Matter of Pringle

[*1] Matter of Pringle 2005 NY Slip Op 50180(U) Decided on February 18, 2005 Supreme Court, New York County McLaughlin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 18, 2005
Supreme Court, New York County

In the Matter of Punishing James Pringle for a Criminal Contempt, Pursuant to Judiciary Law 750 (A) (1)



30318/04



Robert L. Sims, Jr., New York, NY, for respondent.

Edward J. McLaughlin, J.

Respondent James Pringle, a prospective juror, purposefully did not return to court for jury selection in a lengthy criminal trial. The court now considers whether his willful refusal to participate in jury selection equals criminal contempt of court under Judiciary Law 750 (A) (1). The court concludes that it does, finds respondent in criminal contempt of court, and punishes him by sentencing him to serve four days in jail.

BACKGROUND

Respondent is a twenty-eight-year-old price reporter at a commodities exchange, and a part-time college student. Prior to his current job, he had worked for five years for a brokerage firm on Wall Street.

The first jury summons that respondent received directed him to appear for jury duty on March 24, 2004. The jury summons informed respondent that he could obtain a first postponement of jury service by using an automated telephone system, and respondent obtained a two-month adjournment by telephone. He thereafter received two more jury summonses, each of which contained information that any request for a postponement after the first one could not be made by telephone, and that a request for a second or third postponement had to be made in person at 60 Centre Street. The summonses also stated that any request for a second or third postponement would not be honored if made by telephone. Nevertheless, respondent obtained a second telephone postponement on June 1, 2004, and third telephone postponement on September 8, 2004. In November of 2004, respondent received his fourth jury summons, which noted on the front that he had postponed jury service three times since March 24, 2004, and directed him to appear at 100 Centre Street on November 29, 2004. Respondent reported for jury duty as directed by the summons.

At the courthouse, defendant was one of nearly fifty people selected for a jury panel assigned to this courtroom for a jury trial. The case was a drug conspiracy trial that involved five defendants and was expected to last five or six weeks, extending through the court system's Christmas break and into the new year.

After the jury panel entered the courtroom, all prospective jurors swore or affirmed to answer questions truthfully. Jury selection began by screening the prospective jurors to ask whether the length of the trial or the nature of the charges would prevent their serving as a juror. The court explained to the panel that this screening process was designed to create a pool of prospective jurors who would be questioned further about their qualifications and their ability to serve in a fair and impartial manner. [*2]

During the screening process, the court individually questioned, at sidebar, all of the prospective jurors who had signaled that they could not be a juror for one of the two reasons previously announced. Respondent was among them. When his turn came, the court asked him to explain his "situation." He said that he worked and that he was a student. In response to further questioning by the court, respondent said that he lived at home and did not pay rent, and that he worked for an employer who would pay his salary during jury duty. His college classes met five times a week between 6 p.m. and 9 p.m. The court told respondent that it would be happy to call his employer on his behalf if he was worried about the employer's reaction to his being on this jury. The court told him to return on the next day. Respondent then exited the courtroom.

Respondent returned to court on the next day, November 30, 2004, with the other prospective jurors whose excuses had not been accepted. The court told those prospective jurors that another panel of prospective jurors would be needed to complete the screening process, but that the court was confident that selection of an adequate pool would be completed by 2:15 p.m. on the next day, Wednesday, December 1, 2004. The court then dismissed those jurors for the day and directed them to return on the next day at 2:15 p.m.

In the morning on December 1, 2004, the court summoned a third jury panel for screening. Prospective jurors who were not excused during this screening process were directed to return in the afternoon at 2:15 p.m.

At 2:15 p.m. on December 1st, the court session began with the jury pool accumulated from all three jury panels. The court delivered an introduction and explanation of matters related to a criminal trial and to this trial in particular. The introduction and explanation stressed the importance of the right to a jury trial, and the necessity and importance of jury service. The court explained that a defendant has a right to a jury trial regardless of the length of the expected trial, and that once there was an indictment and a request for a jury trial, there must be a jury trial or the case stays in a drawer until a jury decides it. The court explained that the citizens who devised the jury trial system gave trial judges the power and responsibility to make the jury system work by enforcing the jury-service obligation. The court analogized jury service to being drafted into the armed forces during wartime, emphasizing that someone could not be excused for personal convenience. The court again explained, as it had during the screening process, that the trial would last until the week of January 3, 2005, at which time the jury would likely receive the case for deliberations.

After those introductory remarks, the clerk called the names of twenty-one people to be questioned in the jury box. The court and the attorneys then questioned the prospective jurors. After questioning ended, the prospective jurors in the jury box were directed to exit the courtroom before the parties exercised their challenges. The court then directed the prospective jurors in the audience to return at 9:45 a.m. on the next day. After the courtroom was empty of all prospective jurors, the parties exercised their challenges to the first group, the twenty-one prospective jurors who had been questioned. This first round of jury selection ended at 5:12 p.m with the selection of the first five jurors, who were sworn and directed to appear at 9:30 a.m. on Monday, December 6, 2004, for the start of trial.

On Thursday, December 2, 2004, the proceedings resumed to select the final seven jurors and four alternate jurors. At 10:07 a.m., the clerk called respondent's name to summon him into [*3]the jury box for questioning. Respondent did not answer. The clerk also called the name of another prospective juror, who also did not answer. The clerk put aside both ballots so each juror could be put immediately into the box when they arrived. At 10:25 a.m., the other prospective juror arrived, was put into the jury box, and questioned. The clerk, and the court itself, periodically called the name James Pringle during the day in the presence of the remaining prospective jurors, but respondent never answered. The parties finished selecting the remaining jurors and alternates at 4:30 p.m. Respondent did not appear in court on that day.

On Monday, December 6, 2004, the court mailed a letter to respondent. The letter informed respondent that he had not been present in court on December 2, 2004, for individual questioning, that there might be a reasonable explanation for his absence, and that he could either fax his explanation to court or appear in court at 10:00 a.m. on December 10, 2004.

When respondent did not appear in court or fax a letter to the court by 10:00 a.m. on December 10, 2004, the court clerk, at the court's direction, telephoned respondent's home on that same day. The clerk spoke with respondent's mother and explained to her that the court had mailed respondent a letter asking for an explanation for his absence from court.

On Saturday, December 11, 2004, the court received a letter by fax from respondent. The court read it on Monday, December 13, 2004. In his letter, respondent stated that he had been in court on Monday, Tuesday, and Wednesday. He had left the courtroom at 4:45 p.m. on Wednesday, December 1, 2004, because he had told the court (when he offered his excusal request on November 29) that school was important to him. His letter said that he had to leave then to go home and get his books so he could be at a library at 6:00 p.m. to work on a paper for school.

On Tuesday, December 14, 2004, the court clerk spoke with respondent on the telephone and arranged for him to appear in court at 9:30 a.m. on December 17, 2004.

On December 17, 2004, the court reminded respondent that he still was bound by the oath or affirmation that he had taken on November 29, 2004. Respondent stated that he had been in court on November 29, 30, and December 1, 2004. He admitted not attending court on December 2, 2004.

The court asked respondent why he did not return to court for jury duty on December 2nd. Respondent said that he had exited the courtroom at 4:45 p.m. and did not return because "all the jurors were selected. So, I told you I have classes, I have finals this coming week and next week and I had to be at the library like around 6:00, it was going on 5:00." He continued to speak, saying that he had "assumed" that all of the jurors had been selected when he left. He said that he had witnessed the attorneys question twenty-five prospective jurors, and he had assumed "they all was picked." He said that he had seen two jurors, a man and a woman, "picked" as jurors. Respondent said that when 4:45 p.m. arrived, "I had to leave," and that if the court had "mentioned to the jury to be here the next day, I wasn't here for that." He also said that he had assumed he had finished jury duty by serving for three days without being selected for a trial because he had served only three days the first time that he had served jury duty back in 1999.

After hearing respondent's explanation, the court caused him to be served with an order to show cause why he should not be held in contempt of court for refusing to attend court on December 2, 2004. The order to show cause directed him to be in court on January 14, 2005, and to appear with an attorney. After receiving the order to show cause, respondent produced a [*4]certificate of jury service as proof that he had completed his jury service: "Why did I receive this letter saying I served my day and I don't have to report for another six years? This [is] my certificate of jury service. Why did I receive this if I didn't serve my days and I, as long as I received it, it says this is your certification of jury service." The court told respondent to return to court when required by the order to show cause.

On December 22, 2004, the court received a letter from respondent. In that letter, respondent apologized "for my behavior concerning the call to jury service and also for my disrespectful behavior when I met you on December 17, 2004." He also stated that he had been under stress from work and his studies recently, and that he was willing to serve on a jury whenever the court wished. The court mailed another letter to respondent in which the court acknowledged having received his letter, and told him that he still must appear in court on January 14, 2005, and that he should come with an attorney.

THE HEARING

On January 14, 2005, respondent appeared in court with an attorney. The court gave the attorney materials about this matter, including the correspondence between the court and respondent, and the minutes of respondent's court appearances on November 29 and December 17, 2004. The attorney, in turn, submitted a letter from respondent's teacher, dated January 12, 2005, and a copy of a paper respondent wrote in December 2004 for a college course. The attorney also submitted a letter from respondent's work supervisor, dated December 30, 2004, which attested to respondent's competence and sound judgment, and his being a valuable asset.

The court again questioned respondent under oath. Respondent stated that he had obtained three postponements before beginning jury service on November 29, 2004. He had obtained all three postponements by telephone. The court informed respondent that the jury summons stated, in two different places, that a person could not use the telephone to postpone jury service more than once, and asked him why he had used the telephone to postpone his service more than once. Respondent explained that he did not read the summons and simply called the telephone number on the summons.

Respondent had another opportunity to explain why he left the court early on December 1st. He explained that the court was "concluding everything" at 4:45 p.m. when he left. The court asked why respondent thought the court "was concluding everything." He said that the court had "mentioned certain things that I assumed that you already picked a jury and I assume that you was going to conclude your court." He admitted being absent when the first five jurors were sworn. The last thing he remembered seeing was the court speaking to sixteen jurors, asking them if they were "comfortable" and "able to serve." Respondent said that he then assumed that the court "began your conclusions, from what I thought." He acknowledged leaving early, without permission (an unpursued potential separate contemptuous act), and stated that he had left early to go to the library to do school work. He again stated that he believed his jury service had ended on December 1st; he had served only three days the first time on jury duty, and he believed that the court had finished picking the jury.

LAW

Following the hearing on the order to show cause, and considering the submissions made during it and afterwards, as well as respondent's statements by letter, fax, and in court, the court finds both that respondent knowingly left court without permission on December 1, 2004, and [*5]purposefully failed to return to court on December 2, 2004. By this conduct, he succeeded in avoiding service on a trial which did not, according to him, fit into his schedule. The court finds, beyond a reasonable doubt, that respondent's refusal to appear in court on December 2, 2004, is criminal contempt of court. It also is an insult both to those who appeared for jury service and to those who have died to assure the system of government and law that all enjoy in the United States.

Judiciary Law 750 (A) states when a court may punish someone for criminal contempt of court. The statute does not contain a provision that explicitly applies to a citizen who refuses to serve either as a sworn trial juror or as a prospective juror. But the statute permits punishment for contemptuous or insolent behavior committed "during its sitting, in its immediate view and presence, and directly tending to interrupt its proceeding or to impair the respect due its authority" (Judiciary Law 750 [A] [1]). Other courts have stated or held that a citizen's refusal to serve as a juror or a prospective juror constitutes contemptuous behavior, committed in the court's immediate view and presence, that impairs respect for the court's authority (see Powell v State, 48 Ala 154, 1872 WL 885 [1872] [refusal to serve as a petit juror]; In re Mauldin, 242 Ga App 350, 352-353, 529 SE2d 653, 655-656 [2000] [refusal to serve as a petit juror]; In re Jaye, 90 FRD 351 [US Dist Ct, ED Wisc 1981] [refusal to serve as prospective juror]). And the Court of Appeals has stated that a sworn alternate juror who fails to attend a trial is "liable to be punished for contempt" (People v Mitchell, 266 NY 15, 17 [1934]).

Based on those principles, the court finds that a citizen's willful refusal to appear in court as a prospective juror is punishable as criminal contempt of court under Judiciary Law 750 (A) (1). No reason exists why the rules for jury service that apply to sworn jurors and sworn alternate jurors should not apply to prospective jurors who seek to evade being selected as a trial juror (see In re Jaye, 90 FRD at 351-352). The right to trial by impartial jury—the most basic right afforded to the accused (see People v Branch, 46 NY2d 645, 652 [1979])—exists only so long as citizens are available to serve as impartial jurors. Although the accused can opt out of the jury trial process, the citizen may not. Citizens who purposefully evade being selected for a jury "represent a serious threat to the administration of justice" (In re Jaye, 90 FRD at 352).

The record establishes that respondent wilfully refused to return to court for jury service to avoid being selected as a juror for a trial expected to last five or six weeks. Respondent was present in court when the court explained to all of the prospective jurors how jury selection would proceed. He understood that he was required to appear in court on December 2, 2004, the day that he was absent. He had ample opportunity to explain his absence, but he had no legitimate reason for being absent. Indeed, the reason he gave was false, and the court finds that respondent lied in an attempt to legitimize his absence. The court finds that respondent did not return to court because he did not want jury service to interfere with his work and school plans. His conduct shows that his absence was willful and that he displayed contempt for the court's authority.

Respondent had no legitimate reason for leaving the courtroom early on December 1, 2004, and not returning on the next day. His claim that he had assumed that the jury had been—or could be—selected from the group of jurors questioned on the first round is simply not believable. He could not have seen two people picked as jurors because no jurors were selected until after respondent had left the courtroom and all of the other prospective jurors in the [*6]audience had been dismissed and directed to return the next day. Nor did the court say anything before respondent left the courtroom that suggested jury selection had ended or that the court session was concluding. Indeed, the only conclusory-type remarks made by the court were those dismissing the prospective jurors in the audience for the day and directing them to appear on the next day at 9:45 a.m., remarks that were made after respondent had exited the courtroom. Respondent did not see anything occur in court that justified an assumption that jury selection would end after one round, and his claim to contrary is not supported by the facts.

But the facts do reveal why respondent did not return to court—he did not want jury duty to interfere with his work and school schedule. During the screening process, respondent sought excusal from this lengthy trial because he worked during the day and went to school at night. When asked by the court on December 17th to explain why he left the courtroom without permission and did not return on the next day, respondent expressed the view that his studies took precedence over jury service, stating that he had "told" the court that he had finals during the next two weeks, that he "couldn't stay any longer," and that he "had" to be at the library by 6:00 p.m. to study and to "do what I have to do." Respondent was determined not to let several weeks of jury duty impose on his personal schedule, and he simply decided not to return to court after completing three days of jury duty. Indeed, he chose not to appear in court on the day when the likelihood of his name being selected for further questioning increased, because barely one third of the prospective jurors in the jury pool had been selected for questioning.

In at least one way, respondent's attitude about jury service typifies the attitude that many citizens have about their jury-service obligation. They mistakenly believe that they have no obligation to serve for more than three days. As stated on the jury summons, a citizen is expected to serve on one trial. The citizen does not get to pick the length of the trial. The citizen is obligated to serve on any case if selected by the attorneys. Nor may a citizen engineer one's own excusal from a lengthy trial by lying about one's qualifications or ability to be fair and impartial. Every citizen is obligated not only to appear when summoned but to answer truthfully all questions about the citizen's qualifications to serve in a particular case. Any citizen who willfully refuses to answer truthfully when questioned by the court and the attorneys or to serve as a juror if selected commits criminal contempt of court and may be punished by a fine of $1000 or imprisonment not exceeding 30 days, or both. Citizens not selected for a trial typically will be dismissed after two or three days, but that practice does not define the number of days that a citizen can expect to serve or is obligated to serve when summoned for jury duty.

Having been found guilty of contempt, respondent faces two possible sentences: a fine of up to $1,000 or a jail sentence of up to thirty days with no time reduction for good behavior or both.[FN1] For most people who appear for jury service, but not all, such a fine poses no real penalty. Many New Yorkers gladly would pay $1,000 to avoid jury service because their incomes easily could absorb that loss. Call it a cost of doing business (see In re Jaye, 90 FRD at 352 [monetary fine does not accomplish a just result for juror who refused to serve because of business affairs]). [*7]For others, money lost to a fine would create a temporary but, ultimately, not an insurmountable financial setback. Both the Judiciary Law and local jury regulations permit an excusal from jury service for adequately documented (i.e. tax returns) financial reasons. The jury summons explains how to claim and document an economic hardship. The court, thus, presumes that citizens who appear for service do not qualify for an economic hardship exemption. And for citizens in the jury pool who are either unemployed or on public assistance, a fine would not be appropriate. In the end, a fine limited to $1000 is not adequate punishment for non-compliance with a jury-service obligation.

Nor would the court consider simply ordering respondent to perform jury service again. Creating the situation that prompted respondent's contempt is neither possible nor appropriate. Even if it were appropriate, respondent lacks the state of mind required to be an acceptable juror to either side in a criminal or civil case. His negative experience in this case likely disqualifies him from future service and certainly makes it less likely that any attorney would view him as a suitable juror and select him as a trial juror. And even if that were not true, respondent most likely would be selected for a trial lasting less than four or five weeks, in which case respondent would have succeeded in curbing the length of his jury service.

The only appropriate punishment that remains is jail. Jailing a citizen who has neither been convicted of a crime after trial nor pleaded guilty to a crime initially sounds incongruous, even outrageous. Although no consolation, a criminal contempt finding is not a criminal conviction (see City School Dist v Schenectady Fedn of Teachers, 49 AD2d 395, 399 [3d Dept 1975]; People v McLeod, 150 Misc 2d 606, 611-612 [Crim Ct, Kings County 1991]; CPL 1.20 [13]) and will not create a criminal record for the contemnor.

For centuries a jail sentence has been the most effective way of punishing a purposeful avoidance of jury service. Preventing government from depriving a person of liberty without a jury's approval is the core of our justice system. To ensure the availability of that right for all, the citizens themselves have given judges the right to deprive one of their own of liberty in response to the person's conscious disregard of their jury duty. To ensure that enough citizen jurors are available for jury service, the courts may impose jail sentences on those who do not appear. Jury service is such an important and integral part of our legal system that a court can deprive a person of liberty for contemptuously avoiding jury service (see In re Jay, 90 FRD at 352 [sentencing juror to 48 hours of custody, finding that a short period of confinement is "the appropriate punishment to vindicate the authority of the court"]).

In this case, the appropriate punishment is a sentence of jail. Respondent can absorb a fine. He is employed, pays no rent, has no student loans, and did not seek to be excused from jury service because of economic hardship. Respondent had an opportunity to apologize to the court for his conduct, but failed to do so. In his first letter to the court, respondent wrote that he had left the court to avoid being late for his studies and showed no appreciation for the inappropriateness of his conduct. He then lied to the court in his first court appearance and was, as he acknowledged in his second letter, "disrespectful" to the court. The second letter's apology for his disrespectful conduct and refusal to complete jury service, and offer to complete jury service in the future, was too late and an obvious effort to aid himself and to avoid a more severe punishment. Moreover, in his second court appearance, respondent again tried to justify his conduct by lying to the court. Respondent neither understands the importance of jury service nor [*8]respects the authority of this court.

Respondent is sentenced to serve four days in jail. In calculating the length of jail time to be served, the court considers that respondent lied when given an opportunity to apologize for his contemptuous conduct (cf. In re Jay, 90 FRD 351 [juror who apologized to the court for refusing to serve was sentenced to 48 hours of custody as punishment]).

ORDERED that respondent, James Pringle, be committed to the custody of the civil jail run by the New York City Department of Corrections for a period of four days, beginning on February 18, 2005; and it is further

ORDERED that you, any Peace Officer, or the Sheriff of any county where respondent may be found, transport respondent to the civil jail run by the Department of Corrections.

Dated:February 18, 2005

J. Footnotes

Footnote 1: Sometimes a court may find it appropriate to impose a fine, alone, without finding the errant juror in criminal contempt (see Matter of Diane D, 161 Misc 2d 861 [Sup Ct, NY County 1994] [court declined to hold trial alternate juror in contempt for abandoning the trial, but fined the juror $100 under the court's inherent judicial authority]).