Category Archives: JURIES

QUESTIONS?

Every once in a while, I see a judge invite the jury to ask questions of the witness after the lawyers are through.  This is a rare but legal opportunity for jurors to find out more than was presented to them, and to clear up any confusion.  It helps the lawyers see where the gaps are in their presentations.  One seasoned lawyer joked that it helps keep the jury awake.  It is not allowed in many states, but the federal rules allow for it, and there is a record of it being used as far back as when Lincoln practiced law.

It is done very carefully, starting with the judge telling the jury the purpose and scope of their questions.  Juror questions are limited to matters that come up during lawyer questioning – the purpose is not for them to investigate the case, but simply clarify what was presented.  Jurors are invited to write down any questions they have anonymously. The judge then speaks alone with the attorneys to see which questions are objected to, and whether any wording should be changed.  The judge then asks the approved questions directly to the witness, who responds facing the jury.  Then the attorneys are allowed to ask any follow-up questions of their witness.  Jurors are not allowed to discuss any questions they had that were not allowed.

In a case of a workplace accident, the jurors had questions about prior worker training and experience, the exact location of items in the accident area, and even the mental health of the witness.  It was interesting to see what jurors had on their minds in the middle of a trial.  It certainly interested the opposing counsel.  Through their trial faces gleamed a bit of emotion.  On one side, there was a hint of triumph.  On the other, a bit of chagrin.  But the jury members looked relieved and satisfied to have their questions addressed.

JURY INSTRUCTIONS

A little-known fact that disconcerts a lot of new jury members is that they do not get their jury instructions on the law until AFTER the trial is concluded.  A potential jury member was complaining about this to the judge, who explained the following.

“If we instructed you on the law before you listened to the witnesses and saw the exhibits and determined the facts, there is a danger that you would be biased by your foreknowledge of the law.  You would have a preconceived mental framework with boxes to check off, and you may unwittingly seek out information to be able to check off those boxes.  And that could prejudice the defendant’s right to the presumption of innocence.

“What you are to do instead is first, with a completely open mind, listen to the testimony, consider the credibility of each witness, and the weight to give them, review all admitted exhibits, and listen to counsel’s arguments.  Once the trial is over, I will instruct you on the law with a set of jury instructions that you will take with you to the jury room.

“This may not seem intuitive, but we are asking you to apply the law to the facts that you determine, and not the reverse.  We are not asking you to apply the facts to the law.  And that is why we start with the facts of the case, and end with the law.  As jurors during your deliberations, determine what you decide was proven beyond a reasonable doubt as the facts surrounding the incident, and then apply the law as you are instructed.”

The next question, which is hard to answer because it must be answered blindly: “Will you as a jury member have any trouble applying the law to the facts, if it turns out, after trial, that you discover the law if not what you thought it was or what you think it ought to be?”

I have heard a few prospective jurors just answer, “I don’t know – it depends on what the law is!”  And they are frequently struck from the jury.  Wouldn’t it be nice if we could strike other people from decision-making power based on their biases?

 

CAUTION: THE SUSPECT CONFESSED

I came across a new proposed jury instruction last week. It is a defense proposal to instruct the jury on how to view any admissions the accused verbally made, usually to police officers, regarding the alleged crime. Most often, admissions of guilt or confessions.  As a reminder, the jury determines the facts of the case based on the evidence presented during trial.  They then apply the law based on their jury instructions.  That is how they reach their verdict.  So the exact wording of each jury instruction is very important.  Here is the actual wording:

“Testimony regarding the oral admissions or statements of the defendant unfavorable to his interest are to be viewed with caution, for he himself may have been misinformed, or may not have clearly expressed the meaning, or the witness may have misunderstood him, or it may be that the witness who testifies to the admission, by intentionally or inadvertently altering a few of the expressions really used, gives an effect to the statement completely at variance with what he did actually say. On the other hand, if you can say from the evidence that the alleged admissions were clearly and understandingly made by the defendant, that they are precisely identified, and that the language is correctly remembered and accurately reported by the witness, you are authorized to consider such admissions for what you deem them to be worth against his making them, but in reaching such a result you must, for the reasons given, proceed with caution.”

A lot of ideas to throw at the jury to discount an admission:
He may be mistaken.
He may not be clear in how he speaks.
He may have been misunderstood.
The witness could change what he said on purpose (be lying).
The witness could change what he said on accident (maybe forgot).
These changes could make the witness misstate the admission.

So if and only if:
The defendant was clear.
The defendant understood what he was saying.
The witness is precise in repeating the statements.
The witness remembers correctly.
The witness reports what was said accurately.
Then and only then, you may take them for what they are worth (hint hint – they are not worth much!)

I would venture to guess that most people reading this jury instruction, if they can get through the labyrinth, would emerge feeling they had been fed a reasonable doubt as to whether they can rely on a confession to convict.

ALFORD PLEA

There once was a case called North Carolina vs. Alford.  People in the legal field are very familiar with this case and its consequences.  A person who wanted to avoid the death penalty pled guilty to murder, but then appealed his own guilty plea.  He claimed he only pled guilty to avoid the gas chamber, and wished to maintain his innocence on the record.  Basically, he was saying he didn’t do it, but he knew he would get convicted.  Long story short, people now have the right to make an Alford Plea – officially pleading guilty, and being sentenced, without admitting to having committed the crime.

When law students and others first hear about this concept, it is a little puzzling.  Why would you plead guilty to something you didn’t do?  There is only one good reason I can think of – because the evidence the government has against you is so strong that you are pretty much guaranteed to lose at trial.  And you want to take advantage of some kind of offer that the government is making you in exchange for your pleading guilty.   In essence, although you did not commit a crime, the weight of the evidence is against you.  So to avoid even more dire consequences, you accept some kind of deal, in which you plead guilty to a crime you did not commit.

The underlying concept is even stranger and more baffling, but there is no remedy for it.  You have the right to a fair and impartial public trial before a jury.  You have other rights, such as the right to counsel and the right to remain silent, to hear and witnesses who testify against you, and to have witnesses brought on your behalf.  But what you don’t have is the right to the correct outcome.  I cannot stress this enough.  You do not have the right to be exonerated and released, even if you did not commit the crime.  You have the right to due process – the procedures must be followed.  But you can, legally, be convicted of a crime you did not commit.

Let’s take an Alford Plea case and see how this plays out.  Say you are walking to work, about a mile and a half, to the same job you have had for some years.  You have your backpack with your lunch and your work clothes, and a baseball cap on to shade your eyes as you walk in the sun.  You are sweating a little.  You want to get to work on time, and your youngest kid kept asking you to pick her up for one more hug goodbye.  You are not a US citizen, but you have it pretty good.  You have a steady job, and you can support your family in a simple way.  You walk with headphones on, and a bit of a smile.  Just a day like any other.

Around the corner, unbeknownst to you, my friend, there is a drama playing out.  In broad daylight, while another man sits in his living room,  his basement window breaks.  Someone is going to force their way into his place!  Such a scary moment for anyone, to be inside our own home and have someone break in and maybe rob and even kill us.  We all want to be safe in our homes.  The homeowner runs downstairs to confront the intruder.  But the man at the window must have heard his steps, because he has stood up and is starting to run away.  He has a backpack and a baseball cap on and he looks – well, the homeowner isn’t sure if he saw his face but maybe he slightly turned around and anyway he had on a dark jacket, a backpack and a baseball cap.

The cops cruise the neighborhood and a couple blocks away who do they see but – you.   You don’t hear the sirens with your music on.  You are bopping along to the beat, thinking about your willful little girl who demanded one more hug.  Haha, she is just like her mother.  A strong character.  A good heart.  You smile again.  You are walking briskly to the beat uphill toward your job.  You have to get to work on time.  The cops seem to come out of nowhere and you are face down on the ground and being cuffed.  You didn’t hear when they told you to freeze and put your hands up.  So they are being rough with you, thinking you were resisting.  What is going on?  What is happening?  Oh my God.

The cops take you in handcuffs to the homeowner’s house.  They tell him, we caught this guy sweating and half-running a couple blocks from here.  Is this him?  Is this the guy?  We think this is the guy.  Right?  It’s the guy.  The homeowner sees you, really sweating now, already in cuffs, with your backpack and your dark jacket that one of the cops is holding.  It’s you.  You are the guy who tried to break into his house in broad daylight.  You are the criminal we all fear and hate.  Thank God the bad guy is caught and we are safe again.  Thank God.  Yes, that’s him, the homeowner says.  That’s him.  It was him.

You are taken to jail and booked for criminal trespass.  That charge is up to a year in jail and a $5,000 fine.  If you don’t hurry up and plead guilty to that, they may also end up charging you with residential burglary, which is a Class B Felony and carries a maximum penalty of ten years in prison and a $20,000 fine.  You are not going to show up for work today, and your boss is going to be worried about you, because you always show up.  You do a good job, and your boss will never believe that you stopped on your way to work to break into a house in the middle of the day.  But what if a local jury does believe it?  Do you want to take that risk?  It is up to you.

You think about it.  You are sitting in jail because you don’t want your family to use their rent money to bail you out, and your boss says if you can get out within a couple weeks he will hold your job for you.    You think about it.  You have a lot of time to think about it.  Because you are in jail, away from everyone, not working, not having dinner with your family, not walking to work a couple minutes late – what if you had left on time?  Would any of this have happened?  But it did, and now you think and think again.  What is the best thing for you and your family?  Trial and a possible acquittal?  Yes, but at the risk of ten years in prison followed by deportation?  Or take a misdemeanor deal and be done with it?  But then you are admitting to something you didn’t do, and you will have a record.  Think and think again.

Your lawyer comes with bad news after interviewing the crime victim.  He was unshaken, completely convinced and ready to testify that it was you, and only you, who tried to get into his house.  The lawyer tried to create some doubt – he reminded him that he never saw your face.  That your dark jacket and baseball cap and backpack are so common.  But the homeowner just cut him off and said he knows what the lawyer is trying to do and he isn’t going to fall for it.  He knows it was you and he will testify under oath that you turned around – he saw your face – he would know you anywhere.  He is happy to testify – he is looking forward to it.  It pisses him off that someone would break his window in broad daylight and he wants you punished.

The lawyer lays out the options once again:  We can argue to the jury that the way they identified you was wrong – they shouldn’t have brought you to the house but should have done a real line-up, but the guy is really convincing.  I think the jury will believe him.  We can bring your boss in to say he doesn’t think you would do that, and that you were due at work. But your boss wasn’t there – the homeowner was.  The prosecutor sat in on the interview with the homeowner, and he says he is even more confident now that they will get you on the felony residential burglary, a deportable offense.  They plan to file it within the week, unless you plea out to the lesser charge.

The lawyer tells you he hates to say it, but you may be found guilty in a fair and impartial trial.  the jury members might believe the police and the homeowner, and really think you did it.  They might be convinced that you did it, beyond a reasonable doubt.  It isn’t really about whether you did it.  It is about whether the jury believes you did it.  They get to decide if the government proved their case.  So you should probably very strongly consider making an Alford Plea.  You will be saying that you didn’t do it, but you believe you will be convicted anyway, so you opt to plead guilty to a lesser charge.  It is up to you, but you need to decide pretty much right now.

This, my friends, is an Alford Plea.  Yes, you have the right to a fair and impartial trial.  But you do not have the right to a fair outcome.  So it is absolutely legal for you to be convicted of something you did not do.  And it is legal for you, in wishing to avoid the dire consequences of that, to plead guilty to something you did not do.

 

POKERFACED JURYMEMBER

Some decades ago, when I was a wee child, my mother came home from her jury duty with a look of triumph.  “I got them!” she gleefully told us.  She had the vital information that got a gambling ring busted up, or at least stopped some friends playing for money.  It was only because of her, she crowed, that this illegal den of thieves was brought to justice.  The dirty rats!  They got what they had coming to them.

It all started when she herself was but a wee child, innocently playing rummy with her siblings, and her religious uncle stopped by.  He was shocked that the children were allowed to do the devil’s work and play with cards.  He scolded my grandmother in a mournful, dour tone and shook his head with deep sorrow at their early steps toward hell fire.  Grandma was too taken aback to speak.  But as soon as the uncle left the house, she sat all the kids down in a circle and told them with firm lips, “It’s time I taught you kids how to play poker!”

And she did.  She taught my Mom and the others how to play Five Card Stud and Draw Poker, Texas Hold ’em and Poke-Eyed Pete, among other variations known and unknown.  The uncle went back to his missionary work, and I never did hear whether my Grandma was able to set up the confrontation in which her kids played poker in front of one angry man of the cloth.  But the poker lived on, and my mother never forgot it.  She also never forgot that gambling for money was a sin.  We were only allowed to play for chips – a strictly enforced rule.

Fast forward from Mom’s childhood to mine.  Mom comes home ecstatic because there were eight men sitting around a table with a deck of cards.  They claimed they were all playing cards, with no dealer, and no money involved.  Just a friendly game.  They were not gambling!  But wait just a goll-darned minute.  They made the mistake of mentioning they were playing Poke-Eyed Pete.  Maybe they thought the game was so obscure that no one would know it.  But they underestimated  my Mom, the innocent housewife on the jury, whose face masked triumph.

The lawyers didn’t say anything during the trial about the game itself.  There were no expert witnesses.  The whole case may have revolved around a monetary fine.  I just don’t know.  But what was making my Mom so happy was that once the jury went to deliberate, she was able to provide the vital piece of missing information that the prosecutor hadn’t.  Poke-Eyed Pete takes 7 cards per player.  There are 52 cards in the deck.  There were 8 players claiming they were all playing, having a single trial as co-defendants, hoping to get off.  But they could not have all been playing.  You can do the math.  They had a dealer!  Guilty as charged.  Case closed.

Years later, when I was in law school, we had some interesting discussions about the role of the jury members in deciding the “facts” of the case.  Jury members are presumed to have some general knowledge about the society in which they live (often referred to as common sense) but what if they have specialized knowledge?  I saw a case reversed because a police officer’s spouse kept sharing “inside information” with her fellow jury members that was not presented during the trial.  The jury was not allowed to rely on a jury member’s testimony during deliberations.  so their verdict was nullified.

I tried to bring this up to my mother, but she was adamant about her poker win.  Those dirty rats were gambling for money, probably using their poor wives’ grocery money, and they deserved to be punished.  “I’m no expert but I can tell you it takes 7 cards each to play Poke-Eyed Pete.  That’s just the fact of the matter!  Those guys were lying through their teeth!  And I caught them!”  She still beamed with satisfaction, after all those years.  And I think Grandma may have been beaming down on her.  And Uncle too, for two different reasons.  Then again, who knows?  Maybe the two of them are sitting somewhere playing poker right now.

I would like to hope that modern juries have a better sense of the rules of evidence, and what they are allowed to consider, and how careful they must be not to replace the admitted evidence and testimony with their own unfounded (or founded) theories and leaps of imagination.  Or even with their own solid expertise.  But in my secret heart, I do believe that some jury members, perhaps subconsciously, have such strong opinions about what outcome they want, that they may work backward from their foregone conclusion to their ruling on the facts.  And when jury members do that, the case outcome depends on the luck of the draw – and defeats the purpose of having such strict rules of evidence, and the right to cross-examine, in open court, any witnesses.

LOOKING IN THE EYE

Many years ago, a defense attorney told me that you can tell what the verdict is by whether the returning jury looks the defendant in the eye as they file back into the courtroom.  She claimed that due to our discomfort in judging people, and especially in condemning them, we cannot bear to look at the defendant if we are going to find them guilty.  We need to maintain a safe distance from the person.

With a not-guilty verdict, it is as if each person wanted to come in and say, it’s okay – you are still one of us.  We have not condemned you.  We have not judged you a criminal.  You are innocent and free.  You still belong to the family of humans who share this society, and its values.  I have seen many jury members give an unconscious comforting nod or smile directed toward the defendant as they file out to return a not-guilty verdict.

I have been amazed through the years at how fully accurate the lawyer’s predicting tool has been.  In fact, I can only remember one jury trial that did not follow the pattern.  In that case, there was overwhelming evidence of the defendant’s cruelty, and the jury members each came out and looked straight at him, quite intentionally, before they took their seats.

My theory is that they wanted to  show their own distance from his actions, as being so reprehensible.

It is as if they each said in turn: Yes, I have judged your actions.  And I look you straight in the eye to tell you that I have no remorse or guilt in so judging your actions.  You were absolutely wrong and I want nothing to do with your actions.  I refute them and reject them. And I want you to know the great distance between myself and your acts.

I see you, and I judge you.  And I find you guilty as sin.

JURY NEUTRALITY

It is a sad adage that for many women, their greatest fear is to be raped and killed, while for men it is to speak in public. What a chasm between the experiences of the two genders, both in perception and experience. Of course it is more complex than that, and every sentient being has a right to their “I” position – their personal point of view. But that right is theoretical in many settings, because to the detriment of us all, the male gender position has been considered to be neutral, objective, and correct. I offer one example here – a jury trial on domestic violence harassment. Here is the basic story, without confidential identifying details. Sadly, it is such a common story that I don’t have to worry about someone calling me out on publishing about it. It happens every day of the week.

A man asks a woman on a date. He is charming, funny, and seems genuinely interested in pursuing a serious relationship. He follows up by contacting the woman multiple times a day. He tells her she is his princess! After a few days, he gets mad because she went out with a girlfriend while he was busy. She says she won’t see him again, and he apologizes and says he was way out of line. A few days later, he starts to obsessively grill her about any past dating she may have done. She breaks up with him. He tells her she is a fat bitch. He tells her she is a filthy whore and he feels dirty because of touching her.   He tells her she is a fucking cunt. Then he starts apologizing. He tells her how sorry he is. She stays strong and repeats that she is not going to go out with him again.

The man calls her dozens of times within a single day, calling and texting, constant contact. At one point he sends her 50 texts in a single hour. He is sorry – he needs to explain, just give him a chance, if she would just meet with him once and hear him out then he will be okay. He has to talk to her! He HAS to!! She ends up agreeing to talk one last time – but based on her fears, just on the phone. On the phone, he is sinister. He warns her that she doesn’t know who the fuck he is. He is a secret agent, and has access to her personal information. He reads off her full name, her address, her place of employment, prior residences, and where her family lives. He tells her he suspects that she has talked about him to the authorities and he is going to come over and cut her left hand off. She tells him she is going to hang up and call the police, and he laughs and tells her he is the police.

There is such ample proof that at the end of the trial, the defense admits that the facts are not in dispute. It all happened, and he even acknowledges that the woman was afraid at some point.  But he argues in closing that her fear was not proximate, perhaps not a direct result of the alleged threat. As the jury later took it, the argument seemed to be that she was wrong to feel afraid. A “reasonable person” would not have been afraid.  Oh, and by the way, they were not really dating, which would make it domestic violence.  She just THOUGHT they were dating.

This story is not about the defense attorney, who happens to be one of the kindest, most fair-minded and thoughtful lawyers I know.  He did not cause the situation, he cannot control it, and he cannot cure it.  He is certainly not advocating for violence against women.  He is simply defending his client under the rules of the court.  This story is about a larger societal issue that goes beyond what any individual lawyer argues.  I want to examine the unspoken, usually unexamined assumptions that juries rely upon to make their decisions.  That is what I am trying to bring to light.  And these prejudices are not at all limited to the judicial system, but stream through every facet of the dominant culture.

During jury deliberations, the jury first tackles whether there had been a dating relationship.  Let’s see.  They met on a dating website, they talked several times, then they went on two dates.  They kissed goodnight, and made further plans.  They talked romantically on the phone for hours over many days. After he threatened to amputate a body part, she naturally declined to date him further.  Sounds like dating to me.  Very bad dating.  But dating.  Okay?  No, because one of the male jurors points out that in HIS world (the objective and correct one) “I don’t know about YOU guys, but I am not dating someone until we have gone out three times!”

Several male jury members jump in to testify and act as experts, replacing their version of the facts for the testimony of the victim, although the jury agrees they found her credible, and the defense did not dispute her version of the facts.  They also replace the law as given by the jury instructions with their personal opinions.  They seem to feel quite confident that this is totally reasonable behavior.   And based on the way our society works, it is fairly reasonable for a man to presume that his view of things is objective and correct.  This view is constantly bolstered throughout our society.

Back to the set of facts presented at trial.  Is the above set of facts a case of harassment, which means a direct or indirect threat? In our local law in relevant part ,a person is guilty of harassment if the person “knowingly” threatens to cause bodily injury immediately or in the future, or maliciously to do any other act which is intended to substantially harm the person threatened with respect to his or her physical or mental health or safety; and the person by words or conduct places the person threatened in reasonable fear that the threat will be carried out.

“Knowingly” is defined in relevant part as having information which would lead a reasonable person in the same situation to believe that facts exist which facts are described by a statute defining an offense. This is a statement almost impossible to digest, so as usual, the jury instructions break it down further and apply it to the specifics on this case. They state that to harass means that the speaker of the threat “knows” that a reasonable person would feel afraid of the threat.

Is there a question of whether the above scenario meets the threshold for harassment? Is there a reasonable woman who would question whether it is harassment? Is there a reasonable person? I am writing this article because the answer is yes. There is a reasonable person who would doubt this, and that reasonable person, the standard issue “reasonable person” is a man. Even though this state has changed the wording in the law from reasonable man to reasonable person some years ago, in practice, a reasonable person is still a man here and now. And we all live with the consequences.

Jury deliberations started with several men on the jury joking and laughing mockingly at the defendant. Who did he think he was? “What a loser! Boy, if he told ME he was gonna cut off MY left hand, haha, he couldn’t scare ME! And by the way, I never would have believed he was a special agent. Sure, buddy, what planet did YOU come from? Haha! A real James Bond, right? And as for knowing where I live, well, that isn’t scary. It’s not a threat to say you’re gonna show up on my front step.” Is it?

Uh, yeah guys. It is. For women. And possibly some men. But especially, given our rape-friendly culture, with its acceptance of male aggression, and the sexualization of women, and the commercialization of sex, and the broadened access to sex workers for less and less money, and the normalization of pornography and strip clubs in the mass media, there is an overall sense that especially dating hetero women should be accessible to all, and when they are not, there can be hell to pay. Just being a woman, living as a woman, and trying to date men in this hateful environment, the above set of facts constitute a threat. Even if Mr. Tough Guy can handle it fearlessly.

Even if Mr. Tough Guy is never scared on a date. Has never been scared on a date. Never worries about somebody following him home or breaking into his house. Has never been threatened or harmed by someone who started out talking of love and ended up talking of hate and violence, or just unexpectedly acting it out. Has never worried about being drugged on a date, or facing date rape, or any form of domestic violence. Just isn’t scared. Why isn’t he scared? Because he doesn’t have any reason to be, in this context, in general, on the whole. And because this typical guy has no reason to be scared of facing personal violence in dating situations, these jurymen – these objective, neutral and correct men – come in the end to the unanimous conclusion that the crime victim is not reasonable in HER fear. And so do the women. Because in spite of each person’s individual opinion, at the end of the day, the male gender role is accepted by everyone in the room to be neutral, objective and correct.

The victim’s womanly, subjective, and wrongheaded fear is determined to be NOT reasonable, while the juryman’s manly lack of fear is as a matter of course reasonable. To the jurymen, the perpetrator is someone to laugh at, not to fear.  He is just pathetic, this accused man with low status compared to the jury members – these jurymen who can afford to do jury duty because they either work for a local tech company, the government, or another job where they get full pay while on jury. And these men are laughing in the jury room, that a man with low status, a criminal really, would dare to threaten THEM, the higher ranking males! “Haha! Who does that asshole think he is? He doesn’t scare US!” Us and we. We and us. That cruel, painful, debilitating, killing “we” that excludes half the population based on our genitalia.

This writer is not a part of “we” and neither is the victim of this crime. Because “we” only includes the reasonable, neutral, objective, and (of course) correct male gender position, that I for one cannot and will not share.  And these men ARE correct, from the lofty and protected perspective of their personal point of view. This male defendant did not and will not threaten them. Has never wanted to and never will cut off one of their hands. They are extremely unlikely to be killed by a loved one, whereas if I am murdered, the statistical likelihood is that the killer will be my husband.

These men are correct about the suspect from their narrow male-centric view: He will not lie to them, pretend to love them, yell at them, bully them and be jealous of them, interrogate them, apologize to them, kiss them, then insult and threaten them. And maybe in a fit of rage show up at their home to rape and kill them. The defendant, according to the testimony, has a different victim, a woman, and she seems to be invisible.

One of the women on the jury quietly points out during deliberations that in the dating context, someone saying they know where you live already feels like a threat. A man shakes his head disparagingly. “Feels like?” he repeats, because of course a woman’s feelings are subjective, not objective like the male’s are. She is partial, not impartial like he was. And she is incorrect in saying how she would react to the threat, whereas he is correct in saying how he himself would react to the threat. All because of outdoor plumbing. Wow.

Remember, the jury is supposed to consider what a reasonable person in the same situation would feel, but due to inherent subconscious bias, they cannot seem to accept that the position of the woman who testified, the woman who dated the man who threatened her, is a “reasonable person”. I believe this is because she is a woman. The men of the jury simply cannot seem to put themselves in her position (that of a woman) and still feel like they are being objective. They automatically pull back from that situation, and return to the “objective male” point of view.

One of the men argue, “Come on. Nobody’s gonna believe that some guy’s gonna come over and cut off their hand! And so what if he knows where you live? Doesn’t mean he’s gonna DO anything about it! The guy’s a wimp!” The other men nod approvingly.

A jurywoman says, “Sorry, guys, but if somebody calls me a cunt and whore and tells me they want to come over and cut off my hand and then tells me my own address and where my folks live, I think it’s fair to presume they didn’t get that information because they want to send me flowers!”

But the men dismiss it. Because as they all agree, it’s just a line from a mob movie! They’ve all heard it hundreds of times! A woman points out that she herself has never heard it, as she doesn’t watch mob movies. There was no testimony that the victim took it as a movie line or a joke. On the contrary, even the defense attorney admitted she was afraid. This womanly comment about movie taste is also ignored and passed over as not relevant to their important task of being objective.

The male head of the jury who holds the jury instructions and is very reluctant to pass them around, informs the others that “the threat” has to be direct and specific, even though there is no such wording in the law or the jury instructions. In fact, the opposite is given: the threat can be direct or indirect, stated or implied, and it is required to take the surrounding context into consideration in deciding. But he just keeps drilling the women on the jury on whether they would feel sure the man would cut off their left hand, or just scared in general. Apparently being scared he would come over and do something is not enough – it just isn’t reasonable. You apparently in have to know ahead of time what this violent, aggressive, lying, jealous control freak who has your address will do. If you think he might cut off your right hand, or a leg, then he goes free. If he’s just coming over to rape you, well, he’s not cutting off your left hand, and that’s what he said. Crazy.

One of the women argues for reasonable fear and says again that she would feel afraid, and the man dismisses her with, “you can’t go with your gut – this has to be black and white!” She repeats that the aggressor has her address, etc. The juryman dismisses it again and then begins to testify as if he were the male accused (with whom he clearly identifies in their shared malesness). “Oh, come on! The guy slipped her last name which she hadn’t shared with him, and he was just embarrassed and he was trying to cover it with a bluff. Instead of admitting he was checking up on her, he just made up a stupid story about how he’s a special agent. I’d never fall for that!”

Wow. Once again, when a woman says what she feels, she is subjective. When a man says what he feels, he is objective. So glaringly obvious to me, and so apparently invisible to everyone else in the room. And disturbing.

When the woman tries to follow up on his personal opinion by saying what SHE thinks may have been in the mind of the aggressor and victim, he cuts her off by saying with a patronizing smile: “We’re not SUPPOSED to speculate!” Then he repeats his made-up story to clear the perpetrator of knowing intent: the guy was just embarrassed, although zero evidence was provided to support this notion. I have been embarrassed many times but it never made me threaten to cut off someone’s hand. But then I am just a woman.

One young man ends up saying, “I gotta wonder if this guy has a history of domestic violence.” And the jury spokesman responds puffed up like a bird in feather: “That was NOT presented in evidence! And we have to presume his innocence! I mean, a life is at stake here!”

Many lives are at stake here. In the very direct sense, at least two lives. For every crime, there is at least suspect and victim. For every crime, there are consequences for society as a whole. We – the we who are not manly objective – the “we” who have feelings and opinions based on our personal stories and our own experiences that have cut into our flesh as this accused has threatened to do – we also have a stake in this. And that stake has been co-opted by the people on the jury who believe that if they have not experienced something, it has not happened.

Yes, I am sworn to silence, and yes, I am sworn to confidentiality, but without revealing any confidential details of a scenario that plays out every day across this country, these attitudes and actions must be condemned, for by their actions they condemn others to violence and the ongoing threat of violence.

Back to the jury deliberations. They vote until they all agree that the man did not know he was making a threat. To be more accurate, they all, in the end, agree that there is a reasonable doubt that the man did not “knowingly” make a threat. Because this silly, subjective, dating woman was unreasonable in feeling scared – as judged from the dominant male gender position. The women members of the jury have also been told throughout deliberations that they are subjective and not reasonable, so over the course of two days, they eventually bow down and accept the male gender position, and agree to judge the victim of the threat as unreasonable. So does the one (non-white) male holdout who starts by voting guilty and in the end switches to not guilty. He says he would be scared, until he is convinced that he shouldn’t be.  And that by extension, the crime victim shouldn’t be.

So in the end, because the crime victim, this dating woman, is judged as not being as reasonable and objective as the dominant men on the jury, the man who threatened her “couldn’t have known she would take him seriously” so is not going to be punished for it. In the end, using the dominant formula, they all vote “not guilty”. The perpetrator is going to walk, and guess whether the woman will call the police next time this kind of this happens?

After the jurymembers agreed on a verdict, some of them start relax and kick back and judge the woman further. “Hey, now that we are done (being so objective and fair) I gotta wonder, why was she wearing such a short dress?! Hello! Doesn’t she KNOW how to dress for court?” “Haha! Maybe she was dressing for a date, haha!” It goes on, while a few people sit in silence, in our lovely liberal city, where no one cares how you dress and we treat everyone equally, and we are so non-sexist, respectful, and caring.  So multicultural!

“And I just have to ask,” the jury chair says at the end, “Why do girls FALL for that?! I just don’t get it!” Another man points out that it is not “just girls” but any person could have this sort of thing happen. But no, not the head of the jury! It could never happen to him! As he puts it, “if somebody told me I’m gonna cut your left hand off, I’d be like, yeah, you and what army!” He closes by saying he knows “a bunch of girls this has happened to,” and it just kinda makes him mad that they fall for it! The suggestion, of course, being that these women just aren’t being reasonable.  He doesn’t seem to have any problem with the perpetrator’s acts, just the victim’s apparent weakness.

The bailiff comes in and we are led back into the courtroom, to mete out justice and reinforce the legal and social rule of the society that we all have to live in – together.

I do not claim that men in general are assholes, or inherently dismissive of domestic violence on its face. The fact that I feel the need to add this disclaimer is only more proof of how unassailable the male gender position is, especially when the criticizing voice is a womanly one. That said, and without intending to attack any individual man, or men as a gender, I do claim that our current society has things set up so that the male gender as a whole consider themselves and are considered by many others to be neutral, objective and correct. Even when they are wrong. That hurt the victim in this case, where the facts were undisputed and indisputable. And that hurts all of us.