Sunday, April 17, 2011

Jury duty keys

I promised a key to the posts during my jury duty - a key needed because they were encrypted! I don't think I broke my vow in these posts; they're only about general, perhaps generic aspects of the experience, not about particulars of the case. But now I can say more.

The photo on the first day shows the building which houses the Brooklyn Family Court and the criminal cases of the Brooklyn Supreme Court. (I wasn't permitted to say that I was on a criminal rather than a civil case.) We were on the 20th floor, with stunning views of downtown Brooklyn and across the Manhattan Bridge toward Manhattan. Cameras are not permitted, though, so no pictures of the view. Suffice it to say that we were literally up in the air, above the city whose life we were trying to understand. (I described some of the ways potential jurors were welcomed and instructed on Sunday, though not the process by which we ended up with a jury of six African-American women, three African-American men, one Asian man, a white woman and me.)

Day 2
shows a picture taken in East Side Cheeses, where I went to get supplies for entertaining students. To ensure my classes didn't fall behind I was planning to have each one over for a meal at least once. (In the end, five of seven students in Exploring Religious Ethics joined me for an ostentatiously austere "Zen repast" on Wednesday night - we were discussing Dogen; since the class meets at 8 am, I was subsequently able to attend most meetings of that class. The Aboriginal Australia students proved harder to corral, so I wound up making brunch for some on Saturday, met another Sunday afternoon, and most of the remainder Monday night.) But the East Side Cheeses window seemed an appropriate picture too as we were getting the opening statements of Assistant District Attorney and Attorney for the Defense. Not that they were peddling cheese, exactly! But there was a sense in which our view of the world was at that point entirely papered over by their suggestions - which, to strain the analogy even further - we were supposed to get behind. (In a way the goofiness of the picture was a negative of the seriousness of the case: I could not tell you that it involved the alleged rape of a girl by her father, or that we had seen the girl squirming on the witness stand and then shutting down.)

Day 3 was rather frustrating. Only two witnesses, and neither interesting. The mosaic is from the subway station nearest Film Forum, where I saw the marvelous "Le Quattro Volte" the week before. But the image also suited the mood. We seemed to be able to make an appearance back in our usual lives but were in fact submerged.

Not much testimony the next day either, though the testimony of the alleged victim's mother was passionate and - to me - heart-breaking. (Not until Tuesday would I learn that some of my fellow jurors read her mien very differently - and her motives.) "Cappricio" and Japanese company were a welcome distraction.

On day 5, the little girl was again called to the stand. I understood later that her inability (or refusal) to answer many questions from the defense had risked jeopardizing the case, and that this second day of testimony was supposed to fix it - but it didn't. She seemed more closed than before. The lone person in the audience was a social worker who placed herself directly in view of the girl, and there were clearly signals passing between them. Mere reassurance, I thought, appropriate and sorely needed in the face of the defense's aggressive questioning. But the defense managed to convince several in our jury that the girl had been instructed to lie and friendly seeming "Miss Denice" was in fact enforcing this. What would become a central question when the jury was permitted to deliberate was how to understand the girl's silences: trauma at remembered abuse, in the presence of the abuser? fear or guilt at telling lies, in the presence of the one you were lying about? or just the terror of a room of strange grown-ups?

Sunday's extended reflections on the difficulty of not understanding our experience as if we were in a movie, playing a part in something scripted and timed, apply to every part of the experience, even the jury deliberations which followed. In a film of a trial, everything you see and hear is significant - even a yawn. In a real trial, it's not clear what's significant - anything might turn out to be. Well, not just anything, since the airwaves are full of things which aren't supposed to count as evidence, like the tone and language of the attorneys. I was very troubled by a certain formulation the defense attorney used in cross-examining witnesses. After a witness had testified that X had happened, for instance, he would raise his voice and say Isn't it a fact that what really happened was Y? Isn't that the truth? This when no evidence of any kind had been given for or about Y. The judge sustained objections to other questions which presupposed a fact not yet established, but no objection was even raised to these Isn't it a fact... questions; I'm still not sure why.

Monday did not, as we had been led to expect, consist only of closing arguments. A child psychologist was called: an expert witness who knew, and was told, nothing about our particular case. She told us in general about how children who have suffered abuse deal with situations like being in court, but, of course, every child is different. Presumably the DAs called her to help us understand the child's silences, but the defense managed to turn part of the jury against her by asking her if children who lie are sometimes ashamed and silent (yes) and if she could always tell when a child was lying (no), and extracting that she was being paid for her testimony - indeed $300/hour - and that she had been called on Friday afternoon. But the closing arguments are what I had in mind as I posted the picture of the opaque glass cubes. The attorneys have to present their cases as if they are crystal clear, but that has the effect of showing just how far the evidence heard in fact was from being clear! Our clarifying work was cut out for us, but seemed daunting, to say the least.

The "Rashomon" scene I posted on day 7 was my note to myself not to forget (as if I could) that our deliberations began with a big surprise. The closing arguments had essentially offered two ways of explaining how the descendant's semen had ended up inside the little girl's underwear: he assaulted her, or the girl's mother had smeared it there as an act of vengeance, from a condom she had prevailed on him to use in sex with her. When the defense attorney called up the adage that "Hell hath no fury like a woman scorned" I thought all the women on our jury would be offended, but he knows juries better than I do. When the jury was finally allowed to start talking about the case, it became clear that the majority of the jury's seven women bought the "a woman scorned" line, and thought the woman had framed the defendant. "I'm a woman," was a common claim, "and I know what women are capable of." (One even said "I don't even blame her.") Meanwhile, though less elaborated, most of the jury's five men thought the defendant guilty. I would have expected the opposite - gender solidarity. I've pondered what was really going on there a lot since then. While certainly testimony to the power of cultural stereotypes, including internalized ones, it also seemed to suggest a lot of other things beyond the war of the sexes. I was put in mind of "Rashomon" also because it's a Buddhist movie; the interpretations, while at least some of them mistaken, together convey a sense of fallen human nature (in the "Rashomon" case the category would be the decline of the law, mappô 末法). While the defendant may have been presumed innocent, human nature was not. The imperative I thought I was witnessing to tell stories, even self-incriminating ones, troubles and moves me still.

On day 8, I actually broke down and wrote about our deliberations, though scrupulously avoiding any clue as to the nature of the case. I was observing how our discussions ebbed and flowed, how arguments were registered and claimed and contested and dismissed, who was paying attention, how people reported their states of mind along the way, and when - not so rarely - discussion became self-referential: especially on the central question of what was to be considered a "reasonable doubt." (I was of course observing myself, too.) That I had been reviewing Aquinas's discussion of "prudence" for class made me ultra-aware of the difficulty of our task - the application of general moral principles to a particular case - and helped start me on thinking that there is something radically, insanely democratic in the jury system. (For Aquinas, as for his tradition, prudence is rare, a virtue for rulers; the corresponding virtue for the rest of us is obedience - we can't understand and don't need to, that is, all we need to understand is that we can't and needn't but that our rulers do and we should defer to them. Imagine asking a whole society to defer to what a randomly selected group of non-specialists decided was reasonable!) The aftertaste of Aristotle and Aquinas as our deliberations took wing made me aware of the grandeur of what we were (supposed to be) doing.

And then, on the 9th day, everything came together. Don't think it was easy, though, or that we left the process feeling a burden had been lifted. At the end of the prior day's deliberation we'd taken a straw poll and found that, while 9 of 12 had doubts that penetration had happened (the first of three counts, rape in the first degree, requires penetration), we were evenly split 6 to 6 on the other two counts (sexual contact and endangerment of a child). This was not so different from the day before that, and not just the more intransigent in our number thought we should tell the judge we were at an impasse and ask him to declare a mistrial. Arrived the next day, some minds had changed - it was more like 9 to 3 on all three counts - but those convinced of the defendant's guilt would not be moved by our arguments. So we sent a note to the judge, and were read what must be Appendix A of the judge's handbook, a rather inspiring speech ordering us to keep deliberating: We had been selected because the attorneys and judge had confidence in our ability to be fair and open, and we had also given our word to that effect; most juries which think they have reached stalemate wind up able to make a verdict; there was no reason to suppose another jury would be smarter or more hard-working than we; so get back to work! Strangely, this had an energizing, even a galvanizing effect on us. "Thank you, judge" we said as one, leaping up ... and in less than an hour we had arrived at our verdict. I'm not saying the judge's exhortation made the three inclined to a guilty verdict listen to the rest of us and accept the reasonability of our doubts (which were in any case not arguments that the defendant was innocent - few of us thought he was). One juror said "I want my life back so I'm not going to stand in the way of the majority" - though several of us protested that nobody was asking him to make such a sacrifice, and he proceeded to give a desperate and eloquent argument for his own certainty. (I think his certainty, like that of another holdout, was based in a conviction that a crime had happened - a crime he had himself witnessed as a child.) I'm not sure that the three changed their positions, even on the procedural argument that we didn't need to and indeed couldn't make an objective judgment of the defendant, just an assessment of the coherence of the proffered evidence, but somehow they changed their votes. I doubt any of us was happy with the outcome. Having been warned of the likelihood of such an outcome during our instructions didn't change much, any more than the judge's words to us after, or the revelations from the District Attorney's Office lawyer. As my Buddhist friend observed, the suffering in the case had been spread to encompass the jurors.

I've been talking about little but this experience for the last fortnight. A friend who's a Court Attorney (in a different court) says she's interested where I'll be in my thinking a week from now. Interesting question! I'll let it sit... or try.

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