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Warning: I have deliberately left out anything that could identify any person by name because this description may be or become public, and I don't want anyone who was not there to be sure of the identity of anyone in this description. In some cases, I may not want some people who were there to be sure, either. If you are not reading this in a public place such as a publicly-accessible web site, do not post it on one.
First please observe the warning above.
People are curious about my recent jury experience. I served on a jury about 20 years ago and have been called a couple of times since then but not empaneled. When I called in last Wednesday, March 24, 2005, and the recording said I did not have to come in in the morning but should call before noon to find out whether to report in the afternoon, I did not expect to be needed, so I drove to work in Sunnyvale Thursday morning. At 1:30 P.M. I found myself and 40 or 50 other people sitting in the jury assembly room in Oakland, a room I had been in several times before.
Only two people seemed to know each other, a middle-aged woman and a young blind man who conversed with each other quite a bit. He seemed just like any other young man except for the white cane, the unseeing left eye, and the right side of his face, which looked from a distance as if a flesh-colored covering had been glued there, leaving it somewhat featureless. I imagine he had been in an accident long ago.
The clerk made a few remarks and ran a short video that explained the many stages of a trial and featured a few former jurors who talked about how much fun their experience was. Nobody mentioned the part that may not be fun: I had not enjoyed being personally responsible for putting someone in jail, no matter how much he deserved it. At my first trial, the defendant was guilty far beyond any reasonable doubt. There was no doubt at all. The crime was a small theft, the sentence was sure to be small--a year in jail, I found out a few months later when I ran across his attorney at a softball game--but I did not sleep well for three nights after the trial.
Soon we were all sent to a courtroom. It's a little surreal to walk into a room and find three well-dressed adults on the other side of the low partition, all standing, motionless, facing you, studying you silently. I never caught them making eye contact with me and wonder whether they avoided making eye contact with everybody. As we filed in to the audience area, we also saw three or four other people on the other side of the little partition. Perhaps the judge was not there yet. The bailiff, a black woman, was seated off to the right, just on the other side of the partition, watching us, but the striking image was the three people, all dressed neatly, even sharply, standing and facing us by their chairs on our side of tables near the partition, silently studying us: near the table on the left, a large black man; and on the right, a petite white woman with short brown hair and a slim black man, both wearing glasses and making me think of graduate students. All three seemed to be somewhere around 30 or 35. I assumed that the man on the left was the prosecutor, since he was alone, and that the woman was the defense attorney, since the slim black man was wearing a black leather jacket which, although in excellent condition, seemed informal for an attorney. Also, the prosecutor had been on the left at my first trial, and the defendant on the far right. Finally, I have the impression that defendants in Oakland are far more often black males than white females.
The woman looked young, and I wondered how much legal experience she had. At my first trial, both attorneys had been young women, one of whom made some slip-ups that suggested inexperience. The slim man could be anybody: the face of a dangerous man you see on the news, or an ordinary person like any of my black relatives and friends, mistakenly or maliciously caught up in a miscarriage of justice. It ran through my mind that most criminal defendants are guilty but this could be the one in ten or 20 that isn't. All of those speculations are just the way people react to new people, and I knew from my first trial that I would be able to ignore them and focus only on the relevant parts of the case.
On the far side of an empty space sat the court reporter at her little court-reporter machine, and in the back, next to the judge, sat the clerk. Both were youngish black women. The judge, who probably came in after we were all settled, was an Asian woman of middle age and seemed far away. Did I see a streak of gray in her hair?
At some point it occurred to me that--not surprising for Oakland--not one of the seven participants was a white man. It also occurred to me that the three people studying us were probably not just looking to see whether they knew any of us, or as a sign of respect, but also to glean any hint of what kind of jurors we might make. In all official aspects of a trial, the rules are clear about what is to be considered, but I suspect that below the surface, everything can be an influence.
One of us was a young man with a hearing problem. He had a small implant behind his ear with a wire running from it down inside his clothes. The judge invited him to sit in the front of the jury box, near her.
The judge seemed friendly and casual yet businesslike, explaining to us what was going to happen. The allegations were that the defendant had been driving under the influence of alcohol, and that he had refused to take a chemical test. The events took place over a year ago. The witnesses might include several California Highway Patrol officers and some experts. I found myself wondering what kind of defense a person might make for refusing the test; it certainly makes you look bad.
The judge advised us not to be late the next day or she could issue a warrant for us to be brought in, and to ignore the lawyers and defendant if we encountered them outside the courtroom. They had been advised to ignore us, too. We were not even to say Thank you if one of them held a door for us. She emphasized that everyone understood that it was not to be interpreted as being rude. If anyone broke the rules she would have to hold a hearing to decide how to proceed.
Cell phones were to be turned off in the courtroom. If one rang, the bailiff would hold it until the next break. That happened twice.
The lawyers introduced themselves. The prosecutor's voice, friendly, soft, and not deep, was not what I expected to hear from such an imposing physical presence.
We all got a sheet with 15 general questions on one side--name, city, occupation, family, any relatives or close friends who are lawyers or in law enforcement, have you ever been the victim of a crime, anyone close to you ever been charged with anything more serious than a traffic infraction, stuff like that; and ten questions related to driving, or to drinking, on the back.
The bailiff handed out the sheets while the judge was explaining reasonable doubt. Passing the sheets was a distraction, and I noticed the defender glance our way. I wondered whether she would ask the judge to pause, but she didn't. I remember thinking that maybe she would bring it up if she appealed. But the judge would surely go over it again later.
About eight people stayed behind to request to be excused for hardship, or to be deferred, while the rest of us took a break in the hall. The judge warned us that this case was likely to last only a few days, and that if you are deferred you might end up in a longer trial. I think about four people got excused or deferred. Every time we left the room, the judge reminded us not to talk about the case with each other or anyone else, and not to form an opinion until it was time to deliberate.
One friendly older Asian man seemed to single me out as approachable for some reason--people seem to do that, perhaps because I make eye contact--and asked me in moderately good English whether we had to come back the next day. I said we did unless we were excused today. During the course of the afternoon he asked me similar questions one or two more times.
The judge had time to question six people before we broke for the day. She questioned the next six the following morning, Friday. I noticed the Asian man had somehow been excused, perhaps because of his comprehension problems. One person was late and the judge scolded her when she arrived after 20 minutes. The attorneys had agreed to proceed without her, and now they agreed to include her.
One young woman's grandmother had been killed by a drunk driver many years ago. Some of the people liked to talk more than necessary, in my opinion, or even interrupted the judge. One guy was a lawyer, but not a criminal lawyer, another a history professor. One young man was very forthright, almost cheerful, describing his conviction for DUI some years ago. One woman had been arrested for DUI but released after a breath test. I was surprised how many people had been stopped or arrested for DUI. Some had merely been weaving because they were tired. One woman had gotten into an accident after falling asleep at the wheel. I thought it was interesting that no one claimed that his or her DUI stop or conviction was outrageous or even unfair. None of those people was excused by the judge. She asked people different follow-up questions, depending on their answers.
Several people had been the victims of drunk drivers. One older middle-aged self-employed man, not married, seemed rather sad and defeated, and maybe in need of therapy. Ten years ago he had been driving with his girlfriend when they had been hit by a drunk driver. She had been killed. The immediacy of it--this poor man was only a few feet away from me--was somehow shocking. Here, right in front of me, was real life, not a newspaper article, not a TV show, but what a drunk driver can do to someone's life. How different it might have been for him. The judge called the attorneys over and excused the man.
When the first twelve had been questioned, it was the attorneys' turn. The defender got up, walked around the table, and stood at a lectern in the middle of the room, facing the jury box. She mentioned racial profiling. She talked to all twelve at first, and then questioned one person or another from time to time, addressing them by name and obviously following up on notes she had made during the judge's questioning. Some were asked whether they thought an officer might lie, or whether they could treat the testimony of an officer like that of any other witness, or how they would feel if the defendant did not testify.
So, I concluded, the defendant is not going to testify, just as in my first trial. When I had run into his attorney at that softball game I had asked her about that. She said that if the defendant testifies, his prior criminal record can be mentioned. She also said that some people just seem guilty, or do not speak well or make good witnesses.
Some people were hesitant or reluctant in some of their answers, or even disagreed, and were questioned more closely. Sometimes the judge stepped in to clarify a question. Once she told the person not to answer the question and told the attorney to ask another question. It was obvious that the judge was paying close attention to every word that was said. In fact, it was interesting to watch her face as it frequently showed various expressions during questioning by the attorneys. She stopped the defender when she mentioned the Riders, a recent notorious case in Oakland involving corrupt police, and called the attorneys to the bench. The defender changed the subject.
Some people were asked about the impression they had formed of the defendant when they came into the room, or about the justice system. Sometimes I couldn't tell why some people were asked certain questions but not others.
Some people were asked about their feelings about racial profiling, or drinking and driving, or drinking at all. Some people did not drink for personal or medical reasons. At least one was now in AA and had been sober for years. Some people were asked how they judged whether a person was under the influence.
At least two agreed that an alcohol-related case might not be the best case for them. Some people said they didn't know whether they could be comfortable with a case like this or could really be fair and impartial. Those people were excused by the judge after she called the attorneys up to the bench.
When it was the prosecutor's turn, he chose to remain in his seat. I speculated that because of his imposing build, he found it made people more receptive to him to seem less physically intimidating. Whenever racial profiling came up, he would ask whether it was always proper for an officer to take action when he witnessed something illegal, and people always agreed to that. He, too, was stopped several times by the judge. For some reason I suspected that he was the more experienced attorney. Both attorneys were often stopped when they asked questions that made presumptions about the evidence, like, "If an officer were to testify that...." The judge reminded us that this part of the proceedings was not evidence.
One person said that he had gone into the animal rescue field because, although it sounds snotty, at the time he had had it with humans. The defender asked him whether he would be able to work with the other humans on the jury. There were other occasional moments of humor, but not many.
Then the challenges began. Aside from the people excused by the judge, no one was ever challenged for cause by either attorney. But, as we found out from the clerk during a break, each attorney had ten peremptory challenges, and they used most of them. The lawyer and the animal-rescue guy were excused. The people who talked too much or struck me as most neurotic were excused. One or two people with nursing experience were excused. One young black man who told about being the victim of racial profiling was excused.
Whenever someone was excused, the clerk would call another name. The new person would be questioned by the judge and then by the defender and prosecutor.
It got to be easy to guess who would be excused. Mainly it was the people who said anything that cast doubt on their impartiality. Sometimes when someone would start down that path, one guy in the box would roll his eyes. I imagined he was thinking, "Just excuse them now and let's move on." But if the attorney can get the person to seem biased, the judge will excuse the person and the attorney won't have to waste a peremptory challenge. One person in the audience area with me showed similar impatience during one of the judge's many repetitions of things like presumed innocence, the prosecutor must prove his case beyond a reasonable doubt, the defendant is not required to testify and we may not draw any conclusion from his failure to testify, if he does in fact not testify, and so on. My attitude was that many people have no familiarity with the system, and I was able to put up with the repetition. If I were on trial I'd want the judge to be thorough and meticulous.
Many people were not familiar with the implied consent law, which says, roughly, that by driving in California you give your consent to a chemical test (breath, blood, or urine) if you are stopped for impaired driving. One person had been told when she was stopped that she had no choice but to take a breath test on the spot. The judge said that that is not true; it did not have to be a breath test, and she did not have to take it on the spot but could take it at the station.
All the people who worked with measuring instruments were asked about their experience with calibration, repairs, and inaccurate measurements, and most of them were eventually challenged.
After a while I calculated that about half of our original group would appear in the jury box before it was over, and mistakenly concluded that I had a fifty-fifty chance. (By that point my actual chance of being called was much lower, since only three or four of the 20 or so of us remaining were called.) On the one hand, I find trials fascinating, but on the other hand, as I said, it would not be fun all the time. I hoped the verdict would be clear, not a close call. I imagined there were many things I could say that would get me excused: That I am an ACLU member and think that most white people, like one person who had been questioned, do not believe that racial profiling still happens here; that the justice system is generally harder on minorities and the poor; that I am outraged whenever I hear about some deadly accident caused by a driver who has been arrested for DUI five, ten, 20, or 30 times before, and think the penalty is far too light; that I am aware of the principle of nullification, whereby a juror acquits a guilty defendant because the juror has an objection to the law or its application. But I don't think that people with my beliefs should be excluded from juries. If they asked me specifically, I would tell the truth. Also, regardless of my beliefs, the defendant might be innocent, the arrest might have been legitimate, and so on. And, I know that I am able to consider only the evidence and the instructions because that's what I was able to do at my first trial.
It seemed that the challenges were nearly done. Then my name was called. I answered the questions as briefly as possible. Some people said "Ma'am" or "Your Honor", but I wouldn't feel comfortable talking that way.
The judge was always more precise than the attorneys. One time she asked me a long question. By the time she got to the end, neither "yes" nor "no" would be an unambiguous answer, and I could see she knew that, so I waited while she rephrased.
We were supposed to go through the list and answer most questions "Yes" or "No", and the judge would come back to the "yes" answers afterward. She went through the first page with me and asked me to go on to the second page, but I mentioned that I had said "Yes" to number 15: whether anyone close to me had been charged with a crime. She and the attorneys did not press us later jurors as closely as they had the earlier ones, and maybe she had planned to skip it, but I really think she had forgotten.
So she asked me and I told her about my cousin's having been charged with assaulting a policeman outside the Democratic National Convention in Chicago in 1968. He said he had made a deal with the assistant D.A. concerning a trade-off between prison time and probation time but the D.A. had said "You didn't make a deal with me" and had double-crossed him. The judge said, "So they lied to him." I had always thought of it as a double-cross, not a lie, but I had to agree. She asked me how it turned out. I told her he served some prison time and some probation time.
By this point the defender had said she was questioning people from her seat in order to save time. It almost sounded like an apology for what could be misinterpreted as a lack of respect. I'm not sure she was familiar with the events in Chicago in 1968, which was probably before her time; she mentioned Dallas rather than Chicago. She asked something about the details of the alleged offense and I said my cousin and I never discussed what really happened. That's true. Everything I said was the truth.
Unlike the judge, the defender did ask me a question that could not be unambiguously answered "yes" or "no", so I gave a longer, unambiguous answer.
To me, the most interesting part of my voir-dire was when the defender asked me what other reasons there might be for a defendant not to testify besides having something to hide. I didn't want to say that testifying makes any prior record fair game, because I thought it might prejudice the other jurors and create a mess, so I vaguely said it could open up other areas for questioning. I saw the prosecutor glance at the judge, but no one followed up on my comment, apparently feeling it was best to leave it at that. I also said some people don't make good witnesses. The defender added that some people have accents or don't speak well, something like that. She asked me how I would feel about his not testifying. I said that I would be interested in what he had to say but understood that he was not required to speak. She also asked me about things like the reasonable doubt rule, and I said I accept it. She asked whether I would stand my ground if we were still deliberating late on a Friday afternoon and everyone else disagreed with me, and I said yes. Everybody seemed satisfied.
The prosecutor had asked some of the last few jurors no questions. He had none for me either.
There might have been one more challenge. Then they swore us in, seated and examined one person as an alternate and swore her in, and discharged the rest. My theory that standing for the jury pool is partly a sign of respect was reinforced when the attorneys and defendant stood and faced them as they filed out, even though they were no longer relevant. Then we got a tour of the deliberation room, where we are to gather at the start of each day. I wondered whether it was the same room I had been in last time or whether it was just that all the courtrooms and deliberation rooms looked the same.
The judge mentioned that we will be issued notebooks and pencils, and that she allows the jurors to submit written questions. She and the attorneys review the questions and, after possible revisions, ask the witnesses some of them. I think that's a great idea. I wish they had done that at my first trial.
Just like last time, this jury has men and women of various races, ages, and backgrounds. I'm sitting next to a petite young woman who I believe is an unmarried civil engineer, who seems intelligent and attractive. If nothing else it will be interesting.
Monday morning. We waited in the deliberation room more than 20 minutes before we were called into the courtroom. The judge told us the plan for the day. To emphasize that opening statements are not evidence, she didn't have the notebooks and pencils distributed until after they were done.
The prosecutor did stand at the lectern and walk around this time. He said that two CHP officers in a marked car saw the defendant's car drive erratically one night in February, 2004, going over the center line twice and overcorrecting on a turn. They stopped him; smelled alcohol; saw red, watery eyes; asked him if anything was wrong with the car (no); asked him about injuries (bad ankle, knee, and back); medical conditions (diabetes); and medications (dilantin). He took longer than usual to produce his ID, passing over it in his wallet before finding it. He was unsteady getting out of the car. He didn't do well on the five or six DUI tests he was given. The officer thought he was playing games. They arrested and handcuffed him. At least five times they asked him to take a breath test. First he said he wanted a lawyer; the next three times he said nothing; then he faked gagging, moaning, and leaning over, so they called the paramedics and put him on the sidewalk. While there he kept lifting his head, looking around, and gently lowering his head. Once he smiled. The paramedics said he was OK. He sat right up, said he was fine, and resisted having blood drawn. But they tested his blood sugar and it was OK. On the way to the station they said he would lose his license if he refused a chemical test and he said, "I'm not refusing." But at the station when they asked him again he said he had already done it.
The defender said this was a case about power and corruption. She said the prosecutor left a lot out. She said he was made to stand on his bad leg. She would show that there was reason to doubt the officers. I really don't remember much else that she said.
A CHP officer in full uniform was sworn in. He seemed young, although he had 14 years of CHP experience. He drew a diagram of the scene with markers. The prosecutor led him through the entire sequence of events, including all the Field Sobriety Tests.
The defender seemed to be making statements, like why certain things were important, rather than asking questions at first, and the judge warned her not to testify. The defender went through the entire sequence, too, but challenged what seemed like every event. She suggested that the bright CHP spotlights could disorient a person; that the place where they did the tests was not level and flat; that sober people have failed virtually every FST; that medical reasons could cause someone to fail, or to have red eyes, and for some tests she listed about 20 medical reasons; that the cop had no idea whether the defendant had any of those conditions; that the so-called odor of alcohol is actually the smell of additives, since ethyl alcohol has no smell; that the defendant's mechanic will testify that there were problems with the car; that dilantin is an epilepsy medication; that the smile was because of a joke the cop's partner had made; that the defendant did not have his license with him, and took longer than usual with his wallet because he was looking for it and eventually produced a California ID. She raised questions about the officer's knowledge of procedure, using a 1995 CHP manual and Title 17 of the code (which is about breath tests). She cast doubt on his reasons for and the propriety of looking up some details after a hearing a week ago on this case, and doing it in the presence of another witness, his partner. She spent a lot of time on the police report and all the things that were not in it, such as the conversations with the defendant, a notation of diabetes (there was just a check in a box for "diabetes or epilepsy"), all the parts of the tests that the defendant passed, etc.
I managed to have lunch with the civil engineer (and another woman). She was friendly, but I don't think anything is going to happen there. Everyone was ready to resume after lunch, but this time it was the judge who was late, about 20 minutes.
The defender finished her first turn. Then the prosecutor and defender each took what seemed like three or four turns. The defender showed us photographs that weren't especially helpful, taken long after the events. There was a tremendous amount of tedious discussion about who said exactly what and when. The judge never let an ambiguous question stand (unlike the judge at my first trial), and I appreciated that. Several times she stepped in to ask clarifying questions of her own.
The cop was meticulous in his answers, for the most part. The defender generally seemed less skillful than the prosecutor at asking well-formed questions, but it occurred to me that they were coming at it from different angles: He knew what the answers would be, and could safely ask open-ended questions of his friendly witness, but she could not risk open-ended questions that the cop could take where he wanted, so she would usually say things like, "You didn't record such-and-such in the police report, did you?"
There were numerous objections, some sustained, some overruled, and a huge number of rephrased questions. The cop talked too fast for the court reporter sometimes. The defender emphasized that although most of the tests are not required, the cop did not tell the defendant that--but he is not required to tell him.
At first I thought the defender was nitpicking, seeming to have no case by making one weak point after another. But after awhile she seemed to pick up steam. The totality of her case seemed to have some weight: that every single failed test could have another explanation: medical, bad instruction, procedural error, incorrect recollection, etc. I began to worry that the case might be a tough call.
Finally, the judge asked us to submit our questions. I wrote two on my paper. Two or three other jurors submitted one question apiece. The judge showed the questions to the attorneys and then paraphrased them out loud. The attorneys then followed up with related questioning. When the judge asked whether there were any more questions, I submitted one more, which she also asked. My questions were about two occasions when the cop said the defendant apparently consented to be tested (both times had been while they were in the car, where they could not do a test, and after they got out of the car he refused), and for a more precise answer when the cop said they were "directly behind" the defendant's car when they first saw him make a wrong move (he then estimated about 100 feet, maybe less, but said he had a clear view).
There was one time when I noticed the defendant staring intently at the cop. It looked as if he was thinking, "You're lucky it's not just you and me in this room." If I were a lawyer I'd advise my client not to do that.
All in all it was the most tedious day in court I have ever experienced.
The cop was called to continue testifying the next morning, but I don't recall anything noteworthy that came up.
Then came another cop, a middle-aged man with a Hispanic name. He has been filling in for a cop now on vacation who is the person who usually tests and calibrates the breath test machines. He was wearing street clothes. There were a lot of questions about the qualifications required to be a calibrator, exactly how it is done, what the record showed about the machine that was used in this case, and so on. It had been tested less than a week before and after the arrest and had not required adjustment.
Then came the first witness for the defense, a mechanic who has worked on cars for the defendant for many years. He had a Vietnamese name. His English was pretty good but sometimes he did not seem to understand. Sure enough, the questioning styles of the attorneys were now reversed: the defender asked better-formed, open-ended questions, and the prosecutor tried to elicit confirmation of the exact answers he wanted. It seems the defendant brought in the car in question for the first and only time two weeks after the arrest. He said there was a steering problem. The mechanic drove it and found a problem typical in that model and others: Steering is slow to respond, then suddenly oversteers, typically due to a leak. The steering he described seemed to match what the cop had reported. He was able to drive it safely, which is very hard, because of his experience. He had advised the defendant to drive it as little as possible and gave him a repair estimate of about $330, but he never saw the car again.
Some of the automotive terms required spelling for the reporter because of their unfamiliarity and the mechanic's accent. Once, the defendant himself started to spell "tie rod" and was admonished by the judge.
I chanced to have lunch with the professor, who turned out to be very pleasant, intelligent, and interesting. He had seemed aloof before, but I guess he's just naturally not that gregarious with strangers. It's his first time on a jury. He said he had written about racial profiling, but we agreed not to talk about it.
Well, that's it, I thought. Just like last time, we'll have to go and decide whether the prosecution has made its case on its own, with no input from the defendant. I would have preferred to hear from the defendant.
The defense called him. All right, I thought. Now things will get interesting! The defender established information about his job and so on that I decided were irrelevant--he should be treated the same if he's unemployed, or on welfare, or a beggar. Perhaps some people would be positively influenced because he had a regular job with some government agency. Perhaps I would. I'd have to watch out for that.
He seemed like a regular guy, no accent or unusual behavior or anything. A lot of his testimony clearly contradicted what the cop had said. The defendant said when asked about problems with the car he had said "front end problems" (not "nothing"); that he thought he passed all the tests; that he had said his injuries would make the foot-raise test difficult and the cop had said to forget it; that no one had asked about his well-being when he made gagging sounds in the back of the car; that no one had checked his mouth or asked him to remove his gum before the breath test; that he had blown into the breath tester until the cop said stop; that he had done it three times (not twice); that he was never given the implied consent information either by summary or by verbatim reading; that he was gagging because his gum was used up and he didn't want to spit it out in the car, so he tried to swallow it; that he resisted the paramedics' finger stick because he is not diabetic, just epileptic; that he did not go over the center line either of the two times alleged; that he never refused a test or said other things the cop said he said; and so on.
He said that he was driving his roommate's car because his was not running, and his roommate warned him about the steering. He had used mouthwash just before heading out because he was going to a club, and had swallowed a little. The cops had dropped him onto the sidewalk when they took him out of the car for the paramedics, about two or three feet. The cop had said he was "f---ing playing games" (everybody actually pronounced it "effing") at the station when he said he would take the breath test.
The prosecutor mentioned a date in December, 2002. The defense objected immediately. The judge said to reframe the question. The defense objected four times. Eventually the prosecutor gave up, but it was obvious the defendant had been stopped for DUI then. I would have to ignore that, since the objections were sustained, and in spite of my outrage over repeat drunk drivers. This case would have to stand on its own merits. Several times when one lawyer or the other would say things that were objected to and sustained, I suspected that it was a tactic to get the idea out there for the jurors to hear, even if it was stricken by the judge. Apparently, when the defendant testifies, the prosecutor is allowed to bring up his previous record only if the defense does it first. Someone even mentioned once, probably an objection by the defense, that a question from the prosecutor went beyond what the defense had talked about, and it was sustained. For all I know that rule might apply to any defense witness.
Nevertheless, many questions about the defendant's experience with breath tests in 2002 and a DUI stop that occurred then were allowed, but nothing especially striking. It began to feel as though the defense was building a stronger case than before. It was impossible to refrain totally from forming an opinion, although we were always told not to until it was time to deliberate. Maybe the defendant had learned how to work the system, but that's just the way it is; even if the defendant was probably guilty, and I wasn't even sure of that, the prosecutor would have to beef up his case to go beyond a reasonable doubt.
This was the first day when the judge seemed to raise her voice slightly in annoyance when she admonished various participants not to speak, or to wait until a question was finished before answering, or to reframe a question.
I was concerned that the cop and the defendant gave some totally conflicting testimony. It looked like more than just a difference of opinion or recollection. It looked as if someone must be lying, but it could be either one, or even both.
I thought about how some witnesses seemed totally believable, like the mechanic. But you never know; even someone as apparently guileless could be coached or could make a great but untruthful witness. What do I know about lying in court? It probably happens all the time. I like to believe people are telling the truth. Everything everybody said was believable or potentially believable, taken in isolation. This conflicting testimony was definitely troublesome.
Both sides have rested their cases, although there may be more business concerning exhibits. It seems that tomorrow we will have two long closing statements, perhaps up to an hour each, and up to half an hour of instructions from the judge. All of those are much longer than in my first trial. I suspect that the jury will not be unanimous at first and that we will have to come back on Friday to continue deliberating. (Thursday is an Alameda County holiday I'd never heard of, Cesar Chavez Day.)
By now I had had conversations with half the other jurors. It occurred to me that something like that might increase my chances of being selected foreman, and I'm not sure that's something I want. I found myself wondering who might be chosen.
Wednesday morning I woke up much earlier than usual. It might have been the cup of coffee I had had at noon, my first concentrated caffeine in months, in case the afternoon turned out to be as tedious as it had the day before. Or it might have been what I was thinking about: What would happen if I were the only juror who voted not guilty? I tried not to think about that.
Unlike at my first trial, we all received written instructions, including various excerpts of the laws. The judge read the first 29 pages aloud to us as we followed along. Everything we needed, it seemed, was spelled out: definitions of reasonable doubt, driving under the influence, how to weigh evidence, and so on.
The prosecutor spoke from the lectern for less than an hour. He used an easel on which he placed a sequence of large cardboard pages with machine printing on them to accompany his points. He made a good case for conviction, and I found myself being swayed. He said a few things that I thought were minor misstatements of the evidence, or that could have been phrased more forcefully, or that made good rhetoric but did not really address anything substantive, but I brushed those off as unimportant. Once or twice there were objections. He argued explicitly that the defendant had lied repeatedly and perhaps not quite so explicitly that some other testimony was also not to be trusted.
The defender also spoke from the lectern for less than an hour. She used an overhead projector for a sequence of foils, also with machine printing. I felt it was perhaps her strongest presentation yet. I thought she had started out somewhat weakly on day one but had gotten intermittently stronger as we went on. Like the prosecutor, she made a good argument for her point of view, made occasional misstatements that I brushed off, and was interrupted for objections once or twice. Perhaps her best foil listed about a dozen levels of certainty, from "innocent" at the bottom to "beyond a reasonable doubt" at the top. Just below the top was "clear and convincing", along with other strong expressions like "strong likelihood" or something, and so on. Nothing but "beyond a reasonable doubt" was acceptable for conviction. She argued explicitly that the cop had lied repeatedly. Again I found myself being swayed.
The prosecutor got the last word, briefly restating his main points, with more emphasis on lying this time.
Then the judge read a few more pages of instructions and we went off to the jury room. The alternate got additional instructions and was not dismissed but was not sent into the room with us. I don't recall seeing her again that day. We almost immediately agreed to let the civil engineer be the foreperson when she was the only one who said she was willing. We also easily agreed to have lunch in rather than going out. The court was paying for lunch either way.
Most people wanted to vote right away. I'd heard that wasn't a good idea but went along, although I was the only one who wrote "not sure yet", which they counted as "not guilty". The vote was six to six! I was, I think, pleased that it was not heavily one-sided. The group as a whole must have felt as I did: that both sides had made some good points. We went around the room, each talking about whatever we wanted. Early on we agreed to focus on count 1 (driving under the influence), because count 2 (refusing a chemical test) was to be reported as a "finding" only if we voted guilty on count 1. We all revealed our votes. Although it was fascinating at the time, retelling it in detail strikes me as mostly boring now, so I'll condense. Some people spoke for minutes on end. I was pretty brief. I don't think anyone ever said they thought the defendant was actually innocent. The real issue was whether the prosecutor had met his burden of proof and convinced us beyond a reasonable doubt. At least one person said he felt right on the edge. This was a good jury, better than the one at my first trial.
Curiously, all the people who voted guilty were sitting next to each other, except for one guy in the middle of us innocents, who were, obviously, also sitting next to each other. There did not seem to be any demographic correlation with votes: The whites, blacks, men, women, old, and young were all split between guilty and not guilty. When we finished going around once, we just kept going. In the middle our lunch order of sandwiches arrived. We wanted to deliberate straight through lunch. The first guy eventually went a third time, but then we agreed to stop going around and people jumped in out of order.
Most of us thought both the cop and the defendant stretched the truth from time to time. We all thought there were some things about them we didn't like. We were skeptical about some of their explanations and recollections. Some people, including me, speculated sometimes about things like why various other witnesses weren't called, or why certain statements hadn't been pursued, why the second cop hadn't made notes on the tests, or other things not in evidence--even whether the second cop, who was not called as a witness, was white--but the group was excellent in following instructions and squelching speculation quickly, as well as every other deviation from the instructions and our focus on count 1. Everyone was also very polite about disagreeing or making corrections. Virtually every misstatement by anyone was quickly corrected by the group, often refreshing our memories from people's notes.
No one brought up race as an issue for quite a while, which I thought was appropriate. We talked about it a little but agreed that it was not a big enough issue here to pursue. We agreed that almost from the time of the stop there had probably been tension and even animosity on both sides between the cop and the defendant.
After some floundering, we decided to be methodical. The foreperson got an easel from the bailiff and listed all the disputed items up through the first breath tests: swerving, odor of alcohol, red, watery eyes, unsteadiness, and so on, ending with all the Field Sobriety Tests given. We went over the list, item by item. For most of them, we agreed that there was enough reasonable doubt about the prosecutor's case that we crossed them out. That still left about four. We could not agree on what the police report (which was not in the exhibits we had been sent, apparently not having been made an official exhibit) said about the finger test, so we sent a request for a read-back. The issue was that the cop seemed to remember some things very well from over a year ago but not others, and if he had only written "failed" about the finger test, then his recall of the defendant's performance was remarkably detailed.
We gave ourselves only one break, for ten minutes. The only other time we left the jury room was when we were called back into the jury box for the read-back. Everyone was there except the alternate and the judge. The reporter read back an entire section, which lasted a few minutes. It was immediately obvious that no one claimed the police report had any detail about the finger test. The cop was speaking from memory only.
Back in the jury room, we nevertheless left the finger test on our list of unresolved issues.
A fair amount of deliberation was about reasonable doubt. Like several others, I said that I believed the defendant was guilty of driving under the influence, at least by a preponderance of the evidence, perhaps even clearly and convincingly but not beyond a reasonable doubt, and I would vote not guilty, even though he had been stopped on suspicion of DUI once before and I think our laws go too easy on DUI offenders and repeaters.
One guy even read us the instructions and definitions about presumption of innocence, reasonable doubt, and driving under the influence. There was a lot more discussion that I am leaving out.
All the testimony about calibration came essentially to nothing. No one argued that the breath tester calibration was suspect. However, there was a lot of discussion about the breath test itself, including the interesting point that neither side disclosed exactly what its reading had been other than two identical readings of "alcohol in the system". One guy thought it had registered above the legal limit but the rest of us disagreed. In the end we agreed that it was used to assist the cop in deciding whether to take the next step, presumably arrest, and that its exact reading was not important. Furthermore, since dilantin might have aggravated the effect of alcohol, a low reading might be worse than it would be otherwise.
At least twice, people asked whether anyone had changed his or her mind and no one spoke up. Finally, we agreed to take a second secret ballot. There were now only three votes for guilty. Those three then briefly said, in effect, that they still thought the defendant was guilty. The three who had changed to not guilty all said that they didn't believe the guilt had been proved beyond a reasonable doubt. A little unproductive discussion followed before we were called into the jury box at the end of the day. The judge said she would be out on Friday, when we return. There will be a substitute judge. I thought that having a judge unfamiliar with the trial was unfortunate, and I was sorry to see our judge go; I liked her and thought she was a good judge. I doubt that we will continue beyond Friday. She said she will send each of us a letter and will be interested in any suggestions we might have. I wonder whether I will send this write-up to her. She might find it interesting. Or, she might have heard it all many times before.
My sister called at 8:30 to say that our father had died that morning in Atlanta. He had been severely ill with Alzheimer's and diabetes for years. I called his wife and said I would fly to Atlanta the next day, Saturday.
I considered not going to court but decided that I wouldn't accomplish anything by staying home and didn't feel a strong need to be alone to grieve. I felt as if I had said goodbye to my father years ago, before his Alzheimer's got bad, and that I had already done most of my grieving. I figured that deliberations using the alternate might have to start over from the beginning. So I went in. My sister had suggested that deliberating without telling the judge the situation could be cause for a mistrial. I wanted to tell the judge the situation anyway in case he wanted to replace me with the alternate. The bailiff came back from the judge's chambers and said to put my message in writing. I wrote down the situation, that I would be flying out the next day, and that I thought I could concentrate and wanted to finish with this jury if we could finish that day. The bailiff brought back word that I should go deliberate with the jury.
Vote now 4 for guilty
More emphasis on preliminary tests not enough to convict; reasonable doubt and police procedure are higher standards than our normal way of thinking and acting
Found my attention wandering at first but decided to stay
Now 3 guilty, foreperson on the fence
Lunch: felt we could wrap up soon
Now 2 guilty. Then one says he's changing. Then no one says they're still voting guilty.
Chatting 10 minutes while waiting for parties to be summoned, then 25 minutes in hallway.
New judge is middle-aged Asian man. Clerk reads verdict. Prosecutor looks philosophical. Judge encourages us to wait in hall to chat with attorneys. One or two of us leave. Attorneys appear in 10 minutes, look surprised and pleased to see so many of us. Prosecutor asks what we thought, I said most of us felt he was probably guilty, or more strongly, but not beyond a reasonable doubt. Nearly everybody spoke. Both attorneys were fairly inexperienced (his second trial); he'd thought it would be a tough case, with only one cop, who was not a good witness, and that refusals are tough to win. Friendly discussion. They had wondered what we had talked about for so long. We said we went over everything. They both seemed a little surprised and pleased that we had been so thorough and scrupulous. We must have talked for 20 minutes. The defendant sat ten feet away, which I thought was prudent. The defender told us the defendant thanked us for our vote. After we left, one juror told me that another juror, a large black man, had gone over to the defendant and said he wasn't saying the defendant had done anything wrong, but that he hoped the defendant would take this as a wake-up call. I said good for him.
We said our goodbyes on the street and went our separate ways.
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