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)