I finished serving on a jury a few days ago - I was foreperson of a jury in a fairly serious criminal trial - and I wanted to give you my impressions and thoughts while still fresh in my mind. This was my first time on a jury of any kind. I was one of some 400 people who received a summons. I have no idea why I was chosen to be on a criminal case (there were several civil cases that also required jurors). I assume my being called up to sit in the jury seats where I was questioned by the judge, prosecutor, and defense attorney was similarly coincidental, and I apparently passed muster. The jury was informed by the judge before our jury started deliberations that I was to be foreperson. Neither I nor anyone else on the 12-person jury objected. But enough about me. Let's get to the case. The following are the agreed-upon facts, unless otherwise indicated.
The Facts
In the summer of 2012, in a city a little north of New York, a couple were arguing in their apartment. The man, African-American, was in his 40s. His girlfriend, 20 years younger, was Caucasian. (I am not revealing any names, to protect the not-guilty). At some point before two in the morning, the man left. His girlfriend followed him into the street.
At this point, an unmarked police car, with two officers in plain clothes, drove by on the street. They were on car-jacking and auto-theft patrol - seeking to stop people from breaking into and stealing cars. Noticing the woman standing in the street, they slowed down. They then noticed a man (her boyfriend) on the sidewalk - who, they said, briefly ducked down behind a car when he saw them. This resulted in the officers stopping in their car.
Accounts differed slightly as to the words exchanged at this point. The officers say that the man said to them, "What the fuck are you looking at?" (Note that cursing a police officer is not illegal in this jurisdiction.) In any case, this was enough to get the officers out of their car. They approached the man, who then allegedly said, "What the fuck do you want?"
Although the officers were dressed in plain clothes, they claimed that they had badges on lanyards around their necks which were clearly visible. They claimed they identified themselves as police officers. They noticed that the man had a gym bag in one hand and a small packet in the other, and dropped both on the ground. He started to walk away. Suspecting, the police officers said, that the small bag contained an illicit drug, they told the man he was under arrest. The police say they no longer suspected a car jacking or auto theft at this point.
The man kept walking. One of the officers ran up to him and grabbed his arm in an effort to handcuff him. In the brief struggle that ensued, the officer sustained a broken nose - allegedly the result of the suspect's elbow, which the suspect swung behind him - and his partner sustained a broken hand. This was acknowledged by that officer to have been caused by his punching the suspect's head, in an effort to subdue him.
The suspect was charged with Assaulting a Police Officer (a felony), and three misdemeanors, Obstructing Governmental Administration, Resisting Arrest, and Possession of Marijuana (which was found to be in the tiny packet).
The only tangible evidence presented in the course of the trial were stipulations by a doctor that the officer's nose had been broken, and by a forensic lab that the contents of the dime-bag were marijuana. The rest was testimony by the two police officers, testimony by two additional officers who arrived on the scene after or just as the man was handcuffed, and testimony from the man's girlfriend.
My Assessment of the Facts
My thoughts before we commenced deliberation: A man and his girlfriend are having an argument, he leaves, she follows him out to the street, and, their bad luck, an unmarked police car comes by. The officers were right to slow down and see what was going on, but no one alleged that there was any physical violence whatsoever in the street. Indeed, all parties agree that the couple were not even involved in a verbal argument at this point. But I think a woman standing in the street at two in the morning, with a man nearby on the sidewalk, was ample reason for a police car to slow down. The officers were similarly right to be concerned that a car jacking or auto theft might have been about to happen. But no car jacking or auto theft did happen, and the police soon concluded that no carjacking or auto theft was taking place.
So why, then, was the man put under arrest? The officers say it was because of the small amount of marijuana which they suspected was in the packet, and apparently was. But I think a more likely explanation is that they were angered by his attitude and cursing - neither of which, again, are illegal in the jurisdiction in which these events occurred.
Was the man right to be angered? Who wouldn't be angered if, right after a nonviolent dispute you were having with your significant other in public, you were approached by strangers looking into your business? If the strangers were police officers, and you knew you were doing nothing wrong, would this make you less angry? Not likely.
Should the man have been more cooperative with the police? Sure - that would have served all parties well. But did the man break any law by having an aggressive attitude?
I couldn't help thinking: This is Justice in America. An argument with your significant other with no violence to either party ends with your being charged with a felony - assaulting a police officer. Whose fault was that?
The Jury's Job
We were instructed by the judge - who in my view did a good job - that our job on the jury was to determine whether the facts alleged by the prosecution were true. In order to reach a verdict of guilty, we had to believe the prosecution's account "beyond a reasonable doubt". You've all heard of this standard. The judge correctly explained that, in human affairs, few things are subject to 100% certainty. So we did not need to be 100% sure of every charge. But we had to be a lot more than pretty or even mostly sure. If the Prosecution presented 100 points, and we had significant doubts about even one of them, we were bound to find the Defendant not guilty. In fact, we all swore an oath to uphold that standard.
The Prosecution's case against the Defendant for assaulting a police officer depended on three points - each of these had to be proven beyond a reasonable doubt in order for us to render a verdict of guilty: (a) that the injury (broken nose) had in fact occurred, (b) that the defendant knew at the time he caused the injury that the recipient of the injury was a police officer, who was legally performing his work, and (c) that the injury was a deliberate act by the defendant - that he swung his elbow with the express intent of breaking the officer's nose, or at least causing him bodily harm.
Point (a) - the broken nose - was beyond dispute, and acknowledged by the Defense. Point (b) - that the defendant knew he was in a tussle with a police officer when the defendant swung his arm - was not as immediately obvious. At what point did the defendant know the two men who approached him in plain clothes were police officers? Presumably when one of the said "you're under arrest," which presumably happened before the fight. But there was no proof like the broken nose to indicate exactly when the defendant was so informed. Point (c) was the least obviously true. Did the defendant swing his arm to hurt the officer, or was the officer hurt as the defendant struggled to break free? The Defense in fact claimed that the broken nose was accidentally caused by the officer's partner during the fight.
This assault charge was by far the most serious, and I suggested to the jury that we consider that first.
The Jury's Deliberations
The jury consisted of twelve people - nine women and three men. No African-Americans were on the jury. (An African-American man who was questioned by the Judge, Prosecutor, and Defense Attorney during the selection phase was not chosen.)
I began by asking for a straw poll on the assault charge - non-binding, to get a sense of where we stood as a jury. The majority of the jury were undecided. Among those who were decided, there was a slight majority in favor of a guilty vote.
The undecideds were interested in the guilty and not-guilty voters explaining their opinions.
Those who thought the defendant was guilty beyond a reasonable doubt cited the broken nose, and their belief that the defendant deliberately tried to break the officer's nose or otherwise do him bodily damage in order to escape.
Those who thought the defendant was not guilty beyond a reasonable doubt were less than sure that the defendant knew he was swinging his elbow at a police officer, and even more unsure that the defendant was deliberately trying to hurt the officer. These jurors thought it a reasonable possibility that the defendant was trying to break loose and flee, and the officer's broken nose was a result of the Defendant flailing in an attempt to break his arms free rather than a deliberate attack on the face of the officer.
I was among the jurors who had reasonable doubts about the Defendant's guilt, mainly because I saw no evidence that he was trying to do harm in contrast to trying to break loose and flee. I mentioned the well-known distinction in sociobiology between fight and flight - most mobile organisms including humans do one or the other as a first response to imminent danger, and are just as likely to try to flee as fight.
There was also the question of the reliability and truth of the Prosecution's case. One problem with presenting more than one witness on any side of a case is that they all must agree. There were inconsistencies in the testimony of the officers, and the Prosecutor in his summation made no attempt to explain this. We took another straw poll before we broke for lunch. The undecideds were now in the minority, and those who changed their vote had decided to join the not-guilty voters. But there was still more than one juror strongly in favor of a guilty vote.
When we resumed deliberations after lunch, I mentioned that if we could not reach a unanimous verdict, and we reported that to the judge, then the judge might well declare us a hung jury. The Judge could then dismiss the case but more likely would allow the Prosecution to decide whether to retry it. In any case, our deliberations would have likely been in vain. Those who wanted a guilty verdict said they very much did not want that to happen - they wanted our jury to reach a verdict.
I mentioned that, short of a time machine, there was no way we could go back in time and see for ourselves what actually happened in that street. I said all we therefore had to go by was what the Prosecution and the Defense and their witnesses had told us. And, although there of course were strong differences between the Prosecution and the Defense, there were no inconsistencies or contradictions within the Defense's case. In contrast, everyone on the jury agreed that there were indeed inconsistencies in the Prosecution's case.
I asked the jury - does this not mean that we have reasonable doubt? We went around the table and expressed our views. Those who had wanted a guilty verdict said they still felt in their bones that the defendant was guilty, but they could see that there could conceivably be a little bit of doubt because of the contradictions in the Prosecution's case. The four jurors who had wanted a guilty verdict now each confirmed that they had this doubt. We voted again. Our jury was unanimous on the Assault felony charge: Not Guilty.
The Other Charges
The sense of most people on our jury was that the Defendant had indeed at some point resisted arrest, and that the bag he had dropped contained marijuana. The Judge had instructed us that we were not to base our verdict on the marijuana charge - a very minor misdemeanor - on any view that marijuana should be legal and the law was wrong. Our job was to judge or try the facts, not the law.
But the second charge - "Obstructing Governmental Administration" - was a problem for many of the jurors, including me. How was that different from "Resisting Arrest"? And if no different, why was the Defendant being charged twice with the same crime?
During the trial, no charge other than the felony assault had been addressed by the Judge or the lawyers. We asked the Judge to explain the difference between the two charges. He replied by reading the law for each charge. We still needed clarification. I proposed to ask the Judge, can you give us an example of a crime would which be Obstructing Governmental Administration and which would not be Resisting Arrest? His reply was extremely helpful: Obstructing Governmental Administration in this case would be any alleged crimes which were not Resisting Arrest.
I asked the jury if they could think of any actions by the Defendant against the police on that evening that obstructed the police - other than the alleged Assault, for which we had found the Defendant not guilty, and Resisting Arrest? No one could think of an example - because in fact none had been presented in the trial. We voted on the Obstructing charge. We unanimously voted: Not Guilty.
The Defendant's Resisting Arrest was in many ways beyond dispute. He certainly had resisted what the two approaching men had told him to do. Did he not know they were police officers? The Defense had mentioned that they were dressed in plain clothes, and the girlfriend had said she and the Defendant had not known who the two men were at first, but what about the moment when they said "You're under arrest?" Without any evidence or testimony that the Defendant did not know the men were police officers at the moment they tried to put him in handcuffs - which seemed very unlikely - the vast majority of the jury wanted a Guilty verdict on this misdemeanor charge.
I thought the Defendant had been mistreated by the police in this incident, that they had allowed it to escalate and even instigated the escalation by their poor performance, but I could not think of any evidence that showed the Defendant did not know the two men were police at the time the handcuffs were applied. I and the few other jurors joined the majority and reluctantly voted Guilty on Resisting Arrest.
I similarly was not happy about the Possession of Marijuana charge - such possession is already legal in many jurisdictions and will sooner or later be legal in all. Everyone on the jury acknowledged this. But we had to have reasonable doubt about whether the Defendant was carrying marijuana in order for us to acquit him on this charge - for example, we needed to think that the police might have planted this evidence. The Defense had made no claim that this is what had happened, and no evidence or argument had been presented that the police had done this. On this last, very minor charge, the verdict was again unanimous but also mostly reluctant: Guilty on Possessing Marijuana.
The Aftermath
I stood up in court, from my juror's seat, and announced the verdicts, just like you see it done on television. When I was asked by the clerk for the jury's unanimous verdict on the Assaulting a Police Officer charge, I said Not Guilty, with an emphasis on the Not. It did my soul good to be able to say this.
A man who had been doing nothing wrong - except, technically, possession of an illegal substance which is legal to possess in many parts of our country - stood trial and stood to lose years of his life in prison had he been found guilty. The jury informally had all agreed that the police had not handled this situation well - allowing a suspicion of car theft, which had not been going on, to escalate into a struggle which had resulted in a broken nose and a broken hand. And we also had agreed, formally in our verdict, that we did not believe beyond a reasonable doubt that the Defendant had intentionally sought to break the officer's nose, or do harm to his body. So the Defendant had been found Not Guilty on this serious charge.
As the jury was dismissed and left the courtroom, one of the alternates came up to me and said, "Good thing I wasn't on the jury, I would have been the one hold-out against your decision."
Good thing, indeed - though this alternate may well have come to agree with our decision had he sat with us in our deliberations. But I believe a good thing was indeed done that day.
It's rare to be able to have a profound influence on the life of a person you do not even know. But I believe we did that day. We fairly considered all of the evidence and the testimony, and concluded that he was guilty on the two most minor charges. His acquittal on the serious felony charge will give him a chance to re-set his life. Given that he had done nothing wrong that evening until the police dressed in plain clothes approached, he deserved that chance - in a moral sense. And the lack of evidence that he intended to hurt the officers showed he deserved that chance in the legal sense.
On that day, at least, I believe Justice had indeed been done in America.
podcast of this blog post, with a July 4, 2020 postscript
There are monsters in Making a Murderer, the 10-hour documentary released on Netflix just a few weeks ago, but likely not Steven Avery and definitely not his nephew Brendan Dassey, both sentenced to life imprisonment for the murder of Teresa Halbach ten years ago, in 2005. No, the indisputable monsters in this true story are police, prosecutors, and Dassey's first defense attorney.
A fine, different kind of Bones tonight - episode 9.9, debuting at the new time, Friday night - which brings us Bones not just in the courtroom but on a jury.
