The Juror Is Out

I had the following dialogue at least a dozen times in the beginning of July:

ME: I have to go downtown for jury selection on the tenth.

OTHER PERSON: Oh, they’ll never pick you. Lawyers never pick jurors with too much education.

I’ll be honest, I assumed the same thing, and I guess I can’t blame anyone who would knock a philosophy PhD student off a panel. I mean, would you want to have to convince some know-it-all punk whose job it is to nitpick and find holes in any argument? And while it bugged the nobler side of my nature, which really wanted a chance to do its civic duty, there was a side of me that really hoped the conventional wisdom would hold up. I had just finished teaching an intensive summer course at Temple, I still had a month to go in the other course I was teaching, I had a number of personal and academic projects to catch up on (including this site), and Pattie’s and my vacation in San Diego was fast approaching. So somewhat smugly, I showed up at Philadelphia’s Criminal Justice Center and figured I’d collect my nine bucks and be on my way.

Whoops. I must have been really convincing during the voir dire stage, because despite my education, despite my having been mugged last November, and despite having had some relatives who’ve had run-ins with the law, I found out I was accepted for the jury, and that I would start hearing a rape case on Thursday, two days later. All of a sudden, I had to make plans to cover the two class sessions I was guaranteed to miss, to say nothing of the fact that my plane left for San Diego exactly one week after the trial was set to start. The judge had said she expected the trial to take until Tuesday, which left only a one day margin for error.

Now, like I said, I was a little annoyed by this, but the larger part of me was excited about the chance to use my reasoning skills to serve the community. And when I arrived at the courthouse the first day, I quickly realized that my fellow jurors were intelligent, serious-minded people who took the responsibility seriously, as irritated as they may have been to have their lives disrupted by it. I was feeling pretty optimistic about our chances to resolve the case fairly, intelligently, and within the expected time frame. Then the trial started.

I may be biased by this experience, but I can not think of a harder type of case to decide than a rape case like this one, where both parties acknowledge sex took place and the crucial issue is whether or not there was consent. It’s not a question of looking at facts and determining if those facts are valid evidence for a particular conclusion, like ‘Is so-and-so’s alibi valid’ or ‘did so-and-so really have the opportunity to commit the crime.’. Ultimately, it boils down to a she-said/he-said (or a she-said/his-lawyers-said) situation, where your decision ultimately rests on your assessment of the alleged victim’s credibility. And that means that the ideal defense strategy is an all out effort to destroy that credibility, in a scene right out of every rape-related movie of the week. The defense made every effort to imply that the alleged victim had been flirting with the defendant for weeks, that she had behaved suggestively the entire night of the incident, that she had invited the defendant to her room and that the allegation of rape was a hastily-concocted attempt to save her reputation with her friends and boyfriend. It was a classic blame-the-victim maneuver, delivered by a female defense attorney whose smugness and hostility made me want to get out of the jury box and slap her. At the very least, I wanted to deliver a guilty verdict to show her that This Would Not Be Tolerated.

There was only one problem. Remember what I said about the case boiling down to an assessment of the alleged victim’s credibility? Well, I had major problems there. Her testimony conflicted in major ways with just about every other witness’ account of events before and after the incident. Now, my study of history and of journalism has shown me that there are almost always inconsistencies in different accounts of events — heck, when my friend and I were mugged, we remembered different things and different parts of the event only a few hours later. But in this case, the inconsistencies were major, and concerned crucial elements of the alleged victim’s testimony, details that were so significant it’s hard to imagine how one might forget or confuse them. The only conclusion I could come to was that the witness was lying about certain things.

Now, the judge’s instructions to the jury are quite clear — a juror can believe all of a witness’ testimony, or part of it. It’s not required to assume that because a witness lied in one instance, he or she was always lying. And it was plausible to me that the alleged victim was telling the truth about the alleged crime and lying about other significant elements in a misguided attempt to make her testimony more believable; in fact, that’s what I considered the most likely explanation. But then there’s the other part of the judge’s instructions — the definition of ‘reasonable doubt.’ We throw this phrase around all the time — Lord knows I use it often in my logic and critical thinking classes — but I don’t know if I had ever heard the official definition. A ‘reasonable doubt’ is one that would cause a person to pause or hesitate before making an important decision. Well, judging by the tossing and turning I was going in bed thinking about this case (and let no one tell you that jury duty is a walk in the park; besides the effort required to listen to and retain testimony — since you can’t take notes or reread the transcripts — the sheer weight of the responsibility is draining beyond belief), how could I not say I had reason to pause or hesitate? Sure, I had concluded that it was most plausible to believe that the alleged victim was lying about some things but truthful about other things, but the idea that she was lying about the whole thing was plausible, if unlikely. Thing is, I wasn’t allowed to say that the defendant was probably guilty. The presumption of innocence means that it had to be all or nothing. And I fully support that standard, even if it means that sometimes juries will have to let a person they believe probably committed a crime go free.

However, for a small but significant minority of jurors, there was no doubt in their mind that the defendant was guilty. The scenarios that I found to be plausible enough to raise reasonable doubt weren’t at all convincing to them. And there was no convincing these people otherwise — they had the courage of their convictions, and I applaud them for that. The notion of some kind of compromise verdict that would let us all get back to our lives was raised, and quickly dismissed. Moments like that made it a trying but ultimately heartening experience. The only problem is that our deadlock meant that the jury deliberations took far longer than anyone expected — and it came time for me to fly to San Diego. The other jurors were escorted out of the courtroom while I was left alone with the judge, who thanked me for my effort and dismissed me from the panel. I was free, but I felt an overwhelming sense of disappointment and failure that I have not been able to shake. I so desperately wanted to finish what I started, to resolve the question before us one way or another. Instead, I was being told that life, and the deliberations, would go on without me. I’m trying, now, to retain the positives of the experience; my faith in the possibility of a citizen democracy is restored, and my belief in the importance of the Not News project is stronger than ever.

About Dave Thomer

Born and raised in Philadelphia. Studied philosophy at Fordham University in the Bronx, where I made many great friends and met my wonderful wife. We moved back to Philadelphia, where I studied philosophy some more and became a teacher. Online and off, I'm looking for ways that we can be better citizens and build stronger communities.

August 1, 2001 @ 12:00 am

Life in Practice