Patterico's Pontifications

12/6/2010

Jury Duty [Guest Post by aphrael, Promoted from The Jury Talks Back]

Filed under: General — Patterico @ 6:08 am



[The following is a guest post by commenter aphrael, originally posted at The Jury Talks Back, and promoted at the recommendation of commenter Dana. I have edited the post to remove names of witnesses and for spelling and grammar. Otherwise the post is as aphrael wrote it. — P]

[Guest post by aphrael and NOT by Patterico.]

I was talking in the hallway of the county courthouse, a few weeks ago when I began this diary, with a fellow potential juror. He was a talkative and excitable wiry older man in a baseball cap — a man who had moved here from Thailand and who extolled at length the flaws in the Thai legal system, where a single man’s decision can mean the difference between life and death. He told me how much better our system is, because many people have to look at a case together, and bring their own experiences and lives together, to think about the man and his fate. (He kept trying to talk about the case, and I kept trying to lead him back to safe topics).

I believe in the jury system, especially when compared to the alternatives. The state should not have the power to punish a man on its own whim, on the judgment of someone who draws his paycheck from the state. It’s not perfect; juries are flawed, because they consist of humans, and humans are flawed; but better the flaws of a dozen sitting in judgment than the flaws of one.

Jury duty is, in my mind, something of a sacred duty: an obligation we have to one another, to accept the call when issued, and to listen with open mind, and hear the evidence from both sides, and hold the prosecution to its duty. I have never tried, and never would try, to get out of jury duty; I get irritated at those who do. Sure, it’s an interruption, a diversion from your normal life; a pull away from what you want to do into what you have to do, paid poorly if at all. I understand that missing work can be a financial hardship, but absent a real hardship, I think trying to get out of jury duty is a betrayal of a fundamental duty of citizenship.

What I haven’t understood, at least not emotionally, is that service on some juries carries with it a cost beyond the cost of time and money involved; some cases inflict a psychic, emotional cost on the jurors hearing the case: that even listening to the evidence and trying to judge it honestly and dispassionately hurts, and strikes the jurors deep in their souls.

I was sworn in as an alternate juror on November 18 in the case of a man who was charged with fourteen counts of conducting molesting three minors under the age of 14 over a period of sixteen years.

Warning: this post contains explicit descriptions of sexual activity. There are no pictures, of course, and all names have been redacted. However, due to the descriptions, this post should be considered not safe for work.

As you might expect, it’s difficult to empanel such a jury. I was brought in on Wednesday morning, along with about 150 other jurors; we were sent up to the courtroom in batches of 30. Once there, we were told the nature of the charges, and the expected length of the trial, and told that if we should apply for an exemption if we needed one because (a) our employer wouldn’t pay and we’d suffer a financial hardship, or (b) it would conflict with some prepaid nonrefundable vacation plans, or (c) the nature of the charges, and our personal experiences, were such that we could not possibly provide a fair trial; otherwise, we were free to go, returning at 1:30 for the actual voir dire. I did not apply for an exemption; my vacation plans don’t involve leaving town (unusually for me during Thanksgiving), and while I wasn’t sure my employer would pay for this long a trial, even if they didn’t, I would suffer no real financial hardship. (I didn’t even think about the potential that I’d have a hard time providing a fair trial). Only four people from my group of 30 refrained from applying for an exemption.

I found out later this had gone on all day Tuesday, as well.

So I came back at 1:30 for voir dire itself.

Voir dire is a peculiar American legal custom. In California (it varies from state to state) it begins with the judge asking questions of each potential juror; then, after a bit, he turns it over to the attorneys. The judge’s questions were basically straightforward: how long have you lived here, what do you do, what does your wife do, what do your children (if grown) do. These questions were designed to weed out people who would be obviously unfit to serve on the jury: anyone who said they worked in child abuse counseling, for example, could get kicked off the jury immediately. (None did.) Several people were kicked off at this phase for failure to understand enough English to be able to answer the questions, however. One or two jurors had to provide more detailed explanations to the judge, who didn’t seem to understand their explanation of what they did (“I’m a quality engineer”, for example, is incomprehensible jargon to people outside of the industry); he did not, however, ask for more explanation from the person who claimed to be a “stationary engineer”, leaving me in the dark about what such a job entails.

The prosecutor — a short, energetic Chinese-American woman — asked questions first. She was concerned about such things as: do you accept the idea that people’s memories change and that, just because when you retell a story the details may be different, the core of the story remains the same and the difference in details doesn’t mean the core is untrue; and, do you understand that children sometimes don’t come forward with things when they’re scared; and, just because someone reacted to events differently than you would have doesn’t mean they are lying about them; and, in cases like this, there is usually no external physical evidence, and under the law you can convict if you believe the testimony of one witness even without external corroborating evidence, are you ok with that?

Some people weren’t.

She was also very concerned with whether or not people had preconceived notions of what a pedophile looks like: basically, can you accept that someone who goes to church and appears to all and sundry to be a good guy, actually has deep dark evil secrets? This prompted one potential juror to remark that, well, Ted Bundy had been a good looking guy, and we all know what he was really like.

The defense attorney — a tall, bearded man with glasses he kept perched at the end of his nose, creating the unsettling effect that he was peering down through them, surveying the room in judgment — asked less focused questions. He wanted to be sure to confine the principle that memories can change, drawing limits around it, making it clear that if the core changed, the story was probably untrue. He asked people intermittently about their educational backgrounds. He kept asking people if they understood the concept of physical affection, that parents would hug their kids, or give them a pat on the buttocks, or whatever, unprompted, and that this was normal and healthy behavior.

Several people were kicked off the jury for, in essence, having too little experience with kids. One was kicked off because she has an ongoing social relationship with the prosecutor. One was kicked off because the defense lawyer was a lawyer in a trial in which she had previously been a juror. One was kicked off because, in addition to being an attorney, he was an ex-police-officer who had arrested someone at the scene of a sexual assault, and worked for a while in the DA’s office, and was involved in several charities who targeted aid at sexual assault victims. (He was clearly, clearly, clearly trying to get thrown off the jury.) One woman refused to say anything other than she thought that people shouldn’t molest children, which drew an admonition from the judge (along the lines of, look, everyone thinks that, the question is can you be fair and impartial in judging whether or not that happened?).

In the absolute best moment of voir dire, a not-very-bright man who works as a custodian in a public elementary school was asked if he could judge fairly; he said he didn’t think he could, and when asked, he talked passionately and at length about how his job is in part to take care of and protect kids, and he didn’t think he could set that aside. OK, fair enough: excused. The judge calls up the next juror into the box, asks him what he does: he’s a custodian in a public school ….

The jury pool laughed raucously.

Eventually, the jury was selected (it was mid-morning Thursday by now), and we filtered people in to be alternates. Four were called up (there were five potential alternates, but one had already been called). I was alternate #2. The judge didn’t understand what my husband does (he’s an administrator for an online high school; this was a new concept for him). The prosecutor wasn’t sure I had enough experience with kids (well, I have a niece and nephew, and my in-laws adopted a little girl who is currently a sophomore in high school); she was sufficiently satisfied with that answer. Of the five, three were stricken; three more were called up, one of those was stricken, and then the lawyers were happy.

An alternate sits and listens to all of the testimony, and analyzes it and thinks about it as if they were a juror; but alternate jurors don’t deliberate. They are on call to replace one of the jurors if the juror gets sick, or injured, or commits flagrant misconduct, or otherwise becomes unavailable.

I was glad, after the first day of testimony, that I would most likely not be called upon to decide the case.

—————-

After a jury is sworn, there are opening arguments: the attorneys present an outline of their case. It’s a bit of a game, really, as the attorneys try to provide the jurors with a built-in frame, an easy story to attach the evidence to so that they can organize it. The danger, of course, is that people filter out evidence which doesn’t match with their preconceived notions, meaning that an effective opening argument can cause a jury to not pay attention to things which don’t fit with the story they’ve already adopted. In some ways, this is the goal of each attorney, although they will of course deny it.

The defense had, during jury selection, hammered on the notion that it’s perfectly normal for families to be affectionate and physical towards one another, and that there’s nothing wrong with a grandfather giving his granddaughter a hug, or a pat on the buttocks, or what have you.

The prosecution made it very clear that this isn’t what we were talking about. The state’s allegations were that he had (a) climbed in bed with a granddaughter, reached under her panties, stroked and rubbed her vagina, and stuck his fingers inside it; (b) climbed in bed with another granddaughter, touched her stomach on the skin, and only been prevented from sexually molesting her because she threatened to scream; (c) repeatedly over the course of years, sexually molested his step-daughter, including one event which involved him rubbing his penis on her and ejaculating on her “bloomers.”

The story was this:

In 2008, “J” [nickname redacted — P] spent weekends with her mother’s-husband’s-stepfather and his wife (mother is no longer married to the same man she was then) while mom worked. (Don’t know where mom’s husband was, it was never addressed.) One night, her grandfather came in while she was in bed, supposed to be sleeping, and molested her. A week later, when it was time for her to go back, she told her mom, who took her to talk to the police. After she talked to the police, but before being told any details, her sister L came forward with her story that once grandpa had climbed in bed with her, put his hand on her stomach, and was moving it towards her breasts when she told him she’d scream if he didn’t stop, at which point he left. He went to El Salvador for surgery (it’s cheaper to have your gall bladder removed there, apparently), and then came back; as the police were trying to contact him, the girls’ aunt A, his stepdaughter, came forward with her story: stepdad had repeatedly molested her for years when she was a kid, but she’d been suppressing the memories. None of them has any motive or reason to make this up.

The defense’s opening argument was somewhat disjointed and hard to follow; the lawyer was making a great show of being a simple man not really understanding what was going on (I think the idea here was that the defendant is a simple, uneducated man, and he was trying to make the jury empathize with the defendant — I’m not sure this was working. It certainly wasn’t working for me). From what I could gather, his argument was: all of this testimony is tainted and potentially inaccurate so it should be thrown out.

—————-

The first witness called was J. She was a small, diminutive teenager, timid and afraid; she could barely speak loud enough for me to hear her, and she leaned back in her chair rather than leaning forward into the microphone. (This kind of posture encouraged me to believe in her claims; often, that kind of timidity is associated with having been hurt, especially when in the presence of the person who hurt you. And yet, it also seems to be culturally common of Hispanic girls; is her behavior the result of an emotional scar, or is it the result of normal cultural conditioning?).

The prosecutor started out with simple questions about her interests, what she likes to do, how she does in school; questions designed to relax her and make her feel comfortable. Then she (the prosecutor) moved into more substantive questions, and the story which emerged was basically something along these lines: that weekend, she had been staying over at her grandparents’ with a cousin. For reasons of space (and because she and her male cousin didn’t want to share a bed), her grandparents stayed in the guest bedroom, while she slept in her grandparents’ bed and her cousin slept on an air mattress in the same bed. (The prosecutor had an exhibit set up which showed the layout of the room, something I found unhelpful). They stayed up until around 11 watching TV; her cousin, [name redacted], fell asleep first. She turned the TV off at 11, and after that, her grandfather came in. He climbed in bed with her; she could feel his breath on her body. He reached around (she was on her side, facing away from the door), and touched her — first on her leg, then up further, into her “private parts.” This led to a difficult dance where the prosecutor tried to avoid asking leading questions while getting specifics out of a girl who was reticent to talk; eventually it came out that her grandfather had put a finger inside the lips of her vagina. He did this for a while, then he left, then he came back and did it again. He did it at least twice, but maybe as many as five times; J can’t remember how many. After he left, she lay in bed trying to fall asleep, but it took a long time.

She didn’t review any tapes or transcripts or otherwise refresh her memory before testifying, and nobody told her what to say.

On cross examination, the defense kept asking about things which seemed irrelevant: did she remember telling her grandfather she was afraid of the bogeyman? did she remember him telling her to go to bed before her grandmother woke up? did she remember her grandfather coming into the room and watching TV for a while? did she remember playing a game with her cousin before they fell asleep?

She didn’t remember any of these things.

She also didn’t remember if grandpa’s hand went under the bottom of her underwear or over the top.

[I surmised, correctly as it turns out, that the issue here is that when she gave her statement to the police two years ago, she did remember these things. But: that was ten days after the incident, not two and a half years later; it was in a safe space, not in a courtroom.]

One thing which did bother me: she said she could see the clock from her bed, but she didn’t remember what time her grandfather left. This is a small thing, probably irrelevant … but if it had been me, and I’d lay in bed unable to fall asleep, and could see the clock, I would have fixated on it. But that’s me.

—————

The second witness was J’s sister L. Her story was pretty simple: grandfather came in, lay in bed with her under the covers, put his hand on her stomach under her pajamas, was moving it towards her breasts; she told him that if he didn’t stop she would scream; he left; she locked the door.

She didn’t review any tapes or transcripts or otherwise refresh her memory before testifying, and nobody told her what to say.

The defense didn’t spend much time cross-examining her, and I don’t remember any of it.

After the second witness, we went home, and were ordered back on Monday.

—————

Monday, we heard from J’s and L’s mom. L’s mom spoke through an interpreter; she is English non-functional.

One of the insinuations from the defense attorney had been that somehow J’s testimony was tainted. The theory (as more specifically elucidated later in the trial) is that children in such situations have a tendency to answer questions the way they think adults want them to answer; that they are suggestible. Accordingly, questions regarding allegations of child abuse have to be posed in a certain way: as open-ended questions, rather than leading questions; as questions which suggest no preference, rather than (say) a list of alternatives where the presence on the list might give away the preferred answer. Thus, “where did he touch you”, rather than “did he touch you in your private parts”, etc. Because J complained to her mom on a Saturday and she wasn’t interviewed by the police until the following Monday, maybe her mom asked her questions which suggested the answer, thereby rendering her testimony unreliable.

[This is a legitimate issue. On the other hand, taken literally and to extremes, the result is to erect a really high bar to convicting child molesters based on the testimony of children: because most children are going to turn in the first instance to people they trust who may not have been trained in asking questions the right way, and who may not know not to ask questions … and the idea that we should always discount or dismiss such testimony is a step too far].

J’s and L’s mother told us that she hadn’t asked J questions at all.

During the week after the incident, she said, J had been morose and withdrawn and unhappy, but she didn’t know why.

When J said she didn’t want to go to grandpa’s house, and explained why, her mom said, she called grandpa to yell at him, and then had her husband call the police.

I have a hard time believing she didn’t ask questions: isn’t that the natural reaction? And yet … maybe in her world the natural reaction is to call the police and let them deal with it. Maybe it’s easier not to ask, not to know.

The cross-examination of J’s mother was simple; the defense attorney wanted her to say she’d asked questions, but she insisted she hadn’t, and after that, there was really nowhere for him to go.

—————-

Next up: a social worker, of sorts.

Police interviews of children who allege child molestation, at least in my county, are not conducted in the police station. They’re conducted in what is believed to be a safe place: a children’s center at a local hospital, with toys and crayons and a child-inviting, colorful atmosphere. This relaxes children, it is believed, and makes the entire process work better. Interviews in this space also involve physical examinations; the woman testifying conducted the physical exam.

The physical exam showed no physical signs of penetration — no scar tissue, no scratches, no breaking of the hymen.

This does not mean there was no abuse; there have been cases of abuse in the past which showed no physical signs.

It doesn’t even mean no penetration; slight penetration could be consistent with these results.

[Why is she a witness at all? My guess is because if she hadn’t testified, the jury would have wondered about it. But she didn’t really say anything helpful.]

Cross-examination reiterated that there was no evidence of penetration.

—————

Then, the worst testimony of the entire trial: A.

A is a mid-twenties Latino woman, also with long hair, and a gigantic earring which obscured the view of her face. She’s married. She’s a stay-at-home mom. Her first kid, she had when she was fifteen, with some boy who is no longer in her life; she has children with her husband.

A had an extremely difficult time testifying. She broke down when identifying the defendant. She broke down when asked details about her past.

She doesn’t remember most of it; she intentionally suppressed it.

But she remembers, when she was a child, living with her stepfather whom she thought was her father, that things happened. For a while, when she was really young and wanted to sleep in bed with mom, she had to stop doing that, because stepdad would touch her. As she got older, she doesn’t remember specifics, but she remembers she had to fight him off sometimes. One time, she remembers him pinning her down, rubbing his penis on her, ejaculating on her panties (she remembers the smell, she didn’t know what it was, but she recognized it the first time she had sex, and she remembers being afraid that her mom would smell it and punish her). She remembers him feeling her up in the bathroom when she was disrobing to shower.

As a young child, when they lived in San Francisco, she slept in the same room as her mom and stepdad. When she was older, she had her own room, but she remembers it continuing.

How often did this happen?

At least once a month.

Once, when she was fourteen, she came home drunk. She doesn’t remember what happened, she’s been told by others what happened … the lawyers dance around the defense’s objection: this is hearsay, she’s repeating what she was told. We get around this: she had a conversation the day after she had come home drunk and said something she doesn’t remember which caused her mom to want to talk to her. She told her mom what was happening.

Her mom did nothing.

She’s never told anyone else. She told her first boyfriend a little, and her husband, but no details.

how did she feel when she heard about J going to the police? A broke down at this point: she felt terrible. If only she’d come forward sooner, it might never have happened.

Her voice was so filled with pain at that moment that I could barely stifle my tears. (I can barely stifle them now, writing this).

I believed her testimony. That is to say, I believed that she believed it. But … memory is a surprisingly malleable thing; that she believes it happened doesn’t mean it happened. Particularly since she doesn’t have fully functional, coherent memories.

The defense lawyer harped on this. Does she remember saying that her life is like something she read in a book, not something she experienced? Does she remember talking about having dreams? Might these be nothing more than her dreams, not real events?

He also honed in on something else: A got pregnant with a boyfriend she wasn’t supposed to be seeing, and was thrown out of the house. Before she got drunk and told her mom about the abuse, her stepdad came home and found her in bed with the boyfriend, and kicked the boyfriend out of the house and told her mom, and this got her in all sorts of trouble.

Perhaps she was just making it up to get back at stepdad?

Redirect examination (basically, the prosecution gets another chance after cross-examination, and then the defense gets another after that): even though you didn’t remember, and didn’t tell anyone, what did you tell the girls when you heard they were staying with their grandfather?

Always lock the door.

————–

Next up: the detective.

The actual interview of the detective was very short, and seemed directed mostly at providing the basis for the introduction of a video: the video of the interrogation of the defendant.

You know what they tell you about how you shouldn’t talk to the police, ever? That if you’re arrested you should lawyer up and stay quiet? This video is proof of that.

For one thing: while ordinarily nobody can testify about something someone else told them (that’s hearsay), anyone can testify about something a defendant told them (that’s considered a party admission, and so is admissible).

For another thing, interrogations are now regularly videotaped. That’s a good thing in some ways (as it cuts down on police brutality), but it’s a bad thing in other ways … in that it means that when you go to trial, the jurors get to see exactly what went down.

The tape opens up with the defendant at a table, one arm chained to a wall. The detective is across the table; there’s a third man, a Spanish language interpreter. We have transcripts, still warm, just off the printer, in both languages.

The defendant is Mirandized.

He’s asked to sign something saying he’s been Mirandized; he gets them to unchain his arm for that, and he remains unchained.

The detective’s tone is conversational, friendly. I’m here to help you. I understand. Sometimes things happen. We’re all men here, we understand, we can help, you just have to tell us what happened.

The defendant denies it.

The detective continues.

The defendant concedes: he might have touched his granddaughter.

Yeah, that’s what she told us. Press for more detail.

Near her vagina. But he knew it was wrong, so he stopped.

The detective lies to him: medical knowledge allows us to tell when she’s been penetrated. we have evidence she’s been penetrated.

He denies it. Then … he admits it. “I stuck in,” he says in English.

Press for more detail. He basically admits to having put his finger in J’s vagina.

The subject switches to L; he might have touched her.

Then the detective brings up A. The defendant responds nervously, stammering. He denies everything.

Then he tells this bizarre story, about how A, when she was a child, would come on to him. She would come up to him and rub her vagina on him, and one time when she did this, he knew it was wrong, but he came in his pants.

[Note: this story, if true, is in itself admission of a crime.]

The interview took about an hour. These were the highlights; a lot of it involved him denying, then changing his story, progressively releasing more details. Except: he never touched A, he insisted; all the touching was initiated by her.

——————

We had more videos.

This wasn’t explained, but I know enough about the evidence code to explain it: the defense wanted to use parts of the videos of the interviews of the girls to impeach the testimony of the girls by showing up where things were different. Doing that allows the prosecution to bring in the entire video. Rather than having the defense just use the parts it wanted and then have the prosecution, in its rebuttal case, present the entire thing, the lawyers agreed to present the tapes in their entirety, as joint evidence submissions, during the prosecution’s case.

First: J.

The story she told in the center was a bit different than what she told on the stand. She and her cousin (name omitted) were in the room playing, when they were supposed to be asleep. They played with a flashlight, she flung her pony tail tie at him and he flung it back. It was noisy; eventually her grandfather came in and told them to go to sleep before their grandmother woke up. He sat on the bed for a while and watched soccer. After that, he touched her hole. He got up and left, and came back, and touched her hole again. This happened a couple of times, but she doesn’t remember how many.

The troubling part of this was that the detective, despite being a theoretical expert, didn’t hold to the line of never asking leading questions: at one point (after she’d already said he’d touched her hole), he asked her if her grandfather had put his finger in her hole or if he’d just touched it. She answered that he’d put it in; but … if we’re worried about suggesting the answers, isn’t this a problem? And, given that the police officer has lots of expert training in doing this (he said so, when being questioned), shouldn’t he have known better?

—————–

Then we had A’s video. (We didn’t get L’s video.) She was interviewed in the same interrogation room where the defendant was interviewed (or so it seemed from the tape). The detective had the same friendly, conversational tone he used with J and with the defendant. A remembered no specifics; she remembered having to fight her father off, she wasn’t sure but she thought she remembered he had jacked off on her; she remembered the smell on her panties. She didn’t have any real memories, just moment memories. She felt that her life was like something she had read, not something she had experienced, and she had tried so hard to forget it all.

———————————————

The next witness, the last prosecution witness: A’s mom.

A’s mom remembers the night in question, when her daughter came home drunk.

Afterwards, she told her husband to stop touching A.

[The mind boggles. Unless she’s lying now, she believed A. Yet she did nothing other than tell him to stop it. And she’s still married to him today, even though she’s testifying as a prosecution witness.]

(For me, this was the single most important piece of testimony in the entire case. Yeah, it’s possible she’s lying, but the burden is on the defense to demonstrate that — give me a motive, at the very least. something I can hang the hat of doubt on. Otherwise: she’s just corroborated (a) that A said something more than a decade ago and so this is clearly not all a recent fabrication, and (b) what A said, all those years ago, was credible enough that she believed it.)

The prosecution rested.

———————————————

The defense called the defendant. He testified in Spanish.

He denied everything. He loved his family. He was very affectionate with them. But he never touched anyone in the way they were saying. He remembered A getting in trouble for having sex with a boy, and moving out when she was fifteen.

During the interview, he was scared. He didn’t understand what was going on. He was just trying to tell them what they wanted to hear so they’d let him go.

He never touched them.

On cross, the prosecutor employed an interesting technique, directed not at getting the defendant to admit something — he clearly wasn’t going to — but at reminding the jury of what they already heard. “Did you hear [witness X] say [y]?”

“I never touched her.”

That wasn’t the question. Did you hear …

“I never touched her.”

Your honor, please direct the witness to answer the question.

[Admonition from the judge]

Did you hear?

Yes.

Repeat.

The defense rested; we were sent home for the six-day Thanksgiving holiday (the court prefers not to try to hold jury trials on the Wednesday and Monday around Thanksgiving weekend, because it turns out to be a pain in the ass) and instructed to come back on Tuesday for closing arguments and jury instructions.

Happy Thanksgiving.

——————————————-

We reassembled Tuesday morning, the 30th of December.

The arguments were about what you would expect.

In the prosecution’s view, this case is about a predator. All of the girls are credible; what the defendant said while he was being interrogated is credible. But even if we don’t believe his admissions in the interrogation room, if we throw them out, we have enough: we have the testimony of three girls, given independently without talking to each other. Yes, the details they gave to the police two years ago and the details they give now are different; but they’re different in unimportant, unessential ways. The core details remain the same. Hell, A remembers more now than she did two years ago. (Hell is my emphatic, not the prosecutor’s; she would never say such a word to a jury). We have the testimony of both moms. There’s no reason to believe any of them are making this up.

The prosecutor took the time to explain the technicalities of the eight charges and what the prosecution had to prove. Three of the charges required proof of (a) penetration (b) of a child under the age of 10 (c) by someone over the age of 18. (These refer to J.) Three required proof of (a) touching (b) with sexual intent (c) a child under the age of 14 (these refer to the same acts; the same act can constitute multiple crimes). One more referred to (a) touching (b) with sexual intent (c) a child under the age of 14 (L); while the eighth referred to (a) significant sexual acts (defined as oral copulation, masturbation, or penetration) of (b) a child under the age of 14 (c) by someone who lived with them (d) on more than two occasions (e) spread out over more than three months (referring to A).

Actual arousal is not required.

Motive is not required.

A reason for picking these girls and not some other girls, is not required.

In the defense’s view, these girls all believe what they’re saying, but they’re mistaken. J’s memory was influenced by her mother’s bad questioning technique — and maybe she dreamed it, anyway, and woke up and couldn’t tell that it was a dream; the event as described by L wasn’t even a crime, who knows what it was — and besides, she imagined it after she heard about J; the events involving A were things she conjured out of dreams and, to the extent they weren’t, they were things she’d made up to get back at her grandfather for getting her punished for sleeping with her boyfriend.

(The inherent contradiction in the last two was not commented upon.)

But, even if you believe J about the touching, there’s no evidence of penetration, and the report that was entered into evidence (but not discussed) by the attending nurse indicated that in her professional judgment, what was reported during the interview with the detective was an event that didn’t involve penetration, so at the very least, we should acquit on the penetration charges.

[For much of the trial, I thought the defense attorney’s body language and posture suggested he believed his client to be guilty; this line of closing argument really suggested it: he’s left trying to argue the jury down to the lesser of two offenses.]

I don’t remember the prosecution’s rebuttal closing argument. (Yes, they get one. No, the defense doesn’t. Yes, it’s unfair.) I remember being impressed by it, but the details escape me … other than the sarcastic observation that, really, nine year-olds don’t dream about being sexually molested by their grandparents unless something triggered the dream.

The jury went off to deliberate; the alternates were sent home. We would be called when a verdict was reached.

———————————-

I didn’t get to deliberate in this case; I don’t know what went on in the deliberation room. But I have my suspicions.

You’re told, when you are a juror, not to form an opinion about the case before deliberations. This is ridiculous. It’s impossible not to. All you can ask is that that opinion remain tentative until everything is in and you have a chance to meet and confer.

There were a couple difficult issues in this case.

The biggest one has to do with memory. A only has “moment memories”; she doesn’t remember anything other than flashes, single images stripped of their context. I firmly believe her memory is accurate; the things she remembers actually happened to her. I believe this because — while I was not abused as a child — I have a similar set of moment memories: the entire time I lived in San Antonio, except for the hours I spent at my grandmother’s house, are a dark blur, punctuated by episodic memories of angry, violent conflict between my mother and my stepfather. They fought, as far as I can remember, constantly; their fighting was loud and probably violent (it didn’t happen in front of me, of course, but I could hear it from the next room over); I was terrified, and did everything I could to forget about it, once I was no longer in the environment … meaning that I can only remember moments, images of single moments frozen in a sea of darkness. (My memory of the years before that, when I was 5-6 living in New Jersey, are far stronger and more vivid.) So … I understand from personal experience how memories like this work; I believe her.

And yet … I don’t think my memories are enough to convict someone. They shouldn’t be; there’s far too much reasonable doubt.

In A’s case, though, this is balanced by (a) her mother’s memory, of events when she was an adult, of A talking about it as a child … and of telling her husband to stop it; and (b) her stepfather’s bizarre not-quite-confession alleging that A came on to him and rubbed herself against him until he came. I mean, really: this just isn’t credible. It’s a clear and transparent attempt to get out of it, to minimize what he’d done and shift blame on to someone else.

But … is that enough to overcome reasonable doubt? I’m convinced that it’s true, but … maybe it’s not? It’s not likely. It’s not credible. It’s possible, though.

That said … even if it is enough to overcome reasonable doubt, there remained a problem with this count: California Penal Code 288.5(a) requires proof of three or more acts.

How many times did this happen? It’s not clear. A said at least once a month, but frequency is the point where her memory is the least reliable, and she didn’t remember that level of frequency when she was interviewed at the police station.

And yet … given that it happened at all, given that her mom believed her when she said it happened, given that the defendant’s bizarre not-admission points to it happening, how likely is it that it didn’t happen at least three times?

I would have entered deliberations as a weak vote to convict on that count. I’m certain he’s guilty. But I suspect I could be talked into reasonable doubt.

—————————————–

I had the hardest time with the count involving L. Her story is: he came in, lay down on the bed, put his hand on her stomach. The defendant is charged with lewd and lascivious conduct on a minor under the age of 14, which requires, among other things, proof of sexual intent. Intent is almost always inferred from circumstantial evidence rather than demonstrated from direct evidence – how do you demonstrate intent? It’s basically not doable.

I can’t infer intent in this case.

I mean: laying down next to a sleeping child, putting a hand on their stomach? This could be giving them a hug. (It wasn’t. I’m certain it wasn’t. But … based on what L said … it could have been, and reasonable doubt goes to the defendant.) I would have entered the jury room a firm vote to acquit on this count.

—————————————-

The remaining six charges all stem from the touching of J. She wasn’t sure how many times he touched her; the prosecution settled on three to charge. Each individual touching is charged twice: once for penetration of a child under the age of 10 by an adult (which doesn’t require sexual intent but does require penetration), once for lewd and lascivious acts upon a minor under the age of 14 (which does require intent but doesn’t require penetration).

I would have entered deliberations as a firm vote to convict on two of the three lewd and lascivious conduct counts. There isn’t a doubt in my mind that he touched her sexually.

The defense wanted me to focus doubts on the following:

 * she could have been confused into making stuff up by her mom’s questioning
 * she could have dreamed it or otherwise made it up
 * her story has changed since she gave it to the police two years ago

None of these worked for me.

Yeah, her story changed. Not in any way which mattered — just in irrelevant details. I was rear-ended two months ago; I can’t remember the kind of car the dude who rear-ended me was driving. I’m supposed to expect an eleven-year old to remember who watched TV with her on a certain night two years ago? This is ridiculous.

Yeah, she could have dreamed it. but: nine year-old children don’t have this particular dream without some causal factor. If you want me to believe that as a reasonable explanation, you’ve got to give me the causal factor.

Yeah, she could have been confused by her mom’s questioning. This is the prosecution’s strongest point. And I have a hard time believing that her mom didn’t question her, despite her denials.

And yet: this standard would make it nigh impossible to ever convict anyone for molesting children.

And yet: something clearly happened to make her withdrawn and morose, and to make her not want to go back to her grandfather’s.

And yet: her grandfather confessed to touching her. In fact (I may not have said this above), he confessed to touching her twice.

The defense wants me to believe that his confession is useless because he didn’t know what was going on and he was scared and just telling them what they wanted to hear.

But:

(a) He was Mirandized. In Spanish. I heard it on the tape myself.

(b) The discussion was calm and peaceful and friendly. Yeah. It’s intimidating being in police custody. Yes, custody is inherently coercive. But Miranda is supposed to protect against that — and really, unless some totally bad shit happened off tape which the defense has not alleged, this was about the nicest, gentlest police interrogation you could imagine. I know. I watched the tape.

(c) The details he volunteered matched the details provided by J.

Coincidence is possible. But we’re starting to get into the realm of unreasonable here. She was confused by her mom’s questioning into making these details up (possible) and her grandfather was intimidated by the police (possible) into making up details which coincidentally matched her details (possible, but incredibly unlikely).

The standard is “reasonable doubt,” not “all doubt.”

[On the third lewd/lascivious conduct charge, I’m uncertain: two events are confessed to. J says she remembers more, maybe as many as five. But we don’t know how many, because she doesn’t, and there’s no other evidence. Probably we should err on the side of caution and only convict of things we are certain of.]

The question of penetration is where the defense spent most of its time, and it’s a tough one.

J remembers her step-grandpa putting his finger in her hole. (Her word.) There’s no physical evidence of same, and the tape of the questioning makes it clear that the police suggested that before she did. And yet: the defendant confessed.

I would have entered deliberations uncertain on this one, and would have wanted to talk to the jury; I can see it going both ways.

—————————————

The clerk called me to let me know the verdict.

Unanimous on all counts: guilty.

I’m pretty certain I would have hung the jury on one of the counts (L), and I might have on the third penetration/lascivious conduct count. But not because I think he didn’t do it — because I think there’s reasonable doubt. There’s an alternative explanation which is possible and not totally absurd, and so the tie has to go to the defendant.

But I’m not unhappy with the verdict, either, because I’m certain he’s guilty. The doubts I can see as are theoretical doubts, doubts that my rational mind poses as possibilities that could explain the facts as stated. But, having listened to the testimony: having heard the tremors in the voices of the girls, and having listened to the absurd explanations the defendant offered to the police and having watched his defiant denials on the stand, and having listened to his wife testify against him about how she believed the allegations … I feel no doubt.

I don’t know if this is how the system is supposed to work.

What’s bothering me, a little, is that (a) I think the jury got it wrong on at least one count, but (b) I don’t actually care, because I’m certain that no miscarriage of justice occurred, even so … and that lack of caring bothers me.

[Posted by aphrael and NOT by Patterico.]

59 Responses to “Jury Duty [Guest Post by aphrael, Promoted from The Jury Talks Back]”

  1. It seems to me that if you are certain the defendant is guilty, and your only doubts are theoretical ones that don’t mesh with the evidence as presented (including witness demeanor and so forth), a guilty verdict is appropriate. Perhaps, had you deliberated, that point would have been hashed out and you might have convicted on all counts.

    Just a possibility.

    Patterico (c218bd)

  2. This is a good example of why prosecutors must keep journalists off their juries.

    Arizona Bob (e8af2b)

  3. The defense rested; we were sent home for the six-day Thanksgiving holiday (the court prefers not to try to hold jury trials on the Wednesday and Monday around Thanksgiving weekend, because it turns out to be a pain in the ass) and instructed to come back on Tuesday for closing arguments and jury instructions.

    Patterico and aphrael, do you think in many cases this might cause some problems with the case? Six days is a pretty long break; do jurors return with diminished memories (especially after a potential holiday bender) and does that necessitate spending time refreshing the court on the prior week’s testimony?

    The time I was called to jury duty during the holiday season (the trial started on December 17) the judge mentioned to us that he had consulted with the prosecution and the defense and all parties had pledged to wrap the trial in three days so that even with deliberation we could be out before Christmas. As it turned out, the defendant copped a plea on the first day.

    JVW (9f8a83)

  4. Aphrael, the devil is in the details. You didn’t mention your jury notes or any exhibits which were admitted as evidence. I don’t know how these things are handled where you are, but jurors here are permitted to take all the admitted evidence plus their notes into the jury room and refer to them. If you had been able to use such items during deliberation, I’m certain that you would have had an easier time dealing with the issue of reasonable doubt.

    Desert Rat (af65ec)

  5. Patterico: yeah, that’s a possibility.

    Desert Rat: from what I understand, jurors were allowed to take their notes in, including the copies of the transcripts we had while we were watching the tapes, and the exhibits were provided, as well.

    JVW: I could imagine this causing problems with *some* cases. With *this* case, I don’t think it did. It’s not as though the case hinged on complex technical details, and all of the witnesses were fairly memorable.

    aphrael (7a8968)

  6. Guilty all three counts as the evidence was related to us by aphrael.

    The penetration was admitted by the defendent, and physical findings, while not dispositive, are not inconsistent with this penetration.

    I suppose aphrael is neither woman nor medical professional, but speculums, fingers, tampons, etc, can penetrate and leave no “evidence” of penetration. The lack of any such evidence does not contradict.

    He lies – changes story. He admits. He uses the oldest pedophile excuse in the book “the child was coming on to me” – it’s the most common delusion/excuse.

    The pattern of testimony must be considered. I agree that the wife’s “self defense” (I told him to stop) is very telling. That’s what wives who don’t want to leave abusers will say they have done, as if it might relieve her of culpability – she has done her part, she believed it to be enough.

    The evidence take in its entirety shows guilt beyond a reasonable doubt on all charges.

    SarahW (af7312)

  7. Thanks for the amazingly frank discussion, Aphrael.

    Takes guts to write about this.

    I agree with SarahW. I wouldn’t have reasonable doubt, even though some evidence didn’t pan out. I can see how I could have that POV if the testimony had been different, but in this case, the reason you don’t care about the jury’s finding is because the doubts you have are of a different character than ‘reasonable’.

    Dustin (b54cdc)

  8. This was a very interesting read, aphrael. The only upside to being on that jury would be to have the ability to put that degenerate in jail.

    JD (7f1877)

  9. SarahW – I’m not a woman or a medical professional.

    The lack of physical evidence isn’t what bothered me about those counts. What bothered me was that (a) the child’s specifics seemed to be prompted by the investigating officer, and (b) the defendant’s admission was incoherent.

    The wife’s “I told him to stop” was really what convinced me of the man’s guilt.

    Dustin: no, it doesn’t take guts at all. I was there; all I’m doing is bearing witness to what happened.

    aphrael (7a8968)

  10. You know, in theory, I might be able to be objective on a case like this, but I wonder whether, were I an actual juror on a case like this (and I can’t be, because my hearing is too bad), whether I could objectively see reasonable doubt on some of the issues Aphrael mentioned above and beyond my utter disgust for the man utter waste of food and oxygen being tried and my feeling that he should be locked away for the rest of his miserable life.

    The half-deaf Dana (3e4784)

  11. Thank you very much for this.

    Memory is malleable, which is what makes these sorts of cases so difficult. But, the young girls memories are fairly fresh. A’s memory, and the defendant’s memories, are old enough to be questionable.

    The chief value of this recounting is that in the years to come, aphrael will be able to consult this and compare with his own (subjective / malleable) memories of the events.

    Pious Agnostic (291f9a)

  12. I appreciate your discussion of the importance of jury duty. Having been on a jury that was hampered by illogical thinking, jurors flagrantly ignoring their oath of conduct, and deceitful attorneys, responsible and intelligent people need to be on juries, even if it is a hassle to some degree.

    But not because I think he didn’t do it — because I think there’s reasonable doubt. There’s an alternative explanation which is possible and not totally absurd, and so the tie has to go to the defendant.

    I imagine the term “reasonable doubt” is purposefully not quantifiable. What is “reasonable” doubt? That a person can see a hypothetical “alternative explanation which is possible and not totally absurd…” What is the difference between an alternative, an absurd (but possible?) alternative, and a “totally absurd” alternative? Can you take 1000 people, interview them and pick the “top 100 most reasonable people”, present facts and secretly tabulate their opinions? How many of those 100 need to agree on a point before it is deemed “reasonable”?

    “But I’m not unhappy with the verdict, either, because I’m certain he’s guilty. The doubts I can see as are theoretical doubts, doubts that my rational mind poses as possibilities that could explain the facts as stated. But, having listened to the testimony: having heard the tremors in the voices of the girls, and having listened to the absurd explanations the defendant offered to the police and having watched his defiant denials on the stand, and having listened to his wife testify against him about how she believed the allegations … I feel no doubt.”

    I’m not sure where your uneasiness is. You say you can theorize logical possibilities that “could” give an alternative explanation, but then go on to say that in spite of those theoretical possibilities in one section of the case, everything else screamed he was guilty, as you then describe.

    What’s bothering me, a little, is that (a) I think the jury got it wrong on at least one count, but
    I’m confused, it seems to me that you think that there is plenty of evidence to convict him on this count and that he is guilty on this count, and the reason you would not vote guilty is because you have a very low threshold of what you personally consider to be “a reasonable doubt”.

    (b) I don’t actually care, because I’m certain that no miscarriage of justice occurred, even so … and that lack of caring bothers me

    It sounds to me like you are not satisfied unless the answer is clear as the difference between night and day. If you’re certain no miscarriage of justice occurred that seems more than one can usually expect. Why should you care if justice was carried out with no miscarriage of justice? Just because the process was less than perfectly logical by one (possibly not appropriate) standard? The human mind is not capable of 100% “logical” analysis, in part because we cannot logically analyze to a numeric certainty the component of our thinking that is impacted by emotion. You hear testimony, you have a “gut reaction” to that testimony. The attorneys would like to manipulate your thinking on the basis of your feelings, but perhaps your emotions are analyzing the data in a way that is complimentary to “rational analytical thinking”.

    MD in Philly (cac12c)

  13. jurors flagrantly ignoring their oath of conduct

    That makes me angry, even second-hand.

    The system only works if we, as citizens, take our responsibilities to each other seriously. Part of that responsibility is handling jury duty according to the rules provided. If we don’t do it, then the purpose of the jury system is undermined, and we are made less free.

    I imagine the term “reasonable doubt” is purposefully not quantifiable

    The California Criminal Jury Instructions define proof beyond a reasonable doubt this way:

    “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.”

    The same instruction then says:

    “In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal.”

    For me, with respect to the case involving the second daughter, I’m uncertain.

    I’m confused, it seems to me that you think that there is plenty of evidence to convict him on this count and that he is guilty on this count, and the reason you would not vote guilty is because you have a very low threshold of what you personally consider to be “a reasonable doubt”.

    I think what i’m saying is that there isn’t evidence to convict him on this count. But that I don’t care, because I’m convinced he’s guilty on the other counts, and I think he’s more likely than not guilty on this count. There’s a reasonable possibility that he isn’t, but it’s not a probability that he isn’t.

    Just because the process was less than perfectly logical by one (possibly not appropriate) standard?

    Right. This is my underlying liberal idealism: the process should work perfectly. :)

    You hear testimony, you have a “gut reaction” to that testimony

    Sure. But … I have gut reactions to lots of things. Sometimes those gut reactions are inappropriate and/or wrong. Isn’t part of my duty as a juror to look at those gut reactions and figure out whether in this case, my gut reaction is appropriate and correct?

    aphrael (7a8968)

  14. Isn’t part of my duty as a juror to look at those gut reactions and figure out whether in this case, my gut reaction is appropriate and correct
    Absolutely. I’m just saying that gut reactions, while potentially wrong, are a type of evidence as well as “cogitating”, which can also give us wrong results at times.

    13.jurors flagrantly ignoring their oath of conduct
    That makes me angry, even second-hand

    Me too, but I get far angrier at deceitful professionals, and I still don’t know what to do if I get in that situation again. The specific issue being a juror who states, “I don’t trust the police” once you’re in the jury room.

    “Even computers” don’t work perfectly. I haven’t been able to understand why, given apparently the same situation, one moment a program opens without difficulty, and then on another occasion something “gets stuck” and need to reset and try again. I humorously think of it as “electrons taking a wrong turn”, which in some ways is absurd as electrons don’t chose which way to turn, but in another way is not so absurd, as taking quantum physics, etc. into account, of those billions of electrons flying around at least a few of them “stray” outside of the “expected” path.

    MD in Philly (cac12c)

  15. but I get far angrier at deceitful professionals

    maybe this is a tangent, but: what are you supposed to do if you’re a defense attorney who believes his client is guilty? you may not be able to drop the client. how do you conduct yourself at trial, in that case?

    i mean: i think that the attorney in this case signalled it to some degree, which is bad (in that it violates his responsibility to his client). but: what do you do at opening/closing argument when you have to argue for acquittal but believe in guilt?

    aphrael (7a8968)

  16. aphrael — you don’t argue for “acquittal”, you argue that the gov’t hasn’t carried its burden of proof with the evidence presented, and the defendant is entitled to walk out of the room due to the government’s failure.

    shipwreckedcrew (58dde3)

  17. I’ve been on jury duty a time or four — parallel to but not IN the Menendez pool, as well as one of the OJ pools — but as an electrical engineer, I was never seated. I wonder, does being an EE (or any, you know, REAL major :-) pretty much disqualify me from the outset? Or does it cut both ways?

    viktor (73db5e)

  18. I have two relatives who are engineers and they’re convinced lawyers for one side or the other cut them from the jury pool because of their profession. I tend to agree.

    DRJ (d43dcd)

  19. Great post, aphrael. It’s interesting to see the jury system from another region and another person’s point of view. Most of all, I applaud you for serving.

    DRJ (d43dcd)

  20. what do you do at opening/closing argument when you have to argue for acquittal but believe in guilt?

    Comment by aphrael

    I think his job is just to argue that the state has failed to prove its case beyond reasonable doubt. That’s all acquittal is, and some (not me) can logically and zealously do so for someone they believe is actually guilty.

    ost of all, I applaud you for serving.

    Comment by DRJ

    This and the times he’s talked about volunteering at the ballot box are very patriotic, and I always enjoy reading his descriptions of both experiences.

    Dustin (b54cdc)

  21. PS – I think you started deliberations on November 30th, not December 30th.

    DRJ (d43dcd)

  22. DRJ – aye, you are completely right. Oops. :)

    aphrael (fe2ce4)

  23. I got summoned for the pool starting December 20..
    ho ho ho.
    I’m think there is no way anything happens until after the new year and I’m free.

    Last time out I got chosen as third alternate on a personal injury case… some girl from UCSB threw a hissy fit about being summoned, so the judge called both attorney’s to the front and they whispered for a while and then neither objected to her so the judge could make her sit there all day.
    So, at the end of the day they’ve got a panel and two alternates, and I am looking good to go home… but nope, the judge says they are going to seat a third alternate. I get called. The attorney’s could not have cared less what I said or did… I’m irrelevant. Geez, I was pissed at the student girl… she huffed off in a snit.
    I sit through a bunch of boring nonsense… older woman claiming permanent knee damage, memory loss, back neck and shoulder pain from being in a car that got rear ended. Some kid who is not contesting he’d tapped their car.
    The older woman had her daughter call 911 and had minor medical treatment at the scene and nevertheless had soldiered on and left for her vacation. Upon return from an all inclusive resort in Cancun she had noticed her pain reaching a crescendo and had gone to a chiropractor who gave wonderful testimony about his bill.
    She’d also seen an orthopedic guy about her knee and he’d eventually performed an arthroscopy… different knee than on the EMT report, so we got testimony about delayed symptom onset, arthritic knees, and more very expert testimony about billing.
    Then we went on to questions about possible knee twisting drinking binges in Cancun that were not fielded well… the woman clearly.. or not so clearly could find her way around any vodka that comes in a plastic bottle, and gave one of those inadvertantly honest defiant non answers about maybe falling down while drinking that roughly translated to “well, I’m here now..” The opposition lawyer just said thank you, I think that is all…
    The best though was the closing argument part where the woman’s lawyer went for his Perry Mason… (or was it his John Edwards?) moment… he gets out a poster board with a photo on it of the rear end of the damaged vehicle. Evidently the budget was tight because it was like Spinal Tap where they get the scale backwards and lower a miniature onto the stage… the picture is too small, there is a crease in the license plate, some sort of small dents here and there on the bumper that looked like the kind of thing you’d get backing into a shopping cart after scoring your second pint of the day. Then there was something wavy about the purple paint job we were supposed to hone our eyes on… “look at that damage..” the lawyer thundered. We all leaned forward thinking there must be another photo coming because this one just looked like the car had been waxed poorly.

    So the jury goes off to figure it out and I get sent home… admonished to stay close to my phone in case two jurors were to drop dead. I opted to be sent the results of the jury’s decision and took off.
    So the jury came back giving the woman the costs of her knee surgery… which sucked for her, because the insurance company had offered to settle for all her medical plus $30K, but then again she’d had no real claim AND had hired the worlds worst personal injury lawyer.
    So once again justice was served; with a spork, on a dirty plate

    SteveG (cc5dc9)

  24. Viktor — I tend to use my peremptory challenges on people with hard science or math backgrounds if I can because there is a higher risk that linear thinkers will not be as receptive to the need to draw inferences from incomplete facts. No case ever goes together exactly as you want it to as a prosecutor, and at the end of the presentation of evidence there are often gaps in what you were able to present — either the judge keeps something out or a witness’s testimony doesn’t go exactly as you had planned, or there is just an area where there isn’t a witness or piece of evidence that fills in a hole in the case.

    In my experience, a “scientist” type is more likely to simply shut down at that point — the gap becomes a wall in their linear thinking process, and they are not willing to engage in inferential analysis to get to the next point.

    I also have “rules” for other types of employment — I hate putting teachers on juries, especially elementary school teachers, because they create problems in the jury room. Too many times I’ve heard that teachers become contrarian in the jury room, and the stereotype is they want to show everyone else how smart they are. I’m not sure its so much that as it is the fact that teachers are used to being in charge in the classroom, and they tend to gravitate towards the same mindset in the jury room.

    Also, I don’t like health care/social worker professionals, especially people in the mental health field. They are too prone to accept explanations given for bad behavior as being beyond the ability of the perpetrator to control. They then spend time in the jury room trying to convince other jurors that the defendant really wasn’t responsible for his bad behavior, and to get at the root of his behavioral problems they really need to know more about his family and his upbringing.

    Stereotypes all, but I’ve had bad experiences with each one, and when possible I’ll strike a engineer/teacher/social worker and keep a housewife or retail sales clerk.

    Goes back to my rule of thumb for picking juries — I only want 3 “Jurors” on my case. I want 9 sheep that will go along with those 3 jurors. That way I’m really talking to 3 people throughout the course of the trial, not 12.

    shipwreckedcrew (436eab)

  25. My biggest problem with jury duty, and I’ve served both on a criminal trial and on a special grand jury, is the high number of unions represented on the panels, at least here in NYC. Transit, police, fire, teachers, postal workers, government employees and the like all have union contracts that have jury duty clauses. Those from the groups above with whom I’ve served on juries look at jury dury as a paid vacation. They do not have to go back to work and catch up on the work they missed. So, if you’re on trial and a union member, you’ll get a jury of your peers. If you’re not a union member, and you want a jury of your peers, good luck. Better to opt for a judge trial.

    RickZ (882387)

  26. Comment by shipwreckedcrew

    Thank you for your explanation. I admit, I would have been more cynical and said attorneys didn’t want engineers and such because they knew how to think logically and would be less likely to fall for BS. I can see your point and it makes sense, though a good scientist is also thinking in inferences on what line of new inquiry to pursue, and engineers are used to trouble shooting and making things work “in the real world” where not everything is knowable and one needs to prioritize on what is important and what is inconsequential. But, as I say, I see your point and am less cynical- at least about some attorneys ;-).

    You also put into a working perspective the issue of working defense for a client you think/know is guilty. For integrity of the system, you do want the prosectution to make a credible case.

    What we still don’t know as non-legals out here, is what to do in the following instances:

    1. A co-jury member makes a comment inconsistent with answers they gave on jury selection, such as
    a. you can’t trust cops
    b. I always believe the police
    c. doctors just want to get rich, sue ’em for all you can get
    d. lawyers just want money and punish docs trying to help people
    e. I didn’t tell them about “x” (my sister who was attacked, my uncle the doctor, etc., etc.) because I wanted to be on the jury

    2. One of the lawyers says something you know to be factually untrue, such as “no one would be dumb enough to sell drugs in the middle of the day”, trying to take advantage of jurors’ lack of personal experience- in this case familiarity with a drug infested neighborhood where dealers would obviously compete for your business in the middle of the day at an intersection.

    MD in Philly (cac12c)

  27. I have been on several juries and in the pool more than a dozen times in the past 15 years. The last time I was called, I looked around and was simply amazed by what I saw. There were 112 people in the room. More than 80 of them were retired. Of the remainder, there were only two of us who were not government employees. The other person was an attorney and I am a self employed computer consultant.

    After getting this information, I approached the woman who was running the show and asked how many people had been summoned. 3000 called with only 112 responding. When I asked what the penalty was for failure to respond, I was told a $1000 fine but that they only fined one or two people a year. They routinely call 3000 people each week except when there is going to be a high profile case expected to run two weeks or more when they will call 5000 to 7000 people.

    Neither the lawyer or myself were selected to be on the jury.

    So, for all you lawyers out there, what do you tell some small business owner, who has to make payroll and keep a company running, when he asks for a jury of his peers when there are no business owners in the jury pool?

    The last trial I sat was a medical malpractice case where a woman with 28 silver fillings, two crowns and two previous root canals asked a dentist to replace the silver fillings with white ones, replace the crowns so the color would match better and do the root canal that she needed. And she wanted this all done in less than a week. No person who has had that much dental work is unaware that it may be painful. To believe otherwise requires a total break with reality.

    The dentists who examined the dental work all agreed that the work was exemplary. One of the witnesses even said that he was going to become a client himself after seeing the work the dentist being sued had performed.

    She had some pain caused by the extended length of time in the chair with her mouth open. The dentist did not have a signed notification that there might be some pain involved in getting this much work done. CA law requires a signed notification or it is considered malpractice.

    The other jurors, non of whom were employed at the time of this trial except me, awarded her $110,000 for her pain and suffering. BTW, her lawyer was also her fiance.

    So I ask again, how can a normal person expect a fair trial from a jury of their peers if their peers are not even in the jury pool or are eliminated by the lawyers from participating?

    Jay H Curtis (8f6541)

  28. CA law requires a signed notification or it is considered malpractice

    Ugh.

    OK, so if i’m on that jury, I’m compelled to follow the law. It’s true as a matter of law that there was malpractice. All that’s left is to discuss the amount of damages.

    Seems like the real problem is the per se malpractice definition.

    aphrael (e0cdc9)

  29. OK, so if i’m on that jury, I’m compelled to follow the law. It’s true as a matter of law that there was malpractice.

    That’s honest of you. And that’s the oath you agree to when you join a jury, but I would definitely nullify.

    Sure, I could award nominal damages instead, but that’s unacceptable. There is nothing wrong with a dentist not getting you to sign a pain waiver, whether some trial lawyers screwed up the law to say otherwise or not.

    My inability to hold the line on the law is probably a character defect, but that’s the truth.

    Dustin (b54cdc)

  30. Yeah. I can see the temptation, but … once you start down that road, every jury is its own little legislature.

    I would award the smallest amount of damages possible, however.

    aphrael (e0cdc9)

  31. every jury is its own little legislature.

    That’s right. I don’t really like this, and I respect the notion that the best response to a bad law is to enforce it, but I just lack faith that these things can be fixed in the system we’ve got.

    One of the fundamental problems with civil law is the jury pool. But the main problem is that the profession that writes a lot of laws tends to suffer a lot if these laws are reformed.

    Dustin (b54cdc)

  32. I would have given her half of one cent.

    In a prior professional life, I did a lot of trial work, including lots of mock jury trials where we observed deliberations. It was often times quite amazing what a jury would acknowledge that they were ignoring.

    JD (b98cae)

  33. I would have given her half of one cent.

    And the dentist, who owns a small business, is still out the $50,000 in legal fees and lost work from spending time in battle. thus, many of these guys will settle for tens of thousands, even if they predict good jurors like you.

    Dustin (b54cdc)

  34. Dustin – I do not dispute that one bit. Usually it falls on their malpractice carrier for said legal fees, but the time invested is not insubstantial.

    JD (6e25b4)

  35. JD, it’s a tough nut to crack. You and Aphrael are trying to abide by your word, when I actually do have contempt for this system and am willing to go an extra step or two.

    I have not ever been selected for a jury, and I’m pretty sure I won’t ever be, though I would love the experience.

    Dustin (b54cdc)

  36. The Jury system was never ever intended to be a jury system, as jury systems go

    Not one bit – it was just intended for the civil elections of professional jurors and Judges – had nothing at all to do with the uneducated (and I mean in sciences, law, business etc) trying to deterine things they had no idea what they were supposed to do

    EricPWJohnson (2a58f7)

  37. Aphrael,

    As a juror you have a duty to NOT follow the law – but to follow your instinct of right and wrong – thats it – there are no real laws in this country per se that are not subject to a constant review by juries who can for any reason find fault or no fault with any party.

    I’ not saying that in any situations juries are instructed what the law is and their responsibilities – however they can odify it with their sense of individual justice

    EricPWJohnson (2a58f7)

  38. Could you please explain that, because at first blush, it appears to be complete nonsense.

    JD (109425)

  39. “As a juror you have a duty to NOT follow the law”

    But you do swear to enforce the laws, so even if you have a greater duty to morality than to laws, you wind up having to break your oath.

    I think these oaths are of absolutely no legal consequence, and are misunderstood. The US Constitution protects our right to break whatever promises judges made up as a tradition, and to ignore their insistence we have promises to uphold bad law.

    Anyhow, I don’t see a solution to your complaint about juries. Any jury that becomes professional and longer term can become corrupt and ceases to serve the purpose of a jury.

    Dustin (b54cdc)

  40. I believe regulations, which laws are a form of, can never, ever, be written to cover every scenario with the multitude of subtle differences. People have brains to use as new situations came up. If every possibility could be covered by a regulation, first, it would take a heck of a long time to make the regs, and a heck of a long time to read them, and many would be out of date before you did, and second, we would all be automatons, mindlessly fitting into the official status quo.

    The idea that a dentist needs to get a signed statement saying there may be a period of discomfort after dental work is ridiculous. No wonder California is collapsing.

    Has anyone ever signed a statement saying they realize that in the case of a car accident the safety features of the car may not be able to completely prevent injury? By this supposed criteria, every person ever in an accident and injured in CA has cause to sue the car dealership as well as the maker. Might as well go after the unions as well, for they knowing built vehicles that were “not as safe as possible”.

    When obedience to a law leads to absurd consequences, there is a problem with the law.

    MD in Philly (cac12c)

  41. JD

    Its all up to a jury, juries decide sometimes that the law is unfair, juries decide if someone is guilty even if the letter of the law says otherwise

    Its impossible for all laws to cover every eventuality

    thus the crux

    Dustin,

    yet we use grand juries all the time – corruption is in the heart there are judges who have served one month and were corrupt and many who put in a lifetime of honor

    EricPWJohnson (2a58f7)

  42. yet we use grand juries all the time

    Yeah, I had that in mind, actually. Some of these problems are difficult to solve, but I am glad at least one level of our system gives people power for very short durations. It’s a valuable protection. Perhaps it seems less valuable because we haven’t seen the alternative, but I think it’s kept things in check to some extent.

    Dustin (b54cdc)

  43. We should make everyone sign a waiver saying ‘anything could happen’ when they turn 18.

    Dustin (b54cdc)

  44. Dustin – is it a protection?

    Cause its funny that much of our laws is to PREVENT ordinary citizens from infringing on the rights of others

    Yet we let the same infringing marginalizing masses to pass judgement

    EricPWJohnson (2a58f7)

  45. Yep, it’s a protection.

    It’s not free, as you’re noting there are problems with having an unprofessional group have power.

    Hard to prove what it’s protected us from, exactly, but there’s a limit to what the government can get away with in prosecuting us, before juries refuse to go along. If you’re resigned to an imperfect system, it’s easier to appreciate.

    Dustin (b54cdc)

  46. Epwj – what you said in 37 and 41 do not sync up.

    JD (eb5afc)

  47. yeah, you’re right JD, jury system works when people are impartial, which doesnt happen much

    EricPWJohnson (c5f1fc)

  48. EPWJ, at #36: that’s not how the medieval English jury, from which our jury is derived, worked.

    The original juries were essentially locals with knowledge of the people/locations involved who either ruled based on their own knowledge or did investigations.

    Eventually the investigative function was removed from the jury, leaving us with what we have now: twelve citizens pulled from out of a hat, who judge whether a fact is proven or not.

    aphrael (e0cdc9)

  49. these oaths are of absolutely no legal consequence

    probably, yes. certainly i have a hard time imagining enforcement.

    but they’re of important moral consequence.

    aphrael (e0cdc9)

  50. aphrael

    medieval juries were made up of noblemen

    EricPWJohnson (2925ff)

  51. I appreciate the lawyers here explaining how they select jurors and who they try to eliminate from the jury. I understand why you want to do this.

    I would like to understand, though, how you can call this a jury of my peers when you eliminate most of the people who think logically, who are leaders or forceful personalities, who are people who can’t be classified as sheep. I would like to think a jury of my peers would include small business owners, parents, educated people and people who are actively employed. I would like the jury to include at least a couple of people within my age group, ethnicity and socioeconomic class.

    Having 12 people who are not currently employed or who derive their entire existence from the public trough doesn’t seem anything like me or the people I associate with. How can this be considered a fair trial when the jury has been stacked in this way?

    Jay H Curtis (8f6541)

  52. It depends on the case, Jay. As someone whose (admittedly limited) trial experience involves complex civil cases rather than criminal matters, we always wanted educated professionals as jurors. And, to me, the “jury of your peers” is based on having a random cross-section of persons called for jury duty, not having a jury that perfectly represents the society it is drawn from. In other words, the pool of jurors must be representative but that doesn’t mean the jury itself will be.

    DRJ (d43dcd)

  53. EPWJ, that’s misleading. They weren’t made up of high nobles; they were made up of freeholders. Certainly an exalted status compared to villeinage, to be sure, but even right after the conquest, the size of the English freeholder population was substantial.

    aphrael (ab7ec9)

  54. DRJ, thank you for your answer.

    I appreciate that our system is not perfect and that compared to most other countries, it is outstanding. I have only my own experience to go by. It seems to me that the jurors you have to select from usually consist of those few who really feel it is their civic duty and the many who are too stupid to get out of it. I have always noticed the heavy bias towards retired, unemployed and government workers. I seldom see professionals, self employed, business owners, etc. And calling 3000 people to get 112 respondents seems a little ridiculous.

    I would actually like to see fines levied for the people who just don’t show. I would like to see the burden of getting out of jury duty be higher than that of participation. It is a responsibility of citizenship and I don’t think most Americans really understand that there are requirements to safeguard our system. More participation would help to make the system appear more balanced and fair than it is now.

    On that note, I would also like to see it be more difficult to reject potential jurors. I have only sat on four cases but have been interviewed and rejected at least once, sometimes twice for each time I have been called. There were occasions where that made sense. When the trial of a thief who had broken into my truck was scheduled for the same judge the following week, for example. Or when the victim was a friend of mine another time.

    But, it seems a little strange that I would be interviewed and rejected that often. I am just a typical self employed, computer consultant who happens to work with a number of law firms and lives with a Sheriff’s Department employee. I don’t hang out with the deputies, or the lawyers off hours, have no inside sources of information, didn’t respond with “I would be happy to hang the guilty S.O.B.” when being questioned. I have asked, after the fact, what it was that caused them to dismiss me but have never been answered.

    From a lay person’s perspective, it seems like our justice system has been replaced with a legal system. There are similarities between the two, but the outcome is much different. 8-(

    I no longer work for any criminal defense attorneys after listening to the strategy sessions that were conducted with me in the room. The coaching of the defendant on how to lie, what to lie about and when to lie. The planning of the total character assassination of the poor person who just happened to witness the admittedly guilty party doing something criminal. The complete lack of morals and character of the defense attorneys I used to work for. Never again.

    Disclaimer: I know that not all defense attorneys are like this. There are at least a few defense attorneys who post here who seem to be very ethical. But the ones I worked for were. So like the bad apples that spoil the pie, they have made me leery of the whole sub category of lawyers.

    Sorry for what appears to be a rant. I have strong opinions but don’t really know how to make the system better. I just get frustrated when I see what appears to be abuses of the system. And there have been so many of them recently.

    For example, I simply can’t understand why Judge Rheinhart did not recuse himself from the Prop 8 case. When your wife is the director of one of the groups submitting briefs for a case that you are going to be hearing, how could anyone NOT suspect a conflict of interest? Any man who goes ahead and does something in opposition to his wife’s stated position and strongly held beliefs understands that there is no quicker way to make your life a living hell on earth. What stronger justification exists to claim conflict of interest than that? 😎

    Or when a lawyer knows that an innocent man is being held in prison for a crime that his client committed, say’s nothing for a large number of years, then is held up as the paragon of legal ethics, something is rotten in Denmark. I was always under the impression that the motto was “better that 100 guilty men go free than one innocent be wrongly convicted”. What ever happened to that?

    And what about the case in Alaska where the judge ruled that factual innocence does not trump the verdict of a jury of your peers. How does this pass the smell test? (was this ever resolved?)

    Apparently, the people who right our laws never bother to sanity check them before passing them. Often there is no possible way to comply with all the various laws governing a given situation. i.e. In CA, there are green areas where you are not allowed to cut the vegetation. However, there are also laws that require you to cut the vegetation within 100 feet of your home. When the fire dept. issues you a citation for failure to comply, if you do cut the vegetation, you get fined for violating the law restricting you from cutting vegetation adjacent to the green area. A friend of mine has been battling this back and forth for almost 10 years now. The judge told him that the fines stand as he is in violation of the law and the fact that the laws are contradictory is no defense.

    And I still think Ramos and Compean got a raw deal. They spent most of their time in solitary confinement for their protection from the illegals housed in the same facilities. Since it was not for violations of the rules, why were they held to the same restrictions and punishments as the people who were in solitary for being the worst of the worst? Why were they only allowed visitors once a month and two showers a week when the people who beat them were still allowed all the privileges and freedoms that a model prisoner gets? Personally, I still think the weapons charge that was added on was just retaliation by the AG. Still think it stinks that the jury was allowed to hear what the AG knew was a lie (first time, need money for sick mom) but the jury was not allowed to hear that he was rearrested before the case came to trial. How is it that the AG never got in trouble for allowing the drug dealer to perjure himself?

    Jay H Curtis (8f6541)

  55. From a lay person’s perspective, it seems like our justice system has been replaced with a legal system. There are similarities between the two, but the outcome is much different. 8-(
    – Comment by Jay H Curtis — 12/8/2010

    Jay, I believe I’ve been told that it has always been a legal system, at best. Things get really bad when it is no longer a legal system, even, but a system based on the most skillfull deception and individual whim.

    MD in Philly (cac12c)

  56. Jay H. Curtis,

    As MD notes, America doesn’t have a justice system. We have an objective, rule-based, due process legal system that we hope will result in justice. That may sound bad but I think it’s good because the alternative is a subjective system that promises justice and provides it by leaving the rules and outcomes up to the legal providers. Thus, while we believe it’s better to let the guilty go free than convict the innocent (and that’s why we have a system that safeguards individual rights and provides appeal processes), that doesn’t mean an innocent person will never be convicted. Overall, I’d much rather have a system that follows the same rules no matter who you are than the alternative, even if it sometimes means I don’t like the results.

    And I think Ramos and Compean got a raw deal, too, for a lot of reasons.

    DRJ (d43dcd)

  57. By the way, Jay, I also agree with you about the importance of jury duty. Two of my family members have been called for jury duty this month. They could have claimed exemptions (for age and school) but both decided to attend because jury service is important. And I don’t know about other places but in Texas there are consequences to not showing up for jury duty, including the possibility of arrest.

    DRJ (d43dcd)

  58. The judge told him that the fines stand as he is in violation of the law and the fact that the laws are contradictory is no defense.

    ISTM that if the legislature has created a situation in which it is impossible to comply with the law, there should be due process grounds to appeal the fine.

    aphrael (e0cdc9)

  59. The sentence was handed down on January 28, but I just learned what it was today:

    indeterminate prison sentence of 27 years to life.

    aphrael (fe2ce4)


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