Jury Duty

This subject was suggested to me by the end of the first Manafort trial.  There is supposed to be at least a second trial and the possibility of a third trial can not be ruled out at this time.  Nor may various appeals, pardons, etc.  So there is lots of process left.  But I want to focus on one aspect of one part of the process.

I have a line I have trotted out a number of times recently.  It goes like this:

I have never been married and never had children.  That's why I am an expert on child rearing.

The only reasonable conclusion to be drawn from this is that, in fact, I am definitely NOT an expert on child rearing.  Instead, whatever I have to say on the subject should be taken not with a single grain but with a five pound bag of salt.  I usually follow this statement with one that goes:

If you don't find your kids a frequent source of entertainment then for you having kids was a mistake.

I am careful to trot this out only when both children and their parents seem to be having a good time.  Raising kids is both very expensive and very time consuming.  I am not going to go into all the benefits of having kids.  Others who are far better qualified, and that means pretty much everybody, have done a far better job of that than I ever could.  But I do think it helps if parents recognize that along with the usual list of benefits there is also the entertainment factor.  And so on to the subject at hand.

Since it is also true that I have also never studied the subject, my credentials for opining on child rearing are exactly zero.  So what are my credentials with respect to the subject at hand?  They are better but still don't rise to the level of adequate.  Thanks to movies and TV I have an education in the law.  But it is a quite misleading one.  What I can say in my favor is that I have been called several times for jury duty, been "voir dire"ed a few times, and once served on a jury.  So with these marginal credentials in mind, here goes.

So what's a jury's job?  What is it supposed to do?  Well, in various entertainments it sits around and eventually renders a verdict.  And we are led to believe that everybody knows everything there is to know about how that verdict should be reached.  The entertainment leads us, the audience, to the conclusion that the defendant is either unambiguously guilty or unambiguously innocent.  But actual trials are messy things.  Fortunately, the courts devotes significant effort to help prospective jurors understand how to reach a verdict.

In actual trials a considerable amount of time and effort is spent educating potential jury members (before they are selected) and actual jury members (after they are selected) in what they are supposed to do and not do.  Some of this is very helpful.  Some of this is the opposite of helpful.  Let's start with the former.

"Juries are finders of fact and judges are finders of law", jurors are told.  So what does that mean?  Well, it depends on what kind of case is involved.  Cases fall into two general categories:  civil and criminal.  A civil dispute is between two parties and does not directly involve the government.  Most of the time a contract is at the heart of the dispute.  Two parties have entered into a contract and there is a dispute that arises out of this.

For example, one party may sue claiming he was not paid.  The other party may counter-claim that the first party did not do the work he said he would.  How does this all get sorted out?  The two parties go to court and a decision is rendered.  But civil cases seldom generate much interest among the press or public.  So, like the press, I am going to focus on criminal cases.

Here the case is "the state versus X".  Here the "state" may actually be a city, county, or other governmental entity.  Or it may actually be the "state" in the form of the Federal Government.  And, of course, the "X" is usually an individual but it may instead be a group, corporation ("remember, corporations are people", Presidential candidate Mitt Romney famously (and correctly, at least when it comes to the law) informed us).  As an example, the case I referenced above was formally "U. S. versus Manafort".

The other component is that the defendant is accused of violating one or more statutes or regulations.  In Federal cases you will hear "USC yak-yak-yak").  Here, "USC" does not refer to the University of Southern California.  It is the "United States Code".  As you might expect the entirety of the USC is now quite large.  It is broken into volumes.  The volumes are broken into sections.  The sections are broken into subsections.  And so on.  So the actual citation of one of the charges in one of Manafort's cases is that he violated 18 U.S.C. 981(a)(1)(C).  This means he is charged with violating the law found at volume 18 section 981 sub-section "c" sub-sub-section "1" sub-sub-sub-section "C" of the United States Code.

If you have access to a law library you can go to the volumes of the United States Code and pull down volume 18 (which might actually run to several physical volumes).  You can then flip to section 981.  There you will find that it is broken into sub-sections labeled "a", "b", etc.  And that sub-section "a" is further broken down into sub-sub-sections "1", "2", etc.  And that sub-sub-section "1" is further broken down into sub-sub-sub-sections "A", "B", etc.  (And in some cases the sub-sub- business may descend to even more levels but you get the idea.)  And the USC consistently uses lower case letters for the sub-levels, numbers for the sub-sub levels and so on.  This makes it easier to keep which layer you are talking about straight.

The USC is the worst in terms of length and complexity.  But state, county, municipal laws and regulations follow the same pattern.  They are tightly organized in a system that allows the compact citation of a single specific law or regulation.  And the defendant must be charged with the violation of specific laws.  He can't be charged with being a bad person.  For instance, if a person is charged with "vagrancy" by the time the case gets to trial "vagrancy" needs to be replaced with a reference to a specific component of a specific law or regulation of the governmental body levying the charge.

So how does this relate to the "finding of fact" business?  So far all we have talked about is "the law".  Well, each law includes a definition of the crime.  The crime has "elements".  The elements are listed for each specific crime.  It is the jury's job to determine if the facts introduced during the trial phase of the case prove that all of the elements have been demonstrated.  If one element is left unproven then it's game over for the prosecution on that specific "count" of the case.  (If a defendant is charged with multiple crimes than each specific crime becomes a "count".  Manafort was charged with 18 counts.)

And there is another element, call it the zeroth element.  That has to do with jurisdiction.  Did the crime occur within the jurisdiction of the law (and court) in which the case is being tried.  If the defendant is charged with violating a specific section of the Municipal Code of the City of Seattle but the crime actually occurred in Redmond, then the defendant must be acquitted.  Similarly, if the trial is taking place in a Tacoma court room, Tacoma courts have no authority to enforce Seattle laws, so again the defendant must be acquitted.

The judge and the attorneys for the various sides are required to go through all this with the jury.  So, for instance, the prosecutor carefully asked a witness in the case I was involved in what seems like a stupid question "did the crime occur in Seattle"?  The "yes" answer fulfilled the legal requirement to show that the issue of jurisdiction had been properly addressed.  And you can bet that this sort of thing never makes it into the parts of trials that show up in entertainments.

So the first responsibility of a juror is to decide whether all the elements of the crime have been proven.  If the answer is "no" to even one of them then that's it.  But if the answer is "yes" to all of the elements then there is more.  Proving all the elements of the crime is a necessary but not sufficient condition for a "guilty" verdict.  There may be mitigating circumstances.  For instance, in a murder case the defendant may claim "self defense".  "Yes, I killed him but I only did it because he tried to kill me first".  Self defense is usually considered sufficiently mitigating to justify acquittal even though all of the elements of the crime have been proven.

But here is where things get sticky.  What constitutes "sufficient" proof.  Or, more generally, what constitutes "reasonable doubt".  In civil cases a different "standard of proof" is used.  The presumption is that the stakes are lower in these types of cases.  Also the sides are presumed to be more evenly matched in terms of potential liability.  It is not the case that one side (the state) is putting little at risk while the other side (the defendant) is putting a lot at risk (i.e. incarceration, death).  So in civil cases a "preponderance of the evidence" standard is used.  This is usually paraphrased as "more evidence in favor or one side's position than for that of the other".

The problem in criminal cases is there is no accepted standard for "beyond a reasonable doubt".  We saw this on display in the Manafort case.  In his instructions to the jury the judge talked about the meaning of "reasonable doubt" but it was all mush.  After the jury started deliberations they sent out a question to the judge asking for clarification on what constituted "reasonable doubt".  He parroted back the same mush he had given them in the first place.  In other words, he left them on their own.  He was forced to do this because of the lack of an accepted standard.  Reasonable people differ.

So let me start by discussing my approach.  The first thing I do is assume everyone is telling the truth and ask myself "is there a set of circumstances that is consistent with what everyone testified to?".  I have found that this actually works a lot better than you would think it would.

I am not naïve.  I know people misremember or outright lie and they do it a lot.  But I find this a very good starting point.  If you make this assumption you will find that there are far fewer inconsistencies and contradictions than you would think there would be.  And a very important scientific principle lies behind the whole "inconsistencies and contradictions" thing.

Scientists believe the real world is "consistent".  Things are only one way.  If one theory predicts "red" and another theory predicts "blue" then there is a problem.  One, or possibly both, of the theories is wrong.  And if a specific theory predicts "red" but observation shows the actual situation to be "blue" then that theory is wrong and something needs to be changed.

This idea of consistency works well in science and also in the real world.  But it is also surprisingly helpful for dealing with sorting out things like who to believe.  In a trial there may be more than one sets of circumstances that are consistent with all the evidence and testimony.  So start there and see how far it gets you.  If nothing else it should result in only a few areas of dispute that need to be resolved on the way to reaching a verdict.

Next there's the issue of what evidence is appropriate to consider and what weight to give it.  For a long time eye witness testimony was considered the best evidence.  "Circumstantial" evidence (everything else) was considered less reliable.  But things like fingerprints and DNA have turned out to be way more reliable than eyewitness testimony.  We are more and more seeing the consensus shift to valuing certain types of circumstantial evidence more highly than eye witness testimony.

And in the Manafort case the prosecution contended that business documents like bank records, printouts of emails and text messages, and other circumstantial evidence was what the jury should primarily depend on.  The defense tried to discredit the prosecution's key witness but did not make an effort to discredit any of the documentary evidence.  The one juror that has spoken out so far said she relied primarily on the documentary evidence and paid much little or no attention to the eye witness testimony.  But there is still a need for eye witness testimony and for jurors to make judgements about the accuracy and reliability of that testimony.

One of the bedrock elements of our society is a "jury of our peers".  What's going on with that?  Well, one of the things that it does NOT have to do with is for jurors to go out and gather evidence on their own.  Jurors are also not supposed to hold a preconceived notion of guilt or innocence.  It is not okay to decide "this guy a stand up guy so he couldn't have possibly done it" or "this guy is scum so he must have done it" based on how the person strikes you.  Jurors are expected to render a verdict based solely on the evidence presented in court.

Now this often presents problems.  In entertainments we often see the crime committed so we know for sure "who done it".  If not, then usually we are given hints sufficient to push us firmly into one camp or the other.  But in actual trials it is often impossible to produce enough evidence to resolve all issues.  Maybe a witness died or disappeared or was never located in the first place.  Maybe the lab work was bungled or was never performed in the first place.

In many jurisdictions, including the one I live in, (but never in entertainments) the backlog at the crime lab is a year or more.  So everybody prioritizes.  Do we really need this blood analyzed to prove our case?  If the answer is "no" then the blood work is not submitted to the lab in the first place.  This leaves the jury to work through an incomplete case.  Not all the questions that they might reasonably ask are answered over the course of the proceedings.

In the Manafort case the trial took place in a "rocket docket" jurisdiction.  The judges want cases move quickly so they push lawyers to reduce the number of issues in dispute to the minimum and to introduce the minimum amount of evidence necessary to decide each issue.  There is good reason for this.  As a result cases in this jurisdiction often come to trial quickly.  That is not the case in many other jurisdictions.  And this business of getting to trial quickly can help the ends of justice.  But it may also mean that the prosecution (or defense, but in this case the defense presented no case) may end up not presenting evidence that could possibly have resolved the doubts of one or another juror.

In this case one juror cited "reasonable doubt" in her decision to vote to acquit on 10 of the 18 counts.  (She voted to convict on the other 8 counts.)  All eleven other jurors voted "convict" on all 18 counts.  It is possible that if the prosecution had been allowed to introduce a little more evidence that evidence could have been enough to resolve her doubt.  But we'll never know.  What we do know is that we now have a mistrial with respect to ten of the original eighteen counts.  And that may result in another trial to resolve the fate of those counts.

Getting back to my process, I start with a position of "everybody's telling the truth".  Even if that fails it reduces the number of issues considerably.  So the next question is what to do if we have a conflict in the testimony.  This is an area where the jury is supposed to apply their judgement.  Who is likely to be telling the truth and who is not.  And is the "not" person merely making a legitimate mistake or are they lying on purpose?

This is where the jury is supposed to apply their life experience rather than any specific fact or experience.  And it may boil down to a question of whose story is more reasonable or believable.  Again, jurors are expected to apply their life experience to come to a judgment.  And this is why a "jury of peers" is important.  A shared life experience is supposed to result in better judgements.

But what to do about the missing parts?  That's a conundrum and one for which there is no agreed on solution.  The appropriate response to missing parts we are told is "no response".  What does that mean?  Well, I tend to go with the Wikipedia language of "neutral interpretation".  Try to deal with it in a way that favors neither the prosecution nor the defense.  Again, this came up in the Manafort trial.

As I indicated above, Manafort's defense team chose not to put on a case at all.  And it is often the case that the defendant choses not to testify.  The simplest and most obvious interpretation of tactics like this is that the defendant is guilty and the choice made is an attempt at damage minimization.  But that is not "no response" nor a "neutral interpretation".

And there are situations where these tactics are absolutely the right tactics for the defense to use.  Assume that the defendant is innocent and that the prosecution failed to prove one or more elements of each count the defendant is charged with.  Then the defense should win without putting on a case.  If they instead put on a case something could go wrong.  So their best choice is to do nothing.

In fact that was the situation in the trial I was a juror on.  There were two possible perpetrators and at the end of the prosecution's presentation no evidence had been introduced to show that the defendant was the actual perpetrator.  So it would be entirely reasonable to assume that the other possible perpetrator did it.  So I was mystified when the defense didn't point this out and ask for an immediate dismissal.

And, in a perfect example of a situation where the defendant shouldn't testify nor even put on a case, our defendant went on the stand and said "I did it".  He then went on to claim mitigating circumstances but we didn't buy them and he was convicted.  Had the defense not put on a case I would have voted for acquittal.

So if I was on the Manafort jury I would have asked "did the prosecution prove all elements of all crimes charged in all counts"?  Based on what I saw in the press I would likely have said "yes".  Then I would have asked myself "is there any alternative interpretation of the evidence presented that would lead to 'not guilty'"?  Again, looking from the outside, I didn't see any (but I will come back to this below).

Finally, I would have asked myself about mitigating circumstances.  Usually the defense uses their presentation to raise any possible mitigating circumstances they can think of.  But remember they didn't put on a case.  I think it would be an appropriate "no response" or "neutral interpretation" to conclude that none of the usual mitigating circumstances were present in this case.

But I am a rationalist and a "guided by the evidence" kind of guy.  So that's why I think the way I think.  But not everybody thinks the way I do.  But before I go there I am going to take a digression.  There is another reason evidence might be absent.

Let's say one side does a bad thing.  Say, for instance, that the cops break into someplace without a search warrant and, as a result, find a bunch of incriminating evidence they wouldn't otherwise have known about.  Then they cover this up, somehow get a search warrant for the place they have already searched, and go back where, surprise, surprise, they find a bunch of incriminating evidence.  Obviously, they are not supposed to do this.

So let's say the judge becomes aware of all this.  Then what?  The usual response is for the judge to suppress all the evidence gathered in this manner.  Now remember that there's nothing wrong with the evidence itself, just the way the cops got their hands on it.  There is still a good societal reason to make the cops do things properly.  In other scenarios it is the defense that does something bad.  No matter which side does it the judge needs to be able to do something to rebalance the scales.

The judge has only a few crude tools with which to do this and suppressing evidence is one of them.  But for this tool to be effective jurors need to go only by what they hear in court.  The action the judge takes is supposed to weaken the side he takes it against.  But if jurors go out on the own time and snoop around they can find out about this sort of thing.  And that means that one of the few tools that a judge has to maintain an overall degree of fairness is lost.  This is an aspect of our judicial system that is much underappreciated.  Nevertheless, it is an important one.

Back to "reasonable doubt".  I keep bringing it back to scenario building.  What if this happened?  The bias is supposed to be in favorable of acquittal.  If there is a "reasonable" scenario that is consistent to the extent possible with the evidence introduced into court then the defendant should be acquitted, at least on that count.  So what's reasonable and what's unreasonable?

I've already tipped my hand on one aspect.  It's unreasonable if it contradicts otherwise uncontradicted evidence introduced at trial.  I also eliminate the magical and the supernatural from consideration.  God could have caused someone to see "this" when "that" is actually what happened.  I don't include divine intervention in what I consider reasonable.  But others might.  I also eliminate interventions that, while not originating from a divinity, do require the violation of the laws of nature as I understand them.

Finally, I expect a scenario worth consideration to be supported to some extent by evidence introduced at trial.  Suppose someone is being tried for bank robbery.  Well it is possible that a rival gang actually pulled the job but, for reasons unknown, planted evidence to point to the defendant.  It's possible.  But was any evidence introduced at trial for, say the existence of a rival gang with a grudge?  If not, then I don't think such a scenario can be used as a basis for finding reasonable doubt..

But what about something like a "they picked on me" defense.  The Manafort defense argued that the government, as a result of the Trump Russia investigation, chose to single Manafort out for special scrutiny.  If they hadn't done this they probably would not have noticed his crimes and, thus, not charged him.  I'm of the "if you don't want to do the time then don't do the crime" school in this case.  But I presume the holdout juror bought this argument.

And there are circumstances where I could see myself buying it.  Studies show that drug use is about the same among blacks and whites.  But blacks are something like ten times as likely to end up in jail as a result of a minor drug beef.  In the case of the blacks who were convicted the whole "time - crime" thing definitely fits.  But what is really going on is that cops go looking for blacks involved in drugs while at the same time looking the other way when it comes to whites and drugs.  More importantly to me, Manafort at considerable expense assembled a crack legal team.

This option of assembling a crack legal team is not available to most low level black drug offenders.  They do not have the financial resources available to do so.  So I would tend to be much more willing to be swayed by a "they picked on me" defense in situations where the defendant has scant financial and other resources and much more unwilling to do so in the case of someone who is well healed and/or well connected.

So the "they picked on me" defense is one where reasonable people can come to opposite conclusions.  Or even the same person (me) can come to different conclusions based on the situation.  And there are other arguments that are not based strictly on the facts of the case that can sometimes be compelling and sometimes not.  And that, at its core, is why there is no agreed on definition of "reasonable doubt".  I invite my readers to spend some time thinking about what definition of "reasonable doubt" works for them.  After all, they might end up on a jury at some point.

And that is one of the best things about the jury system.  I was impressed by the seriousness with which almost all prospective jurors take their duties and responsibilities.  Yet jurors are the cannon fodder of the legal system.  They are often seen more as a necessary evil than anything else.

They get a few bucks and a bus pass for taking a day (or sometimes several days) out of their lives.  They are supposed to shut up, go where they are supposed to go, do what they are told to do, and otherwise just stay out of the way.  They are suppose to know nothing about the case when they first file into the court room.  In a high profile case this eliminates anyone civically inclined enough to follow the news.  They are not supposed to know any of the judges, lawyers, defendants, etc. involved.

They are asked very personal and sometimes embarrassing questions during "voir dire", the questioning before their selection that is supposed to decide their suitability as honest, upright, and responsible citizens.  If the case goes on for more than a day they are supposed to avoid any press coverage.

They are even supposed to ignore what happened right in front of them (and was often said solely for their benefit) if the judge says "please disregard what you just hard".  Lawyers sometimes want to get certain ideas into jurors' heads but the rules of procedure don't give them an opportunity to do so.  So they "make a mistake" and say or do something they are not supposed to.   The toothpaste can't be put back into the tube.  So the judge says, in effect, "pretend the toothpaste never left the tube".  Only he uses the "please disregard" legal formulation instead.  (Manafort's defense team did this and , for the most part, got away with it.)

It's a tough job but one most people are willing and eager to undertake.  Most shirkers shirk only because they literally can't take the time off.  There is no one else to take care of the kids.  Or they would get fired if they took time off work.  In many low wage jobs they would lose a day or more of pay even if they didn't get fired.  This is a big deal for a shocking number of people as they live from paycheck to paycheck.

Yet people show up and they try their hardest to do a good job.  Even the people who screw it up by doing something differently than I would are doing their best to do right as they see it.  That is literally all you can ask of anyone.  It's also far more than we get from many of the people who are supposed to be dedicating themselves to looking out for our best interests to the exclusion of their own.