1998 - Jury Duty II

This was my second opportunity to serve on a jury. Hopefully my argument to overcome our single holdout gave her continued room for thought.

1998 – Jury Duty

“Ok, let’s take another vote.” The jury foreman looked up at us. “We seem to be in the same place we were 2-days ago – but let’s try again.” We each selected a piece of paper from the pile in the middle of the table. I wrote my decision on the page “Not Guilty.” We took a count.

“Not Guilty”
“Not Guilty”
“Not Guilty”
“Not Guilty”
“Not Guilty”
“Not Guilty”
“Not Guilty”
“Not Guilty”
“Guilty”
“Not Guilty”
“Not Guilty”
“Not Guilty. We still have one holdout.” He continued to look down as he continued, “ I imagine this is the same person who voted guilty 2 ½ days ago.” He looked up. “I know this is a secret ballot but if you reveal yourself we may be able to clear up any reservations you have. Everyone else here believes the defendant to be innocent of the crime.” The crime in question was murder.

We had been selected on Monday from a pool of available jurors. By Wednesday afternoon testimony was over and we were ensconced in the jury room. The case seemed open-and-shut from the start but as the testimony and evidence was presented we expected the prosecution to offer us a surprise that showed firm evidence of the crime. When we retired to the jury room we were still waiting. No one answered the foreman’s appeal so we began, again, to review the evidence we had.

The crime:
A sailor had been partying at the Enlisted-Men’s Club on base until around 10 PM. As he left the club for a cigarette another sailor who was called “Smiley” by one of his acquaintances accosted him and his two friends. One thing led to another, words were exchanged and a fistfight broke out. In very little time the sailor who had been originally accosted punched out his assailant. Thereupon he picked up his attacker and tossed him over the hood of a parked car, leaving him there as he turned and walked back into the club. An hour later when he was leaving for the night he was again met in the parking lot by Smiley who exchanged words and pulled a pistol. As the victim began to argue with Smiley, Smiley pistol-whipped him on the side of the head knocking him to the ground whereupon Smiley stood over him and put 3 bullets into his chest. Smiley took off running and disappeared into the dark of the Naval Base.

The investigation:
The Shore Patrol began investigating the crime that evening by speaking to witnesses who all agreed they had heard the attacker called Smiley by his acquaintances. Each witness also confirmed the above crime by telling the investigative agents as much as they had witnessed. They testified that both the victim and his assaulter were black. Investigators spoke to non-witnesses who were present in the bar but had not seen the confrontation in the parking lot. They obtained one name of a sailor named Smiley but when they went to his ship they found he had been released 2-weeks before. Speaking to his friends they discovered he had fathered a baby in San Diego out of wedlock and had been seen once visiting, since his release, in San Diego. He had told his friends he was there to visit his child and girlfriend intending to propose. They were sure he had left town by the time of the crime but no had seen him get on the plane. The Shore Patrol was positive they had their man so they proceeded to investigate his location in preparation for an arrest. Eventually they found Smiley in Chicago where he lived with his mother while he looked for work. The arrest was made using personnel from the Great Lakes Naval Base and he was eventually escorted back to San Diego for trial.

The defendant:
“Smiley” sat at the table along side his single lawyer. Smiley’s defense team consisted of a prosecutor and 2-assistants. Smiley’s head was shaved bald and he sat in prison blues, which looks a lot like medical scrubs but with a big SD JAIL printed on the back. He was only around 5’6”, and of a slight build, but he strode into the courtroom with a swagger. Looking into his eyes his swagger seemed to be at opposition with his thoughts. His eyes revealed that inside he felt a bit uncertain as to what was happening to his life. I go the sense that much of the swagger was an act for the court and that he was essentially a frightened lad that had done something stupid which resulted in his life spiraling out of control.

The testimony:
One of the first witnesses was the friend of the dead sailor and one of the sailors that had gone to the parking lot for a cigarette with the victim. He thought the defendant looked a lot like the assailant but due to the shadowed parking lot could not be 100% sure. The next 2-witnesses offered similar testimony.

The Shore Patrol was up next. The chief had served as a Shore Patrol Officer for several years and was preparing to retire. He told us this would probably be his last case and he had managed to wrangle a delayed release so he could close this, his last case, before retiring. He told the story we had all heard giving us the information he had from his investigation. He told us no one was able to positively identify the defendant as the perpetrator but from all of the evidence he had gathered, and by dint of his superior experience, he was certain they had their man. The prosecution rested and the defense took over.

There was a series of character endorsements, the first from his mother who had accompanied her son from Chicago. Also there were shipmates, his boss from the job he held before his enlistment as well as the pastor of Smiley’s church. Mom was up first and she wept softly as she testified about the character of her son. “He has always been the one who stood up for the little kids in the neighborhood,” She testified, “there is no way my son could have done this. He is one of the most peaceful people I know.” We were doubtful.

There was next a series of short testimonies from his ex-shipmates, all of whom liked Smiley and found this crime far beyond the behavior of which they believed him capable. They told us Smiley had earned his nickname because he was always happy and had a tendency to always look for the positive side of any person or event. As they were all his buddies, we found this testimony questionable.

Next up was his ex-boss, a plumber, who told us Nelson, Smiley’s real name, had been one of his best employees until he joined the Navy. “He was a quiet lad when I hired him but I soon found out he really worked hard for me when I needed it. I’m not sure I’ve ever met a gentler person with more character than Nelson. He was always steady and sure during stressful times when we were on a deadline and worked his tail off to make any repairs on time. I eventually had to lay him off for a few weeks and he mentioned he would soon be joining the Navy and since I didn’t want to hire a worker who would just have to be replaced in the near future I didn’t ask him back. But he was a hard and loyal worker. I’ve been hoping for an opening soon so I can hire him back.” The character of the witness seemed above reproach and we tended to believe he had found a good employee but didn’t really know “Nelson” as well as he thought. We also began to wonder about a person who could fool so many people into thinking he was a pacifist who preferred the quiet role of peacemaker and negotiator to that of an in-your-face advocate. Either most of his acquaintances were easy to fool or this Smiley was the wrong guy. We figured he might just be an amateur actor.

The pastor of Smiley church was up next. He said he had been one of the first people Smiley had visited upon arrival in his hometown on the Southside of Chicago. The minister testified that Smiley had been volunteering at the church most evenings and weekends and then he dropped the bomb…he had brought along his records of progress on the rebuilding of the Fellowship Hall, a meeting room attached to the church and where receptions, potlucks, neighborhood watch meeting and other neighborhood events were held. These records included volunteers and the time they spent so he could thank them at Sunday services. His records showed that Smiley had left the church only 1-hour before the murder. It was fairly easy for the defense to prove it was logistically impossible for Smiley to have even been in town.

The prosecution had no answer to this presentation and the case rested.

We retired to the jury room in early afternoon and had returned the next day…and the next...to argue the case with one unidentified juror that felt the defendant was guilty. We were going on our third day of deliberations and some members were getting very frustrated at the inability to move the one recalcitrant member. The foreman made his appeal again, “Please, whoever you are, please reveal yourself. We have no way of resolving this unless we know what concerns you about the case. You may have seen something that we missed. Help us.” He looked at each one of individually and said each of our names as his gaze rested upon the individual. We were aligned at the table with 5 jurors along each side with the last 2-mombers distributed one at each end. At this point we all suspected who the holdout was but were still uncertain. As the foreman’s eyes rested on the person at the opposite end of the table we all looked in that direction expectantly. The woman who sat in that seat was a fairly new citizen from a middle-eastern country and had said many times how pleased she was having the opportunity to participate in the justice system of her new country. She was, we suspected, the holdout. Her eyes remained on the table for a few seconds but when the foreman didn’t get a reaction he paused awaiting some sign he had been heard she quickly glanced up and back down. In the split-second she had looked up she saw every eye on her. She mumbled something quietly. We sat silent in pregnant anticipation.

She looked up, “It was me.” She said.

“What are your questions about this case?” The foreman took the lead. “What are your reservations?”

“What if he’s guilty?” She said. “What if he did it? What if he murdered that poor man?”

“But we’re all confident he is not guilty of the crime. What convinces you he might be guilty?”

“In this country the police don’t just arrest somebody because they disagree with a powerful person or because they said the wrong thing to the wrong person. In this country the police only arrest criminals. Why did the police arrest this man if he did not commit the crime? The police here are very good.”

“But they’re not perfect.” The gentleman to my right said. “They make mistakes all the time. Mostly any screw-up is legitimate but sometimes they have an agenda as well. Our police may be better than the ones you’re used to but they are far from perfect.”

“But what if he’s guilty?” She repeated.

The foreman replied, “But no one here, except you, thinks he is guilty!”

“But what if he is?” The room burst into a cacophony of protesting voices.

“Wait,” I said, “You can’t ask that question.” The room quieted.

“What do you mean?” the holdout asked.

“I mean, this is America and in America we can’t ask that question. Here the only question we can ask is “What if he innocent?” In this country the burden of proof is on the prosecution. They have to prove the guilt of the accused beyond any reasonable doubt. In this country if he is not absolutely proven to be guilty it is incumbent upon us to declare him Not Guilty.”

“But what if he’s guilty?”

“You can not ask that question. You must ask ‘but what if he innocent?’”

“Alright. I’m very nervous about this but if this is true then I must change my vote…I vote not guilty.”

“I should also explain just to assure clarity that we have not voted him innocent." I continued, "We have voted him not guilty. These are two different things.” She nodded her head absent-mindedly and smiled. We informed the officer outside our door that we had reached a decision.

2-hours later we were on our way home.