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Me and Sylvia on the canal in Qibao (April 2011)

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The very idea of the (definitive) translation is misguided, Borges tells us; there are only drafts, approximations.

Andrew Hurley


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Friday, December 16th, 2005

Deviations

I want to list briefly the things I believe I did wrong while on jury duty.

  • The judge directed us not to deliberate over the evidence until all the testimony had been heard. I as-good-as-ignored this instruction, weighing the testimony as I heard it for believability and judging its implications with respect to other testimony I had heard. I am totally clueless, how I could avoid doing this.
  • While I listened to each witness testifying, I was directing as much or nearly as much attention to the lawyer who was asking questions, as I was to the witness. I was trying to figure out with each question, what the attorney's intention was in asking that question, what effect or spin was sought. This was not counter to any specific instruction from the judge but it did not seem quite proper to me. OTOH the defense attorney was spinning like mad, and if I were not permitted to grok this I feel like I would be at a disadvantage in trying to adjudicate the truth or falsehood of what I was hearing.
  • The judge instructed us furthermore, not to deliberate over the evidence while we were outside the courtroom. Again I did not pay attention, and mulled the case over in my head at home. As I noted in my previous post, I thought at home about my approach to the case; but also each day about what I was to make of the evidence I had heard so far.
  • There were three counts we were to rule on: aggravated assault with intent to cause serious bodily harm, aggravated assault with intent to cause significant bodily harm, and aggravated assault with intent to cause bodily harm. (They are similar counts -- the second is less serious than the first, the third less serious than the second.) The judge's instruction was that we should find the defendant innocent or guilty of the first charge, and only if we found him innocent on the first should we rule on the second charge, and likewise for the third. All of us on the jury, and I was no exception, decided to rule just on whether he was guilty of "aggravated assault" and then make a decision about the magnitude of the offense. This seems to make more sense to me than the way we were instructed to rule, but that's why I am not a judge.*
  • I felt from the beginning of deliberations that my prejudice was correct** and the defendant was guilty of assault. I tried to convince the other jurors of that, and several of them sided with me. But the three that I mentioned before seemed implacable. So prior to the second day of deliberation, I convinced myself that I could vote to acquit if that were the only way to reach a verdict. I justified this to myself by saying it would be better to acquit the defendant when I believed him guilty, than the opposite, and that he did not pose a danger to society free; but I believe the pattern of thinking I was engaging in might equally well have led me to vote to convict an innocent defendent in a different situation.
And I think that list is pretty complete. I may do one more post about this, not sure.
*If any lawyers reading this could let me know whether I am misunderstanding something here, I'd appreciate that. It just seemed bizarre to me that we were supposed to find him innocent of "aggravated assault with intent to cause serious bodily harm" and then start debating all over again whether he had committed assault, pursuant to the charge of "aggravated assault with intent to cause significant bodily harm". The way we did it seems much more sensible and I'd love to either be told, we did it the right way, or to have the judge's reasoning explained to me.

**This is such a quandary to me! I definitely formed a judgement within the first couple of hours of testimony, that the defendant was probably guilty -- I could think of a couple of bits of evidence that would change my mind but as the trial went on and it became apparent that none of them were going to be forthcoming, my judgement hardened. So what I am saying is, "All the evidence served to confirm my prejudice." But I have no way of proving that that I actually listened to the evidence and ruled fairly -- since I would have voted the same way had I totally ignored the evidence and gone with my gut response.

posted evening of December 16th, 2005: Respond

Thursday, December 15th, 2005

Due Deliberation

A few weeks ago I served on a jury, hearing an aggravated assault case in Newark. I have been wanting to write a narrative of the experience, this is a first stab at that.

I was standing, 3 hours into our deliberations, banging on the table and yelling at juror #8 that he had to listen to what I was saying, instead of just mindlessly repeating his same refrain, which was essentially "He [the defendant], is not a criminal, so I cannot find him guilty." I was kind of on edge for the rest of the day, and yelled or almost-yelled at #8 once more that afternoon.

That was not the proper way to go about juroring, I knew even as I was doing it and realized more clearly on my way to jury duty the following morning, to resume deliberations. I had been telling myself a story, during the testimony and closing statements, which pitted me against the sleazy defense lawyer; now that the testimony had ended I was transferring the antagonist role onto a group of 3 jurors, with #8 as their ringleader, who wanted to find the defendant innocent.

When I listen to the above paragraph -- and when I understood that morning what I had been doing -- it makes me seem really unsympathetic and like somebody I would read about who is going about his jury duty from a prejudiced and ignorant standpoint. But wait! -- thing is, the defendant was guilty. And the defense lawyer was sleazy. I take the fact of our eventual guilty verdict as vindication of my thinking the defendant was guilty, if not of my attitude during testimony. And going back to my memory, I believe that I can separate out the prejudiced personal narrative from what I was actually hearing, and feel like the verdict was proper.

On the second day of deliberations, things were a lot calmer. I apologized to #8, and he was gracious. I made what I think was my biggest contribution to the deliberations, which was to say: I think almost all of the events surrounding the punch, which were called into question by various bits of evidence, are extraneous -- if the punch was thrown in self defense, the defendant is not guilty of assault, and if it was not, then he is guilty of assault. I was able to get every other juror (including #8) to agree to that formulation, which meant that what we were deliberating about was brought into much clearer focus -- a lot of the tension of the first day had been caused by going around and around on the truth or falsehood of a lot of details which, because the evidence did not clearly support or refute, people were able to personalize and build narratives around. [That sentence is not clear and needs some editorial work.] Agreeing to my formulation made #8's notion that "he is not a criminal" recede a bit, so it was more about the facts in evidence.

More later.

posted evening of December 15th, 2005: Respond

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