I’ve spent the better part of the week serving as the foreman for a jury in a criminal case. As they tell you, you’re not allowed to talk about it with anyone, not even your fellow jurors, during the trial. As they also tell you, once the trial is over you can talk about anything you want. So, here goes.
I am one of those civics nerds who does not look for every excuse not to serve on a jury. I was a political science/journalism double-major and, though I’m far away from those in my professional life at this point, I still have a passion for the processes that bring us together as communities, societies and civilizations. I won’t say I wanted to be put on a jury for a criminal case, but when the opportunity arose I certainly welcomed it.
The defendant was a 17-year-old black man — rather, a boy who was 16 when he committed the crime and barely looked 13 even a year later — who had pleaded not guilty to armed robbery. According to the victim, who was also the only witness, he was one of three assailants and was definitely not the gunman. However, in the state of South Carolina, as in many other states, the “act of one is the act of all.” As a result, this young man, this boy who was nearly in tears as the jury was being picked, this child who dropped out of school in the ninth grade but through a job grew a fondness for cooking and was now working on his GED so he could gain early entry to a community college studying culinary arts, this poor kid who, if guilty, was likely put up to the crime by stronger boys who seemingly didn’t even give him a cut of the stolen merchandise, was facing a minimum sentence of 10 years in prison. Adult prison. At 17 years old. He couldn’t have weighed more than 140 pounds.
Of course, none of that mattered because as a juror you can only consider what is presented to you during the trial, which was this: a man who travels from city to city selling athletic shoes and other merchandise out of his van to a largely young African-American male clientele, gets several calls from a young man, the defendant, asking about some shoes. After one meetup in which the boy claims he doesn’t have money but will get it from his mom and see the guy the next time he’s in town, they arrange to meet the following weekend. That meeting, which happened a week later in broad daylight, starts out like any other but changes when another man, whose face was too obscured for the victim to get a good view, points a large black pistol at the victim from the back of the van, which has its door open. The victim looks back at the boy, our defendant, as if to say “Is this a setup?” and with that look the defendant, according to the victim, starts going through his pockets, taking $250 cash, a cell phone, and a wallet. A third man the victim never sees directs the other two about which boxes of shoes to grab (the Jordans, not the dress shoes) and they run off with them through a shortcut and out of sight. Once he no longer feels like he’s in danger, the victim runs to a neighbor’s house to call 911 and police arrive on the scene within minutes.
There are no eyewitnesses except the victim, who while being a legitimate businessman with a retailers license and receipts for the purchase of all of the merchandise he sells, has a record of his own — possession with intent to distribute (“PWID”) crack cocaine in the vicinity of a school in 2002. The only circumstantial evidence linking the boy to the crime is the phone records that show a pattern of calls that match the victim’s recounting of the sequence of events. The detectives are able to get a warrant for the phone records and match that phone with the defendant, whose picture is then put in a six-person lineup, from which the victim makes a positive identification 24 days after the crime was committed. That’s it for evidence. There is no weapon, no eyewitnesses, no fingerprints. There is nothing but phone records and an ID by the victim that happened more than three weeks after the fact using a six-month-old picture of a person he’d admittedly met before the crime and made by a man who sees, by his own admission, 20-30 young black men per day as part of his business.
On the other side, the only alibi for the defendant is his mother, who says her son was with her the whole morning and couldn’t have committed the crime in the timeframe given. Needless to say, she has no physical or circumstantial evidence to support her claim, one that she didn’t start making, according to the police, until a month before the trial, which was a full year after the crime was committed.
Ah, but there was a “twist.”
The victim said the boy had a short afro with twists in it. He was so adamant about it that, when presented the lineup and positively identifying the boy, he made the detectives write down that the boy had had twists at the time of the crime. Yet, the prosecution could produce no evidence that the boy ever had twists in his hair. In fact, his mother insisted that he couldn’t have twists because his job at a catering company wouldn’t allow it.
This small detail, along with the general reliability of the victim’s testimony, became the core of the defense’s argument that it was a case of mistaken identity. The core of the prosecution’s argument, naturally, was the phone records and positive ID.
These are the facts we were given as a jury, facts upon which we were to decide if a boy was guilty of a crime that would put him in prison for 10 years. We were admonished to consider all of the facts but nothing outside of them. Don’t consider the sentence, or the age, or the race, or anything unrelated to what we heard while sitting in the juror box. Just focus on the facts that are presented. Yet, we were also told, time and again, that our Constitution is absolutely unwavering in its mission to protect the innocent, that no matter how clear-cut the evidence may seem, the burden of proof in criminal cases always, always, always falls on the prosecution. The boy sitting in that chair next to a pair of public defenders, possibly wearing borrowed clothes to look presentable in court, is innocent until he is proven guilty beyond a reasonable doubt.
So we deliberated on these facts. In the jury room and finally free to talk about the case, I repeated the keys to our responsibility as best and as evenly as I could. We must be sure one way or the other, I said. We must remember that the burden lies with the state, not the defense. We must review all testimony and make a determination of whose story is the truth, or at least closest to the truth. I told them that while I wanted to get out of there as soon as possible just as they did, that we owed it to the defendant, the victim, and ourselves to take it seriously. And since this isn’t the movies and since people will generally do the right thing when given the opportunity, there was unanimous agreement that we would take our roles very seriously, no matter how long it took.
So we voted. Five guilty, seven not guilty. Those who voted guilty said the phone records and positive ID were damning, that you couldn’t not consider that as enough to prove the defendant was there and, therefore, guilty. Those who voted not guilty, of which I was one, were just not convinced “beyond a reasonable doubt.” The phone records were convincing, yes, but when you looked at the numbers in context you saw that the victim placed or received a call almost every 10 minutes throughout the day, every day during the two-week period submitted into evidence. I wasn’t looking for a similar pattern of phone calls to that of the defendant and found one in a matter of seconds anyway. In addition, a defense witness who knew both the victim and defendant said that he’d actually introduced the defendant to the victim several weeks before the victim said they’d initially met. That same witness recounted a conversation with the victim after he picked the defendant from a lineup in which the victim said “I hope I didn’t pick the wrong little dude.” The victim, of course, got back on the stand and denied ever doubting his choice. Plus, the victim couldn’t remember the year of his crack conviction and even was off by 90 minutes when describing a phone call he’d gotten the day before the trial started (that phone call, incidentally, was supposedly made by the defendant, in a strange claim that he had called to apologize). That, combined with the issue of the twists in the hair and the defendant’s mother’s alibi, as flimsy as it was, just said to me and others that the State had not, as the judge admonished, proven to us that the boy was guilty in our minds beyond a reasonable doubt.
(As a sidenote, the one thing we all agreed upon as jurors was that the police did an awful job with the case. The detective in charge didn’t follow up on leads in a timely manner — 24 days to ID a phone number and provide a lineup to the victim? — and neither of the detectives on the case seemed to take the victim seriously. None of us in the room said it but it was clear that, to the police, this was a small crime against a black man with a sordid past committed by black youths with questionable futures. Nobody was hurt, less than $2,500 in cash and merchandise was involved, and no gun was ever found. They just didn’t give a shit, and the findings, or lack thereof, of their investigation made that perfectly obvious.)
So, after more reviewing and arguing, some of it heated, we voted again. Nine not guilty, three guilty. While we seemed to be getting closer to that ever-elusive unanimous decision, we were actually further from it. Of the three who voted guilty, one seemed to be slightly on the fence if only because he was willing to discuss the case further — and in fact, he later said he would change his vote. The two others were digging in and shutting themselves off. They refused to talk about it and, finally, one told me to go tell the judge we were hung because there was no way she was changing her mind. I asked her to share her reasons for thinking he’s guilty, not because I thought that I could be The Great Convincer if I understood her logic, but because at this point we had been deliberating for just over two hours, which seemed like an awfully short time to decide we were deadlocked. She refused, said that she didn’t have to share her reasons, that she just knew he was guilty. In retrospect, it was unfair of me to ask her. Not everyone reaches conclusions in the same way and not everyone can articulate why they feel a certain way about something. She had made up her mind. She hadn’t done it unreasonably. She’d just done it. So that was the end.
I knocked on the door and passed a note to the bailiff informing him that we were unable to reach a decision. Ten minutes later, we were called back into the courtroom, where the judge addressed us about our decision and, long story short, told us to go back and try harder.
So we did. I requested a copy of the judge’s instructions to us so that we could read it again as a group and be absolutely sure that we were all interpreting the law in the same, “correct” way. We agreed that this reading of our instructions would be the last task we would get to that day because, largely at the understandable urging of the adamantly guilty voter, no changes of heart were going to happen until some of us slept on it. And who knew? Maybe those of us who voted not guilty would wake up in the morning and decide that our reasonable doubt was gone.
Ah, but there was another twist.
It turns out we wouldn’t get a chance to see any changes of heart. Just as I was finishing up the reading of the rules and we were getting ready to call it quits for the day, the judge stepped in to the deliberation room and informed us that a plea bargain had been reached. Apparently, once the prosecution realized that there was a hung jury, they became nervous that the tide would turn, as is frequently the case and as was the trend in this case as well according to our votes, from guilty to not guilty. Rather than risk losing a conviction and/or having a retrial, they dropped their demand that the defendant be tried as an adult and allowed him to take a plea of “strongarm robbery,” which would put him in something called a Youthful Offenders Program, which is a sort of transitional detention from boyhood to adulthood which requires that its residents get a GED and learn skills that will keep them from coming back into the legal and penal systems. It’s one of those pesky rehab facilities the crime-and-punishment crowd loves to hate. The judge was very happy with this result because he didn’t want to see this boy get sent off to a man prison and either not survive or come out more serious about crime than his very serious but seemingly unconsidered youthful indiscretion. He would also pay the victim $2,000 in restitution. The judge even told us that he had predicted a hung jury, that the evidence, while convincing, just wasn’t solid enough in either direction.
So there you have it. Unbeknownst to the 12 of us, we were playing out a script to the letter. Our inability to reach an accord, while not the stuff of Law & Order, was not a failure per se but actually set in motion a chain of events that allowed all parties to get the something if not good then at least reasonable for all involved from an otherwise terrible situation.
All I could think as I walked to my car after being excused was this: from chaos comes order. This system that we look at and think that it’s in disrepair, that nobody can possibly fix it or in which you have “activist judges” on one side and uncaring, throw-the-book-at-them judges on the other side just isn’t a fair characterization. What you truly have is a proverbial sausage factory: it’s incredibly messy, nothing seems to make sense, nothing looks good or reasonable or even real, but at the end of the line there is something like justice. It doesn’t always look right. It doesn’t always feel right. It doesn’t even always taste right. But it’s at least palatable. And no matter how it is, it’s never for a lack of sincerely trying.