And how the revolving door to the criminal justice system is greased

 

Yesterday, I had the privilege of performing my civic duty by serving on a jury. I’d always wanted to serve on a jury, but, despite being called almost every year, I never actually got on one—until yesterday, that is. It’s a good thing. I was beginning to take it personally.

I more than made up for my many years of exclusion. I took careful notes. I was appointed foreman and, I believe, the jury came to a just and right decision…with some prompting.

The experience was, however, an up-close look at how our criminal justice system perpetuates criminal stigma in individuals. The institutional norms of the criminal justice system tend to reinforce assumptions about criminal deviance. This often results in people trapped “in the system” in a destructive cycle of recidivism.

In this case, a young man was accused of “resisting and obstructing a police officer without violence.” This is an interesting law with some subtle implications with regard to what constitutes “resistance” if that resistance is not physically manifest How might such a law be used to reproduce “the criminal” and perpetuate criminal status and stigma?

Here’s what happened, according to the police: While responding to a noise violation the police found the defendant and two other people sitting on a lanai, listening to excessively loud music. Most of the police claimed that they could hear the music over a thousand feet away. The police claim that they smelled marijuana, but no evidence of the drug was collected at the scene.

When the police approached the lanai they discovered that one of the people, not the defendant, was armed with a pistol and very intoxicated. This prompted the police to secure the area. According to the police, the defendant was on the lanai and moving into the house. He was given a clear and direct order to stop, but instead continued into the house. He later emerged from a bedroom with his hands up and was arrested for the above charge. That was the nature of crime.

According to the defendant: He was in the kitchen mixing a drink (it was 6:30 in the morning, and he and his friends were up all night drinking) when he noticed the police officers’ flashlights. The music was really blaring. The source of the music was two-fold, a small, but powerful Bose stereo on the lanai and an even louder stereo in the home-owner’s bedroom. The defendant figured that he should wake the home-owner, tell him the police were there, and turn down the radio. He turned around, entered the house and proceeded to the home-owner’s bedroom, where he was sleeping. The defendant claims that he did not hear the police order him to stop.

This case really bothered us jurors. We were guided through the minutia of the second by second decisions that were being made by the police officers and by the defendant. Everyone agreed that the entire incident, with all of its variables among at least half a dozen participants, music blaring, and the emotional intensity of facing an armed and very intoxicated man, spanned less than one minute. No physical evidence was presented by the state, so all we had to go on was witness testimony. Both lawyers, especially the defense, made it a point to walk us through this testimony in detail.

The police did not have a consistent story with regard to where the defendant was at the time he was ordered to stop. Understandably, they were more focused on the man with the gun (a legal gun owner, for the record, who never drew his pistol). They all knew his location and disposition. As for the defendant, four police officers gave four different testimonials. Different still was the defendant’s testimony. He claimed that he was in the house about to step onto the lanai.

So whose testimony was “the truth”? It was impossible to say. In fact, it’s very likely that all of the eyewitnesses were wrong to varying degrees. Eyewitness testimony is notoriously unreliable. According to the Innocence Project, eyewitness misidentification accounts for 75% of convictions later overturned by DNA evidence. This truth is even recognized by the American Bar Association. What we see is predicated on where we are, what we are doing, what is going on around us. Despite the fact that we have over 180 degree field of vision, our focus is actually rather small. What we see is also subject to distortions in our recollection. When we are witness to something happening so quickly we miss many details. We then fill in the details later based on what we think might have happened.

With nothing to prosecute this case except eye-witness testimony, the state was burdened with ensuring that its witnesses were more believable than the defendant. This was not difficult. The five police officers, four of whom directly witnessed the event, were well spoken, thoughtful, professional and most likely honest. The status of the police officers gave their testimony weight. The prosecutor made sure that the jury was well aware of the officer’s qualifications and training. One juror stated flatly that police testimony in general weighs more significantly than the testimony of a defendant.¹

The defense attempted to insinuate that the police “got their stories straight” before the trial. Indeed, that probably happened to a certain extent. Perceptions of reality are social events as well as individual events. People, be they police officers or concert goers, will later collaborate on what they “saw” and develop a consensus as to the reality. They will know this collaborative reality to be true and valid. This is not dishonest, as the defense was inferring, but rather a human response to events, especially stressful events. It is, however, yet another reason why eye-witness testimony is so unreliable.

The prosecution used one other tactic to reinforce the validity of his witnesses over the defense. He “accidentally” let it slip that the defendant was a convicted felon. Ooops! Of course, the defense objected and we were instructed to disregard. Yeah, right! This little slip of the tongue on the part of the prosecutor could easily have won him the case. One juror admitted to defining the incident as a simple party gone bad before being informed that the defendant was a convict. Knowing the defendant’s past changed how the event was defined, or made real, for this juror.

We are our past, and our reputations shape the meanings ascribed to our actions. In this case, all we knew of the defendant was that he was a young, black male with a felony record. Did race play an issue? Perhaps, though nobody admitted to it. One juror did ask the question, “If this was a clean cut white man sitting in front of us would we even be here today?” Hmmmm. There’s plenty of evidence to suggest that this is a legitimate question. Race shapes our perceptions of individuals even if we don’t define ourselves as “racist.” For the purposes of this post, however, it’s impossible to infer the extent to which race played a part.

The young man’s future hung on the reasonable doubt that many of us had that he heard the order to stop. The state had to prove, in part, that the defended “refused” to follow the officer’s order. With the blaring music and the dynamics of the scene, all happening within the span of less than a minute, it was conceivable that he did not. None of the police agreed as to the disposition of the defendant at that time. There was no way for the state to prove the intent inferred by the term “refuse.”

This baffled us even more. The prosecution had to know that this was a weakness. Indeed, the prosecution constantly pointed out that all of the officers heard the order to stop. With this complication, why did the state even bother to bring this case to trial? After the verdict of not guilty was read to the court, the judge admitted that such charges were unusual, and rarely brought to trial under these circumstances. So what made this case special?

After the verdict, the judge explained that the young man in question was on probation. If he had been found guilty he would have gone to prison, quite possibly for a long time. Prison? For walking into a bedroom against orders? A quick Google search revealed that, five years ago, the nineteen year old defendant faced some drug possession charges and one count of home invasion. Aside from some minor traffic violations, there was no record of criminal activity on his part in the last five years. Prime criminal years for an individual are between ages fifteen and twenty-five. It’s likely that the young man in question, despite demonstrating some bad judgment, was entering a less tempestuous stage in his life. Could a prison sentence be justified under these circumstances?

What struck me, however, was the fact that we the jury never really knew what was at stake for this young man. By error or design we knew that he was a convicted felon. We did not know the nature of his conviction, nor did we know when he committed his crimes. The jurors could not be blamed for assuming the worst, and some speculated on these earlier convictions. On the other hand, we knew that a guilty verdict came with consequences, but this was a misdemeanor charge. My heart sank when the judge mentioned prison time. I was thankful that we reached a verdict of not guilty.

This verdict of “not guilty” was not a given. As far as I could tell, only two of the jurors, me and one other person, had a strong reasonable doubt. One juror quickly came around to our way of thinking. Another was concerned about the defendant’s felon status, but upon hearing our reasoning was convinced that the state did not make its case. I wonder about these last two jurors. We, with the strong reasonable doubt, were the first to speak about the case in the jury room. What if certainty of guilt, rather than reasonable doubt, first view expressed? One juror was convinced of his guilt through most of the deliberation. Could that juror have swayed the two less certain jurors to decide differently?

Often, once we define our realities, we defend those realities, even in the face of evidence to the contrary (and yes, that is just as true for me as it is for anyone else, though I’d like to think my sociological training tempers this tendency somewhat). Another juror, I suspect, really didn’t care one way or another and expressed that he would sleep just as well if the “kid was found guilty or not guilty.” Might that juror have jumped onto the most immediate discourse?

Upon facing a majority opinion, there were practical contingencies to consider. It was late at night before we entered the jury room for deliberation. It was not uncommon to hear complaints about the possibility of “being here all night.” Might a juror who would sleep just as well regardless of the outcome, especially knowing that the defended was a convict, simply have reinforced the majority opinion out of expediency rather than civic duty?

If a majority of the jurors decided upon guilty, for whatever reason, faith in police testimony, disdain for a convicted felon, fatigue or apathy, they assert significant pressure on the majority to conform. This is a classic example of research done by Solomon Asch. In this experiment, subjects consistently answered questions based on the answers of the group, even if they knew the answers to be wrong. We, as human beings, are often more interested in finding acceptance from the group than we are with upholding the truth. Few of us have the intestinal fortitude of Juror 8 from Twelve Angry Men. What does this say about tenuous structure of the entire jury process?

We had everything that we needed to convict this young man and to do unalterable damage to the potential of his future. We had our prejudices, our pre-conceived notions, our stereotypes, our herd mentality. We were placed within an institutional structure that plays on these human frailties despite manifest rules to the contrary. Instead, we returned a verdict of not guilty.

I’m convinced that this verdict was valid in accordance with the law. I also happen to think that the verdict was right and just. It is my hope that this young man will take positive advantage of this chance he received and stay out of trouble. However, it’s very likely that he could find himself before a judge again for equally nebulous misdemeanor charges. The criminal justice system just doesn’t like to let go.

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¹On the other hand, there was question as to nature of police ethics. One juror suggested that the police “screwed up” and made the arrest because they needed to have something to show for the fact that five police officers were dispatched to a noise violation and ended up with three people in hand-cuffs. This juror was asked why he had such animosity for the police. The juror denied any such animosity but was convinced that this was the result of police incompetence. Not a fair assessment in my mind. No evidence suggests that the police were anything less than professional.