DRCNet executive director David Borden and associate director Dave Guard went to court last week for refusing to report for jury service in the District of Columbia. Unlike most who decline to report for jury service, Borden and Guard were not seeking to shirk their civic responsibilities, but to demonstrate through civil disobedience their disapproval of drug laws and a criminal justice system they describe as "unjust" and "corroded" by the drug war.
The pair, represented pro bono by attorney John Zwerling (a prominent criminal defense lawyer who took the case at the request of NORML leader Keith Stroup), went to court prepared to be jailed for their stance, but DC Superior Court chief judge Rufus King had a surprise in store for them. Instead of fining and/or jailing them for contempt, he instead issued a court order giving them the weekend to change their minds and avoid all any penalty but imposing a fine starting after that of $100 each per day for each day they continue to refuse to report for jury duty.
"Judge King threw us a curveball," said Borden, who together with Guard is now in consultations with Zwerling about how to respond. "We thought the maximum sentence would be a week in jail and/or a $300 fine each. We didn't want to get the maximum, but we were prepared for the possibility. Instead, the judge didn't penalize us for not reporting before, but gave us a different penalty for refusing his new order, fines that could escalate indefinitely," he said.
"Our attorney has filed a motion requesting that the fines be stayed pending any appeals. We'd hoped this would be granted earlier in the week, but we're still waiting to hear his response to that request," said Borden. "Our lawyer thinks Judge King is likely to grant it, though it's not certain -- he seemed to hint he would, and he didn't seem anxious to punish us in the first place. He made a point of acknowledging the legitimacy of the issues we've raised."
Borden continued, "We've also filed a request that he reconsider a decision he made at our hearing to not accept an offer we made to do community service in lieu of jury service, for a number of hours exceeding what a juror would be likely to spend. Our lawyer is also optimistic about that. But if King says no to both these requests, we'll probably have to back down by today or Monday. The publicity has been well worth the possible monetary penalties so far, and some of it has already been replaced by unsolicited donations from members. We've really impressed some larger donors or potential donors too. But neither we nor our most enthusiastic supporters have an extra $50,000 a year to pay into the Victims Compensation Fund, laudable as financial relief for victims of crime may be. And we've made our statement."
"US drug policy is in a state of moral and humanitarian crisis, shaming us before history," wrote Borden in a letter declining to serve that he delivered to Judge King last August. "Drug policies have significantly driven a deep corrosion of the ethics and principles underlying our system of justice. Jurors in the United States cannot confidently rely on the information we are provided for deciding criminal cases. We cannot know if we have been told the whole truth of a case -- as in the trials of Ed Rosenthal and Bryan Epis, whom California jurors convicted without knowing they were medical marijuana providers. We cannot trust the testimony of witnesses for the state to be truthful and balanced; for example, Andrew Chambers, a "super-snitch" used by the US Drug Enforcement Administration (DEA) for numerous prosecutions, even after a court found him to be a repeat perjurer," Borden wrote.
"We are not permitted knowledge of the possible consequences a defendant may face if we vote to convict -- and in a society that hands out decades-long punishments as a routine matter, and which fails to provide adequate safety or medical care to our incarcerated, we cannot have faith that a judge will be able, even if willing, to pronounce a sentence that is just," the letter continued. "We are instructed to decide verdicts based solely on facts, showing no consideration to larger moral principles, with those daring to inform potential jurors of their power to do otherwise themselves subjected to criminalization to an increasing degree. And we subsidize the injustices by providing our time for mere travel cost as members of the jury pool, and for less than a living wage while serving as jurors on cases."
Guard, coincidentally, received his own jury duty summons a short time after Borden sent his letter to King. "I declined my jury summons for the same reason Dave Borden did," he explained, "because of our shared and principled conclusion that our nation's drug laws have eroded the ability of jurors to adequately and in good conscience perform the important, Constitutionally-called-for civic duty of jury service. And that is an increasingly popular notion," he added.
Now, while Borden and Guard ponder their next move, they can at least enjoy the play their act of civil disobedience is getting. "We are starting to pick up press attention," said Guard. "We got a story in the Washington Post on Saturday, and that started the ball rolling. Eric Sterling of the Criminal Justice Policy Foundation was interviewed on our behalf on the radio Friday (WPFW 89.3, a Pacifica affiliate) while we were in court, and Dave Borden just taped a program yesterday that will air repeatedly on the local cable station. WPFW ran a second, great interview with the two of us this morning. And other major outlets have expressed interest."
The pair remain stalwart in their positions. "I have no problem serving on a jury," Borden said. "My objection is to continuing to show up for the jury pool but getting sent home without serving on a jury because of my views. This is what has happened to me and it is what has happened to colleagues, not only on drug cases. It's not in the interest of the prosecution in any kind of case to allow a juror on who is aware of the pervasiveness of perjury by police officers, for example. With that being the likely outcome, it doesn't seem like reporting for jury duty is very meaningful public service for me. Instead, it legitimizes a system that is biased from the outset against including those of us who understand the criminal justice system all too well."
Visit http://stopthedrugwar.org/openletter/ to read Borden's open letter to Judge King.
Visit http://www.washingtonpost.com/wp-dyn/articles/A46364-2004Apr2.html to read Saturday's Washington Post article, including a big picture of Borden and Guard at the courthouse, page B-3 in the Metro section.
We don't yet have a link for online audio of this morning's WPFW interview, but will let you know if one becomes available.
Check out Reporter's Roundtable on the District of Columbia cable station Channel 16, running at 11:00 and 7:00pm every day for the next two weeks. Borden is on the third segment. We hope to make video footage available in the near future.
Visit http://www.druglibrary.org/special/king/rufusking.htm to learn about the historic work in drug policy reform done by Judge King's father, the late Rufus King Jr.