House of Eratosthenes

Irish Cicero says this anecdote from my past is good enough for a blog post of its own. Now that I think on it a few more times, I realize he’s right. Before I start, I’d like you to think about misunderstandings, and how they happen. When one man gives another man an implied message, and the message turns out to be incomplete, who do we hold responsible for that.

When there is danger around, we pool our resources and work together. If there is a misunderstanding, the blame for the misunderstanding is shared between sender and recipient; they both must have done the job half-assed. A good example of this is a gun range. You don’t want to be the guy who understands “this automatic pistol does not have any cartridges in its magazine” — and then finds out there’s one-in-the-pipe. You also do not want to be the guy who gave that message to someone who took your “empty magazine” message as a synonym for “empty gun.” The outcome of this could be tragic. And so people do not place all of the responsibility on one person or the other. They work as a team. Safety first.

This is not the way we do it in other places.

That’s what this story is about.

In just a few months a whole lot of things happened. I became an unattached dude and a bachelor; my job went away; I became a contractor when it was figured out somewhere that my skills were still needed, even though my job was “supposed” to go away; Reagan died; and I served on a jury.

I was pooled as an alternate, and then someone got sick. So in I went. This story is about the opening comments of the defense attorney. His client was accused of stealing stereo equipment out of a jeep at two in the morning, but the charge was not theft. It was “receiving stolen property,” a nod to the insufficiency of the evidence for supporting the stronger charge.

The cop’s testimony was the only evidence available. He had found the jeep, parked curbside in a residential district, with the door hanging open. He was supposed to be looking for anything out of place, and he figured that qualified. Driving onward, he saw the defendant walking and he ordered him to stop. Defendant bent downward, toward his own ankles, for just a moment — he was behind another parked car, so the officer could not see what he was doing — and then he took off running. For anyone who’s watched C.O.P.S., the events immediately following would be easy to envision…

At the conclusion of the foot chase, the defendant was handcuffed and then the officer led him back to his patrol car. As they passed the spot where the suspect bent down, the officer saw the stereo equipment lying on the ground. Where, evidently, the defendant had placed it.

Evidently. Ah…but can you prove it?

There are written instructions on how you’re supposed to do your thinking when you serve on a jury. It’s a packet somewhere in the vicinity of twelve to twenty pages, I forget what. You can find a high-level description of these here, but that is not the packet that was circulated to us. In addition to the written instructions, there are also instructions from the judge, and from both of the counselors.

Now, I said before that the story is all about the opening remarks of the defense attorney; a transcript would be most helpful. I don’t have that, and that may partially explain why I didn’t think this was worth writing up. Besides of which, I’m not a lawyer and it isn’t my job to know how this stuff works. Not anymore. But I can tell you what made the deepest impression on me: The prosecution is required to prove, beyond the shadow of a doubt, the defendant’s guilt. The defense is required to prove nothing, because the defendant, according to our Constitution, is to enjoy the benefit of any & all doubt. The prosecution has to prove so much, that they have already failed in this case.

The law required us to spring his client. There were no ifs, ands or buts about it. Acquittal was the only hope we had, to maintain our compliance with the law, especially that highest of all laws, the United States Constitution.

The instructions from the judge were different. The jury packet was also different. What the judge said, agreed with what was contained in the jury packet; those two things did not agree with what the defense attorney told us.

The word “shadow” did not appear there. The phrase used was “reasonable doubt,” and there were many pages devoted to what was reasonable and what was not. There are things you know to have taken place, and there are inferences you draw about what must have been going on. Process-of-elimination is a valid technique. By which I mean: The evidence says a gun was empty, nobody handled the gun except Jim and Frank, the gun comes back loaded — if there’s more evidence coming in saying Jim had no bullets, it is fair to infer that Frank put bullets in the gun.

So “shadow of a doubt” does not cut it. There can be shadows, and you can still convict somebody.

And you aren’t breaking the law if you vote to convict. I’m pretty sure this is true, because I’m the juror most responsible for the vote coming out the way it did. When my fellow jurors started to go off on a wild tangent and spin wild tales so they could justify an acquittal, I called bullshit.

I wanted to throttle jurors #9 and #10 by the throat before it was over. They talked over each other in their exuberance as they pointed out you can NOT vote to convict this “boy” just because he ran! And this was true. But we also had to include the running-away in this scenario we were evaluating. We were working from process-of-elimination, so what were we eliminating as we drew the necessary inference to support a conviction? That was the key question.

Juror #10 offered the possibility that the cop had a dog; a mean, vicious, dog that had gotten away and was chasing the boy. Hey, the cop didn’t say he had one, but he didn’t say he didn’t!

I fought back an instinct to lunge across the table. Somehow, my reaction to this was to calmly point out some instruction that began on the bottom of page 3 and concluded on page 4, which strictly proscribed against this brand of thinking. I don’t know how I managed to do that, but because I did, the imaginary canine remained consigned to the oblivion from whence it came.

Later on I recall being under the microscope, or on top of the soapbox depending on your point of view — explaining some train of thought which completely escapes me now. I recall trying to pick the proper nomenclature, or interpreting of semantics, or something…I made some allusion to Bill Clinton debating the meaning of the word “is.” The entire jury room erupted in peels of laughter, but Jurors #9 and #10 sat stone-faced, glowering. Yeah, okay. So I’m pretty sure I know where they were coming from. This gets back to what Stephen Browne was referring to as “making up stories.” It is what it sounds like. You want to arrive at a desired conclusion, and so you start injecting evidence into the mix that isn’t really there.

But in the end, mostly due to my own machinations, we agreed to hang the bastard.

And no, as we filed out of the jury box, there was no deputy waiting to handcuff us all for breaking the law.

This means the defense attorney did what I call lying. A lot of lawyers will say that isn’t accurate at all, he was just doing his job. And he never said anything technically untrue. So really…and by “really,” what I mean to say is “in their world”…I’m the one who is lying by calling him a liar. But that isn’t my world. In my world that motherfucker lied and he should have been disbarred.

This is one of the tragedies of the times in which we live. It has become acceptable to convey pieces of “truth,” leaving out selected bits of it in support of your own interests — to manufacture misunderstandings that benefit you. That, somehow, is thought of as a truthful thing. In fact, nowadays it is thought of as an admirable thing, a testament to your superior skill in “communicating” — leading the poor dumb bastard who’s believing you, to a conclusion he’d never reach on his own, in a million years, if he had all of the picture. Our ethics have gone astray. Because the manufactured misunderstanding, on the part of the person who placed too much faith in you, is all that guy’s fault.

It’s absolutely nuts. It’s like someone butchering your dog, or sexing up your wife and putting the hotel room on your credit card — then blaming you for it.

We’ve got a lot of people running around now, who are thought of as great communicators. But I wouldn’t want to go to a gun range with anyone who communicates that way, and neither would you. Well, maybe you would…but let’s just leave that train of thought alone.

Cross-posted at Washington Rebel.

Really good post, Morgan.

Sort’a like those “48 Hours” crime shows that lead you down a path where you are absolutely convinced that the guy who they’ve been showing you all kinds of incriminating evidence against is guilty as hell. Until, the “smoking gun” they FINALLY decide to present with five minutes left in the show totally convicts some other scumbag who did the dirty deed.

Deliberate, manufacturing misunderstandings, manipulating a-holes.
- tim | 08/17/2010 @ 09:17
“This is one of the tragedies of the times in which we live. It has become acceptable to convey pieces of ‘truth,’ leaving out selected bits of it in support of your own interests — to manufacture misunderstandings that benefit you.”

Which may be the root of the old grifters’ saying “you can’t cheat an honest man”. When somebody is not interested in benefitting from a misunderstanding, it doesn’t matter how many potential misunderstandings you create.

On the other hand, if you’re going to gripe about defense attorneys who misrepresent the law or the situation to jurors to manipulate them into acquitting, we’d better start griping with equal anger about cops who misrepresent the law or the situation to suspects to manipulate them into confessing. If manufacturing misunderstandings for your own benefit is wrong, then it’s wrong whoever does it, whatever the reason.
- Stephen J. | 08/17/2010 @ 09:33
A jury can do anything it wants, and sometimes does.

That power has been used for good and for bad. Northern juries refused to convict those who harbored runaway slaves, Southern juries convicted Blacks of crimes in case they might have committed. them. Juries everywhere gave passes in Prohibition enforcement, which was a factor in that amendment being repealed.

Justice Samuel Chase-
The jury has the right to determine both the law and the facts.
John Adams-
It is not only the trial jurors right, but his duty to find the verdict according to his own best understanding, judgement, and conscience, though in direct opposition to the court.
O. W. Holmes jr-
The jury has the power to bring a verdict in the teeth of both law and fact.

Judges especially hate the Adams statement. They probably hate juries also, and anything that gets in the way of control. Witness your pages of instructions. But the Founders believed the jury had a tacet role in addition to the individual case; the final check on the power of the ruling class was in the jury room. Realistically, grand juries, created to check the natural abuse of prosecutors representing the state, have become tools for prosecutors, so juries cannot be far behind. As a busy defense attorney told me one day, “They’re all guilty.” By the time an innocent man goes to trial, he will have a serious problem overcoming the fact that he is there.

Anyone who wishes to be excused from jury duty need only take the Adams statement to their interview.
- jamzw | 08/17/2010 @ 09:42
Besides being a good story, your recollection of detail is impressive.

This little post says quite a bit about how folks operate.
- Irish Cicero | 08/17/2010 @ 12:08

Leave a Reply

You must be logged in to post a comment.

Recent

Items of Interest

Monthly Archives

What They Say

Links

Memo For File CXXITuesday, August 17th, 2010

Memo For File CXXI
Tuesday, August 17th, 2010