by Michael Z. Newman — University of Wisconsin - Milwaukee
January 13, 2012 – 22:31
I was a juror in a criminal case earlier this week. I went for jury duty with the idea of comparing the experience with representations of court proceedings in narrative media. I wasn’t exactly hoping to be selected for a jury, but I also wasn’t trying to avoid it. What follows are just my observations, and I hope I don’t seem to be making them out to be more noteworthy than they are. My experience as a juror was probably pretty typical. The case wasn’t dramatic, and the outcome wasn’t surprising. I didn’t learn a lot, or make friends, or find my life changed. But I’m sure I will find the experience to have been quite memorable.
There is a widespread notion that one should avoid being on a jury. The whole experience is supposed to be unpleasant, and you’re supposed to prefer being rejected to being selected. But assuming the trial is short, I would now rather serve on a jury than sit around for two days waiting. Being a juror certainly isn’t fun and it isn’t really that interesting either, but sitting around waiting for two days is Kafkaesque tedium.
The biggest difference for me between representations of court cases in fictional (or for that matter non-fictional) narrative and my own experience is that storytellers work hard to make narratives interesting. It’s no one’s job to make a real court case interesting. For instance, on The Good Wife, there are many secondary characters whose eccentric traits are played for comedy, like Ana Gasteyer’s Justice Lessner who insists that lawyers preface every statement with “In my opinion…” It’s no surprise that real courtrooms are unlikely to contain such types. More importantly, the conflict and drama of a well-made story are constructed to engage an audience. There are high stakes and narrative twists and turns — reversals, complications, enigmas, surprises. I didn’t encounter any of this, but I did witness some banal, everyday suffering that engaged me emotionally.
The first day of jury duty begins at the entrance to the courthouse, an imposing 80 year-old Neo-Classical Revival edifice of limestone and marble, where you pass through metal detectors and find your way to room 106, jury management. They check you in and you find a seat. At the Milwaukee County Courthouse there are several rooms for jurors. I initially sat in the first one I saw, an auditorium with seating for about 100, with plush theater seats and flat-panel TVs hanging from ceiling mounts. I found a spot near an outlet, plugged in my MacBook, connected to the free courthouse wifi, and went about my usual business. After a few minutes an orientation video began and I paid half my attention to it.
In the introductory segment, we were warned that the representations of a trial in movies and TV are not very accurate. This is a big theme in the legal discourses addressed at jurors: don’t expect this to be like a courtroom drama. But nothing in the orientation video contradicted my sense of how things work in the courtroom, which is almost entirely learned from fictions. The video explains things like voir dire, objections, opening and closing statements, counsel approaching the bench, etc. It’s a perfectly adequate instructional program but anyone who has seen movies like Anatomy of a Murder or watched Law & Order now and then would know all of this already.
Soon afterwards the lights dimmed and a movie began. I picked up my things and went to find the other rooms, realizing that the people who planned to read or work were camped in a different space. This is where I spent most of the morning, at a table near an outlet, drinking coffee from a machine. The morning wasn’t very different from one I might spend in a coffee shop except that I was surrounded by bored, silent strangers in an institutional space with harsh fluorescent lighting, anticipating an unknown future. Many people had books, newspapers, magazines, kindles, or smartphones to pass the time, and some had earbuds or headphones. Some appeared to be attempting to sleep. Very few had laptops like me — maybe three others out of well over a hundred people. Everyone appeared to be bored and wishing to be elsewhere, but the silence bothered me more than the resentment of having to serve. It felt like a rather lonely crowd.
Around 11 a.m. a voice on the PA began to call names and numbers. If you don’t hear your name, you just go right on doing what you were doing, being bored and resentful. When your name is called (“Michael Newman, 12”) you gather your things and line up in a hallway standing on a number painted on the floor. Mine was called just before noon. We lined up and a man instructed us to go for lunch and be back at 1:00 for assignment to a courtroom. A lot of jury duty is just being herded around, here and there and back here.
I got a sandwich from the courthouse cafeteria and sat alone reading. I gave up my table when I went to buy a cup of coffee rather than leave my things unattended. Now the dining area was more crowded and I asked a man in a suit if I could sit with him. Noticing my juror badge he warned me that he couldn’t talk if I was on the case he is trying. I told him I hadn’t been in a courtroom yet and I asked what kind of cases he tries. He can’t talk about that.
Two minutes hadn’t passed before he began telling me about the kinds of cases he tries. He’s a criminal defense lawyer and the courthouse is by his telling a place where the problems of sad, poor people get worse. He told me about men landing in jail because of traffic tickets leading to suspended and revoked licenses. He told me about domestic violence cases and drug cases. If you take away poverty, drugs, and mental illness, he told me, there’s not much left going on in the courts. And he agreed with me that all of these things are connected in fairly obvious ways. We also talked about jury selection, and he said that “smart” people and people who work in law enforcement are often bounced from juries. Lawyers would prefer not to have a professor on their jury. (He did once have a sheriff’s deputy on his jury — which he now thinks was a bad idea.) I told him about the orientation video and we talked a bit about how the law is represented in TV and movies. He said jurors should be made to watch 12 Angry Men.
After lunch we were taken up to the fifth floor and led into a narrow corridor called a bullpen. There were 25 of us lined up. We were told to turn off our phones and men were made to remove hats. A sheriff’s deputy gave us instructions about where to go in the courtroom and after a voice boomed out “all rise for the jury,” we were led inside. The courtroom was a stately space with a soaring ceiling, high windows facing a courtyard, and wood panelling with classical embellishments of pilasters, pediments, and numerous carvings of eagles.
We were seated in the jury box and adjacent wooden seats and voir dire began with the judge’s introduction and the first of many words of thanks for our service. The back-and-forth between judge and jury, and subsequent portions of the trial when she gave us instructions and told us where and when to go and come, were the one part of the trial that I found unfamiliar. These moments are seldom represented in legal narratives; there is nothing dramatic or intriguing about them.
We were asked a series of questions to be answered with a raised hand, and possibly with follow-ups from the judge. Does any of us know the lawyers, the defendant and his wife, or the judge? The first identification was made by the judge herself: one of the jurors was formerly a colleague of hers at a law firm. Did he think he could still fairly serve? Yes. No one else had any knowledge of the parties involved in the trial. The case was to be one of alleged domestic violence: does any of us think he or she could not be a fair juror in such a case? Has any of us worked for a law firm, or in law enforcement? The case will probably take more than one day, but probably not more than that. If it had to go to a third day, was there anyone who would be unable to make it to court? After this series of questions we were asked one by one to stand up and state our marital status, whether we have children and their ages, where and how long we have lived in the county, our employment and our spouse’s, and two hobbies. At this point I was pretty sure that five jurors out of the 25 would be struck: the lawyer who was acquainted with the judge, another who had been a criminal defense lawyer until a suspension from practicing, a man who said his own ongoing divorce would make it difficult for him to participate, and two jurors who had medical reasons why they would be unable to come to court on the third day. I thought they would probably excuse me too.
The prosecutor then asked us some questions. He was clearly trying to begin his prosecution during this stage by making a strong impression and telling his story first. I don’t remember all of his questions, but two that stand out were about juror expectations of evidence. He asked if anyone watches shows like CSI, and one juror raised his hand and was asked this follow up: does he expect the kind of evidence presented in a real-life courtroom to be as detailed and scientific as what you see on TV? No, of course not. The other question was about how you can tell if someone is lying. He asked if anyone has children, and many raised hands. He asked if anyone can tell when their children are lying, and many hands remained up. He called on one juror, the suspended criminal defender, to explain how he can tell when someone is lying. These two lines of questioning were clearly an effort to prepare us for receiving the evidence to be presented during testimony in a way that would advantage his case. No objection was raised.
When it was the defense attorney’s turn, he passed on asking jurors any questions, which I found surprising. I expected the lawyers to be using voir dire to maximize their chances of getting a sympathetic jury. But neither appeared to be concerned with including and excluding jurors who might help or hurt them. The prosecutor was using voir dire as extra time for his opening argument. The defender seemed uninterested in the process. Maybe he was naive or incompetent (I was constantly looking for signs of his incompetence), maybe he was trying to hurry through the case, or maybe he was confident that any jury would acquit his client. This is what the experience was often like for me: trying to read other people’s motives by filling in the limited array of cues presented, and being frustrated by being given much too little to go on. Narrative representations of trials can be ambiguous, but they generally will pay off your attention to human behavior in the end because they organize their information to solicit a particular response. But very few of my questions about these people and their inner lives will ever be answered.
The lawyers followed the judge into her chambers and we sat in silence and did nothing, as we often did as a jury. After a few minutes I began to read a magazine. When they returned the judge asked the people whose names she called to stand. This was an awful lot like a results night on American Idol, with one group of contestants to Ryan’s left and the other to his right. When she was done calling names, half of the jurors were sitting, half were standing. Which half would be the jury? (At this point Idol would have cut to commercial.) I knew I was on the trial when I was standing and the man whose surgery was scheduled for Friday was sitting. But the lawyer who had been the judge’s colleague stood as well. This was as as surprising to him, he later told me, as it was to me.
The charge was disorderly conduct. The judge read the statute, which is awfully vague. You can be guilty of disorderly conduct if you act in a way that tends to cause a disturbance. But it is a violent crime, and we were to decide whether the defendant, an African-American man in his 40s dressed in a baggy striped sweater, had acted violently against his then wife, an African-American woman of similar age. We had been prepared during voir dire to hear testimony from four witnesses: the wife and the police officer who responded to her emergency call for the prosecution, and the defendant and his aunt for the defense. The opening statements were brief. The prosecutor told the alleged victim’s story. The defender said very little, mainly that there were two sides to every story. He used a simile that I found unpersuasive and a little odd, which he would use again in his closing: the two sides of a story are like two sides of a coin. But there is that thin third side, and that thin side is credibility. We would need to judge which story was true based on who we thought was credible. He said nothing specific about the defendant or his alleged victim. I wondered about his competence.
On the first day of the trial we heard testimony of the alleged victim, of the police officer, and of the defendant. The alleged victim, the wife, was asked to narrate the events of the day in question, when an altercation between the husband and herself in their home had led to his injury and to her calling 911 to report his abuse. She was not claiming, however, to have been significantly injured during the incident. He had left, to be taken to the hospital seeking care for a wound inflicted by the wife, and was absent when the police arrived.
The police officer who took the call testified, which revealed some inconsistencies between the wife’s story and the police report he wrote the night in question. The incident had taken place a year ago, and all of the parties involved remembered the incident in partial, sometimes inconsistent fragments. The cop seemed unable to remember very much without consulting his report. Accounts varied widely in terms of the time the incident occurred, and how long it took.
The husband testified, contradicting many details of the wife’s story, but the day ended before his testimony was complete. We were instructed to return at 9:45 the following morning to resume hearing it.
I went home thinking that the case for convicting the defendant seemed weak, and wondering why the case had been brought to court at all. But more than that I felt sad, really sad. The parties were poor, desperate people. Their marriage had failed — they were divorcing, and are now divorced — but they continued to live under the same roof. The husband had been jobless for a year and a half and had nowhere to go. The wife continued to hold a job, but it could not be very well paying. Their house was in foreclosure and both would be moving out soon enough. I wondered if people who are not suffering a life of poverty are ever brought up on domestic disorderly conduct charges. I didn’t doubt that the two had fought on the day in question, and that they probably were quite nasty to each other. She argued that the cut on her husband’s head, for which he took several stitches, had been inflicted in self-defense. I didn’t doubt that the husband had been nasty to the wife. But I also didn’t think he should be convicted of a violent crime without the presentation of more compelling evidence than we had seen. I had reasonable doubt.
I took my responsibility seriously, feeling like a man’s future was in my hands. It was hard not to be able to talk about it. At dinner that night with friends I talked about being a juror on a trial but I didn’t say a word about what kind of case it was. In the morning when I stirred prematurely, a little after 5 a.m., I immediately started to think about the case and couldn’t fall back asleep. Some things I kept wondering were, why was this case being tried? What will the consequences of a conviction be for these people? Why is the DA’s office pursuing disorderly conduct charges in such instances? What’s the context? What social forces have caused this situation? What do the other jurors think?
I found it frustrating that my usual ways of thinking and understanding were unavailable to me in this experience. To find out about this situation, I would have liked to be able to do research, but jurors can only consider the evidence presented at trial. However, our background knowledge enters into our considerations in myriad ways. For instance, our assumptions about race, gender, and class can be significant factors in our judgement, no matter how much we think we can avoid “prejudice.” We know a fair bit about how the law works in our society, and mostly as a product of exposure to various forms of media. My interest in assessing the competence of the defense attorney was a product of knowledge of the justice system: poor defendants cannot afford to pay lawyers, so they are represented by public defenders who might have fewer resources, less experience or expertise than the lawyers hired by those with money. I don’t know anything about the attorney defending this case that you can’t tell from looking at him (he’s a middle-aged African-American man in a grey suit and tie), but I wondered if he was a good lawyer. The prosecutor, younger and white, seemed like he could be a bit of a bully, as might often be the case in lawyer shows, but it’s his job to try to convict criminals. Did he have a choice about whether to try this case, or had his boss assigned it to him? Did he think it was a case worth trying? Did he feel any compassion for the man he was trying to convict? Was the judge thinking that one side or the other had an advantage?
I wasn’t allowed to take notes during the trial, I wasn’t allowed to talk about the trial during the trial, and I wasn’t allowed to look up anything about the situation. In my scholarly work I do research by collecting evidence, making arguments, drawing conclusions, putting things in context. None of the usual ways of doing these things were allowed in this case. I found this frustrating and stressful, given that the ultimate outcome of my judgment was to affect people’s lives in potentially quite serious and long-lasting ways.
On the second day I returned to the courthouse and entered the jury room through the bullpen. Courthouse architecture separates jurors from other participants in a case by moving jurors in and out of a door to the rear. The front door by the section of seating for observers (a section separated from the rest of the room by ten-foot-high glass, like the cashier booth in a ghetto fast food joint) is never used by a juror. At the end of the bullpen corridor is a small room where a sheriff’s deputy sits at a desk. On the wall is a charging station for tasers and hooks for manacles to restrain prisoners. This room is where criminal defendants being held in custody pass through on their way from the county jail to the courtroom. Another door leads to a stairway upstairs to the room where juries deliberate. In contrast to the august courtroom, the corridors and backrooms are dilapidated. Paint is peeling from the walls in the stairwell. The worn jury room table looks like something you’d find for sale in an cluttered antique mall for $100. A west-facing window opens high over the city from behind the stone foliage of a Corinthian capital on the exterior, but nothing on the interior is the least bit distinguished. A buzzer on the wall is labeled ring once for a question and twice for a verdict. We waited here for the trial to resume, the sooner to be given an opportunity to buzz twice.
The defendant took the stand for the completion of his testimony, and his aunt testified next, corroborating his story of what happened after he left the house on the night in question. The judge then gave us instructions for deliberation and sent us upstairs on a break. We sat around this room making chitchat, texting and playing Angry Birds, forbidden from discussing the case. The main topics of conversation among jurors were weather and parking. The courthouse is downtown and parking all day is expensive and not subsidized. I rode my bike the first day and took the bus the second.
Closing arguments took ten minutes each. The prosecution again warned us not to expect CSI forensics and to decide based on the facts we had been given. The defense again likened the sides in the case to the sides of a coin and urged us to assess credibility. We took 45 minutes for lunch and then the twelve jurors returned to deliberate. (An alternate had been dismissed before lunch.) The bailiff collected our phones on a cafeteria tray to ensure that no juror would have contact with any person outside the jury room. Everyone on the jury had a phone, and I didn’t inspect them closely but almost all appeared to be “smarter” than mine. The lawyer who knows the judge was made foreperson, taking possession of the two forms issued by the judge to be submitted as a verdict, one for guilty, one for not guilty.
The jury was polled by show of hands. One or two jurors weren’t sure, two were prepared to convict, and the rest voted not guilty. The jury was fairly evenly split by gender. Three jurors were black, two might have been Latino (I don’t remember their names and can’t tell just by looking). The youngest was 18 or 19, the oldest around 60. The two who voted guilty were a young black woman and an older white woman. Most of the time of our deliberation was spent in back and forth between these two guilty voters and others expressing doubt. It seemed that the pair in favor of convicting believed the wife’s story rather than the husband’s, and were not concerned as the rest of us were by the inconsistencies and implausibilities of the various accounts. Neither one of the guilty voters spoke very articulately about the case, or made any serious effort to persuade the rest of us and see the error of our judgement. The younger of the two was unaware that juries must come to a unanimous verdict, and was expecting the majority to rule. In this regard at least, she would have been well served by watching more movies and TV shows with legal settings. She also remembered an important detail of the police officer’s testimony wrongly in a way that disadvantaged the defendant, but was not about to change her vote after being corrected. She maintained that the defendant should be found guilty.
After less than half an hour the bailiff appeared to check on us as he said he would periodically. As instructed, we went silent at his knock on the door. He was in a chatty mood and started to share details of his personal life. He just hit the big five oh and has three young kids. He hates working out on the treadmill but likes to play basketball. (This was apropos of being a bit winded by climbing the stairs to the jury room.) But on Thursdays, the guys at the courthouse gym sometimes don’t show up for the basketball game…
As soon as he left the room, the foreperson asked for another poll of the jury. All twelve hands rose immediately for not guilty. Perhaps being deprived of phones hastened the process. Could be, but no one wanted to be there in the first place, and no one seemed willing to endure a long deliberation. In effect, the majority did rule. In the courtroom the judge read our verdict aloud, asked us one by one if this was our decision, and dismissed the jury (“all rise for the jury”), thanking us again for our service. For the first time, the defendant looked in my direction. I saw no expression worth noting on the face of the prosecutor, or of the defendant’s ex-wife sitting on the other side of the high glass. I didn’t notice the defense attorney’s expression but I wondered if he was at all surprised to win the case as I reevaluated my sense of his competence. We were led out through the bullpen and a few of us said polite goodbyes as we scattered at once through the corridor to elevators, bathrooms, and stairwells. Downstairs I passed by the young woman juror, the one who would have convicted the defendant and who didn’t know verdicts must be unanimous. She was standing inside the courthouse door clutching her phone. Snow was falling and there was still enough time to go somewhere and do something on a Thursday afternoon. I said “see ya” and gave her a friendly wave as I walked out to catch my bus.