Editorial License

Rob Hammerton, music educator etc.

Hold Off, Part 2 -or- Except For All the Others That Have Been Tried -or- Lex Est Asinus

[Ed. Note: The following piece was written more than a year ago. It has since been edited, re-edited, re-considered, re-adjusted to accommodate new thoughts, and re-oriented to reflect new emphases … to within an inch of its life. This is exactly nothing like a knee-jerk, flailing comment-section rant post. Whether you think you agree, disagree, or would rather not consider the topic at all … please keep your hands and feet inside the blog at all times, and please save your flames for the very end.]


George Zimmerman. Trayvon Martin. Michael Brown. Darren Wilson.

Stand your ground. Mind your business. Handguns. Skittles. Hoodies. 9-1-1 advice. Armed. Not armed.

Prosecution. Defense. Witnesses. Evidence. Judge. Lawyers. Jury. Grand jury. Instructions. Limitations.

Media. Pundits. Agendas. Broader issues. About race. Not about race.

All of that went through my head, that night in July 2013, and then again last night, as my Facebook display let me know what the Zimmerman trial verdict was, and what the Ferguson grand jury decision was, respectively.

Please, let’s all be clear about this, before you read any further: yes, I do have opinions about both of these results. They’re based on what very little I know of the details of the cases; and I freely admit that I didn’t watch absolutely every moment of the Zimmerman trial on my favorite cable news outlet, nor have I caught every last detail from Ferguson, Missouri in the past several months. To be sure, I’ve read a lot of stuff since the Zimmerman verdict was read. Every time I peruse yet another article about that trial, I find another little new detail which encourages me to re-think things. And every time that happens, I strive mightily to leave my political views out of all this as much as possible.

It’s hard work; but I’ll try, by God, I’ll try.

I have a hard time setting aside my observations about this country’s continuing struggle with issues of race, its continuing struggle with guns, its continuing struggle with incivility, its continuing struggle with degrees of law-enforcement militarization (both physical and psychological), and its continuing struggle with the staggeringly pervasive influence on public policy and media content by money and those who possess lots of it. These cases carry a remarkable amount of baggage, in spite of all the folks on the teevee who will want to insist that they have nothing to do with anything.

If I had been on that jury, in the summer of 2013 … well, it would mean that somehow, after I expressed such sentiments, the various lawyers involved would still have allowed me to be on a member of that jury, and I’m not sure I would have begun these legal proceedings as an entirely impartial observer. Therefore, if they’d kept me the heck out of that courtroom, they would not have done their job very well.

If I were on the grand jury these past few months, I’d have to take all my concerns about all of those societal issues … and stow them safely in the overhead compartment. I could deal only with the facts of the case – significantly, the facts of the case as presented.

Not long after the Zimmerman verdict came down, I read a paragraph by one of my favorite thinking writers, and I was startled that he would write what he did. Then I re-read it, and the writing that surrounded it, and thought, what an intriguing thing to say, and possibly a gutsy one, all things considered. And it made sense to me. He wrote:

“…I think the jury basically got it right. The only real eyewitness to the death of Trayvon Martin was the man who killed him. At no point did I think that the state proved second degree murder. I also never thought they proved beyond a reasonable doubt that he acted recklessly. They had no ability to counter his basic narrative, because there were no other eye-witnesses.”

And not long after the Ferguson grand jury’s decision was released, a gentleman whose thought processes I admire greatly posted a link to an article about the Missouri laws that are in place regarding the two circumstances under which police officers are allowed to shoot people: one is when it would protect their lives or the life of another innocent party (what police departments apparently call the “defense of life” standard). The other is when it would prevent a suspected felon from escaping.

When I read each of those articles, sixteen months apart … the same thing went through my head: a flashback.

I was on a jury once.

The experience both did and did not reassure me.

Three times I’ve been summoned for jury duty. The first time, I was fresh out of college; and everybody settled out-of-court so fast it made our heads spin. They sent all us potential jurors home before lunchtime.

The third time, about three years ago, nearly, nearly saw me placed in a jury for a rape case. The judge conservatively estimated the trial’s potential length to be several weeks.

The second time, though, as a grad student on summer break, I was empaneled on a domestic violence case. The trial itself – presentation of evidence, witnesses, questioning and cross-examination – fascinated me. I gained appreciation for both sides’ legal counsels (and for friends of mine who do this for a living). I gained admiration for this particular judge. Afterward I described her as both “a compassionate and decent human being” and “puts up with exactly NO crap in her courtroom”. All morning, that first morning, there were objections, there were sidebar meetings, there were quiet dramatic moments. But there were no TV-worthy outbursts (the judge made sure of that: let’s all be grownups here). When the prosecution rested, I was ready to send the defendant to the big house. When the defense rested, I was suddenly not at all certain that the defendant was guilty of absolutely everything s/he was accused of.

And then, it was our turn to do a little work.

For two and a half days, we sat in a little conference room and looked at evidence. Read transcripts. Debated. Agreed. Disagreed. Reminded each other that we weren’t allowed to take this into account when dealing with the question of this charge. There were a lot of average people in that room who were faced with making above-average judgments about things, and felt properly humbled by the task.

In the middle of the second day of deliberations, eleven of us thought one thing, and one of us thought the opposite. I hardly remember the details, but I remember that this one person would not be moved. The dynamic in the room moved slightly away from “must do our civic duty!” and a bit toward “must see if we can wrap this puppy up, because our lives outside this courthouse are kinda on hold at the moment, and it’s eleven to one for cripe’s sake, doesn’t that count for something?” The one person was steadfast still; in retrospect I think that was admirable. We decided that we needed to ask the judge (in writing): we’re at loggerheads … this jury might be about as hung-up as a jury gets … we hate to ask you to fire up a re-trial, but man, nobody’s budging in here. We’re very polite, and all, but that may not last.

The judge took a moment to clarify the definition of a couple of terms (…sound familiar?), so that we would understand that this action qualifies as being guilty of this offense, but only if this other condition is met.

She reminded us that we were determining whether the defendant was guilty of a particular charge, and that we were not allowed to invent a different charge for her/him to be found guilty of – no matter how much we wanted to. (And never mind whether we felt the defendant was guilty of more- or less-serious charges than the ones s/he faced. Not the point.)

She spoke a few sympathetic sentences about the great challenge that deliberation provides jurors, and that very few cases are “open and shut”. And then she very kindly but firmly told us that it would be best if we took our backsides to that jury room. She did this by using just two words:

Try harder.”

We slunk back to the jury room, our figurative tails appropriately between our legs: we hadn’t actually been working on this for very long. So … the negotiating and compromising began.

It felt a little … no, it felt a lot … like horse trading. The rule is: the jury has to be unanimous in its verdict. It has been this way for many many years, and we were not sufficiently important people in the grand sweep of American history to be able to change that because we wanted to. So we finally did come to agreement on a verdict that may not have felt satisfying, but did satisfy every juror in one respect: we had come to our decision based on the judge’s instructions and nothing else. That was our job, and we had done it as well as we could.

As I said, when I left the courthouse for the last time, I was both reassured and not reassured by the American jury trial system. I was reassured that a jury trial beats having to accept a dictator’s edict, any day of the week and twice on Sundays. With or without facts and evidence, even if the dictator does rule in your favor one day, s/he may not see things your way the next day, and there ain’t no appeals process.

Equally, I was not reassured. Yes, the trial process had caused us to take a hard look at our initial knee-jerk impression (hang the lousy son/daughter-of-a-gun high!) and to realize that the story being told was not as simple as “one party is completely guilty and the other is pure as the driven snow”. But it was one of the very rare times in my life when I wasn’t sure that compromise had produced the best result – the most just result.

But … we had been directed to follow the judge’s instructions. To the letter. And if that meant not bringing the verdict that otherwise made sense to us (well, eleven-twelfths of us), then that’s what it meant. And I wonder if the Zimmerman trial jurors, and the Ferguson grand jurors, had the same feeling. As could be said of so much of the related cable news pundit-blather, that supposition is strictly conjecture on my part. But it’s conceivable.

Today, and that weekend last summer, and twenty years ago, the American legal system did and does seem to me a curious and fragile construction. When “the law is a ass”, in that moment, at least, we have to abide by it anyway. When we hear a verdict and don’t come close to understanding how a jury could have gotten there … or when a verdict is legally correct but challenges our moral compass … it can be unsettling, to the say the least.

I wonder if it’s fair to paraphrase Sir Winston Churchill, here?… “It has been said that the jury trial is the worst way of administering justice, except for all the others that have been tried.”


November 25, 2014 - Posted by | current events, government, news | , , , , , , , , , , , , , , ,

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