The Unraveling of Due Process Is Our Undoing
The heart of due process is the people. But what happens when our hearts aren't into it?
A year ago, when I received the green postcard indicating I had jury duty I had two immediate reactions. “They finally caught up with me,” and “oh my God, no.” The dates coincided with our family trip to Portugal. I had to see if I could have it deferred and checked the box that said it would be an “economic hardship” – rationalizing that no one’s tickets were refundable. I received a response: deferred.
I was relieved, although a bit disappointed in the timing. I had been thankful to not be called when I was working full time and raising kids, but I was actually looking forward to it. When the little green postcard again materialized in my mailbox this spring, I didn’t try and fight it.
We are hearing a lot of late about “due process.” It’s actually part of the Fifth Amendment, which states that no one shall be "deprived of life, liberty or property without due process of law.”
I’ve been thinking about how much weight we place on this process—and how fragile it actually feels. Jury duty isn’t just a civic obligation. It’s the public face of justice.
That actual phrase, ‘due process of law,’ was written into the 1354 condensed revision of the Magna Carta (originally authored in 1215). And before someone here quibbles, I recognize that the actual phrase in Old English was due pces de lei.1
No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law.
- Translation from Old English
Unfortunately, the interpretation became a bit squishy under different monarchs, George III “disappeared” people at will. Didn’t like you? In the dungeon with no word to anyone.
Which is why, after we kicked the crown out, due process was addressed in the Bill of Rights, in the 5th amendment. It was mentioned again in the 14thamendments for good measure. Subsequent court cases confirmed: It applies to all individuals on US soil. One of the hallmarks of due process is that you can’t just be disappeared. You need to be charged, you need to know who is accusing you, and you are due a hearing in front of a judge or a jury of your peers.
Amazingly, I’ve only had one experience with jury duty – and that was a couple lifetimes ago in lower Manhattan in 1987. Initially I was looking forward to witness this process. But then I realized, this is our job. The government presents a case - and it’s up to us to decide guilt and punishment. If you have doubts about the government - jury duty is your chance to be the decider.
This seems a quaint concept with this current administration.
Of course, my aspirational intentions were before I had a good-sized work project. The see-sawing of tariffs has my current clients on pause, so I was thrilled with a new contract out of Europe. But the deadlines were for the end of this month. My resolve to serve justice has faltered, and am thinking how I might get dismissed. Do I say I am for the constitution or against it? Monmouth County is pretty red …
My younger son was visiting my older one over the weekend and the three of us were on the phone. “Just be yourself, Mom, they will kick you out in a second.”
“Ha!” Said my friend Evelyn when I texted her. She guessed it was Alex who said it. I wasn’t sure. It could have been him. Or it might have been James who is quieter - but he hits bullseyes with his quips.
Kidding aside, I made great progress over the weekend - so my work situation was in good shape in case I got called.
I arrived at the courthouse before 9. The jury room was much different than the gloomy one in downtown Manhattan. I remember it being a dark and oppressive wooden box – wood walls, floors, benches, and tables. Broad sheet newspapers, not folded and neatly stacked, just abandoned, were underneath half-filled coffee cups, and ashtrays piled with cigarette butts and ashes. I carefully looked down before I sat. I was there for two weeks and never called from that room.
In contrast, this venue, situated in the bowels of the courthouse has white tile floors, florescent lights in a drop ceiling, institutional blue walls. Like someone thought “hey, let’s paint the walls the color of sky, maybe they won’t notice there are no windows.” It’s sanitized of human grit, including no discernible smells for which I am eternally thankful. I’d almost prefer rank body odor to someone’s asphyxiating aftershave.
A loop giving courthouse instructions and telling us the importance of our role plays on several monitors. I look around the room. Sixty rows with six chairs per row filled the room. No one speaking – nor looking at the monitors.
A woman in a short sleeved, lavender dress wearing hose and heels walks by. She was in sharp contrast to the unisex uniform of black pants and sneakers. I pulled on olive green cargo pants and paired it with a print top with shades of blue and green. I was afraid the room would be stifling. It was not. I hunker into my black North Face jacket, wishing I could extend it to my feet. I am sockless in flats.
The television monitor changes to a commercial. What … ? Ah, the loop ended. It’s now on HGTV.
HGTV is the new Muzak. Can’t have food programming ‘cause everyone has a food sensitivity or allergy or is fasting for a colonoscopy; can’t have news — cause we don’t want violence; can’t have sports cause some people won’t like it. But in the Maslows needs of content — shelter is benign.
10:14 am
They are calling names. A lot of people have alliteration in their names. Do parents do that on purpose? One woman’s name rhymes: Natalie something-ali. Maybe she married into it.
The name calling stopped, so that tranche of names went to one judge. I guess I just sit here watching someone redesign their chicken coop.
Going to read for a bit.
More names “Diane…” nope, someone else. My number is 99 so I would think I would get called if there was any sort of logic to this.
12:08 pm
When are they going to allow for lunch? I’m starving and freezing. They said not to bring food into courthouse that refreshments would be provided. I didn’t expect a catered affair, but I did think coffee, tea, water, maybe stale donuts. There is a cafe next door.
They are calling more names. The name-calling woman seems perturbed that someone isn’t present. Probably can’t respond because of hypothermia or hypoglycemia.
I ran next door to the cafe to see what meager sustenance I could buy with my $5 juror stipend. I took a picture of the hot sandwich prices. Not horrible. But still. We are a captive audience. Surprised it isn’t subsidized to make it truly affordable.
“It should be free,” my muse Evelyn texts me.
I think I am hangry or would be if I weren’t so cold.
12:18 pm
“Lunch break” yells the jury name-caller woman. “The judge says be back at 1:30.”
I want to leave the building, but it’s dank, drippy, and dreary outside. And then I’d have to wait online for security again. And be damp, and then have to sit in this freezing cold room. Sighing, I opt for the café’s egg on a bagel sandwich and sit in the 10-degrees warmer hallway to scarf it down. A man sits next to me. He is loudly crunching on potato chips. I have terrible tinnitus and wore hearing aids to make sure I would be able to hear any testimony. Even with the aids turned all the way down his crunching sounds like locusts.
Sated after my sandwich, I start reading the same page from my book again.
2:18 pm
Dulling boredom sets in. Another 25 potential jurors are called. I am playing a game. When the new woman sitting next to me interrupts me.
“Do I go in the hall?”
“Did they call your name?”
“No.”
“Ah, no then you wait.“
She sighs loudly. I ask if she had been here since early morning. She looks at me oddly.
“No, I just got here.”
I told her I’d been here since 9am.
“I don’t believe in this any of this,” she suddenly says.
Huh?
She repeats it. “I don’t believe in this system.”
Unprepared, I respond way too brusquely. “What do you mean? Would you rather they take you off the street and lock you away without any evidence? This system might not be perfect but it beats the alternative.”
Not surprisingly she stops talking to me. I feel like I should have explored her thoughts a bit. Then again maybe not.
6:04 pm
I ended up not being called nor having to go back to the court house. That interaction with her – and others – upset me more than I expected. Not just because she didn’t believe but because it’s easier and easier to understand why. When justice feels like paperwork, silence, and a shrug, it’s not hard to sell the idea that it doesn’t matter. It’s easy to forget what’s at stake when the room is cold, the system dull, and everyone – myself included – is just trying to get through the day.
Due Process is our right, and due process is our job. But aside from a 20-minute video, nothing prepares us for the momentousness of the occasion. In 5th grade civics class, we role-played being on a jury. Do they do that anymore?
It struck me that there was no flag present. I am not a huge flag person – and cringe a bit when I see them at sporting events. But of all the places where the American flag should be present, it seems the jury waiting room would be one. And maybe something on the walls about due process. I am not the first to note this, but if you are poor, you will not be judged by your peers. One would need to have enough money to take time off work, get to the courthouse, and afford a lunch.
3:27 am
I keep replaying the experience. In this age of rediscovering what due process means — jurors are at the heart of that. But that’s the problem. There is no soul in this system -- and the numbing boredom (and the cold) makes you forget that we are privileged to have this process.
The current administration isn’t dismantling democracy in one sweeping blow—it’s starving it. Undermining trust, gutting agencies, stacking courts. And if due process becomes just a phrase on paper? They’ve already won. A system this fragile shouldn’t feel so disposable. But on a cold day with no flag, no food, and no one paying attention—it absolutely does. The right to due process is only alive as long as we show up for it—and demand it shos up for – everyone.
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What I Am Reading Now
I was not giving Claire Messud’s This Strange Eventful History the attention it properly deserves when I tried reading it during jury duty. I started it over on Tuesday.
Am thoroughly intrigued by changing of perspectives. It’s a family saga that plays out over seven decades — or seven stages of life as referred to in Shakespeare’s As You Like It. Every decision, even hesitance, is a choice that has a cascading effect on this family that endures past death. And it is the person struggle of people to fight for a country - that is your colonial master; one that doesn’t really consider you to one of their own. We are introduced to family members through different lenses. Where one sees strength, another sees bullying; where one sees a domineering personality, another sees generosity.
On a Personal Note
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As a green card holder for many years, I knew that if I committed a felony, I could face deportation. It never occurred to me that I wouldn't be tried in court for that offense, and never did I think that I could be carted off the street for a crime, real or imagined.
I served on a jury many years ago, and it was truly an amazing experience. It was a fight between two men in the Port Authority bus terminal, and one of the men was being tried for attempted murder. The jury was truly a cross section of Manhattan. There was a bus driver from Harlem. A masseuse from the Village. A young man from Washington Heights. A finance bro. A psychologist from the Upper West Side. A widow from the Lower East Side. Our foreman (whom we all loved and treated as our wise elder) was a retired Filipino diplomat. Everyone on that jury took their task extremely seriously. They listened carefully to the testimony in the court room and to each other in the jury room. Everyone used critical thinking, judgment, and empathy. I was so impressed.
I am saddened by the statement "I don't believe in the system." It's something I hear all the time. I blame the demise of middle school civics. And the outrageous examples of the two-tiered justice system in this country that soured so many on the process. I am worried whether there is a road back.
Great observations about our ambivalence regarding jury duty and who actually serves -- those who can afford to take time off work, pay for parking and lunch.