Many years ago I was called up for jury duty. To this day I’d like to go back and do it better.
I found myself one Monday morning milling with a bunch of other regular folk in the courthouse lobby, until someone herded us into a courtroom for the process of voire dire, which means the lawyers fight within the rules to stack the jury in their favor.
It goes like this: a juror candidate steps up, the lawyers from both sides ask potentially-revealing questions, and based on the answers one side or the other throws them out. As I sat, waiting my turn, I heard questions like, “do you trust the police?” and equally leading questions from the other side. I was pretty sure my honest answers were going to disqualify me.
Finally it was my turn to step up and face the music. You know what they asked me? Nothing. Not one damn thing. Both sides profiled me; the prosecution saw a white guy, the defense saw the only non-retired-military white guy they were going to get, and just like that I was to be one of twelve deciding a man’s fate.
Short story: two guys got in a fight. Unfortunately, one was a cop. The other was a deaf hispanic man who thought he was fighting for his life and knew enough martial arts to prolong the struggle. In the end there were several police, three paramedics, a few firemen, and two dogs on the scene.
After three days of testimony, we were sent to our room to discuss. Another dude nominated himself as foreman; no one else gave a shit, so he was the guy. “Let’s start with the easy one,” he said. The gray-haired man to my right nodded. “Guilty,” he said. The foreman nodded in agreement, then read the actual charge. “Guilty?” he asked the room. There was an uncomfortable pause. Some of the members of the jury didn’t see things so clearly.
Sitting in front of each of us, ignored in the rush for power by the guilty-as-charged crowd, was a thick packet of instructions. The instructions went through the charges, count by count, with rules of evidence spelled out. “If you find A, then you must conclude B.” I pointed out that the process was spelled out in front of us. At that time I was happy for the instructions.
Most of the charges seemed clear-cut, but there were problems. For example, during the wrestling match the defendant had put his hand on the policeman’s gun. That’s a big no-no, as you might imagine. But there was a lot of reason to believe that he had no idea he was doing that. He was just grabbing, holding, trying not to be buried. And the cop? An obvious liar. I hadn’t heard the term ‘testlying’, at the time, a phrase used by the San Diego police, but cops get training in saying what’s necessary to get the conviction. At the time I thought his testimony was too clean, too perfect, and we were hearing what the textbook said to do, rather than what he actually did.
There was a pretty sharp divide between retired men and younger women. One spanish-speaking woman said that the defendant’s translator hadn’t done him any favors.
I looked through the instructions. There was nothing about how to judge the act in the absence of intent. I asked, asked again, and finally we were brought out before the judge in the presence of counsel for both sides to be told that we could split the charges and only find the guy guilty of what he actually did.
Back we went, for more discussion. “Guilty as hell” from the white-hair contingent, “It was all a misunderstanding with an asshole cop” from the female side. The jury might have hung, but for one thing I said. One thing I know to be untrue now. I said, “we are here to decide the law, not right and wrong.” The woman across the table from me nodded and cried, a compromise was reached, and we found the defendant guilty of reduced charges.
I apologize to Mr. Cervantes. Deciding right and wrong is exactly why juries exist. Juries deciding what is right has changed the course of this nation. Those packets of instructions focussed my jury early, but the word “must” was all over the place. Those instructions were carefully written to prevent the jury from thinking in terms of right and wrong. Most of the time, that’s probably helpful. Some of the time, like in the case of Mr. Cervantes, it discourages a higher ethical sense that makes us a better people.
Those packets are powerful. They give a paint-by-numbers view of the law. And sure, when a jury decides to stray from the script you get the acquittal of the cops that beat Rodney King, but you also get juries that kick racist laws in the balls. Eventually, over time, juries who believe in right and wrong make this country greater. Juries are the most powerful institution of government in this nation. As a juror, I feel like I failed my country, and I brought half a jury with me.
Sure you should vote. But you really want to serve your country? Step up when jury duty calls. Listen, think. Defend the law, but don’t forget what’s right. That’s why you’re there.
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