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Are we brave enough to truly seek justice?

Orrin J. H. Johnson
Orrin J. H. Johnson
Photo of gavel on scale of justice

Of all the tragedies of the COVID shutdown, among the saddest are all the people waiting by their mailboxes waiting for their jury duty summons.  I mean, why watch courtroom dramas when you can skip work for a week and see it in real life?

Well, OK – so most people would put “no jury duty” in the “silver lining” column of The Plague.  It can be tedious, or worse, you have to hear the intimate details of the worst, most violent day of someone’s life.  If you have a government job or work for a big company, maybe you still get paid, but if you run a business or get paid by the hour on a shift, an unexpected week “off” could be devastating.    

But if you’re one of the litigants, or a defendant in a criminal case, that case might be the most important thing that ever happens to you. It could represent the loss of your life’s savings, your house, your business, your freedom, or literally your life. If you’re the victim of a crime, it can mean validation and closure.  

In a criminal case, when a person gets to the point where a jury is being picked, chances are that most people involved in the system have already concluded the person is guilty.  The prosecutor obviously thinks so, and so did the arresting/investigating police. Through decisions on bail or substantive pre-trial motions, the judge has also often let his or her own opinion be known.  People in the system are invested in the system – we want to believe it doesn’t make mistakes, even as we work through an adversarial system that wouldn’t be necessary if that were true.

And so for centuries, we have forced a group of random citizens to come check the government’s work. They come in with their own biases and predilections, but also with a fresh perspective on the case in front of them. Most (or all) of them have to reach a consensus on the correct outcome of the case – whether someone is truly guilty, or whether a doctor was negligent or a patient merely unlucky.

It is an imperfect system, to be sure. But it is the least imperfect system of justice human civilization has yet devised. With very few exceptions, jurors I talk to at the end of my trials feel uplifted by the process, glad they served and more willing than they would have thought to do it again. And of the jury trials I have handled as a defense attorney, fully half ended in either a full acquittal or a refusal to convict on the most serious charges. Even as a prosecutor, knowing that I had to justify my accusations to 12 citizens made me ensure that I was crossing all my Ts.  That check on the government’s power is crucial.

Among the many things the COVID shutdowns have robbed us of is this keystone of liberty. As I noted last week, separating ordinary citizens from the work of their government is a dangerous thing, and jury trials, particularly in criminal cases, are an important part of ensuring our rights and freedoms are protected, and that our public servants’ power remains limited.  

But since March, people sitting in jail accused of very serious crimes have only two options – plead guilty to a crime they may not have committed, or sit in a cell and wait, seemingly indefinitely. Victims of crime are left hanging. Civil lawsuits are equally on hold.  

It’s not just jury trials, either. You can’t realistically hold a trial via Zoom. People communicate so much through body language, and if internet comments sections have taught us anything, it’s a lot easier to be a complete jackass or a liar behind a computer screen than when facing another human being face-to-face and in person.  

Every trial put off now still has to be dealt with later. And by the time we catch up to the proverbial kicked can, we have several more cases piling up behind it. Justice delayed is often justice denied, and the COVID restrictions, which will not, cannot, and were never meant to eliminate the disease (I’m old enough to remember when the goal was to “flatten the curve” to save hospitals from being overrun, a goal which has been manifestly achieved), have delayed justice for far too long.

In the alternative, people have sought justice by holding what are now plainly political rallies, with a dash of rioting, violence, looting and arson. Theft, random violence, and the destruction of other people’s property (we’re all looking at you, Seattle) will never lead to justice – only a different flavor of oppression, just as it always has. Lefty politicians ignored the disease in favor of these political rallies because it was convenient to do so (although they’ll all suddenly remember again as soon as people they disagree with hold their own political rallies).  

It is time to seek justice again the old-fashioned way. The right way.  

Various courts are working hard to get ready for trials to resume. It is a logistical challenge to be sure, but absolutely doable. And like all human endeavors worth doing, it involves some small measure of risk. You can create space between witnesses and individual jurors, but how do you assess the credibility of testimony when people are wearing masks? How much will jurors or judges fail to hear? What hampers the spread of viruses also hobbles our ability to communicate or listen to other people effectively, and so fair trials will require mask-less faces, at least of witnesses.

And who will show up? COVID creates a ready-made excuse for people trying to get out of their constitutional duty to their fellow citizens, even though the reality is that the risk is low and people are accepting that risk to righteously live their lives in many other ways, like going to bars, casinos, restaurants, etc.  Even Gov. Sisolak, the mask hectorer-in-chief, is happy to take it off in a restaurant for nothing more than a good photo op.  

Who was willing to march shoulder-to-shoulder to demand justice in the streets on a Saturday afternoon, but turn into germaphobes Monday morning when it’s time to report to court for jury duty? I hope you aren’t. You’ll be glad you reported for duty.

The very real social consequences to the COVID shutdowns are now apparent beyond any doubt – half a million Nevadans seeking government benefits (and most struggling to get them), incalculable damage to mental health as we isolate, children’s education and social development stunted, economic pain that will last for years, eroded trust in our government from all quarters. No sane person thinks street riots and being bottled up for months are unrelated.  

Being willing to come sit on a jury these days takes a healthy willingness to accept some risk, something which has always been true, by the way. But we do that every day – we get in our cars, cross busy streets, eat unhealthy foods, and do things that make life worth living, and make the world worth handing over to our children. This is a good thing. For all its historical warts, the United States of America has done more to make the world a better place than any other nation (anyone who says otherwise is either historically ignorant or is lying to stir up division for their own agendas), due in no small part to our willingness to embrace risk to protect justice and liberty, for ourselves, our posterity, and for people around the globe who are now free from the slavery and oppression of a century of fascism and communism (an ideology indistinguishable from Nazism in any way that matters to its victims) because of us.

We’re losing that spirit in the age of COVID, and we must do more to restore it, especially as we see how the disease never lived up to its dire expectations. Staying virus-free is not the same thing as staying healthy – not as individuals, and not as a society. 

It’s time to get back to the business of being a free people.

Orrin Johnson has been writing and commenting on Nevada and national politics since 2007.  He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016.  By day, he is a criminal defense attorney in Reno.  Follow him on Twitter @orrinjohnson, or contact him at [email protected].


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