The People’s Skepticism PDF Print E-mail
Swift
Written by Jamy Ian Swiss   

Recently I served on a jury for a criminal case here in San Diego. I’ve served beforeBlind Justice in New York City, on both a civil case and a criminal case, and in both instances we reached verdicts. Jury duty isn’t what I would call fun, or even pleasant, but it is interesting, challenging, and once it’s over, I have always felt it to be immensely satisfying. It’s the best of ourselves – or at least the opportunity to be – the best of us performing a genuine civic duty, one that requires more effort that voting and that has very specific impact on other lives in our communities. Thinking about the experience calls to mind Dorothy Parker’s famous comment about writing: “I hate writing. I love having written.” That’s kind of how I feel about serving on a jury (and also how I often feel about writing, now that I mention it).

This time around I was put on the jury but was selected as an “alternate.” As it was a criminal trial, twelve jurors are required but three alternates are also sworn in as jurors, to be available to take the place of any juror who for any reason does not complete serving for the trial. For me this aspect was a frustration, in that I was required to attend all of the trial with all the expected and appropriate diligence, but in the end I was sent home once the jury began to deliberate on a verdict. I imagine for some this might be a relief, as the trial is the easy part, it’s the deliberation that can be extremely challenging, as you try to get twelve very different people to form a unanimous agreement on multiple issues that are both weighty and complex. But for me it felt like juris interruptus.

That having been said, the trial, which included about three days of testimony and counsel’s opening and closing statements, was a criminal case, with a single defendant charged with buglary and robbery of a private home. Because the victim came home and discovered the burglar in the process of the crime, it becomes a robbery charge as well as burglary because the owner of the stolen items is present.

You might be surprised at the extent and variety of testimony we heard over the course of a couple of densely-packed days. There were two eyewitnesses, including the victim herself. There were various forensic, technical, and scientific experts. A type of plant, called a Kangaroo Paw plant, was discussed at length, because there were several around the crime scene and subsequently there were pods from the same plant species found on a shirt at the suspect’s home, and so we heard from a botanist among others. There was testimony about DNA analysis in order to tie the shirt to the suspect. We heard testimony from a number of experts on cell phone technology, because cell phone records were subpoenaed which tracked the location of the suspect’s cell phone during the time of the crime. And of course there was the expected parade of police officers, detectives, evidence and crime scene technicians, all of who had something to do with some portion of the “chain of custody” of the evidence used at trial.

As a skeptic I could not help but think, and think often, about how my skepticism might inform my consideration of the evidence. And as I imagined how the discussions might unfold in the jury room during deliberations, I could not help but wonder if my skeptical point of view might collide with how others might reason about the evidence.

In particular, I could not help but speculate what other jurors would make of the eyewitness testimony. As a skeptic, and a magician, and someone interested in the subject of the malleability of memory, false memories and related subjects, I tend to be inclined to give greater weight to so-called circumstantial evidence (of which there was a great deal in this case) than to eyewitness testimony. The pop culture view of the legal system has long tended to attach great importance to the notion of eyewitness testimony, a perspective with centuries of tradition in jurisprudence, but the more we learn about the fallibility of memory, the greater should be our skepticism of such accounts. I have long wished that judges would be required to advise jurors that eyewitness testimony should generally be given less weight in their consideration than circumstantial or forensic evidence; that is, not rejected entirely, but always approached with great caution. I mentioned this once to Barry Scheck, co-founder of The Innocence Project, a non-profit organization dedicated to preventing injustices within the legal system, with a focus on utilizing DNA evidence for the purpose of exonerating people wrongly convicted of crimes. Scheck agreed, but quickly added, “But that raises the whole question of what jurors think about judge’s instructions, and how they interpret them.”

As an aside, Scheck (many would note ironically) famously helped get O.J. Simpson acquitted of murder charges by demolishing the DNA evidence presented by the prosecution. Interestingly, as part of his work with the Innocence Project, he has supported passing a law in New York State that would, in order to reduce eyewitness misidentifications, require “that police identification procedures be conducted in a double-blind fashion, meaning that the officer who conducts the lineup does not know the identity of the suspect. This will ensure that the eyewitness is not influenced by clues delivered either directly or indirectly by police.” This would certainly greatly improve the fairness of such lineups, however it is a tough uphill climb to pass such requirements since (as for example in the very case I sat on last week) when a detective puts together a photo “line-up” – known as a six-pack in cop jargon – he or she invariably knows who the suspect is, and thus all such lineups would require a doubling of necessary personnel in order to achieve double-blind status, along with all the costs associated with such manpower allotments.

In the case I sat on, there was an abundance of evidence presented by the prosecution. Most of this was circumstantial evidence; the only “direct” evidence came from the two eyewitnesses, and their identifications were somewhat questionable. Although the victim had a face-to-face encounter with the suspect, and identified the defendant at trial as that suspect, nevertheless we listened to a 911 call in which she said she was unable to describe or identify his face because he held his arm across it the entire time in order to deliberately conceal his identity. Yet two hours after the crime she was able to identify the suspect in a six-pack photo lineup. I tended to believe her identification, but I’m not sure I would have been able to convict “beyond a reasonable doubt” if that had comprised the bulk of the evidence.

The defense case was entirely focused on the issue of reasonable doubt, and as a juror who has previously deliberated in trials, I can say that in my experience jurors bring great weight and seriousness to this issue. Judges explain to juries what “reasonable doubt” means, and attorneys spend a great deal of time talking about it, but still it is a subjective judgment call in the final analysis. In this recent case I sat on, the defense attorney, in her summation, focused almost entirely on the issue of reasonable doubt, trying to inject doubt into the jurors’ minds, and weaken anyone’s sense of certainty about the convincing caliber of the evidence. Sure, that was the defendant’s cell phone that we saw on the map near the crime scene that day, but has it been proven beyond a reasonable doubt that the phone was in the defendant’s possession, considering there were two phones listed on the account? Yes, the defendant might have rented the car with the license plate identified by the victim, but are we sure he was the person driving the car that day, or the person who had paid to rent it? Certainly the shirt was found at the defendant’s home, but how do we know those plant pods were from the same plants at the victim’s home, rather than from some other plant? And by the way, sure the victim identified the defendant in the lineup, but didn’t the other photos look too unfairly different in the first place, and the victim said she thought she was supposed to pick out the one who “most looked like” the perpetrator, whether or not it was actually him?

And so on! In virtually every ingredient of the evidence, some kind of doubt would always be present, since no one could say for certain – other than the victim, whose identification was somewhat questionable – that they had seen the defendant in the house, or with the jewelry, or driving the car, or wearing that exact shirt, or using the cell phone that day … and so forth. Hence all of that evidence was circumstantial, and it was up to the jury to determine the facts of the case, based on our weighing of the evidence.

There were other questions raised about the eyewitness testimony as well. The defense focused intently on the fact that the defendant was unusually tall – six foot, seven inches in fact. None of the eyewitnesses at the time described him as being excessively tall, most said he was about six-foot-one. Wouldn’t you notice if the guy was towering over you while you were face-to-face in your own home?

Personally, I don’t think so, and I didn’t lend much significance to the discrepancies in height. There’s only so much information you can take in during a brief, adrenaline-laden encounter. The second eyewitness saw the perpetrator running to his car with a suitcase clutched to his chest, and commented – I thought this was very significant – that if you’re running for your life with a suitcase clutched to your chest, you’re not standing straight up you’re hunched over. Point noted.

In one of the strangest moments of the trial, testimony was given concerning a shoplifting crime that occurred back in 2005. The store guard who confronted one of the perpetrators during that event, and who engaged in a brief physical altercation with the criminal, was asked the name of that suspect, who was eventually apprehended. Reading from her report at the time, she announced the name of the defendant. Then when asked by the prosecutor if she saw that person in the courtroom, she answered flatly, “No.”

Oops. Both sides got suddenly quiet at that obviously unexpected moment. Everyone kept their poker faces, and the witness was dismissed. But still, the prosecution managed to introduce the defendant’s prior record, on grounds (I surmise) that it demonstrated that the defendant was capable of the mindset of a thief; and perhaps as well that he knew how to get stolen goods “fenced,” since the kinds of items stolen in both crimes were likely to be resold. (An intruder who manages to keep his arm across his face throughout a struggle might also have been demonstrating some veteran criminal experience.) Subsequently an arresting officer on the shoplifting case was brought in to testify, and he in turn identified the defendant.

During the course of trial, jurors are repeatedly cautioned not to draw any conclusions about the case until all the evidence has been heard, and not to discuss the case with anyone, including other jurors, until deliberations begin. I try very sincerely to prevent myself from drawing any conclusions, and as I weigh the evidence during the course of trial, I am always asking myself what counter evidence might I find convincing, once the time comes for other side to present its side? And I do genuinely avoid drawing conclusions, even while I consider the facts according to the testimony as it unfolds.

Once deliberations began, however, I, along with the other alternates, were sent home, albeit asked to remain “on call” until the jury reached a verdict, in the unlikely event that for some reason a replacement was needed in the course of deliberations. I left the courtroom convinced that the defendant was guilty on both counts of burglary and robbery, and believing that this is how I would have voted in the opening stages of deliberations. I also know from personal experience however that it would not be as simple as that. I knew that others might disagree, that there would likely be much thoughtful discussion in the jury room, and that even with my initial confidence, I would also have to be open to being talked out of my opinion. This had indeed happened to me in one aspect of a trial I had prior experience with.

And so I went home wondering what was going on in the jury room. Had counsel for the defense managed to insert sufficient uncertainty into the process such that any jurors – and one is enough to result in a hung jury or alter the verdict in a particular count or charge – might be unwilling to vote guilty? Would some jurors be absolutely confident in the eyewitness identification? Would some jurors insist that the eyewitnesses’ failure to note a particularly tall perpetrator be enough to induce more than reasonable doubt into their conclusions? I tried to imagine the discussion, and what my position and argument might be in the face of such potential obstacles to convicting the defendant. I certainly could not rule out the possibility that someone would vote to acquit.

The next day, however, I got a call from the court. It appears it took the jury about two to three hours to reach a unanimous verdict: they convicted the defendant on all counts. I’m glad to say I agree with their assessment. I’m sorry I didn’t get to take part in the conversation, but I admire and respect their conclusions. I will never know who gave greater weight to the eyewitnesses and lesser to the circumstantial evidence, or who thought the other way ‘round. That, above all, is what the skeptic in me remains most curious about. But somehow these reasonable and reasoning people managed to find a balance and make sense out of the various discrepancies, and come to reasonable conclusions about the difference between ordinary human error and the possibility of deliberate dishonesty. Eventually they used their “commons sense,” as instructed by the Court, and came to believe that the overall picture painted by the evidence was convincing beyond a reasonable doubt, and that one Edward Goodwin robbed a house in San Diego on August 10, 2012, of several generations’ of a woman’s family jewelry, which sadly she never saw again. I hope he goes to jail for a long time, and I am glad the system seems to have worked reasonably well in this case. The law, as a prosecutor friend of mine has reminded me on more than one occasion, is a “blunt instrument” and not a scalpel, but this time at least the blunt end landed on the right head. Maybe there are more skeptics out there than we sometimes think, and that can only be a good thing.