Friday, March 31, 2017

The weight of justice

"And Indian chiefs with their old beliefs know
The balance is undone - crazy ions
You can feel it out in traffic
Everyone hates everyone!"

Last week I served as a juror in a criminal trial in Fort Bend County.

This is the third time I've sat on a jury. The first time was a breach of contract civil court case in Harris County. The second time was a municipal court case for a misdemeanor traffic violation in Sugar Land.

This case involved a traffic violation too, but it was for a felony, evading arrest using a motor vehicle. The defendant plead guilty, which was wise, since there was police video in which he was clearly identifiable. So the trial was to be about the penalty.

First, let me say that I think the jury system is seriously flawed. I don't have any suggestions for how to fix it though. I'll get into that in a bit. But let me start from the top.

Oddly enough, Neil and I each received a jury summons for the same court on the same date. But as Eko said to Locke in Season 2 of Lost (which I am re-watching), don't mistake coincidence for fate. Locke later repeats this to Desmond in Season 3 - but I digress.

I suggested we take two cars to the courthouse but Neil thought we should carpool, so we took my car. If one of us got picked and one was released, either of us could leave and pick the other up later.

So we went through the rigamarole of metal detectors and standing in line and signing in and sitting. And sitting. We were sworn in, a judge addressed us, telling us that next to military service, juror service was the best way to serve our country. Uh huh. Based on the gratitude expressed to us for just showing up, I'd speculate that a lot of people must toss the summons.

Since we are moving out of state inside of six months, I considered not going, but with both of us being called on the same date and Neil wanting to color within the lines, I decided to go. And naturally I was number 10 on the second panel called, and naturally Neil was thanked, dismissed and free to go. He came and found me and got the car key.

After some more sitting around, we were called into the courtroom and introduced to the prosecution and defense. During the voir dire, we were asked a lot of questions about whether we could keep an open mind until we heard all the evidence and whether we'd be willing to consider a range of penalties. There were a few stupid answers, such as those from people who insisted that the answer to those questions depended on the facts, despite being pressed to consider the hypothetical. They were not selected. Hmm, maybe those answers weren't as stupid as they seemed.

We were also reminded that a defendant has the right to plead the fifth and if that right was invoked we should not consider it one way or the other as evidence of guilt or innocense.

I was the fifth juror seated. Twelve jurors plus an alternate were chosen. We were told that the trial was expected to last one day and that we would start at 9:30 the next day.

So Neil picked me up and we got a late breakfast at The Egg and I. I told Neil only about the bare bones of the case, that it was criminal and penalty only. He asked and I told him the defendant was not old and was dressed in a cheap suit or possibly slacks and a sports jacket, because I am unobservant like that.

Before I left the following morning, I almost wrote down a prediction of how the trial would go, since I couldn't say anything. But I decided to keep that open mind and hear the evidence before reaching the verdict.

We thirteen jurors convened in the jury room, where we had a coffee maker and coffee, a small fridge and a broken TV. Shortly after 9:30 the bailiff walked us to the courtroom. Did you know that whenever the jury enters and exits the courtroom, all rise? I didn't. I kept forgetting to remain standing until the judge said, be seated.

We didn't have assigned seats but I usually sat in the front row near the left side.

The defendant plead guilty, as expected, to the felony charge. The prosecution presented its case first. The plaintiff's burden of proof in a criminal trial is to prove its case beyond a reasonable doubt - which we were told does not mean beyond a shadow of a doubt.

Two Sugar Land police officers testified. I'll try to keep the recap quick. The crime had been committed more than two years earlier, in the wee hours of an October morning in 2014. There was a routine traffic stop for speeding. The defendant exited the freeway, apparently to pull over, then apparently changed his mind and made a U-turn under the freeway and started picking up speed. Before reaching the entrance ramp, he climbed the curb and hit a road sign taking out his left rear tire.

He proceeded to get on the freeway and pick up speed, riding on three tires and a rim, in a storm of sparks. The officer followed, while calling in backup. Three exits later, the defendant exited the freeway. At the intersection he lost control of his car and spun around, coming to a stop. This is where his face was clearly illuminated in the police car headlights.

The chase wasn't over though. The defendant started driving again, turning the wrong way down the feeder road, cutting through a shopping center and the heading back to and onto the freeway. For eight more miles at speeds above the limit, sparks flying from the tireless wheel, he continued driving, followed by four or five police cars, finally taking an interchange onto another highway. At this point the car slowed and came to a stop.

Officers approached, guns drawn, yelling commands. We saw the defendant pulled from the vehicle, ostensibly unconscious. The film ended when he was pulled off camera. You could hear one officer say that he didn't smell alcohol.

The prosection rested. We broke for lunch.

In the afternoon, the defense called its first witness. The defendant took the stand.

I will mention here that the defendant had what I would call a hardened face. I might have said he looked like a thug. His demeanor was penitant and sorrowful, He apologized profusely and repeatedly to anyone and everyone. He testified that he did not have any memory of the chase, that he woke up in the hospital, that he called his ex-girlfriend who came and picked him up. The details are blurry, hard to make sense of from any angle. More than once, I wanted to take the floor and cross-examine the witness myself. Many questions that I had were never addressed.

We heard his life story. It was long and sad, naturally. He was born in 1985, making him the same age as my eldest daughter. His mother was never in the picture, although somehow he had several brothers and sisters. His father was disabled with brain damage in an alcohol-involved vehicle accident when he (the defendant, James) was three. James lived in an orphanage for the next ten years, then with siblings.

He had been married, had two children, was divorced and had a third child from a more recent relationship. The events of the case happened shortly after that relationship was ended by the child's mother. Along the way, James had gotten both an associate's degree and a bachelor's degree. Along the way he had also gotten several misdemeanor convictions, one for petty theft and several for driving while intoxicated and driving without a valid license. Each time he was sentenced to probabtion or time served.

Two other witnesses testified for James. The first was his current girlfriend, who was lovely, bright, articulate, a physical therapist with a PhD, working with patients with brain injuries. She said that they'd met just over a year earlier, that he was open and honest from the first about all the blemishes on his record, that she did all the driving now because she didn't drink and that he only drank on family occasions or when he was stressed. Hmm.

The second witness was her father, a career firefighter, who also was well spoken, credible and spoke strongly in support of James. He said that he felt really good about his daugher, Lauren, marrying James, that James had been living in their home, and that he was honest and helpful and penitent and a reformed man.

Wow. I could never feel happy about my daughter marrying this man. For one thing, he already had three kids, strained relationships with their mothers, and child support that he was struggling to pay or repay. That alone would knock him out of contention, let alone the prior convictions and probations and evidence of impaired judgment. But that is me and this man clearly was not me.

After a recess, we heard closing arguments, then adjorned to the jury room to deliberate. Our poor alternate, who'd sat through all the testimony, had to sit alone in a separate room and wait. We were charged with determining the penalty and the range was two to ten years in prison, wth an option for community supervision, essentially probabation, and a fine of up to $10,000.

I was chosen to be principle juror. You'd think the introvert in me would rigorously avoid that role, but the control freak in me always wins out at times like this. It was no coincidence that I'd chosen the seat at the head of the table. We were six men and six women, with a good deal of racial and demographic diversity.

When I'd been a juror previously, I had walked into deliberations with a fair amount of certainty about what the right outcome would be. In this case I was feeling pretty much at sea. So I suggested we each take a piece of paper and write down which way we were leaning, prison or probation. I said I didn't want us to go around the table and speak because we might influence each other and I wanted a genuine read on how people felt.

We had six people for probation and six for prison. I had written down probabtion.

Now here is where my disillusionment with the jury process kicks in. Some people take jury duty very seriously. Some people just want to get it over with and go home. Some people have conviction about their feelings, some people (most people) don't like to speak in public, mnay people fear and avoid controversy. Some people are articulate about why they feel how they feel and some people can't explain why they feel how they feel.

One by one, jurors get tired, get worried about family obligations or missed work or whatever, and after a while they will go whichever way the wind blows just to blow this popsicle stand.

We deliberated for at least four hours. We started around 4 pm. For once I felt swayable in my position. But as I told Neil later, I had one woman on the jury who was me. That is, she knew the right answer and she would not be moved. Have you seen the movie, 12 Angry Men? Then you know what happens.

So I had one woman who had decided that James needed to pay for his crime and do time. That was her story and she was sticking to it. I had two women who felt like James deserved another chance or that prison never did anyone any good. Most of the rest of the room either felt like me, that they could go either way, and the rest just didn't care and would have been happy to roll the dice or go with the majority rule. Except the jury charge was explicit that we could not use any means other than reaching an authentic unanimous agreement to come to a decision.

After a short time people started making noises about telling the judge we could not agree. I told them it would be futile, that the parties and judge would not want to try the case again and would tell us to keep talking. At about 7:40 pm the bailiff came in and took our pizza order. I felt certain we'd be there until late-thirty, with the possibility of a return the next day and a long shot chance of sequestration.

I was starting to feel a bit shaky from not eating, another factor that I can see playing into people's resilience and willingness to abandon principle. I started tossing scenarios out. What if we gave James probabtion along with the longest sentence, ten years, as the biggest stick for him to keep his record clean? Our crime and punishment woman wasn't having it. What if we gave him probabtion and the largest fine, $10,000 dollars as punishment? That also didn't fly. Time for the crime washer demand.

So I asked my two anti-prison ladies if they could live with the shortest prison sentence, two years, of which he'd probably serve only part if his behavior was good. Since neither one was as tough or hard-line as prison-woman, tears were shed but agreement to the shortest prison sentence was reached. I honestly think I have a knack for this. We called for the bailiff but the pizza was on its way and we had to wait to see what the judge wanted to do.

My job was write in the number of years and to sign the verdict, which I found a bit difficult since I had leaned toward probation. The judge called for us. I warned the two probation women that the defendant would weep. All rose as we filed in, the judge asked if we'd reached a decision, I said tht we had. I hand the paperwork to the bailiff who handed it to the judge. The judge read it aloud.

I was very aware of the attorneys' eyes on me, but I didn't make eye contact. Instead I studied the defendant, who buried his head in his hands and shook with silent tears. Out of the corner of my eyes I watched pretty Lauren flush, turn to her father and start crying, and I watched her father try to comfort her.

We were thanked and asked to return to the jury room so the judge could come in and talk to us. I was still shaky and ate a slice of pizza. My fellow jurors were kind to me and poured me a large plastic cup of Dr. Pepper. I really needed that sugar. The judge came in and I asked him a lot of questions, such as whether the defendant would go straight to jail. The judge said he thought they were booking him as we spoke. I asked other questions, such as why it had taken so long to get to trial and he spoke of overloaded dockets and a shortage of judiciary personnel and the like.

And then, I'd had enough. I got up, thanked my fellow jurors, all of whom had stuck around, and walked out. I was done.

Only I wasn't. The case held a grip on my mind for days. It's hard not having a crystal ball. Had the defendant finally gotten himself sorted out, hooked up with a good woman and a decent family, and started really getting his life together? Would Lauren stand by him while he served time? Would he come out of prison more hardened and angry and embittered? Had we just thrown away the best chance of redemption he'd ever have?

On the flip side, had we maybe done Lauren a huge favor? Had we perhpas gifted this girl some additional time to reflect on whether to hitch herself to a guy who already had three kids he could barely support, no driver's license, a propensity to drink when he was stressed, and jail or no jail, a felony conviction on his record?

Playing with people's lives is a heavy burden.

Two things happened since the trial that have made me feel a lot better about the outcome.

The first was that I did an internet search, looking for a photo to show Neil what the defendant looked like. I found this police blotter item in the Wharton Journal Spectator dated November 2, 2013.

What did it mean? Had the prosecution failed to find this, despite presenting evidence of a string of arrests and convictions? Could the date in the court case have been wrong?

All became clear when I finally sat down to write this story. Because I googled the text of the Texas law about evading arrest.

Under the Texas Penal Code, a person commits the offense of evading arrest if he or she intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.

If the accused uses a vehicle while in flight, the offense is a state jail felony, punishable by between 180 days and two years in jail and a fine of up to $10,000.

However, a second conviction for evading arrest in a motor vehicle is a third-degree felony, punishable by between two and 10 years in jail along with a fine of up to $10,000.

Obviously James was a repeat offender. For whatever reason, this was not given in evidence. If it had been, I know the decision would have been a lot easier for us, the jury.

I only wish I had asked my fellow jurors for their names and phone numbers to stay in touch. I'd have loved to let my two sad ladies know the truth, the whole truth, and nothing but the truth.

Because I feel like we heard just a little too much bullshit.

I pulled up behind a Cadillac
We were waiting for the light
And I took a look at his license plate
It said "Just Ice"
Is justice just ice?
Governed by greed and lust?
Just the strong doing what they can
And the weak suffering what they must?
And the gas leaks
And the oil spills
And sex sells everything
And sex kills
Sex kills

Doctors' pills give you brand new ills
And the bills bury you like an avalanche
And lawyers haven't been this popular
Since Robespierre slaughtered half of France!
And Indian chiefs with their old beliefs know
The balance is undone - crazy ions
You can feel it out in traffic
Everyone hates everyone!
And the gas leaks
And the oil spills
And sex sells everything
And sex kills
Sex kills

All these jackoffs at the office
The rapist in the pool
Oh and the tragedies in the nurseries
Little kids packin' guns to school
The ulcerated ozone
These tumors of the skin
This hostile sun beating down on
This massive mess we're in!
And the gas leaks
And the oil spills
And sex sells everything
And sex kills
Sex kills.

(Joni Mitchell)

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Thanks for your comment! I will post it as soon as I receive it. Liz