Saturday, September 17, 2011

Oh yeah.... (a skeptic 'fesses up)

I never saw a gavel used,
but it seemed like the right image for this post.
I think I used to keep a blog...

Sorry it's been so long since I've posted anything here.  I'd give an excuse, but it would be lame.  We're all busy.

I guess my big news (it isn't, really, but it makes conversation) is that I served on a jury this week.  I spent Monday being interviewed, which means that you sit in a courtroom with a lot of other people responding to generic questions like, "Is anyone in your family a police officer?"  (Actually, the questions tend to sound more like this:  "Is anyone in your family a police officer?  Do you have any close friends who are police officers?  Have you ever met a police officer?  Do you know anyone who has ever met a police officer?  Do you know anyone who knows anyone who has ever met a police officer?"  And then after someone responds, "My sister's brother-in-law's cousin once had a date with someone who may have known a police officer," the judge asks, "And do you think this would impair your ability to render a fair and impartial verdict in this case, in which there will be testimony from a police officer?"  Your correct response is, "I couldn't possibly render a fair verdict.  She said it was an awful date.")  The people who are left after this winnowing process form the jury.  They are suckers like me who try to answer the judge's questions truthfully and who are very bad at guessing what answers will actually get people excused.

Take the beginning of the selection process.  The judge read a very clear statement about the legal reasons he could excuse a juror automatically.  Basically, they were 1) if you were in poor health, or 2) if your being on the jury would adversely affect the public welfare (in other words, if you're a firefighter, we want you out fighting fires, not cooped up in a trial for a couple of days).  Eight or ten people claimed that they should be excused for one of these reasons.  The judge asked each one to explain.  One lady said, in accented but otherwise good English, that she had trouble understanding English.  The judge asked her if she had understood everything he had said.  She replied that she had, but she was worried she might not understand someone else.  She was excused.  Another lady said she had to meet her son when he got off the school bus.  She was excused.  Someone else had to help his wife change her oxygen tank once a day.  He got excused.  Now I'm not saying that all of these things weren't important.  It was just that I didn't think any of them met the test that the judge had articulated.

It went on like that.  One by one, people were turned out of the room.  The last question was, "The defendant has chosen not to appear in court for this case.  Would this affect your ability to render a fair and impartial verdict?"  Four or five people said, emphatically, "yes," and off they went.  I missed my one best chance.  So of course, I was seated on the jury, along with one of my former students, which no one should have allowed.  (People whose prior relationships put them in unequal power positions shouldn't be in a situation where they have to come to a unanimous decision.  It's not fair to either of them, but it's especially not fair in this case to the student.)

The case involved a man who had been punched in the eye so badly (how many times wasn't clear) that his eye was swollen shut for several days.  During the incident, his phone was taken from him.  The person accused of doing this was charged with aggravated assault and aggravated robbery.  The claim was that a second guy held the victim down while our guy did the punching.  Then the second guy took the phone.  At least that was the story the prosecution presented.

It was a plausible story.  The trouble was, there were equally plausible stories.  We were first told that the victim had gone out with his girlfriend at 11:30 at night to buy cigarettes, were accosted by these two guys who first asked for a cigarette and then started taunting the victim about being older than his girlfriend.  Words were exchanged, blows were exchanged, the victim ended up on the ground beaten, and the guys who beat him up somehow got his phone.  Open and shut case. 

But not so fast.  It turns out that the victim and his girlfriend may not have left the house together.  She may have left because he had gotten angry with her (no one ever said about what), tried to hit her, and tried to lock her into her room.  She went outside and met up with these two guys in the street, who she later referred to as her "homies," although she later denied knowing them.  Out comes the boyfriend to try to find her.  He's mad.  He starts cussing out the guys because they're with his girlfriend, and as far as he's concerned they're flirting.  There's an exchange of unprintable words, and then he kicks one of the guys in the groin (which he demonstrated on the stand).  Evidently he does this several times.  The other guy tries to pull him off; the guy who he's been kicking punches him to get him to stop kicking.  It ends with the so-called victim down in the street.  His phone is gone.  This story seems just as likely as the first story, and things are now not so clear.

There's a further problem:  no one can tell this story (or any story) in a consistent manner.  Indeed, at some point, the victim gave some part of both those sets of facts.  Our poor victim, a 225-pound guy who I sure wouldn't tangle with and yet who clearly got the tar kicked out of him, couldn't remember statements he'd made only a few minutes before.  So we had exchanges like this for the better part of a morning:  "Mr. D, you said earlier that you and your girlfriend left the house together.  Is that correct?"  "No, it isn't." "You didn't leave together, or you didn't say it."  "I didn't say it." (But we'd just heard him say that very thing.)  "All right, Mr. D.  Did you leave the house together?"  "No."  "Mr. D, on February 10 of this year, you stated under oath that you and your girlfriend left the house together.  Do you remember testifying to that?"  "No, I don't."  "OK, Mr. D.  Take a look at the transcript that's in front of you.  Look at page 27, lines 5 - 9.  Read it to yourself.  Does that refresh your memory?"  (man reads)  "Well, I guess I said it, but that's not what happened."

It basically went on like that for about two hours.  The girlfriend also varied her story.  There were minor inconsistencies in the police accounts.  (One was positively out of Sherlock Holmes.  An officer testified that she had received a radio call from 911 telling her to look out for two males and a female.  We had heard the 911 call.  The caller--the only person who gave clear and consistent testimony--distinctly said that he could tell nothing about the people he thought were doing the beating.  He had been specifically asked about their genders and he replied, "All I could tell is that there were three people.  I couldn't tell their gender, age, or race."  He gave very average height estimates.  So how did the officer know to look for two men and a woman?  Probably because the officer who found the victim said that, and she conflated the 911 call with the second call from the other officer.  I quite enjoyed noticing that, even though it didn't materially affect anything about the case.)

The testimony took a day.  The next morning we heard closing arguments and got instructions from the judge.  By then it was lunchtime.  We chose a foreman, broke for lunch with everyone saying, "Well, this won't take long."  We came back after about an hour and took a vote:  we were split exactly down the middle, half of us thinking the accused was guilty and half thinking he was not.

What fascinates me about this is that everyone was convinced of their own point of view to such an extent that no other conclusion seemed possible to them.  I think all of us figured the first vote would be unanimous or nearly so, and I include myself in that.

Two hours of lively discussion followed.  Gradually, as we focused not on what we thought had happened or could have happened, but on whether or not the state had proven beyond a reasonable doubt that their version of events was the true one, it became clear to everyone that the state had failed.  There were just too many questions, and the case seemed to rest primarily on a witness who, for whatever reason, couldn't corroborate his own statements.  It was a very weak case, and it didn't hold up to scrutiny.  It seemed equally likely that the victim had picked a fight, that the two guys were defending themselves in some form, and that the victim got badly beaten because he kept fighting the other two.  No one, not even the prosecution, could clearly explain what had happened with the phone.  Had it fallen on the street and someone picked it up?  Was it taken from the victim's pocket?  Had the victim's girlfriend picked it up and handed it to one of the other guys--who, by the way, she walked off with, leaving her boyfriend bleeding in the middle of the street, a fact that still puzzles me.  We voted to acquit.

This was the outcome I expected, and yet I felt terrible when the process was over.  It wasn't fun trying to convince people that they were wrong and that they couldn't be so sure they knew what had happened.  It was even less fun to let the person who probably had done this go just because the state had failed to meet its burden.  It was also frustrating as a taxpayer to think of all the resources, including the time of all those jurors, that had gone into trying to prove so fragile a case.

The word "verdict" means "to say the truth."  I am not sure what the truth is or was in this case; it's probably different depending on who is telling it, which in itself is fascinating.  I doubt anyone consciously lied in that trial.  They may have embellished; they may have filled in blanks because they wanted to give a good answer to someone asking them a question--we all do that.  The problem in a court of law, though, is that you have to prove that your version is true beyond a reasonable doubt.  And it seems to me that if there's another equally plausible explanation that fits everything we know, then nothing's been proven.

I'm not sure what I learned here.  I had a glimpse into a world that I don't ordinarily encounter (I don't think I've ever seen a real-life photo of a beating victim).  I found that when people hear a story that is likely to be true, they will accept it as true, even if there isn't a lot of evidence to back it up.  I found that people had trouble separating two ideas: what happened?  what did the prosecution prove happened?  It's possible that it happened the way the prosecution said it did, but it's at least reasonable to suppose that it didn't.  The whole thing was sordid, and I'm glad it's over.  Next time somebody asks me how impartial I can be, I will say, "Not at all.  I'm a bigoted SOB, and I'll convict anything that breathes."

Or maybe not.  See, I can't decide:  would another jury have convicted that man?  Would that jury minus me have convicted that man?  Did I help to keep an innocent man out of jail, or did I let a bad guy walk the streets to hurt someone else another day?

My life is full of ambiguities.  But frankly, I'd rather be mulling whether I should go faster or slower in a passage in a piece of music than deal with anything like what I was trying to decide in that trial.  My kind of ambiguity is just a matter of taste and affect.  It doesn't affect people's lives.  I'll stick to my kind, thanks very much.  But I guess, if called on, I'll try again to listen carefully and decide if something's been proven or not.  Trouble is, I'm a hard sell.  Your case had better be ironclad, because my natural habitat is one of doubt--reasonable or not.  I'm a skeptic.  I've made a career of it, because that's what academics do.  So you probably don't want me on your jury if you're the prosecution, because I'm tough to convince.  Is there such a thing as an open and shut case?

I doubt it.


  1. Don wanted to post this, but had trouble, so he sent it in a private communication. I'm posting it here on his behalf:

    "Dave - my first experience on a jury was similar. We all thought the kid was probably guilty of breaking and entering, but, because the police had screwed up, the prosecutor couldn't prove it. The police had waited until the next day to arrest the kid, because they 'knew him' and 'knew' he was the one. Of course, he was in different clothes by then --- etc. etc.

    The second time, two guys got into a drunken brawl. They were both worth nothing, but were suing each other and the bar for damages. We had to decide percentage of fault so damages could be divided up. It was all so dumb that we finally decided the bar (which, of course, had insurance)was not liable at all and the two guys were equally at fault. So nobody got anything. But it was a battle in the jury room just the same.

    The most important lesson to be learned from jury duty is to stay out of trouble - because you don't want your life in the hands of lawyers, police or the general public!"

  2. Rereading this (it comes in my email, which I do to be sure everything's working as it should), I remembered another interesting detail. The prosecution had an aerial photograph of the crime scene. There was an arrow with an address next to it pointing to a building (implying that this was the address of the building). It was pointing to the wrong building.

    In this trial, jurors were permitted to submit questions in writing to the judge; he reviewed them with the attorneys and asked those that were allowable and to which there were no objections.

    So after two people testified to something that made me realize the arrow was either pointing to the wrong building or the witnesses were confused, I submitted a question, and confirmed that the photo was incorrectly labeled.

    So, Note to the State of Arizona: If you're going to present something as evidence, please make sure it's accurate, OK? KTHXBAI.

  3. This doesn't sound like to harsh a crime. I mean, it sucks that this guy got a black eye, but I've walked into a pole before (I know I know) and gotten a black eye. Swollen shut and everything. I'm sure it wasn't pretty. And he lost his phone. Which also sucks, but again, not exactly CSI material. I don't mean to belittle your experience, but I don't think you need to beat yourself up about letting a criminal go free (if that's actually what happened, and clearly, there's no way to know for sure) since he's no more dangerous than an absent-minded person and a pole. And there are lots of poles in the world.

  4. Elizabeth, I probably didn't express how badly injured the victim was. He was bloody, he had marks all over his face and the whole left side of his face was swollen. One person testified that he'd been hit 7 or 8 times, and that was credible. We agreed that had this been a civil case, we'd probably have awarded the guy damages, because he was pretty severely beaten.

    On the other hand, the phone that got stolen was a Cricket phone. I gather they're not exactly up there with iPhones or anything--one juror said, "Really? They stole a Cricket phone? I don't think these were terribly sophisticated thieves."