Government

THERE OUGHT TO BE A LAW: I'm just lounging by the side of the jury pool

July 10, 2006

I got something in the mail recently. Now, from my friends' overwrought reactions, you'd have thought it was an invitation to go hunting with Dick Cheney. But no, to my colleagues, this was even more frightening.

"This" was my summons for jury duty.

As for me, I thought it was kind of cool. OK, so it's not the prize patrol delivering my earlyretirement check. But the constitutional romantic in me was moved by the fact that I'd been summoned to perform my civic duty during the same week we would celebrate Independence Day.

Because as I held my summons, I recalled-just as surely as all of you do-that Parliament's passage of the Stamp Act of 1765, which eliminated the right of trial by jury for colonists accused of smuggling, stoked the fires of the rebellion that led directly to the Declaration of Independence. Just think: If the British hadn't messed with our right to trial by jury, we might all be speaking English today.

Yes, the founders took this right seriously. Thomas Jefferson said, "I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its Constitution." And so that's where they put it: in Article III and in the Sixth and Seventh Amendments of the U.S. Constitution.

Thenceforth, everyone was entitled to a trial by a jury of their peers-well, assuming, of course, that their peers were white men who owned property. See, jury pools were historically taken from the voter-registration rolls, and, until the early part of the 20th century, you had to be a wealthy white guy to vote in most of America.

Of course, women and minorities soon appeared on voter registration lists, but there remained another problem with using those lists exclusively for jury service: In some counties, too many dead people were ending up on juries.

So a few years ago, your General Assembly and state Supreme Court deepened our jury pools. Today, counties can supplement the voter-registration lists with other groups, such as utility customers, people with driver's licenses, property taxpayers, and folks listed in the phone book. That's right: If you can manage to get listed in a phone book, you might qualify for jury duty. Assuming you're over 18, can read and write English, are mentally sound, aren't a felon, and aren't in jail. We have some standards, after all.

And don't forget, as you've probably read elsewhere, you're no longer automatically exempt from jury duty if you're a dentist, veterinarian, Indianapolis Public Schools board member or ferry boat operator. Because you never know when you're going to need one of those ferryboat people for an admiralty case.

So there I was-duly qualified to serve as a juror in this state, ready to pull a Henry Fonda and be one of 12 mildly disgruntled if not angry jurors.

But seriously, who was I kidding? Look-that rich guy in the New Testament has a better chance of getting his camel through the eye of a needle than a lawyer has of getting picked to be on a jury. Really, if you were on trial, would you want some smart-aleck attorney sitting in the jury box second-guessing everything your counsel did? Didn't think so.

But on the infinitesimally small chance that I could actually end up in the jury box, I would rest secure knowing my law firm couldn't penalize me for missing work. As of July 1, a new state law makes it illegal for an employer to subject a person to any "adverse employment action" as a result of the employee's jury service. That means you have to pay employees for the day they missed, and, no, you may not make them take a vacation day or a sick day to cover their time on jury duty-the law prohibits that as well.

So, if your employees get summoned for jury service, don't hassle them; thank them. They're participating in an institution as old as the Magna Carta and as important today as it was to the founders 200 years ago.

Now trust me-I know a lot of people think the jury system is broken-bring up the subject and see how long it takes someone to cite the O.J. Simpson trial as Exhibit A for all that's wrong. Sure, the system's not perfect. But I'm inclined to think of "trial by jury" in the context of Winston Churchill's quote about democracy: It's "the worst form of government except for all the others that have been tried from time to time."

So before we drain the jury pool too quickly, I'd ask you to ponder this: Do you know a better way of figuring out what to do when the glove doesn't fit?



Gifford is a partner at the law firm of Baker & Daniels in Indianapolis. His column appears monthly. This article is provided for general information purposes only and should not be regarded as legal advice for any particular situation. Gifford can be reached at 237-1409 or at ron.gifford@bakerd.com.
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