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: explicit content. This post is 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.
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?
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.
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.
(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.