FAYETTEVILLE — Some defense attorneys think jurors should be paid more so they can willingly serve and focus on the case instead of lost wages.
The attorneys have started filing motions in court asking that everyone called for jury duty be reimbursed for day care costs and paid the same wage they receive for work, or a wage that does not severely hamper their financial ability to serve.
“The notion behind it is we expect a lot out of a juror and the last thing we want is for a juror to be worried about not having enough money to maintain their household while they’re there,” said Ray Niblock, who recently filed one of the motions on behalf of a client in a recent attempted murder case in Washington County.
“The concept is we don’t want to place an undue burden on a juror especially when we’re asking them to sit in judgment on an extraordinary matter that could take days out of their week or life to satisfy their civic duty.”
Niblock said jurors need to the trial their full attention.
“We believe that, on balance, when someone’s liberty is at stake, they have a constitutional right to a full and fair hearing, and if you’ve got someone up there who’s worried about child care or worried about their rent or whatever it is, that really short-circuits the process,” Niblock said.
A person called for jury duty who does not get seated on the jury receives $15, according to Washington County Circuit Clerk Kyle Sylvester. If he is selected for the jury, then it is $50 a day plus mileage if he lives outside of the city limits. There’s no provision for day care reimbursement.
Jury pay is set by state law and the amount paid was last increased by the Arkansas Legislature in 2007 from $35 a day to $50.
That $50 pay comes to $6.25 an hour if a juror is required to spend eight hours on the job, equal to Arkansas’ minimum wage but lower than the national minimum wage of $7.25. The days are often longer than that, especially during deliberations, according to the motions.
Washington County Prosecuting Attorney Matt Durrett said he’s sympathetic to the issue of low juror pay, but thinks the motions are misplaced.
“I get their point, but it still comes down to the fact that pay is set by state statute, and I don’t know that a judge can deviate from that,” Durrett said. “It looks like the issue should be taken up by the state Legislature instead of with individual judges. They’re supposed to follow the statute, and that’s what the statute says.”
Niblock said the idea behind the motions, which originated with the Arkansas Public Defender’s Commission, is to get the issue before the Arkansas Supreme Court on appeal. Niblock’s client, Landon Schilling, took a plea bargain and his motion was never heard by a judge.
“In practice, you’d have a case where you’d file the motion, you’d argue the motion, the motion gets denied, file the appeal,” Niblock said. “Of course a million things could happen. Your client could decide to drop the appeal or the Supreme Court could deny it without comment.”
If the Supreme Court heard the motion and agreed with the defense attorneys, Niblock expects county officials responsible for paying jurors would make a plea to legislators for financial help.
Rep. David Whitaker, D-Fayetteville and an attorney, said the most likely scenario is legislators would wait to see what the Supreme Court had to say about the issue before acting.
“I am certain the attorneys among us would support such a move, since we see all the time what a fairly thankless task jury duty can be,” Whitaker said via email. “The budget hawks and tax cutters may object, well, because that’s what they do.”
The motions, like one filed last week on behalf of Mark Edward Chumley who is charged in Washington County Circuit Court with accomplice to capital murder, argue there’s a constitutional right to a jury drawn from a pool which fairly represents a cross-section of the community. Chumley’s case is assigned to Circuit Judge Joanna Taylor.
“Absent adequate compensation, it is practically impossible for wage laborers and persons caring for young children to serve on the jury,” according to the motion filed by Scott Parks and Christopher Nebben.
“In capital trials, jurors may be required to spend three weeks or more away from their families and jobs. Many well-qualified potential jurors live paycheck to paycheck and without that paycheck or its equivalent provided by the state or county, it is financially impossible for them to serve.”
The motions contend such jurors are often forced to request excuses for hardship because they’re unable to afford the financial loss that jury service entails and are, therefore, systematically excluded from the jury pool. The exclusion of those jurors violates the defendants’ rights, according to the motions.
The motions contend daily wage earners and primary care givers may be members of groups with a particular understanding of the defendants’ “predicament,” and should not be excluded from service.
“Very often witnesses for capital defendants will themselves be daily wage earners or members of the poorer strata of society,” according to one motion.
“Jurors who have experienced the same deprivations better understand the predicament of persons such as the defendant and may be particularly well-suited to judging him both at the guilt and penalty phases. Likewise, those with children will likely appreciated mitigation evidence pertaining to childhood abuse, neglect and trauma.”
The motions argue if such a juror does not receive a financial hardship excuse, the strain could cause the juror’s attention to be diverted from the proceedings of the case, to the detriment of the defendant.