Grand juror

If you are depressed about the state of our government, it actually helps to be called to a jury.

I’m on a grand jury this time. A few years back I was on a regular jury. Not only did we get to try a suspect (guilty on one charge, not guilty on another), it was all over in a day.

Grand jurors aren’t so lucky. We don’t convict anyone. Instead, we indict. Unlike trial jurors, we don’t get excused after one case. We’re in the system for a while.

Fortunately, my particular county doesn’t make it too burdensome. I’m summoned on Thursdays unless there is no one to consider indicting. So far it’s been every other Thursday, though that should change in August. Our term is for three months. While cases could roll over into the next day, it’s very unusual. So far we’ve been out by lunch time, which is 1 PM at this courthouse.

It’s too bad I can’t be a professional juror. Being largely retired, I don’t find it much of a burden. So far the cases have been interesting. Also, the grand jury process is a lot different. There are twenty three of us on this grand jury, but only 12 of us are needed to indict. The standard is a lot looser too. On a grand jury you only have to find probable cause. On a trial jury, you have to find guilt beyond a reasonable doubt. Here in Massachusetts, most juries have six people on them, but a few require twelve. Certain specialized juries can convict on five out of 6.

Also, there is no defense attorney on a grand jury. Instead you interact with a prosecutor, who may have an assistant, and whatever witnesses he or she calls. The charges are fully explained along with any nuances you must be aware of. And you can ask questions of the prosecutor or the witnesses, something that’s not allowed in trial juries.

You may have heard it said that grand juries will indict a ham sandwich. This is true. In most cases a grand jury is just a rubber stamp but a tedious process a prosecutor must follow. With twenty three jurors, a low probable cause standard, and only 12 jurors needed to indict it would take an egregiously bad charge and a poor prosecutor to not get all the indictments wanted.

So from my perspective, being a grand juror is more educational than empowering. Both cases we’ve looked at so far involve drug trafficking. The evidence presented is overwhelming and in most cases the drugs have actually been tested in a lab. Basically you ask yourself: does this charge look likely? If so, you can indict because it’s probable. We’ll leave it to a judge or a trial jury to decide actual guilt or innocence.

It’s probably coincidence, but both sets of indictments occurred at largely the same time and at the same place. I-91 is a major drug corridor and funnels drugs (principally heroin and cocaine) packaged in New York City, usually the Bronx. I-91 runs right through our county and Holyoke, Massachusetts, where a lot of drug trafficking seems to occur. Police either in marked or unmarked cars seem to know when the best time is to find couriers. It seems to be around 3 AM. I’m guessing most of them are pulled over before they get into our county, but if they pull them over in our county, it becomes a case for our county court.

It’s clear that a lot of these suspects aren’t playing with a full deck. It may be that they are high on the drugs they are selling, as a lot of low level dealers are also addicts. Today we heard a case where after a pat down a twice-convicted drug trafficker admitted to a cop that he had more drugs in the car. He had spent years in state prison. These courier vehicles aren’t too hard to find either. They are being driven weird. A tale light is out. Or the windows are too tinted, which is against state law. So here’s a tip: if you are going to carry drugs by car, don’t do it at 3 AM. I’m betting 9 AM is a much better time and it’s likely you’ll be more awake.

I had no idea that branding was a thing. I thought addicts would take anything they can get, but many are picky. Escobar, for example, is a popular brand name for heroin and can be seen on the plastic wrapping. Often other additives are added to these drugs, such as gabapentin, to make the high predictable and with certain proprietary after effects. Also, a brand may have a reputation for being of a certain quality.

I also thought that illegal drugs were likely very expensive. It depends on where you live. As these drugs move further north they get pricier because fewer addicts want to make the commute to a metropolitan area to get them cheaply. But it’s quite possible to get a dose of heroin for $1 or $2 a packet. Carrying around a ten pack, usually branded and wrapped in a rubber band, is not considered a major offense. But trafficking in it is. If you have been convicted more than twice with a penalty of three plus years, you can also be charged as a habitual trafficker, and face even steeper penalties. That happened today with a suspect we indicted.

I can’t help but wonder though why we are bothering. Fifty years into our drug war, we’ve obviously not stopped it or put much of a dent in it. Massachusetts now allows the sale, possession and use of marijuana. It’s been critical in my wife’s pain management. In fact, it’s hard to drive a few miles in any direction without hitting a pot shop.

Our drug war though seems pretty pointless. If consenting adults want to get high, I think they should have the right to do so. There are places in our state where addicts can shoot up using clean needles provided at taxpayer expense. Why not legalize it, put this stuff in the many pot stores and charge addicts to buy it? I would think all the money raised would more than pay for rehabilitation centers for those who want to beat their addiction.

We grand jurors though aren’t asked to opine on the law, just to help enforce it. So while I want to hold my nose sometimes, it’s not hard to raise my hand to indict when the evidence is so overwhelming and the probable cause standard is so easily met. I feel better at least acting as a check on our law enforcement system. While I sometimes feel like citizens aren’t in control of those who go to prison, in fact we are. We’re still in control. I’m hoping as we slide toward authoritarianism we’ll continue to do so. It’s clear our Supreme Court has been corrupted. But thankfully I’m not seeing it in our jury system.

The verdict

Eight years ago I was called as a juror, sat for a trial then learned over lunch that the defendant had copped a plea. This week I was called to be a juror again. Seventeen were called for a criminal trial, eight of us were empaneled and six of us got to render verdicts. I was one of the latter. I should have expected as much given that my juror number was 3. If hoping to get out of jury duty trial, hope they give you a larger number.

Aside from paying taxes and obeying laws, citizens have only two duties. Voting is optional, but jury duty is not. So I drove to the courthouse in Belchertown, Massachusetts (a really bad name for a town, BTW) and got predictably lost for a while, arriving about ten minutes late. Fortunately, I was not in trouble or the last to arrive. They forced us to watch Today on NBC and I tried to tune it out with a crossword puzzle.

The case involved someone I realized later I probably had met tangentially. Not only does she live in my little village, she also does a lot of ordering at the local pet food store we frequent. At age twenty-nine, she looked ten years younger and no more than one hundred pounds soaking wet. She was charged with negligent driving and driving under the influence. She had participated in a charity golf event for her employer, played eighteen holes of bad golf, retired to the clubhouse and consumed (she testified) about twelve ounces of an IPA. Sometime afterward she drove home, but probably missed the turnoff to the shortest way home on her GPS and ended up in South Amherst. There at a set of double roundabouts she flew over the circle, destroyed a tire and ended up on the side of the road. She said approaching the roundabout she had glanced down at her GPS to understand how to navigate the two roundabouts and that bad timing caused her accident.

A lady watched the whole thing and she and her husband tried to offer assistance. She testified that the defendant seemed shocked and/or drunk. She was not very coherent when she tried to talk to them, but was proactive enough to have her registration and drivers license ready for the officer who showed up some minutes later. She was given a sobriety test by being asked to walk a straight line, one foot in front of the other. After one step she leaned on her car for support. She attempted the test three times and was eventually arrested and taken to the police station. She never got a Breathalyzer test.

So it was up to the six of us who actually made it to deliberations to pass judgment on her. The woman who watched the accident testified, as did the arresting officer. Her husband who was also a witness was not called, nor was a second officer also there. The judge solemnly instructed us that we either had to find her guilty or not guilty, and we had to be unanimous.

In one respect Massachusetts law is good, since we were a jury of eight instead of the traditional twelve, and two were alternates who got to sit in a nearby room and twiddle their thumbs. Even with six of us in a room it looked like we might end up as a hung jury. However, no one really wanted to come back on Friday to deliberate some more because it didn’t look like we would have a change of mind.

At least it was easy to convict her of the first charge of negligent driving. Not only was there a witness, but also the defendant admitted it in her testimony. The driving under the influence charge though divided the jury. The standard for convicting someone was that the evidence had to be beyond a reasonable doubt. And we all had different ideas about what the criteria was for beyond a reasonable doubt. The judge was not too helpful either. When we filed back into the courtroom for more instructions he basically told us that we had to figure it out for ourselves and we had to be unanimous.

So when we filed back into the jury room we at least agreed that the beyond a reasonable doubt is an unreasonable standard. But it is useful in forcing us to compromise our principles, which is probably the point. Where was the reasonable doubt here? The officer testified her eyes were bloodshot and there was the smell of alcohol on her breath. Then there were those repeated sobriety tests. Was this beyond reasonable doubt? In my case, at age 61, I wasn’t sure I could pass the test completely sober.

It was to a couple jurors, but not to the rest of us. Would one beer affect one skinny woman that much? Maybe it was half a dozen beers. It’s hard to say how tanked she was because of the lack of a Breathalyzer test. Why was one not done? We weren’t allowed to ask any questions, simply judge on the evidence presented. And we were explicitly told we had to use our own life experiences as a guide.

I remembered a day thirty-two years earlier when my wife and I arrived with painting supplies to paint the townhouse we had just purchased. We opened the door to find the ceilings down and water flowing out the door. It was probably the most traumatic thing that had happened to either of up to that time, made more traumatic because we only had a verbal okay on our insurance policy. We were in shock for hours. That was my life experience. Could something like this have happened to this woman, who had only recently bought the relatively new Acura for cash? Maybe she was mentally ill too? Was she rattled because of something like that, or from having one too many IPAs at the club?

Who could say? When pressed I agreed that she was likely under the influence. But could I convict her for this opinion when I felt it did not meet the standard of a reasonable doubt? We all agreed we would have liked to hear from the witness’s husband and the second officer. But the prosecution didn’t think it was necessary for their case.

Ultimately, four of us felt there was reasonable doubt about her condition and two did not. The two who felt she was guilty compromised their reasonable doubt standard. And that was the justice we ended up delivering: not guilty. The forewoman said she could agree because she was at least found guilty of negligent driving.

The defendant cried when the verdict was read, whether from joy or sorrow is hard to say. It was more likely from joy because her license had been suspended. Because of our verdict she was allowed to drive again. I felt we delivered imperfect justice. On that no one in the jury room disagreed. We hope that if she was drunk at the time, she learned her lesson. We’ll never know.

I learned that despite all the legal mumbo jumbo and the sonorous words from the judge, our jury system is imperfect. I suspect the amicable judge presiding over the case silently agreed.

I, Juror

Having lived more than fifty years, you would think I would have been summoned for jury duty at least several times. Somehow, I never was. I had an inkling it was coming when in March I received an official piece of mail from the Clerk of the Circuit Court asking about my availability for jury duty. About three weeks later, the actual summons arrived requiring me to call or go online after 5 p.m. on April 13th to see if I was needed for jury duty on April 14th. I was not, however, in Fairfax County, Virginia potential jurors have a two-week summons, where you normally report only one day a week. A week later, I went back online to find out that I actually had to report at the courthouse this time.

I wonder how many jurors are like me: honestly interested in being a juror. It’s not that I wanted to stand in judgment of others or help mete out sentences. (In Virginia, juries decide the actual sentence.) It had more to do with seeing so many depictions of a courtroom on TV and never having had to be in a courtroom. This, no doubt, was due to my extremely clean lifestyle.

I was anticipating the experience to be somewhat underwhelming, but surprisingly it was not. One thing I did learn quickly is that while many jurors are summoned, not that many are seated on an actual jury. Both prosecutor and defense attorney look aggressively for reasons to excuse jurors.

After spending close to two hours reading newspapers and magazines with about a hundred other potential jurors in a large jury waiting room, my group of about two dozen was finally escorted to Court 4J. Clearly, my tax dollars had been well spent with this new courthouse. It was about as fancy as they get, and all the courtrooms looked shiny and new. Because I happened to be in the first dozen in the group, I was seated in the actual jury box while the rest sat where the public sits.

The case involved a young man who had been pulled over by Fairfax County detectives. He was alleged to be distributing marijuana because two dope bags were found. Moreover, a drug scale was also found between the passenger and driver’s seat. Possession of marijuana with intent to distribute is a felony in the Commonwealth of Virginia. The defendant was looking nervous, despite dressing in a dark suit and tie. Both the prosecuting and defense attorneys were dressed for success.

During the voir dire, all sorts of jurors were excused. One could not commit if the trial took a second day because she wasn’t sure she could find a babysitter, as her child was too young for daycare. Others openly expressed biases that precluded them from sitting on the case. Two potential jurors approached the bench to discuss their confidential circumstances with the judge and were excused. We were all asked if we had any opinions regarding drugs and marijuana that would disqualify us from rendering a fair verdict. It just so happened that I personally favor marijuana decriminalization. However, I saw no point in speaking up because I knew I would not let my opinion keep me from rendering a fair verdict. My opinion has always been that the law is the law, and no matter how stupid it may be sometimes, we are all required to abide by it. A number of other jurors were excused for no obvious reasons. Maybe they looked biased. For some reason I remained and other potential jurors quickly filled their spots.

I was anticipating the casework and presentation to be a bit sloppy, but I quickly grew to respect both the prosecutor and the defense attorney, both women. If I ever need a good defense attorney, I now know whom to ask for. The defense attorney was particularly insistent. Did we understand that the defendant was presumed innocent? Did we understand that the prosecutor had to prove these particular charges beyond a reasonable doubt in order to convict the defendant of this felony charge?

Enter the prosecution witnesses: three Fairfax County police detectives who in early October 2009 apparently were shadowing this man as he left a Bally’s Gym off the Shirley Highway. Left unstated, but reading between the lines, was that the defendant knew he was being shadowed as he pulled into a parking lot, turned around and started heading back toward the Capital Beltway. He even dodged onto an off ramp then illegally dodged back into traffic. All the detectives testified they smelled unburned marijuana when approaching the vehicle. All detectives also noticed that as he was pulled over he leaned toward the passenger side. They noticed some part of the plastic bags sticking out of the glove compartment, opened the glove compartment, assessed it was marijuana and arrested the suspect. The scale was found later in a search of the car.

While the case looked straightforward, it was not. The defense attorney in her opening statement said there would be testimony from the family that the defendant’s younger brother had purchased the marijuana in D.C. Moreover, the defendant did not own the car; it belonged to his father. He also carried over $1000 in his wallet. There were lots of circumstantial evidence but no one could testify they actually saw the defendant put anything into the glove compartment. If he did seal the bags, it was done in a hurry, and the bags that were presented looked well sealed. The defendant had no drug paraphernalia on him, yet the detectives said there was a strong odor of marijuana when they approached the car.

We shuffled off to lunch with strict instructions not to discuss the case. It was an odd lunch because the defendant and his family were sitting two tables away and the three detectives were three tables away watching him. By two p.m., we were back in our jury room, waiting to be summoned back into court. We waited. And waited. Conversation became more difficult as we were running out of things to talk about. Nevertheless, we could read the tealeaves.

It became official around 2:30 when we finally got back into the courtroom. The defendant had pled guilty to a lesser charge. We were not told what he had pleaded guilty to, but simple possession of marijuana seemed likely. While I had not yet heard the defense witnesses, copping a plea seemed an obvious act for the defendant. In my mind, the prosecution had not proven intent to distribute marijuana beyond a reasonable doubt. Reading between the lines, this defendant seemed to have been tracked by detectives before and probably had other encounters with the law that we were not told about. I would not have been surprised if the defendant had actually been some low level distributor, but the evidence was just not there to convict beyond a reasonable doubt. Yet he probably felt he might have gotten a hung jury and some other jury might convict him. There was probably enough evidence to convict him of possession of marijuana if that had been the charge. Intent to distribute was a stretch given the evidence.

We were thanked for our service and I was back in my office by 3:30. I know I won’t be summoned for at least three years by this circuit court. Most likely, this was my one and only chance to be a juror and yet I judged nothing, just listened impartially. However, the judge did thank us. A jury trial often leads to these last minute plea deals. The trial becomes the wedge that can move a case toward settlement.

My guess is that if summoned for jury duty your odds are at best one in three that you will actually decide a case. Off the bat, you have close to fifty percent odds that you will be excused for one reason or another. Our case was likely not atypical in that in the middle of it, prosecution and defense decided to agree to settle for lesser charges.

Still, it was an interesting day. Our judicial system does work and it was all handled with great professionalism. While courts and juries make their share of mistakes, it works quite well. I left feeling grateful for our judicial system and feeling confident that if I were brought up on criminal or civil charges, I too would get a fair trial.