I just finished serving on a jury. I'd been called to jury selection several times before, but never selected to serve on a 14 person panel (twelve primary and two alternates). I did my usual thing during voir dire and asked a question and spoke up when questioned. My past experiences with jury selection did my cynical attitude about lawyers and the law no favors and I found the lawyers deceptive and self serving. It's all just part and parcel of security theater. My theory was that lawyers don't choose jurypersons who are outspoken and know the difference between right and wrong.
This time was different and it really surprised me. My number was called and I made the mistake of not later buying a lottery ticket. The lawyers didn't pull any of the crap they had in my earlier experiences. In one case you could tell they selectively targeted people for the jury whose skin color matched that of the defendant (and nope, not going to tell you the color because it's wrong regardless of the color and because I don't need your bullshit whining). It used to piss me off, thinking about that incident because these lawyers like to stand up there and preface the voir dire with a little speech about what a privilege it is to be a part of justice, then they go pull that racist bullshit.
In the case where I was picked, both the prosecution and the defense seemed pretty reasonable. No drama or histrionics, no patriotic speech, no racism, and no apparent attempts at deception. It wasn't perfect, and the defense did get a little desperate at some points, but overall the counselors conducted themselves well and it really did a lot to curb my disdain for the legal profession.
Looking back, I think what happened was that more people know the trick about making themselves unqualified for jury duty and a fair number of them probably lied when asked questions about the ability to be impartial. People do this because jury duty is perceived as a drag and an impedance to work and life. While that may be true, it's also true that jury service is a right, a duty, and a privilege. The judge was quite gracious for our panel's participation and numerous times made a point to note the challenges of moving the already slow wheels of the justice system when it's so difficult to find willing jurors.
My experience on this jury panel would prove quite illuminating and humbling. I've generally been pro-police and anti-criminal. My position on the police has become more subdued with the increasing knowledge of law enforcement malfeasance and incompetence, but I'll always carry disdain for crime and sympathy for victims. If you're pro-criminal, what's wrong with you? And don't give me that bullshit argument about [insert whiny voice] "Oh, but one person's criminal is another's freedom fighter" because that's not a discussion about crime, it's a discussion about war and in war there are no rules. Violence is not ok from any quarter within a civilized society, and it's indefensible when an unprovoked aggressor attacks with intention to steal, murder, rape, or injure.
I'll share my experience and perhaps it may be useful to someone else.
Opening Statements
After receiving basic instructions to not discuss the case with anyone outside the jury and court, the proceedings begin with the defense and prosecution each making a statement. These are fairly brief and outline the general intentions of each side. The prosecution explains there was a shooting and someone died and we'll see that the accused is at fault. The defense says we'll see inconsistencies in the testimonials and flawed police procedures that will show the accused is not guilty.
Witnesses
The prosecution starts calling witnesses. We hear from the victim's family that was present during the incident, the paramedic that first tended to the fallen victim, the coroner, and one of the detectives on the case. The defense cross examines the witnesses brought by the prosecution.
This was interesting and it's clear that crime and law are not as obvious, simple, or clear as in a typical Hollywood movie. There are indeed some inconsistencies in the testimonials, and the detective was particularly unprepared. He did not have key facts in order and has very little evidence to discuss. There's no murder weapon, no shell casing matchable to the bullet, and few meaningful forensics of any kind. We later learn that it's standard procedure for this department to send two detectives, one for forensics work, and another (the one we hear from) handles securing the scene and witnesses. The prosecution after the trial would explain to us that the other detective was an even worse presenter than the one put on the witness stand so he wasn't called at all! Ye gods, this is some sloppy stuff.
Most of that doesn't matter because the case is largely decided, however, by one key witness: a young lady that at the time of the incident was eleven years old. She presents well, is reasonably articulate for her age, and doesn't try to lie that we can tell. She had overall the best view of the incident and confirms the defendant fired a pistol shot at the body of the victim. It is, of course, only a verbal testimonial, and there's a dearth of forensic evidence to prove or disprove it, although the coroner confirms the result.
The most articulate presenter of the witnesses is the medical examiner, Merrill Hines. He clearly explained the cause of death and described how he identified the entry point of a bullet in the victim's chest and how it traveled across the body to finally lodge in the victim's left arm, where he retrieved it during the autopsy. That's a lot of damage made by a hollow point bullet. Spencer Nichols likely died within seconds.
With Hines's testimony, there's no doubt about loss of life, which endorses the potential charge of murder. Multiple other witnesses declare the defendant as the shooter. The defendant takes the fifth (fifth amendment, which states he has the right to not say anything), so we do not get any input from him.
The defense calls the defendant's other girlfriend of the time forward, but as she was not present during the incident, this is just a move by the defense to perhaps make the accusers look aggressive and potentially warrant a self-defense argument. We find later that never happens because the defendant doggedly contends "I didn't do it" which voids a self-defense position.
Deliberation
I feel that when a defendant takes the fifth, the burden is harder on the jury. It's hard enough with conflicting views of what happens in a crime (some intentional, some unintentional) but now the jury is responsible for making a decision to help achieve justice, and they do so with half the information. It's easy to question the degree of confidence in the verdict.
But this case showed me why sometimes the defense may have their client take the fifth. I always thought it was because they didn't want the client to lie under oath because if that's revealed to be the case, it can make things worse for the defendant. But sometimes it may be that the defendant is unable to articulate his or her case well and can hurt the defense. Perhaps in this situation it was a little of both.
The jury reviews everything presented in the case and ultimately votes "guilty." It is not a comfortable decision for anyone. The panel is composed of a very diverse group including as many as six races, both younger and older, and both men and women. Most of us have children of our own and we're quite cowed by the realization we're going to commit a young man to prison.
But it's our duty as a jury to exercise the law, and it's the law's job to protect our society. Given what we have, we go forward with the decision. Despite the flaws and sloppy parts of law enforcement, the key charge of murder is straightforward and the scenario presented by the prosecution convinces us the charge is correct. The defense didn't have much to go on and pointed at a lot of ancillary items but none of them convinced us the prosecution was incorrect.
Victim Interviews
The judge reads our verdict and the trial proceeds to the next phase: punishment determination. The defense and prosecution are both able to bring forward additional witnesses to testify to the suffering they've endured as a result of the incident. In addition, we're given additional information about the defendant's past record and we learn this is not his first offense and also not his first violent crime. We hear from a correctional officer who was assaulted by the defendant in during a past incarceration.
The defense identifies that several of the past offenses were non-violent and appeals to our sense of compassion and asks us to use common sense and give the defendant a chance. The prosecution leans heavily on the multiple past offenses and asks how many chances does someone need. Prosecution wants to levy a life sentence.
Punishment
The jury returns to the jury room to decide on the punishment. Because of the defendant's past crimes, the usual prison duration range of 5 to 99 years or life, has changed to 25 to 99 or life. We have four options:
- Life with a monetary fine
- Life without a fine
- A number of years of the jury's determination, plus a fine
- A number of years of the jury's determination, without a fine
Again, we're all pained by the idea of sending a young man away for life. The defendant is only a few years older than my own son.
Still, as the prosecution reminded us, the victim and his family have already been given their own life sentence. Murder is a crime for which there is no recompense. If you steal, you can return an item or pay the owner back. If you commit an assault that leaves no permanent injury, the victim can heal and you can improve and be less of an asshole. If you commit a murder, you cannot bring a life back.
Your Record Precedes You
The presence of prior offenses is a huge factor. I myself tell the jury, "The jury that had license for leniency was several sentencings past." This is a recognition that for first offenses, the law often will afford some leniency but if someone has proven multiple times that he or she haven't gotten the memo about playing well with others, then the punishment needs to reflect that.
After discussion, we decide on the life sentence. We also agree to waive any fine since a fine is pointless and the defendant isn't going to have the capacity to pay it.
We are universally grateful the sentence comes with the opportunity for parole. Although the defendant will be fifty-eight when he's eligible, there is still a chance for him to commute his sentence and have some life outside prison. But even then it's still difficult. Some of the jurors were in tears about it.
It's Easy to say "Fry the bastard" it's Harder to Pull the Trigger Yourself
This was a decision that weighed heavily on all of us and I'm sure we'll be thinking about it for a long time. And this is why jury duty is something we should all experience because it can teach us so much. When I watch news about a crime, I'd always been the guy that said "Fry the bastard" and as brash as that sounds, the reality is criminals are a problem that need to be addressed. Then on that jury you have to stand behind the decision and it becomes more personal and your heart reminds you that the defendant is a human being and to be compassionate. Your brain however, reminds you that a criminal has harmed others and it's your responsibility to perform your duty in executing the law and thereby protect other law abiding citizens.
One of the thoughts we discussed in the punishment phase was how horrible we'd feel if we tendered the minimum sentence and then after release the defendant went and killed someone else.
As difficult as this process was, we agreed on the decision and we'll stand by it.
Jury Service Concludes
After the sentencing is read by the judge, she releases the jury from service and our responsibility of non-disclosure but asks us to return to the jury room and wait for a bit. She comes in to visit us, again very thankful for our service. This judge, Nikita Harmon of the Harris County 176 criminal court, treated us well. She kept order in her court, ensured proper process was followed, and did a lot to keep the jury comfortable. She made sure we had breaks and snacks, lunch was provided, and never tried to influence our decision.
The defendant has the opportunity to have punishment determined by the jury or the judge and it's possible Judge Harmon might have given a lighter sentence than we did. We, the jury and the judge, all felt for the defendant and hope he's able to improve his situation and earn that parole. The judge said she'd certainly relay this to the defendant.
Then the lawyers for the prosecution and defense came to talk to us. They asked a few questions about how we came to the decisions we did and asked if we had any feedback. We told them the police need to be better and they agreed and said the detective on the stand has already been advised that he needs to be prepared or in more ambiguous cases some bad guys are going to be walking free. It was here that we also learned about the other detective and that he wasn't called because his ability to testify was not good.
No one seemed to have a problem with our verdict and punishment, though the defense did say it was the first time he'd ever seen a jury not call for more evidence to be reviewed and to not ask more questions. I asked him about a point he was trying to make during closing statements about how the prosecution had indicated the defendant arrived at the scene of the crime in a convoy of three cars, but surveillance cameras showed that only the defendant's vehicle later left alone. During the trial prosecution showed the entry video of three cars arriving, but the exit video was not played for us.
"Then why didn't you ask for it," the defense asked me in response. Time was up and the lawyers all had to go back to the court room, but here's my answer to that:
- First, showing it to us was your job, not mine
- Second and more importantly, even if the defendant didn't arrive with an armed posse as the prosecution indicated, that's an ancillary element. The posse, real or not, didn't kill Spencer Nichols, the defendant is the one being charged
With that, the jury parted and my time as a juror was done. I liked our panel. Everyone was friendly and seemed of sound mind and intelligence. After a long stretch where I'd been cynical about the law, this experience brought a little hope. I'm still cynical and still think there are some evil self-serving lawyers out there, but I have a little more faith in our legal system.
Closing Thoughts
The law is sloppy, imprecise, and the world's best. Yes, even with all it's problems, it's the best because it is centered on the tenet that you are innocent until proven guilty. This is critical and goes hand-in-hand with our foundation of freedom. The founding fathers realized that crime is a dirty business and there are people who will lie under oath, there are lawyers that will resort to deception, there are judges and juries that can be threatened or bribed, and that in the balance sometimes a criminal will get away with a crime. But this is preferable to the worse possibility, that an innocent person can be wrongly be declared guilty.
It became clear to me during my jury service that despite the presence of police, judges, and lawyers, it is ultimately the citizens that execute the law. That's an awesome power and responsibility. We should take it seriously and not treat it like a nuisance. There's probably room for a reform argument about how to make jury service even more accessible, but that's a discussion for a different day.
