or closing argument—the entire burden rests on the government. The Supreme Court has held that “proof beyond a reasonable doubt” is one of the fundamental rights guaranteed by the Due Process Clause.6 It puts the highest standard of proof between the government and the individual, and remains one of “the fundamental principles that are deemed essential for the protection of life and liberty.”7 If the jury is not convinced beyond a reasonable doubt, the jury holds the government accountable by finding the defendant not guilty. As the Supreme Court concluded in establishing the “beyond a reasonable doubt” standard as a constitutional requirement, “Use of the reasonable doubt standard is indispensable to command the respect and confidence of the community in applications of the criminal law. It is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt about whether innocent men are being condemned. It is also important in our free society that every individual going about his ordinary affairs have confidence that his government cannot adjudge him guilty of a criminal offense without convincing a proper fact-finder of his guilt with utmost certainty.”8 It is an odd and extraordinary structural power. If you think about it, in any federal criminal case, the Executive Branch authorities have brought criminal charges against an individual. Paid professionals—prosecutors and police—use constitutional powers to arrest and charge a...