He left our table to use the restroom at the chic French restaurant. A waiter appeared, picked up his white linen napkin, whipped it in the air, and gingerly folded it into quarters. I smiled as he placed the napkin beside the empty plate. A moment later another waiter came by, lifted the quartered napkin, snapped it in the air, folded it neatly in eighths, then placed it in the center of the empty plate, and left. Moments later the maitre d’ smirked at the napkin, raised it, waved it as a bullfighter waves his cape, then magically transformed it into a rose, delicately placing it in the center of the plate.

Out of the corner of my eye I saw him returning from the restroom. As surreptitiously as possible, I motioned for him to return to the bathroom. He looked around, confused, and continued toward our table. I waved him back. Go. Go back. Now. Turn around. But he wouldn’t.

As he sat down, he asked what I was doing. “I wanted you to stay in the bathroom a while longer. I think the swan would have appeared next…”

Being in the front row was awesome.

The 80’s were alive and well at The Independent.

She came back, bringing the last of the “shots” (read: crazy 8 ounce mixed drinks that 80 year old ladies would enjoy). Seeing that we had not seen each other for quite a while, one in our group asked the server to take a photo of the group. She immediately lit up. “Great idea!” Then a perplexed look. “Oh, but I forgot my camera.”

She worked for one of the liquor companies, one of the women who wear ridiculously small clothes and give out free merchandise on weekend nights at local bars. She enticed our group to offer her our email addresses in exchange for free drinks. Shots, she said, which were delivered in martini glasses with maraschino cherries. As she sloshed the drinks this way and that, she apologized, “I’m not very good at this – I’ve never really served before.”

As my companion received a full drink, in her lap, she looked at the server and offered this tip, “Really just need to keep the glass upright.”

The baby sits in the equivalent of an SUV stroller. Big wheels, sturdy handles. He faces his father on BART. In between them is a color Gameboy that commands the father’s attention. The baby, hooded sweatshirt over his dark locks, dark pools peering from under insanely long lashes, sits perfectly upright in his stroller. His small hands grip the tray in front of him. He stares at his father, wide-eyed, not blinking. No response. He closes his eyes, still sitting perfectly upright, not a movement. The father doesn’t notice. The baby leans back in his stroller, stretches and yawns, making gurgling noises. The father’s attention remains intent on the Gameboy. The child pats the wall of the train, running his chubby fingers along the words on the wall. Emergency Door Release. Federal Law Requires These Seats Be Made Available to … No response. The baby begins to lick the words. I want to scream, “STOP IT BABY!” but before my angst reveals itself, the baby gives up, tongue recedes back into mouth. His father’s attention has not left the Gameboy in between them. The baby twists and turns in his stroller, first pulling his hood on and off, then trying to pull the awning of the stroller on and off, but he’s not quite strong enough. He kicks his legs, thump, thump, thump. The father continues to navigate his game. The baby finally seems resigned to the fact that his father is otherwise engaged. He lays his head down on his arm and sighs heavily. The train jerks sharply as we exit a tunnel. The stroller suddenly rolls backward, away, away, away. The father, finally, looks up from the Gameboy, stands up, retrieves the stroller, and pulls it closer to him before returning to his video game. The baby smiles, content.

I stared at the street sign, waiting for the little man to illuminate so that I could cross. “Hey! You know where the parole office is?” I faced a woman, slightly shorter than me, slightly hipster, slightly street. I pointed straight ahead.
“One block straight, then take a left at the light. It’ll be on your left.”
“It’s in the same building as the jail?”
“I think so. I think I’ve seen the signs for it.”
“Yeah. That’s where I thought it was. I left my papers at home.”
The little man shone white. We crossed the street together, her slightly in front of me. She turned around abruptly.
“You have much experience with parole?”
I shook my head. “No. None.”
“I was just wondering – do you think they’ll search me?”
“They don’t search you, but to enter the building, you walk through a metal detector and they search your bag.”
She immediately clutched her messenger bag tighter and began looking around nervously.
“Damn!” she muttered as she scurried away, not in the direction of the courthouse.

Note to self: Ditch the contraband before meeting parole officer.

The defense lawyer had emphasized over and over the fact that alcohol absorption is affected by food in one’s stomach. She paid an expert witness a very large sum of money to explain this to us, the jury. I think everyone in the courtroom was surprised when the defendant’s wife took the stand and stated that they had not had dinner that night, only drinks. Or maybe they had ordered something, but surely not eaten, because they were fighting. So the defendant took the stand. And he said he thought they had eaten, but his wife said they hadn’t. The defense attorney asked him to testify to what he remembered about that night. He said they went to an Italian restaurant, ordered, and maybe he ate, but now he couldn’t remember.

During deliberation one of the jurors, an older man with shock white hair, proclaimed, “Now, I’m Italian, and let me tell you something. Not remembering what you had for dinner? That right there’s the crime.”

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.

We recently switched to a new email server at work. One of the quirky features I’ve noticed since the conversion is that when corresponding to someone outside of the company, after about three exchanges the words RE: [WARNING – NOT VIRUS SCANNED] appear in the subject line. And continue to repeat themselves with each exchange. Annoying, yes, but something I generally just overlook.

In an email exchange today with a friend, the annoyance popped up in the subject header. After several quick replies back and forth, I received a response from my friend, with this added at the bottom: