Tag Archives: Jury Duty

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.

The One With the Lawyer from BASF

A few years back I had been called for jury duty.  Again.

There was about a 20 year run where I received a jury summons almost annually.  I was starting to wonder what the legal system did without me.

It wasn’t all that bad.  You’re on the hook, but about half the time you draw a high enough number in the pool that you don’t get called in, though they do make you wait until Friday after 5pm of your week to thank you for your service and tell you that you’re free for another 12 months.

But this time I had to show up, and it didn’t look good.  As usual, they make us show up at 9am and then left us sitting around in the jury room until one of the courts needs another panel of jurors.  This time they needed a lot of jurors for one trial as they scooped up everybody in the big waiting room at Downtown Superior Court over on 1st Street and marched us out of the building we had grouped up in and over to the old courthouse building next door, and into the biggest courtroom I have ever sat in.  This was a bigger than any set I ever saw on Law & Order and there were a couple hundred potential jurors settling into the seating.

The grim modernist building where jurors report, next to the old courthouse

Once we were all settled and waited a good bit, because being on a jury is mostly about waiting, the judge made an appearance.  We all rose as the bailiff shouted, then sat after the judge sat and bade us to be seated.

I was once on a jury with a judge who was always already seated at the bench when the jury was allowed to enter the court, thus dispensing with the whole “all rise” routine, but he was an exceptional and insightful retiree, brought back in to help with the backlog of cases, and didn’t have time for any of that sort of thing.

Most judges though, they like to make you stand up to remind you who is running the show, or so it seems.

Once we were all seated and quiet, the judge began telling us about the case.  It was a civil case, a mesothelioma lawsuit, and the judge said he expected it to last six months or more.

I had been on a civil case previously that ran two months, and it isn’t as bad as you think.  You are not there every day, Monday through Friday, for the whole time.  You almost never have to show up on Friday, which is when the court conducts other business.  (The local paper once reported that said “other business” seemed to take place on local golf courses, but that still means you don’t have to go downtown.)

Then there are days when the lawyers are arguing over motions and days when the court has other cases to which to attend, so I ended up sitting and listening to witnesses for two or three days a week tops.  It isn’t until the decision goes to the jury that you’re stuck in there every day until you can render a verdict.

That was manageable for a couple months, and all the more so since the office I worked in at the time was 10 minutes from the courthouse, but six months or more of being on call, that was going to be painful.  I wanted no part of that.

The judge explained a bit more about the case, the multitude of defendants being sued, the lawyers for whom were all shoved shoulder to shoulder at two tables put together to form an L on one side of the well before the judge, and how the plaintiff was not present, would likely never be present, and might not live long enough to see the end of these proceedings.

Then, as seems to be the norm in our jurisdiction, the clerk of the court started passing around a questionnaire that we needed to fill out, after which we would be free until 9am the next morning, when we would all be expected to be waiting in the jury room once more.

I don’t recall much from the questionnaire save for a few questions about whether or not you thought that being a three pack a day smoker might make you more susceptible to contracting the disease in question.  The plaintiff, in his job, apparently had to wear disposable protective gloves that were packaged in talc which contained asbestos, and so he was suing anybody and everybody related to his work, safety regulations, and the production and distribution of the gloves in question, and even a clod like me could foresee much conflicting expert testimony coming with the case.

I filled out the form, handed it in, and went on my way, showing up the next day to sit around in the jury waiting room once more.  As noted, jury duty involves a lot of waiting, so it helps to bring a book.

When we were finally paraded back to the big courtroom, we all found seats and settled in, hoping our number would not get called.

There was a bit of court business to be done before us.  Several of the defendants whom, through various agreements were indemnified against legal action in this case, were allowed to go, which meant their counsel could leave, making more room at the big “L” shaped table so that the remaining lawyers were no longer packed cheek by jowl.

Then it was time to call names.

Having been down this road before, the best outcome, if you do not want to serve, is to not get called at all.  They just need a dozen jurors and a few alternates… six in this case… so the odds of that in a room with a couple hundred people seemed pretty good.

But if you’re going to get called up to the jury box, you want to get called early.  The first dozen in the box face the most rigorous questioning and, as such, are also the most likely to be excused.

As the questioning goes on and replacements get called, the intensity of the question begins to slacken in my experience.  The lawyers get tired of their routine and start taking shortcuts or the judge starts hurrying them along.  Rather than asking you direct questions, they will start asking if you have anything to add or say based on the questions you were supposed to be listening to while sitting out in the gallery.

You can get “yadda yadda yadda’d” on to a panel if you’re not careful, unless you’ve put something egregious on your questionnaire.  I ended up on a jury that way once, the last one to be called into the box, when everybody was tired and, after a very perfunctory back and forth, both sides announced they were satisfied with all the jurors and were ready to proceed.  You do not want to be late to the party.

The clerk of the court stood up to call out the name of the first potential juror… and it was me.  I was now juror number one.

I stood up and made the long walk from the back row of the gallery where I had been slouching, into the well, and then up to the indicated seat in the jury box.  I was going to be the first person to face questions.  I was going to get the most scrutiny.

So I sat there as the clerk slowly called the remaining names to fill out all dozen and a half seats for jurors and alternates.

And then it was time for lunch.  We had been there since 9am as instructed and now it was 11:30am and we were all told to be back in the jury room by 1pm.  This is how it works on the jury.  You are there all day, but if you’re in the actual courtroom doing something other than waiting for more than a few hours it has been a very productive day.

We got called back from the jury room at about 1:30pm and were herded into place in the courtroom to sit and wait for a for a while. Again, waiting should be on the job description.  I chatted a bit with the person next to me, who was a nuclear physicist and worked on reactor design.  Neither he nor I want to hang out there for six months or more.

On the other side of him was juror number three who asked whether or not we’re getting paid by our companies while we’re on jury duty.  We both confirm that were getting paid, which he thought was a sweet deal.  He was not getting paid to be there and wouldn’t have minded getting paid to hang out downtown rather than at the auto parts store where he worked.

We had to explain that we would be working late and on weekends because our jobs don’t stop when we’re not there.  I’m not sure that sank in, but the judge showed up and we all had to stand, sit, and get to business.

As juror number one the first questions were for me and me came from the lawyer representing BASF which acquired the mine, and the liability that went with it, from which the allegedly asbestos laced talc was procured.  He asked about my profession and a few other things on my questionnaire before asking me if I knew anything about BASF.

I started off with the fact that they were German company that made cassette tapes when I was a younger.  He interrupted me to point out that while the parent company was indeed German, the portion of the company he represented was based in the US, paid taxes here, and employed American workers, a series of statements directed at the mass of potential jurors in an unnecessarily loud voice, which earned a bit of a smirk from the judge.  The lawyer wanted to make sure I wasn’t going to implicate BASF as a bunch of foreigners whom we shouldn’t worry about fleecing.

That interruption gave me a moment to ponder my next statement, which was probably a good thing, because I had been planning to move from cassette tapes straight to the production of Zyklon B for the Nazis during WWII, something that popped into my head when I learned that BASF was on the defendants list.  That seemed amusing enough when I was sitting at lunch pondering what to say during questioning.

Now, however, in a courtroom full of people, with the lawyer now waiting for me to go on, and the judge, who had been humorless and stern up until then, giving me a look that was somehow both angry and bored, I wondered if that statement might not be the best plan.  Going straight to “you helped gas the Jews” seemed like it might taint all potential jurors in the room… I mean the lawyer had to stand up and protest my naming BASF as a German company… and possibly incur the wrath of the judge.  I wasn’t sure I would get in trouble for that, but it felt like a possibility.   And I am not, generally speaking, a provocative or demonstrative public speaker.

So in that few seconds of pause, I change my plan.  My follow up after the interruption about how BASF was so very American in this situation, was to say, “Oh, and BASF was part of IG Farben during the war.”

To most people that might have been nothing more than an innocuous observation.  IG Farben isn’t exactly a household name, certainly not in the US.  It was a conglomeration of German companies, including BASF, who profited greatly from cooperation with the Nazi state and eagerly supplied it to help with the final solution.  There was a special trial at Nuremburg dedicated to defendants that were part of IG Farben, one of the so-called subsequent trials that took place after the remaining leaders of Nazi Germany were tried.

I wasn’t even sure if this was going to hit the mark, if this “We’re all Americans here” lawyer for BASF was going to know what I was referring to.  I have long known that odd bits of trivia that float around in my head are often not general knowledge.  I thought I might have to mention gas chambers or Auschwitz in order to make my point, that otherwise I might simply face another deflection about this not having anything to do with Germans or Germany.

But my statement did not elicit the same patriotic response as before.  Instead, it got me a quiet, poker face look put in place to cover for some thought process taking place.  Somebody apparently knew about their client’s history.

After a moment the BASF lawyer bent over and whispered back and forth with his partner, who then spoke with other lawyers at the big “L” shaped table.  Then there was a request to speak to the judge, a short discussion, after which the judge announced that I, juror number one, was excused, thanking me for my brief service.

As I stood up to go, facing away from the judge, I gave the nuclear physicist a little fist bump on the shoulder and I could see the envy on his face, but he gave me a quick smile as I passed between him and the judge.  I could see the envy on the face of everybody in the jury box as I squeezed past, I could see it on the faces looking up at me as I walked down the aisle, some clearly trying to piece together whatever magic incantation I had uttered that got me off the hook.  It was like I had found the Wonka golden ticket or something.

The court then went through the motions of picking somebody to fill my spot as I exited the room.  The BASF lawyer did not even begin to address juror number two until long after I had passed through the doors, though I kind of wanted to stay and see what he would do.  Juror number two was a smart guy, I hope he picked up on what I said and found a way to make it and angle for his own exit.  The auto parts guy was on his own.

I went back to work and told my boss I would be at my desk as usual, that I had been let go from jury duty.

But I watched that case as well as I could on the superior court web site.  It carried on for almost ten months, though from what I could divine, a lot of it was motions.  I am not sure the jury spent as much time in court as they might have, but I was glad to not have had to be a part of it all the same.

I started writing this post a couple years back, and it has sat in my drafts folder for a while.  Then I told the tale during a group outing to Potshot and Ula, who found it mildly am using, so I figured I would tie it up and post it.  Another of my “Not about video games” posts.