Dear John,
When I gave a TEDx talk this past January entitled Jury Duty Is for Heroes, I didn't realize at the time just how ominously right that was. The events of 2020 seem to be putting an exclamation point at the end of that title.
Recently, jury trials have been resuming in some limited locations and circumstances, albeit in very concerning, stripped down forms. Additional measures are in place most everywhere to mitigate the risks posed by COVID-19.
However, these measures are a double-edged sword. Not only do many of them erode and devalue the protections of trial by jury for the accused, but they are now themselves endangering those they purport to protect.
This troublesome situation flared up last week in Great Falls, Montana. A visiting judge, John Larson from Missoula, found a prospective juror in contempt of court for not wearing a mask and casually threw him in the clink. That's right. 24 hours in jail over not wearing a mask.
The sheriff had previously discussed the situation with the local judges. Through the eminently civil strategy of having a reasonable conversation, he gained consensus among them that imprisonment was an inappropriate consequence for violations of mask-wearing rules. Visiting Judge Larson, on the other hand, unilaterally deemed Depaul's so-called contempt offense so egregious that he was willing to risk issuing him a de facto death penalty over it.
My first thought was "how rich"—he's being punished for not following orders supposedly meant to combat the spread of this virus... by then exposing him to the very virus we are supposed to avoid spreading.
This WAS forseeable. Even though the jail was not known to be in such a state at the time of sentencing, judges nationwide have long known that incarceration facilities are at heightened risk for outbreaks. They have been sent repeated messages from many directions that incarceration should be limited only to cases where it is absolutely necessary. This led to my second line of thought.
My second thought was that G.K. Chesterton was right. He wrote in The Twelve Men that:
"... the horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policemen, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it.
Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop."
This, says Chesterton, is part of the beauty of the jury:
An independent jury is not composed of people who have sat there in court day after day, year after year, whose mind has been conditioned to operate on autopilot.
It is not composed of people who view themselves as inherently superior to everyone else in the room, worthy of the "respect" of being unquestionably obeyed by the underlings around them.
Jurors are not so used to the idea of taking someone's liberty and endangering their very life that it has become just one more ho hum task to be scratched off the day's "To Do" list between breakfast and coffee break as it appears Judge Larson seems to have treated it.
Few things burn me up quite like contempt charges. In these cases, the very person whose gotten their feelings stepped is then legally permitted to act not only as the accuser, but also judge, jury, and executioner. There is effectively ZERO check or balance on government power in such cases. Hence, these kinds of abuses are par for the course.
May this be a reminder to us all that despite the challenges of maintaining the protections of trial by jury in times like this, we simply MUST NOT ALLOW THEM TO DISAPPEAR.
A government-directed "new normal" in these times is not likely to be temporary curtailment of our rights. Rather, at its first opportunity, government will issue a permanent death sentence for trial by jury. That is a recipe for unfettered government abuse, and it should be unacceptable to us all.
