I was not in the first set of 14 prospective jurors who sat in the jury box during the selection process. I was juror 19 and sat at the back of the courtroom with about 30 others from whom would be culled the final set of 12 plus 2 alternates. We were interviewed for the better part of the day, first by the Judge, then by the two attorneys.
The defense attorney was surprising during this interview process. She started out reminding us that it was her client’s constitutional right to not testify if he so chose. She said, ‘So, what if he and I sit over there and never open our mouths for this entire trial? Would any of you have a problem with that? Would any of you take that as evidence of my client’s guilt? Or that he had something to hide?’
I raised my hand. Nobody else did, bit I did. ‘Juror 19, can you tell me why you would feel that way?,’ she said. ‘It is his constitutional right.”
‘Yes, I understand that,’ I answered, ‘but I am speaking as honestly as I can. A person accused who does not defend himself . . . Makes me think he must be guilty. It’s my own personal prejudice. I realize it’s wrong, but we are being honest here.’
‘Thank you for your honesty,’ she said and I pictured her crossing my name off the list of potential jurors at that very moment. I was toast.
Then she did something remarkable. She asked us to indulge her for a moment. We weren’t in trial yet and she knew what she was about to do meant nothing. .
‘How many of you, if you had to say, right now – judging from the way my client looks . . . would think he is guilty?’ No hands went up. ‘How many would say he is innocent?’ Again, no hands went up. ‘And how many would say you don’t know enough about him or the case against him to make a decision?’ All hands went up.
‘Very interesting!’ she said, ‘And, you’d all be wrong.’ She let that sink in for a moment. ‘Because the law says he is innocent until the prosecution proves his guilt beyond a reasonable doubt. He sits before you, an innocent man, not a criminal. He doesn’t have to prove his innocence. His innocence is assumed. This trial will be about the prosecutions ability or inability to prove, PROVE he is not.’
It was a dramatic moment, designed, I thought, to unfreeze our natural tendency to view the swaggering thug that occupied the place next to her at the defendant’s table as guilty. It worked.
It came time to begin excusing jurors in an attempt to reach the magic 12 + 2. Quickly I made it into the box, four jurors ahead of me having been dismissed. I sat and waited to hear my number and the word, ‘excused.’ I was sure my time was coming. But then, the defense passed . . . and the prosecution passed . . . and I was in.
During our opening statements, before the actual interviews began, I had said I’d been called to jury duty many times but had never been given a trial and that it was starting to bugg me. It got a chuckle from most in the room. As the judge dismissed all the remaining potential jurors, he looked over to the box at me and said, ‘Congratulations juror 19, you have a trial.’
We were quickly assigned new numbers – I became juror number six – and we settled in to hear opening arguments. The prosecution began by telling us we’d clearly see the defendant taking a television and computers out of the Mason Apartments, a special building for mentally handicapped and at risk homeless people. The equipment had been in a community room the property manager apparently forgot to lock. One surveillance camera, focused on the front door of the building (the only entrance) recorded the theft and would be a major part of the case.
Ok. But then . . . the defense passed on opening remarks. She said she may present them later. Unusual! Was she really going to say nothing during this trial? Was she really not going to let her client take the stand?
The rest of the afternoon was spent skimming through five hours of video tape where we saw the defendant and his girlfriend going in and out of the front door of the building. They originally came in with a resident, identified as KN. It was her they apparently came to see. But then, between 7pm and midnight, they were in and out, in and out. The final two times out were with the television and the computers.
Honestly, I was pretty bored and disappointed by the end of day one. The prosecutor seemed to fumble his way through the video and there were long stretches where he was searching for the next clip. As a presenter, he’d have been wise to take the clip, cut it up into its sections and then instantly access what he wanted. In addition, though we saw someone coming in and going out, removing computers and a tv, it was not clear that the man sitting in the courtroom was the one on the tape. We had to have some credible person identify him before we had any kind of case at all.
The next day, however, things got very interesting. KN – the resident with whom the defendant originally entered the building – was called to the stand. This was a tall woman, a big woman with bleached blonde hair parted in the middle and falling to cover most of her face. At times, just her nose and chin seemed to peek out. She wore a brilliantly colored gown that reached the floor. It was clear that KN had taken great pains to dress for court. She staggered slightly to the witness stand and stumbled momentarily when she got there.
‘Ms. N,’ the prosecuting attorney began, ‘If at any time you need a break, just tell me and we will stop, ok?’ She nodded. The testimony itself was pretty straightforward, KN, however, was quite the show.
She identified the man on the video, coming in the building with her and then exiting and returning serveral times as the defendant. She told us she knew him, had spent time with him 3 or 4 times in the past and brought him into the building and up to her apartment that evening after running into him and his girlfriend on the street. The girlfriend asked to used the bathroom and once inside began a conversation about doing a ‘reading’ for KN. She gave the pair her key to use as they went out and in to get food, move a car and so on.
There was occasional swooning during her testimony . . . what we would call, down south, a case of the vapors. She fanned herself with her hand, remarked about how hot it was in the room and asked if it was ok if she fanned herself, which she did with a page of the paperwork she’d brought with her. ‘I have a heart condition,’ she saId,’That’s why I have Lucy.’
‘Who is Lucy?’ asked the prosecutor.
‘My dog. She’s a service dog.’
‘What does she do for you?’
‘I use her for bracing, when I walk, so I don’t fall. The circulation in my legs is very bad and I have difficulty walking.’
On cross, the inconsistencies began to emerge. She’d told the detective who initially investigated the crime that she’d known the defendant for about year and had seen him maybe 20 times during that period – quite a bit more than her testimony. It was clear there was more of a relationship than she was wanting to admit.
Seemingly out of the clear blue, the defense attorney asked her final question: ‘Ms. N. do you use crystal meth?’ There was a pause.
‘No, that’s ancient history,’ she spoke through her hanging hair, ‘Not for 7 years.’
‘Did you use crystal meth the night my client visited you at your apartment? The night in question?’
‘No, I did not.’
‘No further questions, your honor.’
As KN ambled out of the courtroom, the prosecution rested. Their case, though not rich in detail, was clear. The man on the video taking the items in question had been identified: it was the defendant. This is when the defense attorney stood to make her opening remarks.
“There you have it,’ she began, ‘My client clearly on the video taking the items in question. And we don’t dispute that. What’s missing here, though, is the WHY. Why was he taking the items? That, ladies and gentlemen, will become clear to you today and you will acquit my client because, understanding why, you will know he is not guilty.’
With that we broke for lunch. We had been a good jury so far, avoiding opportunities to discuss the case, and so, as we did the day before, the 14 of us scattered. Not wanting to become afternoon food sleepy, I decided to skip lunch and just have a smoothie. I took it down to the Embarcadero, to my favorite shaded grassy hill across from the USS Midway, where I could sip and replay what had happened so far. I wondered what rabbit the defense attorney, who had already distinguished herself as powerful, believable and creative, would bring from her hat.
When we reconvened, she called her first witness: the defendant. He arrogantly told us he was a drug dealer. He sold all kinds of drugs and supplied many other smaller dealers. Ms. KN was one of his best outlets and he had supplied her for almost a year. He went to her apartment that night to collect on a debt: $400 for drugs he’d sold her. When he walked into the apartment he noticed computers and a television against a wall in the living room. KN told him she had no money and offered the items in barter.
‘Did you ask where the items came from,’ the defense attorney asked.
‘Didn’t ask, don’t care, doesn’t matter.’ His swagger filled the witness stand.
‘Can you explain why?’
‘You would be amazed at what people will part with to get high,’ he began. ‘I’ve come across this kind of stuff and lots more over and over. I’ve seen electronics like this in KM’s apartment many times. If I know I can fence it, it’s cool.’
On cross, the prosecutor jumped on that word, ‘fence.’ ‘Sir, you said you knew you could fence the items.’
‘I knew I could sell them to recover my debt, plus a little extra.’
‘But you said, ‘fence.’
‘Yes, it was a mistake.’
‘But there is a difference between fencing something and selling it, right?’
‘Yes, I guess there is.’
‘To fence means to sell goods you know to be stolen, correct.’
‘Yes, but that’s not what happened.’
‘So you didn’t know the items were stolen?’
‘Didn’t know, didn’t care, didn’t matter.’
He had stayed at the apartment for hours that night because KN had a steady stream of clients coming and going all buying drugs that he supplied. He came and went a number of times specifically to try to catch some of her incoming clients outside, to sell to them direct and cut her out of the deal.
‘I hung out because I was making money,’ he said.
As the defendant left the stand, his attorney re-called the prosecution’s witness, Ms. KN. She asked for clarification on a few points and then asked, ‘Ms. KN, have you been in contact with the defendant in the last day?’
‘Did you, in fact, send him a text message last night asking him if he had some weed?’
‘And asking him if he’d bring some over to you?’
‘And did he?’
‘Can you help me understand that?’
‘I like him. He’s a nice person. We all see him as a successful person in the community. He’s my friend. And . . . I have a Medical Marijuana card, for my heart, but I lost it.’
The prosecution’s closing argument was done with crystal clear PowerPoint support, the attorney making sure we understood every point of law we were considering. The defense attorney, on the other hand, talked and walked, back and forth in front of the jury box, making frequent eye contact with jurors. Her remarks were emotional and conjured up every bit of underdog championing any of us had in us.
In the jury room, we were divided on whether the prosecutor had proven beyond a reasonable doubt that the defendant had stolen the items. The story about KN giving him the items was certainly possible and it was enough to cause some to doubt. We watched the video over and over, drew floorplans and timelines on the whiteboard and even had the court recorder come in to read half a day’s testimony to us. We sent numerous questions out to the Judge. On the second day of deliberations, as we waited for the Bailiff to take us back to our room after a break, I pulled the foreman aside.
‘I have a thought for you,’ I began. ‘We now have two jurors unwilling to convict. They are alone and they are dug in. They can’t help but feel backed against the wall and the more we try to convince them the more they will dig in. Why not call for a hung jury? Nobody wants that and, I bet, if you do, people will scramble to be more reasonable.’
And that’s exactly what he did. He had to send a question to the judge for clarification about how to go about hanging the jury and so on, but the effect was to cause everyone to look one more time with fresh eyes.
And that’s when the most amazing thing happened. One of the jurors stood up, went to the timeline we’d constructed showing the many times the defendant and his girlfriend had gone in and out the front door. He stood silently, staring for a moment. Then he turned to the rest of us.
‘Look at this. Here, here and here (pointing at events early in the timeline) . . . he used a key to get back in. That was the key KN had given him. But here, right before the computers and the tv go out the door, he’s using a stick to prop it open. ‘
It was something that never came out in court. The prosecutor never mentioned it, probably never noticed it himself. But it was very significant. The reasonable explanation was that the defendant had given the key back to KN and told her goodnight, then set about stealing the items from the community room. KN had nothing to do with it. It was enough to bring the two hold out jurors over . . . and we found him guilty on all counts.
As the verdict was read, the defendant’s face twisted in disbelief. I imagine with the flood of questions coming from the jury room and the final question about the hung jury, he was prepared for a verdict that would affirm his swagger. Not today. Interestingly, sitting in the courtroom, for the first time in the trial, was his girlfriend, the one who had been with him that night. She sobbed uncontrollably, her mascara running down her cheek. She was the one person who could have corroborated his story of having been given the goods . . . but she was never called to testify. Sad.
When the trial began, I couldn’t help but wonder why the full court press here? We were talking about, maybe $1,200 worth of used electronics being stolen. Yet we had a big jury trial with 12 jurors and 2 alternates. After the verdict was read, I learned why. The judge told us we would have to return the next day to consider whether two prior convictions for similar charges should bear on sentencing. So this was a third-strike case, which in California can mean life in prison.
The defense attorney quickly called for a side-bar, after which, the judge invited us to wait out in the hall. A few moments later, he brought us back in to thank us for our service and excuse us: the issue of priors would be considered in a closed session and he would make the decision. I suppose the defense attorney, stunned by our conviction of her client, thought she might stand a better chance one-on-one with the judge.
My jury duty experience was three days long but was rich in color, twists, puzzles and intrigue. I was heartened and frankly, a little surprised at the level of sanity among my fellow jurors. I always figured the reason I had never been put on a jury in the past was that I was too rational, but here, that wasn’t the case. We were 12 (14 including alternates) relatively sharp people, all of whom participated, debated, contributed and finally agreed.
Despite a mountain of confusion and a big pile of questions, if finally came down to one little stick. And that little stick did him in.