They've Ironed the Wrinkle Out of the Jury


I’m the wrinkle, and I was ejected from a deliberating federal jury on March 13. The case was United States v. Robert Luisi, and I was thrown out because I refused to take a second oath of jury service that would have required that I suspend my common sense, and even suspend my belief in an objective reality. This second oath would literally have bound me to find the defendant guilty if the judge had instructed me that "the law says all Italians are guilty." (Luisi is of Italian heritage.)

All jurors in federal courts, according to the jury handbook I was given, take "an oath to decide the case u2018upon the law and the evidence.’" The handbook then describes: "The law is what he judge declares the law to be." I found out later that — even if the judges don’t take the Constitution literally — they take this last part literally.

The actual oath I took as a juror was to decide the case "according to the facts and the law as the judge presents." It was essentially the same as the juror handbook, just a little closer to the actual verbiage used in Article III of the U.S. Constitution.

U.S. District Court Judge William G. Young, a Reagan appointee, presided and immediately after our oaths launched into a 45-minute description of the U.S. Constitution. He made a point of saying: "You are all constitutional officers." But he didn’t just describe the jury mentions in the U.S. Constitution, he summed the whole document up — and ably so. More than one juror (not me!) groaned on the way back to the jury room for a break that the speech had been too long.

Then we heard all the evidence, four weeks of it. Everybody had a nickname: Bobby the Cook, "Skinny" Joe Merlino, even "Harry the Hunchback." (I’m not kidding.) The defendant, Bobby Luisi, was a Boston capo in the Mafia who had sold a total of three kilos of cocaine to an FBI agent in 1999. Luisi was charged with two counts of possession of cocaine with an intent to distribute and one count of conspiracy to possess cocaine with an intent to distribute. The transactions took place within Boston city limits, and the prosecution made no attempts to produce any evidence that anything had ever crossed a state line.

The case itself was really academic, related more to career control than to crime control, as Luisi had already confessed to a murder and racketeering charge. He wasn’t going from the courtroom back to his home in Medford, Mass. He was going back to the pokey each night. For the ambitious Boston-based U.S. attorney, Michael "Maximum Mike" Sullivan, it was an opportunity to have his underlings run up the score for his résumé.

The fact that Luisi was getting another trial meant that Luisi got a field trip outside of his prison cell several times per week. This was Luisi’s second trial on this cocaine charge. The first trial held in 2002 was overturned on appeal when a higher court ruled that jurors could consider that he had been entrapped. (FBI informant and mob associate Ron Previte had gotten the boss, Philadelphia’s "Skinny" Joe Merlino, to call Luisi to push the deal through.) All Luisi could do was smirk throughout the month-long trial, almost certainly thinking about how many field trips he got to have to the courtroom because a district attorney wanted another scalp on the mantle.

Fast forward to the day of deliberation. The court just happened to have a visiting judge in from South Korea all day — who Judge Young described as "an expert in case management." The judge gave us instructions on the law related to entrapment before we were to begin deliberations. He told us explicitly: "You don’t have to check your common sense at the door" of the jury room and said that we could make "rational inferences" and draw "logical conclusions."

I went into the jury room and told them what I thought, explaining the concept of delegated powers and the limits of the language in the commerce clause of the U.S. Constitution, and then all hell broke loose. The other jurors were good people but weren’t familiar with the details of the Constitution and under the sway of the philosophy of: "The law is what he judge declares the law to be." Eventually, the foreman convinced me to write a question to the judge. I told him I’d write one, but also said that he’d give us a "because I said so" reply. Here’s what I came up with: "If 2/3 of the Congress decided in 1918 that they needed to amend the constitution in order to ban mere possession of a substance (in that case, prohibition of alcohol), where is the constitutional authorization today for the federal prohibition of mere possession of cocaine today?"

The judge didn’t take to the question well. He said that I got the history wrong. (I didn’t.) He said that the juror "had exceeded his authority" in questioning the constitutionality of a law, and reasserted that federal cocaine possession bans were constitutional. He did not cite any constitutional provision in his reply to the question. In effect, he said it’s constitutional "because I said so."

I didn’t bring in my copy of the Constitution into the court because of the judge’s instructions not to "go into lawbooks." Of course, I didn’t need to bring a copy for myself, because I’ve long had it virtually memorized. Too bad the Constitution wasn’t in a picture frame on the wall. We’d have had a jury moment then!

Then, the jury deliberated for a while to see if they might all agree with me anyway, but it was soon clear that most jurors favored a guilty verdict.

Later in the day, after it became clear I could possibly deadlock the jury, another juror wrote two questions to the judge which are to this effect: If a juror refuses to consider the facts of the case and rejects the validity of the court and the venue for this trial because of a belief in the unconstitutionality of drug laws, can he be considered a valid juror? Can a jury with such a juror be considered a properly constituted jury?

I did not object to the other juror asking the question, though I told him I disagreed with his characterization of my views. I don’t question the validity of the court, or of any case being made. All I’m saying is that there’s only one verdict to be rendered under the circumstances.

Soon we were back in the courtroom — again — and for the first and only time in the case the judge was livid. He said that in 30 years of service on the court he had never heard of such a case or question on the jury. He said he’d confer with his peers (other judges) on the options, but did say that the jury was properly constituted and the juror, The Wrinkle, was a properly constituted juror. All the junior legal researchers were in court at a special table over where they hold the sidebar conferences so they could witness the spectacle close-up.

Judge Young said something along the likes of "When you set aside the law and the Constitution for your own preferences, you undercut our whole system of government." Ummm … yeah, I thought. You would be, if you set aside the Constitution. But what if you uphold the clear and unequivocal language of the Constitution?

The judge continued his rant declaring that by reading the U.S. Constitution "You are exercising judgment that is beyond your competency." Though as an educator I know the U.S. Constitution was written to the 11th grade vocabulary level, I strongly believe he didn’t intend it as a personal insult.

Judge Young’s position was that jurors are fully capable of interpreting heavy Mafia code language and deciphering the subtle inflection of drug dealers’ voices over a wire-tapped phone, but that jurors are "beyond their competency" in reading straightforward English prose written to the 11th grade vocabulary level.

It’s also possible he believes that the 18th-century farmers who wrote the text put some secret Gnostic code into the text of the Constitution that we plebes wouldn’t understand. That’s not exactly the kind of thing farmers are known to do, though, and there’s no historical evidence of it.

He also said that by judging the law — as he related it to me, which included the Constitution — that "You are taking authority that was not given to you." Remember, my oath was to judge the "facts and the law." My view is that the law, as presented by the judge, included the U.S. Constitution. I made the "logical conclusion" that the Constitution is the "highest law in the land," which every schoolboy knows. It would be illogical to conclude a judge’s other instructions supersede the clear and unequivocal language of the U.S. Constitution.

The day ended in court with the judge’s answer of the juror’s questions, and his pledge to consult other jurists about this "new wrinkle," as he put it. I wonder what the Korean guy was thinking by this point. (My guess: "America really has become a third-world country.")

The next day we traipsed into the courtroom at about 9:30 to hear the judge’s report. He reiterated (much more briefly) his charge from yesterday afternoon, and then sent us back into the jury room with the instruction that if we were to have the same problem that we should send him a note saying we have the same problem. It didn’t take a second for me and the other jurors to say in unison "Send the note!"

So we once again marched into the courtroom, junior legal clerks now in the area of the courtroom reserved for visitors, and the judge said he’d interview us individually and ask us two questions: "Will you be able to fulfill your oath as a juror to apply the laws as I instruct you?" ("Yes," I could answer, because he has explained the U.S. Constitution) and "Could you start your deliberations fresh?" (Assuming a juror were removed).

After the foreman went in to talk with the judge — less than two minutes — it was my turn.

I gave an affirmative to his first question, which was exactly the question he said it would be, and then added: "But I think I can clarify. I’m the one who asked the first question, and I’m the one about whom the juror asked the second question, though I disagree with all of the characterizations in the question."

I explained how I came to where I am: "I talked about the Constitution because you had introduced it into the case, your honor. Right after we took our oaths to judge the case according to the u2018facts and the law’ as described by you, you launched into a detailed description of the Constitution. You described the First Article and how it established Congress, the second article and the presidency and the third article and the judiciary. You even made a point of calling us Constitutional officers, and I took that discussion seriously. Every schoolboy knows that the Constitution is the highest law in the land."

What followed was a fifteen-minute sparring match where he attempted to get me to say that I "interpret" — a favorite word of judges — the Constitution the way I want. But nobody in the room was fooled. It was clear to everybody that the sole reason I was in the room was because I had refused to become a constitutional "interpreter."

"Your honor, I need an interpreter for a document written in Greek or Latin, because they are foreign languages. But the Constitution is written in English, my native tongue, and as an educator I know that it is written to the 11th grade vocabulary level. We don’t need to interpret simple declarative English sentences of the Constitution. We can simply read them." I told him that the words in the Constitution have a specific meaning that are independent of how I may or may not want them to mean. "Words have specific meaning," I said several times.

We discussed my first question to the judge from the jury room (about the 18th Amendment) — "I don’t understand the point of this…" he said. I explained. "If Congress felt they didn’t have the power to ban a drug — alcohol — in 1918 without amending the Constitution, how is it that the Congress has the power to do exactly the same thing now without a constitutional amendment?"

He explained that the power of Congress to ban substances within a state was "authorized by the commerce clause of the Constitution." So then we discussed the grammar of the clause, or I did anyway … to no conclusion. He seemed to assume that the word "among" was a synonym of the word "inside" or "within," a definition not found in any definition ever printed in any English dictionary ever printed and not found in the language of the Founders. The judge was more interested in past court precedents than the actual language of the Constitution. The text of the Constitution wasn’t on his tongue; what mattered was past court precedents. They were, as far as I could tell, infallible. I wonder if he would try to defend Plessy v. Ferguson.

Then he played the Reagan Republican card: "Would you say that Congress has sometimes gone too far, as happened in the Lopez case?" he asked, explaining the case to me (I remembered the case, but had forgotten the name of the case until reminded.) I told him that I thought that my role was to decide the facts against the law as he described in this case.

He asked me if the judge cannot instruct the jury on the law, and I replied: "No, your honor, the judge must instruct the jury on the statutes and the precedents. They are very complex." The judge had earlier used the term "teacher" of the law to describe his role. He was going far beyond the teacher role now, but I think that would be a fair assessment of the proper role of a judge. "And the Constitution?" he asked next. "You’ve already presented it to us," I replied.

So then I was sent out of the room and the lawyers crafted a question for me to answer. The question — a second oath, really — that I was asked to affirm was, near as I can remember, this: "Would you be able to set aside your own reading of the Constitution, the judge’s past instructions and judge the facts based solely upon the judge’s explanation of the law?" I said that I didn’t "understand what was meant by u2018reading.’ The words of the Constitution mean what they mean." I really think I was being asked that if I were to read the word "red," and the judge instructed me to hear the word "blue," I must act as if the word were blue.

As to the second part, I regarded it as a question that demanded I set aside my common sense. What if the judge had issued a direction on the law that all Italians are guilty? Had I taken this second oath, I would have felt bound to have my role limited to simply determining if the defendant were Italian. I would have been bound to vote guilty if the judge had said "the law says that if the sun rose today, then the defendant is guilty." It struck me as going too far. It went too far probing into the minds of jurors, too far outside of the law of common sense, and probably too far legally for a judge to demand such fealty as a condition of jury service.

I told them that I didn’t know if I could answer "yes" to the question. It was, in effect, a "no."

They kicked me out of the room to finalize my dismissal, called me back and politely dismissed me.

I never wanted to get on any jury anyway, and only responded to the summons because it threatened prison and fines for non-compliance. Now I know what to say to the next judge who tries to put me on a jury: "I’m not a qualified juror because I have memorized the U.S. Constitution, read English and believe in an objective reality."

That’s guaranteed to get me off!

Note: The quotes in this report are based upon my best memory of the events that occurred, as I wrote them down the evenings after the court sessions. There are bound to be a few slight — very slight! — differences in language between the quotes above and the official court transcript. If there is a discrepancy, I am sure the official transcript is the more accurate of the two accounts. I haven’t seen the official transcript, but I am certain that there would be no substantial difference between my recollection and the official transcript.