Thursday, September 30, 2004

Jury Duty, Part the Third: Deliberation

Oftentimes people will watch news coverage of trials and react with bewilderment when the defendant is found not guilty. They ask “How could any jury possibly find that person innocent? How stupid can these people be?” When you actually take part in the process you come to realize how complicated finding someone guilty actually is, and you start to understand some of what may have been going on in the deliberations of those newsworthy trials that led the jury not to convict. The fact of the matter is you don’t find someone innocent: you have to find someone guilty, and the rules and procedures for finding someone guilty are very specific and very exacting and if just one thing falls apart or doesn’t fit then the jury has to let them go. Because there are no half measures in a verdict - there is no “Kind of Guilty” - every juror must be absolutely convinced on every single instruction of a count to find the defendant guilty. And that can be amazingly difficult.

Trials are a misleading experience for jurors. Testimony is basically a really long story, broken down into different perspectives of the participants, retold to the jury with all the imperfections typical of human experience – witnesses exaggerate, witnesses interpret events from their own viewpoint, witnesses forget details, and some witnesses flat out lie – and analyzed to death by the attorneys. After listening to all the evidence the jury thinks they have a pretty good idea of what happened; they’ve figured out who they believe, who they think is reliable, and they’ve reconstructed the events in their mind as best they can. They’ve already determined whether they think the defendant did something wrong. But then the judge reads the actual charges to the jury and suddenly it’s like a whole new trial.

Because laws are not written in terms that we apply in our everyday lives. A jury listens to testimony and they hear this story, and they apply their sense of morality to it. They think: “The defendant hit this guy’s car – that’s wrong. I guess we’re going to find him guilty.” But then the judge reads them the charges, and the law has nothing to do with morality: the law is written in terms of legality, which is completely alien to normal human beings. The judge will say: “Charge one states that the defendant did willfully and maliciously strike the alleged victim’s automobile and that the defendant did so with premeditation and that the results of this collision were damages to the alleged victim’s vehicle in excess of $500.”

Now suddenly the jury has to take into consideration concepts like “willful” and “malicious” and “premeditation,” all of which have exacting legal definitions and none of which enter into our day-to-day sense of morality. The jury now thinks: “Well, the defendant hit this guy’s car, but was it willful? Was it premeditated? Obviously he screwed up, but is he guilty of this charge? Why did the prosecution decide to charge him with this crime? Why not some other crime, which doesn’t have such demanding burden of proof? What the hell does ‘malicious’ mean, anyway?”

And so it begins. Doubts begin to gnaw at you, for no other reason than that the judge has specifically put them in your head to see if they take hold. To make sure that you’re absolutely certain.

In our particular case there are four counts: 1) Beating a spouse, 2) Vandalism, 3) Endangering a child and 4) Exhibiting a deadly weapon. By the end of testimony we all have a pretty good idea of what had actually happened and we are all ready to find the defendant guilty of ramming a car into a gate and hitting his wife. But he isn’t charged with Misdemeanor Slapping His Wife While She Was Holding a Baby or Felony Ramming a Gate with a Minivan. We have very specific instructions, and we have to try to fit these events into these laws like some kind of bizarre Chinese wooden puzzle and see if they will actually twist and fit together and become an apple or whatever the puzzle is supposed to make.

After the judge reads us the instructions for each of the four counts, as well as some general rules that courts are so fond of, the alternate juror is sent home and we are shooed off to the deliberations room.

Being an alternate juror is the most thankless job in the world – aside from the $15 a day, that is. They have to struggle to stay awake along with the rest of us through the whole trial, but when it comes time to deliberate the judge sends them home and tells them to wait for a call in case one of us gets sick or gives birth or something. The alternate juror has to endure all the boring parts of the trial without even receiving the common courtesy of finding out how it all turns out. Which is kind of like going to the doctor, being poked and prodded and forced to swallow some horrible remedy, and then never even being told what it was you had.

Once we sit down in the deliberation room I’m the first one to talk, just to get the ball rolling: “Does anybody have their heart set on being foreman?” Apparently this is misconstrued as a desire to be foreman, because a couple of people say “Nope, you can do it.” Either that or I have lost the keeping-quiet-and-not-drawing-attention-to-yourself game by uttering the compound word “foreman.” I start to protest and explain that I was actually going to suggest that we draw numbers out of a hat, but I realize that being foreman figures well in with my master plan of going to lunch tomorrow, so I humbly accept.

Juries are a strange mix of people, because they are by necessity random, so for the most part you are grouped together with people whom you would never normally associate with. Despite this fact, you’ve all been through the same torturous experience and forced to sit in silence for hours on end, much like grade school, so once you’re put in a room together and finally allowed to talk you’re all suddenly best chums.

I’m a staunch advocate of taking the road of least resistance, so I decide to start with count two, which is the felony vandalism charge. The instructions basically say that the defendant has to have willfully caused at least $500 worth of damages. A quick show of hands around the table reveals that we unanimously think he’s guilty. I write “Guilty” in the blank on the form and sign my name above where it says “Foreperson” and just like that this guy is a felon. Wow, I’m a powerful person.

Next we tackle count one: beating a spouse. Here we quickly become fixated on the instruction saying that the alleged victim must have sustained an injury.

Now, this confuses us because the prosecution never made a concerted effort to prove that the wife was injured. He asked several witnesses if they saw the wife wipe herself, and a few of them believe she wiped her arm with a towel. There was the strange business of her bringing up the grill she may or may not have bumped into, but that doesn’t prove anything to us. No paramedics were called to the scene and the female police officer who inspected the wife at the scene did not recall or report any injuries.

So this whole charge falls apart on this one detail. We believe he hit his wife but we have reasonable doubts that this resulted in an injury. On count two I write “Not Guilty.”

It’s now 3:45. We’ve only been deliberating for a quarter of an hour and we’ve already settled half of the counts. I start to feel my lunch plans for tomorrow slipping out of my grasp.

Fortunately count three proves considerably more contentious. We’re not too clear on where the wife and baby was during the car ramming, and whether the baby was in any mortal danger during the physical altercation; that is to say, if this Child was Endangered.

One juror seems to have a biblical fear of alcohol, and she keeps making dire observations like “Oh, but he was drinking. You can’t trust people when they’ve been drinking. They don’t even having any idea what they’re capable of.” I decide not to relate my humorous Car Bomb anecdote from the previous day.

We spend the rest of the day trying to hash out what we think happened, until the bailiff comes and tells us it’s time to quit. One juror looks up in surprise at the time and asks the rest of us if we want to knuckle down for a few minutes and get these last two counts out of the way. As foreman I feel it is my duty to instruct him “No, we can’t rush justice.” Besides, I’m going to lunch tomorrow.

The halls of a courthouse are a strange place, as you can run into anybody from your trial; one of the attorneys, a witness, even the defendant in this case, as he was not in custody. When you bump into them you smile awkwardly and nod, but despite everything the two of you have in common it’s there’s really not a whole lot to say.

There are bright yellow boxes painted on the floor up against the courthouse wall cheerfully advising “KEEP CLEAR AT ALL TIMES.” The purpose for this becomes apparent when a female deputy comes out of a holding area with three young female prisoners, their hair and makeup done up as if they’re headed to yearbook photos instead of court. The deputy escorts them along the wall as they trudge along, shackled together and standing abreast (oh, grow up). At the same time a middle-aged juror is walking towards them in the prisoner-transport lane with his face in a book, oblivious. Suddenly he looks up into the face of the middle prisoner. She smiles at him and he smiles back. The deputy frowns and snaps “Sir, please step out of the way.”

That’s when he notices the bright blue prison jumpsuits and realizes that these girls probably aren’t on their way to some ultra-urban, all-ages club. He scampers out of the way with his head down, although it’s no longer buried in the book.

Our second day of deliberations is still slow going, due to the vagaries of count three. At one point it falls on me to write a note asking the judge for a definition of the word “likely.” Stop laughing at me and let me explain. The instructions specify that the accused must have “created an environment likely to cause death or great bodily injury to the child” in order to find him guilty. Now, everyone agrees that this guy had been acting like an idiot and should not have been kicking his wife and waving a steak knife around while she was holding their son, but we get bogged down on this word “likely.” Some people are of the opinion that “likely” means 99% certain, or a million to one against, and that the law is saying that it was purely a miracle that the child hadn’t been grievously injured. My interpretation is that “likely” simply means that this outcome was more probable than not: i.e. the probability P of baby b being injured by defendant d is greater than 50%. Therefore if P(b) > 50% then d = guilty. Thankfully I do not attempt to write this equation on the white board to demonstrate my position so some of the other jurors actually agree with me.

To try and settle the matter we write to the judge asking if there is a legal definition of the word “likely.” While we wait we hammer out count four (exhibiting a deadly weapon).

The defendant never testified, which - the judge advises us – does not necessarily indicate his guilt. There is a difference, however, between not incriminating yourself and not defending yourself. In the absence of any opposing testimony, we have no reason not to believe the witnesses’ accounts of what happened. We find him guilty of exhibiting a deadly weapon.

Then we wait for the judge’s response and talk amongst ourselves. Then we wait and read the newspaper. Then we wait and wonder how long the definition of a six-letter word could possibly take to write down. Finally, after about an hour, a note comes back from the judge:

“There is no legal definition of the word likely.”

Damn it.

“The standard dictionary definition of the word is ‘to the extent that such an outcome seems reasonable.’”

Damn it. I consider writing to the judge asking for a definition of the word “reasonable” in a bid to stretch jury duty clear through Friday, but the prospect of the rest of the jury accepting this ploy doesn’t seem likely.

In the end those of us holding out on finding him guilty have to admit that we have reasonable doubts that little Baby B was definitely in any physical danger. Count three gets writ “Not Guilty,” for a season average of .500: two counts guilty, two counts not guilty.

We feel kind of bad that we haven’t found him guilty of any of the charges stemming from hitting his wife, but on the other hand we have convicted him of a felony. We brainstorm on the ramifications of this: he has to tell an employer that he is a convicted felon every time he applies for a job; he can never run for office; he can never even vote.

“Look on the bright side,” I reason. “He’ll never be called for jury duty.”

We all laugh conspiratorially.

When the court is ready for us everyone reassembles in the courtroom and I pass the verdicts to the reporter. I’m watching the defendant’s face as the verdicts are ready, but there’s no discernible reaction: no grimaces for the “guiltys,” no relief for the “not guiltys.” I guess after four days of court you don’t have any emotions you haven’t already used.

Having rendered our verdict, we are done. The judge thanks us and dismisses us. We will not be present for sentencing, so we never find out what punishment he receives.

I have lunch with my friend Jeremy, who has just been sworn in to the California Bar Association, making him a Lawyer, and my roommate, the Bailiff. Seeing as how I have recently been a Juror, I have only to invite a Judge to lunch to complete the courthouse collector’s set, but, alas, none are to be found.

Looks like my vacation is over.


Anonymous said...

This only confirms what I already knew : that you, sir, are a bum. I'd love to get called up to juror duty here but where I live, you are guilty until proved guilty (after the forced confession, of course), and I'm not sure they even bother with jurors.

But what scares me most is that Jeremey is now a LAWYER (ack) and Lon carries a Glock. Tell them both hi for me!

--The East Asian Connection

Scott said...

I'm going to start pestering again....

Liz said...

An experience both informative and entertainingly told. *High five*

Will Poyntz said...

I guess in the US you don't have the law we have in the UK that prohibits jurors from discussing the case or the deliberations. I think that even applies after the verdict is given.

Career Advisers should start including Juror - should it be a trade or a profession?

ananymoyus said...


Indian Lawyer said...

Kudos for the nice description of your experience at the jury. I live in India where the jury system is totally unheard of and the whole case.. both questions of facts and questions of laws are decided by judges. The jury system has its own merits and demerits but I believe the merits relatively preponderate the demerits to a certain extent. I am a practising lawyer and this blog was interested me. Visit my blogs at and

squeak said...

a brilliant piece of writing. have you ever considered doing some freelance humour writing? There are places to have this kind of stuff published... I mean besides on a blog. And it amounts to more than $15 a day. Also, my Spanish ancestor washed up on the bonnie shores of Scotland too. So either we're cousins, or maybe our ancestors were best buds while they made their transition to the barren Scottish wilderness. However, my ancestors stayed in Scotland until a generation ago, so I'm not going to disparage the heritage or the beautiful turns of phrase of the Scots.

Akira said...

Great piece! I was just blogsurfing and stumbled across it. Reminded me of a Raymond Carver short.

Wyldth1ng said...

Were you guilty afterwards? Did you feel any remorse? Does it bother you that the defendant did not speak?

Anonymous said...

Fiar shout, well done to you.

GoddessAradia said...

Thought of writing a book lately? I'd bet it would sell. Great Story;oP

Anonymous said...

Good stuff! I especially enjoyed the "keep clear" bit.

I have to report for jury duty on Tuesday so this was strangely synchronous. Last time I was summoned, in 2000, they actually had me in the box for three days until the defendant's attorney dismissed me on voir dire.

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