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I, The Jury, Part XI: In the Jury Room, Continued

As noted last week, we're going to run juror accounts on (most) days where there's Trump legal news. This will be the last set about experiences in the jury room; we'll move on to some broad syntheses next. By that, we mean that the next sets will appear under the headline "The System Doesn't Work," and then there will be sets that appear under the headline "The System Does Work."

M.S. in Canton, NY, writes: A few decades ago I was on a six-member jury for a "drunk driving" case in village court—pretty much the opposite of the Trump trial in federal court. On a very cold winter night, a man drove his truck to a bar, got good and drunk, called his wife to come pick him up, went out to his truck in the parking lot, started the engine (allegedly!; more on that in a moment), and passed out in the driver's seat. A passerby with no connection to the man, the bar, or anyone else involved, noticed him apparently unconscious in an idling truck and called the police, who arrived before the wife got there.

In New York (as I understand the law as it was explained to us), starting a vehicle while under the influence of alcohol with intent to drive is the same as driving while under the influence. The prosecutor presented convincing evidence of every factual point I've mentioned. But sitting there in the jury box, my thought was, "Considering that his wife was on the way, isn't it more likely that he started the truck to turn on the heater so he could keep warm while he waited? So no intent to drive anywhere?" (Yes, it would make more sense just to stay in the bar, but he was intoxicated.)

Incredibly, the defense did not offer that interpretation, which I think would have cemented "reasonable doubt" immediately. Instead, they claimed—contrary to the testimony of two police officers and the passerby witness that the truck's engine was running when they got there—that the defendant never turned on the engine. Their "evidence" was a claim that the truck had a defective transmission, such that it was physically incapable of idling in neutral. This seemed so absurd that I can only conclude that the defendant must actually have believed it.

After a very long deliberation, we eventually acquitted, since the question of intent was so muddled. But I'd say neither the prosecution nor the defense did themselves any favors by never addressing what was pretty obviously the only issue.

J.D. in Merced, CA, writes: A few years ago, I was on a jury where a man was charged with DUI in California. He admitted to using a small amount of cannabis wax that was prescribed (when medical marijuana was recently legalized). He passed all of the roadside tests, but was arrested anyway.

The point of my letter is this: The jury was a hodgepodge of ethnic and economic levels. Many would be considered "uneducated" because they had come as immigrants and had not attended college. I was selected foreman of the jury (as the oldest juror, I'm sure). The discussions and the comments were very coherent and thoughtful by ALL of the jurors. I was so impressed with the logic and reason of all of them. It made me proud of our legal system and proud of our citizenry. We voted "not guilty" within 30 minutes.

J.T. in Redondo Beach, CA, writes: Living in L.A. County, one gets called for jury service frequently, and I have served on six of them (which places me second in my own house, to my wife's seven). No fewer than three of them ended up without a verdict. So, I might have some different insights into the potential pitfalls awaiting the prosecutors in TFG's various cases. I'll offer a brief synopsis of each case and how the juries ended up deadlocked:

  1. Carjacking case, involving a perp and victim of differing ethnicities: The facts seemed pretty conclusive to me: The defendant was spotted driving victim's vehicle, and during the pursuit he threw a gun out of the car on the freeway off-ramp. The gun later was proved to have his prints on it. He took the stand and offered a fanciful account that didn't convince anyone. We got the case in the mid-afternoon, and by the end of the day all but one juror was ready to vote to convict. But... when we came in the next morning, it was 8 to 4. The four, let us say, shared the same ethnic background as the defendant, and none of them would budge, facts be damned. Suffice it to say, it got ugly in there. A classic case of "us against them."

  2. Sale of cocaine: This entire case came down to whether the undercover officers could correctly identify the seller in the dark, illuminated only by the car headlights he was placed in front of during the arrest. The prosecutors tried to show that officers working that beat are well-trained to identify people under less-than-ideal conditions, but they were only able to convince half of the jury.

  3. Domestic violence: After a wrenching process where at least a dozen potential jurors were dismissed for cause (there are a lot of people out there who have been impacted by violence at home), the judge granted the attorneys only an hour each for questioning those remaining. The prosecutor foreshadowed his case by homing in on just one question: "Do you think we should prosecute cases like this when the victim would prefer that we do not?" Unfortunately for his case, he spent almost all of his limited time on the 12 jurors who were originally in the box, speaking hardly at all to the others in the room—some of whom were sure to end up replacing original jurors who were excused.

    Other than the cops who worked the case, there were only two significant witnesses—a woman on a recording of a 911 call, saying that her husband had beaten her and was threatening worse, and the same woman sitting at the witness stand denying that any of it ever happened. She claimed that she must have been drinking at the time and made it all up. When we retired to deliberate, none of us believed that for a second... but there were two younger women on the panel who were convinced that it was better for everyone, including the woman herself, if the guy was not convicted, and there was no moving them off that position. Sure enough, both of those jurors were added to the 12 to replace those who had been thoroughly questioned about just that issue, and they had never been asked about it due to the lack of time (and the prosecutor's mismanagement of his allotment).

So, three very different cases, with two of them doomed from the start due to the mindsets jurors took into the courtroom when they were called rather than any facts of the case. Note that none of them was the stereotypical 11-to-1. As for the prospects of prosecuting TFG, I'd guess that the prosecutors can deal with people who always vote Republican since they aren't necessarily all that enamored of him and are probably willing to consider the evidence in front of them. But they will have to find a way to ferret out the people who are motivated by support of Trump specifically—they won't vote to convict, no matter what. I don't know what line of questioning which would be deemed in-bounds by a judge can enable them to identify and dismiss those jurors, but if they can't, there's no chance of a conviction.

D.R. in Harrisburg, PA, writes: I just thought I'd write a note after reading your posts regarding jurors who can be convinced to change their minds in a room of 12 people.

I was on a jury last year in a domestic violence case. A man was accused of hitting a woman with whom he had children. The children were there and he pulled up in a car, got into a verbal fight, and that turned into him hitting her. The woman got on the stand and said he didn't do it. The woman's mother got up on the stand and said he didn't do it. The two people were Black and I am white (which is relevant in my decision later, whether it's right or wrong).

I was in the minority of a 9-3 room saying he should be convicted, because I thought "If everyone says he didn't do it, how can we send a man to jail?" We sat in deliberations for about 6 hours and the vote had gotten to 10-2 with me still holding out. We had to break and come back the next day. Eventually there were two Black women on the jury who just looked at me and said they will go to their grave saying that man is guilty and stared (what felt like) straight into my soul. I just looked at them and thought, "These women seem like they know things I don't know," and I switched my vote along with the other person holding out.

I got nominated to read the verdict (probably because they thought I deserved it) and it was one of the worst experiences of my life. I hated it so much. But, in hindsight, I think it was the right call. The woman seemed afraid of the man, the mother did too. They "could not recall" a lot of details that you would definitely be able to remember.

My point is, you can walk into a jury room thinking one thing (I didn't expect to be in the minority) and come out with a different opinion.

E.W. in Skaneateles, NY, writes: About ten years ago, I served on a jury in a criminal OUI case (Massachusetts' name for drunk driving). Voir dire was very basic—people were just asked whether they had a family member or a friend who was a police officer or who knew someone involved in a drunk driving accident. I think a lot of people lied and said they had a conflict or couldn't be impartial just to get out of jury duty, but I was picked for the jury even though I have a Ph.D. in biological psychology and my parents are both lawyers. (They didn't even ask). I think that there will be a real issue in Trump's trial with jurors trying to get out of serving by simply saying that they cannot be impartial. I am not sure how the lawyers are going to handle that because in many cases, it will be true.

The basic facts of the case, best as I can recall them, were as follows: The defendant ran his pickup truck into a utility pole around 5:30 pm in sunny weather on an autumn weekday. A police officer arrived to find the defendant staggering around outside his totaled pickup, slurring his words, and smelling strongly of alcohol. The officer performed two-thirds of the standard OUI test (left out the last part about saying the alphabet), but the man bombed the first two parts and refused a Breathalyzer. I cannot recall anything about a blood test. The defendant was put in the back of the police cruiser, which still smelled strongly of alcohol hours later. The cast of characters was interesting. The defense attorney had a flashy suit and slicked-back hair and looked like he could have come straight from one of those cheesy OUI attorney ads, whereas the prosecutor was a young, slightly overweight nervous-looking blond woman, who nonetheless did well as the trial proceeded. The arresting officer was also young and clearly less experienced, but he was convincing in court.

The defense called two witnesses (an audiologist and a hearing aid specialist) because their entire defense rested on the fact that the defendant was partially hearing-impaired. The defense claimed that the defendant was staggering and slurring because of an inner ear issue aggravated by the collision and that he wasn't following directions or speaking well because of his impairment. They refused to say whether he was wearing his hearing aid during the incident, and the defendant never said a word in court. We were told not to hold this against him, but people on the jury definitely did. Also, although the defendant clearly tried to clean up and look innocent, he looked, rightly or wrongly, like a stereotypical Hell's Angel (big, burly, long unruly hair, and many tattoos), which people also held against him. A twenty-something man on the jury said something I will never forget: "He's clearly guilty, just look at him!" then immediately followed that up with "but let's just let him off anyway." Clearly, people in a Trump trial will be hard-pressed to avoid stereotypes and letting their preconceived notions get in the way.

During deliberations, certain people (myself included) took more active roles in the conversation whereas others stayed more quiet and went along with the group, including the aforementioned twenty-something guy (other than that comment). One very vocal woman just couldn't get over the fact that he just ran his pickup into a pole. Others were more sympathetic, but in the end, we convicted him. Where reasonable doubt failed for me was the defense's explanation for the strong smell of alcohol; they claimed it was caused by the powder that gets released by the airbag going off. I've never been in a car where an airbag has gone off, but that just didn't pass the smell test (pun intended). I just kept thinking and saying to the other jurors, what if it had been a small child he had hit rather than a pole? Should we let this man use his hearing impairment to potentially get away with drunk driving? In the end, I felt good about the experience, and I am glad that I got a chance to serve. It was fascinating to be involved with a real-life jury trial, and it is very different from how it is portrayed on TV. I cannot even imagine what it would be like to serve on a jury in the trial of a former president!

We certainly hope these are interesting and instructive, especially if we take care not to overload any particular week. We'll have more the next time there is major Trump legal news which, at the current rate, probably means "tomorrow." (Z)

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