Mon, 30 Apr 2007

Jury Duty

Of the countless ways consensus functions in our society, I believe none is more essential than the jury trial. As a group we may be deluded into electing misguided leaders who give absurd orders. Our legislatures, supposedly representing our group interests, may vote to enact silly or harmful bills. But for these ill-founded and potentially abusive government acts to have more substance than so many scary shadows on bedroom wall, ultimately they need to be applied in specific cases to specific defendants or plaintiffs in specific trials that are decided, not by politicians or corrupt judges, but by a small group of ordinary people, disinterested "peers" of the defendant, legal system outsiders, chosen at random from society.

Not that juries are perfect. Not at all. Many ill-founded and assuredly abusive decisions have been handed down by juries. And there are no doubt countless ways that lawyers and bribed judges can subvert a jury trial. But if I found myself accused of a serious crime, or was trying to prove some tort claim against my neighbor, there is no question that I'd rather have my case decided by a group of ordinary people randomly chosen from my vicinity, rather than professional politicians or lawyers.

Recently, I had the honor of serving on a civil trial jury. It left a profound impression on me.

Like anyone else, I live a busy life, and I have many personal responsibilities. When my summons to jury duty comes periodically, my first instinct always is to ask myself: how do I get out of this? But I quickly feel shame at such a thought.

We like to pretend to be free agents within our personal realms. So long as we pay our taxes, we believe that our larger responsibility to society is thus totally outsourced. That belief is fiction, not fact. The fact is this: we are able to have busy individual lives of free agency with myriad personal ends as a direct consequence of the framework of civil society – a framework made up of rules and people acting in designated capacities within those rules to maintain our collective benefit. The acts of those strangers empower our personal lives more so than the abstract tax dollars, although there is no doubt that the money is the lubricant that allows the machine to operate..

Once I remind myself of my civic duty, I always become eager to serve. However, till recently, the reality of my history of jury service had always lacked any direct sense of contribution.

As a rule I had had always arrived at the appointed time and sat there most of the day, in an uncomfortable chair, reading books. Occasionally I would get up to stretch my legs and amuse myself by recreations only available in a courthouse: applying for fishing and firearm permits, looking up the sale price of my neighbor's house, researching ancient genealogical trees, and the like. At some point in the day they would announce that all matters before the court had been settled and that we could go home. Sometimes they would compliment us for our service, telling us that despite not being selected, the mere presence of jurors was a catalyst that settled legal matters. We had done our job even if it felt like we had done nothing.

This last time, however, it was quite different. I arrived geared up as usual. I had a pile of books to read, my laptop to hack on, a TO-DO list of courthouse chores, and some coupons to local eateries I might try at lunch. As it turned out, I would need none of these items. No sooner than I had arrived and was preparing to boot my computer, my name was called. Suddenly I was no longer Dan Ichov; I was now Juror #8 marching along with 25 others into courtroom E.

Friends that had gotten this far in their jury experiences all had shared with me their favorite tactics for being excused during voir dire. One colleague of mine suggested that he was excused because he had displayed too empirical a bent during questions, asserting that he could only decide things based on evidence. Another friend was sure she was excused because of sympathy for her maternal responsibilities raising 6 kids. Myself, I wasn't sure how I would react to questioning. After all, I did want to serve.

Any voir dire strategy I might have concocted would have been irrelevant. The only question I was asked was: what is your occupation. Although a full answer to this question in my case might involve a good twenty minute explanation (I'm into a lot of things, you see), I opted for a one word answer: "engineer". On the weight of that word I was selected along with jurors one through ten – all others were excused. After the two additional words "I do" to swear me into service, the trial began. I spoke not another word in public court.

But the words of the lawyers and witnesses were plentiful. It was a civil trial, a dispute between a builder and a homeowner, and there was a lot of discussion that we had to pan for nuggets of evidence. One of the things that struck me immediately was how formal everything was – more formal, even, than church. We walked in from the jury room in strict order. We swore on bibles. (I saw that they had some Korans – I was tempted to ask for one – nahh, better not.) We sat in order. We stood and sat, on command. We removed our hats. And at every stage we were protected and isolated and decorously silent.

Except in the jury room.

In the inner sanctum of the jury room, with no one present except jurors, we let our hair down. I was lucky to serve with pleasant, agreeable people. Not to say we we didn't have diverse opinions, or that we didn't stand up for our ideas. Quite the contrary. I know that I can be stubborn on things I believe in, and I saw this in most of the other juror. What I'm saying is that we all felt motivated to achieve consensus and we did so without any ad hominum attacks.

In fact, the first verdict we reached almost instantly was that both parties in the dispute were stubborn fools. The small sum being disputed over such trivial differences should be divided amongst the jurors to reimburse us for our unnecessary inconvenience and punish both the plaintiff and defendant for not being able to reach agreement on their own time. We even asked the judge about this, who sympathized with this idea, and revealed that he had heard it before from other juries, but, unfortunately the rules were such that we had to remain totally impartial to the outcome of the case. No "award" to us, beyond a warm sense of civic pride, free lunch, twenty bucks a day, and eight cents a mile.

Our impartiality was vigorously protected at all times by every reasonable (and even unreasonable) method imaginable. We were isolated in our own room. We had our own entrance, our own stairway, bathroom, and lunch was brought in. We were guarded by a civil servant called a "Tipstaff". I had never heard this word before. I previously thought someone called a "Bailiff" was the muscle in a courtroom. But it turns out that in my state the old 14th century English tippe staues name is used to describe this enforcer of courtroom ceremony and etiquette. Back then the officer bore a metal or wooden stick, or tipstave, with which he could whack people that stepped out of line or pound the floor with to wake people. The modern police truncheon may derive from this device. Or the courtroom gavel. In our courtroom, the Tipstaff banged the gavel.

Grave and decorous in court, outside the courtroom, our Tipstaff was very sociable and accommodating of nearly all requests we made. The exceptions would be any that involved us leaving our designated areas, or discussing the case.

We were prohibited from discussing the case even amongst ourselves, until the official "deliberation" phase began. This restriction on talking about the case proved to be incredibly difficult. It's like trying to not think of an elephant. Take 10 people, strangers, sit them in silence listening to testimony, then put them in a room together to relax, but tell them not to talk about what they just heard – the nearest thing they have in common. No can do. People will talk.

J#7: "Did you see the way the wife nodded at everything her husband said on the stand? She looked like one of those bobble head dolls."

J#6: "Yeah, and when the other lawyer grilled him, she looked like she was going to break out in tears – what a great act."

J#7: "HAHA, but wait till they get her on the stand. See that box of Kleenex? That won't be near enough when they start talking to her about how the stains on the living room carpet."

J#3: "I thought perjury was a crime. Was there anybody in the courtroom that couldn't see that guy was lying through his teeth the whole time?"

J#4: "Maybe that's why the lawyer let him talk. I saw the lawyer watching us in the jury box as we listened to those lies. He started to smile just a little. Like this was all his plan."

J#8: "Hey, did you catch that line when the contractor's lawyer essentially called engineers meddling eggheads? They didn't ask us many voir dire questions, but our occupation was asked. Did he forget some of us on the jury are engineers? Or does he expect engineers would agree with that assessment of our character?

J#1: "Nobody but the lawyers will make money on this case."

J#2: "You got that right."

Discussion leaked out all sorts of ways. One funny example concerned testimony regarding wall outlets. The home owner's contention was that the contractor installed the wall outlets upside down. The home owner claimed that the ground terminal should be on the bottom. The contractor installed some outlets with the ground on top, and claimed that such an orientation is also acceptable. All morning this arcane point was discussed. Various expert witnesses were called. Electrical codes were read to us. Photos were shown.

When court finally recessed, we returned to the jury room and burst into a frenzy of contraband discussion on the topic. Then, one of us pointed out that there were two outlets in the jury room: one installed with the ground up, the other with the ground down. We exploded in laughter so loud that the Tipstaff came in to scold us for disturbing nearby courtrooms.

Amusing moments such as these were rare. Most of the time was spent listening to long periods of mind numbing exploration of trivial distinctions. I found the plodding interrogations and evasiveness of witnesses particularly tedious.

L: "Is this your signature on this document?"

W: "I can't see the document, you are 20 feet away."

L: "Your Honor. May I approach the witness box?"

J: "You may."

L: "Is this your signature on this document?"

W: "No. That document is a copy."

L: "Is this a copy of your signature, then?"

W: "I don't know for sure. It could be."

I wanted to slap them all silly. Get on with it. But there was no slapping allowed from my seat. The judge, on the other hand, was allowed to slap anyone, and he did so in fine style.

One time a juror was a few minutes late because of traffic. When she arrived, and we took our seats, the judge turned to the jury and said: "I would like to thank those of you who were prompt this morning."

Another time, the judge "asked" if the lawyers couldn't just admit a large collection of similar exhibits as a group, all of which were referred to numerous times in the trial, without re arguing their merits individually. The lawyers refused and started babbling their objection for the first one of these 300 exhibits. The judge looked down on the bench and obviously started reading something unrelated (we theorized it was the sports page) till the lawyers had finished and were silent at least another 30 seconds. He then looked up, said "overruled", then went back to reading. By the third exhibit, the lawyers moved they all could be admitted as a group and the trial went forward.

By the second day, the facts of the case were pretty clear to me, and I knew what my decision had to be. The builder had made many obvious mistakes. One in particular that had me smiling to myself was the poor installation of tile in the kitchen. The builder hadn't centered the layout so as to avoid "slivers" of tile at the walls – something that every beginner tile installation HOW TO book will tell you how to do correctly. Nor had he taken the time to align the tiles with consistent grout gaps – tossing the tile spacers in the trash. We heard testimony from several witnesses that the builder claimed he was shooting for a "rustic look" and that the homeowner hadn't specified the "look" in the contract. Yeah right. I remember my Mom making a floor contractor rip up a new tile installation because the grout didn't "feel" right to her. My Mom would disown me if I didn't find against a tile contractor that had messed up. The homeowner needed to be compensated for this mistake, as well as numerous others.

Then again, the homeowner hadn't paid the final bill. That may have been sensible strategy, but the bill was due on the date agreed. So we had to award this bill payment to the contractor, with interest.

Although I had no verbal way to know directly the thinking of the other jurors, by translating eye rolls and stifled laughs, I could tell my thinking was converging with theirs. The builder had clearly built a flawed house. The homeowner was clearly a meddlesome egghead who had stiffed the contractor for a payment and made last minute changes that increased costs. Each side had injured the other side. We had to find in favor of both sides. The only question was totaling up dollar estimates of the damages on both sides and subtracting.

When we finally were "allowed" to deliberate, we found that we were all pretty much of one mind. The verdict emerged from a process of totaling damages, as I had anticipated. Some of the jurors commented that they had served on other cases where consensus was much harder to reach, with one or two holdouts. These were criminal trials where unanimous verdicts were required. In our civil trial, only a 5/6 majority was needed – although we did end up being unanimous. All in all, it took us three hours, most of which was spent checking our arithmetic.

In case you are curious, we awarded nothing for the inverted wall outlets.

There was no cheering or sobbing when we announced the verdict. Our award was so small that the "winner's" lawyers would gobble it up whole. The judge thanked us and we marched out. In the jury room we said our goodbyes. Down the stairs. Out to the parking lot. Goodbyes again. And I've not seen any of those people since.

The experience left me impressed at how smoothly the system works. If an unresolvable dispute occurs, our society has a formal method of arbitration. I look forward to a chance to serve as a juryman in a criminal trial to see that side of the system. I don't want to be out in the plaintiff or defendant's spot, but if I am, I'll feel a little better knowing it's somebody like me sitting over there in the jury box.

When I got back home from the courthouse I unpacked my laptop bag, removing all my "jury duty" supplies to put them away. In one of the books I had brought I noticed an odd thing that I had used for a bookmark. I had last been reading that book at a construction site in Baltimore where I was supervising project engineer. The bookmark was a hacksaw blade. My eyes opened wide in astonished relief that the security X-ray screening at the courthouse hadn't picked it up. "My goodness!" I thought. How in the world would I have explained smuggling a hacksaw blade into the jail?

Posted Apr 30, 2007 at 19:14 UTC, 2781 words,  [/dan]  Permalink