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Legally Speaking


Issue: June, 2007
Author: Hon. William F. Downes

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The American Jury System

Editor's Note: Judge Downes’ article was written prior to the May 1st Juror Appreciation activities and distributed to the statewide media outlets for publication as an Opinion Editorial.

As the Wyoming State Bar prepares to celebrate Law Day, I will have completed nearly 13 years of service as a United States District Judge. Like my colleagues, Judge Brimmer and Judge Johnson, I count myself truly blessed to be able to serve the people of Wyoming as a trial judge. I believe in trial by jury because, over the course of my career, I have learned to trust the judgment and good faith of Wyoming’s citizens. As a lawyer, I had the unhappy experience of being on the losing end of a few jury trials, but I can honestly say that I never walked out of a courthouse harboring the belief that a Wyoming jury had given short shrift to my client’s cause.

My esteem for citizen jurors has only grown during my years of judicial service. I have been privileged to preside over many trials both in the District of Wyoming and in four other federal judicial districts. Although drawn from very diverse backgrounds, the jurors invariably come together in a common constitutional task - to serve as judges of the facts in a United States courthouse. The selection process follows a predictable path: most of the prospective jurors would rather be elsewhere. Many have projects to complete at work. Some have cattle that need to be moved to high meadow. Teachers fret about their classes. Students are stressed about impending exams. Retirees long for a fly-rod or golf clubs. But dutifully, they come nonetheless. They take an oath to participate truthfully in the jury selection process, and those who are selected swear to be just judges. With every day of trial, I can see the burden of that task weighing on them. For those who have never served on juries, they are stunned by the magnitude of the authority that has been thrust upon them. While many of them began their service with reluctance, in the end, the vast majority speak highly of the process.

In recent years, when discharging a jury after its service, I have thanked the members of the jury for being good patriots. I tell jurors that when people like themselves, properly disposed to being just judges, are empanelled in a jury box, they are the embodiment of all that is decent and noble in our constitutional government.

In a letter to Thomas Payne in 1789, Thomas Jefferson wrote, “I consider trial by jury as the only anchor yet devised by man by which a government can be held to the principles of its Constitution.” On this Law Day, 2007, I have confidence that lawyers, judges and experienced jurors fully appreciate the importance of Thomas Jefferson’s observation. Unfortunately, recent events have convinced me that the importance of trial by jury is not well appreciated by a substantial portion of our population. In truth, many of our neighbors are indifferent to their obligation of citizenship. With regularity I am assailed by the entreaties of apathetic citizens. In their letters requesting to be excused from jury service there is a common theme: they profess to be too busy, too essential, too important, or too preoccupied to be burdened. Implicit in their entreaties is the notion that jury service is a nuisance with which they cannot be bothered. The great French observer of American life, Alexis de Tocqueville knew from his observations that “the institution of the jury places the people themselves on the Judge’s bench.” That doesn’t seem to matter to these indifferent citizens. From my experience in picking juries, I remain convinced that many of these reluctant citizens would be more inclined to serve as jurors if they had a full appreciation of the importance of their service. More than apathy, it is ignorance which blinds them to the reality that our Constitution is not the exclusive province of politicians, lawyers and judges. Rather, the Constitution is the people’s covenant—it is of the people’s making and only we the people can alter it.

We lawyers and judges—joined by experienced jurors—can do much to dispel the ignorance and apathy of our ill-informed citizens. By volunteering to speak to students, civic groups and fraternal organizations about the duties of citizenship, especially jury service, we can do much to advance the rule of law. We must insist that political science and the history of our Country, be taught—and taught well—in every school from grade school to university level.

We can also instruct our fellow citizens by our good example. In the conduct of jury trials, judges and lawyers must know and respect their proper roles. By our conduct, we must demonstrate to jurors that we respect their function as judges of the facts. We must constantly endeavor to ensure that evidence is presented in an efficient and understandable fashion. Lawyers and judges should work together to ensure that instructions on issues of law are presented to the jury in clear and concise language. In short, if we who make our living in a courtroom demonstrate by our conduct the reverence we hold for the constitutional right of trial by jury, we will do much to instill respect for the same in the minds of those who observe the proceedings.

Under the glass top of my desk, I have some photographs that mean a great deal to me. One is a photo of my family taken on Easter Sunday, 22 years ago. My twin daughters, my wife and I are smiling into the camera. In contrast, my three-and-a-half-year-old son is very solemn in appearance. Dressed in a suit and bow tie, he clutches his teddy bear fiercely. Every time I look at that picture of him, it brings a smile to my face. In April of 2003, I inserted another picture of a little boy with a teddy bear underneath the glass next to that family photo. The photo clipped from the newspaper shows a six-year-old boy, Tony Nave, dressed in a suit and clutching a teddy bear. Tony is walking out of a church. His face is obscured in the photo because he is wiping tears from his eyes. Tony had just attended the funeral service of his father, Major Kevin G. Nave, USMC. Major Nave died in Iraq in the early stages of the war, on March 26, 2003. As of April 23, he is one of 3,313 service men and women who have died in Iraq; another 483 have died in Afghanistan, and over 24,000 U.S. soldiers have been wounded. I think of Tony, Kevin and their family often. Unlike my son, Tony will no longer enjoy the comradeship and love of a father in this life. For our sake, and in devotion to our Constitution, Kevin Nave sacrificed his opportunity to be with his family. In this regard, it matters not what you think about the efficacy of our nation’s war efforts. The fact remains that Kevin Nave died so that we might have the opportunity to live under a Constitution which guarantees us the opportunity of life, liberty and the pursuit of happiness. We should ask ourselves, and we should challenge our neighbors with this question: When there are those from whom service to our Country and Constitution calls for the ultimate sacrifice, how can any American shrink from this one small yet significant act of public service?

Thomas Jefferson and the other founding fathers of this Nation expected that we citizens would participate in the governance of our nation and, by our efforts, make it a more perfect union. If we judges and lawyers do our utmost to uphold the constitutional right to trial by jury, we will achieve the highest aspiration of our profession. For Tony’s sake, and for all our children, we can do no less!

The Honorable William F. Downes is the Chief Judge for the United States District Court – District of Wyoming.

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