Monthly Archives: September 2006

A Slightly Larger Step

When Neil Armstrong stepped onto the surface of the moon in 1969, everyone heard him say,

“That’s one small step for man, one giant leap for mankind.”

But that doesn’t really make much sense, does it? “Man” and “mankind” mean the same thing in this context, so he’s saying that mankind took a small step and a giant leap at the same time.

That’s not very profound, is it? It would have been much better if he’d thrown the indefinite article “a” in there right before “man” to contrast the easy step of a single human with a vast leap forward for all humankind. Like this:

“That’s one small step for a man, one giant leap for mankind.”

Well, for three and a half decades now, that’s what Neil Armstrong has been claiming he did say. So now some accounts of the event have the “a”, and some of them don’t. A few of them try to hedge:

“That’s one small step for [a] man, one giant leap for mankind.”

Lately, even Armstrong himself is beginning to believe he didn’t say it.


An Australian computer programmer says he found the missing “a” from Armstrong’s famous first words from the moon in 1969, when the world heard the phrase, “That’s one small step for man, one giant leap for mankind.”

Ford said he downloaded the audio recording of Armstrong’s words from a NASA Web site and analyzed the statement with software that allows disabled people to communicate through computers using their nerve impulses.

In a graphical representation of the famous phrase, Ford said he found evidence that the missing “a” was spoken and transmitted to NASA.

“I have reviewed the data and Peter Ford’s analysis of it, and I find the technology interesting and useful,” Armstrong said in a statement. “I also find his conclusion persuasive. Persuasive is the appropriate word.”

in Science

Malkin Madness

Michelle Malkin
5777 W. Century Blvd.
Suite 700
Los Angeles, CA 90045

Dear Ms. Malkin,

I don’t really know who you are, but it’s all over the blogosphere that you are apparently upset about this picture of you in a bikini:

Actually, I see you’re claiming that isn’t a picture of you. You’re saying it’s a fake. I believe it. After all, why would you lie about something like that? It’s not like it’s pornographic or even nude. It’s just a bathing suit.

Yet your reaction was…interesting…

The idiots are so blinded by hate they can’t see a two-bit Photoshop from some hater’s bogus Flickr site? And they couldn’t bother to ask me before attempting to embarrass me and calling me a slut?

You embarrass yourselves.

Rather than demand that they take their lying lies down, I am asking that they leave their smears up for all the world to see.


I am also filing a complaint with UNC School of Law Professor Muller’s employer. Here’s the dean’s contact information. This has gone too far.

Wow. Um, Michelle…as LeShawn Barber says:

By the way, even if the photo were genuine, posing in a bikini is not the same thing as being a skank.

Which is sort of a good point.

Yet here you are, acting like it’s a terrible thing they’re accusing you of. Wearing a bikini. I mean, I can tell there’s some history there between you folks, but how is a fake picture of you in a bikini a sign of hate? In this later posting, you even talk about suing.

I think your sarcasm detector is a little out of spec.

On the other hand, you seem to be drumming up a lot of traffic for your attackers, and all of it over accusations of a slight character imperfection on your part. In that spirit, I’d like to draw your attention to this exclusive copy of an Olive Garden restaurant receipt proving that on the evening in question you left the waitress a measly 6% tip:

Note that the waitress in question has signed and authenticated this copy for for me, which is proof positive that it’s real.

I am eagerly awaiting all the page hits I’ll get when you respond.


Mark Draughn

[Update added July 2009: I can’t believe I have to make this explicit, but I guess enough time has passed that the context has been lost and people no longer remember how silly this was, so let me make this plain. The photo is fake. We know this because people have found the original image that had a different head. The receipt is even more fake. I know this because I created it in Photoshop to poke fun at the whole issue.]

Jury Duty: Reflections

[This is the fourth and final part a series about my jury service. Previous parts were Jury Duty, Day 1: Vwar Deer, Jury Duty, Day 2: Testimony, and Jury Duty, Day 3: Verdict.]

[Note: In all accounts of this trial, I’m using fake names for the people and locations.]

Quick story I can’t believe I forgot to mention on the first day:

Right at the beginning, as the judge was explaining the basics of jury duty to our pool of prospective jurors, a cell phone rang out. The judge stopped talking, and I thought someone was going to get yelled at.

Then he said “That’s my cell phone.” He pulled it out and glanced at it. “It’s my wife.” I could see him think about it for about a second, but then he turned it off and put it away.

In this last posting, I’m just going to bloviate about stuff that didn’t fit into any of the earlier parts of my jury duty saga. I don’t know how many of you have been reading this stuff, but I promise I’ll get back to regular blogging after this.

One reader I am aware of is Virginia prosecutor Tom McKenna over at Seeking Justice, who had this to say:

Not the case of the century, but Windy’s recitation of the way the evidence came out, the demeanor of the lawyers and the defendant, and especially the deliberations of the jury, make for interesting reading, especially for trial dogs who often wonder how we’re perceived by juries.

That’s what I was hoping for. I read a bunch of legal blogs (or blawgs), and I know some of the criminal lawyers are very interested in hearing about the jury’s view of the trial. I wanted to capture as much of it as I could remember and write down. It’s nice to hear that at least one of them got something out of it.

McKenna also says,

The good news is, if Windy’s jury is representative of juries in general, they actually pay attention to the evidence and deliberate on it pretty thoroughly.

Oh, I’m sure we had our moments of stupidity, which my selective memory has left out. Also, in organizing this narrative, I’ve necessarily edited things into a sensible story, which may make us look smarter than we were.

Still, I think we did all right. Nothing obviously outrageous happened. No racist epithets. No outrageous claims about cops framing minorities for no reason. On the other hand, we didn’t blindly assume the police were telling the truth. Instead, we explored their testimony, and we found it sound. The jurors who changed their mind did so not because of pressure to hurry up, but because we listened to their arguments and made ours. I think we honestly debated the things we’d heard in court.

(Things weren’t quite as smooth in the personal injury trial I served on a few years ago. We found for the defendant, but our reasons were pretty diverse. I felt the plaintiff hadn’t proven the car accident was the cause of his back pain, but some of the jurors actually didn’t think the defendant was responsible for the accident, even though he offered no explanation for rear-ending the plaintiff’s car, which was stopped at a red light.)

McKenna goes on:

The bad news is, as I have found out, sometimes they can get hung up on really trivial details. For example, in Windy’s case, the tickets the officer wrote the defendant were introduced into evidence for some reason. This lead the jury to wonder if the officer was telling the truth about the incident, since he testified he was attacked before he could write the tickets.

Now what surely happened was that the tickets were written ultimately after the defendant was subdued. This would seem so apparent that the prosecutor never bothered to actually ask the officer about it. Fortunately, Windy and his fellow jurors figured that the tickets were probably written after the incident was over. But that they spent time on such a matter underscores an important lesson for a prosecutor (or any litigator, for that matter): you may know what happened to the last detail, but the jury doesn’t; you may understand what the typical process would be in a certain situation, but the jury may not: therefore assume nothing and establish everything down to the last detail! You never know what seemingly trivial fact the jury will seize upon and perhaps decide the case upon.

I like to think I know a little bit about law enforcement and the justice system, but I know nothing compared to the professionals. A lot of my information comes from obviously faulty sources like television shows and crime novels. Even the more reliable sources, such as non-fiction books about cops and lawyers, take a simplified approach to the subject.

Also, nearly all popular trial writing is about murder trials, which usually involve a lot more evidence and a lot more expensive investigation. Nobody was going to be showing computer simulations of a headbutt at this trial.

My personal experience is pretty limited too. I am neither a frequent criminal nor a frequent victim of crime. I know how cops usually behave when they curb you in a traffic stop, but I have only a vague idea what they do if you start making trouble…because I don’t do that.

Consequently, there are areas where I have holes in my knowledge of matters that could be important in a criminal trial. Some of these holes are easy to see, but I’m sure there are things I don’t know that I don’t know. That’s an easy way to make mistakes.

One of the things that bothered me about this case right from the opening statements is that somebody was lying. There was no way for this to be a case of differing interpretations of the same event.

I expect people to see what they want to see, make mistakes, and shade the truth for their benefit, but I’m always a bit surprised to discover that someone has blatantly lied to my face. I’m naive that way.

On the second day, when I walked out of court after Tuesday’s testimony, I tended to believed Jose’s story. So did a lot of the other jurors. He struck us as a pretty good witness who seemed credible. Maybe not completely, but enough to find reasonable doubt about who to believe…and all ties go to the defendant, don’t they? I was actually looking forward to giving this worried young man some good news the next day.

It didn’t happen that way. Maybe his story sounded good because it was the last one I heard. As I thought about it that night and the next morning, however, I began to have doubts. I kept finding problems. When we gathered the next day for deliberations, the other jurors pointed out more problems that I hadn’t seen. This pretty much sunk his testimony.

When I signed my name on the verdict form, and again when the clerk called us by name as she polled the jury, I was a little nervous. It’s a hell of a thing to call someone a liar and a criminal. But I figure if you’re going to do that, you’d better be willing to put your name to it.

The truth is, we kind of liked Jose. He didn’t seem like a bad guy, like a career criminal. He was just a hot-headed young man who did something stupid. We were pretty sure this was his first serious brush with the law.

This was not just a guess, but an inference from testimony. Officer Reyes ran the plates when he stopped the truck and then approached it with no heightened expectation of trouble. Therefore, we concluded that he saw no indication of trouble in the defendant’s record.

After the verdict, the judge visited us in the jury room and told us we were one of the most lively juries he’d ever had. Then he told us a few things about the case.

As we surmised, Jose had a clean record. The judge told us he hadn’t taken him into custody because this just seemed to him like a young man who made a mistake. I told him we had that impression too.

(The judge also told us that when he worked in traffic court some of the defendants would start yelling and swearing when he ruled against them. Here in felony court, however, he’s sentenced murderers, and they’re usually pretty polite about it.)

He also told us there was a chance Jose would get probation, and none of us objected. (I remember thinking that Jose’s false accusations against Officer Reyes should have gotten him in some trouble, but maybe that’s not how the system works. The judge, a former prosecutor, never mentioned it.)

I mentioned to the judge that I couldn’t help but think that if the cop had been a little more experienced, he might have stopped the defendant without a fight, and none of this would have been necessary. The judge responded with a story of a cop who managed to intimidate a dangerous gang member into surrendering peacefully.

It’s kind of a strange situation. If Officer Reyes had simply smacked Jose down with his club, or cap-stunned him with pepper spray, or even Tasered him, Jose wouldn’t have known it, but he would have been much better off. Instead, Reyes ended up grabbing his wrists and struggling with him and getting injured in the process. I’m not blaming Reyes for this, but I think a more experienced cop could have stayed in control and made this work out better for everybody. No fight, no injury, no trial, no felony conviction.

As we walked out of court, we passed Jose and his lawyer sitting in the vestibule. I looked away. Then I thought about what would happen if he called me on it, if he said “Hey, you can’t even look me in the face.”

I realized that I could stop and turn to him and say, “Yes I can. What is it you want to know?” I was pretty sure that I could defend our decision.

I’m not saying I have no doubts. I do worry that maybe we convicted an innocent man. Maybe we are complicit in an act of police brutality. Maybe we fell for a frame-up by the police. I worry about a lot of things, and so I find myself going over our decision yet again. And I reach the same conclusion we reached in the jury room: The defendant lied and he’s guilty.

If there is an explanation that makes the defendent an innocent man, it would have to be convoluted and complex, and it would have to be something that didn’t make it into evidence or testimony, and something his lawyer didn’t even think to mention in his argument. I can imagine that there might be such an explanation, but I can’t imagine what it could be. So, I have doubts, but they’re not reasonable doubts.

(The world is perverse, and I can’t be sure with absolute certainty that tomorrow I won’t stumble across an article about the old cop trick of pulling the driver out the window, head-butting him, and calling for backup…but I don’t think that’s a reasonable doubt either.)

Convicting Jose has been on my mind a lot this past week. I don’t much enjoy sitting in judgement of people, and I get no sense of accomplishment from administering punishment.

(I suppose blogging is also sitting in judgement, but it’s not like anything I say here is really going to hurt anyone. Besides, I leave comments open, and they can give it right back to me.)

I can understand a victim’s desire to punish his tormentor, and I can also understand, I think, the prosecutor’s desire to punish those guilty of serious crimes. But when it comes to lesser crimes, I don’t feel it.

Don’t get me wrong. I absolutely agree that crimes should be punished, but it’s one of those areas where reason leads me somewhere my heart is reluctant to go. We need prosecutors, but I don’t really understand why they do what they do. I wouldn’t want that job.

(I feel the same way about dentists. What is it that makes some people decide to do that for the rest of their lives?)

Lawyers claim that juries get hung up on irrelevant facts. I suspect some of that is just griping by the losers, but I’m also sure there’s truth to it. Obviously, we explored some facts that were irrelevant, such as when the tickets were written or our musings about the defendant’s record.

I think that’s normal. We’re not legal or law enforcement professionals, so the only way to tell if we’re going down a blind alley is to follow it a while and see if it leads to something we can use.

For example, Officer Delgado’s employer, the town of Brixton, has at times been run by some very corrupt people. (Now you know why I’m not using its real name.) In the not-too-distant past it was filled with massage parlors and bars where girls turned tricks in the back rooms. It’s not a huge leap to assume that someone somewhere was taking mob money to ignore these things.

A few of us discussed this. Did the rules allow us to use this knowledge to reach our decision? And if so, would it matter in this case? The answers seemed to be maybe not and probably not, so we abandoned that and moved on. It took me longer to write about it here than it took us to discuss it. But still, we went there for a minute or two.

I’ve heard defense lawyers say that juries focus too much on whether the defense created reasonable doubt, and not enough on whether the prosecution met the burden of proof. I don’t think we made that mistake here. We had the direct testimony of the officer/victim, and we found it credible. I can’t believe that the burden of proof requires more than the testimony of a credible witness to every element of the crime.

Finally, based on my vast experience as a juror (one civil, one criminal), I’d like to offer some observations and suggestions. Some of these are unrealistic, but it would be a shame to deny you my wisdom over such a trivial objection.

First of all, none of this would have been necessary if the police department had installed video cameras in their cars.

Second, from what I’ve seen, there’s no point trying to guess what a jury is thinking from the questions they send out. Just because we ask about something doesn’t mean we’re going to give it a lot of weight. Even if only a couple jurors have a question, the foreman will probably send it out, but you can’t tell how many jurors really care about the answer.

In this case, our only question was about a police report the defense lawyer used to cross examine Officer Reyes. He asked why, if Jose was verbally abusive, Reyes never mentioned it in the report. Reyes explained that another officer wrote the report while he was at the hospital, and he just signed it.

We didn’t have this report and we wanted to know if we could see it. By the time the answer came back—we couldn’t see the report because it was never introduced into evidence—we no longer cared.

Third, I wish the instructions about the elements of the crime had come before the testimony. It would have given us a better framework to organize our understanding of the case. I guess that’s what opening arguments are for.

Fourth, along the same lines, I think trials would be easier to follow if the lawyers could talk to the jury more often. Perhaps after each person testifies, the lawyers could summarize what they thought the testimony established, and what they thought was important. I suppose this would have to be adversarial, with both sides saying something. This would risk corrupting the jury’s memory of the testimony, but I think it would be easier to judge the accuracy of each lawyer’s claims if we had recent testimony to compare it to, rather than waiting until the end of the trial.

Fifth, I think we-the-jury would have had a much harder time keeping track of a bigger case, although I suppose the lawyers would know this and would walk us through it more carefully.

Last but not least: Folks, if you get pulled over by a cop, try to remember that no matter why you think he did it, it’s only a ticket.

Update: I have posted a followup to this piece.

Jury Duty, Day 3: Verdict

[This is part 3 of a series about my jury service. Part 1 was Jury Duty, Day 1: Vwar Deer and Part 2 was Jury Duty, Day 2: Testimony.]

[Note: In all accounts of this trial, I’m using fake names for the people and locations.]

I get to the courthouse at 8:45 and head down to the cafeteria to score a couple of Diet Pepsi’s from the vending machines, but one of the other jurors intercepts me and tells me the defendant is in there, so I divert to the Jury Assembly room instead, explain the situation to the guard, and use the vending machines there. When I get back upstairs, they still haven’t let the jury into the courtroom.

Eventually, they let us in, we have breakfast, and they trot us out to listen to closing arguments.

The male prosecutor gave a perfunctory two-minute close. He did try to address something the defense had implied the day before, but he goofed on the details. He claimed that even if it wasn’t how he was trained, it was a reasonable and natural reaction for Officer Reyes to close his eyes and turn his head in anticipation of the headbutt. The problem is, Reyes never testified he turned his head. Reyes said he ducked his head, which makes more sense because you’re better off taking a blow on the hard bone of the skull than on the side of your face and because ducking explains the injury at the front of his hairline. If we hadn’t remembered the actual testimony, the prosecutor would have hurt his case.

Skippy the defense lawyer is next, and his close is a lot longer. He emphasizes that the cop is bigger than the defendant ( 6’3″ v.s. Jose’s 5’6″) and armed with a gun, so is it really plausible that the defendant would be crazy enough to attack him? He also implied that Officer Delgado was lying when he backed up Reyes’s story because of his statement that “all police officers are my friends.”

About half-way through, he told us that since this was his last chance to talk, he was going to try to anticipate and respond to some of the prosecution’s points. For some reason, the blond prosecutrix objected to that but was overruled by the judge.

Skippy concluded his argument with the same line he started it with: “The answer is as plain as the nose on Jose’s face,” referring to Jose’s injuries.

Finally, the young blond prosecutor got up to rebut the defense argument. This was clearly the prosecution’s real closing argument, because it was pretty long too. She responded to the suggestion that Officer Delgado was lying by pointing out that if he was going to make up a story, he could have made up a better one: He could have said he saw the headbutt as he pulled up.

She made other points too, but by now my memory of both sides’ arguments is a little fuzzy because we-the-jury have argued these points ourselves and reached our own conclusions. I do remember that while deriding the defendant’s credibility she referred to his truck as a “jalopy.” We all made fun of that during deliberations.

After closing arguments, we received instructions. The judge told us there are three things that must be proven to find someone guilty of Aggravated Battery, Police Officer in the state of Illinois:

  • The offender has to intentionally or knowingly harm the victim or contact him in an insulting or provoking nature. (That’s Battery)
  • The victim has to be a police officer. (And the offender has to know it.)
  • The officer has to be performing official duties. (So, getting in a bar fight with an off-duty cop doesn’t sink you.)

I remember that when Officer Reyes’s testimony wound down, the female prosecutor conferred briefly with her partner and then asked two more questions of the officer: Were you a police officer at the time of the incident? Were you empowered to make arrests?

It was obvious she was making sure something was on the record, and now we knew why. She wanted to avoid an embarrassing dismissal motion by the defense for not proving these elements.

(Not too long ago, there was a story about a prosecutor in a bank robbery case who forgot to ask any of the bank employees what sort of business they were in. He may have proven that the defendant committed robbery, but we’ll never know since the judge dismissed the case because there was no evidence in the record that a bank had been robbed.)

Finally, we retired to the jury room for deliberations.

By now, the weight of the situation was settling on me. The defendant’s parents had been there in the courtroom with us, but so was was Officer Reyes. My gut favors the underdog—and aren’t all defendants underdogs?—so I hated like hell the thought of having to send this poor kid to jail in front of his parents. On the other hand, I don’t want to let someone attack a cop and get away with it.

I know neither the parents nor the officer are supposed to affect my verdict, but their presence served to remind me that the next few hours were going to be very important.

The rest of this posting is the most difficult part for me to write. In discussing our deliberations, I’m worried that I’ll reveal my ignorance of the world of cops and criminals. I’m worried that I was taken in by some nonsense that criminal justice experts would have seen through. Even worse, I’m worried that I was taken in by nonsense that I should have seen through.

Even worse than that, what if we did something really wrong and screwed up the trial? Maybe we were out of control. Maybe we were stupid. More to the point, maybe I was stupid. I hate when that happens.

I think we did everything in a reasonably correct manner. But then again, doesn’t everyone?

Sigh. I can’t very well post thousands of words picking over everyone else’s performance and then not tell you about my part in this. I do ask, however, that people reading this remember that we were working with what we were given.

News reports always talk about the makeup of a jury, so I’ll throw that in: Six white men (including me), two black men, one Hispanic man, two white women, and a Hispanic woman. The alternates had been a white woman and a black woman. I can’t remember the race of the jurors ever making a difference during our deliberations, but perhaps the minority jurors would disagree.

The alternate jurors had also been the two most addicted smokers, so we didn’t have to take a smoking break during deliberations.

We picked the most talkative guy in the room as our foreman, and took an immediate vote just to see where we stood. I wanted to spend more time thinking about it and was still undecided, so I voted not-guilty, as did about half the jury.

Minutes later, we were at each other’s throats. I mean that literally. We were re-enacting the confrontations with each other.

I have to say, when I had been on a civil jury, a lot of the participants were pretty goofy. They didn’t take it very seriously, they had some wild things to say, and it took a while for those of us who cared to wrestle them around to follow the judge’s instructions. That didn’t happen this time.

We had a fast-moving, wide-ranging, and loud discussion of everything we heard. I can’t possibly reproduce it in order—because there wasn’t much order—but I think I can reconstruct our thinking on each of the major topics.

We all understood, and at some point explicitly agreed, that the alleged victim was a police officer and that he was performing his duties, and that the defendant admitted he knew these things. The main issue in dispute was going to be about the harm to the officer.

(Now I understood the elaborate questioning about Officer Reyes’s uniform and about events leading up to the stop: The uniform would have made it obvious to Jose that he was a cop, and the account of why Reyes stopped him established that this was a legitimate stop and therefore part of his official duties. Also, when Jose admitted he was driving without a front plate or side mirror—and that he knew it was illegal—he was admitting that he knew officer Reyes had a legitimate reason for the stop.)

Both sides had closed by telling us to use our common sense, and my common sense told me (and other jurors agreed) that Officer Reyes’s story made more emotional sense. His story was one of escalation: It started with the defendant’s harsh words and progressed through getting out of the car, approaching the officer, shoving, grappling, and then the headbutt and resulting injury. Jose’s story requires that the officer’s mood goes from polite (according to Jose himself) to violent in a matter of seconds because of a single impertinent question. It happens, but not too often.

The defense had asked why Jose would be stupid enough to attack a cop who was nine inches taller and armed with a gun. The first problem with that argument is that while the defendant may have been shorter, he weighed 240 pounds by his own testimony and was built like a tank.

The second problem is that, again, Reyes didn’t describe an immediate attack. He said the defendant came out swearing and walking, not running and swinging his fists. The defendant may have originally intended only to get in the cop’s face, but the situation escalated from there.

The third problem with that argument is that anybody big or small would be foolish to attack a cop, yet it happens all the time. People get wound up and do stupid things. Also, Jose claimed that when he accused Reyes of stopping him for being Mexican, Reyes responded “I’m Mexican too, Pendejo!” So Reyes verbally provoked Jose, according to Jose.

Another way of looking at the overall situation is that one of these people behaved in a way that made no sense, either attacking a cop or attacking a helpless driver. However, it’s only Jose who testified to something senseless: He was offended by the officer’s following him rather than pulling him over right away. None of us could understand this. Cops always do that. It doesn’t prove the case, but it shows Jose had something strange going on in his head.

On the other hand, a couple of us had a problem with the traffic tickets. Reyes testified that he had just turned away from the defendant’s car to head back to his own car to write the tickets when he heard the door open and the defendant came out. The fight started, Reyes was injured, he called for backup, Officer Delgado showed up and helped subdue the defendant, and then an ambulance came and took Reyes to the hospital.

So when did he write the tickets? We had them right there in the jury room with us, but his story didn’t explain where they came from. The defendant’s story did. Jose had testified that the cop attacked him after returning from sitting in the patrol car writing the tickets.

This was what had been bothering me about the cop’s testimony the night before, but in the overall picture, it didn’t seem like a huge flaw. We could imagine that Reyes wrote them during the wait for the ambulance, or that he did the paperwork later (as he did in the case of the police report), but it wasn’t covered in the testimony.

We re-enacted the headbutt as described by both the cop and the defendant. Each side had claimed that the wounds on both people were inconsistent with the other side’s story. After considering their testimony, we re-enacted several possible versions of the story with jurors of similar height differences. (The short Hispanic woman was scary fast when it came to the headbutts.)

It seemed that if Jose was pinned back over the fender of his car as he claimed, it would be hard for Reyes to lean far enough over to bring the crown of his head into contact with Jose’s nose. However, in general, the wounds were roughly consistent with either story, and the headbutt alone didn’t tell us much.

We also didn’t put as much weight on Jose’s nose injury as the defense wanted us to. Jose clearly lost the headbutt, but that could have happened no matter who started it.

We did, however, wonder why the cop would headbutt Jose at all. If Reyes wanted to tune him up a bit (in NYPD Blue speak) he could simply hit him with his nightstick, his flashlight, or even his gun. Or throw him down and beat him Rodney-King-style. Or nail him with pepper spray. Or maybe a Taser. Why on earth would he risk injury by headbutting him?

We also re-enacted the Jose’s description of how the cop got him out of the truck. He claimed Reyes reached in through the window and grabbed him on the collar with his left hand and pressed his fingers into his neck, and then, without letting go, pulled him out of the truck.

So how did Reyes open the door? Jose didn’t say he was pulled out through the window, and that sounds like the sort of thing you’d mention. Besides, Jose weighted 240 pounds. Reyes would have to be extremely strong to pull him out of the window, especially on a pickup truck where the windows are pretty high up.

Reyes could have popped the door latch before reaching in, but then why reach in through the window instead of opening the door all the way? And how did his arms clear the window frame as he dragged Jose around? Jose and his lawyer had re-enacted this part of the incident, with Jose playing the cop, and he didn’t deal with this issue.

It occurred to me that some vehicle doors don’t have a metal frame around the window. The glass just sticks up out of the body of the door and, when the door is closed, presses directly against the rubber seal of the door frame. In that case, Reyes could have popped the latch and then reached in over the body of the door to pull the defendant out. With the door unlatched, the cop could pull the defendant against it to open it, and he could pull Jose around the door without having to let go.

That idea fell apart when I remembered that the defense had provided a photo of the truck. We checked it, and we could clearly see the metal frame around the window. If Reyes reached in through that window, he would have had to let go of Jose to get him around the door, and Jose’s testimony and re-enactment had been quite clear that he never let go.

Ultimately, the issue of the door clinched it for a lot of people. Jose’s elaborate story was wrong on a detail he shouldn’t have missed if it really happened. We took a vote on the specific issue of whether the cop pulled Jose out or he got out himself, and all of us agreed that he must have stepped out of the truck himself.

That alone makes him a liar.

I tend to believe that everyone is lying a little bit, and you have to work around that. For example, both Reyes and Jose denied using harsh language, but I don’t believe either of them. This thing about being pulled out of the truck, however, was a lie that went right to the heart of the defense case.

Here’s another question we had: If Officer Reyes started the whole thing and was merrily kicking ass, why did he call for backup? Jose even claims Reyes managed to cuff him before the other officer arrived. So, again, why the distress call?

And yet another thing: Jose claimed to have bled a lot, yet we had three photos taken shortly after the incident (two from booking, one by his sister later), and none of them shows any blood on his light-gray shirt or anywhere else.

Jose claimed to have been wearing a sweatshirt that would have absorbed the blood. (He says the police lost it, they say they never saw it.) However, Jose was very descriptive about his bleeding, describing the way it flowed down his chin. He said his nose started bleeding when Reyes injured him and he kept bleeding throughout the ride to the police station and then in the ambulance until he got to the hospital, a time span of about half an hour.

If he bled for that long, wouldn’t the blood have soaked through the sweatshirt? And if blood was dripping down his chin, wouldn’t it have run down his neck and inside his sweatshirt to reach the collar of his t-shirt?

These problems with the defense theory of the case just kept building up. I suppose we might have been willing to ignore any one of them on the principle that the defendant gets the benefit of the doubt. But when we collected these problems one after another, improbability on improbability, we felt it was too much. The defendant’s story was a fabrication.

That left only the cop’s story.

Earlier in our deliberations, I had set off a discussion of whether Officer Reyes’s testimony, taken by itself and ignoring the defendant’s testimony, would prove the crime. My thinking was that if Reyes hadn’t testified to the elements of the crime, then we could end our deliberations right there without wasting time on the defendant’s story. But we decided that Reyes had indeed covered everything.

In addition, Reyes’s story made sense to us from beginning to end, and was not contradicted by any evidence or any testimony except the defendant’s, which we now disregarded as unreliable.

So, after two and a half hours of deliberation, we voted, and we all agreed Jose was guilty. We signed the guilty verdict form and the foreman notified the deputy. About 15 minutes later, they took us out into the courtroom. The full defense table was present, but the blond prosecutor was nowhere to be seen.

Once again, we were a bit giggly, this time with nervous tension, kind of like laughing in church. The judge asked us a question and then made a joke which we all laughed at. I can’t remember what it was, but I remember that even the defendant laughed. I felt really bad for him right then.

Then the judge went through the protocol and read the verdict.


The defendant and his parents became very still. I can’t remember what the defense lawyers did, but the male prosecutor never even looked up from his notes. The judge ordered us polled, and the clerk called out our names one by one and asked us if this was our verdict and we all answered “yes.”

Then he thanked us and sent us back to the jury room.

[Tomorrow, the last installment: Jury Duty: Reflections.]

in Legal

Jury Duty, Day 2: Testimony

[This is part 2 of a series about my jury service. Part 1 was Jury Duty, Day 1: Vwar Deer. My day job is beating on me right now, so I’m running a little behind in posting these.]

[Note: In all accounts of this trial, I’m using fake names for the people and locations.]

The schedule for today is:

8:45 – Breakfast

9:30 – Trial starts

I suspect that breakfast is simply a sneaky way make sure all the jurors will be in court on time. Tell us 8:45 and bribe us with breakfast, and maybe we’ll be there by 9:30.

They gave us parking permits yesterday, so this morning we drove past two deputies to park in an area set aside for us. I go through security again and arrive at the courtroom, only to find it locked. So I wait, along with most of the jury.

It’s a little odd. After all the trouble they go through to keep people from influencing us, they’ve left us out in the hall. People are showing up to wait for other courts to open. I see Skippy the defense lawyer walking down the hall toward us. He spots us a few seconds later and turns around to walk away. A few minutes later, one of the deputies lets us in.

As soon as I see breakfast, I’m disappointed. There’s no Diet Coke. Or anything else with caffeine, except coffee, which I don’t drink. Falling asleep in the jury box would be a bad thing, so I turn around to head to the cafeteria. One of the deputies intercepts me and tells me to go back in. I start to, but I also tell her that I just want to run down to get a soda. She lets me go.

Bond court is right outside the cafeteria, and there’s a bunch of ornery-looking people waiting outside. These must be all the people who got the “Can you come bail me out?” call last night.

When I get back to the jury room, there are 13 of us. The final juror strolls in just before the bell, and then we wait.

Eventually, they call us in, and the lawyers present their opening arguments.

It starts with the male prosecutor, who gets up and finally tells us all why we’re here. A cop pulled somebody over, there was an altercation, and the defendant headbutted the cop. (I looked up the aggravated battery statute after the trial was over, and it’s because the victim was a cop that the battery is aggravated. I was wrong when I guessed that injury had something to do with it.)

The big defense lawyer has a different story. He says the defendant accused the officer of stopping him because he was Mexican, at which point the officer dragged him out of the car and eventually headbutted him. When backup officers arrived, they put the cop in an ambulance to the hospital, but the defendant went to the police station first, even though he was bleeding and asked to go to the hospital.

I’m not sure why we-the-jury are supposed to care about the defendant’s medical treatment. It doesn’t affect his guilt, does it? Is it supposed to indicate that the cops were mean to him in general? Is it a sympathy ploy?

The state’s witnesses are questioned by the young lady prosecutor. The courtroom is laid out with the jury box and the witness stand to the judge’s right, which means the witness sits to the jury’s left. She stands far from the witness, at the right edge of the jury box, which I think is supposed to encourage the witness to speak up loud enough for the jury to hear.

It doesn’t entirely work. The first witness is officer Reyes from the Hybernia police department. He’s only been on the job for 15 months and seems uncomfortable on the stand. He sometimes speaks so quiet it’s difficult to hear him.

They start by discussing Reyes’s time on the force and his training. I note that he had four months on the job when the incident occurred. Then the prosecutor starts asking him how he was dressed, and he explains that he was wearing his uniform, as he is today, except that he had two additional pieces of equipment. She asks him where they would go on his uniform. He explains by pointing at his uniform. She tries to get him to describe the locations, since the court reporter can’t transcribe pointing. He doesn’t quite get it and keeps explaining by pointing.

At this point, Skippy objects, but before he can explain why, the judge stops him and explains that he should stand when he objects so the court reporter can notice him. Skippy then explains that he can’t see where Reyes is pointing because the judge’s bench is in the way. The judge has Reyes stand, and he finishes explaining his equipment.

At the time, I could only assume that his was a warm-up question—intended to relax the witness—that got a bit out of control. (It later turns out to be part of the checklist of elements of the crime.)

Anyway, they soon get into the meat of the testimony. According to Reyes, his vehicle was stopped out of traffic when he spotted a pickup truck with a missing front plate and no side mirrors. He followed it a bit while he ran the plates and then he pulled it over. It was, of course, Jose the defendant.

Officer Reyes approached and asked for license and registration, which the defendant gave him. As he was walking back to his car, the defendant got out of his truck and followed him. Reyes told him to get back in his car, and a physical confrontation began. At this point, the defense attorney again objects that he can’t see Reyes’s re-enactment of the incident. The prosecutor gets him out in front of the bench and directly in front of the jury.

Officer Reyes then explains how he put his hand out and firmly told him to get back in his truck, but the defendant kept advancing until he bumped up against the cop’s hand. He then took a swing at Reyes, who managed to stop the punch by grabbing the defendant’s wrist. The same thing happened with the other hand. Holding the defendant’s wrists, he pushed him forward and around the front of the truck, getting both of them out of traffic. At this point, his upper body is leaning forward, when he notices the defendant cock his head back. He ducks his head and closes his eyes, and the defendant butts the top of his forehead.

(Throughout some of this, I glanced at the defense table and noticed Skippy the defense lawyer was looking at his partner and making a “can you believe this nonsense?” face, presumably for our benefit.)

The cop then let go of one of the defendant’s wrists and called for backup. First on the scene was Officer Delgado from the neighboring suburb of Brixton. He helped Reyes get control of the defendent. Then he looked at Reyes and said “Dude, you’re bleeding.” (That sounds like hearsay to me, but the defense lawyer didn’t object, perhaps because Delgado was talking about Reyes, whose very next statement was that he touched his head and got blood on his fingers.)

Reyes was picked up by an ambulance and taken to the hospital. He had an injury requiring three stitches on the crown of his head. He never noticed any injuries to the defendant.

Throughout all this, the young lady prosecutor had gotten pretty excited a few times, and went through some of the questions kind of fast. Also, after a couple of the objections from the other side, she resumed questioning too soon and cut off the judge.

Now it was time for Skippy the defense lawyer to conduct his cross exam. He’s a young guy who looked awkward in an expensive-looking suit, and he had that “kid trying to act important” demeanor, like one of my doctor’s medical students trying to give me a stern lecture about why I should lose some weight. (I call them Skippy too.)

He didn’t accomplish much that I could see. He asked a few questions about an article of the defendant’s clothing. He also managed to point out that grabbing the defendant’s wrists that way wasn’t part of a cop’s takedown training. I think he wanted us to believe the cop was lying, but I figured Officer Reyes was just inexperienced. There was a re-direct and a re-cross, but nothing interesting came up that I could spot.

All in all, the cop’s story was a tale of a rookie cop who mishandled a confrontational person and got injured.

The next witness was officer Delgado from Brixton. He arrived after the headbutt, but what he says he saw backed up what Reyes said, including the lack of injury to the defendent. He agreed that he helped cuff the defendant. On cross, Skippy the defense lawyer asked if he was friends with Officer Reyes. Delgado said he was, and Skippy tried to make something of it. Delgado then said he considers all cops his friends. So Skippy tried to make something of that too.

Then the prosecution rested.

We had lunch, and the usual march out to the parking lot for the smokers. Ah, fresh air. Only slightly tinged with smoke.

I chatted a bit with one of the deputies. I was curious, because I had always thought the county police were addressed as “Deputy,” but I’d noticed that the court staff referred to them as sheriffs. He said that since the official title was “Deputy Sheriff,” either was correct. (I figure it always pays to know these things so I can be polite if I get stopped.)

As a group, we-the-jury are in rather good spirits, cracking jokes and giggling a lot. I feel a little bad for the defendant knowing that he can hear the giggling and laughing as we come out into court prepared to judge his fate, but that’s the way it is. The most important thing for all of us right now—and the one thing we have in common—is the one thing we can’t talk about. So we talk about silly stuff.

Now it was time for the defense to put on their case. The first witness was the defendant himself, Jose, questioned by Skippy’s larger and more imposing partner. Jose pretty much has to testify in order to get his version of events in front of us. In interrogations on NYPD Blue, the cops would always tell the suspect he should talk in order to get his version of the story out. I’m sure it’s often true, but this is the place to do it.

Jose is a little confused by the process of testifying, and I think he’s facing a language barrier, but he tells a pretty good story. The difference between his and Officer Reyes’ version of events begins after he gives the cop his license and insurance. He tells us the cop walks away and sits in his car a while.

Jose says he was upset because of the way the cop followed him for several blocks instead of pulling him over right away. He says he felt “judged”. I don’t understand what he means.

(I know that minorities are sometimes followed by cops when they’re in the “wrong” neighborhood, so that could be what he means. That may be how he felt, but I doubt that’s what happened. Hybernia is not the wrong suburb for Mexicans.)

When the cop came back to the side of the truck, Jose admits he asked if he was stopped because he’s Mexican. At that point the cop started swearing, reached in to the truck, and grabbed Jose’s jacket with his left hand. He also took his right hand and pressed his fingers hard into Jose’s neck.

To illustrate the confrontation, the defense lawyer brought Jose out in front of the bench and the jury, just like the cop. He had Jose go through the cop’s actions, while he played Jose’s part. It was a little like one of those weird Daily Show interviews where the interviewer talks the unwitting subject of the interview into some confusing roll-playing act.

The lawyer, however, handled it like a machine. After every little bit of action, he would stop and accurately call out something like “Let the record show that the witness has indicated that the officer used his left hand to grab the right lapel of the witness’s jacket and then the witness indicated that the officer placed the index and middle fingers of this right hand against the left side of the witness’s neck.” He never confused left and right or who was who.

Anyway, as the cop pulled at him, Jose unbuckled his seat-belt, and then the cop, still swearing wildly, pulled him out of the truck and threw him against the fender and pinned him there. The cop swung at him and grazed his face. He swung again, and Jose grabbed his hand. At that point, the cop headbutted him in the face. Jose essentially ceased struggling at this point. The cop cuffed him. Another cop showed up and helped put him in the car, telling him “Don’t fuck with the police.”

(The blond prosecutrix objected to this as hearsay, but was overruled, I guess because “Don’t fuck with the police” is a command, not a statement of fact subject to jury evaluation.)

Jose went on to say he was bleeding a lot from the nose, and during the trip to the police station and then the hospital, the blood got all over his sweatshirt. That sweatshirt, however, was taken when he returned to the police station, which explains why there’s no blood on his shirt in the police photos taken later.

Then it’s time for the cross, performed by the male prosecutor.

He starts out by spending a lot of time going over the period during which the officer Reyes was following Jose, and tries to trip him up on whether he was looking at the road or at the cop behind him, but it comes across as word games to me.

He also manages to trip Jose up on the time/speed/distance aspects of the story. That doesn’t mean much to me because most people are very bad at estimating stuff like that. Also, I felt that Jose’s testimony was was more accurate in this respect than Officer Reyes’s.

Finally, the prosecutor does get the defendant to admit he knew he was breaking the law by driving without a mirror or front license, but I so don’t care. We’ve all done something like that. (It will make more sense to me later.)

In both direct and cross examination, Jose has testified that he started bleeding after the headbutt and continued to bleed at the scene, in the police car, at the police station, in the ambulance, and at the hospital, during which time he received no help from the police. The paramedics on the ambulance wiped his face but otherwise did nothing to help him.

I had expected that the prosecutor would rip Jose to pieces (there’s a reason why it’s usually a bad idea for a defendant to testify) but he holds up very well and never moves off his story. He seems to have a little bit of a language problem, but what he says makes sense. His lawyers must believe it too, because they ask no questions on re-direct.

The judge had listed several doctors as witnesses, and I think the defense had told us we’d hear from them. I was looking forward to it, because the prosecutor really got into the issue of the defendant’s nosebleed. I was starting to understand why it was important.

The extent of Jose’s injuries has become a key point of difference between the stories, and one the doctors might be able to resolve. If a doctor remembers a lot of blood, or if a doctor looks at Jose’s medical records and says there would have been profuse bleeding, then that makes the cops into liars and conspirators, and that sounds like a hell of a lot of reasonable doubt.

This could be exciting.

But it isn’t. The defense rests without calling any more witnesses. The trial is over.

We’ll get closing arguments tomorrow and then the jury will begin deliberations.

I head home a little confused, but generally believing that the defendant seemed credible and well-spoken. His narrative is more unusual than the officer’s, but this whole case has been unusual, in the sense that most cases plea out rather than go to trial. I also think I see a small problem with the officer’s testimony.

[Tomorrow: Jury Duty, Day 3: Verdict.]

in Legal

Jury Duty, Day 1: Vwar Deer

I had jury duty last week. I started writing about it last Monday, but I had to stop when I got picked for a trial.

As my group of jurors passed through the courtroom’s outer vestibule, I noticed a couple of neatly-dressed but clearly upset Hispanic people. Something about a them said family. I’ve been involved on the periphery of several civil lawsuits, and while they were very stressful, they didn’t seem like the sort of thing that would frighten family members.

Once I got inside the main courtroom, I noticed that there were two or three sheriff’s deputies wandering around. My previous jury experience was a civil trial, and that only took one deputy, so here was another clue that this was going to be a criminal case.

As I moved to my seat, I looked over at the lawyer’s tables. At the far left was a young Hispanic male wearing a dress shirt but no tie. He’s young enough to be the son of the people outside. Seated next to him, a tall young man in a very business-like suit who had to be his lawyer. At the other table, a young blonde woman and a slightly older man also dressed in suits (or whatever you call a woman’s business clothing), but not quite as expensive looking. I suppose either of them could have been a party to a civil suit, but they seem too comfortable in court. They must be the prosecution team.

We sit down, and the judge introduces himself and the courtroom staff (stenographer, clerk, and two deputies). Then he surprises me by asking the defendant to introduce himself—let’s call him Jose—followed by the lawyers.

I should add that by this time two other defense lawyers have replaced the original one. He must have been there to provide minimal representation until this crew arrived, presumably from other business in the courthouse. They’re a big Hispanic-looking guy and a young baby lawyer I’ll be calling Skippy. They gave their names and their law firm’s name, then the prosecutors introduced themselves.

The judge explained that the defendant is charged with aggravated battery. He asked us if we know any of the people in the courtroom. No one does.

Then he reads us a list of witnesses, which includes three police officers, two from the suburb of Hybernia, and one from Brixton. There are also three doctors on the list. None of us knows any of them either.

[Note: In all accounts of this trial, I’m using fake names for the people and locations.]

I’m intrigued by the witness list. Why all the doctors? When I heard the name of the first one, my first thought was victim. But with the other two, I’m now guessing that maybe some degree of injury is one of the elements of aggravated battery.

The judge has the clerk read off twelve names, and those people move up into the jury box. The judge then starts asking questions of the first potential juror. When that one’s done, he moves on to the next, and the next, until in about half an hour he’s done with all twelve. Then he lets us go for fifteen minutes while he and the lawyers make up their minds about the jurors.

That surprised me. I expected that after he was done the lawyers would have their shot at questioning the the jurors. That’s how it worked in the civil case I sat for a few years ago, and of course that’s how it works on television. The judge did keep switching back and forth between a couple of pages of questions, so I can only guess that the lawyers must have submitted a panel of questions to the judge so he could ask everything.

When we returned, the clerk called six names and those people got to leave. The judge then swore in the other six people.

Now the clerk called the second batch of jurors, and I was one of them. The judge did his questioning thing again. I’m going to try to list them all, but doubt I remember them very well, so if some of you legal types read something odd below, assume it’s me and not some strange facet of the Cook County court system.

Some of the questions were general background questions:

  • What do you do?
  • Are you married?
  • What does your spouse do?
  • Do you have children? If so, what are their ages and what do they do? (One juror started his answer by saying “Well, I have ten children…” to which the judge deadpanned “Take your time.”)
  • What is your general educational background?
  • Do you read magazines and newspapers? Which ones?
  • Are you a member of any organizations? Which ones?
  • Do you watch television? What are your favorite shows?

The judge liked to mix up the questions, asking them out of order. I guess he wanted to keep it as interesting as he could make it, so we would stay sharp…or maybe he did it just to keep his own attention on the answers.

I spent a lot of my waiting time trying to come up with the list of shows I watch: Stargate SG-1, Stargate Atlantis, Monk, Mythbusters, Seconds From Disaster, The Daily Show, The Colbert Report, The Wire, The 4400, Dead Zone, Kyle XY, CSI, CSI: New York, The Closer, Bones, House, Blade. I was eager to have my television viewing habits entered into the court record. Alas, when it was my turn, the judge skipped that question.

A lot of the questions were about more legal-ish matters:

  • Are you a party to a lawsuit?
  • Have you ever been a party to a lawsuit?
  • Is your spouse a party to a lawsuit?
  • Have you ever been the victim of a crime?
  • Have your family or friends ever been a victim of a crime?
  • Have you ever been a complainant, witness, or victim in a crime?
  • Have you ever served on a jury before? When and where? Did you reach a verdict?
  • Are any of your family or friends police officers?

This brought out some stories. One juror had a brother who was murdered, another had a brother who disappeared during a big mob investigation, another was caught up in a political scandal.

In almost every case, a positive answer was met with followup questions and then some form of the question “Will that make it hard for you be fair to the defendant? Or the state?”

A few people did answer that prior experiences would make it difficult for them to be fair.

In my previous jury experience, when jurors said stuff like that, the judge would challenge them on it. I think this is called “rehabilitating” a juror. Some jurors would agree that they could put aside their concerns and be fair. On the other hand, when one man claimed to have religious objections to imposing judgement on others, the judge got loud and confrontational and told him that other people of his religion had served on juries, and then tried to argue that the jury just decided the facts, it was the court system that passed judgement. Those were good points, but the juror stood his ground. He didn’t make it into the box, so I assume he was struck.

This judge didn’t do any of that. He just moved on to the next question. Maybe this is the new way, or the criminal court way, or just his way. I guess it makes some sense. Sure, some of the jurors may be trying to shirk their duty, but that’s not his problem. His problem is to conduct a trial, and it’s quicker to forget about troublesome jurors and get on with it.

A few of the questions were very direct:

  • You will be hearing the testimony of police officers. Is there any experience you’ve had that would make it difficult to give them the same credibility you would anyone else?
  • Do you have any religious or ethical objections to passing judgement on someone?
  • Is there anything about the charges that you would have trouble finding someone guilty?

It was the possibility of this last question which had most concerned me leading up to jury selection.

If you’ve been reading this blog, you know that when it comes to the War on Drugs, I’m a conscientious objector. More than that, I’m a firm opponent of the War on Drugs, a critic of those who support it, and a supporting member of Law Enforcement Against Prohibition (LEAP).

Asking me to convict someone for a victimless crime is asking me to betray some of my strongest ethical beliefs. I couldn’t possibly promise to do that. This is exactly the kind of thinking that makes a prosecutor like Tom McKenna say he’d strike me from his jury.

So if this had been a drug case, I would definitely have had have had to answer that last question with a “Yes”. And then I was expecting the judge to try to “rehabilitate” me, which I was not looking forward to.

Instead, I’d been relieved to find out that this was not a drug case, and surprised to see that the judge didn’t confront people about their answers.

After this round of questioning, the clerk called out four names, including mine. This time, instead of dismissing the called people, the judge swore us in. Drat.

We went back in to the jury room and waited with the other six for about 45 minutes until they sent in four more jurors, bringing the total to 14, two of whom were alternates who wouldn’t participate in deliberations if the rest of us survived.

After a bit more of a wait, they fed us sandwiches from Legal Grounds, and then—the highlight of our day—they led us outside for ten minutes so the smokers could light up. It was nice to get some fresh air.

After that, we went back to the jury room and they called us out into the courtroom. And dismissed us.

Update: I’ve now posted Jury Duty, Day 2: Testimony.