Daily Archives: September 18, 2022

The One with the Self-Incriminating Defendant

My wife successfully avoided being called during her week of jury service a few weeks back, which got me thinking about jury duty again.  I wrote a post previously about getting out of jury duty myself, an epic tale involving, among other things, Nazis, so figured I might as well return to that well.

As I noted in that post I had an extremely bad string of luck when it came to jury duty, with about a 20 year run of getting called in the minimum possible interval, which is once per year in Santa Clara County.  Admittedly I ended up not having to down to the court house at least half the time, but you’re still on the hook for a week and the system keeps you on the hook until the very last minute, usually 1pm on Friday afternoon of your week of service.

This tale involves one of the times I did have to go down town… because otherwise the story we be short and not very interesting… which happened a few years back.

I have been notified and drew a low number and ended up having to go down to the Santa Clara County Hall of Justice.  That isn’t too far away from Downtown Superior Court, where my other tale took place, and has the advantage of having a spacious parking garage across the street where you’re parking is validated for jury service.

The thing about the Hall of Justice, which I knew from past experience, is that is where criminal cases are handled.  No mesothelioma lawsuits to be found there.

No Justice League here either

This time around the jury pool I was in got called to a modest sized courtroom where the judge was already seated and everything was in place, the assistant DA in her chair at one table before the judge, the public defender and her client at another.

I must admit, this judge was one of the best ones I’ve every dealt with.  He was a retired judge called back to service to help get through the backlog on the calendar, and he had not time for useless formalities.  He was always seated and ready to go when we were brought into the courtroom, so there was none of the “all rise” and then waiting around while he got himself situated and made idle chat with the clerk and what not.  He was all business in a very good way.  Time was not wasted.

The judge explained a bit of the case to us, which involved a DUI.  I figured I was safe from having to serve.  I have been called for drunk driving cases before and once I bring up the fact that my parents car was hit by a drunk drive when I was a kid… my dad’s front teeth are a bridge to replace the ones knocked out at that time… I am usually high on the list to be excused.  Once I was the second person to be excused, coming after the guy who said drunk driving should earn violators the death penalty.

So I was keep to get in the jury box to get that out in the open so I could be on my way.  No use wasting everybody’s time.  So we filled out our questionnaires for the case, after which we were dismissed for the day, to return at 9am the next morning to begin jury selection.

The next morning we were back, ushered into the courtroom not too long after our 9am time… I’ve been told to show up at 9am and have sat around in the just room until 10:30am more than once… and the judge was once again seated and ready to go and soon there were a dozen people in the jury box.

I was not among them.  But it seemed like I could be up there soon.  The judge was not messing around.  He was asking some preliminary questions of his own and tossing people of his own accord before either lawyer had a crack at them.  English comprehension seemed to be his big thing, and the only slow up along the way was a young woman who lived in San Francisco, where she went to school, but whose driver’s license still had her parent’s address, so there was a question about whether or not she was liable to serve.

She was set aside for a moment as we arrived at a baseline set of jurors the lawyers could question.  They went through some prepared questions they each had prepared based on the questionnaires, and a juror here and there was tossed, but I still had not been called up.  Maybe I would just get a pass on the whole thing.

We broke for lunch, with the usual “return at 1:30pm” announcement.

On our return the judge was once again waiting for us.  He first excused the young woman who live in SF, having decided that she was not liable to serve.  Then the search went out for a missing juror, somebody who was in the box before lunch, who had failed to return.

The young man, another college student, showed up a while later and was admonished by the judge about timeliness.  Eventually though, he was tossed by one of the lawyers, and he was the last person they had not questioned already, which meant whoever got called next had an extremely high likelihood of being on the jury.

And that was when my name was called.

Keen to get through, the judge asked if I felt I could be fair and impartial and I said yes.  The two lawyers had no questions for me and two minutes after I sat down in the box the jury was empaneled.

I probably wasn’t a bad choice.  The public defender had let slide a former EMT who had worked on highway 80 and had witnessed the results of drunk drivers as well as a guy who said the police were always right, so somebody whose parents had been hit by a drunk driver probably seemed a reasonable choice.

The judge, still not wasting any time, wanted the DA’s office to commence with their case.  He gave us some instructions up front, including a very deliberate statement about the fact that the defendant need not take the stand, or even mount a defense, and that we should not count that against them if the state did not make its case against them.

And the state’s case was not very substantial.

It consisted of the officer who was involved with the incident.  A three year member of the force, he recounted his story, which involved pulling the defendant over, the car being full of beer cans, the defendant slurring his speech and refusing to blow into the breathalyzer, and generally being passively uncooperative with the whole process.

The public defender tried to pin racism on him, pointing out that he was white and of medium height, while the defendant was large, muscular, and Hispanic, but it didn’t really hit home.

And there wasn’t anything particularly objectionable about the officer’s story.  It could have gone down that way.  But there was nothing to corroborate it.  It did not, in my opinion, meet the burden of proof required by itself.  I was tipping to the “not guilty” side of the fence at that point.  A follow on witness was a sergeant who arrived after the testimony given and saw to the transport and booking of the defendant.  That filled out the timeline, but didn’t add much.

My position was not moved by the expert witness from the crime lab whose testimony was some speculation about how the defendant’s behavior might line up with a specific blood alcohol level, a position that seemed to me to be an attempt to run the sausage factory backwards in order to make pigs.

The public defender poked a few obvious holes in his testimony and let it go.  It was after 4pm at that point and that was the state’s case complete.  The judge let us go with the usual “be back at 9am” instruction.

At that point I was mostly worried that we were going to have to come back and fight over a verdict in the jury room because I was going to be on the “not guilty” side of things.  I didn’t think the state was lying, but the evidence felt very light.  And we had been told that the defendant need not testify or even mount a defense, which seemed like a winning position.  I was just hoping that I wouldn’t be the one versus eleven.

We showed up the next morning and I was expecting to get jury instructions and then head to the jury room.

But that was not to be.  No, it turned out a defense was to be mounted.  The defendant felt he needed to get up and speak about what happened on the stand.

Fine, sure, whatever.  Maybe he wanted to clear up some details or refute what the office had said.  It was his right.  Maybe he was worried some of us wouldn’t buy the whole thing about not needing to take the stand.  I don’t know.  But he got up there.

And he sank himself.

He did so on multiple levels too.

To start with, he told us a tale of the events of that day that were wholly unbelievable, with a nonsensical timeline that had him in and out of custody at various points on his journey.

However, he felt he needed to ground that tale in some facts, so he went ahead and gave the officer’s story about all the corroboration you could ask for.  We went from an officer spinning a tale that may or may not have be how things went down to the officer and the defendant agreeing on a series of facts that established guilt.

Finally, not content to insult the jury with nonsense while proving he’d done what he was accused of, he went on the look for mercy by telling us this would be his third DUI conviction and that he was going to be in real trouble because he had been out on bail on a domestic abuse charge when he was arrested for this.

No judge in the land would have let such prejudicial information about a defendant be presented to a jury by the prosecutor.  But if the defendant opens the door, well, we’re all welcome to see what is inside I guess.

The public defender looked pained at all of this, despite an attempt to keep a stoic look on her face throughout.  The prosecutor got up, looked at the jury for a moment, then asked a couple of questions for clarification, but otherwise tried to avoid distracting from the train wreck the defendant had just spent 35 minutes creating.

It was far enough along in the day that we broke for lunch early, but when we got back it seemed like we would be going straight to the jury room for a guilty verdict.

But nothing is ever that simple.

First we had to listen to the jury instructions.  We the jury had to sit there and listen the judge read out the prepared and agreed upon instructions for what seemed like hours, but which was probably less than 15 minutes… but it didn’t matter either way, because even trying to force myself to pay attention was failing as my brain search desperately for something, anything more interesting in the courtroom.  I don’t know how they manage it, but jury instructions are somehow unbearable to the average human.

Then we get walked over to the jury room, where we must go through the rituals.  First, we elect a foreperson.  I am never the foreperson.  I am the foreperson’s enforcer.  That is my role, and it comes into play immediately as the first thing that happens in every jury I’ve been on is that somebody says we don’t really have enough information and we need to ask some more questions.

Because nobody listens to the jury instructions.  I get to jump in here and point that we don’t get any more information about the case, that we have to make our decision solely based on what was presented to us.  We can ask the judge to clarify our instructions, but nobody is going to bring us more evidence.

That done, the foreperson tries to hold a vote, but that is stalled because we must listen to the people who must tell their story.  My experience shows that 1-3 people on the jury will need to solemnize the moment or something by telling a story about how this particular case somehow intersects with their life and personal experiences.

The best course here is to let them have their say, at least pretend to listen, and try not to ask what they just said had anything to do with what was going on.  Some people just need to be heard about something, anything (apparently), in that moment.  Their words heard, they will then reliably vote with the majority regardless of what they said.

We finally have a vote, which is just a “raise your hand if you think the defendant is guilty” level of effort.  Half of us raise our hands, followed by four more as they do the math.  That leaves two out.

One is former EMT who, it turns out, also needs to tell a story.  We listen.  Then he says he’ll vote guilty.

The other is the juror who sat next to me in the box.  He isn’t sure.  But I also know he is an engineer, so I get out the notepad and go through how the stories of the officers line up with the defendant’s story on critical points that confirm the prosecution’s case.  And he is with me, he sees it, he’s with me, but still not 100%.

And then another juror, who has been following my recounting of the trial pipes in with, “And did you see his mug shot?  He was wasted!”

It is true.  They showed the mugshot they took of him at booking.  He was sweaty and glassy eyed and had a huge, shit eating grin on his face, like he knew the punchline to the joke somebody else was telling.  Everybody in the room makes assenting noises, he was drunk in that picture.

That sold it.  The whole room voted guilty on the next vote.  We filled in the form, gave it to the bailiff, were led back into the courtroom, and confirmed that this was our verdict.  It was 3:30pm and we were all done for the day.

That is the way it goes.  If the defendant had avoided testifying, I might have gone full on 12 Angry Men… or maybe Fonzie on the jury, knowing which hand is required to us the throttle on motorcycles built in the UK.  I’d like to think I would have in any case.  But then the defendant got up there and changed my mind.