In Part 80, Judge Mader recounts a novel excuse offered by a potential juror in an effort to be excused from service. The Judge also explains practical challenges to offering interpretation services to defendants who speak less common languages.
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After swearing in our jury, one juror raised his hand. “I didn’t say ‘I do’ when I was asked whether I swore to follow the law and be a juror. I want a sidebar.” The juror was a problem. He appeared shocked that he was selected and frantic to find a way out of jury service. He worked for a printing company, was single, and presumably wouldn’t be paid unless he returned to work. When he approached the bench he said, “I am very disturbed in looking at the defendants that their shirts have creases in them and look new. I think that they are trying to put something over on us because they would not be wearing those clothes in real life. So, I feel like I’m being manipulated, and I might take it out on the defendants.”
Even after interviewing thousands of prospective jurors, at least half of whom are trying to evade jury service, I have never heard this excuse before. Neither had the attorneys. We agreed that the juror was not being truthful. I said, “You know, everyone dresses up for a jury trial. I put on my robe, the attorneys put on suits and ties, and we don’t normally look like this. The defendants are showing respect for the process by dressing up. In addition, the defendants don’t make the decision what they wear. The clothes don’t belong to the defendants. The attorneys provide the clothing to the defendants.”
The juror’s response: “That makes me feel even worse. I feel like the attorneys are trying to pull a fast one over the jurors too. I don’t think I can be fair.” After consulting with the attorneys again, I said, “Sir, it’s clear that this is not the right trial for you. However, we do think that you might feel more comfortable in a civil trial where only money is involved. We are sending you back to the jury room to get re-assigned to a civil trial.”
That is a special punishment for potential jurors whom all of the attorneys and I agree have not been honest with the court. Instead of letting them go home and wait two or more years for another jury summons, they are re-assigned quickly to a civil trial.
The attorneys had an ulterior motive for choosing a jury quickly. They think the case is going to settle and are waiting for permission from the prosecutor’s supervisor who was not at work. The jurors will be delighted if the case settles. In a case involving an assault with a gun upon a police officer, the DA supervisor will not give approval to a plea bargain without talking to the victim officer. The DA’s office is always concerned about victims’ rights, but even more so when a police officer is involved. Not only is the police officer given a voice in the disposition, but there are political considerations. An elected District Attorney does not want to alienate the police department by undercutting police wishes.
As we wait for the supervisor to return to work, we continue to select the jury. The prosecutor is zeroing in on two prospective African American jurors. They are mainstream, with establishment jobs and acquaintances in law enforcement. However, the prosecutor asked each of them, “Since this case involves two African American defendants charged with an assault with a gun on a police officer, and there may be allegations of police misconduct, do you think the ‘Black Lives Matter’ controversy might cross your mind?” I told the prosecutor at the sidebar, “The ‘Black Lives Matter’ controversy might cross the minds of anyone watching the news, including me. Cut it out. This isn’t an appropriate question.” Each of the African American jurors said, “While I might think about it, I could be fair to both sides.” The prosecutor nevertheless excused both jurors.
If these attorneys truly thought the case would go to trial, I’m sure the defense would challenge the prosecutor for excusing the only two African American jurors in the jury box. As the African American jurors were the only ones who asked about “Black Lives Matter,” the prosecutor would have had a hard time justifying the challenges.
A supervisor from the public defender’s office whom I hadn’t seen for a year showed up this morning on another case. He reminded me of a murder case pending in my court last year in which the defendant spoke an obscure foreign language from the country of Turkmenistan. A defendant facing a criminal trial is entitled by law to have an interpreter in order to understand the proceedings, regardless of the language. Los Angeles County inhabitants speak over 300 languages. Multiple efforts by the court interpreters’ office and my own internet research found only one possible interpreter for the defendant, a professor in Washington, DC. Her flight and expenses were paid by Los Angeles County to fly here and interpret for the defendant.
When the interpreter arrived, she explained, “I can’t come here anymore. This is my last visit. It’s just too cumbersome to fly across the country for this purpose.” We were still in pretrial mode and I asked the prosecutor, “Could you please ask your supervisor for an offer while the interpreter is here today? The defense attorney says his client would plead for thirty years in state prison. Maybe we could wrap this up.” The prosecutor went to consult with her supervisor and returned without an offer. With tears in her eyes, the prosecutor, whom I knew from another courthouse, said, “My supervisor was angry that you even suggested a plea bargain. I am so sorry, but my supervisor says I need to file disqualification papers against you.” I learned a few days later that the same DA supervisor threatened a different judge in my courthouse with retaliation. That judge complained to our supervising judge. Our supervising judge complained to a higher-up in the DA’s office and the supervisor was transferred to a new job.
The defense attorney on the transferred-out murder case, who was in my court this morning, said, “The murder case is still in pre-trial status in another court, and not going anywhere. They haven’t been able to find an interpreter over the last year and the defendant may have to go to trial in his murder case without having one.”
The attorneys on the jury trial were waiting for me this morning. They reached a settlement when the defendants pled guilty before the jury arrived. A ten-day trial had been estimated. We spent two days selecting the jury, with each side knowing that the case would probably settle. While a waste of time for all of us, including the jurors, we at least saved eight additional trial days. Time to wait again for another trial.
On May 12, I described my colleague’s victory over the Commission on Judicial Performance (CJP) after his three-day hearing before Special Masters. They heard from more than a dozen witnesses about his comments during jury selection in a four-defendant gang murder case. The victory was short-lived. The Commission, consisting of judges as well as attorneys and lay persons, overturned the findings of the Special Masters who heard the witnesses. They concluded my colleague had committed serious misconduct that was worthy of a public admonishment and issued a press release to that effect.
Judges will now become even more fearful of discipline by the Commission on Judicial Performance. The ruling will reverberate throughout the state. Along with other judges in my building, I am wary about questioning jurors, especially ones we think are lying about their ability to serve. It’s so much easier to let jurors go without challenging their lies. After all, no judge has yet been disciplined for excusing too many jurors from the jury panel. We are only disciplined trying to make jurors fulfill their civic duty.