5 www.loubar.org May 2024 Not All Jurors – or Excuses – Are Created Equal Chief Judge Ann Bailey Smith PROFESSIONAL EXCELLENCE One of the tasks that goes along with being chief judge of Circuit Court is reviewing juror excuses on a weekly basis. Jurors are summoned to serve for a two-week stint for trials in both District and Circuit Courts. They are also summoned to serve on the Grand Jury which lasts for a month. Occa- sionally, special panels are summoned for trials that are expected to last longer than two weeks, such as death penalty trials. I am writing this article the third week of March, and there are five circuit jury trials in progress this week. Each circuit jury panel begins with approximately forty jurors so 200 jurors, were needed in order to select these five juries. It’s my understanding that 800 summonses go out every other week so that at least 200 jurors will actually report for duty. Not a particularly good return. Re- viewing the juror excuses gives me a glimpse into why jurors don’t appear for jury duty, some of their reasons being at least under- standable but some being pretty outrageous. I receive a file folder every Thursday from the jury pool administrator filled with writ- ten reasons as to why summoned jurors should be excused or postponed from their particular term of jury duty. And the excuses run the gamut. Some tug at my heartstrings while others raise my blood pressure. I would estimate that I review ap- proximately 100 juror excuses each week. The two most common reasons prospective jurors give to be excused from jury duty are poor health/age and financial issues. The health concerns range from “I can’t sit that long” (I’m pretty sure trial judges call regular breaks which allow jurors to stretch and go to the restroom) to jurors who are undergoing radiation or chemotherapy in their battle against cancer. After three months of reviewing juror excuses, I will tell you that an inordinate number of Jefferson County citizens have digestive problems, but I will spare you the details that I am given to justify their request to be excused. Many of the health reasons provided appear to be legitimate and some are even accom- panied by doctor’s notes (one prospective juror attached his x-ray to his juror form for me to review). But some raise red flags, such as the prospective juror who wrote that her poor health precluded her from sitting as a juror even though she wrote on her juror form that she worked full-time as a maid at a hotel (much more strenuous work than sitting in a juror’s chair). Age is also a frequently-cited reason for seeking to be excused from jury service. It is not unusual to have people in their 80s or 90s called for jury duty. There is no maximum age for jury duty; however KRS 29A.080(2) provides: A prospective juror is disqualified to serve on a jury if the juror: (h) Is sev- enty (70) years of age or older and has requested in a space provided in the juror qualification form that he or she be excused from service for the period summoned. Not all jurors who are seventy years old or older ask to be excused; if a prospective juror requests to be excused based on this, then the chief judge cannot exercise discre- tion but must grant that request. KRS 29A.170, which was enacted in 1976 and went into effect January 2, 1978, provides compensation for jurors in the amount of $5.00 per day for jury service with an additional $7.50 per day as re- imbursement for expenses (gas, parking, lunch). And, as of the writing of this article, jurors continue to be paid $12.50 per day some 46 years later. It would be laughable if it weren’t such a sad commentary on the value the Commonwealth of Kentucky places on jury service and the fulfillment of a civic duty. Jurors are called to the court- house to make very difficult decisions. And they are expected to make these decisions unanimously in criminal cases and with nine out of twelve agreeing in a Circuit Court civil trial. So, not unexpectedly, many prospective jurors ask to be excused from jury duty because they live paycheck to paycheck and cannot afford to miss two weeks or up to a month of work without pay. It is not uncommon for jurors to write that they would not be able to make their house payment or pay their rent because they have no savings to dip into in order to supplement their jury pay. The law requires that employers not deprive an employee of employment due to jury service. There is, however, no requirement that an employer pay the employee who is serving as a juror. I don’t think anyone serving as chief judge relishes the thought of requiring citizens “The one place where a man ought to get a square deal is in a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box.” From “To Kill a Mockingbird” by Harper Lee to serve as jurors if such service is going to result in serious financial hardship. On the other hand, no one wants to excuse an entire segment of the population which would result in there not being representa- tion on the jury by a fair cross-section of our community. There are currently bills in the legislature to increase juror pay which, depending on the amount, could relieve some of the financial stress placed on jurors and would help to ensure that prospective jurors from all socioeconomic backgrounds are able to fulfill their civic obligation. The most concerning requests to be ex- cused are from individuals who write that they are prejudiced against a certain seg- ment of the population, as well as those who simply state that they cannot be fair. Sometimes there are explanations given and sometimes not. There have only been a handful who say that based on religious reasons they cannot sit in judgment of an- other. Then there are those who write that they are prejudiced against people of color, or against police officers, or against white people, or against the judicial system. One juror wrote that he was prejudiced against all of the above, clearly just throwing in the kitchen sink to get out of jury duty. It’s difficult to discern who truly holds these beliefs as opposed to those just making an outrageous statement in an attempt to force my hand to excuse them. There was even one prospective juror who wrote that he was prejudiced and couldn’t be fair, but if that wasn’t sufficient to be excused, then he would tell all of the other jurors about jury nullification so that no criminal defendant would get convicted. I suppose an even more troubling proposition is those jurors who don’t ask to be excused and don’t re- veal their biases and prejudices during voir dire, yet hold these beliefs against members of our community while sitting as a juror in judgment. As Atticus Finch said after Tom Robinson’s conviction by a jury, “…people have a way of carry- ing their resentments right into a jury box.” Chief Judge Ann Bailey Smith presides in Di- vision 13 of Jefferson Circuit Court. n
