Approaching the Bench

I had always been able to dodge this bullet. The summons to jury duty would come, and I’d call in to find out if I had to report. For years, I had been able to obtain an excuse, or I simply wasn’t needed, but this time I knew my number was up.

The military draft is a thing of the past, but jury duty, which is one of the last vestiges of an American call to service, is still with us. It has been softened to the point where the least amount of hardship earns you an excuse: pre-paid family plane tickets to a vacation spot are often enough. So the jury pools have to be large in order to allow prosecution and defense in criminal cases, or plaintiff and defendant in civil cases, to seat an acceptable jury.

The selection process is arduous, with the judge and the attorneys for both sides questioning each candidate to determine suitability. Our pool in my part of California included top tech executives and talented medical professionals as well as common laborers and stay-at-home moms.

This “voir dire,” as it is called always turns up the drama in people’s lives. Our case was one involving driving under the influence. A surprising number of people had very strong views on even the least amount of alcohol consumption. A fair number had a child, a sibling or a close friend injured or killed by drunken drivers. Others had family members in law enforcement, which the defense usually hates. Those who had significant prior jury experience are also undesirable to the lawyers, though you would think experience would make “professional jurors” good choices. Each side gets a certain number of peremptory challenges – they can bounce you off the jury for no stated reason. Finally, there are those who have hearing problems, those who can’t understand English, those who insist that they can’t be fair -- and those who are faking these things to get excused. But once I was seated, the lawyers kept me, telling me after the trial that since I am a former journalist, they thought I would be fair. I responded that it’s only because jury duty pays almost as much as journalism (LOL).

How does a DUI case even merit a jury trial to start with? Ours was somewhat complicated. Police officers got a call about a car being improperly parked on a residential street in a local city. The caller suggested that the car might be a traffic obstruction. Responding officers found a young man sitting in the driver’s seat. He was obviously drunk – a later breath test showed his blood-alcohol level to be 0.26 – more than three times the legal limit for driving. He actually admitted to the officer that he had driven there from a party and that he had been in the process of driving home to a nearby city. Apparently, he had decided he couldn’t make it and called his mother to come get him. But the cops arrested him on suspicion of driving under the influence.

The legal problem for the prosecution was that nobody actually witnessed this young man driving the car. His admission of having done so wasn’t good enough for conviction. According to the legal instruction given to the jury, there had to be additional pieces of evidence – in this case, circumstantial -- to prove that he had driven the car. The vehicle was badly parked, but not egregiously so. It had front-end damage, but the young man’s mother testified she had driven into a loading-dock railing where she works a week or so earlier (the family couldn’t afford – or didn’t believe in – body work). Their version of events was that the young man had walked to his parked car from the party site – though he couldn’t seem to tell anyone the address of the house where the party had taken place, hosted by his friend Scott.

The legal deck is stacked in the defendant’s favor, perhaps properly so. Juries have to accept an alternate explanation of events, if it’s reasonable. In fact, the defense doesn’t have to put on a case at all. It’s up to the prosecution to prove its own version beyond a reasonable doubt, in a manner which makes alternate explanations implausible.

This jury leaned overwhelmingly toward not guilty. I voted that way reluctantly, believing that the young man had indeed driven the car, but deciding the evidence beyond his admission wasn’t quite there. The prosecutor, a young woman, tried her best to connect the dots – there just weren’t enough dots. The defense attorney, also a young woman, portrayed her client as a kid who had done the right thing. He had decided he was too drunk to drive and called for help.

The final vote was 11 to 1 for not guilty. But a unanimous result is required for a verdict in a criminal matter. One of the women on the panel -- a newly minted graphic designer and mother of three – would not be shaken from her vote for conviction, even when one of the other jurors got particularly hostile toward her during deliberations. Since there was no hope of full agreement, the judge declared a mistrial. He wasn't happy with us.

I too was upset with the “score,” but I reminded myself later that this isn’t a football game or a boxing match. An individual’s livelihood is also at stake. Apparently, the 25-year-old defendant had had a fight with his girlfriend over the mysterious Scott, who hosted the party. The young man was upset about the love triangle and took to drinking vodka. I believe that he got in his car and drove away, but determined that he was so drunk he couldn’t continue, and pulled over on a residential street to call his family. Had a passerby not felt the parked car was a traffic hazard and called the police, the defendant might have slept in his car all night and nobody would have been the wiser.

I felt kind of sorry for him. I think it was actually fortunate that he over-imbibed to the point where his blood-alcohol reading was 0.26 a full five hours after the party Had he consumed just a little less, he might have felt confident enough to continue driving, and possibly cause an accident. Before we judge him too harshly, are there very many of us who drink socially, who have never tried to drive a car when perhaps we shouldn’t have, even only once?

The wheels of justice grind VERY slowly. There is no concession to the dramatic timing we might see in movies or on TV. It’s tedious. Our judge tried to lighten things up with stories about British common law, San Francisco history, college campuses, etc., but his gravelly voice was soporific. The young prosecutor had charts, graphs, exhibits and a PowerPoint presentation, but just couldn’t put her case over the line, and I felt kind of sorry for her, too, it being her first one. I told her I was grateful it wasn’t a double-murder; she would have needed four moving vans to introduce all her stuff. Fortunately, she has a sense of humor, or I would have been slapped with a writ or something. 

The defendant in our case might not have gotten off completely Scott-free, so to speak, as the prosecution can decide to retry, but that seems unlikely here.

Many believe that military service makes a better American citizen. Following my experience, I think jury service, at least once, does the same. Perhaps going against the negative grain left by the O.J. Simpson trial (officially 20 years old this year), I believe that court cases open to the public should be televised or available by live stream. The court system is something about which most of us labor under a woeful level of ignorance.

This is a long read, so if you’ve gotten this far, I thank you for your service, and my gavel is coming down to declare this post closed.

Hardly a Surprise

I had a strong feeling that George Zimmerman was going to walk, though I was reluctant to voice it ahead of time.

Was justice done for him and Trayvon Martin? Justice is one of those lovely abstractions we like to hang things on, but when reduced to the human level, justice is a very subjective thing. By itself, our court system doesn’t represent justice. It’s just the vehicle that’s supposed to get us there. The last stage in the process is the trial. As with any adversary situation, much like a sporting event, the better team wins. A clear majority of the legal talking heads on cable TV seemed to conclude that the defense did a much better job of presenting its case than the prosecution did.

Much of the trial was televised as per Florida law, raising the perennial issue of whether cameras in the courtroom are harmful. This may go against the grain, but I have persistently believed that if a single seat in a courtroom is open to a member of the general public, by extension, the rest of us should be able to see the same proceeding, with adequate protections, of course, for the jurors.

While the usual concerns about media hype and the folks in court playing to the cameras are raised, I submit that it’s beneficial for the public to know exactly how our courts work and how our laws are applied. There are cameras on almost every street corner, and while we may not all like the idea, we’re used to them by now. If there were cameras in every courtroom in procedures that are open to the public, we would eventually get used to that concept, and be better educated as well. There would be fewer “trials of the century,” because they’d all be on TV.

To return to the point, though, was justice done in Florida? One Facebook friend commented on a post of mine last night, telling us all to relax, it’s Florida, as if real justice isn’t expected there. If we expect all trials to produce justice, are we expecting too much?

I won’t dodge your lingering question. As I’ve said before, I think this country would be a considerably safer place if we didn’t have Neighborhood Watchers walking around with guns.

If It Quacks Like a Duck...

U.S. Supreme Court Chief Justice John Roberts surprised many this week by concluding that the penalty imposed on individuals for failing to obtain health insurance under the new Affordable Care Act is a tax. Taxes, unpleasant as they may be, are constitutional when properly levied by Congress. Roberts’ conclusion kept the law called Obamacare alive.

“Tax” is one of the dirtiest of words in this country, largely because of the perception that the revenues from taxes are wasted by the bodies that levy them or used for unnecessary purposes. It was a conservative, not a liberal, argument that the ACA created a new tax. The Obama administration bent over backwards to assure everyone that there was no “T” word involved.

The complaint about forcing people to buy health insurance through a penalty structure is that they are paying to support something they don’t need. But there are plenty of taxes we accept as necessary. We support fire and police departments, even though we could go decades without ever having to call either one for service. Their existence not only provides peace of mind – they are seen as being something that benefits everyone in the community. To a lesser extent, the same is true of public education – our taxes support it, whether or not we have children in school ourselves, on the grounds that educating children provides a public benefit. The principle behind the Affordable Care Act is the same, the public benefit being that easier access to health care provides for a healthier population, and less, not more, demand on expensive health care services.

Which federal agency gets to collect the penalty in the Affordable Care Act? The Internal Revenue Service, of course. Buying health insurance is a means of avoiding the tax. A common use of our modern tax structure is encouraging, or discouraging, behavior.

But one very American trait is our insistence on results – quick results, if possible. It remains to be seen whether the ACA will fulfill the expectations created by its supporters. There are plenty of us who simply don’t want to take that risk. In any case, that’s not the Supreme Court’s concern. Its job is over. Chief Justice Roberts and the majority have determined that it’s a duck because it quacks like one. It’s our job, and that of our representatives in Congress and the next president, to determine whether the duck should live – and if so, how it should live.

Triple COA

Brilliant.

No we see why lawyers get to charge so much. The U.S. Supreme Court’s ruling gives both major parties something to crow about – and saves the Court’s reputation at the same time.

With the majority opinion that the individual must buy health insurance or pay a penalty is essentially taxation, and that taxes, of course, are constitutionally OK, saves the health care law. The time and effort President Obama and others spent on getting it passed wasn’t wasted, or so they will be able to say.

But conservatives have argued all along that it’s a not-so-hidden tax, and the only way you avoid it is by buying health insurance from private suppliers. Which means, the only way to get rid of it, the commentators say, is to elect Mitt Romney and make both the House and Senate Republican in the November election. Far from ending the debate on this issue, the Court’s ruling throws a little gasoline on the fire.

According to the reports, the deciding vote on the Court was cast by Chief Justice John Roberts. So now, the court gets to say, see, we’re not the ee-vil reactionaries you’ve been thinking we are (or at least Roberts gets to say that).

I’ve always thought the general principles of the law are a good thing, and that it solves quite a few problems, but not enough. There’s nothing in it about tort reform – and there should be. It remains to be seen how effective the regulations on transparency will be at holding down health care costs. I have my doubts.

For now, though, the Supreme Court’s ruling may not quite be a perfect game, but it’s definitely a political triple play.