Testimony from a reluctant Monterey County juror.
Thursday, November 5, 2009
Water bill, wad of Red Plum ads, charity mailings, Netflix video, Monterey County Superior Court – dammit.
“YOU ARE SUMMONED TO APPEAR FOR JURY SERVICE… Failure to respond to this summons will subject you to a fine, a jail term, or both.”
Last time I used the student excuse; now I needed a new one. Didn’t meet the specs for disqualification or excusal, but postponement for “business” looked promising. The next line asked for a week I’d be available within the next 90 days… Procrastinate, or play along? All I had to do was show up, get dismissed, and I’d be off the hook for at least two years.
Still plenty of chances to get out of this.
• • •
Squished in the back of the county supervisors’ chambers with 175 other suckers for democracy at 8:20am on a Monday, I was thinking about my work deadlines. A leathery man to my right slumped in his seat, bracing against a cane. Presiding Judge Adrienne Grover, a peppy woman at the front of the chambers, was thanking us profusely, saying she understood our inconvenience and appreciated our time.
Her empathy buttered us up for the take-home: We have a Constitutional right to a trial by jury. Without it, none of our other freedoms would be protected. A jury summons may feel Big Brotherish, she said, but if our peers weren’t given the sole power to judge our guilt or innocence, the government could just accuse people of crimes and lock them up. It happens in other countries all the time. And if we as a people weren’t willing to interrupt our lives to show up for jury duty – she scanned the room as if to make eye contact with each one of us – all our other freedoms would evaporate.
A tiny ray of God Bless America shone through the grump.
Jury staff took advantage of the tender moment to show a B-grade video about courtroom security. A woman read from a randomized roll call generated from DMV records. My name was 11th.
This was not promising.
• • •
As 80 of us were herded from the county government building to the courthouse, we might have been performance art of the U.S. Census. Excluding a few groups – notably people under 18 and non-citizens – we represented county residents across all age, gender, racial and socio-economic lines. Roughly half the group appeared to be Hispanic. I fell in line with stylish college kids, hobbling seniors, a pregnant woman, a Bluetoothed businessman.
We slid obediently onto hard wooden benches and took an oath to answer questions truthfully in the voir dire process (French for “to speak the truth”). Eighteen people – I was 11th, again – were called into the jury box, three rows of six chairs. Judge Larry Hayes thanked us, reminded us of the Constitutional importance of jury trials and read letters from former jurors who’d found the experience rewarding. Beverages in the courtroom were OK, he said, but no Styrofoam: “Make sure it’s an attractive cup.”
He then considered requests to be excused due to hardship. We’d be reimbursed $15 per day after the first day, plus one-way mileage; employers must grant the time away from work, but they don’t have to pay for it. About one-fourth of the panel begged out for mostly medical, professional or financial reasons. Hayes excused the few who said kids wouldn’t eat, businesses would grind to a halt or medical problems would worsen if they were tied up with jury duty. Minor inconveniences didn’t make the cut.
Then Hayes read the charges: lewd acts on a child under the age of 14 and indecent exposure. Suddenly it didn’t feel so much like a cattle call. If the defendant was guilty, the wrong verdict could scar the young victim for life. And if he was innocent, a conviction could needlessly destroy his family. This was a civics lesson for me, but it was justice for the people involved.
Jurors were not to be influenced by “passion, prejudice or sympathy,” Hayes said. He asked us to disclose any relationships with the parties to the trial, or with law enforcement in general. He asked if we or our loved ones had been charged with, or the victims of, any crimes.
Then more questions. Could we play by the rules of a trial, even if we disagreed with them? Would we look disfavorably on lawyers’ objections, or on the defendant’s use of the Fifth Amendment right not to testify? Did the charges provoke negative feelings about the defendant? Had we heard anything about the case before today? Could we keep an open mind until we’d heard all the evidence? Would we assume the defendant innocent until proven guilty beyond a reasonable doubt? Several people were excused for glaring conflicts and personal biases.
The next round of elimination was more personal. One by one, we introduced ourselves based on 13 biographical questions: where we were born, where we live, marital status and children, education and occupation, whether we’d sat on a jury before, etc. Hayes excused a few people who couldn’t speak proficient English.
Then the attorneys took turns questioning specific jurors. Prosecutor Rolando Mazariegos wanted to know if I was willing to convict someone based on just one person’s believable testimony. (I said I’d probably want to know more. He frowned.) Private defense attorney Richard Rosen asked if the desire for journalistic access made me partial to police. (If you look at my stories, I said, you’ll see that isn’t a factor.) Each lawyer had 10 chances to “thank and excuse” jurors without cause. They could also challenge the judge to dismiss someone with cause. As the lucky bastards left the courtroom, others took their places in the jury box (see sidebar, this page).
The process dragged into the second day, but the glimpses into people’s lives lessened the tedium. Prospective jurors included a UPS mechanic, high school football coach, singer, realtor, fire chief, pulmonary specialist, orthopedic doctor, homemaker and military officer. Some had been victims of sexual abuse. A portly middle-aged man explained, in a carefully metered voice, that his teenage daughter had been raped. (He was dismissed.) A scrawny video gamer in his early 20s said his dad had been falsely accused of molesting a child. (He stayed.)
The judge held a hard line, reputing most excuses with solutions. Can’t hear well? The courtroom has assisted-listening devices. Frequent urination? We’ll take frequent breaks. English isn’t your first language? You seem to be speaking it just fine. I whined a little about missing work – our paper is short-staffed, I said, and I have news stories to file – but Hayes wasn’t moved. The press, he said wryly, is a critical part of our democracy. Surely you and your editors understand the importance of serving on a trial jury.
I remained in the 11th juror’s chair while people shifted around me. Some who’d seemed ideal jurors were excused; others I’d pinned as goners remained. Finally – after 34 people had been dismissed, and 32 remained outside the jury box – both attorneys accepted the jury as it stood. The clerk administered an oath to the 12 of us, plus two alternates. Hayes sternly ordered us not to research, discuss or form an opinion about the case until we’d heard all the evidence. We’d report to court every day until the trial ended; he estimated a week, but it could run longer.
I texted my editors:
"Sworn in. I tried."
• • •
As resignation set in, I adapted to a new routine. Profane jams on Highway 68 trained me to commute from the Peninsula via Highway 1, cutting east to Salinas. After a few loops, I’d find parking within a couple blocks of the courthouse. I’d hand my mug of tea to the security guard, pass through the metal detector, collect my stuff and tromp upstairs to the courtroom. If our 9 or 10am starts were delayed, we’d mill around the shabby hallway hung with a clock that displayed a pathetically inaccurate time.
The structured schedule reminded me of grade school: Every day I beelined for my assigned seat, where I’d find my personal court-issued binder with paper and pens. During our one-and-a-half-hour lunch breaks, I’d wander downtown Salinas and check out new lunch spots (see sidebar, next page).
Days in the jury box familiarized me with the courtroom characters. Judge Hayes, a white-haired veteran of the legal system, presided with avuncular geniality and boss-like efficiency. To his right sat clerk Lisa Cortez, who’d speak into a phone so softly I could only see her glossy lips moving, at times pantomiming laughter. In front of the bench, Jeannette Jessup Hiura transcribed the proceedings as if in a trance, her fingers jumping like popcorn over a soundless keyboard.
The defendant, a tall man in his early 60s, sat poker-faced through most of the trial. Rosen, a local criminal defender sporting salt-and-pepper facial hair and loosely matched suits, was prone to long pauses during which he’d hold his mouth open, showing his teeth in anticipation of speaking. Prosecutor Mazariegos cut a stark contrast: compact and impeccably polished, with gleaming loafers and a bald pate that reflected the fluorescent lights. In moments of suspenseful pause he’d pucker pensively, activating dimples.
Judge Hayes appeared to be listening intently throughout, gazing downward, fingers interlaced. Occasionally he’d lose patience with digressive questioning and snap at the attorneys.
The audience was sparse: the defendant’s wife and, for a while, daughter; a few members of the victim’s family; and several drop-ins who slipped in for short stretches and then slithered back out.
THE TRIAL WAS THE FINAL ACT IN A HUMAN TRAGEDY THAT LEFT A CHILD TRAUMATIZED, A MAN CONVICTED, AND TWO FAMILIES HURTING.
A few moments challenged my composure, like when the alleged victim – a sweet-faced 10-year-old girl – recalled the creepy incident that had happened four years earlier at a family party. The defendant, a long-time family friend, had been playing tag with her, she said, when he took her into an unoccupied room, showed her his “privates,” then touched hers. She clutched a teddy bear as she spoke, at one point breaking down in embarrassed tears.
The defendant was also pitiful. He hadn’t had priors related to child molestation, but his psychiatrist said he’d suffered from depression and a nervous disorder that might cause involuntary erections. When his 23-year-old daughter took the witness stand, the weak, brave smile he gave her made my heart ache.
On the third day, the prosecutor played a pretext phone call in which the defendant, unaware the police were recording him, confessed to everything the little girl had alleged. I had to remind myself to keep an open mind. The defense brought forward an expert witness who talked about how coaching from adults can lead children to create memories that didn’t really happen.
During the closing arguments over the next two days, the attorneys propped up large-print texts of the relevant penal codes. Rosen lingered on the concept of doubt. The defendant had admitted to exposing himself to the girl and touching her beneath her underpants – but whether he’d committed a lewd act hinged on his intent, he said. If we had two reasonable explanations for the defendant’s actions, and one of them held that his intent wasn’t sexual, the law instructs us to acquit him.
Indecent exposure is defined by showing one’s genitals to someone who is “offended or annoyed,” Rosen stressed. By her own admission, he said, the little girl was giggling at the time of the incident – so she wasn’t annoyed.
Judge Hayes, however, was. The victim “might be offended or annoyed,” he interjected.
Mazariegos responded: If a man in a ski mask drives up to a bank, leaves the car running, runs inside, opens a bag and gives the teller a note that says “give me all your money,” there may be reasonable alternative explanations for each of those individual actions: He left the car running because he was late for work; it was a cold day so he was wearing a mask; he had laryngitis so he handed the teller a note. But when you add it all up, he said, there’s only one reasonable explanation: He was robbing the bank.
Before deliberations, we were sternly reminded that the law gives all advantage in a felony trial to the defendant. We could only convict or acquit by a unanimous vote; otherwise our jury would hang, and the case would be re-tried.
Bailiff Ballew shepherded us out of the courtroom. Walking past the families of the alleged victim and the defendant, I kept my expression studiously blank.
• • •
The jury deliberation room, tucked in the back of another courtroom, seemed too dingy a setting for justice. It barely accommodated a long table with 12 chairs and two tiny gendered restrooms. A pink box of donuts glistened on the table.
“Donuts. Cop food,” Ballew said with a snort. “I’m totally paranoid to eat a donut while in uniform.”
She gave us a pager and ducked out, leaving us alone to talk about the case for the first time. We were seven women and five men. At 30, I was the youngest; the senior was an eccentric voice teacher who appeared to be in her early 80s. A thirtysomething in glasses and khakis assumed the position of foreman with garrulous relish. I wanted to hear more from the quieter jurors, including an elderly Filipina lady and a stout Hispanic man who struggled a bit with their English.
But ultimately, we didn’t need to do much debating: An early poll found everyone in agreement. In the spirit of fairness, we reviewed the facts and passed around the evidence. We tried to come up with a reasonable explanation for the defendant’s undisputed actions, other than lewd intent. We could not. The conversation was strictly factual rather than emotional – in obedience, I suppose, to the dry legal instructions we’d been given.
Our deliberations barely lasted an hour. We paged Bailiff Ballew.
On my return to the courtroom, I passed the defendant huddled with his wife and daughter. They swayed together in the court hallway, heads down, holding one another as if to ensure that their family unit could not be broken.
When the clerk read the guilty verdicts, the defendant remained calm while his wife and daughter wept. Hayes hesitated over whether to remand him into custody or release him until sentencing. When the bailiff fastened the handcuffs, the defendant’s daughter ran out of the courtroom. Her wails echoed through the hallway, triggering an emotional response I’d suppressed in my role as a juror. I hurried out of the courthouse and cried for a moment on the sidewalk.
I didn’t show up for jury because of my patriotic duty; I went because I was afraid not to. The law requires the Jury Commissioner to go after deadbeats, the summons had warned; anyone who fails to respond could be physically forced to court, subjected to a hearing and punished “by fine, incarceration, or both.”
But Judge Grover says that while being strong-armed to court is legally permissible, it’s not how the Monterey County Superior Court operates. “It’s really a draconian measure, and I doubt that happens,” she says. “We’re not going to take drastic action against someone. We focus on the voluntary compliance rather than the forced compliance.”
Same goes for the order not to discuss an ongoing trial, which technically can lead to a criminal perjury charge. “Simply put, we don’t monitor or spy on anyone,” Grover says. “The only way that we would know if someone is behaving inappropriately is if it’s brought to our attention.”
Again – a reality blander and more benign than the letter of the law.
The warnings of fines and jail time fed my early sense of compulsion, but humanity emerged at the courthouse. Judge Grover’s welcoming speech took me out of my insular world and reacquainted me with my place in a democratic justice system. The voir dire process forced me to sit still and listen to the stories of people in my community. The trial itself was the final act in a human tragedy that left a child traumatized, a man convicted, and two families hurting.
According to Grover, my experience is typical. “On Monday morning you have 200 people, and maybe 190 of them don’t want to be there,” she says. “But once you get those jurors informed and engaged in the case, they take their role very seriously.”
Returning to work the next Monday, things were almost too normal. My deadlines had waited; my colleagues had covered for me. But I couldn’t shake the role I’d played in convicting a child molester.