Many of you know that I’ve been serving on jury duty for a week now. And unlike every other time I’ve been called — which is just about every year or year and a half for most of the 25 years I’ve lived in San Francisco — this time I was placed on a jury. Here’s the thing: you can watch all the Law & Order you want, you don’t really get how the most fundamental piece of our democratic system works until you serve on a jury.
Here’s the good news:
1. If you are charged with a crime, the complete burden of proof is on the State. You can not appear, not take the stand and your defense can not put on a single witness, and the State still has to prove within a reasonable doubt that you committed that crime. At least in my experience this week, the judge made this abundantly clear and all the jurors took the order very seriously. Throughout deliberations, every time one of us said, “I wish I could have heard from so and so to corroborate the defendant”, we all checked ourselves and said, “We can’t hold that against the defendant. That’s not relevant.”
2. Juries do seem to take this all seriously. A lot of people in the original pool wriggled out of service with what I thought sounded like whopping big fish stories. But those of us who remained and were chosen, really took it seriously. We were careful not to exchange anything more than pleasantries with each other outside of court, we scrupulously ate lunch alone to avoid the appearance of collusion, we listened carefully and we asked, during the trial, some key questions that should have been asked by each of the lawyers.
The bad news:
1. You aren’t exactly tried by a jury of your peers. The lawyers were pretty aggressive at weeding out anyone they thought wouldn’t vote their way. Worse yet, many in the pool eliminated themselves when, in my mind, their absence made this jury less balanced from a peer perspective. For example: this was a trial that involved drinking and driving and an arrest. I, personally, have a hard time believing in the number of people who reported that they had alcoholic relatives or relatives who are cops or lawyers and that those associations would absolutely sway their opinions to the point where they couldn’t be objective. Worse yet, because this defendant was very obviously Hispanic, all the African American and Hispanic potential jurors announced that they couldn’t be objective because of that fact. In the end, the man was tried by three White women and Asians of various sexes and ages. It ended up not being an issue, but since Hispanics and African Americans have radically different experiences with law enforcement, wouldn’t it be important to have that viewpoint and experience represented on the jury?
2. A good part of the trial is conducted at Voir Dire. Voir Dire is where the attorneys quiz the potential jurors to determine if they want them on the trial. And the questions in our case were wild. Example: the Defense quizzed us over and over as to whether we believed that a police officer could lie. Which made us all start to think this whole case would hinge on whether an officer was truthful. The judge warned us again and again that whatever the attorneys say — in Voir Dire, in opening, in questioning, in closing — is not evidence. Only testimony of sworn witnesses on the stand and items entered into evidence are evidence. I think we all took that directive seriously. But if you ring a bell, can you unring it?
So let’s get into the trial. Sorry to break it to people who have imagined I was on the case of someone Law & Order would describe as “especially heinous”, but this case was a fairly straight-forward DUI. Although, if you extrapolate to the possible consequences of driving under the influence, maybe it was “especially heinous”.
Here are the basic facts, based only on sworn testimony:
1. Sometime around 4:30 AM about sixteen months ago, the defendant was on the S-curve of the Bay Bridge and was observed by a police officer weaving so excessively that he went from one lane into another and back three different times. Then he decelerated rapidly at an exit from the speed limit to 20 MPH below the speed limit. The defendant testified under oath that he lost control of his car, ran into the other lane and that he slowed down rapidly at the exit. Basically, the defendant did not dispute the officer’s observations.
2. The officer pulled the defendant over and observed — in addition to the erratic driving — red watery eyes, slurred speech and a strong odor of alcohol. The defendant confirmed that he had red watery eyes and that he smelled strongly of alcohol, but gave the explanation that he always had red watery eyes and that he knew he smelled of alcohol because he’d been in bars all evening. The defense started down the road that the defendant spoke English as a second language, but, under testimony, he revealed he had been here since age 8 and he had attended University of Pennsylvania. He spoke perfect English. That line was dropped quickly.
3. The defendant was asked by the officer how many drinks he’d had and when he stopped drinking. The answers both the officer and the defendant gave varied slightly (“a couple of drinks” versus “two to three drinks”) but they both agreed that the defendant admitted he’d been drinking and said he’d stopped drinking at midnight.
4. At this point, the officer, who was a shift supervisor, called a junior officer onto the scene to process the defendant because the supervisor had to get back to supervising. The second officer smelled a strong odor of alcohol and heard slurred speech as well and asked the defendant how many drinks he’d had and when he stopped drinking. The answer to the former was vague on both sides (“a couple of drinks”, “two to three drinks”), but the officer and the defendant agreed, the defendant said he’d stopped drinking at midnight.
5. The junior officer then administered four different Field Sobriety Tests: 1.) The follow my finger with your eyes, 2.) Walk a straight line, heel to toe, 3.) balance on one foot and 4.) tip your head back, close your eyes and count backwards from 20, then open your eyes. According to the officer, the defendant failed all four tests decisively. According to the defendant, he felt he performed the tests well.
6. At this point, the defendant was handcuffed, advised he was being arrested and taken to the station for a breathalyzer test. Shortly after entering the police car, the defendant started complaining that his shoulders, arms and leg hurt in the handcuffs and the cramped back seat. The officer stopped the car, added a second pair of handcuffs to loosen the strain on the defendant’s shoulders and put him in the front seat of the patrol car where he had more room. The officer and the defendant agree on all the details here.
7. The defendant was taken to the Bryant Street station and given two breathalyzer tests several minutes apart which registered .093 and .095 — both of which were well over the .08 limit for legal intoxication. At that point, he was offered the more accurate blood test, which he refused. Although the defendant says he was never offered that option.
Now here is where all the stories change. The defendant’s explanation is that he has such serious acid reflux that his discomfort caused him to swerve as he tried to adjust himself for greater comfort and that his reflux caused him to regurgitate alcohol into his throat that skewed his test. He testified that his acid reflux was further aggravated by a Jack-in-the-Box Ultimate Cheeseburger and curly fries that he and eaten just prior to his arrest. (Remember all the drinking he’d done was on an empty stomach. The Jack-in-the-Box meal came at least 1/2 hour after the last drink.) Both the defendant and both officers agreed that, at no time, did the defendant mention that he was in discomfort from acid reflux or that he was vomiting into his mouth.
His lawyer also argued that the breathalyzer machine itself was malfunctioning. So for the next day or so, we heard testimony from the head of the crime lab in SF, whose office maintains the breathalyzers, and from a professional expert witness for the defense. In short, both experts, based on the maintenance logs and their knowledge of this particular equipment, agreed that this particular machine was operating and maintained correctly and administered correctly and that the very slight variance between the two separate tests was consistent with and supported that the machine was operating and operated correctly.
What the defense expert witness contributed further were two “studies” that were so badly conducted and such piss-poor Science that your high school chemistry teacher would have given you a failing grade on them if you’d tried to submit them as term projects. An Australian study in 1989 tested one subject and one subject only and showed that regurgitation into the mouth caused a false breathalyzer reading. That study had no controls, no attempts to reproduce results, no isolation of variables and no peer review. The expert himself had conducted a limited study on one subject and one subject only where he saw reflux into the mouth produce false results. The methodology on this test was even sketchier than the first. A third test was brought into evidence by the prosecution and was acknowledged by the defense expert witness where, with five subjects, researchers attempted to instigate reflux and test the effect on a breathalyzer. The results were that there was no effect on the breathalyzer or that the breathalyzer registered an error in the presence of reflux.
Now here is where you do NOT want a winemaker on your DUI jury — and I had fairly warned the Defense attorney: I am an Alcohol Professional. What the frick do I do during the four to six weeks of fermentation every single year? I MEASURE ALCOHOL. THREE TIMES A DAY. This is not rocket science. The instrumentation is not complicated. When I measure the changing alcohol content of my fermenting juice, here’s what I have to do. I have to get free run juice without grape skins, seeds or bits of leaves in it. Because any of those things will skew the results. And you know what? They skew the results to the point of not being able to measure alcohol. So the flawed results are painfully obvious. So let’s get back to this guy’s excuse, with his graphic and disgusting testimony of how his acid reflux brings stomach contents into his mouth constantly (and believe me, when he was on the stand, he urped and burped and acted out vomiting in his mouth every five minutes.) If he were bringing up all that alcohol into his mouth that he drank earlier, he was also bringing up the Jack-in-the-Box Ultimate Cheeseburger and curly fries that he testified that he ate later. If I were testing the alcohol content of his mouth with my spectrometer, the cheeseburger and fries slurry would so block the alcohol that I would have no reading at all. (Sorry, I should have warned you earlier to remove small children and the squeemish from the Internet.)
What became really interesting — and absolutely mind-spinning — is when the defendant took the stand to explain his side of the story. Or should I say his SIDES of the story. Because none of us could grab hold of what his story was. Because, we’re talking all over the map.
1. He admitted to five drinks — all on an empty stomach — a vodka cranberry when he arrived at a bar in the East Bay where he was photographing a fashion show. Then a glass of champagne when the show was over.
2. Then he went to a bar in Livermore where he had a shot of Tequila and a beer.
3. Finally, he went back to the home of the woman who owned the clothing line — and who hired him — and had another glass of champagne.
4. At 3:30 or so, he left that party, went to Jack-in-the-Box and had an Ultimate Cheeseburger and curly fries, tried to take a nap, then lit out for the Bay Bridge where he was stopped.
Here’s the second reason you do NOT want an alcohol professional on your DUI trial: the two expert witnesses testified that it would have taken from 8 to 14 drinks in a man of that height and weight to produce the breathalyzer result of .093/.095. In the deliberation room, people were saying “Hell, 14 drinks and you’d be comatose.” Alcohol Professional to the rescue for clarification. As we heard in testimony, a legally defined drink is very different from a drink that you or a bartender may pour. Legally, a drink is one ounce of hard alcohol. But think about the shot glass a bartender uses. It usually has a line showing the one ounce mark. When has a bartender NOT topped up the shot glass over the line and to the top? Or more likely, when have you seen a bartender use a shot glass rather than the three-count pour — which may be much more than one ounce? When is the last time you had a four ounce glass of champagne? In most champagne flutes, the four ounce mark is half full or less. Yet, in a toasting situation, when do you get a half glass rather than a pretty full glass? The difference between 4 ounces in a champagne glass and a full flute can be another legal drink for a total of two legal drinks when you would call it “one drink”. The difference between a liberal pour, a full shot glass and a level one ounce can be half again as much for 1-1/2 drinks where you would perceive it as “one shot”. Take it even further: I can pour you four ounces of a 12% alcohol Rhone wine or four ounces of our 15-1/2% alcohol Rosé or four ounces of a 17% Late Harvest Zinfandel. Wildly different amounts of alcohol. Of course, I shared with my fellow jurors.
And, since neither the Prosecution nor the Defense saw fit to consult an Alcohol Professional, I submitted many questions to the experts and the defendant. You know when a witness has been put on the stand, questioned, cross-examined, then the judge asks if the jury has additional questions? And there is always one juror who has lots of additional questions? I was that juror.
Here are some key questions I asked: 1) how big were the champagne flutes? (he indicated a pretty big one and did not specify that it was only half full) 2) how many shots in the vodka cranberry? (he said it might have been one or two, he didn’t know). Finally, in two of the three drinking locations, there was “uncontrolled” service — either it was bottle service where non-bartenders in his party were pouring drinks from bottles or, at the last venue, a party at a home, there were no bartenders. Given those circumstances, could he categorically state that no one, at any time, had refilled his glass so that he had more than the number of drinks he admitted to? He could not guarantee that.
Oh, I could go on and on with the prevarications and contradictions and wildly incongruant excuses we heard from two days of this defendant’s testimony. Here are some of the best bits though, especially as relating to why he told the police officers that he’d only had “two or three” or “a couple” drinks and that he’d stopped drinking at midnight — when his new testimony under oath was that he had five or maybe six drinks and that he continued drinking through three venues until at least 3:30 in the morning:
1. “A couple” to him means, not two as the dictionary defines it, but “several”.
2. He thought alcohol consumed in the process of a toast does not count as a drink.
3. He thought, when the officers asked how many drinks he’d had, that they only meant how many drinks had he ordered and paid for.
4. He assumed a drink he bought for someone else, but consumed himself, did not count as a drink he “had”.
You’d think, by this time, our deliberations would be pretty straight-forward. The first two counts were “operating a vehicle under the influence” and “operating a vehicle with a blood alcohol content at .08% or above.” We reached a pretty quick decision on those two, because, in the end, we had to believe that the preponderance of evidence showed us that the breathalyzer was operating correctly and operated correctly. And, to us, the numbers didn’t lie. They weren’t really really close. He was way way over especially given the estimated elapsed time between his last drink and the administration of the breath test.
The third count was “giving false information to a police officer”. The difficult part was intent. To reach a guilty verdict on this count, the prosecution had to prove to us that he knew he was giving false information and that his intent was to give false information. Intent is a hard thing to quantify. Except, to my mind, in this case where the defendant explained under oath why he told the officers the wrong number of drinks and that he’d stopped drinking at midnight (when he’d continued on to two different drinking venues after midnight). His excuse: “I didn’t want to tell the officer anything that would make him think I’d done something wrong.” BAM. Intent. In my mind. But four jurors questioned whether he was so drunk that he couldn’t tell truth from falsehood and therefore had no intent. And one of those four said he found the defendant such a liar that he didn’t believe a single syllable out of his mouth — including his admission that he intentionally misled the police officer. That’s gotta be the first time a drunken liar’s condition worked for him.
So the steel trap of Justice didn’t necessarily snap shut like a terrier’s jaws. And that’s what troubles me.
A faction of the jury wanted to keep everything anonymous and insisted that we only vote or communicate by secret ballot. While some of us were very vocal about our thoughts and interpretation of the law and the evidence, some were silent. The problem is, when we were split, there was no opportunity for debate. Two of us said, “Look, no one is yelling at anyone or calling anyone stupid for their opinion, but we can’t debate this issue and discuss the law and the evidence if…we can’t discuss it and debate it.” But one woman, who designated herself the spokesperson for those who would not speak said, “This is our opinion and it doesn’t matter your opinion, this is how we FEEL and we don’t want to be pressured by discussing it.”
Believe me, the discussions were civil and what discussion we had was far from heated, but my understanding of our duty was to discuss the case, the evidence and the points of the law. If we never discussed it, did we do our duty?
Sadly, by this point, we were all heartily sick of the case and just wanted to declare a mistrial on the third count. Except for one impassioned gentleman who kept urging us to read the law on that count and discuss where we thought the evidence and the prosecution’s case supported a guilty verdict or didn’t rise to the level of beyond a reasonable doubt. I have to agree with him. This wasn’t a tea party or an encounter session where we all validated each others’ feelings. We were there to examine, parse and debate the points of the law. On the last count, we didn’t do that.
Justice served? Well, the perp’s going down on the two most serious charges. But I think that last count — and my willingness to drop it to get out of there — is going to haunt me for awhile.