Truth or Justice: Why I take a dim view of jury duty


The following commentary first appeared in a 2003 edition of Mountain Xpress. A new jury summons recently led me to revisit the essay. Unfortunately, the passage of time has only strengthened and broadened the applicability of the thesis. Alan Gell wasn’t the last innocent man released from North Carolina’s death row. Levon “Bo” Jones, Glen Edward Chapman and Jonathon Hoffman have subsequently been freed; allegations of misbehavior or incompetence in the criminal justice system figured in each of the wrongful convictions.

The legal industry is but one example of a widespread and under-recognized cultural affliction. We create systems to serve us but those systems quickly establish their own self-serving priorities, some of which may be antithetical to common notions of right and wrong. The evidence is everywhere: too-big-to-fail banks, BP, government bureaucracies and the healthcare industry, to pull from recent headlines.

These quasi-independent super-organisms aren’t going away, nor are they all bad. Modern society couldn’t exist without them. But it’s time to face the fundamental fact that we are not them; we are human beings. Only at our peril do we blindly trust the motives of any system. Are we less fallible than they? Perhaps not, but if we fail, let it be in the quixotic attempt to uphold the interests of our kind using values native to it, including those old vagaries: good, bad and truth.


Truth or Justice: Why I take a dim view of jury duty
Mountain Xpress,10:2, August 13, 2003

The Buncombe County Superior Court has decided I need to participate in its legal process again. The last time jury duty called, I was treated to a couple of hours of waiting in a room with stale donuts.

I hope I’m that lucky again. Because if it goes the next step, and I’m actually interviewed as a potential juror, I’ll have to tell the Court it really really doesn’t want me on a jury.

I was raised in the Midwest. It was no Norman Rockwell upbringing by any means, but I did learn values there. Among them was a respect for the truth. Not credibility, not the acrobatics of evasion, just the plain truth, as in truth, justice, and the American way.

Until I’d watched one too many episodes of The Paper Chase, I naively assumed that our system of jurisprudence joined me in enshrining the search for truth. It doesn’t.

Where I put truth, courts substitute a game called due process. In a jury trial, two lawyers square off in a courtroom to play a case. A judge acts as referee, and the jury chooses a winner. Witnesses and jurors are the only participants who have to swear to tell the truth. I wouldn’t mind so much if the playing pieces weren’t people.

Sensitive refs and players may recognize humanity in the passing herd, but they have to remember the game comes first. Winning or losing, being upheld or overturned. The overriding question is whether justice was served, not did they discover the truth and act in accordance with it.

Unfamiliar with the rules, and probably unaware of the nature of the game itself, jurors are told to play along. But they are excluded from the lawyerly procedural squabbles that might yield additional clues about who’s zooming who. Instead, jurors are supposed to rely on the judge to tell them what’s fair play and what’s out of bounds.

Their trust is sometimes betrayed. Jurors in the California medical marijuana trial this spring expressed outrage that the federal judge had prevented them from learning that the defendant had acted within state law. In direct response to Judge Breyer’s act of concealment, HR 1717,  the Truth In Trials Bill, was introduced in the US House of Representatives. It had 32 bipartisan co-sponsors as of June 13.

Reports of legal misconduct around the country further erode my confidence. (I’m picking on judges, prosecutors, and the agents of law enforcement, but only because most of us have greater faith in them than defense attorneys.)  On the word of a single undercover agent, unsupported by taps, tapes, or physical evidence, 38 people in Tulia, Texas were convicted of drug offenses and sentenced to prison terms of up to 90 years. Now, a few years later, the unreliability of that undercover agent has finally convinced a judge to throw out the convictions.

Where, I want to know, was the trial judge’s head when the cases were originally heard? Where were the defense attorneys? And, what does it say if prosecutors can talk themselves into proceeding on the basis of such flimsy evidence?

On June 26, 2003, The Center for Public Integrity, a judicial watch group, reported the results of its nationwide investigation into prosecutorial misconduct.  Since 1970 it found 2,012 cases resulting in dismissal of charges, reversal of conviction, or reduction of sentence. North Carolina accounted for 120 of those, including the death sentence of James Alan Gell. He was convicted for killing a man whose body hadn’t been found immediately. Gell’s prosecutor allegedly decided the murder happened on the only day Gell could have committed it. The prosecutor didn’t tell anyone he had 17 witness statements claiming the victim was alive after that date.

In addition, a litany of news stories, including the reversal of all convictions in the Central Park jogger case, shows how hard it is for convicted prisoners to get reconsiderations based on new evidence of innocence. Former prosecutors hate to take trophies off their walls, and states don’t like paying for DNA tests.

This isn’t just about local yokels. Last year, Rep. Burton (R-Indiana) publicized an atrocity directly involving former FBI Director, J. Edgar Hoover. Joseph Salvati spent 30 years in prison for a murder the FBI knew he didn’t commit. Hoover was protecting mob informants, men he knew to be active hit men.

Moreover, our faith in the purveyors of supposedly impartial “scientific evidence” is misplaced. According to a Washington Post story, Oklahoma law officers thought of police chemist Joyce Gilchrist as “Black Magic.” Her testimony led to thousands of convictions over two decades, despite years of complaints by professional peers, judges, and defense attorneys. A review of her work at the time the Post story ran had already “freed a convicted rapist and a death row inmate, overturned a death sentence, and called into question the evidence used to execute a man last year.”

The reliability of the FBI’s own laboratories and databases may be little better. Repeated scandals about shoddy practice have arisen since 1997. In April 2003, CBS news reported that an FBI scientist admitted giving false testimony about her field, bullet analysis. Another employee resigned while under investigation for mishandling DNA tests, and the Houston, Texas crime lab has been banned from sending any more DNA samples to the FBI registry.

Concerned about the pervasiveness of such problems, former Illinois governor George Ryan placed a moratorium on executions in his state. Others, including North Carolina, have followed suit or moved in that direction. According to a report cited by the ACLU, this year Florida released its twenty-third innocent man from death row.

But, according to the United States Supreme Court, actual innocence may not be sufficient to stay the executioner’s hand. In Herrera v Collins the Court found “In any system of criminal justice, "innocence" or "guilt" must be determined in some sort of a judicial proceeding.Petitioner's showing of innocence, and indeed his constitutional claim for relief based upon that showing, must be evaluated in the light of the previous proceedings.”

In other words, for legal purposes, the outcome of the due process game, rather than actual fact, determines innocence. Justice Blackmun closed his dissenting opinion with the line, “The execution of a person who can show that he is innocent comes perilously close to simple murder.” The Court told Leonel Torres Herrera he’d have to ask for executive clemency, take his evidence of innocence to the governor.

Herrera was executed on May 12, 1993. Governor George Bush evidently believed in the infallibility of the Texas criminal justice system. He granted no clemencies. More than 150 people were executed during his terms in office.

All these examples come from the small fraction of criminal cases that goes to trial. Records were kept. Is it likely such affronts to common decency only occur when someone is taking notes? What about the back hall and jailhouse chats? I’m left not knowing what it means when I hear someone copped a plea. Was it an admission of actual guilt? Or was it the capitulation of an innocent person to a system that can knowingly punish and may even kill without regard for truth?

So, if I’m called into that room for potential jurors and have to swear on the Bible to tell the truth, the Court won’t like what I have to say. Our hallowed rule of law has proved itself as corruptible as any other.

With all due respect to the person of the judge and of every man, woman, and child that comes before the Court, I won’t agree to bargain truth down to due process.

—Michael Hopping
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