Exercise your 2A rights? It could come up if you're on jury duty!

David Duprey

When thinking of civil liberties in the United States, it’s quite easy to turn our attention towards the Bill of Rights to get a good grasp of what we’ve been endowed with by our creator. To the casual observer, perhaps a happy wanderer in the Union, they might talk about the freedom of speech or “pleading the fifth”. The breadth of each individual’s understanding of liberties is naturally filtered through the lens of which they view the world. My own view could be considered quite myopic, with an extreme focus on the Second Amendment, which is needed to protect all the rest. The First Amendment being important for all to be able to express themselves as they wish without government intervention. And in the unfortunate event if one has to “assert” their rights, they might be telling a peace officer I invoke or am availing myself of my 4th, 5th, and 6th Amendment rights. You can’t search me or my stuff, I’m not saying nothing, and I want my lawyer. Obviously there’s more than just that to our rights. What comes with these rights are responsibilities. Those responsibilities are actually rights too. It’s our right to be able to vote, but it’s also our civic duty. It’s also our civic duty to serve on a jury when called upon.

A prominent criminal defense attorney I know often would joke about any hypothetical case by saying something like “Yeah, now you have to convince twelve people that aren’t smart enough to get out of jury duty that you’re innocent. Think about that.” While the picture my barrister friend paints might be bleak, is it far from the truth or is it hyperbolic? Someone close to me that was called to serve on a Grand Jury in the vicinage of Boston told me about the process she went through and the stop-gaps they had in place to not just leave it to the “less intelligent people” to carry the weight of being an impartial jury. In short she said you could pretend to have whatever biases you wanted to but they see right through those tactics.

My own experiences with jury duty have been somewhat lackluster. The first time I was called to participate, I eventually got excused, not even having to show up. The second time I was not as lucky and got called in to sit in the waiting room all day long for several days. I honestly did not mind, as I used the time to work on revising and making editorial notes on a book I was working on. I remember having to answer a questionnaire prior to showing up. I remember having to swear an oath before being told to sit my butt down for the day and wait to see if my number got called. I remember the less than courteous county court worker I asked questions of and the process being a disorganized mess which could be summed up as; Sit down. Shut up. Speak only when spoken to. And you’ll be told when you’re told. I was less than impressed with the process and the people who acted as my handler. Nothing else really stuck out to me or jumped out at me through my experience.

I recently received a tip from a contact that wishes to remain anonymous. We had a good chat about something that was concerning them. The person was recently acquainted with the jury selection process where they live and something made them raise their eyebrows a bit. This was in regards to a call to serve as a petit juror.

I’m a big gun owner. I have a CCW, I carry 24/7. I believe in all our, you know, all the rights. And this thing. You know, I saw it a couple years ago, a doctor started asking…and the doctor started not treating patients that had guns in their home. And I thought that was crazy, you know? So this is Portage County, Ohio.

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[The form to be filled out was from] Portage County Municipal Court. Said right on there, “Do you own any guns? What type of do you own or have you ever owned any? What type? And what is the purpose of the guns?”

I turned to the Portage Jury Information and Forms website to try and put my eyes on the paperwork, which I did locate. Directly from the form, question number 19:

Do you own, or have you ever owned a firearm? ☐ Yes ☐ No
If yes, what type of firearm and for what purpose did you own it?

There’s a lot to unpack there. I’ve never been part of a full voir dire process, to portend that I have would be grossly saccharine and inauthentic. But I was part of the pre-jury selection process. In fact, further along in the process than my anonymous contact, because I actually ended up in the courthouse on standby, while their journey has just begun. I went through the process in New Jersey. I got to be sworn in. The Garden State is not what I’d consider to be a friend to civil liberties, certainly not the Second Amendment. Many in the state, the criminal justice industry, legislature, and executive find the concept of legal self-defense to be abhorrent. In New Jersey (and other states like New York, California, Massachusetts, etc.) you’re a “bad” person if you self-defend. Even in República de New Jersey, such a question was not asked of a potential juror. At least not on paper before showing up. I was not afforded the opportunity to tell any questioning council that I’m an unapologetic supporter of the Second Amendment, and that if there are weapons involved I’d be looking at the situation a bit differently than probably the rest of my peers.

I’d have no problem playing devils advocate if I were a prosecutor. Wanting to know if potential jurors owned firearms and in what manner is something I’d want to know if my record was on the line. Can’t have any NRA members in the jury box of a self-defense case, can we? This is an argument I could easily have. What’s equally easy is pointing out how much of a gross violation of privacy such a question really is. Bias or not. First and foremost the matter of owing a firearm is a civil liberty. It’s a person’s right to own a gun. Period. Beyond that, nearly half the households in the United States have firearms in them.

So what’s the big deal? Why ask? In Ohio, a state that’s contemplating permitless carry and becoming a Second Amendment sanctuary, this is an issue? I get the concept, I really do. But this needs to be known prior to even showing up? On paper. Recorded. Do we get a chain of custody of these forms after they’ve been “used”?

Looking over the rest of the questions, the one that comes up to be the slightly off kilter on the subject of civil liberties is question 14.

Do you currently participate in any volunteer activities? ☐ Yes ☐ No
If yes, please identify volunteer organization(s):
☐ Church ☐ Hospital ☐ Animal Shelter ☐ Homeless Shelter
☐ School ☐ Library ☐ Food Bank ☐ Girl/Boy Scouts
☐ National Organization (Red Cross, Cancer Society, etc.)

They ask if a potential juror volunteers at a church. That could be offensive. Or could be a way to establish if there are any unwanted biases within the heart of an individual. Question 20 may tap dance a little around the Frist Amendment too:

From which source do you get most of your news?
☐ Newspapers ☐ Magazines ☐ Radio
☐ Television ☐ Internet ☐ Friends and family
☐ Podcasts ☐ Facebook ☐ Blogs

That might be a stretch though. Does it paint a picture that’s useful to someone selecting a juror?

The truth remains, out of all the questions on the form, only question 19 gets right out there in your face and asks if one exercises a right. It seems like a stigma to me. They don’t ask if you’re a member of a church. They don’t ask which church. There are no inquisitions on whether or not you’ve ever been subject to quartering soldiers. They ask if you’ve owned guns. Slightly touching the First Amendment asking if one volunteers at a church and where a said individual gets their news. They don’t ask what kind of church or religion. They don’t ask why one would volunteer. They don’t ask which newspapers or blogs get read. But they do ask not only if you own or have owned firearms, but what kind, and why.

Fudds may apply, but you taticool type stay away!?

I get the implications, I just don’t like them so in your face.

Potentially this could be a perfectly normal question in other jurisdictions for potential jurors. I feel such bias towards gun owners and the type of gun owner one would be would be relegated to actual questioning directly from the attorneys involved in a given case during voir dire. I don’t expect to see such invasive questioning right on the paperwork required to be involved in the process. They don’t ask if a person is an atheist, do they? That might have relevance if the court is requesting that a juror swear that they’ll execute their duties faithfully and truthfully. If someone is an atheist, who do they swear to?

I reached out to attorney Evan Nappen who specializes in firearm and weapons law in New Jersey and New Hampshire. While Nappen is not a member of the Ohio bar, he’s well versed in this process. When I presented to him the question and what his opinion on the matter was, he posed to me the following:

They should also add the question: “If no, why not?”

If the goal is discover a potential juror’s bias, then both aspects need to be explored.

I think Nappen brings up a very solid point. If there’s a bias, one way or the other, naturally his query should have to be explored too.

I also reached out to an attorney that practices in both Ohio and California. Wesley C. Buchanan, Esq is a trial attorney from the ERB Legal law firm. Buchanan is more than acquainted with the process in Portage County and gave me a full rundown on his view surrounding my query.

In a criminal case, the voir dire process ensures that both the government and the accused have jurors that will fairly decide the case. Generally speaking, questionnaires are used for felony cases only. This requires the case to be in the Portage County Court of Common Pleas.

In a criminal case, the accused is given a jury trial by default. The accused, may, waive their right to a jury trial, but must be done on the record and in open court. Because the accused may lose their freedom, a jury trial is the default.

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As you noted, the Portage County Juror questionnaire has a question about whether or not a potential jury owns a firearm, and if so, what kind of firearm. While this question may seem intrusive it is not.

Hypothetically, potential jurors will answer this question in all sorts of manner. Some people may answer that a firearm should never be owned or used. Some people may express the view that a firearm should always be permitted and allowed everywhere.

If the case involves a firearm, then this is important for the accused to know. If a potential juror expresses a view that does not permit that potential juror to be fair and unbiased, then, that potential juror should be excused.

[…]

Jury service is a right and duty under our constitution and it is important to have potential jurors show up who are impartial and give each side their time and attention to help deliver a just verdict.

All said and done, maybe Buchanan puts my mind at ease a little. There’s nothing mythical about what he’s saying and my own sensibilities should be able to handle that without intervention. Nappen raised a salient point which I feel also speaks to the same bias that Buchanan points out should be absent in a jury pool.

Maybe I’m hypersensitive about this because the state of New Jersey treats people that would answer “yes” to that question as being sub-human. Therefore this is slightly offensive to me. Then again, this situation did arise from a citizen’s concern who’s from the state of Ohio, and after talking to the individual I did not feel they seemed to be needing any type of coddling. There was what I consider to be legit concern. Quite the contrary, this person sounded like they embrace the same type of rugged individualism that I admire in many Americans. That could be my own bias speaking though.

We’re supposed to be given a fair and just trial, as outlined in our Bill of Rights. An impartial jury of our “peers”. We’re also supposed to be given a speedy trial, which we all know is not really the case with our judicial system. If the shoe was on the other foot, yeah, I’d like to have the jury box filled with a bunch of people whom I’d consider to be my “peers” if I were somehow entwined in a criminal mishap. Unfortunately the reality is most of whom I’d consider to be my “peers” would more than likely be excused from duty in the State of New Jersey. If anyone fitting such a description happened to have their number pulled the state certainly would not be interested in those kind of people, #mypeople.

In 2022 I think gun owners are justified in offering up sideways glances to such questions. If we lived in a time where owning a firearm is as normal as owning a book would be in every corner of the Union, that’d be one thing. But we don’t. We live in a time where if you exercise a civil right, ya might be too biased for some people’s liking. Or you might be downright subhuman.