Wednesday, July 01, 2009

My Recent Trip to Court

We're going to completely shift gears for a second and I'm going to post something completely serious about my recent jury duty. I wrote this out for someone else, but I've decided to post it for now. It's by no means polished or amusing. I may edit it as I see fit, or remove it all together.

I had to serve on a jury this week. A lot of people seem to be interested in the case and how it turned out. It's odd how something this serious can affect you emotionally for a few days. It's the same feeling I had when my work was raided by ICE and the ATF a few years back (for those who know that story). Maybe it only affects me in this way because being completely serious for two days straight is almost impossible for me.

The Prosecution story started off like this:

Back in 2006 an officer sees a car driving around 9 at night with its headlights off, doing about 10 miles an hour as it approaches a light. At the last minute it jerks suddenly in to the left hand turn lane. He finds this suspicious, pulls up behind it, and after the left hand turn, pulls the lady over.

As he's asking for license and registration, etc. the officer notices that she's a bit flush, and has a faint odor of alcohol, so he asks her to step out of the vehicle and performs the horizontal gaze nystagmus test(The, "Follow this pen/light with your eyes" deal).

Apparently the officers look for 6 specific cues in this test. 3 or more indicate neurological impairment(Most often from consumption of alcohol). She had all six. The officer asks her to submit to some field sobriety tests and she says that she has arthritis and some long time physical injuries that may give inaccurate results. He asks her to take a Breathalyzer and she readily agrees.

He was on a motorcycle. They transport her to a van where they can do the test, and she blows a .126. In AZ it's .08 or higher and you're not supposed to be driving.

At this point I was thinking, "Wrap this one up and we can all go home early. This broad is guilty." The defense hopped up and broke it down like this:

The lady had just left a restaurant where she had sampled a glass of wine, but ultimately decided not to order it. Her car had been valeted here. She has the automatic headlights, and isn't really sure how they got to the off position.  She didn't notice until the cop pulled her over.

The section of town she was driving through had a tremendous amount of confusing construction at that time. (I personally know that to be true because it's about 2 miles from where I live). They were also working at night, so they had a bunch of huge lights out there. The area is next to one of the bigger shopping centers in Phoenix, so it's already very well lit.

She explained that she wasn't sure if it was "this left" or "the next one" to get to the Fry's grocery store she intended to go to. (Again, I know the area, makes sense to me. It's confusing) That's the explanation for the sudden jerking to the left hand turn lane. She also doesn't normally drive at night because of a previous injury, and therefore was a little overly cautious.

Thirty years ago she was in a really serious car accident where her car was "run over" by a semi truck. She spent a decent amount of time in a coma, and months in physical therapy. She has some lingering physical issues and nerve damage. Both sides seemed to agree that this could possibly cause failure of the eye test, although the prosecution obviously thought it was much less likely than the defense.

One of the cues that officers use to test if you're drunk is to ask you questions while you get your license and registration. Apparently the ability to multi-task is one of the first things to go normally. She passed this just fine. She never slurred any speech, or had a loss of balance, or any other visual indications of being drunk. During the time the officer was following her, he noted nothing other than perfect driving.

He then went on for about 4 hours challenging the breathalyzer test itself. Apparently this particular machine had exceptions starting one week after the incident. Within a month it was sent back to the manufacturer for two months of repair. A few months after that, the head of the company that makes the machine came out to perform repairs on the machine and did something that neither side knew to the machine. Six months after the DUI arrest, that machine was decommissioned.

The defense also called as an expert witness, a toxicologist. This guy also happens to be the man who worked for the city of Phoenix in the crime lab in 2006, and he quit because he was upset with the department, and their records keeping. He said that he felt the results in this case were "Scientifically Questionable". The company that made the breathalyzer has never agreed to testify in a case, and has constantly refused requests to view the source code to the machine.

The lady asked for a blood test. The officer, even though qualified to give one, refused. Apparently it wasn't police policy to give one unless the case was serious. If it was "serious" then a blood test was always given. Since 2006, city of Phoenix has switched to only using blood tests. The police told her that she can go somewhere like a hospital and get an independent test.

She said she had a friend take her to 3 different hospitals, but the soonest any would see her is 5 hours. She gives up at that point.

There are, obviously, a lot of other facts to the case, and I'm sure I've forgotten to mention a few. In the end, my gut feeling was that she had done it. She was most likely a wealthy lady. She got a really good lawyer, and was trying to get out of it.

That being said, I still had reasonable doubt. I work on software. The chances of there being a bug seem possible. The breathalyzer was done an hour and a half after the pull over and she blew a .126. .1 is when the average person is supposed to lose fine motor skills. .15 is where you lose major motor skills.

It seemed odd to me that she had no other visible signs of being drunk. No stumbling, no bad driving, no issue retrieving her license/registration.

The other 5 jurors didn't see it that way. The most vocal was a 60 year old republican looking dude whose basic argument was, "Test says she did it. She did it". I remained firm with, "If there was something else to back up a 'scientifically questionable' test result, then I might be inclined to agree."

There was one Indian dude who was most upset that the "Expert in toxicology only had a masters degree." It was his feeling that to be an expert on anything required a Phd. That seemed to be his strongest argument that the test was in fact valid.

The other 3 jurors seemed to have sort of succumbed to mob mentality, and just went along with the pack.

In the end I stuck to my guns and we wound up with a hung jury. The old dude seemed really pissed off at me, bordering on yelling towards the end. The more upset he got, the more calm and logical I got. This seemed to piss him off even more.

He basically told me that I was calling the police officers liars, and discrediting them and their many years of experience. Oddly enough, that's part of what sold me on the not-guilty. All 3 officers who testified were specifically trained in DUI, and not a single one noticed anything else to indicate she was drunk? It just seemed odd. I held everything they said to be true.

As we walked out he mumbled under his breath something like, "I don't even want to think about the amount of tax payer money you've just wasted on this"


  1. I can imagine how upsetting the whole experience would be, but I think you did the right thing. The law is pretty clear about reasonable doubt and clearly it was present. It would have been so much easier to just go along with the crowd, but you stuck to your beliefs.

    Interesting story. Thanks for sharing.

  2. Sounds like you nailed it. I've read that errors in test results are far from rare, and finding someone guilty shouldn't have anything to do with taxpayer burden. Btw, nystagmus (the eye thing) increases under stress, so if she has neuro damage but doesn't usually have nystamus, that still wouldn't rule out the damage as the cause.

  3. Great story Jesse. And for those seriously interested in our nation's legal system, i'd like to recommend the following 3 films for further investigation: 1) 12 Angry Men, a 1957 jury-deliberation-room drama staring Henry Fonda as the lone-voice-of-logic, an archetype made famous 52 years later by Arizona Juror Jesse Bearden. 2) A Few Good Men, a 1992 military courtroom drama about dental malpractice with the now-famous exchange between Tom Cruise and Jack Nicholson: Tom: "I want the tooth!" Jack: "You can't handle the TOOTH!" and 3) Jury Duty, an oscar-nominated 1995 drama starring Pauly Shore as Christy Brown, a man forced to learn to use his only functioning appendage, his left foot, for self-expression.

  4. Jesse,

    You have somewhat restore my faith in humanity. Thanks for sticking to your beliefs and not blindly following the lead - like wildebeest crossing swollen Mara River to get to the short sweet grasses of the Masai Mara.

    I agree with the recommendation to watch "12 angry men".

  5. the test says she did it, she did it!

    the expert only had a masters
    ~says the guy who probably didn't bother finishing high school himself's these people that make me want to work on population control.

    good job jesse

  6. Jesse:

    Nice work. Both in the jury room and on the blog.

    I would hope that I would have performed exacty like you did in the jury room.

    As far as the "waste" of taxpayer one ever said our system of justice was cheap. We have selected our trial by jury system because of our belief that the accused should be tried by a jury of peers. Yes, there are costs that are associated with the model. Yes, there are cheaper methods of placing guilt or determining innocence. Yes, the process requires personal discomfort, a level of service, and inconvenience. But, that is the cost of the system.

    If the foreman of the jury doesn't like the system, he can move to France. Yes, France, where reruns of People's Court are watched and the defendents learn to say things like, "I know my rights." And the presider says, "That's not one of your rights. We don't have that right in this country."

    Thanks for your service, Jesse.


  7. Jesse was just trying to get a date out of it...he creates a hung jury, the 60 yr old is now free for dinner, you sly dog.

    In all seriousness, nice work. An old woman at .15 BAC would def. have visual signs of intoxication. I would have done the same thing.

  8. SomeoneStoleMyCheetosJuly 7, 2009 at 2:18 PM

    Wow. Way to stick to what you thought. The defense made an argument that appealed to your sense of doubt. Impaired or not, if there is doubt, that can still be enough to convict a person. It's the reasonableness test.

    Sounds to me like you were being reasonable and the other folks in the jury weren't.

    I always like to ask this question of people: You have 100 men convicted of serious crimes (murder, etc) and 5 of them are actually innocent. You can either release them all or condemn them all. No option and no way to differentiate.

    I'd rather keep an innocent person free because to me, that's in the best interests for everyone.

  9. Well hung jury?