January 2008

On the Jury

by Bruce A. Clark

An article in the Ethical Spectacle reminded me of something I wanted to write about a few years ago, but it got lost in the daily shuffle of life. Like most other citizens, I get called for jury duty every year or two. I donít try to avoid it, partly because I think itís a vital civic responsibility, partly because it can be really interesting. Iíve always had an interest in the law and I like solving mysteries (I am a veteran Perry Mason watcher and Sherlock Holmes reader), and the jury is, after all, the last step in solving a crime.

Depending upon the rules in different places, people in the jury pool might have to dedicate from a day to a couple of weeks of waiting in some big hall for oneís name to be called, sitting in a court≠room for the jury selection process and, perhaps, serving on a trial. In Los Angeles County, the new system is called One Day or One Trial. Potential jurors are on call for a week. When a person is told to report, he or she must show up for one day to be available for selection. If one is selected, one must serve for one trial. If not, at the end of the day, jury service is fulfilled. It can be really boring, if you let it be, but a rewarding time if you make a little effort. At worst, itís an opportunity to read a few books. If one is curious about society and the legal process, it can also be a fascinating education.

Two Trials

Iíve been on two juries in my life. The first time, in the early 1980s, was a drunk driving case. A cop said he saw an elderly man drive from a strip mall parking lot a little too fast. Since there was a liquor store in the mall, the cop pulled him over. The man failed a field sobriety test, so the police took him to the station where he failed a breath≠a≠lyzer test and was charged with driving under the influence (DUI).

At trial the prosecution presented the cop, who testified to the above. The old manís lawyer cross-examined the officer and then presented the case for the defense, in which he did much more than the prosecutor. He put his client on the stand and asked if he was DUI. ďNo.Ē Then he asked about the field sobriety test. ďWell, Iím an old man and I donít get around so well, and my balance isnít very good.Ē The man stepped down and demon≠strated. His legs were a little twisted up, as by arthritis, and he looked a little wobbly. After that, he asked the man if he drank. ďNo, not in over twenty years. Iím diabetic.Ē After excusing the defendant, the attorney brought up an expert witness who explained that breath≠a≠lyzer equipment can give false positives to some of the chemicals in the breath of diabetics.

Throughout the trial, the prosecutor never showed any evidence of an open (or even empty) con≠tainer in the defendantís car. Neither did she show any other evidence that he was in the liquor store, and never addressed the question of how he could have become so impaired so quickly after leaving a liquor store. Nor did she dispute the physical mobility ailments of the old man, nor that he was a diabetic. She did some cross-examination of the defenseís expert witness, but thatís all.

Then the judge gave the jury some instructions and sent us to deliberate. The overall feeling of the people on the jury seemed to be ďWhy did they waste our time with this?Ē It didnít take us long to reach a not guilty verdict. We didnít know if the man had been DUI or not, but we knew that the prosecutor didnít prove it beyond a reason≠able doubt, nor even an unreason≠able doubt. The state just didnít really try very hard.

A More Interesting Case

I was on second jury about six years ago. Being a domestic violence case, it was much different from the earlier trial. A Latino man was charged with choking his wife. The judge was very experi≠enced, fair and professional, to all appear≠ances. The prosecutor was a tall and husky, perpetually frowning woman of obnoxious demeanor. She was perhaps the nastiest person Iíve ever witnessed in a public setting. While she was obviously experienced and know≠ledge≠able about the process, she was overall a gratuit≠ously unpleasant person (to everyone but the judge). The defense attorney was just the opposite in behavior, a quite personable and polite man, while also very capable.

Every day of the proceedings (about three days), the defendant, his wife and two or three small children were on a bench in the hall outside the courtroom before things started and after the daysí events. They were, to all appear≠ances a happy, loving family. If this was a display on the part of the defense, it was an especially good one and didnít appear the least bit phony.

The prosecutor told us that on a certain evening, the defendant and his wife had an argument and at some point they went into the bedroom, where he pushed her onto the bed and choked her with both hands. A policeman testified that he came to the house after the wifeís sister called 911, by which time it was all over. He said he talked to the wifeís sister, who said she witnessed part of the event, and to some neighbors, who heard the noise of the argument. During the copís testimony, the prosecutor produced a photo of the wifeís neck that appeared to show some sort of rash.

Then came the sister, who said she lived nearby and was bringing the familyís kids home from her motherís house, and entered the apartment during the argument. She heard noise from the bedroom and went there, to see the husband with his hands around the wifeís throat. Hereís where things get interesting. On cross examination, the defense attorney brought it out that the sister had disliked the husband even before he married her sister and that she still didnít like him. Moreover, she said (in response to what, I forget) that she she didnít like ďwhite people.Ē Since the only one at the scene who wasnít Latino was the police officer, it had no direct bearing except as to her general attitude.

The Defense

The defendant took the stand and said, through a translator, that he and his wife had an argument, but that he hadnít struck or choked his wife. The wife testified, also through a translator, and denied that anything physical had occurred, just an argument. She explained the rash by saying that she had worn a new sweater with a high neck, and that the wool had made her neck itch and caused the rash. On the subject of her sister, she said that the sister was always making trouble for her family because she disliked the husband, and was continually trying to break up the marriage.

Essentially, that was the whole case. The judge gave the jury the usual instructions and sent us into a little room to deliberate. I was elected the jury foreman. Itís not that I wanted to be foreman, but Iíd been on a jury before (most hadnít) and no one else wanted the job. Iíd chaired a lot of meetings before, so I wasnít afraid of it, but it was harder than I thought. I had to both express my thoughts as a juror and contend for my point of view, and also encourage other folks to speak their minds without imposing my ideas on them. Being a forceful arguer when I need to be, I had to restrain myself extremely. Initially we took a straw poll: ten for guilty, two for not guilty. I was one of the two.

We kicked everything around and around, and even had to call the court back into session to ask a few questions of the judge. Opinions started to change during the discussions. More and more people came to the conclusion that there was very little real evidence that the man had physically abused his wife. The wifeís denial was powerful. The sisterís attitude toward the defendant prior to the events and and her personality of prejudice also seriously weakened the prose≠cutionís conten≠tions. With each vote, more jurors leaned toward not guilty. Finally, we got to a stale≠mate, at about seven to five for not guilty. We called the bailiff, who notified the judge, and the court came back into session. I told the judge that we had reached an impasse and couldnít reach a verdict. He asked me for the ratio of votes, but without saying how many for which verdict. He prodded us in various ways and we agreed to go back and deliberate some more.

The Big Decision

We went through the evidence and testimony again, and slowly a couple of other people changed their view from guilty to not guilty. That was as far as we could go, and it was really sad. Of course, people have a right to their opinions, but that wasnít the problem. The last three holdouts didnít think that the prosecution made a case beyond a reasonable doubt. They had come to agree with the rest of us on that. Their feeling was that they figured that even if the man hadnít abused his wife this time, there wouldnít be this much fuss if he hadnít done something in the past and thought he should be punished for it.

Again I notified the bailiff, who notified the judge and again the court went back into session. The judge again tried to get us to reconsider and try again, but I told him it was firm. He wanted to know the vote, without specif≠ying whether it was for guilty or not guilty and I told him nine to three. The judge went to the trouble of asking each juror if there was a possibility of a change, and each one said no. He declared a mistrial, thanked us for our efforts and dismissed us.

At that time, I really wished I knew more about the system. I would have liked to have had a side≠bar with the judge and tell him the reason we couldnít agree. Perhaps he would have instructed us that the reason the jury couldnít come to a verdict wasnít an acceptable one and that the evidence in that case alone was all that mattered in a verdict. Maybe then the hold-outs would change their votes from guilty to not guilty. But it was the first time I was a jury foreman, and I didnít know if such a thing was possible.

In retrospect, I should have at least tried. I have an old friend who is always getting free stuff and good deals on various things. I asked him once how he did it. He told me ďwhat you donít ask for, you donít get.Ē Thatís obviously true. It was just my doubt about success and not wanting to get the hold-out jurors in trouble that held me back.

Two Cheers for the Jury

As we would hope, the jury discussed everything in an open-minded and non-prejudiced way. Overall, the people were thoughtful, cooperative and wanted to get to the truth. For the second cheer, the jury didnít vote for conviction. Itís possible that the prosecution would refile the case. The prosecutor seemed vindictive enough to do that, but, thank≠fully, she had to live within a budget, and I hoped that she could see the weakness of her case and the likeli≠hood of no better result in a second trial.

After the case was dismissed, I took the stairs down to the first floor. At the foot of the stairs, the defense attorney was just standing there, so I buttonholed him. He knew who I was, of course, and I told him that I thought he had put on a good case. I also told him the situation with the jury, in case the information would help if the prosecutor refiled the case. It was the least I could do since I didnít feel that I could talk to the judge about the jury vote. I wished him and his client good luck and went on my way. A week or two later, the judge sent a nice letter to the jurors thanking us for our service, and I, for one, appreciated getting it. It was another oppor≠tunity to contact the judge and at least get him to add to his instructions to the jurors, but again I didnít. Life gets in the way.

The Jury System

A trial that turns out like this leads one to think about the jury system as a whole. It is, in theory and in fact, the last bulwark to protect liberty and democracy in this country this side of the Second Amendment. However, I wouldnít recom≠mend deliber≠ately trying it out too often. This case showed some weaknesses in the system. The average juror does not, I think, spend much time pondering the gravity of what is expected of him or her. The society really needs to return to the idea of teaching civics in high school. It seems to have passed out of favor before my time. I donít know if in previous times they taught anything about jury service, but they should. Itís not just about the individual case presented to the juror, but the overall legal system. The jury is really the last word on things (except, of course, appeals to the Supreme Court when legal errors occur).

The judge in this latter case seemed as thoughtful, experienced and fair-minded as anyone could hope for. Itís also true that he didnít instruct the jury in the one thing that would have been necessary to have it render a verdict of not guilty. Having dropped out of law school after one semester, Iím certainly no legal expert, but I do think about it a lot. Thatís got to be worth something. Thereís probably a big book that sits on judgesí shelves that lists for them all of the things about which they are supposed to instruct jurors, and it probably leaves out the instruction that jurors shouldnít worry about what the defendant might have done in the past. The materials that the court system gives prospective jurors is pretty skimpy and elementary. They ought to have a two-hour course that everyone in the jury pool, nationwide, must take before serving on a jury for the first time. It needs to give some background on the jury system and talk about the things that tripped up some members of this jury.

Jury Fury

There is another big hole in the court systemís education of jurors, and that is the lack of instruction on whatís called jury nullification. It is a recognized power of juries to overrule a law that they think is unfair or should not be appli≠cable in the case before them. We rarely hear it mentioned except in a negative context, such as hearing a prosecutor on Law & Order bemoan the fact that a jury might use it to go against his own personal view of the law. Judges avoid it because it tends to limit their power. Of course, there was nothing in either of the cases in which I sat on a jury that would warrant anything of the kind, but still, educating prospective jurors on the concept would help them come to the view that what they are doing is something very serious and impor≠tant. There are so many people in societyís jury pool who try to shirk their jury responsibility for the pettiest of reasons (like money) that some inspir≠ation on the necessary role of the jury would do them and society some good.