Monday, January 26, 2009

One Twelfth

In 2004 I served on a jury. I haven't thought about it much... until recently. Several weeks ago I read an article on where the author mentioned that all we need (or maybe the least we need) to avoid tyranny is 8.3% of the population (one twelfth) to be aware of freedom and liberty.

Here's my story and how it relates. I'm going to work on a version for lewrockwell. If you have any comments/questions/suggestions, please let me know.

Jury Duty
Wednesday through Friday of this week, I had the opportunity to serve on a jury. The experience was a significant one for me and I need to get it on paper. The narrative is divided into five sections: pre-selection, trial, deliberations, debrief, and concluding thoughts.
I received the summons in the mail about a month ago. The summons specified that I’d be needed on Wednesday and Thursday of this week and that I was to record the distance from my house to the courthouse to be reimbursed for the mileage. I was asked to appear Sterling Heights, the city directly south of Shelby Township.
I arrived Wednesday morning at 8:30 along with 10 other male and 11 other female perspective jurors. We were directed to a room in the basement. As we entered the room we gave our last names and the mileage from our house to the courthouse. We were given a badge with “Juror” at the top and our last name below. The room has cable TV, a coffee machine and, for this day, three boxes of doughnuts. There are several tables in the room with chairs at the tables and other chairs around the outside of the room. The room was kind of small for 24 people (the potential jurors, our babysitter, and a babysitter in training).
Our babysitter (I’m sure she has a proper title, I didn’t hear what it was) gave us an orientation from 8:40 – 9:00. In that orientation she talked to us about the process, at a very high level, of how a case might “Go” to trial. She frequently said, “If it goes”. In Sterling Heights jury trials can happen once a month. Most cases are plea-bargained. She explained that there were about 4 cases under consideration that we could be asked to hear. She explained that she felt 90% confident that one case would “Go”.
While we were waiting, we were not to leave the room excepting for potty and drink breaks (I forgot to ask whether I’d have to specify whether it was a 1 or 2 : ) ). None of us were smokers – a first for our babysitter.
So, being the introvert I am, I pulled out the Book of Mormon and got some good reading done (and also assured that no one would strike up a casual conversation with me). About an hour later, the judge came down.
Judge Weigand (sp?) is a new judge. She was appointed by the current governor. Judge Weigand (JW) seems about my age. Previous to becoming a judge, she was on a city council somewhere. She was appointed to replace a retiring judge and will have to run for reelection soon. JW was friendly. She asked if we had questions. I think she confirmed that she expected one case to “Go.” She talked with us for about 5 minutes and left.
We remained in the room until about 10:30. When we were told we could return home. We were asked to report the next day at 9:00.
The following morning I returned. Instead of the Book of Mormon, I brought the two most recent copies of “American Rifleman” (just wanted everyone to know for sure I was Mormon – they could have thought I was just an investigator : ) ) and my journal.
Again, a little intro by the babysitter; I didn’t pay all that much attention. I penned a few lines in my journal, made it through one “AR” issue, and worked on a crossword puzzle for a few minutes. At that time our babysitter announced that one case was going and we needed to go to the courtroom.
We all trooped upstairs to the courtroom and sat down in the public seating area. The courtroom is small. There is seating for 50 people or so. When we arrived there were in the room: the judge, recorder, bailiff, two people at the defense table, two people at the prosecution table, a woman and a 20 something sitting in the public area, and two police officers in the back of the public seating.
JW asked if everyone was ready to begin. Our babysitter had prepared 22 slips of paper with the name of a potential juror on each paper. She began drawing, at random, names. The first person was called and sat in the juror box. My name was second. Five other people were called.
JW asked each one of us our occupation, if we were married, and what our spouse did. I, rather than trying to explain what I do, just said “I’m an engineer.” She asked if my wife works. I said, “We have 4 kids, she works a lot harder than I do.” This drew a courtroom chuckle.
The prosecutor asked if any of us regularly carried knives. Two people raised their hands. He asked them if they would have a problem finding guilty someone who also carried a knife. They both said no.
The defense asked that one juror be removed, her husband is a firefighter.
The replacement was asked all the same questions.
At this time, JW indicated that it was lunch time and we were given 90 minutes for lunch. The bailiff commanded “All rise” and we seven jurors were directed out the back door of the courtroom and into a much smaller room for some instructions. Our babysitter told us not to discuss the case with anyone and when returning from lunch we were not to go to the courtroom. If our babysitter was not there to meet us just inside the front door, we were to ask for her.
So, since there was a library next door, I did that. Best move of the day. They had a book sale and some person had just donated a gob of great books in mint condition. I picked up Sandberg’s book on Abraham Lincoln for $3; Ayn Rand’s _Atlas Shrugged_ (hardbound) for $3 (I had a guy offer to buy it from me before I even left); _The Libertarian Reader_ (edited by David Boaz) for $2 (this is a great book); _Suddenly_ by George Will $1.50; _A Monetary History of the United States, 1867 – 1960_ by Friedman and Schwartz; and _The Age of Federalism_ by Elkins and McKitrick for $3. I’ve been trying not to buy books lately – but for this price – I can read them and donate them.
Coming back from lunch, I made my first juror mistake. I entered the court building and didn’t see the babysitter. Instead of asking for her, I went and sat down outside the courtroom. The defense attorney was 10 feet away talking on a cell phone. He was on my bad side (my deaf ear) and I couldn’t hear what he was saying. 10 seconds after I sat down the babysitter came out, rebuked me for not calling her, and ushered me into the deliberation room.
After a few minutes, we were ushered into the courtroom. We always entered the courtroom in the order we were chosen and sat in the same seat. After we sat down, there was some informal talk about replacing a juror. I never asked, but I suspect that because of my lunchtime blunder, they were discussing me. After a few moments, they decided to take no action.
JW asked if everyone was ready to begin. Both lawyers nodded and everyone started “getting set” for the trial. I raised my hand. I asked if it was ok to take notes. JW seemed surprised by the question. She looked at the defense and prosecution. They gave an “I don’t care” look. She asked if anyone else wanted to take notes. One other juror wanted to. The bailiff left and returned in a few moments with two pads of paper and two ballpoint pens.
I raised my hand again. I asked if it was ok to ask questions during the trial. JW looked surprised at the question. She thought for a moment and responded, “No.”
I won’t go through all the details of the trial. I’ll tell my summary of the story and then list some of my observations.
The Story
The defendant moved out of his house – leaving his wife and 20-something son. Two months later, he decided to come back. He phoned his “wife” (they had started the divorce proceedings) and told her he was coming back. She didn’t want him back and told him not to come. It is the end of November, nighttime, and there is snow on the ground.
He arrived at the home with most of his belongings in the car and tried to get into the house. She wouldn’t let him in. He told her to call the cops. She called 911. She told the operator her husband was outside, acting suicidal and irrational, with knives and guns, please send an officer.
The officer shows up and parks – not right in front of the house, but at least one or two houses away. The defendant thinks the police are there to help resolve the dispute the officer thinks this guy is carrying a gun and is going nuts. The defendant starts walking toward the police car. The police officer gets out of the car, draws his gun, points it at the defendant, and tells him to get on the ground. The defendant complies.
The police officer then attempts to handcuff this man. He places his knee in the defendant’s back and gets a handcuff on his left wrist. At this point the defendant resisted. The officer calls for backup. The officer and defendant are struggling on the ground.
The officer is 23 – 25 yrs. old – my size. The defendant is late 40s 6’ 3”, 250 lbs., most of the extra weight in a big gut.
Fifteen seconds after the distress call a second officer arrives with lights and sirens and within a few seconds the situation is under control.
While patting down the defendant, they discover a pocket knife with a 3 inch blade.
The defendant’s car was searched. Included in the contents were a .22 handgun, a 30 caliber rifle, and an M1 carbine. (I’m sure most people would be horrified to hear of three guns in one car. I was thinking, “Wow. Good choice. I recommend augmenting it with a .22 rifle. Would you be interested in selling the M1?”)
My observations
Witnesses/statements and order of testimony:
- Prosecutor opening comments
- Defense opening comments
- Wife
- Son
- 2nd officer
- 3rd officer
- 1st officer
- Defendant
- Prosecutor closing comments
- Defense closing comments
- Prosecutor rebuttal
No one witnessed the struggle. The officer and defendant gave remarkably different stories. The defendant’s included pistol whipping, “grinding of handcuffs into flesh”, and glasses flying across the yard. The officer’s included this man rolling over (after the first handcuff was on) and pushing him.
The defendant was his own worst enemy on the stand. The prosecutor asked him several yes/no questions and he went off on mini-tirades. He accused the officer of lying.
Watching JW, the prosecutor, and the defense attorney during testimonies was almost the most interesting thing. They have a whole code just in the looks they give each other – especially the judge and the prosecutor. At one point, she kept giving him the “object” look and he kept returning the “not yet” look.
After all the testimony (about 2 hours), JW gave us our instructions and sent us off to deliberate.
The Charges
The defendant was charged with three items:
- Assault and Battery
- Resisting and officer
- Possessing a dangerous weapon
All are misdemeanors. Each punishable up to 93 days in jail.
Since the other jurors now come into the story, I’ll describe them according to how we sat around in the deliberation room. Since we really didn’t use names, I’ll give them names here. Immediately to my left was “Liberal Man” (LM). LM is mid-40s; probably with a 4-year degree. Next is “Talker”. She is in her mid-40s, probably has some college. Next to “Talker” is “Bowler”. Bowler, in his mid-40s, likes to bowl. He coaches a high-school bowling team. I doubt he has any post high school education. Next to Bowler is “Mom”. Mom is pregnant, mid-30s, quiet, probably has taken some local community college classes. Next to Mom is “Old Guy”. Old Guy is in his early 60s, maybe he finished high school, is very weak upstairs. Next to Old Guy, and immediately to my right is “Young Guy”. Young guy is in his late 20s. He’s probably had some local community college classes.
JW instructed us to first choose a foreperson. Before we even got to that, Talker started discussing the case. I stepped in and recommended Mom. Mom deferred, because she is pregnant. I next suggested Liberal Man; that stuck.
We immediately requested the knife – the only item submitted as evidence.
We were provided a sheet that listed the three charges with a box labeled “Guilty” and a box labeled “Not-guilty” for each.
We began discussing the charges. After a few minutes, we began to realize that what JW provided us on the sheet was not the complete text that she read us in the courtroom. We also began to have a discussion that led me to feel a need to explain to my cohort what is the purpose of a jury. I explained that I remembered JW reading that our decisions were to be just. I then explained that a trial by a jury of peers is a defense the constitution provides against the unjust application of law and that we must keep that in mind in our deliberations. This comment really got Talker and Mom on my side. It also influenced Young Guy. Liberal Man nodded as did Bowler. I never really could figure what Old Guy was thinking.
We sent to JW a request for her to send us a copy of the laws the defendant was accused of breaking and a copy of her instructions to us.
A few minutes later, the Bailiff returned and asked us to return to the courtroom. We entered the courtroom and sat down. JW asked if we would like to have the laws and her instructions read to us again. We said yes. She read them. When she finished, she asked if there was anything else. I said, “Are you going to give them to us?” She said that she couldn’t. I then said, “Well, you’ll have to wait for a minute while I get a pad of paper and a pen, then you’ll have to read it all over again, really slowly, so I can write word-for-word what you just told us.” JW then shot glances at both the prosecutor and the defense attorney. I then asked, “Why can’t you give them to us.” JW replied, “Because you only requested a portion of the materials and I can’t just give you a portion.” I then asked, “Can we have it all then?” JW said, “Yes.” I said, “Ok, we’re satisfied.”
We returned to the deliberation room. After a few minutes the Bailiff provided a copy of the law, the instructions, and whatever else was there.
We quickly found the defendant not guilty of Resisting an Officer. This one was easiest because the law stipulated that the officer had to be performing his duty and that the defendant had to know what the duty was. In the testimony it was clear that the officer only gave one command: “Get down on the ground.” The testimonies confirmed that the defendant got on the ground. There was no testimony given that the officer then informed the defendant that he was going to handcuff him. From the testimony, we figured that then next thing that happened was the police officer’s knee in the defendant’s back and the officer yanking on the defendant’s arm. It was never made clear to us that the defendant had any idea what the officer’s duty or intent was after the defendant was on the ground.
We, after a slightly longer deliberation, found the defendant not guilty of Assault and Battery. Our reasoning here was that this guy was face-down, in the snow, with the police officer’s knee in his back. The defendant testified that he had trouble breathing and that he tried to raise himself off his face. The police officer testified that the man rolled over and pushed him. To tell you the truth, I’m not sure what happened. I believe there was a struggle, but I’m not sure it constitutes battery. If we were to find guilty for that, we’d have to convict every fourth-grader in the country. I think you might summarize our thought with the following: we found it somewhat implausible that this guy, with one arm in a handcuff rolled face up, with the police officer still on top of him, and pushed the police officer; if he did roll over, it’s the officer’s own stupid fault because all he had to do was yank the defendants cuffed wrist toward the defendant’s head and he’d be unable to do anything.
Now, the third charge was the difficult one. We argued over it until 8 p.m. The law says something like this: it is unlawful for a person to carry on or about himself or herself any dangerous weapon, including, but not limited to: dangerous knives, long knives, or hunting knives not adapted and carried as such.
I’m sure there are poorer-worded laws, but I have yet to come across one. We debated this one for hours. We noted the obvious: if there are dangerous knives, are there also safe knives? How long does a knife have to be for it to be long? When is a knife a knife and when is it a dangerous weapon? If there are dangerous weapons, there also must be non-dangerous weapons. I was curious to know what is a non-dangerous weapon. We noted that me helping Joshua work on his pinewood derby car is technically a crime if I use my pocket knife.
It was during this discussion that liberal man really his feelings made known. At one point he said, “I don’t carry knives, I don’t allow my children to carry knives, I don’t let them associate with people who might carry knives. I know what a dangerous weapon is and that knife is not a pocket knife. It is a dangerous weapon.” For Liberal Man, this became an ideological stand.
We took several intermediate votes. I believed this was a knife, as did Talker and Old Guy. Bowler and Liberal Man felt it was a dangerous weapon. Mom and Young Guy were on the fence.
We all agreed that this is a horrible law. I pointed out that part of the reason why it is a horrible law is that it addresses a situation where breaking the law does absolutely no harm to anyone. The defendant carried this knife with him for 25 years (his wife testified that he always had it with him) and never harmed anyone. Although I didn’t say this, my attitude toward this was framed by those seminary lessons where we criticized the Jews for the fences they built around the laws during the time of Jesus. A law that protects another law, is, I believe, in most instances a bad law.
Eventually, JW got tired of waiting and sent us home.
I went home and couldn’t sleep. I was up until 2 a.m. thinking how I could convince these two jurors that it was wrong to find the defendant guilty on this point. My dilemma was that I said “knife” he said “dangerous weapon.” This comes down to a case of perception. Liberal Man, unthinking as he is (I have to admit a fault here: I accept it as a given that liberals are short on rational thought when it comes to the proper use of government and laws (see anything Ayn Rand wrote for an eloquent defense of this position)), could defend that position without thinking. I was convinced that if I could get Liberal Man to somehow agree with me, I’d get Bowler and the fence sitters.
Finally, I came up with the following. Every day the city of Sterling Heights licenses businesses to do business and inspects those businesses. In those acts, the city regulates legal activity within its bounds. If I could demonstrate that the city allowed knives like the one I the defendant carried to be sold, that is an implicit understanding that knives like that are not dangerous weapons.
So, in the morning I went to two stores. The first sells merchandise and food. I went to the sporting goods area and selected two knives similar to the one we were discussing. I went to the meat department and asked to see a butcher. I asked him if his department was ever inspected by the city. He responded, “All the time.” I purchased the knives (al la Henry Fonda in “Twelve Angry Men”). I then went to Home Depot and did a similar drill.
I even asked to guys outside the Home Depot if either was carrying a knife. One was, and I took a picture of him with the knife (I had a camera with me). I also took pictures of the knife displays.
I then went to the police office next to the court building. I carried with me the knives I purchased. I walked to the reception desk, manned by two officers, placed one of the knives on the desk and asked, “What is this?” They both responded, “A knife.” I asked, “Is this a dangerous weapon?” They both knew where I was going and began saying thinks like, if you can believe it, “Well, it depends on who you ask.” I replied, did I break the law by purchasing this knife and bring it in here this morning. One said, “Well, technically, but we’d never do anything about it unless you were doing something bad. Then we’d tack it on the list of bad things.” I then said, “Tonight, all over Sterling Heights, housewives will be breaking the law when preparing dinner.” They laughed, “Well, ‘Technically.’” I then gave them the Boy Scout scenario. They laughed and agreed.
As I finished at the police station, it was time to return to the court house. Since, technically, I was breaking the law by carrying those dangerous weapons, I immediately handed them to the babysitter upon entering the building.
After all seven of us were in the deliberation room (9 o’clock), the Bailiff told us not to deliberate, but to wait for further instructions from JW. We waited until after 10:30. At this time, the Bailiff came back and confirmed that we had made a decision on two counts. He then ushered us into the courtroom. At this point, JW informed us that the third charge had been dropped and that we were to give our count of the first two. We read them. The defendant was jubilant – of course. We left the court room for the deliberation room.
In the deliberation room, the babysitter told us to wait for a few minutes and JW would come talk to us. She arrived in a few minutes and immediately asked, “Who’s the engineer?” I raised my hand. She said, “You brought the knives, didn’t you.” I nodded. She the explained that my actions could have brought about a mistrial. When she learned that I had bought the knives, she had several courses of action: declare a mistrial, inform us as a jury not to discuss my actions (i.e., pretend I hadn’t bought the knives), or try and get the third charge dropped. She took the last option.
I wasn’t the only offender (but certainly the worst). While we were deliberating the previous afternoon, Bowler pulled out a pocked dictionary and we looked up some of the words in the law (dangerous, long, et al.). That was also a bad. My going to the police department was very bad.
My logic in doing all this was that I was not discussing the “case” with anyone. I was trying to find out more about the law. The interesting thing is about trials, is that the jury isn’t supposed to find out more about the law while deliberating. I’m not sure how I feel about that.
So, I asked JW how she would have ruled on the case. She said that she would have also found him not-guilty on all charges.
Anyway, Talker was really interested to hear the arguments I was going to make. Liberal Man looked briefly at the knives I purchased with a sniff of disgust (I think expressing a view that such things shouldn’t be sold).
Anyway, JW thanked us for our effort and told us we were free to go. I hung around for a moment and helped clean the room.
I was the last juror to leave. The officer and prosecutor were in the lobby when I left. I went to the officer, offered my hand, and told him that I didn’t want him to think that our decision reflected badly upon him. We felt he did the right thing (that wasn’t 100% true, but I didn’t want him to feel bad) but that the case wasn’t strong enough for us to find the defendant guilty. The officer asked me to step aside and asked if he could discuss the case with me. The prosecutor was also there. We talked for 15 minutes or so. I learned some interesting things:
- The defendant had moved out to live with another woman. Apparently that relationship went south and that was why he was returning.
- This was the first time the prosecutor was in a trial where anyone on the jury took notes.
- This was the first time the prosecutor heard anyone on the jury ask if they could ask questions during the trial.
- This was the first time the prosecutor heard a jury ask for a copy of the law and the judge’s directions.
- The judge’s denial of my request to ask questions was her call. She could have said “yes.” However, every time a jurist wanted to ask a question, s/he would have to write it down, the jury would have to leave, the judge would have to discuss with the prosecution and the defense whether to admit the question and the jury would have to be readmitted.
Concluding Thoughts
If I have the opportunity to do this again, I’d do the following differently:
- I would have asked, at the beginning (even before the testimonies began), for a copy of the laws the defendant was accused of having broken, as well as a copy of the judge’s instructions.
- I would request the proceedings stop if I ever needed a moment to take some notes.
- In the deliberations, I was the one who suggested that the difference we were having on knife vs. dangerous weapon was, in part, ideology. By doing so, Liberal Man couldn’t switch without abandoning his ideology. He was too proud to do something like that.
- When I was talking with the prosecutor, I told him, “Your mistake was allowing me to stay on the jury.” He replied, “You fit the profile.” (I should have asked him what he meant by that). I replied, “You should have asked if anyone had a concealed weapons permit. You don’t want them on your jury. I’m right – but that was the last guy in the world I should have told such a thing.
Here are some other things I learned:
Selection to be in a jury pool is no longer by registered voters but by driver license number.
Liberal Man really scares me. If people like him ever have their way, we are in big trouble. At one point in the deliberation, Liberal Man said, “Ignorance of the law is no excuse.” If only he knew. Somehow I need to let the citizens of Sterling Heights know that next time they go to Outback Stakehouse and pick up that knife to cut their stake, they’ll be committing a misdemeanor.
Bowler makes me mad. He’s a hypocrite. He carries in his truck a knife with a blade longer than the defendant’s. He never wavered on declaring the defendant’s knife a dangerous weapon, yet didn’t see a problem with him continuing to carry it. Liberal Man has the arrogance of the elite. Bowler the arrogance of the uninformed.
At one time in the discussion, Bowler suggested that we take a shot at rewriting the dangerous weapon law by specifying blade length and other things. I replied, “Do you really want to live in a society like that.” We need to get rid of bad laws, not rewrite them.
I’m bugged about the weapons charge. The defendant never used that knife. It was wrong of the prosecutor to charge him with that (or whoever makes the charge).
If any other juror had ever read the Constitution or any other book on political philosophy, they sure didn’t let it become known. At one point Mom said, pointing to me, “What do you think? You always have something insightful to say on the matter.” Although this is only my opinion, I led that jury. The decisions made were the ones I wanted (if we had deliberated the second day – I’d have gotten everyone but Liberal Man to “not-guilty” on the weapons charge). I believe I could have made that jury convict the defendant on all three counts had I desired it. I could have done this not because I’m particularly “strong minded”, but because I’ve read and thought about these issues. That thought and experience are powerful. I’m concerned by the ignorance I witnessed in that jury. If my peers, that serve on juries every day aren’t aware of and defending their liberties, those seeking to take away our liberties don’t have much to worry about.
Despite this, I now realize what a powerful thing a jury really is. Juries are a HUGE part of the Constitution – I did not know how important until this experience. As we were leaving the courthouse the first night, Talker said to me, “I can’t believe we’re spending this much time on this” (she was referring to the third charge). I replied, “If I were in the defendant’s place, I’d hope someone would be giving me the same consideration.” The jury is one last defense against tyranny. If my peers are uninformed, I am at risk.
I believe justice was served in this case. This entire thing could have been prevented if any number of things had happened differently – once principal even being the misinformation the wife gave on the 911 call. If she had told the truth, the police officer’s attitude would have been different, and maybe a peaceful discussion would have resulted. Our decision was the correct one.