Friday, March 18, 2016

Juror Number Twelve

It was the first shot that killed him. The two other bullets that entered his body were survivable, but that first one pierced his aorta. The screaming friends holding his body, vainly attempting to awaken the victim from shock induced unconsciousness likely had no idea that their friend and companion had no hope for survival. The video recorded it all, the encounter, the drawn pistol, and the three shots, the first from less than two feet away. That no one else was hurt by the large caliber bullets after they exited the body of the victim is nothing short of a providential miracle. That restaurant and bar was crowded and the victim was standing nearly in the middle of a group of dancers and bar patrons.

It took nearly four and a half years for justice to be gained for the victim and his family and associates, four and a half years for the shooter to be legally determined a murderer.

It was my job to help reach a verdict...

For the past several weeks, I have been spending much of my time in a courthouse. The building is old, well old for this area, build some fifty years ago, replacing one built in 1875. Confining, overbearing, and heavy with the accumulated weight of both justice and injustice, it is not a pleasant place to hang out. The three public elevators take seemingly forever to gather and deliver their occupants to one of the ten floors, two basement and eight above ground.

In the basement there is a small eatery. Not a particularly grand place and neither too expensive or too cheap, the best selection, in my view, is the french dip sandwich. Soda is sold by the can and bottled water and juices are available. However, heavy burdens of the structure above, the atmosphere is dense and troubled. Jurors and court staff do not mingle. There is the occasional outgoing bailiff, nice enough to chat when in the queue, but most people entering sit alone or with one or two who are well known to them. The jurors make the best of the situation and carry on with small talk.

The case was simple, the basic facts undisputed by either side. The defendant killed a man. The video camera captured the entire scene from its perch on the ceiling. Both the defense counsel and the prosecutor agreed to these facts. Where they disagreed was as to whether or not the killing was justifiable self defense or was it murder.

For approximately twelve days the jurors got to know each other, while sitting in the deliberation room, awaiting to be called in to hear testimony and see the evidence. Four women and eight men, thrown together through a not exactly random chain of events, were strangers to one another, with one exception. I happened to have a recollection of one of the jurors as he had attended the same graduate program as I did for a time. I did not readily remember his name and he did not recognize me as I had recently shaved off my beard and mustache. Apart from our common university experience, we did not really know each other.

Sitting across someone for six hours a day over the course of twelve or so days does grant a measure of acquaintance, if not intimacy. We did not sit in silence, when in our little cubby, but there were several who texted or talked with family, friends, and work, while the rest of us chatted about movies, the O.J. Simpson trial and television mini-series, food, and books.

I am normally an introvert, extremely so, but when placed in situations out of the norm for me, I put on a facade of an outgoing individual. After years of practice, it is easy to do, but by far my preference is to sit alone and observe.  Here, my facade backed me into a corner, but I did not know it until the end.

Upon the first showing of the video evidence, an individual in the audience, presumably a close family member of the victim, screamed loudly and sobbed when we all saw the defendant pull out his .45 caliber handgun and point it at the chest of the victim. The video also had sound and the sharp and heavy sounds of each round being fired hit the jury with enough force that several of us shifted in our seats.

The victim was obviously drunk. We saw him staggering around. We saw him encroach upon the personal space of the defendant, nearly twenty minutes before the first shot was fired. We saw him gesture, pointing at himself and the defendant repeatedly, but with the blaring dance music, we could not understand the words. It would not have mattered, they were speaking a language foreign to all of us.

That the defendant did not pull the gun at this time showed a measure of control however, that control was temporary. Twenty minutes later, the victim made the last decision of his life, the one that ended up costing him his life. He decided to approach the defendant one last time, in what appeared to be a playful manner. Two thin fingers, flicking down at the eyes of the man standing across from him. Words were exchanged, the playful drunk's hands come up, palms up, to his sides, as though he were asking, "why you mad, bro?"

Less than a second later, he was on the ground in a near fetal position, his life's precious liquid pumping out of him rapidly.

The defendant claimed self defense, that the victim had threatened him, but the two further shots when the victim was down and obviously not coming back up, were beyond the scope of defending oneself. They were the evidence of unnecessary force, but in tragically different ways.

After the two sides rested their cases, we jurors walked solemnly and somberly back to the deliberation room. We know had the responsibility of determining one man's fate, to be the instrument of justice, to be the judges of evidence.

At such times, juries must elect foremen or forepersons, if you prefer, who will essentially lead the group of equals in discussion, insuring everyone has the opportunity to be heard, to give some measure of order to what can be a chaotic process.

In this case, my facade was too successful and although I did not seek it, my peers decided that I should be the foreman. The issue was put to a vote and mine was the final hand raised, accepting the will of the others.

We deliberated for over six hours, over two successive days. I will not go into great detail as I have too much respect for the individuals inside that room. I will say that we first discussed the issue of self defense and rejected it. We then discussed each of the legal requirements for murder in the first degree and agreed to all but one, deliberate.  If the act under consideration was rash or impulsive, it could not then be deliberate. For six hours, we discussed, argued, and considered this point. That is six hours within that room.

As we were not given the case, for deliberation, until the afternoon, we only had a few hours to review the evidence and talk amongst ourselves before calling it a day. At this point, the majority was for for murder one, the rest for murder two. We agreed to sleep on it, to ponder it in our minds, and then to come back the next day to take up the discussion once again.

I did not sleep that night. The responsibility of being a juror means examining the evidence, judging for ourselves, but not making any firm decision outside the room designed for that purpose. As I tossed and turned, the thought kept returning to my mind, the prosecution must prove beyond a reasonable doubt. MUST prove. MUST PROVE.

One would think the video recorded it all.

One would think that.

Yet it did not.

We cannot see the thoughts inside a person's head, at least not yet. As much as I had wanted to decide one way, in that room, I wanted, and we all agreed, that justice required us to not rush to a verdict. To give the process its appropriate time and consideration. It was obvious, before we went home, who impassioned some of us were towards a particular outcome, but several of us could not reach that same point. At least, not without being true to ourselves.

As we entered the room for the second day of deliberation, we had a brief discussion and again voted in secret, the result was the same as before. Now, we were more polarized in our discussion, with each side hardening themselves to their decision, which was not where we needed to end up.

I ended up making the final argument, repeating what had been going through my head all night long. As much as I wanted to, and unhappy with the situation as I was, I felt and still feel, the prosecution failed to prove the act was deliberate. There were various factors that played on my thoughts, including intoxication and provocation, and these same thoughts bothered several of the others, who felt similarly as I did.

All of us felt the injustice of the killing, the sheer wrongness of what had occurred, but those alone do not define cold-blooded murder.

As we continued to talk, another changed his vote to match my own. He agreed with my argument and added more of his own. This further snowballed into another adding further to my argument and switching his vote.

Justice is a double-edged sword, it must cut evenly both for and against both parties; Justice is blind.

In the end, we all of us agreed that the prosecution left us hanging. We agreed that we wanted more, but there was no evidence of more. We only had what had been placed before us and we did not like it. In the end, we followed the admonition of the Court to deliberate the evidence, to follow the law.

In the end, we agreed that the act of killing was impulsive and rash...and in no way justified. We agreed to murder two.

This was my first murder trial as a juror. I hope to never have to endure such a trial again.


  1. We sound quite alike in character. When I was a juror several years ago, I also put on the non-introvert facade and wound up being elected "Madam Foreman". It wasn't a murder case, thankfully - I can't imagine how difficult that must have been for you and your fellow jurors.

    Ours was a mixture of handling stolen goods and video & software piracy - some 30 specimen charges from a list of about 600. We couldn't reach agreement on a couple of the charges, but the rest were clear cut and everybody agreed he was guilty of those. I had the tough job of trying to find a decision on those charges that we could all support and then deliver the verdict.

    The three charges we returned a "not guilty" on were the first, second and fourth. As I delivered those I could see the detectives' heads sinking into their hands, thinking that their whole case was going out of the window.

    I can now appreciate the third verdict allowed under Scottish law - "not proven" - where you are pretty sure the defendant is guilty, but the evidence isn't enough for the "proven beyond a reasonable doubt" test. If we'd had that option, my job as foreman would have been a little easier.