Jury Duty

Losing Faith in the Rule of Law

I spent Tuesday in City Hall, 60 Centre Street, Room 452, on jury duty. I’ve been there before, but this time was different. I was ready to tell the officers of the court that I should not (and could not) serve on a jury because I no longer believe that the US legal system can provide justice to the citizens and the residents of this country. (I made a start on this speech to a prosecutor in Room C, but was told it was premature.).

But c’mon, I asked myself, how can you abstain from the constitutional structures you have defended in this very venue?

Well, duh. Trump’s utter contempt for the rule of law and the Supreme Court’s complete lack of constitutional scruple have made “abolish the police” sound like an urgent imperative rather than a utopian slogan. In this sense, the eclipse of my faith in the mere legality of “America” has just caught me up with a substantial proportion of my fellow citizens—the growing numbers of people who believe, with good reason, that the US has become a rogue state, acting lawlessly abroad and at home.

But there was something else, something more gradual and yet more proximate happening to me, in me, as I sat there in Room 452 waiting for my name to be called. It felt like a quantitative change was becoming qualitative in real time.

What images and memories had been accumulating without my notice, and were now flooding my brainpan as I sat there in that barren room listening to the lung-scarred throat-scraping voice of the clerk call the roll? Was it watching police officers kill black people with impunity over and over, and then seeing armed government agents execute two white people in Minneapolis? Was it the look on Samuel Alito’s face the day after Roe v. Wade was overturned, or the wheedling tone of John Roberts in pleading for civility as he gutted hard-won civil rights?

Was it watching big law forms and Ivy League universities roll over for no apparent reason except that . . . ? Except what? They wanted to keep their corporate clients, and to do business with the government? To protect themselves from the specious charge of anti-semitism? Or was it watching as the cops took over the quad at Columbia, trampled a Jewish Studies professor at Dartmouth, and stood by as Zionists attacked the pro-Palestinian encampments at UCLA?

As I sat there waiting to be directed to Room C for the first phase of screening—it’s not yet voir dire—I began to write notes on my phone as if I were preparing a lecture for an undergraduate course. But it got personal real fast. I realized that I was speaking to myself from my own experience with the police and the justice system, not simply identifying with victims, black and white, nor wielding abstractions about the inequities of the law.

But I started there. It felt like a speech in the making. It went something like this.

You ask me if I can be fair and impartial, objective even, in assessing the evidence that will be presented to me and my fellow jurors in a trial. No, I can’t. Here’s why.

(1) If you treat everyone as equals at and before the law, you are reproducing and enforcing inequality. Because then you are ignoring, repressing, and mutilating all evidence of past discrimination—the systematic kind that has impaired opportunity for females and people of color over centuries of exclusion and oppression. But that is what the law demands, and not just as the Supreme Court has defiled constitutional jurisprudence in eviscerating the Voting Rights Act of 1965 (among the other legal atrocities it has perpetrated).

(2) The law is a commodity to be bought and sold like most others: the more money you have, the more legal talent (billed labor time) you can afford, and the longer you can sustain even a losing legal battle. Donald Trump has taught us that equality at and before the law is a joke, and not just because he has escaped legal accountability for his racist and misogynistic, not to mention criminal, behavior. The ability of the tobacco companies and now the fossil fuel industries to escape culpability for their lethal negligence only amplifies the punchline.

(3) Cops are thugs in waiting not because they’re bad people, or “bad apples,” but because they are required in the normal course of carrying out their duties to become thugs. This is a structural requirement of the job. If you do not behave as if you are under siege from an armed and dangerous population, the police academy teaches, you put your partner at risk. So the good apples are the exception, not the rule.

(4) Now, as for my own experience of the law. I exclude my youthful encounters with the police, which were frequent but never consequential. I have watched cops lie in court, under oath, about scenes and evidence to which I was an eyewitness. I have seen cops beat a helpless homeless man only 50 feet from the entrance to my fancy new building on 123rd Street. I have been “physically restrained”—slapped around, “struck about the face and neck,” and so on—then handcuffed for telling a police officer thst he had no right to inspect the glove compartment of the vehicle in which I was a passenger.

Right out in front of 60 Centre Street, on the other side of Foley Square, I have watched a cop trying to break my left forearm with his baton for no better reason (“probable cause”) than I had opened a police barrier to let one woman cross the street during an anti-war demonstration.

And in a small town in New Jersey, one mile square, where I lived for 20 years—where I raised my kids, coached their soccer, basketball, and softball teams—I watched as a probation officer tried to ruin my son’s life, and almost succeeded. When he was 17, he was charged with illegal possession of alcohol, even though the arresting officer acknowledged that the kid had no alcohol in his possession. ' “I smelled it on his breath,” the cop claimed. I consulted a lawyer recommended by a colleague. “His word against your son’s,” the lawyer said, “Who do you think the judge is going to believe, the cop or the juvenile?”

So against my better judgement, we didn’t fight the charge. My son was put on probation, and the nightmare started. The probation officer would show up at the house at 6:00 AM or 7:00 PM to see if the kid was home. He’d show up at all hours to administer a urine test for illegal drugs, even though the original charge had nothing to do with such substances. If the test showed traces of marijuana, the kid was ordered to report to court for sentencing to juvenile detention. The orders kept coming, accompanied by loud displays of leg irons in the courtroom, until a judge remanded my son to a six-week stint in rehabilitation, near Scranton.

This systematic harassment, with the constant threat of jail time, lasted four years. My son never did graduate from high school. He turned his life around, as the saying goes, by joining the Marine Corps.

How, then, can you expect me to believe anything an officer of the court says, even under oath? How can you expect anyone to do so? And if officers of the court are not to be believed, what evidence should I treat as credible? The defendant’s testimony? That would seem a simple inversion—an evasion—of the original epistemological problem, not a solution.

The question remains. How can I abstain from participation in the constitutional structures I have defended for so long as parts of a usable past? By abstaining, don’t I replicate what I have long criticized mere radicals for doing—by keeping myself apart from the corruptions of “the system” and maintaining my moral purity, don’t I just leave things the way they were, as given by the past?

I suppose so. For the time being, anyway.