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.