Saturday, February 02, 2008

Impressions of Jury Duty

As a lawyer, I never expected to be selected for jury duty. Although I have gone through voir dire several times in the past, I had always been struck or not reached. As a result, when I was called for service in County Court at Law #7, I expected to be back in the office by the end of the afternoon.

When I was seated in the jury pool, the odds were still against being selected. I was seated in position #12. A misdemeanor jury consists of six jurors. That meant that in order to be picked, five people ahead of me would have to be struck and I would have to avoid being struck myself.

Voir dire was both a warm-up for the trial itself and an interesting examination of the human condition. This case involved a misdemeanor DWI charge. Out of the randomly selected jury panel, there were several people with DWI arrests and one person who had lost a family member to a drunk driver. There several panel members who expressed distrust of police in general. Balancing them out was a jury member who volunteered that he had not had a drink since the 1970s. There was also a medical doctor who was familiar with a specific test which would prove to be important later on.

There were several interesting moments during jury selection. The prosecutor asked the panel for a show of hands to see how many people had driven under the influence of alcohol. At least half the hands on the jury panel went up. At this particular moment, the defendant chose to stretch and thus raised his hand as well in subconscious answer to the prosecutor's question. When we were seated, there was a box of girl scout cookies poised on the edge of the railing between the jurors and the lawyers. Finally, when it was time for the defense lawyer to ask his questions, he picked up the box of cookies and used it to prop up one of his charts, prompting a collective "aha" moment from the jury panel. Those cookies had no doubt been on everyone's minds throughout the prosecutor's questions.

The lawyers did a good job of using voir dire to preview their case to the point where the opening statements the next day were almost superfluous. Based on the questions that were asked by both sides, it was possible to deduce that this was a case where the defendant was not falling down drunk, that his performance on a field sobriety test would be important to the case, that he had refused to take a blood alcohol test and that the burden of proof to show guilt beyond a reasonable doubt (as opposed to just being probably guilty) would be important.

I was questioned several times by both the prosecutor and the defense attorney. This made me feel like my time in sitting through jury selection was not being completely wasted, since at least my presence was being acknowledged. I managed to flub my answer to the question of what preponderance of the evidence meant, saying that it meant more reasonable than not, instead of more probable than not. I also got to be the defense lawyer's straight man when he asked what you call someone who doesn't speak up in jury selection. (The correct answer was "a juror.").

Although I was not trying to get selected (I had about a million other things to do), I was not completely disappointed when Judge Elisabeth Earle announced that I would be "one of the lucky six." After we were sworn in, the court reminded us that a lot of people had died for our right to be sitting in the jury box. While the civics lesson was a little trite, it helped reinforce that what we were doing was important business rather than just a personal inconvenience.

The trial itself last just one day and consisted of a single witness, a police officer from the DWI Enforcement Unit. It was clear that the police officer and the defense lawyer were well acquainted with each other. While a bankruptcy lawyer can build up experience appearing before a specific judge, it struck me that a criminal defense lawyer could build up experience sparring with a specific officer. In many respects, the case was a battle between the officer and the defense lawyer rather than between the two attorneys (which is not to minimize the prosecutor who put on a very professional and organized case).

This was a case where the visual evidence played an important role. The entire sequence from when the police officer decided to pull over the driver to the moment where he was walked up the ramp into the jail was recorded. As a result, the jury could see the exact tests which the officer conducted to determine intoxication. It was one thing to hear the officer testify that on a certain test that six out of eight clues for intoxication were present. It was far more powerful to see the actual test being performed. We watched the tape of the arrest backwards and forwards, at regular speed and at fast forward. One factor which became important in the trial was whether the defendant had swayed. When the tape was played at fast forward, the defendant could be seen standing straight as a ramrod while the officer swayed like a hula dancer. It may have been an unfair comparison, but it was effective.

This was also a case where common sense prevailed over expert testimony. Because the defendant had refused to take the breathalyzer test (thus subjecting himself to suspension of his driver's license), the legal standard (as given in the court's charge) was whether he had lost the "normal" use of his mental and physical faculties. Since "normal" is subjective (as opposed to .08 blood alcohol content, which is objective), the jury was given leeway to consider how normal the defendant appeared.

The evidence showed that the only things that the defendant did wrong prior to being pulled over was to drive 11 mph over the speed limit on a stretch of road where the limit was not posted (and where many people drive over the speed limit) and making a wide turn. When the officer lighted him up, the defendant made a safe and controlled turn into a nearby parking lot.

After the driver admitted that he had had "a couple of beers," the officer walked him through a field sobriety test. According to the officer, the defendant flunked each test that he was given. However, to the layman's eye, the defendant performed reasonably well on each part of the test. While the defendant stumbled a few times and could not walk heel to toe keeping his feet within half an inch of each other, the very nature of the tests being performed was abnormal. For example, there was one test where the defendant had to make a turn while keeping one foot planted on the ground. The defendant was not able to do this (which would be a very unusual way to turn), but made a smooth pivot at the other end of the test.

After the defendant was arrested, his main concerns were ensuring that his girlfriend got home safely and wondering when he could get bonded out (both showing the normal use of his mental faculties). At the very end of the tape, the defendant was able to walk smoothly up a ramp with his hands handcuffed behind his back (showing the normal use of his physcial faculties).

As a result, the expert testimony established that the defendant was clearly intoxicated, since he had failed every test that he was given. However, the layman's eye saw that the defendant was in possession of reasonably normal mental and physical faculties except when he was being asked to peform abnormal tests. The fact that some study somewhere established that this was a reliable method to establish intoxication was not sufficient to overcome the fact that the defendant did not look or act intoxicated (even when keeping in mind that intoxicated was a lesser standard than drunk).

Another factor which was important was the burden of proof. In voir dire and again in closing, the defense lawyer used a very effective graphic illustrating the various levels of proof from no evidence through probable cause, preponderance of the evidence, clear and convincing and beyond a reasonable doubt. Had our case involved a lesser standard of proof, it would have been much more difficult. However, the defendant's actions both before and after the field sobriety test were normal enough to raise a reasonable doubt. Had we been asked to decide more likely than not, we could easily have ruled for the prosecutor. However, the jury did not have a problem understanding and applying the higher standard of beyond a reasonable doubt.

When we retired to the jury room, there were initially four votes to acquit and two undecided votes. However, after an hour of deliberation we were able to bring back a verdict of not guilty. The defendant may well have been intoxicated that night. However, because the evidence was close, he was let off with a good scare and a hefty legal bill.

On a final note, both lawyers in the case gave a good impression. Both sides represented their clients zealously. However, they remained professional in that they avoided unnecessary sniping between themselves and didn't pull any stupid lawyer tricks (such as referring to things which not in evidence or trying to contradict the court's charge). They also tried their case efficiently and did not waste our time. While it is unlikely that I will be selected as a juror again, I would not hesitate to rule in favor of the earnest, young prosecutor in a case with stronger facts. I also would not hesitate to refer a client to the defense attorney (whose card I forgot to get).


Anonymous said...

About 20 years ago, I had the surprise honor of being selected to serve on a felony jury-- a non-negotiated guilty plea going to a jury for punishment.

The facts of my case would add little to Steve's blog, but jury-room behavior was remarkable. The jury-room scene could have been a screen play if it were fiction.

During voir dire, I had been examined publicly and closely about my legal experience. When we walked into the jury room, before we could take our seats eleven smiling faces turned to me and (so it seemed) in unison announced "you're the foreman!"

Before I could open my mouth the questioning began:

"What did the judge mean when he told us [an assortment of things] at the end of the trial?."

My answers were always to the effect of "if we don't understand what the judge meant from our own backgrounds so that we can apply his instructions to the testimony we heard, then we have to write him a note and ask for more explanation. I am not permitted to offer a legal opinion on the court's charge here in the jury room."

Such answers usually annoyed my fellow jury members.

Then they asked "if the defendant plead guilty, why wouldn't he let the judge sentence him?"

I felt comfortable (and smug) saying something like "because the defendant figured the judge would give him a tougher punishment than a jury would."

I should have been thinking ahead, because my fellow jurors punctured my smugness quickly by asking "you know Judge ____ don't you?" "Yes", I said, for a number of years, since he was a J.P.

"Well, how many years do you think Judge ______ would give him?"

I had to annoy them again by ducking the question.

Finally we began to discuss the evidence -- all oral testimony. Our defendant was a young thug, and a very bad boy. His excellent defense lawyer allowed his client's character to come into evidence, and the "have you heard" questions from the prosecutor resulted.

Two different witnesses attempted to expand and elaborate on permissible answers to "have you heard" questions. Vigorous objections resulted [sustained; no "disregard" instructions asked for or given].

In the jury room, I (and other jurors) reminded some of our fellows that we weren't supposed to consider those "extra" comments.

And I took it upon myself to point out that those witnesses obviously had axes to grind with the defendant, that had nothing to do (directly) with his confessed crime.

I think that I served a useful role on the jury, not because I was an experienced lawyer but because I was a cynic. The policeman and the school teacher were effective witnesses, and were effective authority figures. However, I think that I helped the panel decide that EVERYTHING they said was not beyond close examination, and that the jury might have a reason to consider critically what they said, not just taking their whole testimony at face value (and without context).

Jury duty is a burden because it was an unscheduled interruption of my professional routine (as Steve experienced), and I'm glad I have not experienced it again, but it was a professionally rewarding experience, too.

Barry Broughton

San Antonio Criminal Defense Attorney said...

You have observed very interesting details,Great posting..!