Wednesday:
Wednesday was really two days. In the beginning I was on the jury, and at the end I was a juror.
As we entered the jury box in the morning there was what looked liked a nice older white fellow in the witness box. Judge Adams noted everyone in attendance for the record, and we took our seats. The assistant DA called the man as a witness and began what appeared to be the standard routine of establishing identity and credentials for us. This man ended up being the doctor who had overseen the examination of the victim. He had a stellar record as a physician and specialized in child molestation cases. He cited a study that made reference to the idea that in child molestation cases "normal is normal." This meant that it was possible and even common for a girl who had been a victim of sexual abuse to have an intact hymen. He described the hymen as "mucosal tissue," much like the lining inside of our cheeks. Because it was mucosal tissue, it had the ability to repair itself over time if it was only partly damaged. It was also very elastic and difficult to damage in the first place. He also said that non-sexual contact could indeed tear the hymen and lead to false positives. Things like bicycle accidents. He was asked what the results of the victim's physical exam were. "She was normal, which is normal." No physical evidence.
The witness was passed to the defense.
"Did you do the examination yourself?"
"No, the nurse on staff did. I reviewed the report and the photographs as the attending physician."
"So you never actually examined the girl at all?"
"No."
"And even if you had you would never be able to tell if any abuse had or had not occurred anyway."
"That's correct."
"You signed off on this report?"
"I did."
"Can you read me on page three the physical description of the patient?"
"Teenage black female"
"Black female? When she's so obviously Hispanic?"
"Well, it was an honest mistake. The nurse has a heavy caseload."
"That's a pretty basic thing there. How many other honest mistakes are in this report?"
"You cited the study that says 'normal is normal.' Did you bring that with you for the jury to evaluate?"
"No, but I can have my office fax it over."
Oliphant stood up. "Judge, if we can take a quick recess I can produce that study for you."
Judge Adams looked at the defense. "Do you feel like you need to see the study?"
"No Judge, that won't be necessary."
At this point the whole judicial process was really starting to fall in line for me. It never had registered in my mind the degree to which everyone and everything had to be constantly coordinated in order to retain fairness. The day before, everyone involved had to wait a solid hour while the last juror fought traffic before anything could begin. The judge, the attorneys, the witnesses, the bailiffs, the court reporter, the translator and us. Now if the defense had decided that he did want to see that study then we'd all be forced to wait around while it was found and faxed before we could take another step. The judge, the attorneys, any other witnesses called for that day, the translator and us. We couldn't just review it later because that would potentially cause someone to miss an opportunity to find a flaw in the study and press it with the witness on the stand. All the while a man's life is hanging in the balance here based on what we see or miss or forget when the flow gets broken up. We weren't allowed to keep notes, so flow was very important. It was quite the dance.
The doctor was dismissed and a nice looking black lady was sworn in. She was identified as the victim's algebra teacher. She did the basic character witness thing, describing the victim's intelligence and dedication to school and her family. She seemed like a genuine fan of the victim and gave a glowing report. She identified herself as one of the people with whom the girl had confided about the abuse after her stepfather's arrest. The defense objected occasionally when the teacher was asked to testify to things beyond her knowledge or expertise. Throughout the whole trial the defense objected actively and was never once overruled. On cross examination the defense was once again excellent.
"How long were you her teacher?"
"One semester."
"So one hour a day for one semester is your only real contact with this girl?"
"Actually our class was three hours per day three days a week."
"How well do you feel you know her? How seriously did she take her schooling?"
"Oh very well. I'd trust her with anything. Math wasn't her best subject, but she tried very hard."
"Would it surprise you to know that while you were her teacher that she skipped school often enough to get called before truancy court?"
She was very obviously surprised. Her eyes got wider and she sat back in her seat a bit. She thought for a moment.
"Yes it would. I didn't know that."
The witness was excused and we broke for lunch. I took a packed elevator down to the cafeteria, grabbed some food and plugged into the internet for a while. I had also taken to getting back up to the seventh floor after lunch (by way of packed elevator) and sitting in front of the big window wall that looks out over downtown and meditating a little. The whole experience had been very taxing on the mind.
Back in the jury room we had begun forming into little cliques. The two Hispanic ladies were now thick as thieves, as was the clump of older white men. No one discussed the case, but we had become comfortable enough with each other to talk about everything else. I never really identified with the people my age, instead bouncing between being a loner and interacting with the ladies and the older men. All four of the Hispanics in the room confirmed our respect for the job the translator was doing. I talked cooking with one of the men, business with another, and religion with the women. I noted how incredibly inappropriate it was for the TV to be tuned to the Judge Judy wannabe who was shaking her head and waving her finger and scolding the witnesses. Honestly, in this room of all rooms in the world they had it tuned to that.
We reconvened and there was a good looking twenty-something Hispanic girl with long straight black hair in the witness stand.
The prosecution asked questions that revealed her identity as the social case worker who did the forensic interview on the victim on the day that she confessed. She described the training that she had undergone in order to reach her level of qualification. This training included thousands of hours of interviews and case-study, heavy peer review, and passage of a written and oral exam. She described the techniques that she uses in the interview which is rigidly structured, scientifically studied in medical journals, and designed to identify people who are lying or have been coached. Specifically she wants to see a victim have the capacity to describe an event in detail from beginning to end including the things that happened directly before and after an incident in question. She also wants to be sure that a person can make detailed sensory descriptions of any sexual contact. She told us that if people are lying they will often not know exactly what a penis looks or fees like, or will not have details made up about a story outside of the actual incident. She conducted the interview with the victim on the day of her outreach, which at this point was well over a year ago. The police officer who had testified the day before was present for the interview in question.
The prosecution then produced the video of the interview and played it in its entirety. In the video the camera was behind a two-way mirror and you could see the police officer's hands in the reflection as he wrote notes. The girl entered the room looking very calm, and the social worker introduced herself and explained what they were about to do. She explained that they were recording the interview from behind the two way mirror. What followed was almost a carbon copy of the testimony that we had heard from the girl the day before. She described the years of abuse, the coercion into handjobs, the idea that her stepfather was preparing her to have a boyfriend, the spying, the text messages, the feeling when he would put a movie on for her little sister and call her into his bedroom. Then she described the specific incident on her brother's birthday in detail from beginning to end. She talked about going into the bedroom, her stepfather taking his clothes off and then hers. The feeling of excitement and shame. The way he pried apart her legs and put it in a bit before she managed to turn over and reject him. The fact that she went into the bathroom afterward to wash her face, and found her stepfather turned over and asleep when she eventually re-emerged. Everything was consistent. Her story, her demeanor, her appearance were all remarkably similar to what we had seen for ourselves the day before. She was asked to describe his penis. She said it was long and slimy, and had a big piece of skin on the top that would move up and down when she gave him handjobs. She was asked to describe what it felt like when he put it in her. She said it felt like a burning sensation and that it was pushing her too far open.
At this point in the video the social worker asked the girl to stay put for a moment while she conferred with the police. She left her some paper and a pen and encouraged her to doodle while she was gone. The social worker left and the girl put her head in her hand.
And she left it there.
The tape continued to roll, and for what felt like an eternity we sat and watched the girl sit alone in the chair with her head in one hand. She rubbed her head a little, then leaned back down into her hand. She looked genuinely pained, and that look was burning into my mind for a very very long time. After about five minutes of an entire courtroom sitting in silence and observing this girl enduring the reality of it all, the prosecution got up and fast forwarded to the social worker's re-entry. The worker produced two anatomical drawings and asked the girl to point to the various body parts that she had described. Then she drew circles where she had pointed. As they stood up to leave the girl continued to speak. "Did I do anything wrong?" "No honey. That's what you should have done." "Dad's gonna be pissed."
The video ended and the social worker testified that nothing had been edited or changed from the original interview.
The witness was passed to the prosecution.
"Is it your job to determine whether a person is lying or telling the truth?"
"No, I just conduct the interview."
"So to you it doesn't matter at all whether someone is lying."
"No."
"You cited all of the peer review and the studies associated with this interview technique. Did you bring any of that with you for the jury to review?"
"No."
"And your only contact with this girl ever was the interview that we saw. You never talked to her before or since?"
"That's correct."
"And when you conducted this particular interview you had only been certified for a few months."
"Yes."
The witness was dismissed and the prosecution rested. The defense rested as well. We retired to the jury room for a while as the attorneys prepared the closing statements.
Tension in the jury room was relatively high after all of that, so we turned off the TV and started joking around. I talked cooking with the guy I had been talking with before. Other people cracked jokes. We were all interacting just to keep the tension at bay. After thirty minutes or so we were reconvened in court.
Once we sat down and the judge re-stated the people in attendance for the record, DA Oliphant broke into Law and Order again.
"'Did I do anything wrong?' she said. 'Dad's gonna be pissed' she said.' 'Your mother wouldn't understand' he said. 'Come look! He wants to see you. He misses you.' he said, and then he pulled out his penis and showed it to a twelve year old child. You heard testimony that less than ten percent of child molestation cases are ever even reported. This girl knew what her stepfather was doing was wrong. She knew that her mother wouldn't believe her. She knew that when she reached out for help that it would destroy her family. But she did it anyway, and now more than anything she needs for you to believe her." Oliphant was walking around the room now. It felt like she was looking right at me the whole time. She stepped back toward the defendant. "For her whole life this girl has been entirely selfless. She graduated from school early so that she could work to support the family. She went to the grocery store with this this man" Oliphant gestured heavily at the defendant and I stifled a laugh "even though she knew what would happen so that she could please her mother and do right by the family. She was innocent. She was a child, and this man" Oliphant gestured again "took her innocence from her. He was selfish. Everything he did was to make himself feel good. He never cared about her. He just wanted her to play with his penis. He wanted handjobs. He wanted oral sex. He wanted real sex. And what he wanted he went and took. Because he was selfish. What this man did was illegal, it was wrong, and it happened for years. It happened when she looked like this." Oliphant produced the photo of the victim when she was twelve and walked it across the front of the jury box. "Either that, or that little girl is the best actress in the history of the world." Her face and neck flushed a bit as she continued with the theatrics. She stomped around, raised her voice, waved her arms and generally put on a show. She was clearly going for the emotional content, but that stuff doesn't do much for me as a juror.
When she finished she returned to her seat. The defense stood, a stack of papers in his hand and walked to the center of the room. At this point I thought I knew exactly what he was going to say. The girl had shown an ability to sustain lies for long periods of time. Her parents were controlling and oppressive and she wanted to get away. She wanted revenge on her stepfather for spying on her and not allowing her to have a cell phone or play sports. She told a lie to the cop and he acted too quickly. There's no evidence that any of this actually happened. Reasonable doubt.
I was sure that was where he was going to go. I was at least a little wrong.
"Four hours. That's how long it took for the officer to decide that my client was guilty and arrest him. He didn't subpoena the text messages. He didn't look for any physical evidence. He just listened to the story and arrested my client." The defense lawyer was calm, though he was a little preoccupied with the notes he had in his hand. "When we talked to you on Monday in voir dire we talked about the burden of proof. We talked about the fact that you can't draw any conclusions on this case based on whether or not my client testifies on his own behalf." He looked down at his notes and flipped through the pages for a moment. "When the nurse examined this girl she noted that she was a black female. Her teacher didn't know that she had gone to truancy court. This is the kind of evidence that the prosecution is asking you to put a man away in prison for." He continued on, but never really brought motive for lying into the equation and never really wrapped it all up in a bow. He was as disorganized and unconvincing during closing arguments as he was disciplined and sharp during the case as a whole. I was surprised.
Once closing arguments had finished the judge read the charge to us again. While Judge Adams is an entirely respectable judge, an orator he is not. He hurried through the charge, which included a definition of the crime as well as the instructions on what we were and were not to consider during deliberations. He sounded both fast and bored, and everyone in the room tuned him out. We were dismissed to deliberate.
-----
When we all got back into the room it was about three in the afternoon. The bailiff said, "Now if you guys get hung up don't sit here beating each other's brains in. That just wastes time. Hit the button and send out a note." I nodded. Our first order of business was to elect a foreperson.
"Alright, who wants to be the fore?"
Everyone ducked like they were being dive-bombed by pigeons. I sighed.
"I'll do it if no one else will." One of the ladies almost hurt herself pushing the stack of papers over to me.
"Is that what he just read to us?"
"Yep."
"Can you read it again? I couldn't hear a word he said."
The room turned into a chorus of "Me neither."
I read the charge aloud. It took a few minutes to get through everything, but at the end of it everyone was clear on what we were discussing.
"Alright, the first thing we need to do is take a blind gutcheck vote and see where we're all standing." I grabbed a notepad and started tearing off pieces of paper. As we were passing the paper and pens around I had an uncomfortable thought: What if we're already unanimous? Do we just convict the guy with no discussion? I thought he did it, but I thought the case deserved at least a little deliberation.
I stared down at my blank slip of paper.
I saw the words "not guilty" on the slip in my mind, but I couldn't convince my hand to write it because I knew it would be a lie. Once I had collected all of the papers I continued to hesitate.
"Alright, what happens if we're already unanimous?"
"We go home." The other cook.
"Seriously? I mean, after all that we don't even discuss it?"
One of the ladies spoke up."What's the point of arguing if we all agree?"
"Alright, well lets see what we have."
I opened the papers one by one. I did not read them aloud, and I put them into a different stack as I read them.
guilty.
guilty.
guilty.
guilty. This one was mine.
guilty.
not guilty. I breathed a sigh of relief and put it in a separate pile
guilty.
guilty.
guilty.
guilty.guilty.
guilty.
"Well we're not unanimous, so lets talk about this a bit."
One of the Hispanic ladies spoke up. "That was eleven to one wasn't it?"
"Yes it was."
"Alright, where do we go now?"
"Well let's talk about it."
In my mind, the best way to resolve this was to point out all of the holes in the case and ask ourselves if those holes mattered enough to add up to reasonable doubt. I solicited problems from the group and started writing them down on the whiteboard that was hanging on the far wall. After thirty minutes or so we had a list.
-No DNA
-No text messages
-Normal exam results and no physical evidence
-Poor exam documentation
-Teacher surprised by truancy court
-Girl could sustain lies about her age
-Difficult to find time alone with mother usually out of work and sister always at home
-Fast move to arrest by the cop
After taking some time to go through all of the problems I still couldn't personally find any crippling logical problems with the girl's story, and I sure did buy her delivery. Most of the room agreed with me. There was one consistent dissenting voice though, and I knew we had found our holdout.
The lone black man in the room crossed his arms, put his feet out and said "I made up my mind on the second day. I can't convict based on what that cop did. I mean, that could be a case of mistaken identity." This type of thinking frustrates me in general, but I kept my cool.
"In the end, it doesn't really matter if we believe the cop. What matters is if we believe the girl. The cop wasn't a witness to what went on."
"But how can we reward that kind of police work? I mean, he could just set anybody up. I know as a black man I've been profiled before."
"Hey, I'm not arguing that the cop didn't do a crappy job. There's no doubt he did. What I'm saying is that it doesn't matter. During jury selection we all said that we could convict based on one person's testimony. In this case my mind is going on the girl by herself."
"I made up my mind on the second day."
"You're not even going to discuss this?"
"I made up my mind."
One of the women spoke up.
"Don't you believe her? I mean, this man did that to her for years and you're just going to let him walk?"
"Sorry. I made up my mind. That cop didn't have no right."
"Alright, is there anyone in the room that feels as strongly on the other side as he does on that side?"
Three hands went up.
"Ok, so what happens if we hang up?"
One of the jurors was a lawyer. He spoke up. "If we hang, then they have to re-try the case for a conviction. He's not off the hook, but they have to do this whole process again and the girl has to testify again."
This was crap. We were supposed to decide this case based on the merits of the evidence, not on our personal prejudices. We all swore that we would do exactly that, and now this guy was going to hang us up because he didn't think the cop's work was clean enough? I was frustrated. We continued to discuss, hoping to find some common ground, but the holdout wasn't moving. At one point one of the women started to become disrespectful, but as a group we got that under control quickly. I was giving everything I could to keep the discussion from becoming a piling on, and I think that together we succeeded in avoiding that. We talked more about the case, sometimes including the holdout and sometimes not.
The entire discussion process reminded me of being at a poker table. Poker players police themselves for the good of the game, and as a jury we were doing exactly that. At a poker table if someone spots someone miscounting a bet he'll speak up. If the dealer misreads the board the players will point it out. In the jury room, even though I was directing the meeting the onus was not entirely on my to keep everyone in line. Whenever people would start to speculate about things not in evidence someone would point it out. Whenever someone would try to shift the burden of proof to the defendant I would politely redirect. I developed a great respect for my fellow jurors and lamented the fact that we were hung.
When it was apparent that the holdout was not going to budge no matter what was said we conceded as a group that we were hung. I buzzed the bailiff and wrote a note. "The jury believes it is hung." The bailiff took the note and a few minutes later he re-entered the room. "Alright guys, the judge says to be back here at nine am tomorrow." He walked out and we began gathering our stuff to leave.
I asked the holdout one last time.
"Is there anything the girl could have said to cause to convict?"
"Nope."
My heart sunk because I knew we were letting this man off for an explicitly prohibited reason. If the holdout just didn't believe the girl then I'd be fine with a hang up. It would have made sense and been perfectly legal.
He wasn't even considering what the girl said.
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