Monday, December 15, 2008


I registered for Selective Services in 1987 but the decades went by and I never got the call for jury duty. In Orlando, Marci got one summons after another, she would postpone her service, postpone it again, then finally go for the day, and come home saying she didn't get placed on a jury. I've been working freelance ever since we married, so I wasn't nearly as busy as she was, so I've always hoped that my name would get picked out of the hat and I'd get the nod.

It never happened until 2006, after we'd moved to LA, the world's largest court system. My first summons was to report if needed to the Malibu court. By this time, I wasn't working at all, so my fingers were crossed that I would get to sit in judgment of Robert Downey Jr, but I called in every day, and never did they need me. My name came up again in 2007, this time for Santa Monica, but again, I didn't have to appear. In 2008, third time was a charm and I got the nod to appear on the Thursday before Veterans' Day in November in Van Nuys.

I took a book and settled in for a long day in the Jury Selection room. There were about 80 of us and it was less than half an hour later when I was part of the first 40 to head next door to the criminal courtroom of Justice Steele. We all were assigned a number and mine was 4 which ensured that I began the selection process by sitting in the juror box. First, the judge had us introduce ourselves and say what we do for a living, or what we study in school, what our spouses do, how many children we have, what they do, etc. We had to disclose if we were familiar with any of the principles in the case, and if we had any prejudices which would preclude us from rendering an impartial verdict. Only jurors 1-24 spoke during this part, while 25-40 sat idly.

Then, the prosecuting attorney, Bollinger had a chance to ask the twelve of us some questions of his own devising. Next, the defense attorney, Halpern, asked us questions. The two attorneys then met with the judge in sidebar and when they came back, they took turns saying thanks but no thanks to whomever they wanted off the jury for whatever reason, which they need not state. Gone was the physician, gone was the pastor, gone was the lady whose brother was accused of murdering his wife. In all, ten jurors were dismissed. Finally, both attorneys were pleased with the composition of the jury and numbers 23 and 24 were seated as alternates. By this time, it was 1PM and we were dismissed for the day. We reappeared on Friday, but were immediately sent home for the weekend. On Monday, the judge read his instructions to the jury and we heard opening statements. Then we were done until Wednesday.

The defendant's name was Catherine, a 19-year-old Hispanic-Seminole blend from North Hollywood. She was being charged on two counts - simple battery and disturbing the peace. We had no way to know if this was her first brush with the law or merely the latest. The defense seated four witnesses. The first two were police officers and the latter two were dog owners who were at the park across the street from the incident. The basic timeline was this: one of the dog owners called the cops to report an act of vandalism after hearing a car window get broken by an unknown source. Officers Esturban and Tomlinson drove by in their patrol car and saw the defendant's younger brother, Danny, walking his dog on the sidewalk. The officers recognized the 18-year-old Danny because he is a thug with whom they've dealt with before. They decide to have a talk with Danny, and because he's rotten to the core, they handcuffed him first for their own safety.

Up to this point, Danny was perfectly compliant. Concurrent to this scene, Catherine and her friend, who have walked ahead of Danny, were alerted to the fact that Catherine's brother was being "arrested." Catherine is a big girl, and she came storming down the sidewalk shouting "What the fuck? You can't even walk down the street?" Tomlinson was acting as the contact officer, cuffing Danny, while Esturban served as the support officer, establishing a perimeter. With Catherine approaching in a belligerent and aggressive manner, Esturban held up his arm and ordered her to stop. She bitch slapped his hand away and barged past him, thus the battery charge. At this point, Esturban got Catherine against a tree and began to subdue and handcuff her. This treatment of his sister totally set off Danny, who immediately starts kicking and spitting on the officers. Tomlinson leads Danny over to the squad car and Danny uses his legs to push off against the car and take Tomlinson and himself to the ground.

At this point, Tomlinson activated a recording mechanism that he carries on his person and the next eight minutes comprise a recording that was played in the courtroom. Backup arrived almost instantly and soon there were at least a dozen cops and two helicopters on scene. On the tape, you don't hear any police brutality, only calming directives such as "Calm down! Stop resisting!" You hear Catherine only a few times in the background saying "I'm okay, Danny!" and such, in an effort to calm her brother. Danny, on the other hand, is out of control, kicking, screaming, spitting, and at one point even tells Tomlinson point blank that "You're a dead man." There's little doubt in my mind that Danny is already serving time, compliments of some previous jury.

The defense offered a gaggle of eyewitnesses before calling upon the defendant herself, all in effort to hint towards police brutality in hopes for enough of a sentiment for jury nullification that they can hope for at least a hung jury if not reasonable doubt. The story was pretty much the same, other than the cops were provoking the Latinos on the street for sport, needlessly harassing Danny and pushing around Catherine once they could legitimately claim in their police report that the situation had escalated. There was one witness who actually stated that the police told him to get off the street unless he wanted to get arrested. We pretty much disregarded that guy's testimony during deliberation, but he did provide the funniest moment of the trial.

The guy was scared to death to be in a courtroom because he most likely is not even in the country legally, and only appeared because he was subpoenaed by the defense. He brought his little daughter with him, who sat in the front row while he gave his testimony through an interpreter. When he was asked what the defendant had been shouting while she approached the scene, he replied "She was saying very bad things." The lawyer said "Can you give us your recollection of exactly what the defendant was saying?" The interpreter said "Da da da da da" and the witness said "Da da da da da" and the interpreter said "She was using some very bad language." Again, the lawyer asked for his specific recollection, again the "da da da, da da da" and the interpreter says "Do you want me to say the things?" Confirmation from the lawyer and another round of "da da da" and the interpreter says "It was bad things." At this point the lawyer asked for a sidebar, and everyone disappeared into the back hall for half a minute and when they came back, the judge had the baliff escort the little girl out of the room and out of earshot. The question was once again posed to the witness and in perfect English, without the aid of the interpreter, he says "She shouted 'what the fuck are you doing to my brother, you mutherfuckers!" Everybody busted up, including the judge.

There was another funny moment during the prosecution's closing argument. When Catherine had bitch slapped Esturban, she had called him Esturbitch. Bollinger had managed to use Esturban and Esturbitch each in their proper place until closing, when he referred to him as Officer Esturbitch. Again, the judge led the chorus of guffaws.

It was Tuesday, the week after Veterans' Day, when the jury was finally led to the deliberation room. The first order of business was to choose a foreman, and that was easy since I was the only person to volunteer. My pal Steve Whitaker sent out an email years ago to his fantasy baseball friends, directing us to be the foreman if we ever get the chance to serve on a jury. I might never get the chance again, so I was eager to volunteer. I thought it was going to be a slam dunk conviction, but once you get in that room, you realize that 12 random people have a way of hearing the same information 12 different ways. There were reasonable people who didn't have much to say other than 'guilty' but there were more than one unreasonable people who either wanted to stick it to the cops or who weren't even sure an offense was committed.

We only had 40 minutes or so on Tuesday before we were released, and I spent that night strategizing and forming mini-monologues for the next day, since I was assigned with the task of getting these random people to all agree in the end. I led off Wednesday morning by stipulating that we are all different and we have been thrown together at random to render judgment on an individual based solely on facts that were presented in the courtroom. I recommended that we in turn present our interpretation of the case to our fellow jurors, including our own prejudices and perceptions of the facts and how we would vote on each count. I went first and spoke for a long time, since I fielded everyone's questions and explained my position on everything and anything to do with the case.

My position was that disturbing the peace was a slam dunk guilty because everything was fine until the defendant started yelling at the cops and then all hell broke loose. So far as the battery went, Esturban says there was contact, Catherine says there was no contact, so they cancel out, because I don't inherently believe a man in uniform more so than anyone else. There were two ladies in the dog park, one of which had a good view of the initial approach of Catherine to Esturban. I didn't have in my notes exactly what this lady saw, but I considered her reliable, so I put the request in to have her testimony read back to us. Meanwhile, we argued on about this and that as the day wore on.

At some point, it occurred to me that everybody thought the defendant was guilty of something but we differed as to exactly what. I asked the group to raise their hand if they would like to see the defendant charged with one of the counts, regardless of which one. All 12 hands went up. Okay, now raise your hand if you think it should be disturbing the peace; 6 hands went up, leaving 6 voting for battery. We discussed each count and came to the general conclusion that even though both counts were classified as misdemeanors, battery sounded like the more serious offense. So, with the understanding that if we can't agree on a unanimous verdict, then the defendant is convicted of nothing and sent home, raise your hand if you would agree to convict her with disturbing the peace if the alternative was a hung jury. Eleven hands went up with the sole holdout adamant that the girl be convicted of battery to send a message that it is simply unacceptable to barge past the law.

When the same question was posed in reverse, ten jurors were okay with convicting of battery and not the other, but the two holdouts were not yet fully convinced that there was enough contact to legitimize the battery charge. At that point, the god in the machine, aka the court reporter, appeared to read back testimony from the dog lady. The testimony couldn't have been more clear: she heard commotion, she stood on a table, she saw the officer put his arm out and she saw the defendant slap away the arm and push past him. The court reporter left the room and the holdouts were convinced: guilty of simple battery. With that conviction settled, we revisited the disturbing the peace charge and came to a relatively quick decision that since Esturban himself said on the stand that Catherine's foul language, including her Esturbitch remark, had no effect on him and did not in itself escalate the situation, then we decided we could absolve her of the guilt that really lay with her brother in turning a routine stop into a full out police action.

Within five minutes of the court reporter leaving the room, the discussion was concluded, the paperwork completed, and I put a call in to the baliff to let him know we had reached a verdict. The principle players were gathered in the courtroom and I handed the verdict to the judge, who looked it over and handed it to the clerk to read. Unlike the movies, where the verdict is read in a manner to heighten suspense, the actual paperwork goes something like: The jury renders a decision of guilty (filled in blank) and then goes on into the legalese and minutiae. By the time the entire paper is recited, the defendant is already weeping and the mother is shooting death stares at the jury foreman.

So, in the end, the defendant got what she deserved for displaying thuggish behavior and I got a tremendous feeling of satisfaction not only for performing my civic duty in this ancient practice of trial by jury, but for serving as the foreman and using my negotiating skills to bring a room full of disparate personalities together for a just decision. Many people put a lot of energy into trying to avoid jury duty. I'm telling you, if you ever get the chance to sit on a jury, try not only to get on, but volunteer to be the foreman. It's a once-in-a-lifetime experience.


E said...

Dude, you are a gifted storyteller. You got hearty laughs from a story about jury duty.

I have been called at times to the courthouse but have never been selected to sit on a jury. Now I know what to do. First, must watch 12 ANGRY MEN again.

Sir Saunders said...

That's a great blog, I enjoyed the moment to moment action. You should try expert-witness sometime for another experience.

Tom said...

This was fun to read.

I saw Twelve Angry Men last night and I was taught your poor defendant must have been railroaded.

I had jury duty over the summer, but it was a simple day of reading a WWII memoir and never making it out of the holding room.

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