I am Juror 9: Vignettes from a Criminal Trial about Sex for Money, Car Chases, Pimping, Robbery and Gun Play on a Public Road (Seriously)

Posted: 20 June 2012 in Uncategorized

In late May of 2012 I was selected to serve on a jury in a criminal trial in my county. The trial was to go on for nearly 4 weeks and ended with verdicts reached after 3 days of deliberation.

The “Participants”:

• 2 defendants and 2 defense attorneys

• 12 charges including: attempted robbery (with gun enhancements), assault with a semiautomatic weapon and pimping

• about 12 witnesses including one of the defendants, a “john” a prostitute, LOTS of CHP officers and a car salesman

• 2 judges (one who presided over the trial and one who presided over the rendering of the verdict in the absence of the first judge)

• 12 jurors and 3 alternates (only one of whom was male—me)

What follows are some vignettes from this experience. I write them to remind myself 1) of the feelings of that sad/intriguing/strange trial and 2) of some key things I learned about our legal system.

Jury Selection

It might surprise the reader to learn that the three-day jury selection process was one of the most riveting experiences I have ever had. In my mind it will always be divided into two “acts” that I will call “hardship” and “narratives”.

The hardship phase of the selection process concerns the judge’s request of all potential jurors (over 100 all told) to state if they had a hardship for which they would like to be excused. The hardship requests came (thankfully) after the judge informed us that the trial would take three weeks or more to complete and the judge made it clear that anyone so excused would have their name returned to the jury selection pool for possible selection within a month. Not surprisingly, there were many hardships.

A school principal trying to finish out the school year; a laborer who was the sole income earner in his family; a single mom who had no other child care options for her three kids; a baseball manager whose season was just beginning; a woman living with chronic depression; a woman who needed to be at a job interview “by noon today” or else she was going to miss her best chance for a job; a school teacher trying to finish out the school year (his request was granted, the principal’s was not); a union carpenter sitting by the phone waiting for his name to come up after being out of work for 9 months…

What struck me most about the hardship phase was the reality that the head of a genome center at a major university would find himself sitting next to a farm worker who spoke no English; that a radiologist would share a row with a landscape laborer who could not stand being “cooped up inside”; that a retiree would be beside a man young enough to be his great-grandson.

There was a great socio-economic “mixing” going on in this room. Try as I did, I failed to come up with an example of another space in our society in which the diversity of educational attainment, income level, job experiences or lifestyle was as great as what I saw before me during “hardship”.

When the dust settled, those with low paying jobs, with no childcare resources, with few options to “get by” were gone. I am not suggesting that this fact biased this trial or would bias any other. I just wonder at both the diversity and how it disappeared as the final selection drew near.

The “narratives” phase was more intriguing still. The attorneys and judge had decided to ask us not only questions about potential biases but to give brief bios about our educational attainment, our living arrangements and our family composition and our jobs. Amazing how such simple questions can unleash a torrent of deeply personal stories—not just facts—about the prospective jurors. I think I know why.

To share a potential bias is one thing, to be obliged to dig deeper into the “why” of that bias is another. Every general statement about people’s attitudes about the defendants (they were African American) was met with further questions about the source of and reason for those attitudes. Every concern about the use of guns was followed by probing on experience with guns (good or bad). Every acknowledgement of links to law enforcement was queried as to the nature of the relationship, its depth and duration. And with very little probing the stories poured forth and went well beyond what was asked.

This his how we learned of sexual abuse and the lifelong trauma it brings, anger at a father for not providing protection against black classmates, disbelief that a civilized society permitted people to walk around with guns, hostility towards policeman for former abuses and bullying, sadness over a life in which one’s opinions were never valued.

In the end it was clear that people were going beyond responding to questions and were, in fact, revealing long-held secrets of hurt, abuse and anger. It was stunning to behold. We are a story-telling people and it appears the only place we really get to tell some of them is in front of complete strangers in a courtroom. In the end, 15 of us passed some unknown test of narrative suitability and were seated to hear the trial.

The Judge

From the outset my overwhelming sense of who the judge was—really—that he was our (the jury’s) protector. His opening comments to us—delivered not from behind the bench but standing directly before us—indicated that ours was the key role in the trial. Our decision about the facts was all that mattered. He assured us that as long as we listened to the evidence with an open mind and strictly applied the instructions and law that he would supply to us, we would be fine, would be able to render verdicts and would fulfill the responsibility for which we had been chosen.

At one point in the trial during a lazy afternoon when the prosecutor and a defendant batted questions and answers back and forth the prosecutor said that it was their job to establish the facts in the case. Immediately the judge stopped him and said to us: “That is not correct. It is the jury’s job to establish the facts in this case. It is the job of the lawyers (and those giving testimony) to lay out evidence.” Imagine that! We were to determine the truth!

At each break and at the end of each day the judge would remind us to “keep an open mind, don’t talk among yourselves about the case and don’t talk to anyone else about the case.” Nice, an easy set of rules—black and white—with no ambiguity. One can easily fall in love with anyone who reduces life to such simple rules.

The judge empowered us to make good decisions and to follow a strict protocol to assure that the defendants were given a fair trial. I realized that I could count on one hand the number of people who have drifted through my life of whom I could say “that person empowered me to do well”. I doubt that very few of those whom I have known would say that of me.

Before we left the courtroom to deliberate the judge read to us the instructions and the law and like children being sent off to school for the first time we left ready to do that which he—the judge—had asked us to do. Our instructions ran into 30+ pages and were filled with dense legal language at times. The instructions were unsettling, obtuse and surprising but we felt ready thanks to the clear confidence that our judge had in us.

Imagine our sadness upon learning after we had rendered a verdict that “our judge” (our papa, our mentor, our champion) was “at a judge thing” that day and another judge would preside over the rendering of the verdict.

The Attorneys

Defense or prosecution—it matters little. If the judge was our solemn but fair uncle, the attorneys were more like lousy actors in a poorly scripted play. If the judge was truth, the attorneys were dissimulation. If the judge was certainty, the attorneys were doubt.

They tried to be funny but were not: “so when you say he provided ‘oral services’ you mean he taught a speech class?”

They did not try to funny but were: “all you have is verbal testimony, you have few hard facts, just words—and what are words anyway—just air passing over vocal chords.” or “Your honor, could you please instruct counsel to make his objections to you and not to me? Also, counsel has been staring at me–in fact he is staring at me right now. Could you ask him to stop?”

One defense attorney slept while we were forced to be awake. The prosecutor could not formulate a single meaningful question for long stretches and invented a whole new English vocabulary as he went along. The other defense attorney made terrible faces that resembled nothing so much as severe stomach pain brought about by constipation.

But I am uncharitable… maybe. In their closing arguments they acted like they were all on “our side” but then spoke down to us with a condescension that almost caused me to protest out loud. And they sent us away with verbal pats on the head and admonitions to be good boys and girls—to make decisions that would probably piss all of them off in one way or the other (and, though we did not plan it that way that is probably what happened).

I understand that some lawyers “graduate” and become judges. Based on my experience in this trial that must be something akin to the green worm becoming the multicolored butterfly. Highly unlikely but it seems to happen sometimes.

The Deliberation

Maybe you think I should talk more about the trial itself instead of skipping right to deliberation. Perhaps I should. I am not avoiding it because it was painful even though it was at turns. I mean, how easy would it be for you to sit through hours of this kind of exchange:

Prosecutor: Do you remember what the defendant said at that point?

Person on Stand: No, I don’t

Prosecutor: Would it refresh your memory to consult the transcript of the interview you had with him?

Person on Stand: Yes, it would

Prosecutor: Your honor, may he refer to the transcript?

Judge: Yes, you may.

Prosecutor: Now do you remember?

Person on Stand: Yes

Prosecutor: So what did he tell you about…

And this went on and on as the transcript ran into the dozens and dozens of pages and thousands of lines. Mind numbing? The only upside of this approach is that it allowed me and all the other jurors to take very detailed notes, observe everyone’s behavior, imagine the novel we would write about this trial and plan our next vacation between each question.

The bottom line is, despite that foregoing description, there were moments of drama, moments of gut wrenching sadness, times of disbelief and great opportunities to see if I could anticipate and mouth the next objection before it was made (I actually got pretty good at it). We got lots of evidence and we were able to write it down in detail. So… on to the deliberation.

I will never forget our deliberation. It was a stunning display of what civic responsibility looks like at its very best. We did not just sit around and rehash the more titillating parts of the testimony (and there were lots of choice moments related to the going rate for oral sex, how a semiautomatic weapon works, how cars spin and heave when they collide and how pimps run sophisticated business empires with the help of social networking sites on the web). Rather, we dug into the law and wrote each charge and ALL the conditions necessary to find someone guilty of it with little checkboxes on large sheets of paper and then went through our notes—crosschecking what we had heard and debating a story that we could agree would represent “the truth” of what we had heard.

We laughed not an unsubstantial amount. We got our backs up at each other and then humbly asked for pardon. We challenged each other’s biases (“Well, what is it that does not allow you to believe this guy? Is it because you know he cheated on his girlfriend? Does that make him a liar about everything?”). Our eyes teared up out of sadness at how such seemingly nice guys could screw up so badly, or out of anger at how their stupid decisions could have led to the death of innocent people, or out of frustration as we realized that the narrative we had decided must be true was challenged by another juror.

We had to deal with the strangeness of quickly engaging in conflict with complete strangers while recognizing that we might be together in this 12 by 8 foot room for a long time. And we dealt with it and helped one another birth the only story that mattered and we used the story to make careful decisions and check (or not check) all the boxes on our large sheets of paper. We were deadly serious with each other and honored the process in its entirety and left the room knowing that if we were ever unfortunate enough to find ourselves a defendant in a trial that we would want a jury just like us.

Does that sound like hubris? No apologies here. We did what we were told and no one slacked and no one whined and we all gave up those four weeks to try to assure that innocence was not called guilt.

The Law (it is narrow, and its thresholds are low at times)

“We have a legal system not a justice system.” I heard a Fresno Police Chief say that recently and one of the jurors serving with me said that was what her father-in-law judge said too. Is that a bad thing? Well, the way I see it is if the laws are just then having a system that forces jurors to apply the law should lead to a just outcome.

The problem is that most of us never think about whether laws are just or not. We probably assume they are and we certainly hope they are (especially as they relate to us and to our loved ones).

In this case, here is what I can say. When we heard the evidence presented about attempted robbery or assault or pimping one thing is clear: we heard that evidence through the lens of our own personal definitions of what robbery or assault or pimping are. How could we have done any differently? On that basis we all began to formulate opinions about the guilt or innocence of the defendants.

And then something strange happened—we were GIVEN the law and the law forced us to use definitions that were in most cases only partly related to what we had believed them to be. Thus, a vision of “pimping” that included a whole “stable” of prostitutes run by organized crime had to give way to a rather narrow (and what we started calling “low threshold” law). Basically, a person is a pimp if they know someone is a prostitute and that person “supports” them—even minimally. Is that just? I am not sure but when we looked at the evidence through THAT lens most of us had to do some major readjustments to our opinions about guilt or innocence.

Or take attempted robbery. It requires “specific intent” but that intent does not need to include a person saying to him/herself “I am going to rob that person.” In addition, the law about robbery says that a condition is that a person takes something that is not there own possession. But what if they THINK it is theirs? Nope, the law does not seem to make any exception about that, you take something that is not yours you are robbing (subject to some other conditions). Further on the law says force or fear must be used in the taking. But who decides what is fear inducing? Does that depend on the response of the victim? No, the law does not say anything about the person acting scared. Is all of this just? Again I am not sure.

Here is where I landed on the robbery law in the case we tried: It makes it not too difficult for a well meaning person to commit an attempted robbery. Does that sound like an unjust law? Actually to me, it does not. Because the issue is not that the person is well meaning. The issue is do I want people going around taking money (or other things) that they THINK belongs to them, scaring people in the process when in fact they don’t know for sure it is there’s? I could say the same thing about the assault with a semi-automatic firearm: the law says you can own and carry a gun but you better be VERY sure of what you are doing if you choose to discharge it towards another person. Shouldn’t that be the way it is? Isn’t that what we want?

This trial (maybe like all trials) was about some really bad decisions two guys made and it was filled with people who were brought together to make other decisions about those decisions. I am not going to run into the streets and shout that I now know that we have the greatest legal system in the world. But I will affirm that with a good judge, clear laws and a serious jury (yea, and I guess we need lawyers too) it is a system that works hard at achieving the end of not calling an innocent person guilty. I guess that is all we can reasonably hope for.

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