A Citizen's Guide to Indiana

Masson's Blog

Trial by Jury

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I had a jury trial this week, and I’m happy to say that I won. I don’t really do very many of them. They are really an inefficient way to resolve disputes — except for maybe the alternatives are worse. When you think about it, the civil jury trial is our substitute for what, historically, was resolved through raids and blood feuds. People have a dispute. At least one side typically thinks he/she/it is entitled to something someone else has (usually money); and they simply cannot agree on a resolution.

Now, most of these things don’t go to a jury trial – at least not for me. I am normally either able to get the case thrown out on a motion of some sort or help reach a settlement between my client and the other party. And, particularly if your motions are denied, the structural pressure to settle cases is really pretty significant. It’s surprisingly awkward to go to a court ordered mediation and offer nothing or next to nothing. You are made to feel rude and like you’re wasting everyone’s time. Very often mediation is a useful tool — but when you are determined to have your day in court, it’s an expensive hurdle to be cleared.

The jury trial itself is, for the lawyers anyway, a very labor intensive process. I have a lot of respect for those litigators who do that kind of work week-in and week-out. The hours of preparation and organization required for even simple cases is fairly significant. When I do have one, my wife and I end up commenting on what a problem it would be for our family life if I was doing these kinds of cases more frequently.

Typically, the structure of a civil jury trial process will begin with voir dire – the parties have been given a jury list a couple of days before of the panel of potential jurors. Different courts have different approaches, but for Indiana state courts, I think it’s fairly common for judges to briefly introduce the matter to the jurors and thank them for being part of the process. The judge asks some very preliminary questions about basic items that might disqualify a member of the panel from serving as a juror. Then, he gives the lawyers greater or lesser amounts of latitude to question the jurors.

Ostensibly the process is for lawyers to probe jurors for information that might reveal a juror who is unable to evaluate the case in an unbiased fashion. All the strategy books, however, pretty much tell you that, even now, you should be framing and arguing your case — softening up the jury to see things from your point of view. In my mind, the voir dire is in some ways the most awkward because it is the least structured. And first impressions are so important – there is a decent chance the jury will be fairly persuaded before you even get to the evidence.

During the voir dire process each side gets three peremptory challenge where they can dismiss a juror for pretty much any reason. Each side is trying to divine which jurors will be favorable to their case through inexact proxies — “people who do this kind of work have these kinds of tendencies” and so forth. (Incidentally, the juror questionnaires have a question about favorite TV shows – “The Big Bang Theory” is a runaway winner.) For civil cases, once you have six jurors and an alternate, the rest of the pool is dismissed and the jurors are sworn in. (The job of an alternate has to be so frustrating — you aren’t allowed to participate in deliberations. That would be torture for me; particularly if I felt like the rest of the jury was missing something important. I like to make my opinion known. Hence, this blog.)

After that, the jurors are given the preliminary instructions – a basic introduction to what the case is about and how the process works. Then the parties can give opening arguments — which is and isn’t a misnomer. Technically, I think you aren’t so much supposed to “argue” as simply explain to the jury what sorts of evidence they will see. But, of course, you are framing that evidence in a way that supports your case; so there is an argumentative element in there by nature. There isn’t a bright clear line where descriptions of the facts stop and impermissible argument begins.

Then the plaintiff opens his evidence. This is witness testimony and documents. Depending on the case, introducing evidence in this way, may not create the most comprehensible narrative for the jury. If there was a series of events, you won’t take the events one-by-one, getting the account of each witness for that event — rather, you will get what one witness knows about all the events before moving on to the next one. The jury might have to wait for a couple of days to hear what another witness recalls of a particular event.

Generally, if a party calls the witness, that party’s questions will have to be more open ended; relying on the witness to recall and supply details — occasionally straying into unanticipated territory. This is followed by cross-examination. On cross, you can ask leading questions – which leads to much more narrowly focused responses. The attorney doing the cross examination does most of the talking, with the witness often just confirming or denying what the attorney says.

Technology in the court room has improved. One thing I really appreciate in the Tippecanoe County court rooms is a sort of opaque projector that displays documents on a big screen to the jurors. I think that’s very helpful when you are asking a series of questions to a witness about a particular document.

After the plaintiff goes through his or her witnesses and documents, the plaintiff rests and then the defendant goes through his or her evidence in much the same fashion. After the defendant closes, the plaintiff may or may not put on some rebuttal witnesses. (There were none in the case I recently concluded.)

Once the evidence is concluded, the next step is to hammer out the details of the final jury instructions. This is done outside of the presence of the jury and seems like part of the process that has a lot of room for improvement. Ostensibly, I think, this is done at the last minute because the final instructions have to be based on the facts that were introduced during the presentation of evidence. So, the sides exchange the instructions, often at the 11th hour. They are based on model jury instructions. However, a party is also entitled to have non-pattern language included if it is a correct statement of the law, implicated by the facts of the case, and not otherwise covered by the rest of the court’s instructions. So, quite often, you are faced with language that is supported by case law you, as an opposing party, only have very limited time to review. And the clock is ticking because you have a jury waiting. Even if you send the jury home for the night, you are racing to craft and present arguments about what the law is and is not over the course of an evening and perhaps the next morning. The court, with the help of the attorneys, then has to merge at least three sets of instructions – the courts and each party’s. (More if there are multiple defendants). The court has to throw out the instructions that are duplicates, exclude the ones that aren’t permitted, and modify others if they partially misstate the law or partially duplicate others. It is quite an editing job done on the fly. However, I think that much of it could be done earlier in the process — this would require the court to make earlier (if potentially preliminary) declarations about what the law is and would reduce a certain amount of potential gamesmanship by the parties.

After the instructions are settled upon, the parties make their closing arguments. The plaintiff goes first, followed by the defendant, followed by rebuttal by the plaintiff. My client thought this was very unfair that the plaintiff got to go first and last. In most cases, you can’t help but feel like the jury has made up their mind. Probably, you’d be just as well saying something like, “thank you for your time, please treat us fairly.” But, I have never had the confidence to pull that one. I tend to walk them through an outline of why my opponent’s version doesn’t make sense and mine does. I tend not to have a flair for emotional appeals; but I think I’m fairly good at showing the jury the world from my client’s perspective.

Then, when each side has made their arguments, the judge reads the final instructions, and the case is handed to the jury. (See this post if you’re interested in my experience as a juror.) Turning the case over to a jury is nerve wracking for a lawyer. You have been in control of the case for so long; have prepared so much; and now it’s out of your hands. A group of people you have only known for a couple of days will decide the outcome. You have no ability to address their arguments or correct any misunderstandings they may have. If they forgot about a key piece of evidence you presented, you have no way of reminding them of what it was. You are in limbo while the jury is out. You don’t know how much time you have – whether you and your client should just hang out or if you should go about your business until the court calls you to let you know the jury has returned with a verdict. You try to guess whether the time the jury has spent deliberating is a clue as to success or failure.

In this last case, the jury returned very quickly. I had gone to the Black Sparrow and ordered a beer and a pizza. It was about 1 in the afternoon, and the lunch shift waitress remarked that she had never seen me order a beer during the day. I told her this was a different sort of day. I’d had about half of my beer and two pieces of pizza when I got the call that the jury had returned. As a defendant, this was good news because it seemed unlikely that the jury had had time to do any math. I was cautiously optimistic, but still had to prepare my client for bad news. I also like to give my client instruction on how to comport themselves with either good or bad news. In this case, there was a tremendous amount of bad blood because my client felt like the opposing party was flat out lying about him. There is often a difference in perspective for any event, even where both sides are trying their level best to remember and tell the truth. This was not one of those cases. Someone was obviously lying. I very much believe my client was telling the truth – but I’m hardly unbiased and, at the end of the day, I wasn’t there when the event happened.

My optimism about the verdict notwithstanding, there was still a huge amount of anxiety during that period when you arrive at your spot in the court room and watch the jury file in. At this point, you get to see which juror was selected as foreman. Again, you try to figure out whether that is a good sign or a bad sign. The foreman hands the verdict form to the bailiff who hands it to the judge. Now the anxiety hits a crest. Fortunately, in this case, the jury found that my client was not at fault. Even though I was very happy with the result, it’s important to temper my enthusiasm at that point. Because, on some level, I felt bad for opposing counsel. These are guys you work with year in and year out and they worked every bit as hard as I did. I don’t know for certain the details of their contract with their client, but I suspect they were working on contingency and probably won’t get paid for all that work. Now, I know my client – angry about being dragged through the whole process – does not share my feelings about opposing counsel. But, I’m part of the system. I know that plenty of people on the other side of my cases probably have hard feelings for me.

The following days are spent recovering from the physical impact of the trial. First off, I need plenty of sleep for a couple of days. Then, there is the post-trial let down to deal with. Even though I won, there will inevitably be an emotional crash. Because that focus of so much hard work has suddenly been removed, I’ll feel out of sorts for several days. But, before too long, I’ll shake it off and have another war story in the books.

R.I.P. Uncle Fritz

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I learned that my uncle, Frederick M. Long, died yesterday. To me he was Uncle Fritz, and, really, he has been gone for a long time. He was the husband of my mother’s sister. If I have my years right, the last time I truly spoke with him was in 2008. Normally, I saw him at least every two years when that part of the family got together in Hilton Head, per the tradition started by my Grandpa in the mid-70s. But, Uncle Fritz was diagnosed with Alzheimers sometime between the 2008 and 2010. His body was alive until yesterday, but it’s hard to say that the man I knew was still in there. Alzheimers is a hell of a thing; robbing the body of its person, a death by inches. In a way, his passing is a relief; now, I believe, it will be much easier to focus not on what he had become but on what a remarkable person he was.

As I understand it, and I might not understand it very well – I knew him best when I was younger – he was from a working class family in Allentown, Pennsylvania who went off to the Coast Guard Academy. From there, he was able to go to the Harvard Business School, getting his MBA, and then, have a long career at Baltimore Aircoil Company which included a stint in Belgium that must have been at or very near the beginning of the company’s European operations. The Belgium assignment (before my time) figures prominently in family lore; having family living in Europe was exotic!

To me, he was something of a father figure for the period between when my Dad left and when my step-Dad came on the scene. Maybe it’s just distorted kid-memory, but it seems like we went to visit them in Maryland much more during that period. In any event, I have memories of various levels of clarity: him picking us up from the D.C. airport in the snow; the first car I remember seeing with lights on the passenger’s sunvisor mirror; a house with air conditioning before that was common; his sailboat – including taking the boat under the Chesapeake Bay Bridge, the taste of warm cokes kept on the boat, laughing and hanging on with my brother Pete as the boat leaned hard to port; learning that I loved rare steaks; his studied consideration of the wine list at dinner; the Coast Guard and nautical paraphernalia at his home.

But there are two memories that stand out and bring him to mind with a fair amount of frequency. First, he loved radishes. It was fairly routine for that part of the family to have a relish tray with cocktails in the early evening. Uncle Fritz would hit the radishes. This was remarkable to me because I’m not sure I’d seen anyone else popping radishes. So, anyway, the vegetable is now very strongly linked in my mind with Uncle Fritz. The second thing is tying a tie. He is the one who taught me that the tip of the tie should cover your belt buckle. I wear a tie most days. So, at least once a week, as I’m making sure it’s the proper length, I think of Uncle Fritz.

He always took an interest in my studies and my career. He didn’t have a lot of use for lawyers; telling me there were too many of them. But he was tickled when I opined (as a teenager) that there was always room for a good one. His politics were well to the right of mine; but, on vacation, it was not uncommon for him to bring me some editorial or opinion piece he found interesting and ask my opinion of it. And, unlike most adults, he would consider my response and take me seriously – that makes a huge impact on a kid.

Anyway, I’ll miss him; and, in fact, have missed him for quite some time. Rest in peace, Uncle Fritz.

R.I.P. Jeffrey McManus

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I just learned that Jeffrey McManus died. I never knew him in person, but I’d known him online for something like 14 years. He was part of the Well and then, later on, we were connected by Twitter and Facebook.

For me, he was a good example of the concept I’ve come to know as ambient intimacy. Even though he lived in California, I knew more about him and his family than a lot of the individuals I see in person on a regular basis. He was 46, had a wife and two kids, and seemed to be just far enough ahead of me on the “growing up” schedule that I was always taking notes when he was commenting on fatherhood and whatnot. And, of course, his Twitter harassment of Chuck Woolery always made me laugh.

I don’t know the details, but so far as I can see, this looks to have been a bolt from the blue situation. His Twitter stream looked regular yesterday, and the linked report says that he passed away in his sleep from unknown causes.

I feel so sorry for his wife, Carole, and their kids. They are a well loved and respected family, so they won’t lack for support; but I don’t know that anything will help much, at least not in the short term.

Vacation: A Tale of Trails and Beer

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I am slipping back into normal after a solid vacation. The family & I visited some friends in Rapid City, SD; went and visited my sister in the Boulder, CO area; and went to visit my old college roommate in the Denver, CO area. Along the way, I spent a great deal more time with my wife and kids than during the typical work week and was pleased to find that – contra the norms set by the modern sitcom family – my wife & I seem to really like each other, and my kids seem to be developing into remarkable people. We managed 7 hiking days which the kids definitely enjoyed:

Poet’s Table near Sylvan Lake in Custer State Park, South Dakota. A little detour off the trail to Little Devil’s Tower. Apparently in 1969, some hippies hauled a table up to a little alcove in the rocks. We had a picnic up there and the kids (with some assistance from me) left a poem as is the custom of the place.

Jewel Cave National Monument. My daughter really likes caves, so this third longest cave system in the world seemed to fit the bill. We had been to Wind Cave in the area a few years ago. There are also some trails outside the cave which we hiked on to kill time before the cave tour.

Red Rocks Trail near Pearl Street in Boulder. A nice trail that gives you a great view of Boulder.

Rocky Mountain National Park – the winds were out of hand. We’ll call it a hike, but it was really maybe a half mile walk around a water fall.

Eldorado Canyon State Park near Boulder – this was a really neat place, maybe my favorite trail of the vacation. The Fowler Trail has some neat views of the canyon and then opens up into a great view of the plains heading out from the front range.

Lair O’ the Bear trail west of Denver. For us, the most notable part about this outing was less about the trail and more about this cool tree near the trail head. It had branches that demanded climbing. And, so, we did. It’s been a long time since I climbed a tree!

Garden of the Gods in Colorado Springs. This area is just stunning. We actually managed to get off the more traveled paths and maybe got just the tiniest bit lost for about 15 minutes. It’s nice to get lost every so often.

In addition to the hiking, I also got to become familiar with some craft beers of the Front Range. In particular, I can’t speak highly enough of the Mountain Sun Pub and Brewery. This is on Pearl Street. The beer was great and the service was even better. The staff was so friendly to the kids. (Not necessarily what you expect at a brewery). They seem to have a restaurant brewery model – I didn’t see much distribution of their beer in the area, but maybe I missed it.

The Oskar Blues Brewery is definitely and up and comer. I saw their beers all over, and actually ended up at their bar in Lyons, CO, between Estes Park and Boulder. The bar is kind of a neat place with two stories, a significant band presence, and a video game room featuring some old school games — I haven’t seen Defender in forever. I had the Dale’s Pale Ale a few times and the Old Chub Scotch Ale there at the bar. I’ve been told they are in discussions to distribute in Indiana.

My buddy was a big fan of the Dry Dock Brewery in Aurora and we went there for a pint and to fill up some growlers. Their stuff is definitely good, but I suppose I enjoyed the other two breweries’ offerings a little better.

And, just for good measure, one night I had the Bridal Veil Rye Pale Ale from the Telluride Brewing Company. A couple of other notes on beer: macro-brews have their uses too. Pabst is a fine thing to drink when you are spending several hours in the sun tending to a smoker, and Coors really does taste better near Golden.

In the Supreme Court (of Indiana) Revisited

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Just a follow up on a post from this past March when I had the opportunity to argue a case in front of the Indiana Supreme Court. The Court issued its opinion today, and I’m pleased to report that my client was on the winning side.(pdf) My description back then:

[B]asically, it had to do with whether an employee was discharged for just cause or not. If so, the employee is not entitled to unemployment benefits. If not, the employee is. The primary wrinkle for the Supreme Court had to do with the fact that IC 22-4-15-1(d) has a number of examples of ‘just cause’ for termination. The Court of Appeals felt like the example selected by the Review Board was not well supported. I made the argument that even if that particular example wasn’t well supported, some of the others were. The Court of Appeals said they couldn’t look to any other example other than the one chosen by the Review Board. I said they could and asked the Supreme Court to say so as well.

The Court agreed with my argument that an appellate court is permitted to affirm a finding of just cause by the Review Board under an alternate legal basis, not analyzed by the Review Board, so long as the findings of fact by the Review Board support that alternate legal basis.

Some Thoughts on Parenting on the Occasion of My Son’s 9th Birthday

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My son, Cole, turns nine years old today. It’s hard to say anything about parenting that’s not cliche. Talk about how good it is, and it’s all been said before. Try to be “edgy” and talk about the bad parts, and you’re still cliched and only telling half truths.

Anyway, it’s been a pleasure watching Cole grow up. He’s such a sweet kid. Smart too. He could stand to strive for some brevity in his story telling, and maybe add variety; but I think that’s an occupational hazard of being a kid.

For my part, being a Dad has renewed my curiosity about the world. Watching the kids learn about stuff sort of reminds me of when I had to get some foreign language credits in college. I’d taken a bunch of Spanish in middle school and high school, but I was never very good at it. I always felt like I was maybe a step behind. So, in college, rather than testing into an upper level class, I just started over. Part of this was just sandbagging, but it honestly gave me a better grip on the language. Going over the basics a second time when I wasn’t struggling to keep up helped solidify my grasp on the fundamentals.

Being a parent has had a similar effect in some respects. When they were learning to sleep, I gave more thought to how I slept. When they were learning to walk, run, and jump; I gave more thought to my mechanical skills. When I’m teaching them about math or social studies or whatever, I’m forced to describe these things using concepts they already understand. This does at least two things: 1) causes you to empathize with your child so you can crawl into their head and figure out what concepts they might know that you can use to help then understand; and 2) think about the concept and understand it sufficiently that you can describe it with those concepts.

So, nine years ago, I changed from non-parent to parent. I was fortunate in that I waited until I was more or less finished being an adolescent before becoming a parent. (In my case, it took me 32 years). Hopefully I’ve been good at it. Certainly it’s been good for me. Happy birthday, Cole!

D.C. Days 2 and 3

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Yesterday, we went to Rosa Mexicana for an outstanding lunch before heading to the International Spy Museum, Ford’s Theater, and the National Portrait Gallery/Art Museum. At the art museum they had an exhibit featuring video games over the past 30 years. Needless to say, that was a favorite for Cole, Harper, and me. In particular, it was nice to see games like Pirates! and Bard’s Tale at the Smithsonian!

Today, we took the Metro to the National Zoo. It was hot. Brings home why early American history has a lot of references to federal officials trying to get out of town during the summer. Amy was delighted to see the Panda exhibit. I liked the Amazonia exhibit quite a bit.

Mr. Masson Goes to Washington

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We’re in the midst of a family trip to Washington D.C. Yesterday, we hit some of the monuments – Jefferson, FDR, MLK, WWII, Korea, and Lincoln. I really enjoyed the FDR memorial – which I had not seen before. But, the Lincoln Memorial is still the high point for my D.C. visits. Never fails to choke me up. I was especially happy to see how incredibly stoked my son, Cole, was to see the memorial. His given first name is “Lincoln” which we shortened to “Cole” as a walking around nickname. So, he has a bit of a proprietary interest in The Railsplitter. Glad he finally got a chance to see the place.

They Call Me: “Juror Number Four”

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So, a few weeks ago, I get a jury summons. First, I am a little apprehensive – I knew we were going on vacation around that time, but I wasn’t quite sure which week it was. Once I verified that there was no conflict there, I wasn’t too worried. First, a lot of trials get called off before you go. Second, there is a fair chance of not even getting to the jury box for consideration by the parties. Third, the folk wisdom about such things is that nobody wants a lawyer on their panel.

From the title, I presume you can tell that I cleared the gauntlet of 1 through 3. I called the court the night before and the recorded message told me to report the next morning. Since I work and park downtown, I had one less hassle than most jurors — parking can be a drag. Especially this week – I heard the county had three jury trials. When you report, the bailiff takes attendance and then not too long after shows a little prepared film on jury duty. (I had brought a book, prepared for a lot of downtime, but there just wasn’t much in my case.)

The dynamic in the jury room is initially a little awkward. Lots of strangers not knowing whether to talk to each other or what to say. There is sporadic small talk broken by stretches of awkward silences. Amusingly, the judge of the court we were in had actually turned up on the jury list for that day. He had reviewed the file and had to excuse himself. I wonder if the dynamic would have been different with him in there.

I think we were mostly glad for the informational video they showed us. It was informative and fairly well done, but just a little hokey for my tastes. There is a scene where your host is standing with his suit coat slung over his shoulder. What? Couldn’t find a place to put your coat for the scene?

When it was time to go into the court room, they had us line up. I was the 7th person in line. Turned out it was a criminal trial (meaning 12 jurors instead of 6), so I was in the jury box right away. Voir dire is, again, a social situation nobody really has any background for. The judge goes through some minimum requirements to serve. When that didn’t disqualify anyone, they turned it over to the lawyers.

Ostensibly, the process is to discover and eliminate bias among jurors. And, while it’s used for that, lawyers are also trying to take advantage by framing their case, making you receptive to their view of things, and, if they’re lucky, discover favorable bias. Maybe I’m not that good of a lawyer, but in my opinion, jury selection strategies are mostly voodoo. It might make you feel good thinking you are working to hedge your bets, but I don’t think there is a reliable way of using that process to get far enough into a juror’s head to know how they are going to react to the evidence that comes out in a trial.

Certainly I had a lot of my fellow jurors all wrong. Ones I thought were likely to be sympathetic probably could have been hanging judges in the wild-west, and those I thought would be eager to convict were looking high and low for reasonable doubt.

They asked me some questions. My chronic inability to see just one side of an issue must have allayed some fears. (“On the one hand . . . but on the other hand . . .”) We found out that this was a marijuana case. I allowed as how, left to my own devices, I’d probably support decriminalizing or legalizing marijuana, but on the other hand, that’s not how I saw my role in this process. The General Assembly had ruled on the legality of the action, my job was just going to be to determine whether the State had proved the elements of the crime defined by the General Assembly. In this case – possession of marijuana, dealing marijuana, and possession of amphetamine.

The potential jurors were excused while the court and lawyers discussed something and went through strikes. (Jurors can be stricken for cause and each side gets three peremptory strikes — you can get rid of someone just because you don’t like their haircut.) I was surprised to find that I had moved up from juror 7 to juror 4 and I was on the panel. They got 9 seated during the first round. Two more rounds got us to 12 jurors and an alternate. And, might I say, bless the alternate juror! This guy had opinions and very much wanted to get into the mix, but his role in the process is to watch everything and shut up. Only if one of the original 12 is dismissed can he get involved in the discussions. When the matter was concluded, he was fairly bursting with observations.

The case itself was pretty simple. I got lucky inasmuch as I always wanted to participate on a jury, but, while it is a core civic duty, it is always a big old monkey wrench in your day-to-day life. During one of the breaks on the first day, I got a text message from my wife that she’d been in a car crash. Nothing major – some guy rear ended our car while she was stopped at a stop sign. Rear vehicle damage, but everybody was ok. Being in the middle of a jury trial, I couldn’t do much more than verify that everyone was alright. I also got behind on some work – which isn’t as awful for me because I work in the system; pretty much everyone I come into contact with fully understands about having to be a juror. (I had to cancel being a pro tem judge in one of the other courts.) But down the hall, I heard that there was a murder trial, expected to go a couple of weeks. Ours lasted two days. Getting my jury experience in a two day dose was just about right for me.

Like I said, the case was relatively simple. Some officers had been called to a local apartment complex with a lot of section 8 housing. Place has a lot of problems and, consequently, the police spend a lot of time keeping an eye on the place. I don’t feel like using real names, so let’s just say that Abe had a history of domestic violence with Bea. A restraining order prohibiting Abe from being there was in place. An officer who had seen Abe get into a particular Impala the night of the domestic dispute saw that vehicle at the apartment on a different night. One officer went around to the back, the other officer knocked on the door. Carl answered. The officer around back had a view of the apartment through the back glass door. Carl had been laying on an air mattress in the living room when he got up and walked to the door. When the door opened, there was a strong smell of marijuana coming out. The trespass investigation had just turned into a drug investigation.

Carl said no one else was home. Then he changed his mind a bit and said that Bea was home. Then there was a bit of unpleasantness where Carl was either slow or reluctant to put his beer bottle down and sit on the ground. But, without any force on anyone’s part, Carl was sat down and detained with handcuffs. The officer in the back came around to the front. (These are long apartment buildings and it takes a bit to get from one side to the other.) Bea came out – it was her apartment, and the officers got her permission to search. It was just chock full of marijuana. There were tupperware containers next to the couch with something like 100+ grams, a couple of scales, and a lot of baggies of the sort used to distribute.

It didn’t end up mattering a lot to our consideration, but one of the more disturbing images was a picture of a bunch of weed out on the counter, kind of sitting askew on top of a kid’s doll. Bea had 3 kids living there. Downstairs the odor was strong. Upstairs, it was fairly weak. In a downstairs closet, there was a pair of pants with Carl’s ID. There was another pair of pants in the closet with amphetamine.

Carl’s story about why he was there didn’t really hold up. He said it was all Abe’s. Abe (who initially he had said wasn’t there) must have slipped out at the exact right time when the police weren’t watching the back door and couldn’t see him moving around the apartment.

Anyway, given evidence including the location of the marijuana at the time of the arrest, the fact that the odor was pretty strong downstairs, and the fact that no one else was downstairs and Carl had said Abe wasn’t there and that Carl’s proffered reason for being there didn’t hold up, I felt like the State got beyond reasonable doubt on the possession charge. And, while it was pretty clear someone was dealing and while I thought it was awfully likely Carl was dealing, I didn’t think the State got beyond reasonable doubt. It was at least reasonable to think maybe Carl was just using his dealer-buddy’s stuff without being a dealer himself. As for the amphetamines, I didn’t think the State had enough evidence that they were Carl’s pants. Being in a closet underneath pants with Carl’s ID made it a distinct possibility, but that was about it.

The lawyers were pretty good about keeping on track, but they digressed into Carl’s background and personal life. Didn’t make a bit of difference to me as to whether he was guilty of the charges in question, and I got the feeling that these digressions were pretty irrelevant to my fellow jurors as well.

The lawyers were a pretty good contrast in styles – you had the young deputy prosecutor using the court’s snazzy technology versus the grizzled defense lawyer using his trusty legal pads. Both had their advantages. (I was mentally taking notes about how to improve my own presentations.)

When the case was given to the jury, I knew there was a pretty good chance I was going to wind up being foreman. It’s kind of natural to stick the lawyer with the job. I sort of begged off, suggesting that I’d do it if no one else wanted the job, but saying I’d gladly defer to anyone else who had interest. No one did, so I was foreman.

First off, we had to learn each other’s names; so we sat ourselves in our juror number order and gave our names. Next, I wrote down the three charges and identified the elements in each that were in dispute. (For example, one element was that the item be in question be marijuana – but no one was suggesting that the substance was anything else.) Really what we had to determine was whether Carl possessed the marijuana and/or the amphetamines and, if he possessed the marijuana, whether he did so with intent to distribute. We went around the circle and had everyone offer their thoughts on the three counts.

There was mostly agreement on what had happened, where the gaps were in the evidence, and who was credible and who wasn’t. But, even so, we discovered that the concept of reasonable doubt is awfully slippery. The jury instructions articulate it for you, but since absolute certainty isn’t required and isn’t usually possible about anything, it’s tough to know when that glimmer of a potential doubt grows big enough to cross over to “reasonable.” Still, the jurors I worked with were diligent; no one got mad or frustrated or disagreeable.

Occasionally, we’d talk a relevant point to death – not having persuaded one another as to whether a doubt was reasonable or unreasonable, and we’d sort of stray off to interesting aspects of the case that weren’t, strictly speaking, relevant to the elements in question. (“I wonder why this or that . . . ; Oh well, guess it doesn’t matter.”) When we’d sort of looked away from a point of disagreement for awhile and then returned, we’d found that a juror or two had come around on this point or that. And so it went until we were unanimous on guilty for possession of marijuana and not guilty on the other charges.

We reported our verdict to the court, and then we were dismissed. The judge did a nice job of debriefing us a bit in his chambers after we’d been dismissed; making a point to emphasize how important the role of the juror is and to make sure the jurors knew their participation was appreciated.

I’ve written this all in one take, feeling it was maybe better to get it all out before my memory faded rather than spending much effort making it pretty or fluid. I might go back later and try to clean it up.

Salvation Anxiety

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Fred Clark, in his recent post, gave me a label for an event in my childhood that helps explain why my bland skepticism about religion sometimes gives way to some bitterness. He calls it “salvation anxiety.”

It’s the summer of 1980, I believe, and I am in Colorado, visiting my father and my stepmother. For whatever reason, my sister and I are sent to some sort of Vacation Bible School; probably with our step-siblings. The teacher at this facility tells us earnestly that we need to say some particular words about loving Jesus and accepting him as our savior or we’ll go to hell. I was panicked. I couldn’t remember the words. During a break, I made my sister repeat the words over and over until I could say whatever it was correctly so I didn’t go to hell.

I think back to that day and the person who scared me like that as a child, and I hate her. Now, maybe I misunderstood the particulars of what she said. Maybe she didn’t say that one had to say particular magic words verbatim. But the tactic was as undeniable as it is common: use fear of hell to compel worship of a particular god. Using that fear at all is questionable. Using it on a child is reprehensible.

Says Clark:

Those who have ever been a part of the American evangelical subculture know all about salvation anxiety. It’s why churches have altar calls even when everyone sitting in the pews has already come forward several times in that very church. It’s why evangelical youths re-re-re-dedicate their lives to Christ every time they’re invited to do so. It’s why many of us early on mastered the multi-leveled self-awareness required to pray with utter sincerity while simultaneously gauging that sincerity in the hopes that it will seem sincerely sincere.

This also reminds me of one of my earliest logical/philosophical breakthroughs. I was maybe six, and I was worried about whether I really believed in Jesus; again, because I had been taught that if you don’t believe in Jesus, you go to hell. Then, it occurred to me that, if I was afraid, it meant I believed. Otherwise, why would I be afraid?

Putting kids through that sort of mental trauma is obnoxious.