22 March 2009


Jury Duty

As some of my Facebook friends know, I had jury duty this past Friday. My first time. I had been called to jury duty twice previously, once while living in Boston and once while living in Daytona Beach, but had never ended up on a jury.

The trial involved failure of a sex offender to register where he lived. Florida law requires registered sex offenders to report a change of a permanent or temporary address within 48 hours of moving. It defines permanent address as somewhere on "abides, lodges, or resides" for five consecutive days, and temporary address as the same for five aggregate days in a calendar year.

The prosecution's case was originated with a state's attorney who had alerted authorities to the defendant's not having registered. In that witness's story, the defendant and his brother had done work for the witness in exchange for each of them having a place to stay at first one then another property that the witness owned. The prosecution called two Daytona Beach police officers and one deputy sheriff to support that claim.

The defense stated that the defendant had done the work so that his girlfriend (or, "old lady," as the defendant referred to her while testifying) could live at the state's attorney's property. The defense called the defendant's brother-in-law who owned a house the defendant had registered as his address, a roommate there (of unclear relationship to the brother-in-law), the girlfriend, and the defendant.

Bottom line: The girlfriend ended up testifying that the defendant was at the alternative address that had never been registered pretty much all the time; i.e., he was abiding there, so we found him guilty.

But.... It was messy. The prosecution's case, by itself, would not have been enough for conviction. The state's attorney who reported the guy had served as the defendant's attorney on a prior unrelated charge, so there was more to that witness's and the defendant's relationship than was introduced in direct testimony. (That came out from the documentary evidence of prior convictions which both sides had stipulated be introduced.)

And.... The deliberations were messier. We had one person who wanted to convict the defendant based almost solely on the fact that he was a convicted sex offender, without much regard for the facts of this case. We had one individual who'd just repeat, "this is hard," and "I don't know," over and over again. We had one individual who'd say to the "this is hard" person, "let's just agree he's guilty and get out of here." We had one individual who couldn't seem to come to any kind of focus regarding the evidence, flitting from one piece to another, from one reason witness X was lying to another reason that same witness had to be telling the truth. Our foreperson was a quiet individual who pretty much let these folks and myself have our runs, but shared pretty much my perspective that the facts, as established largely through the direct testimony of the girlfriend, as well as some of what she said during cross-examination, did support the prosecution's case beyond a reasonable doubt.

It left me in a bad position: I'm not a huge fan of the way the sex-offender registration is applied well beyond the class of people who are overwhelmingly likely to engage in repeat child rape or child molestation to include a broad swatch of unpopular sexual behaviors like prostitution clients and Larry-Craig bathroom cruisers. (The defendant had been convicted of a sexual offense involving a child, but there was no information as to whether that was a six year old or a seventeen year old, so who knows in this case. (Haven't looked it up.)) The prosecution was lousy: You'd've thought that the two prosecutors had watched the O.J. trial and thought that Marsha Clark had done a great job and ought to be emulated. Several times I noted to myself their inability to ask what would be a followup question that would actually clarify things. The defense wasn't much better, because it was the the girlfriend's response to the defense attorney's direct question that established that the defendant was pretty much at the address as stated in the charging information. Three of my five fellow jurors just seemed to have a less than serious understanding of their responsibilities as citizens, with one even saying, "Why can't they decide it? They've been to school for this."

Eventually (after several hours), flitting person decided that the girlfriend's testimony did establish the prosecution's charge beyond a reasonable doubt—and flitting person had wasted much time creating fantastic scenarios, largely based around motivations that one would never be able to determine whether true or not, that clearly did not meet the definition of reasonable doubt as provided in the judge's instructions—and the two other agreed, for whatever reasons, so we came to the unanimous guilty verdict.

The defendant: A poor shmoo. A guy who's been in prison previously, who may spend much of the rest of his life in prison, off and on. The kind of person who'll likely never be far from the reach of the justice system. And yet, someone who, although presumed innocent at the get go, had beyond any reasonable doubt, done what was alleged in the charging information. Ugh.

In the selection process, they asked us about whether juries could disobey the judge's instructions, could form their own opinion about what the law should be. I noted that some believed that juries could do just that, recalling after the fact that the far right fringe calls this "jury nullification." That gave me much to think about from the time we were selected on Monday until the trial on Friday.

I came to the personal conclusion that the system we have, where legislators make the law, where trial judges instruct juries as to what that law is, and where appellate courts determine whether the law is correct within its constitutional framework and whether it was applied correctly by the trial judge and jurors, is probably as good as it's going to get. I disagree with my many of my fellow citizens on their idea that judges have no role in determining whether laws as adopted by the legislature are constitutional or not; i.e., I believe that judicial review is entirely appropriate, and I reject the broad claim that judges determining that the civil rights of an individual or class of individuals have been infringed are "legislating from the bench." Bunk. They're respecting rights enumerated in the US Constitution, the constitutions of the states, and in statute and in case law.

After participating as a juror in this case I am even more firmly convinced that a jury, in and of itself, cannot decide what is and isn't law. It's tough enough to decide whether the facts of the case are as established by the prosecution or refuted by the defense. I'd hate to be having a failure of imagination, but I find the prospect of six or twelve or twenty-three randomly selected citizens having the wherewithal to decide what is and isn't appropriate law highly unlikely, especially after years of our educational system being intentionally neglected in the areas of civics and history. For crying out loud, our somewhat vetted through elections legislators don't have a particularly strong record of clearly adopting good laws, sometimes adopting awful ones.

So, in a nation that is ostensibly a nation of laws, I accept that the role of the jury in a criminal trial is to follow the judge's instructions and decide the evidence as to the facts of the case and as to whether those facts establish the case beyond a reasonable doubt, even when the law in question is less than perfect, or where the system is, in some sense, rigged in a way that a certain class of individuals once they fall into that system's orbit, will likely never escape.

So.... It wasn't a jump-up-and-down day. It was overall sobering, leaving me more knowledgeable about my own elitist attitudes (toward several of my less than serious and less than thoughtful fellow jurors) and my own alignment to a larger degree than I'd imagined with the existing regime of civil authority.

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It reminds me in some ways of my stint as juror on a criminal case last year - we convicted the guy (rightly, I think) and then discovered that under the three strikes laws he was going to jail for a long, long time despite being (in the judge's words when she came to talk to us afterwards) a guy who "seems pretty harmless and just wants to be left alone to do his drugs."

It wasn't exactly empowering but we did apply the law to the case, whatever issues some of us (including me) had with the law.
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