A man charged of murder in Florida was acquitted by a jury of 12. Many people wanted conviction. What’s the point of having a jury for?
— Cesar M de los Reyes (@Tito_Ces) July 15, 2013
No, I am not credit grabbing with that title like some never achieving politician. The whole idea of trial by jury is to get together twelve different people to arrive at a consensus. I, The Jury is the title of a Mike Hammer movie with Armand Assante playing the lead. Who as coincidence would have it was in a movie twelve years later called Trial by Jury. Toss a further coincidence in there he played the twin brother of Judge Dredd thirteen years later. Judge Dredd’s signature line was “I Am The Law” which made him judge, jury and executioner. I said this before that when Noynoy declares Corona guilty and Ballsy innocent before each has their day in court he is being like Judge Dredd. I am not here to talk about Noynoy today but to talk about a system. I will discuss what it was like to be part of “due process”. Noynoy has shown you time and time again that when it comes to his friends and his enemies, due process is not even an afterthought. What is sadder still is not enough of us demand it from him. American Idol results apparently are more important.
It was the spring of 1994. True Lies and Forrest Gump have yet to come out. What was on the big screen was that cinematic tour de force On Deadly Ground with Steven Segal, Michael Caine and Joan Chen. I remember this only because I saw that movie one day after court. The O.J. Bronco chase was still two months away. I served in a jury for a domestic assault case. That was nineteen years ago and everybody knows I am 29 now, so I was a prepubescent juror at ten. In light of the George Zimmerman/ Trayvon Martin case many people seem to disregard the jury’s role in the verdict. Everybody made up their mind with the verdict and shame on the jury for not conforming to their conclusion. Since I now reside in a locale that does not have a jury system maybe I can lend some first hand perspective on what it is like to be part of the legal process. I won’t go into technicalities since they will probably vary from place to place. This is simply how I experienced it. I will not attempt to justify or condemn or even break down the Zimmerman/ Martin case. If you want to know a little more on how the jury system came to be you can read here.
The invitation and the cattle call.
I got notice in the mail that I was required to attend jury selection. They got my name simply from a list in their equivalent of the LTO. I had an aunt who went through something similar and she told me that she dressed up so lawyers will not perceive her as somebody who is easy to persuade. So I went in a suit. When the day came what seemed like more than a hundred of us sat in a room and in front were two different podiums. One had the prosecuting attorney and the other the defense attorney. When your number is called, you go to the front and in what seems like 8 seconds maximum they both decide if you are fit for their jury. If you are not approved by both sides it is back to your seat to wait for your number to be called again for the remaining cases. A bit different from the jury selection process in A Time To Kill . I forget how much or how little information you get that day on your case. Maybe it was just the type and the date to report back. Your employer is obligated to allow you to perform your duty as a juror.
The Actual Trial
The jurors met in a room before proceeding to the actual court. There were no surprises since we were all assembled the previous session. I can not remember the exact breakdown in terms of gender and race but there were at least two Asians including myself. At least four of the twelve jurors were women if not half. Unlike the film classic 12 Angry Men, where the jury was composed of exactly that, twelve men. Twelve jurors same as twelve Apostles, coincidence? I think not. Once in court we saw the judge for the first time. I think it was the first time we saw the defendant and his wife who was playing double duty as the plaintiff. I am not blaming this experience on the fact I have never been married but it is what it is.
The charges were five counts of domestic assault. I decided to leave their specific race out of my recollection but I will say their union was a result of an arranged marriage. This may or may not have anything to do with the crime perpetrated. Both sides had the opportunity to perform their opening statements. It was like a business plan. They tell you what conclusion they want you to arrive at and how they propose to do it.
The prosecutor reminded me of Sam Neil (Jurassic Park, Mermaids, Hunt For Red October) He was calm and methodical all throughout. The lawyer for the defendant was like a thinner Wayne Knight (Seinfeld, Jurassic Park) with curly hair. His demeanor I will get into later. These two will be the dominant characters throughout the trial. The judge reminded me a bit of Alan Hale ( Gilligan’s Island). He was a simply a referee in the proceedings. He decided what acceptable practice during “game time”. Again from where I was sitting in the juror box.
The flow for the rest of the trial was similar to what you see in the movies. The cliche is true. The prosecution has the obligation to prove their case beyond a reasonable doubt. The defense can just sit there. The prosecution put the plaintiff on the stand to make the case for her bringing the charges. Actually that’s not true. She was not making a speech. Her lawyer would have her answer questions. You may have heard in some TV show or movie “objection council is leading the witness”. That part is true. You can only be specific about things already mentioned. I was once a witness in a different case and council for the defense prepped me of course. In my nervousness I told a different story which was true anyway and after that was done council asked original question but maybe in a different way and she still was able to get the point she wanted. I tell you this to emphasis the fact that the witness can not be lead somewhere. It has to come from them.
You will often see in the movies “your witness.” This signals the hand-over of a witness between the two opposing lawyers. It signals the beginning of the cross examination of that witness. What I found out in this particular courtroom in this particular city the convention used for this was “please answer the questions of my friend”. Maybe it was a subtle reminder to always keep things civilized despite the stakes and the methods. Like it or not the succeeding lawyer is there to poke holes in whatever was just said. Each side will have witnesses to help bolster their case. When I was a witness, once the trial or hearing had begun I could not talk to anybody involved in the case until after I testified. I had no idea what the other witnesses said before me. Going back to the assault case where I was the juror for some reason it came out that the plaintiff did not drink coffee. When the plaintiff’s friend came on later to testify, the defense lawyer asked her if they went out for coffee in an effort to trip her up or at maybe have us doubt the credibility. The witness correctly said her friend does not drink coffee.
If you watch penalty kicks at the end of a soccer game then you are familiar with the process of how players opposing sides alternate kicks until a winner is determined. It is not like that when I was “in court”. Speaking only for the court room I was in but I suspect it is universal, the prosecution makes their case and brings out their witnesses and then the defense does the same after the prosecution rests. You may remember again from A Few Good Men Daniel Kaffee insisting that Jessup ordered the Code Red. That was a movie. At least in my case the interaction was different.
Like I said this is a very personal account of what it was like to be a member of the jury. For each charge our group of twelve had to ultimately come up with one verdict. Ideally the jury sees a painting done by two conflicting artists. The judge frames the painting. From what I heard the prosecution in the Treyvon Martin trial did not present race as one of the cornerstones of their case. Whether it was part of their strategy or a condition that was insisted by the court I don’t know. Just something for you to think about. That the judge in any case can set constraints before the trial for both sides that we may or may not know.
Poker faces. Don’t flinch in front of the
jury. Something doesn’t go our way, don’t
hang your head, don’t shift in your seat,
don’t scribble furiously. Whatever
happens, you have to look like it’s
exactly what you knew was gonna happen.
When you pass me documents–
Do it swiftly, but don’t look overanxious.
And don’t wear that perfume in Court, it
wrecks my concentration.
I was talking to Sam.
You may remember that scene in a Few Good Men where Lt. Daniel Kaffee is prepping Lt. Sam Weinberg and Lt. Cdr. JoAnne Galloway that they should never look surprised at anything. Were you ever in a room and put in a corner and told you can not talk while some other people get to talk? You end up observing everything. Non-verbal cues become even more important. Not only what is said but how it is said.
Even nineteen years later there are some of these non verbal cues I can not get out of mind. All of them on the defendant’s side. The plaintiff took the stand. She said something then a yelp came from the defendant’s seat. He had this look of disagreement. His lawyer motioned as if it say “stay there, now is not the time.” One of two things happened.: 1) his lawyer could not get through to him that the proper decorum during a trial is to be invisible and inaudible if someone else is speaking. 2) it was staged for effect. I doubt it was the latter scenario but anything is possible considering what I saw during the remainder of the trial. Either scenario the damage was done as far as I was concerned. The defendant’s behavior seemed really out of place. Maybe subconsciously I crossed that bridge that lay between the man sitting before us and someone who beyond reasonable doubt was guilty of domestic assault beyond reasonable doubt.
I can not remember specific details but I remember thinking at the time that I felt like a voyeur in the life of this married couple. We learned a lot about their interaction. We learned a lot about how they came together and what their home life was like. That is part of getting into the situation I guess.
Inevitably there will be disagreements between what the two sides declare to have happened. I still remember one such disagreement. The prosecution declared that the husband threatened the plaintiff by waving or directing a knife. The defense counteracted that there was no such threat. Just a plea of “hush now baby.” In a gentle tone. This is not the movies where you can forcefully declare what really happened and in the end get your way. At least where I was anyway. When the witness for the prosecution and the lawyer of the defense would interact there would be questions. In this instance the lawyer will try to get the witness to be inconsistent or seem unreliable. It starts off where the lawyer simply gets to repeat what they said earlier to remind everybody what has been said. Inevitably the shakedown will begin. Sometimes it is like being caught by your parents when you are nine . You try to weasel out of it but they inevitably break you down and there is something you said that couldn’t possibly agree with something you said ten minutes earlier. Nobody I saw broke down that badly. But the lawyers I saw were winding up their time with the opposing witness by using the word “suggest” in every sentence. May I suggest you saw _____ ? May I suggest you heard ________? And so on. It is then up to each juror to make up his or her mind how valid either side was.
The defense lawyer did the right thing at first. Acted like he relished the chance to prove his client’s innocence. Unfortunately for him and his client it was downhill from there. Right away he tears into the plaintiff “______ why are you lying under oath???!!!???” Right away I thought to myself , this better be good. This guy just wrote a huge check. Once again I owe some of my paradigms to listening to Colin Cowherd for the last six years. Heard this from him. Real author is up for dispute here. 1. If you have the law on your side bang on the law. 2. If you have the facts on your side bang on the facts. 3. If you don’t have neither bang on the table. At that point the question remained if the defense lawyer had enough facts and enough law on his side to cash that check.
The other incident I remember is him leaving his podium to look in the hall for somebody. Which is OK if we were in recess. It is just that all eyes were on him. He also was on the podium holding his pen hands free . I will leave that up to your imagination. With a client’s future in the balance it does matter. It is just an interpretation but all those stunts that I still remember decades later just said to me that this lawyer was grasping at straws. That if he was going to go down, it was not with a whimper. In the words of Neil Young “It’s better to burn out than fade away”.
You may have heard attitude is everything. Tiger Woods once said in an interview (at least ten years ago) something that always stuck to me. Good thing it did because I can’t find it online. He loved rainy days during competion. The reason was most golfers hate rainy days. They resent playing at that particular place and time. Once you step on the links and have that attitude it will come out in your play. So that was Tiger’s rationale that rainy days gave him the edge.
If this is true then just maybe after nineteen years I figured out why the defendant’s lawyer was the way he was. Many of us assume lawyers with all their training can be professional with the facts in a case but are subject to not liking a situation just like the rest of us. Great insight into this from the dialogue of the film/ play 12 Angry Men.
– How come you say so much?
– Lawyers aren’t infallible.
– Baltimore, please.
– He was court-appointed.
– What’s that supposed to mean?
– A lot.
-He didn’t want the case
or he resented being appointed.
-It’s the kind of case that brings no money,
no glory, not much chance of winning.
-That’s not a very promising
situation for a young lawyer.
-He’d really have to believe in his client to
put up a good case. Obviously he didn’t.
-Of course he didn’t.
At some point the defense called their last witness. Earlier we were given a time frame when they thought this main portion was going to conclude. Information that would be useful since we could pack a bag. Once deliberation starts it ain’t gonna stop till its over.
Deliberation and Sequester
The instructions we received from the judge were not too far off from the judge in 12 Angry Men in the first three minutes of the movie as you can see here. I think our judge was far more “engaged” though. A rule that was constant throughout this whole process was that we could never discuss this case if even one of us was absent. Even if that person went to use the bathroom. We were lucky. The five charges we discussed only cost us one night sequestered. The O.J. Simpson jury was sequestered from the time they were selected.
We were only sequestered during our short deliberation and got to go home during the rest of the trial. We each had our own rooms in a Holiday Inn two blocks from the courthouse. Because of the low profile nature of our case, we were even allowed TV. I imagine now the sequester process involves no cell phones or WiFi gadgets. If any one of us wanted to contact home we gave a written request with a phone number for one of the sheriffs to call. Another consequence is that we moved as a 14 segment centipede. This included public streets. We were told nobody can even say hi to us as we moved. Twelve people in the jury and a sheriff on either end.
“You take it on faith, you take it from the heart. The waiting is the hardest part”
If memory serves our deliberation was anything but boring for us. The other participants like the lawyers, employees of the court and the legal opponents waiting for us to come up with a verdict must have been bored. . We did not know when we would be finished but at least we had something to do. The people outside had no idea. I remember before we were about to make our first vote on the first charge that we were not ready yet. I was worried that once we said out loud our positions that we might fortify on those positions for an extended period of time, I think we did another round of bringing up the significant points.
It might have been that charge that we as a jury ultimately could not deliver a guilty or not guilty verdict. On that one charge the court saw a hung jury. Only the 12 people in that room knew that we hung because we could not get past the tally of 11 guilty – 1 not guilty. Which follows that only we knew who the one person was that would not budge. I do not recall getting consensus the other four charges being anywhere near as hard. Which probably saved our sanity.
Did you do me right?
Did I do right by you?
“The Verdict” by Joe Jackson
We only had one night at the hotel. Shortly after breakfast we came up with our final decision on all five charges. Everybody returned to our courtroom. We appointed a spokesperson. It was strongly suggested the person have the announcement from us written down. The last thing anybody wants is a mistake. I already mentioned that we hung on the first charge of domestic assault. We agreed that he was guilty with the second, third and fourth charges. The fifth charge I found amazing at the time. I distinctly remember at the first round of votes for the fifth charge the score was 11-1 not guilty. We all agreed he was guilty for three of the first four charges plus the fact 11/12ths of us thought he was guilty of the first charge. Yet when we came to the fifth charge all of us on our own were not affected by previous momentum. We judged that charge and all other charges on its own merit or so I would like to think.
I really have no idea what the defense lawyer thought of his client’s case. I suspect that he did not believe the substance of his client’s case otherwise why risk the theatrics? We declared our verdict and were dismissed. Sentence for the defendant was to be determined at a later date. Never exchanged phone numbers with anybody there and we all went back to our lives.
The problem at the core of this case wasn’t race or guns. The problem was assumption, misperception, and overreaction. And that cycle hasn’t ended with the verdict. It has escalated.
“You Are Not Trayvon Martin” July 15, 2013 by William Saletan Slate.com
I just described to you in some detail what goes into a trial by jury at great expense to the taxpayer. Think about all the perspective the jury got that we the public will never see. The concepts I will always go back to: 1) beyond reasonable doubt 2) Unanimous decision. We are so quick to conclude that we got it right and so quick to conclude the system got it wrong.
We have a responsibility.
This, I have always thought,
is a remarkable thing about democracy.
That we are…
What is the word?
Notified. That we are notified by mail
to come down to this place
to decide on the guilt or innocence of a
man we… we have never heard of before.
We have nothing to gain or lose
by… by our verdict.
This is one of the reasons
why we are strong.
We should not make it a… personal thing
Dialogue from 12 Angry Men
My goal in writing this was to give you a personal behind the scenes look at what a juror goes through. You all know that any decision we make can only be as good as the factors that we aware of. We also have our own hierarchy of values when we make decisions once we get those inputs. The jury in any case is given more factors to wrestle with than you can possibly fathom reading one news article or a minute segment on the evening news. Then they must leave that room with a unanimous verdict. I strongly recommend watching 12 Angry Men. The jury in that case were ultimately more concerned with the facts and the system than the defendant’s own lawyer. It also shows you that a movie set in one room with a dozen great actors can tell a story better than today’s MTV style cookie cutter blockbusters. Saletan’s account of the case with a lot of the actual evidence does a good job of blasting the myths and stereotypes of the Martin/ Ziimmerman case. Life is not black and white, open and shut.
You may never have to serve on a jury. So you may never know what it was like to be a participant in somebody’s freedom or his or her incarceration. You may never know what evidence was never introduced or other compromises made so as to avoid a mistrial. You may never know what it will take to achieve a unanimous verdict in a room with 11 other people with the condition of beyond reasonable doubt. A jury’s verdict deserves more respect from those of us who limit our knowledge of the case from headlines and sound bites. People who serve on juries should never have to worry about knee jerk reactions from the public. As stated in the American Bar piece juries are the conscience of the community. Not people who pick and choose what is already questionable information from commercial mass media.
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