Jury Duty — A Farce in Two Acts
1. "Shut up", he explained. (link)
From: firstname.lastname@example.org (Rick Moen)
Subject: Re: Ethics, again (was Re: TAN: Mormons)
Organization: If you lived here, you'd be $HOME already
email@example.com (Flavio J. Carrillo) wrote:
> What if you've grown in a society with deeply different moral
> perceptions than our own? Do you follow those?
> This isn't an idle question; I just finished reading Hitler's Willing
> Executioners. A deeply disturbing book.
> It is these sorts of things that lead me to the conclusion that we
> must have some definition of right and wrong — of good or evil —
> wholly independent of society, because society doesn't always provide
> the right result. Society can be evil. Even our own. There may be
> less injustice in the United States than in other places, but injustice
> does exist.
Funny you should bring up these points. These very things (and ethics in a legal environment) have been much on my mind for two weeks — having been called up for jury duty with the San Francisco City & County Superior Court. It's been a very odd experience.
Last week, I was almost empaneled on a jury for a man accused of six nasty felonies, including forced intercourse, forced oral copulation, attempted forced anal intercourse with intent to commit great bodily harm, etc. It seemed from the questions asked during voir dire that both the accused and the accuser were high on crack, at the time. The claimed victim was a homeless woman. Very likely, the claimed perpetrator had been invited into a room by her, and very likely there were no other witnesses. It was mentioned that the accused had two prior felony convictions. The assistant D.A. was a well-dressed, go-getter young white woman, the public defender was a burned-out looking, pot-bellied, middle-aged white guy with a beatnik-manqué beard, the judge was a wise-cracking Jewish guy, and the defendant was a powerfully-built, 6 1/2' black man with a shaved head.
That's just to set the scene: I swear that everyone was out of Central Casting (your generic big-city criminal trial scene) — except it wasn't amusing in the least, just surreal.
Now, I absolutely would not have flinched from throwing the fellow into the Big House for a long time, if the burden of proof were met. I wasn't in any way trying to get off the jury or excused from service (having told whiners that, if they didn't like it, they could emigrate). Yet, I got thrown off for simply admitting to Judge Richard A. Kramer that — with great respect for the rule of law — I nonetheless had a functioning conscience.
Here's how it went: Kramer told all prospective jurors that they should listen carefully to all questions asked during voir dire, and let him know if any "yes" answers applied to them, if they were selected as candidates.
Having started with about 70 people in the jury pool, the judge and both counsels excused people at a considerable clip over two days. On the second, with only about 10 people left in the pool, I got my turn on the hot seat.
Kramer asked for a show of hands on any of the main questions. I raised mine when he got to "Might any of you have any problem applying without question the interpretation of law I give to the jury?" He asked me for the particulars, and I asked "May I discuss it in chambers?", to avoid any chance of prejudicing other jurors. (As this was a rape case, many jurors had been having private sessions with him in the back.) Eventually, I was called back, looking very honestly nervous and unhappy to be there. Kramer was there with the court reporter and both attorneys.
"So, Mr. Moen, how're you doing?"
<small voice> "OK."
(At this point, I'm thinking: Rule #1: Don't piss off the judge. Rule #2: Stay concise and on-point. Don't waste the man's time. Contempt citations can arrive with no warning.)
"Tell us what you have in mind."
"Your instructions include our disregarding all matters of law and of penalties. You said these are not our responsibility. I recognise that this is what the law states. However, there are circumstances in which I cannot comply: In the extremely unlikely event that applying your explanation of the law led me to an end-result clearly against my conscience, I would have to vote my conscience."
"You think this might come up?"
"No, but I was raised to always act based on the full likely consequences of my actions. In very rare cases where my conscience would be at stake, I could not duck responsibility."
(I was thinking of the Stanley Milgram experiments: People almost invariably will do plainly immoral things if an authority figure tells them they must do so and are not responsible for results. I didn't raise the topic for numerous reasons, including risk of giving offence.)
"I haven't discussed possible sentencing, and I'm not going to."
"Ah, well, I'm a computer networking consultant, and researched on-line the law and possible penalties, as well as I could."
"Did you do this after I told you [plural] not to?"
(Technically, he hadn't, arguably: He'd said we "weren't to investigate the case on our own." He didn't say we might not try to understand the law on sexual assault. In any event, I did my research before he said that.)
"Did you get into the California Penal Code?"
<looking intrigued and amused by this odd creature
"Did you understand the Determinate Sentencing Law?"
"Well, I'm not a lawyer, but I did what I could to interpret it correctly in the limited amount of time I had."
"That's a relief. If you'd said yes, I might have had to hire you." <laughter>
"Given that you're not a legal scholar, how would you second-guess the possible sentencing and application of the law?"
"As best I can, sir." <long pause>
"There were two other things — briefly: Prosecuting counsel asked us if, in the event it came down to one person's word against another, with nothing to choose between, could we reach a verdict? Defence had objected that there are always surrounding circumstances, but you allowed the question. In that hypothetical case, I don't see how anyone could convict, given the presumption of innocence and need for proof beyond a reasonable doubt. Second, prosecution had asked if we could fairly consider testimony by both parties if both were intoxicated with illegal drugs: I'm not sure if either party could arrive at rational choices, let alone recount valid testimony in court. I'm not sure how that problem can be resolved."
<to counsel:> "Either of you have any questions?" <Both say no.> "Thank you, Mr. Moen." <who departs Siege Perilous with all possible speed.>
So, those were my two minutes in Judge Kramer's chambers. He excused me and three other jurors, as soon as court reconvened: Apparently, we all were considered sufficiently far-gone nutcases that neither counsel was obliged to expend peremptory challenges on us.
This question keeps going through my mind: If you're unwilling to be "a good soldier" in all possible circumstances, are you, then, not allowed to serve on juries?
Is it possible to honestly answer the judge's questions, admit that you're not an automaton button-pusher, and yet avoid getting excused as a probable loose cannon?
As I said, my aim wasn't to convey any inclination towards vigilante jurisprudence, nor to express disrespect for the law, nor to avoid jury service. In fact, I'm up for possible election again through Friday. I'd just hate to get continually bounced out into the corridor every time I admit to assigning ultimate personal responsibility for my actions to myself.
Any words of wisdom? Should I have just shut up about my personal ethics?
 Well, no. Long after writing the above Usenet post, I read in an Andrew Sullivan column that Kramer is a Catholic Republican, originally from Brookline, Massachussetts, and appointed by Gov. Pete Wilson.
 Kramer's sense of humour is heavy on the wry. I hear that California judges widely detest the aforementioned law, with reason: It's a mess, and makes their jobs needlessly difficult.
-- Cheers, The Technical Support Credo: Rick Moen Remember, there _are_ no stupid questions, firstname.lastname@example.org only stupid people asking questions.
2. Kramer's Courtroom Massacree, Revisited. (link)
Flash forward to July 26, 2007, when, ten years older and not a lot smarter, I was called up again, this time by San Mateo County Superior Court. After sitting in the deepest, darkest corner of the Hall of Justice building re-reading Thucydides for four hours, I trudged with 68 other potential jurors upstairs to room 8A, going into Hon. Barbara J. Mallach's small Dept. 22 courtroom, where a Hispanic defendant (with translator) sat flanked by two — count them two — bailiffs, a court clerk, and a court reporter.
Judge Mallach explained that this was a pending criminal trial for homicide — but not a death penalty case: "People v. Pedro Joaquin Olivas". Trial is expected to last five weeks, and will begin next week. She explained to us the concept of "hardship excuses" one can cite in a petition to get excused. About half stayed to try their luck. The rest of us, lacking legitimate reasons to evade service and recognising a duty to serve when called, trooped over to room 8B, next door, to grapple with The Questionnaire.
Some explanatory text at the top of The Questionnaire provided further, quite depressing, details: Defendant Olivas was charged with killing his 17-month-old son, Fernando Equivel, on April 9, 2004, in Daly City — the child's death being a suspected case of "Shaken Baby Syndrome", in which someone kills an infant via induced neurological damage; an attempt to kill without leaving visible marks. Proximate cause of death, then, is either trauma, subdural hematoma, oxygen shortage, or a variety of similar horrors. Equally depressing, sometimes the assailant stops just shy of murder, leaving the child with permanent brain (and sometimes retinal) damage.
For the remainder of this story, imagine me doing this in talking-blues fashion, Arlo Guthrie style:
...I finally came to see the questionnaire: I walked in..., walked in, sat down after a whole big thing, there — and I walked up, and they said, "Kid, we got a few questions. Have you ever previously been called for jury service?" And I proceeded to tell him the ten-year-old story of Kramer's Courtroom Massacree, with full orchestration and five-part harmony and stuff like that, and all the phenome... — and they stopped me right there and said, "Kid, do you know any attorneys?" So, I told him the story of growing up chatting about the law with lawyers Ashe Wilson and Dani Renan, time spent studying the family lawsuit against Boeing as a teenager, followed by taking quite a few law classes in college....
And they stopped me right there and said "Kid, have there been any recent deaths among your family and friends?" So, I told him how my family's closest friend in Ketchum, Idaho shot himself to death at Christmas 2006, my stepfather's eventually fatal injuries from caretaker neglect at a nursing home, and my second cousin Daniel getting accidentally run over and killed by his father. They stopped me right there and said "Kid, are there any physicians in your family?" So I told them about my cousin Dr. Lynne Niemayer's pediatric practice..., and they stopped me right there, and said "Kid, has anyone in your family ever served a sentence for any crime, including juvenile probation?" So, I told them the story about my nephew being on probation for juvenile offences, attempting to flee to New York State, getting caught and shipped back via the national prison transportation system, and serving a couple of weeks in jail.
And they stopped me right there and said "Kid, have you ever been a member of, or donated money to, any organisation for prisoner rights such as the ACLU, Human Rights Watch, Prison Activist Resource Center, and so on?" So, I told them about having been an ACLU member most years since joining on my 18th birthday, and sending them donations, and they stopped me right there and said "Kid, what periodicals do you read regularly?" So, I told them about reading The Economist, the Wall Street Journal, The Nation, Al Jazeera English Edition, MEMRI.org's publications, eXile.ru, the Palo Alto Daily News, San Jose Mercury News, and the Princeton Alumni Weekly. And they stopped me right there and said "Kid, what are your favourite television programmes?" So, I told them about Doctor Who, Torchwood, Frontline, The Daily Show, Colbert Report, Onion News Network, La Femme Nikita, Blake's 7, and The Prisoner....
...Which probably made their little heads explode, because they stopped me right there and said, "Kid, we want you to go and sit down on that bench that says Group P (for Peremptory Challenge). Now, kid!"
And I, I walked over to the, to the bench there, and there is..., Group P's where they put you if you may not be oblivious and ignorant enough to be in the nation's jury system, after committing your special indiscretion. And there was all kinds of mean, nasty, ugly-looking people on the bench there. Newspaper readers. Election volunteers. Election volunteers sitting right there on the bench next to me! And they was mean, and nasty, and ugly, and horrible crime-type guys sitting on the bench next to me. And the meanest, ugliest, nastiest one, the meanest election volunteer of them all, was coming over to me, and he was mean 'n' ugly 'n' nasty 'n' horrible and all kind of things, and he sat down next to me and said, "Kid, whad'ya get?" I said, "I didn't get nothing, I had to sit for five hours and got thrown off the jury for being a freak." And they all moved away from me on the bench there, and the hairy eyeball, and all kinds of mean nasty things, 'til I said, "...And creating a nuisance." And they all came back, shook my hand, and we had a great time on the bench, talking about reading newspapers, being polling place volunteers, and all kinds of groovy things that we was talking about on the bench.
In all fairness, I just wasn't on the jury eventually selected. All the procedures I observed seemed quite proper. If asked about my questionnaire answers, I'd planned to admit possible bias through being unusually hard on negligence — seeing that negligence killed my father, stepfather, an uncle, and a cousin. I think I'd have been a fair juror, but isn't it always "my common sense, your bias"?
I do very much hope Mr. Olivas gets a fair trial.
Update: Following ten days in court, Olivas was found guilty on both felony charges (second degree murder, assault resulting in death of a child under age 8). The jury deliberated for one day, only. Two months after that, Judge Mallach pronounced sentence: 25-to-life, on the basis of the latter and more serious crime — upheld on appeal. Very sad, but just.