Saturday, July 30, 2016

Justice?

(Source)
On the 31st of July in the year 2015, something happened in Smithfield, Rhode Island which apparently became the straw that broke the camel's back. As the prosecutor from the State Attorney General's office termed it, a dark family secret came to light. A chain of events was triggered which eventually found me sitting in the jury box in a court room in Providence.

This is not a happy story. Before I was called to sit in judgement on the facts of the case, a family had been destroyed. When were the seeds of that destruction planted? I don't know. All I know is that two young women claimed to have been molested by their father, sexually abused and assaulted. There were eight counts in the indictment, going back to 2008 when the oldest daughter was thirteen.

I would like to say that the depths of human depravity surprise me. I have lived too long and seen too much to be able to say that anymore. It is only by knowing that the majority of our species does not engage in such depravity do I retain any hope for the future...

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While I don't remember the exact circumstances, I do remember wondering when the charges with which the defendant was being charged were going to be read. After all, how could we possibly weigh the testimony if we didn't know exactly what the charges were? So I asked the deputy sheriff tasked with keeping an eye on the jury what the proper protocol was in asking the judge a question. He told me and moments later a note, signed with my juror number, was on its way to the judge. (I think we were taking our morning break, it was early on the first day. It may also have been during the opening arguments, the eight days in court were pretty intense. Hard to remember the exact sequence of events.)

When we returned to the courtroom, the judge indicated that the jurors wanted to know the specific charges in the case. She then proceeded to read to us the eight counts contained in the indictment. Now that we had the specific crimes with which the defendant was charged, we could now more intelligently hear the testimony in the case. Perhaps it's the engineer in me that needed these details. (At the end of the case, our youngest juror mentioned that she was glad I had asked as she too was wondering what the actual charges were.)

Now this case had no forensic evidence and the only testimony as to the facts of the case would come from the two daughters, who the attorneys referred to as the "complaining witnesses". I guess that the prosecution was concerned that many of us had watched too many crime dramas and would be expecting lab work, fingerprints, and crime scene photos in order to prove the facts of the case. Nope, didn't have that kind of evidence. The prosecutor did tell us in her opening argument that we would be seeing none of that sort of evidence. Just testimony.

The defense attorney in his opening statement told us that the testimony we were about to hear was littered with changing details, stories which changed from one time to another. The two complaining witnesses had both given police statements, had testified at a bail hearing, and had testified at the grand jury. The defense indicated that he would show us where the details between those three events and the testimony to be given at trial would differ. The defense attorney said, "The truth doesn't change from one telling to the next." He told us to pay attention. So I did.

First the older sister testified. It was an awful story and it did have the ring of truth. At least it did during direct. During cross-examination, her story fell apart like a branch going into a wood chipper.

"In your police statement you said this, correct?"

"Yes."

"However, at the grand jury you said something else, correct?"

"I don't know."

The he would produce the transcript to refresh her memory. She would indicate that, yes, that's what she said. Each time the details had a different flavor, things she remembered very well during direct became vague, even different. Something was going on here. Something odd, to say the least.

And so it went, the defense attorney brought out that the older sister had problems with authority, that she disliked men in general, and her father in particular. The incidents of abuse always occurred when no one else was home (in a family of two adults and five siblings). I sensed that something had indeed happened, the law had been broken. So far though, no meat to the testimony.

The younger sister testified. She was much more compelling, much more believable. But again, details changed, things got vague. After a while she retreated to answering "I don't know" and "I don't remember" to nearly every question. Bear in mind though, she's only 17 and this defense attorney was very good at cross examination. Brutal in his directness and in his questions, no mercy was offered.

At this point (bear in mind this all happened over a number of days) I was fairly convinced that a crime, or crimes, had been committed. I was waiting for the prosecution to sweep in for the kill. I was expecting testimony from the detectives who investigated the case. I was expecting testimony from the Department of Children, Youth, and Families (DCYF) giving the results of their investigation.

What we got was the girls' former stepmom. (The mook on trial had been married three times. First marriage broke up because the birth mom of the girls had been accused of beating the kids. This was the second wife and both sisters still thought of this woman as their mom.)

This woman was a wreck. She was about as believable as a campaign ad. She claimed no knowledge of the abuse, her only claim to fame had been that she had called DCYF in 2011 to file a complaint about her husband abusing the children. Under cross examination she fell apart faster than a bamboo hut in a typhoon. She too was reduced to "I don't know" and "I don't remember."

As I sat there, wondering just why in Hell the prosecution had put her on the stand, I figured that she was a set up for the next witness. I'm thinking that DCYF was coming up to testify as to the 2011 complaint. Maybe the detectives were up next, maybe...

"The State rests."

Say what? Some of us looked at each other as if to say, "is that it, that's all they've got?" This immediately sprang to mind...



I was gobsmacked. No testimony to answer any of the questions floating through my mind, no more witnesses to tie together all of those loose ends. It was almost as if the State had said to us, "This is all you're gonna get, now go find him guilty."

Defense offered up a single witness. The guy from DCYF who had investigated the case in 2015. Both sisters' testimony as to being interviewed by DCYF had varied. One said a guy and a woman had come to the house and interviewed them together, while their father watched from an ajoining room. One said that just a guy had showed up and had interviewed her apart from her sister, one on one.

Cross examination from the prosecutor revealed nothing more, other than a lot of objections by the defense and a lot of "sustained" from the judge. As if to say, if you wanted DCYF testimony to support your case, than you should have called them to the stand, not the defense. (My understanding is that after cross examination, you can only go over the ground covered during direct. Not introduce new lines of questioning.)

When the prosecutor sat down after "no further questions your Honor," and looking very flustered, the defense attorney stood up.

"The defense rests."

Oh shit, oh dear. Now what? That's it?

There were fourteen jurors, now it was time to pick the "real" twelve, the men and women who would weigh the evidence and decide the case. Yes, I was one of the twelve. Believe me, I would have been pissed if I'd been "sent off" at that stage of the trial. The two guys who were sent off, yes, they were angry. And no, they couldn't go home, if one of the twelve dropped dead, they would then step into the deliberations. So they had to be available at the court house, but not with us. Also not free to roam the halls.

While I was pleased to make the final cut, I did not in any way, shape, or form want to be the foreman. I don't have enough diplomat in me, and these were all civilians. Dear Lord, it would be like herding cats. (Which it did turn out to be.) Fortunately I didn't get tagged as the foreman. I think our oldest man was chosen. Whether he was the oldest member of the panel, I don't know. He was definitely one of the top three "elders." Turns out, the judge chose very wisely as to the foreman.

Deliberations began, we went around the table, each juror to state their potential verdict and why. Not on each of the eight counts mind you, but overall. Basically, "Is he guilty of at least one of the charges? Why yes, why no?"

First lady, "Guilty. He had to have done something. I believed the witnesses."

First guy, "Not guilty. Too many holes in the testimony. Sure, maybe he did something, the State didn't prove it."

Second guy, "Not guilty. The guy is a scumbag, that's fairly obvious, but the State didn't prove it."

Second lady, "Guilty. Those poor girls. He's a monster."

Third lady, "Not guilty. While he may have done something, the State didn't prove it to me beyond a reasonable doubt."

Fourth lady, "Undecided. Overall, there's a couple of charges I'm not sure of." (She eventually came to believe the State proved nothing. So she did decide to declare "Not guilty.")

Your Humble Scribe, "The State has to prove the charges beyond a reasonable doubt. The guy is never going to be proclaimed Father of the Year and this has to be the most screwed up family I've ever seen. But the State did not prove its case, they failed miserably. I want to convict the mook, but I can't. I just can't. Not guilty on all counts."

Fifth lady, "Not guilty. The State dropped the ball. I don't like the guy but the State proved nothing."

Sixth lady, "Guilty. While the testimony was patchy and unbelievable in spots, that's how abused children behave."

Your Humble Scribe, "We can't take your word for that, why didn't the State have someone say that?"

Sixth lady, "Well, that's how I feel. Guilty."

The elephant was now in the room. "That's how I feel." Every single juror who voted to convict used a variant of that phrase, all seven who voted not guilty indicated that the State, by a preponderance of the evidence, did not prove their case. Emotion versus logic. The judge had warned us of that.

Seventh lady, "Guilty. I work with abused children and the sisters' behavior matched what I've seen in my experience." No, I didn't ask why the State didn't think that was important enough to bring up. The prosecutor seemed almost surprised when the defense shredded the two sisters' stories.

Eighth lady, "Guilty. There is no way he could be innocent." Again, really, why didn't the State prove that?

Fourth guy (the foreman), "I hate to say it, it pains me to say it but I have to say 'Not Guilty,' the State didn't come close to proving their case."

So there we were, seven "Not Guilty," five "Guilty." All four men (yes there were only four of us vice eight women) and the two youngest women voted "Not Guilty." The three oldest women, and the two women in their forties (one was a social worker, a very nice person but how did the defense not challenge her?) voted "Guilty."

There the first day of deliberations ended. We were sent home to "sleep on it" and to return at 0900 local the next day to "try again, harder."

That night I agonized. Rethought the entire trial, considered "Ah what the Hell, I'll agree to convict on one charge and..." Nope, can't do that and live with myself. The State failed to prove its case. How dare they dump this piece of crap in our laps!

Where I parked. I would watch the birds, waiting for the shuttle to the court house. Very peaceful, very conducive to quiet contemplation.

The second day of deliberations (the first full day) was more of the same. We debated, we argued. Eighth lady (originally from New York City) wanted to spend lots of time going over the counts in the indictment and the judge's instructions to the jury. I think that she thought that she could convince us all by the depth of her passion, her attention to minutiae, her absolute lack of understanding of what "beyond a reasonable doubt" meant, might convince us to change our minds. Every time someone would make a point her hand would shoot up and she would commence her song and dance.

How could we not see that because the defense attorney was so mean those poor girls were rattled beyond belief?

I pointed out that I needed a Hell of a lot more to send a man to prison. I mean seriously, I asked my fellow jurors, do you know what they do to child molesters in prison?

Almost immediately lady eight dove for the judge's instructions. "It says here that we're not supposed to consider the sentence. Just the evidence..."

I was ready to start taking heads at that point. Before I could roar at this sweet, genteel little lady that "WE'RE TALKING ABOUT SENDING A MAN TO EFFING PRISON, NOT GIVE HIM AN EFFING PARKING FINE!!!...," our foreman, a lovely man, a wise man, beat me to it. Reminding everyone that the penalty here was indeed prison. The judge's instructions told us that we would not be sentencing the defendant, she would. It was indeed our job to judge him guilty or not, and that sentence indeed had consequences. Consequences we should remember before we judged him based on "feelings and emotions."

At that point, a note went to the judge (1600, the witching hour at which all State employees had to go home, was rapidly approaching) saying that we were still deadlocked, 7 versus 5. With no hope of ever resolving that.

The judge brought us down to the court room, commiserated with us as to how hard our job was, that she was glad that we were taking it seriously, but to consider this -
"Were I to declare a mistrial at this point in time, what makes you think that the evidence would be different next time, what makes you think that another jury would do a better job than you? Go home, relax, don't think about the trial, come back in the morning at nine and we'll give it another shot."
So we did, though relaxing was most definitely not on the menu. A restless night followed, up early I was, alone with my thoughts I was. Not even the feline staff could offer any advice.

In the hour or so I had to wait for the shuttle, I would pace in front of this church, it was their lot we parked in. Did I pray for guidance? Of course, I did. Did I find it? Yes, I did.
While waiting, and thinking, I'd stand in the shade of this lovely maple between the church and I-95.

That's the Armenian Church, I-95 in the foreground. "My" maple is the one just to the right of the church. The parking lot is just behind those pines to the right of the maple. (Google Maps)

We returned to our deliberations on Thursday morning. The foreman had something he was going to try. Eighth lady wanted to debate it, he shut her down totally. He informed us that he was going to talk, we were going to listen, then we would go around the room once more.

Eighth lady cried out "That isn't fair!"

The foreman pointed out that the judge had chosen him to run things. Run them he would. He was tired of interruptions and everyone speaking out of turn.

Eighth lady indicated that she had an idea and...

"Be quiet. You will all sit and be quiet until I tell you that you have the floor. That's the process and that's how it's going to be. Now, " pointing to first lady, "it's your turn. Go. And everyone else be quiet until I say you can speak."

Eighth lady looked mortified, this is not how things are done in her circles. The rest of us looked pleased that he'd finally torpedoed her quibbling and search for the mysteries of life in the indictment and the judge's instructions.

Me? I was ready to make him President. He reminded me of a tough little bastard commanding an infantry regiment. We had an awesome foreman.

Nothing much had changed as to verdicts and feelings. Those saying "Not guilty" had uncovered no new magic evidence to make them change their minds. As I listened, I heard a lot of "I feels" and "emotionally I" and was getting more and more discouraged. I was furious with the prosecution for giving us this limp P.O.S. of a case. So I thought I'd approach things differently from my fellow jurors. Then my turn was upon me, I took a deep breath and began. (This is, as far as I can recollect, exactly what I said. Or damned close.)
We are all citizens of a country which has a representative form of government. We don't govern directly, we chose people to represent us, we allow others to be "the State." We don't have a king, there is no queen, no dictator to force us to do things. We give that power over to our representatives.
Even so, the State wields immense power in our names. I have seen it, I was part of that instrument of State power for 24 years.
The State can take away your freedom, the State can take away your job, the State can take your life if need be.
But the State cannot do that arbitrarily. When crimes are committed, people, citizens are called forth to serve as jurors. The State can indeed take your freedom, take your possessions, indeed even take your life. But not without the consent of the people, represented by people like us, people sitting on a jury...
At that point I see the deputy sheriff, the judge (not in her robes!) and (of all things) the lead defense attorney come into our area. WTF? I'm thinking. Damn it, that would have been my best speech ever!

As the judge gets our attention, we are all looking a bit unsettled at this point, we all turn to and give our attention to Her Honor.
"You can stop your deliberations. The defendant has, with the advice of counsel, decided to plead nolo contendere (no contest) to two counts of the indictment. The other six charges have been dismissed. His sentence is time served. Any questions?"
Yes, we had questions. I did get the judge's attention first and indicated to her that she had, with all due respect, interrupted my speech as to how it was the jury's duty to limit the power of the State and...

Yes, the judge found that hysterical (I told you two weeks ago, the judge and the lawyers all loved me) as did the lead defense attorney. I swear, that speech would have been epic. Or maybe it was a good thing she interrupted me when she did. Things could have gone downhill fast, I was, after all, damned exhausted. As we all were.

So the mook plead no contest to two of the eight counts of the indictment. His sentence was time served, seems he'd been in the hoosegow since being arrested on 31 July 2015. Almost a year. Each count was for abuse of each of the daughters. So each sister had her day in court, each sister had some justice done. Was it enough? I don't know.

I asked the judge if this counted as a felony conviction. She assured us that it was. The mook now has to register as a sex offender as well. Will he do it again? Probably not, his family is destroyed, his daughters are free of him. Remove the opportunity, no way to commit the crime.

We were then set free. The judge told us that we had done our jobs, our not coming back with a verdict right away made both sides nervous. I think the prosecution realized that they'd presented a weak case, the defense no doubt realized that if they didn't cut a deal, who knows what we might come back with. As I told one of my fellow jurors as we left the jury room, "Well, I'm not satisfied with the outcome, but it beats a mistrial." She agreed.

I'm still disappointed in the State's prosecution of this case. They could have, they should have done better. Protecting our children from such monsters is pretty important.

All in all, it was an exhausting ten days. Sitting in judgement is hard, if it's done correctly. While I was pretty miffed at the "I feel he's guilty" crowd, perhaps there is something to be said for intuition. Especially when logic has nothing to work with.

Still and all, I'd do it again. But not for a while, no thank you. (State law says it has to be at least three years before I can serve again. Praise the Lord!)

Being a juror is hard.

But then again, it's supposed to be.

My "home" for the last two weeks. (Google Maps)



For the curious among you...
Is a Nolo Contendere Plea to a criminal case a Conviction In RI ?
A Nolo contendere plea means a Rhode Island criminal defendant is not contesting the criminal charges. When an accused agrees to a nolo contendere plea in RI, the alleged perpetrator is throwing in the towel and not fighting the charges but is also admitting to the charges.
What is the primary difference between a guilty plea to a criminal charge and a nolo contendere plea in Rhode Island and Providence Plantations? 
There is a big difference between guilty and nolo! Pursuant to Rhode Island criminal law, a guilty plea always constitutes a conviction although a plea of nolo may not be a conviction. A conviction could effect a persons employment status or future plans in a significantly worse way then a nolo plea. A nolo  plea may not be a criminal conviction in RI. Nolo contendere only constitutes a conviction under the laws of the Ocean State if there is a sentence of confinement (such as the ACI or home confinement), a suspended sentence or a fine imposed. (Source)


68 comments:

  1. Did I call it or what?

    From 12 Angry men. "Juror #8: Nobody has to prove otherwise. The burden of proof is on the prosecution. The defendant doesn't even have to open his mouth. That's in the Constitution."

    Sarge, if you were coming into my Fighter Squadron, your tactical call sign would be "Henry". (Fonda would not have been a good one.)

    That having been said. Absolutely Perfect. You did exactly what you were supposed to do. Well done.

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    1. Oh, and by the way. Juror #8 was played by Henry Fonda.

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    2. Heh, "Henry," I like that.

      "Fonda," yeah, not so good.

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    3. Interesting about Juror #8. During the trial I sat in the 9th chair, for deliberations I moved into the 8th chair.

      Cue Twilight Zone theme.

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  2. Yikes, what a mess!

    This is a frightening tale on a lot of levels. Seven to five is a frightening ratio. Seven thinking humans, five with no activity above the brain stem. All 12 voters. You begin to see how Hitler did it. The other thing I don't like is the way, over time, that the state and criminal-judicial complex have twisted the Constitution. "Deadlocked? No problem, see, we got this other deal where we..."

    You did a great job. Duty is the hardest master. Almost everybody talks the talk, but darned few walk the walk when it comes to nut cuttin' time. For the former, the rules are for other people, and other people are just things to be manipulated, used, discarded. The latter are the glue keeping the wheels on (how's that for slaughtering a metaphor?), and like WWII vets, there are fewer of them around every day.

    Great post. This is what blogs are for!

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    1. Re: Twisted the Constitution, agree. The time for deals is before trials, (and I'm not convinced entirely there SHOULD be a time for deals), once court is in session, the people are in charge, not the politicians. My opinion.

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    2. Thanks Shaun, I try very hard to do the right thing. It frightens me how often I come up short.

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    3. The judge explained to us that sometimes defendants don't listen to their lawyers. They know they're guilty but they don't want to pay the price. Some mooks take it all the way to deliberations (like this one did), then they realize that a mistrial keeps them in jail until a new trial. And a new trial may not go as well (like maybe the State would present a better case?)

      But I agree, deal before. Not during.

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    4. Earlier today I saw that Hitler only convinced 37% to vote National Socialist. It was President Paul von Hindenberg who appointed him Chancellor of Germany. He wasn't elected by the majority of Germans, he just won the most votes.

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    5. Indeed, the other members of the government, the Army, and the industrialists were all convinced that they could control Hitler.

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  3. Phew!
    Glad that's done.

    Nice work.
    Too bad the judge didn't mention, in the instructions, that opinions should be checked at the door.
    It's a pure judgement issue.

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    1. Actually she did say that opinions had no place in our decisions. One of her specific instructions was that how one felt about the law was completely inappropriate.

      Some folks just think they know better.

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    2. There's a saying that goes something like this:
      "GYHOOYAT!"
      It is reserved specifically for those individuals.

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    3. Our first chief justice, in, I think, the first jury trial case to be reviewed by the SCOTUS, said that it is the right of the jury to judge not just the facts of the case but the law. In the early 1970s an appellate court said, juries have "unreviewable and irreversible power... to acquit in disregard of the instructions on the law given by the trial judge.."

      I can think of many laws here in CA which, it they were the only charge, I could never convict a person of violating. "Your rifle has the once legal, even mandated, "bullet button?" Not guilty! You bought your full capacity magazine before our first AWB and had it grandfathered in under that? Not guilty.

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    4. The Constitution trumps all. Most, if not ALL, local firearms laws are unconstitutional. They only way they get challenged is when we stand up to arbitrary authority. District of Columbia v. Heller springs to mind, DC's gun laws were blatantly unconstitutional, but apparently nothing could be done until it went to the Supremes.

      If I felt that a law went against the Constitution, yeah, I'd do the same as you Joe.

      After all, the oath I swore to "support and defend the Constitution" trumps all other oaths.

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    5. Nothing on earth would convince me to drive through New York with any kind of fire arm. That state is like Mexico and more evil in its sincerity of purpose.

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    6. That is the unvarnished truth.

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  4. A difficult job done well. My sister recounted her most recent juror experience and the disturbing theme during deliberation was the statement that even though the cop lied, the defendant still broke the law.

    During a juror service a few years ago, the state's entire case was based on one person's eyewitness testimony.
    The statement of "he is the guy that shot me," was based on seeing the guy across the street, and at some distance up the street, and the entire event happened at 0300 and not under a streetlight. When the jury returned Not Guilty a short time later the prosecution looked at us like we failed to do our job.

    Again, good job.

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    1. It amazed me how lame the prosecution's case was. Given what I know now, there should have been enough there to convict the mook on all eight counts. Testimony from non-credible witnesses is problematic at best.

      Thanks John.

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    1. Thanks Cap'n. It's good to have that in my wake.

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  6. You did your duty. Seems some of the jurors were there to pursue an agenda.
    My LEO relatives have a low opinion of prosecutors.

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    1. Cops work hard to bring the perps in, then, sometimes, the prosecution blows it, or offers a deal. One could argue that those last two often go together.

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  7. Nicely done. I might take some flak for this, but I'd argue that the system worked exactly the way it was designed to. Yes, our legal system is rigidly codified and its designers did their best to ensure that everything was a series of clear-cut decisions but the truth is that humans, and especially their actions and conflicts, are pretty damn resistant to rigid classification. There will always be bleeding hearts and rigid "by the book" types (and there always have been) and the interplay between the two is what makes it "fair" (or at least as fair as possible). Sometimes justice must be served despite limited evidence and other times the evidence points to a conclusion that is, in fact, unjust.

    The strength of Democracy lies in disagreement. Without wide variation in approaches and opinions I believe our system wouldn't have the flexibility to adapt and endure.

    Thank you for doing your part to further that, even though the personal consequence of a working system may well be frustration.

    On a somewhat off-topic side note, there's a mathematical/statistical concept known as a "random walk" where a combination of random movements and choices based on probably correctness turns out to be quite good at getting to "truth". I tend to believe that our political system approximates this due to the interplay between people like you and Juror #8 and, on a larger scale, between the reds, blues, greens, libertarians, and everyone else involved. Although maybe that's just what I tell myself to keep from staying up late fretting this election season...

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    1. You've described things very well, and I agree.

      Your last sentence is something I feel as well.

      There is a natural balance, though sometimes it takes a while to get there.

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  8. I want to hear the rest of your speech! I expect the mook was guilty of something, seems the result was reasonably fair.
    I once sat on a jury where someone was hurt on a commercial property. There were two defendants, one some kids who F-d up some other kids, and two the manager of the property. I asked in deliberation "How is the manager responsible?" One juror said, "I know someone who was sued because someone tripped on his lawn. The law says if you are hurt the property owner is always responsible." I said that is ridiculous, he said it was true. I sent a note to the judge asking, "Is the manager responsible simply because someone was hurt on his property no matter what, because that is what one juror is claiming." An hour later we were instructed to ignore charges against the manager.

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    1. Oh he certainly was guilty of something, the nolo plea settled that. I just wish the State had done their job properly. Mook wouldn't be out walking around right now.

      I love it when jurors quote "the law," most have no clue. You did a great job clearing that up, you thought. That must drive lawyers nuts!

      I may flesh that speech out here, soon perhaps. I remember most of what I wanted to say. It's easier to remember if you're not giving it to a room of people. From my recollection, they were all paying attention to what I was saying. But that could be my ego (which is not inconsiderable) talking.

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  9. That whole "Feelings", "in my Opinion" sums up why I'm vehemently opposed to the left's push for Political Correctness. If we can send someone to prison because someone feels they were guilty, not based on the facts brought forward on the case, then we're all doomed. Unfortunately, the left has no problem with that process, yet the right does and won't convict on that grounds. Guess who the prisons are going to be filled with. And, again, the left has no problems with that either.

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    1. That stuff was starting to drive me batshit crazy. My "speech" was going to address that, I think there's a blog post there!

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  10. Thank you, Sarge, not only did you honor your oath to "support, protect and defend the Constitution of the United States" you also were the juror that all of us would want if we were before the court. As a one time police officer, and a recovering attorney, I have seen cases that were open and shut screwed up by incompetent prosecutors who just failed miserably to do their jobs. Sometimes clearly guilty perps walk, and sometimes, because people on the jury don't understand "beyond a reasonable doubt" they get convicted anyway. But, as someone else who took an oath to the Constitution, I thank you, and your fellow jurors, who understood that the government always must meet the burden of proving their case beyond a reasonable doubt. It is, indeed, important that ten guilty men should go free rather than convicting one innocent man. It is jurors like you that make the criminal justice system work the way it should.

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    1. Thanks Dave.

      I like that, a "recovering attorney."

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    2. Now, now, there is no need to be nasty, Sarge. Actually, I kind of like the term, myself; not that I would ever admit it in public, mind you. :D

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  11. Your experience illustrates both the strengths and weaknesses of our judiciary system. Too bad you didn't get to finish your speech! Oh, and btw, has anyone optioned the screenplay yet??

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    1. Indeed.

      As to the screenplay, not yet, but I think it's been done before.

      ;)

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  12. A funny story about juries. A friend of mine was the mgr of Ye Olde College Inn in New Orleans and at that time they had the contract to provide catering service to the court system. They provided a menu from the restaurant to choose from and he said that most juries were mostly careful not to stick it to the taxpayer overly much and kept their requests fairly modest. EXCEPT once they had reached a verdict. He always knew when a jury had reached a verdict because for their last meal they ordered every expensive thing on the menu figuring, I guess that they saw it as their last bite at the apple! LOL!

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    1. I like that. Keep it low, then, when it's almost done, strike hard!

      We got a free lunch off the State once. That's alright, all they had to offer was sandwiches. They were good sandwiches but, they were sandwiches.

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  13. PS to SARGE/

    Better you than me!!! I guess with that experience you're fully trained to play Hamlet in the starring role now, right? :)

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    1. Well, I can do melancholy, very well.

      So sure, I could do Hamlet...

      O, there be players that I have seen play, and heard others
      praise, and that highly, not to speak it profanely,
      that, neither having the accent of Christians nor
      the gait of Christian, pagan, nor man, have so
      strutted and bellowed that I have thought some of
      nature's journeymen had made men and not made them
      well, they imitated humanity so abominably.


      Or words to that effect.

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    2. I have always preferred MacBeth

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    3. My paternal grandmother's maiden name was Bain, originally, so the story goes, it was MacBain. Which makes us distant relations of the MacBeths. As I understand it...

      So foul and fair a day I have not seen.

      (MacBeth's first line...)

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  14. Sounds like it would have been hung and the length of time spent made both sides want to reach an agreement.

    Great Foreman.

    In CA the alternates are decided before the trial.

    I would imagine that juries are always fighting emotion vs logic. State has to prove beyond a reasonable doubt.

    I would think jury purgatory for me would be the one recalcitrant juror that nobody can change. Of course sometimes that 1 is the right one and they end up changing the other 11.

    Interesting experience, and you did your duty.

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    1. Oh, it would have been hung, of that I'm sure. And yes, our foreman was awesome.

      In Little Rhody they don't decide the alternates until after closing arguments. The fear is that if you know you're an alternate, you may not pay attention as well. Apparently some folks are going to do that anyway.

      11 v 1 would be insane. The 1 better have a damned good argument to make!

      Interesting indeed. Essayons!

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  15. Sounds like you did the best you could in an unenviable situation. I'm glad it wasn't me. I'd have been seething the entire time.

    I understand the one lady's desire to see this guy put away for a couple of decades, especially if she's personally seen too many men get away with this sort of thing in the past. BUT... rules are rules. You can't introduce factors into jury deliberations factors not introduced during the trial proper. You can't substitute gut feelings for prosecutorial ineptitude. And you SURE as hell can't convict based on what happened in another case, no matter how similar the circumstances would seem to be.

    All in all, I guess the outcome was as good as could be hoped for. Maybe a retrial would have brought on a more experienced and canny prosecutor, who might have argued a better case. But then the daughters would have been dragged through the whole ugly process once more, and that wouldn't have been helpful for them, regardless of the outcome of the second trial.

    You hear a lot about "closure" in such situations, but that's a made-up concept if you ask me. Everybody should have justice. But closure implies that a conviction somehow ends the damage done, that it will be a healing thing. I don't see that. True closure would get the victim past what happened--another trial would do just the opposite, forcing them to relive it again, and publicly at that. A conviction wouldn't repair the damage: at best, it would prevent it from worsening.

    So the guy 'fessed up to being a sick MF--or at least he didn't contest being one, legally different but morally not so much. He'll now be known to be a child molester. If he really wasn't guilty, and these were imagined crimes, I don't see how he could have accepted the deal, although I suppose it's possible. In any event, if he was guilty he'll have a tough time doing it again.

    That's a net gain for society. The gain for the girls is that this person will no longer bring that situation back to their lives, and they can heal. So, all in all, the best you could hope for in an imperfect situation.

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    1. And you've summed it up perfectly Bruce.

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  16. Possibly a stupid question, but you said that Juror #7 mentioned she had personal experience with abused children. I presume that it's acceptable for her to use that experience in reaching her decision, but is it acceptable for any other juror to include her discussion in their decision, given that her experience is not (if I'm using the proper term) entered into evidence?

    And I'm pleased that the foreman took matters in hand the way he did, as I've seen and dealt with that kind of uncivilized behavior everywhere, including work. It plays well on TV, and is an effective tactic since it limits the opponent's opportunity to present and respond, and the audience remembers the one who's loudest and most emotional, but does nothing for a fair and reasoned debate. If I thought that behavior was reasonable, I'd have been a Jerry Springer fan.

    Bruce Jones

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    1. The judge indicated that our determination of whether the evidence indicated the defendant was either guilty or not could, and should, be based somewhat on our personal experiences. But not, as you indicate, have that replace what was brought out during the trial. Just because someone has worked with foster children and seen abused children, does not make one an expert. We had a couple of self-proclaimed experts on the panel. Frustrating as Hell.

      The more I think of it, the more I realize just how superb our foreman was.

      (So I guess your commenting woes have been resolved?)

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    2. Yes, Blogger.com drops third party cookies when processing comments. I've always blocked third party cookies based on technical articles that said they were an avenue for hackers. The interesting thing is that IIRC I've allowed Blogger cookies, but that seems to apply only to first party cookies. I may have to review that SOP.

      Bruce

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    3. Yeah, cookies. Good in some respects, bad in others.

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  17. Good job, Sarge, preforming you civic duty. I imagine most of your panel was emotionally drained after that particular case. Although not germane to the trial you heard, all too often "jury nullification" results in a threat or charge of "Contempt" by an often overbearing or arrogant judge. That further reduces the citizen's participation in the justice process. That said, if I may brag a little, Mrs Alemaster was frequently "shopped" by LEOs as she was always prepared for trial, didn't unnecessarily plea bargain, and generally insured "The People" received justice. When she left the Bexar County D.A.'s office and went to "the dark side," WDTxUSA, she had more successful capital experience than any other prosecutor in either office at the time. regards, Alemaster

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    1. It was indeed emotionally draining.

      But we all got through it. Now all that's left is a shattered family, hopefully those two girls can repair things and get on with their lives. It will be tough though.

      Thanks.

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    2. Ale aster, is she still licensed in Texas? You know, just in case?

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    3. Dammit iPad, I know how to spell. Alemaster!

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    4. She is indeed, Juvat. After teaching for nine years at Dallas Carter ("Saturday Night Lights")she claims she worked too hard going to law school to give up her card. Lots of her/our friends are judges or well experienced in their respective practices in the San Antonio area, "just in case." regards, Alemaster

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    5. Oh ye users of iPads, repent.

      Or perhaps I should say re ent.

      (Yes, I am bad...)

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  18. Rational Jurors: "Evidence does not support the charges, Not Guilty"
    Emotional Jurors: " I feel he must have done something so Guilty just because I feel it's right"

    Anybody wanna take bets as to just how accurate and estimate of what the juror's political leanings are?

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    1. Based on my observations, you're absolutely right.

      Oddly enough, for Rhode Island, the judge is a Republican, in a major way.

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  19. Our legal system and its method of procedure is supposed to work the same as the separation of powers at the Federal level- as a brake, not an accelerator. Subsequently, I do think I agree with the comment above that in this case, it worked out the way its supposed to, albeit through the leveraging of time against the defendant. Frankly, I expect that the prosecution probably walked into the case in a similar fashion- figuring that what they had to offer on the stand was so light, that either "feels" would carry the day, or they could get some sort of conviction or deal made on an extended wait.

    That said, I don't think it was actually justice served in this case, because a prosecutor should be far more prepared to go to war than what is described here. Playing for the feels should never be the option, and if a DA and the police supporting the case can't make a logical case for conviction through evidence, they need to learn how to do a better job of things and stop wasting the system's time. Would there be more garbage on the streets? Maybe. But as the wife is an Investigation Discovery addict, I'd be regaled with far fewer stories of wrongful incarceration.

    Pleading nolo here almost feels like the mook was saying "I didn't know I was molesting my daughters", or some similar manure. He's their dad. At some point along the way, he'd have changed their diapers. Alarms should have gone off even then stating, "this should be the only time in my life I get anywhere near my kid's anatomy, and even this necessary thing still makes me feel a bit uncomfortable".

    Still, he gets to go on the sexual offender list- or, as I like to call it, "the grand book of those who die first when society breaks down in the name of saving resources for those who are worth letting live".

    As a funny side note, in my only experience before a judge in my youth for excessive speeding, I plead nolo contendre; I couldn't refute that I was guilty in the instance, but in a request for leniency, I provided the judge with a few pieces of evidence- a mathematical chart showing the speed attainable by my vehicle at the time in sixth gear, and a confirmation from the dealership that the speedometer gear cable had been installed improperly (by me) upon completion of of a clutch replacement, signed, dated, and timed within a matter of an hour of me picking the car up out of the impound. The cable being loose, what I saw on the dash was a good 25% less than I was actually doing- and the car wouldn't know the difference either.

    Between that and the notes from the officer regarding my disposition at the time of the stop, and given the number of headcases he'd dealt with prior, I have to believe that he appreciated my candor and the fact that I had all of my shit in one sack. He reduced the fine further (after the officer at the stop had already done significant damage to that number to begin with to keep me out of jail- like most sport or grand touring cars, you couldn't tell the difference from 40 up to over a hundred once the suspension planted...), and ordered the clerk to return my license upon receiving payment.

    Could have probably thrown a couple grand at a lawyer and gotten out of the whole rap, but given it was out of state, it never hit the RMV to invoke points.

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    1. Reason and logic should always win over emotion and feeling in a court of law.

      This case seemed to have a lot of "meat" to it, it's almost as if 1) it was actually weak to begin with but they added more counts to the indictment to make it look gory or 2) they did a piss poor job of prosecuting, relying on the "it's for the children" meme so popular with progressives to get by with only the complaining witnesses' testimony.

      Either way, I think justice walked away from the table still hungry.

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  20. My goodness, what a tale. I'm glad you survived it. You are indeed a good citizen and person.

    Paul L. Quandt

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    1. Sometimes I manage to do the right thing.

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  21. After thirty jury trials over my 30 years of the practice of law and 40 plus court trials . . .

    Thank you Chris. Thank you for being a citizen.

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    1. Well, I figured I was picked, so I should do the job the best way I knew how.

      If nobody wants to be a citizen then we all become subjects of the State. I don't want that.

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  22. I was picked for jury duty once and as a binch of us where waiting around to see if we would be chosen the inevitable question came up if anone had ever been picked before.
    A little old lady said she had sat on a jury once. It was a child molesration case also. They had to let him go becomes the state did such a terrible job with the prosecution they couldn't convict. She went home and cried for days. They knew he did it, but had to let him go.




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    1. It sucks when the State thinks that they can do no wrong. Then go ahead and do something like that.

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  23. You can imagine the thoughts of a Commander who is now holding Captain's Mast on the basis of he said/she said. There is no evidence at all in these cases. We are not held to the same standard as a Court but if we are to command we must see justice done and that all subordinates see justice done. I'll be damned if I know how to do that without any evidence at all.

    I honestly don't know where we go in the future if a total lack of evidence of a crime no longer fails to sway the jury to vote for the defense. We see what it's like in university life but every single one of those cases is a law suit that the accused student will win in a court of law.

    If there is no evidence, there is no means of finding a defendant guilty. As you saw, weak, contradictory testimony by a 'victim' is pretty meaningless absent some real evidence. [All feelings set aside.]

    Been there, done that. It sucks.

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    1. I hadn't thought of it from the point of view of a commanding officer. But you're right, how does one maintain the requisite level of discipline in the presence of spurious charges? I am glad to have never been faced with that.

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Just be polite... that's all I ask. (For Buck)