Jury Duty, the Trial, Part II
Posted by Sappho on September 7th, 2007 filed in Daily Life
So, guilty or innocent? Criminal, or extremely gullible? And what’s sufficient evidence to decide that someone who really looks more guilty than not is actually guilty beyond reasonable doubt?
Having heard the judge’s closing instructions, which were long and which I’ll make no attempt to summarize here, we were sent off to our jury deliberation room, with the items entered into evidence, and forms to indicate our decision. The first order of business, to choose a foreperson.
“So, does anyone want to volunteer?” Silence.
“Has anyone been a foreperson before?” Silence.
“Has anyone been on a jury before?” I asked. One person had. She became our foreperson, on that basis.
Our new foreperson proposed that we start by taking an anonymous straw poll, writing on slips of paper what we thought on each count, guilty or not guilty. There were two counts, one involving fictitious instruments, which amounts to knowingly passing a false check, and another which amounted to the defendant entering the bank knowing she was going to pass a false check. In principle, these are to be voted separately. In this case, though, it’s difficult to think of any set of facts which would have led to the defendant being guilty of one of the counts and not the other.
We took the straw poll and had ten votes for guilty and one for innocent (one written vote was impossible to interpret). I was not the hold out for innocence.
In principle, I believe really strongly in the presumption of innocence, and in proof beyond reasonable doubt. I think it likely that most felony cases brought to trial do in fact involve a defendant who’s guilty of the crime charged, that the prosecution usually won’t take a case so far if the evidence isn’t there. But I also think, to the extent that’s true, it’s true because of the safeguards of jury trial, the “beyond reasonable doubt” standard, the requirement of unanimity. Get rid of those safeguards, and the normal human temptation is to start judging people on slight evidence. Get rid of those safeguards, and soon we find ourselves in the world of the Star Chamber.
And even with all the safeguards, some people do get brought to trial, and some even convicted, who are innocent (see, for example, the movie The Thin Blue Line, which got someone released from Death Row).
Still, in this case, by the time we got to that deliberation room, so many pieces of evidence pointed toward Guilty that I couldn’t really think the defendant innocent. I was glad, though, that somebody had voted Not Guilty, since it meant one more chance for all of us to review the evidence.
We passed around the items checked in as evidence: the fake check, the emails. A juror who had more knowledge of checks than the rest of us thought the forgery fairly obvious to her eyes; the defense attorney had pointed out in her argument for why her client didn’t know that even the bank employees had needed to run tests; the other juror doubted that they actually needed the tests. They would probably have run the tests on even the most obvious forgery, I said, to cover their asses, but still, it wasn’t obvious enough that someone not in the know about fake checks would have known.
One juror put the question: So, did she know, or was she really stupid?
Another juror asked, if she didn’t know, why would she have gone to a check cashing place before going to her own bank? Those check cashing places take a minimum of ten per cent of the check, she said. And the defendant claimed not to have even known that her account was closed. Why use the check cashing place at all, unless she was afraid that Washington Mutual was more likely to detect a cashier’s check forged in the name of Washington Mutual?
A third juror doubted that an innocent person, who had no clue about the check, would have been calm (as we’d been assured the defendant was), on the arrival of the police. She’d given personal information on the Internet to someone who was now shown to be a crook. And was now suspected of theft herself. Wouldn’t the normal reaction, if you were innocent, to be extreme alarm? And the fact that she stayed was meaningless in showing her innocence – what else was she to do? It was her own bank, that had all her information. Where could she go, that they wouldn’t be able to catch up with her?
I said I didn’t find her answering of police questions meaningful in indicating innocence; plenty of criminals freely answer questions, and even make incriminating statements to police, long since the time they should have gotten lawyers. On the other hand, the defense argument about her desperation had a little more to it; it must be allowed that wishful thinking does lead some people to extremely foolish beliefs.
The stack of email had stopped with me, by this point, and one juror wanted one of the messages read aloud again, so I read it. We had some discussion of which messages she had read. I divided the email into three stacks: A) messages that had arrived before the defendant went to the bank, at a particular time of day on April 12th, and which the defendant had read, B) two messages from “johnjo” that had arrived after the defendant went to the bank, which she therefore had not seen, and C) the scam warning that the defendant had received when posting her ad, which the detective said she had admitted to having read, and which she claimed in her testimony not to have read.
One item had been mentioned in the trial that was not in our set, the packing slip that the check had come in, with the return address of Dubai, United Arab Emirates. We asked the bailiff to bring us that. It turned out that it had been shown to the defendant, and given a number, but had not been entered into evidence.
Some jurors lacked sympathy for the defendant’s predicament as a homeless mother of three. Two of the three children were adults; with three adults and only one minor in the household, why weren’t enough people working to pay rent? Another juror pointed out that, regardless, we were not to let our personal feelings about her homelessness, sympathetic or not, sway us. The question was whether she had broken the law.
On the other hand, the detective was a credible witness, and his testimony included some admissions damaging to the defendant’s claim not to know. If she had believed the check to be real, why would she have planned to keep all of the money of her benefactor, whom she so much trusted, rather than splitting the money as agreed?
I thought the detective a much more credible witness than the defendant. The detective was clear and consistent in his testimony, and on the few occasions when he wasn’t sure of his memory of something, it was as likely as not to be something where a firmer statement and clearer memory would have boosted the case against the defendant. For example, he remembered the defendant had told him she had read the scam warning, but did not remember whether he had seen it marked as read in her email folder. The defendant, on the other hand, had sharply changed her demeanor under cross-examination, waited on every question, appeared reluctant to agree to anything if the prosecutor proposed it, and claimed, under cross-examination, not to remember a number of things that a person in her shoes ought ordinarily to be expected to remember, such as what email she had read, and what testimony the detective had given the day before.
Another juror agreed, and added that the defendant had been glancing at her lawyer repeatedly under cross-examination, as if looking for cues on what to say.
Though I had been asked during jury selection, as one of the more computer knowledgeable jurors, whether I’d have trouble with someone not doing things that would be obvious to me, with a computer, I think it was actually the computer novices in the jury that had the hardest time believing that the defendant was really as naive as she claimed. She’s not as stupid as she says, said one; she knows how to post an ad, get her email, and use an Internet cafe. I don’t know how to do the things she does, said another, but I still know enough to recognize this as a scam.
And, even if the defendant hadn’t already known to be careful of fake checks, shouldn’t she have been tipped off by the fact that she had already deposited a check in this very account that had proved to be fake, and had her account shut down for that reason? There was general skepticism of her claim not to have known that her bank account was closed. A couple of people felt that her credibility was reduced by the fact that she had, after all, already been convicted of theft.
After a bit of this discussion, the foreperson called for another anonymous poll. We wrote out our slips, and the foreperson did the tally: twelve Guilty votes on each count. I think we have our verdict, she said. And submitted the form to the bailiff.
While we waited to be called back into the courtroom, the discussion turned to what the defendant’s penalty would be. None of us knew the sentence for this crime. Did her prior make this a third strike, someone asked? I thought not, that it would have to be three separate incidents.
We were called in (first leaving behind in the jury room our notebooks – from which we had torn and shredded our notes), the verdict was read, and we were told we could leave. We did not learn what sentence was given.
I think one of the two counts was California Penal Code 476, which appears, from what I read afterward on the web (I didn’t look at the penal code while the trial was going on), to carry a penalty of not more than a year. I’m less sure in my memory of what precisely the other would have been called – it had a legal name of burglary, and had something to do with planning to enter a building knowing you were going to steal, which I think points to California Penal Code 459. How much jail time the two of those would amount to, with a record of one prior, I don’t know, but it seems likely she’s seeing at least some jail time.