I’ve been on jury duty for the past several weeks. We were given strict instructions not to mention the case, the parties involved, the deliberations, until a verdict was reached. That happened today, after three painful days of deliberation. My conclusion? I’m not sure this whole trial by jury thing is a great idea. Yes, I know it’s been around for centuries. Yes, I realize it’s one of the basic tenets on which our government was founded. But there’s got to be a better way.
The trial involved a man who allegedly drove under the influence of alcohol. He was observed weaving in and out of lanes on the Bay Bridge. When he was pulled over, the officer noticed the odor of alcohol. He noticed the driver had red and watery eyes. He administered five field sobriety tests, all of which the driver failed. The driver agreed to a preliminary alcohol screening breath test (30 minutes after he had been initially pulled over), on which he blew a .124 and a .119 (in CA, .08 is considered DUI). Over an hour and a half later (they had to wait for a tow truck to tow the car; they had to wait for a cab to pick up his wife), they arrived at the field office, where he blew a .07.
The police officer who made the arrest was questioned for two days. The police officer who conducts the calibration tests on the preliminary alcohol screening devices was questioned for a day. Forensic alcohol specialists (one for each side) were questioned. The defendant’s wife (who was in the car with him at the time of arrest) was questioned. The defendant was questioned. Closing arguments were made. And then the judge gave us, the jury, directions. Basically, the burden of proof was on the prosecution and that the proof needed to be beyond a reasonable doubt. That the defendant was innocent until proven guilty. That we had to consider only the evidence given in this particular case. That we had to reach a unanimous decision on both counts with which he was charged: driving under the influence of alcohol and driving with a blood alcohol count of .08 or more.
The twelve of us were locked in a small, nondescript room. I was nominated foreperson. I asked everyone to introduce themselves, then give their initial judgment. Ten of us had absolutely no doubt he was guilty. One woman, an immigrant from Russia, thought the law was “like an ax” and she didn’t want to make a judgment on the poor man. The Twelfth Juror, an immigrant from India, said he didn’t believe any of the testimony given by the police officers, and that he was innocent.
The deliberation began. We went through all of the evidence. We thought about other possible explanations for why the defendant might have been swerving on the road, smelling like alcohol, and unable to pass the field sobriety tests. He had admitted to arguing with his wife and eating her cigarettes in the car. That could explain the erratic driving, but it couldn’t explain why he failed the field sobriety tests. To ten of us, the prosecution had proven, way beyond a reasonable doubt, that the defendant had driven under the influence of alcohol and his blood alcohol level was at least .08 while he was driving. When we convinced the Russian woman that it was her job as a juror to make a decision (either way, but she had to judge him, that was what being a juror was all about), she said, yes, he was guilty on both counts. The Twelfth Juror clicked his tongue, said, “I don’t care about these laws. I am Indian. In my country, it is about your gut feeling. I feel he is innocent.”
So we continued deliberating. We went over the judge’s instructions to us, especially the parts about putting aside biases and considering only the evidence presented in the case. We asked him to consider the evidence. He said that alcohol is a central nervous system depressant (true) and that if the defendant blew a .07 at the field office, he must have been .07, or maybe .075, while driving (over two hours prior). This was in direct opposition to the testimony of both forensic alcohol specialists, who presented evidence stating the average burn off rate of alcohol in the bloodstream was .018 – .020 per hour. He said he did not believe either of the forensic alcohol specialists.
So we continued deliberating. At times it grew heated. Voices were raised, negative innuendoes made. We finally unanimously agreed on count one, that the defendant was driving under the influence of alcohol. How? Because the defendant had testified that when he got into his car to drive, he felt “buzzed.” Mr. Twelfth Juror didn’t know the meaning of the word “buzzed.” When we explained it to him, that it was a slang term, not a scientific one, he agreed that yes, the defendant was driving under the influence. He would not budge on the second count, saying he did not care about the evidence in the case, he was only going by the numbers (and only the .07 number, for some reason he chose not to believe the .124 and .119 that was originally blown). He said that unless he had blown a .08 on the second test, irregardless of the time it was taken, he would not convict. The other eleven of us talked about reasonable doubt and what that meant. He turned his back on us.
We returned to the judge and told her we were deadlocked on the second count. She asked what the count was. I told her 11-1. I also told her it was the opinion of the jury that one juror was not following her instructions, especially those about reasonable doubt and considering only the evidence given in the trial and not allowing prejudices or personal biases to enter in. She had a whisper talk with the lawyers, re-read the instructions to us and sent us back to deliberate.
When we returned to the deliberation room, we asked the Twelfth Juror what evidence he needed to convict the defendant. We would call the court reporter in. We would have testimony re-read. We would diagram alcohol absorption rates. Every question or doubt he raised, we answered and/or explained with evidence presented in the case. He would say, “Okay, let me think a minute” and everyone would be quiet. Then he would say, “Okay, I agree.” I would call for a vote. “All who think the defendant is guilty, raise your hand.” Eleven hands would go up. Everyone would look in disbelief at the Twelfth Juror. “All those who think the defendant is innocent, raise your hand.” And his hand would go up. A cacophony of voices shouted, “What?!?! You just said you agreed! How do you think he’s still innocent?” And he would make the same comment about disregarding our laws and going with his gut, and that, unless he was 100% sure and he had no doubts whatsoever, he would not convict.
The end result? The judge called us back into the courtroom. She questioned every one of us individually on our opinion as to whether the jury was deadlocked or if, given more time, we could reach a decision. Eleven jurors, one after another, said, “If all jurors would follow your instructions, we could come to a decision. One juror refuses to do so.” She held another whisper conference with the attorneys. The verdict was read on the first count. The district attorney agreed to drop the second count. And we all left the courtroom.
So you may be wondering, “Why is she so against the jury system? It seemed to work in this case.” Actually, no it didn’t. I don’t know that any of us presumed the defendant was innocent. We were told to. We agreed to. However, he was arrested for drunk driving. That arrest shadowed our judgment. The fact that he failed five field sobriety tests (which the defense tried to argue were not conducted properly) shadowed our judgment. The arguments the attorneys made (which we were specifically told not to take as evidence) shadowed our judgment.
First impressions shadowed our judgment. The defendant’s wife wore a skin tight spandex top and spandex skirt, from which her thong was peeking out. She had a bad dye job and poor grammar. Her testimony contradicted her husband’s. All of the defense’s witnesses (the defendant, his wife, and the forensic alcohol expert) were hostile to the district attorney. That was brought up as we were deliberating; many thought that their hostility compromised their credibility. Logical, no. Did it influence our decision? Yes.
And then the whole Twelfth Juror. We only had one. How many cases have more than one? That one person who refuses to follow instructions? Or, who, because of vanity or pride, refuses to change his vote. Which is what I truly believe happened in this case. I think in the end the Twelfth Juror did think the defendant was guilty on the second count, but could not think of a way to admit that without losing face. So he continually chose to “go with his gut” and ignore the evidence.
So what would I suggest? Any system is going to have a chance for error. But I would rather see a group who was educated, and knew what they were doing, decide cases rather than random citizens. Kind of like the Supreme Court, but on a local level. Or have someone trained in the jury deliberation room, almost like a referee, to call “foul” when someone isn’t following instructions. Or have stiffer penalties for crimes, penalties that would actually be a deterrent to criminal activity, rather than a mere inconvenience. The fact that we’ve used this system for centuries is not a reason to continue to use it without evaluation. Everything can be improved.