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Stanford University law professor Michele Dauber speaks at a June 10 rally to recall Judge Aaron Persky.

Should Jurors Refuse to Serve with the Judge in the Brock Turner Case?

The oddest fallout from the Stanford sexual assault

When a California judge handed down a six-month sentence to Brock Turner, a former Stanford swimmer convicted of sexually assaulting an unconscious woman, the relative leniency generated an indignant storm on social media and a petition to recall the judge. Perhaps the most extraordinary repercussion was a mutiny among prospective jurors, one that raises questions about the delicate relationship between jurors and judges.

In protest of his sentence in the Turner case, at least ten prospective jurors appearing in Santa Clara County Superior Court Judge Aaron Persky’s courtroom last week refused to serve on a panel in an unrelated new case he is trying, reports the East Bay Times. One after another, the judge thanked the candidates for their candor and excused them from duty. No judge or judicial or jury expert I spoke with can remember a similar episode in modern American history. And some were troubled by the development.

“A mutiny by prospective jurors!,” exclaimed New York University law professor Stephen Gillers, one of the foremost judicial ethics experts in the country, in an email. “I’ve never seen this before.” Nor had Andrew Guthrie Ferguson, the University of District of Columbia law professor who is the co-author of the 2012 book, “Why Jury Duty Matters” Via email, Ferguson called the news “troubling” and said the protesting jurors were “misguided” and “selfish” because their refusal to work on Persky’s cases “prioritizes personal opinion over the working of the larger justice system.”

Ferguson also told me he was concerned about the precedent that Persky’s jurors might be setting with their protest: “Imagine jurors objecting to serving in a particular courtroom because of the political or legal philosophy of a judge,” he said. “I am all for citizen power through the jury but do not think this type of protest to participation is a constructive response to what is clearly genuine frustration or anger.”

I also ran the Persky scenario by a few federal judges and their response was both consistent and telling. Jurors who may be inclined to protest this way in federal court, they said, aren’t likely to be politely excused—or even excused at all. U.S. District Judge John Jones, of the Middle District of Pennsylvania, who has overseen hundreds of jury selections in his decades of service, walked me through how such a protest would play out in his courtroom:

I would ask the prospective juror to come to sidebar and ask them a series of questions in order to drill into their stated unwillingness to serve. Among the points I'd endeavor to make is that it would be their job, and not mine, to judge the facts of the case. I would advise them that my role is to provide them with the law that they must follow. I would have to be utterly convinced of any prospective juror's inability to follow the law before excusing them.

Gillers, the ethics expert, said a judge could hold a prospective juror in civil contempt only if the judge believed the protest was a pretext to get out of serving. The beleaguered Persky, already the subject of a recall campaign, was clearly in no mood to take that step last week. Perhaps that’s because he was simply stunned by what was happening.

“I’ve never seen it, nor have I heard about it,” said U.S. District Court Judge William Young, of Massachusetts, who has written extensively about jury trials during his decades on the bench. Once, Young told me in an email, “I discharged a juror who would not deliberate because he thought the federal drug laws were unconstitutional.” That, however, is a far cry from jurors snubbing a judge over a sentence the judge handed down in another case.

Jones suggested that some of those prospective jurors might have been more interested in getting out of jury duty than they were in taking a principled stand against sex assault sentencing.

I will also observe that in the voir dire process these things tend to become viral. That is, if one person on the panel proffers a reason they can't be seated on the jury and it gets them excused, others will quickly parrot it in order to avoid serving. So I really have to question the sincerity of some of the objectors... I would have to be utterly convinced of any prospective juror's inability to follow the law before excusing them.

Persky clearly has problems that go beyond what some of his potential jurors think about him. But you can bet that other judges are watching to see whether this juror mutiny is a one-time event or the start of something broader in the annals of anti-judge protests. The trial system won’t do well if other potential jurors go rogue and pass judgment on the judge before they ever get to the facts of the case.