Twelve Civil People

How My Jury Duty Gave Me Optimism for America

A scene from the movie, Twelve Angry Men. If you haven’t seen it, see it!

I was recently called for jury duty. One of my many professions, but the one that actually earns me money, is as an expert witness regarding technical matters in intellectual property litigations. When one company sues another over stolen technology, for example, my team and I will be hired to review technical specs, read patents, review software code, and reverse engineer electronic hardware.

I’ve been a consultant or expert witness in over 260 lawsuits and testified in court over twenty times. Because of this experience, I figured I wouldn’t be selected for a jury. I had too much knowledge of the legal system. Lawyers typically want a blank slate—someone without too much prior knowledge—so that the juror has no preconceived notions about the law.

Also, I’ve written about the law. I’ve publicly disagreed with Supreme Court decisions. I was sure that the lawyers would research me, find my articles, and exclude me. It’s well known that one assertive juror can often convince the others to vote one way or another. I don’t think I’m that kind of person—in fact, I consider myself very fair and prefer a cooperative decision-making process, though I do like to step in when people are being indecisive. From my writings, I could appear to be headstrong and outspoken. And I can be. This was another strike against me being on the jury. I figured I’d bide my time for a day and then get back to my normal routine.

Voir Dire

The process of questioning potential jurors is called voir dire, pronounced “vwah deer.” The defense attorney told us it roughly translates as “to speak the truth.” It’s used by each side’s attorneys to eliminate those people that they feel might be biased against their client.

I was not among the first group of 24 people who went into the jury box for questioning, but I sat on the side with about 12 other people, listening to the questions and responses. I was surprised by how much of the case the lawyers explained to the jury before the trial. We learned that a black man had been stopped by a white police officer. The black man was accused of running from the officer, and when the officer caught up to him to take him down, the man wrestled with the cop and attempted to take his gun before he was subdued by the cop and the backup police who had arrived.

There were two prosecuting attorneys for the State of Nevada. One was a stocky, white man with close cropped light brown hair in his late twenties or early thirties, but the lead prosecutor was a well-dressed, petite white woman with a cheery, alto voice and certainly older than the age of 16 that I might have guessed from her appearance.

There were also two defense attorneys. One was also a stocky, white man with close cropped light brown hair in his late twenties or early thirties who could have easily passed as a brother for the prosecuting attorney. The lead defense attorney was a short black woman who seemed confident and friendly, and who threw a little street-smart slang into her questions and comments.

Given the specifics of the alleged crime in this case, it seemed that skin color could play a vital role, something that might make me uncomfortable, given today’s sensitivities about race. However, I feel that jury duty is a serious civic responsibility—a man’s future was at stake—so if I were chosen, I would take it seriously and attempt to render a fair and colorblind verdict. Still, I doubted I would be chosen.

During voir dire, George Floyd’s name came up. One potential juror—a young black woman wearing a black facemask—was the first to mention him. When asked if she trusted police officers, she said no. When asked why, she said that since the George Floyd case she had realized that most police officers were corrupt and prejudiced. Unfortunately, I think she believed that and wasn’t just saying it to get out of jury duty. An older white woman next to her chimed in that she agreed. She also seemed sincere. I knew that in a fair jury system, these two women would be excused. And they eventually were. With them out, I was brought into the jury pool toward the end of the first day.

With one exception, everyone took the process seriously. One man liked to answer snarkily. Not outright jokes or disrespect, but always with a zinger at the end or a silly question at the beginning. Like to the question, “Have you ever been in trouble with the law,” he would answer, “I once lost a poker game to a cop, does that count?” One or two of these might have been okay, but after a while, it grated on me. Would he take the case seriously? Would he be cracking jokes during deliberations?

One man admitted to having been arrested but also said he had friends who were cops. He said he had served some time in jail. He wasn’t happy about it, but he took his punishment like a man. He said he thought there were good cops and bad cops just like everyone else. I believed him. I thought he’d make a good juror because he didn’t hide his arrest, was open about serving his time, and seemed sincere. But I’d seen this before and understood that the prosecutor might think he’d be overly favorable to the defendant.

On day two, still in voir dire, the lead lawyer for the defense brought up George Floyd’s name when questioning the prospective jurors. Rather than asking individuals questions, she asked open-ended questions to the entire pool and politely solicited answers. “Who here feels they’ve been affected by the George Floyd case? Raise your hands.” When several people did, she asked them to explain why. I was surprised at these open-ended questions and decided to stay quiet. I’d learned a long time ago that volunteering answers usually isn’t helpful. It’s not that it mattered, but my expert witness training kicked in, and offering too many unnecessary words risks saying something stupid.

However, as the day dragged on, the pundit in me couldn’t resist. The defense attorney asked if it was ever okay to lie. People shook their heads. One person raised his hand. “No, I don’t believe it is.” A woman took the microphone. “I agree. It’s always wrong to lie, and I don’t trust anyone who lies.”

In my mind, I grabbed my head with my hands and shook it vigorously. Everyone lies! These people were lying about lying. I hate when people give the answers they think they should rather than what they know is true. So I raised my hand. “There are lots of times when it’s okay to lie,” I said. “Definitely when someone’s life is at stake or you’re forced to lie under duress. But there are all kinds of situations including not to hurt someone’s feelings.”

At that, one tattooed, pierced man’s hand shot up. He said, “Unlike that gentleman, I’m a devout Christian, born again. We live in a participation trophy world where we lie so as not to hurt people’s feelings. And that’s wrong. Jesus teaches me to always be honest with people so they can take my criticism and improve themselves.”

I could only think to myself that he’s obviously not married. “Honey, you do not look fat in that dress. You’re beautiful in everything you wear.” And doesn’t have kids. “No, you didn’t embarrass yourself up there in front of your class. Your performance was great.”

Then came the question about the burden of proof. “Why in a civil case is the burden of proof ‘more likely than not,’” she asked, “while the burden in a criminal case is ‘beyond a reasonable doubt.’” It was an interesting question that I hadn’t thought about before, so I pondered it. One man’s hand went up and he said, “because in a civil case, money is involved but in a criminal case, someone’s life or future is at stake. Criminal cases are more important.”

I thought that was a good answer, but not quite the right answer, so I raised my hand. “In a civil case, it’s two private citizens or entities opposing each other, but in a criminal case, it’s the government against a person. Governments are powerful. In the history of the world, I don’t think there are any cases of a government letting too many guilty people go free, but there are many instances of a government locking up innocent people—political dissidents, nonconformists, those of an unpopular religion or different skin color. America was founded to reject the authority of a monarchy and to limit the power of government, so a criminal case must have a much higher standard.”

A number of people nodded. Later, the man who had given the first answer came to me and told me I was right and his answer wasn’t. I told him I thought his answer was right, too. I just expressed it differently. “And much better than me,” he added.

Selection

When the selection was complete, the wise-cracker was rejected. Those who didn’t trust cops were rejected. Surprisingly, the fireman who said he had regular contact with police, as would be expected, was selected. The man with the arrest record was selected as an alternate. And maybe most surprising, to me at least, was that I was selected.

Trial

I was actually excited for the trial to start. I’d seen many civil trials, but few criminal trials and only one from the jury box. That one ended in a mistrial when the accused had been injured in jail and then the judge had suffered a heart attack.

When the trial began, the first thing I noticed was that everyone stayed awake. Not only that, but several were scribbling notes. Including me. Often, juries nod off after an hour or two. Especially in complex technology cases. Even I nod off (not on the stand, though). But as far as I could tell, the jury was awake and aware and concerned. After examination and cross-examination of witnesses, several of us gave notes to the judge with questions for the witnesses. Good questions.

The situation was that the accused, a black man, had been stopped by a white policeman in April for trespassing in a vacant lot that contained a homeless encampment. When stopped, rather than answer questions, the man asked a lot of questions. Over and over, he asked why he was being stopped. Over and over the policeman said for trespassing. When the officer told the man to step to the car, the man held his ground. The officer had radioed for backup, and they arrived and pushed the man to the ground and handcuffed him. This was all captured on bodycam. The man initially asked for medical attention but later refused it. This turned out to be an important fact.

Later, in August of the same year, the same policeman saw a bicyclist on a dark street late at night without the required light. Again captured on body cam, the policeman pulled over the cyclist, dressed in dark clothes, hoodie over his head, and black mask. As he approached, the man dismounted the bicycle as instructed but then indicated that he recognized the officer from the confrontation in April and took off running.

The officer chased the man down and pulled him to the ground. They wrestled, and the man was able to flip the officer on his back and hit him. The officer hit back, claiming in court that the man had been tugging at the gun in his holster.

After getting hit, the man got up and started running again. By that time, backup had arrived, and they took the man down. Searching him, the police found a small plastic container with baggies full of white powder that, when analyzed back at the lab, turned out to be methamphetamine.

The defendant was charged with three crimes:

1.       Possession of a Schedule 1 Drug with Intent to Sell. This is a felony where the sentence depends on the type of drug and the quantity.

2.       Resisting Arrest. This is a misdemeanor defined as defying a police officer and obstructing police from carrying out their duties. We were also asked to consider upgrading the charge to a felony because of the use of a firearm.

3.       Battery on a Peace/Police Officer. This is a gross misdemeanor or felony, depending on the circumstances, and means knowingly using unlawful physical force on police, firefighters, correction officers, judicial officers, or certain state or civilian employees.

The trial lasted two days. We saw lots of bodycam footage and heard testimony from police officers at the scenes of both confrontations. We heard from the forensic scientist who examined the baggies of white powder and found them to be methamphetamine. The defendant sat and listened silently without much emotion, sometimes leaning into his attorney to comment. He wore an ill-fitting large gray suit on the first day and a better fitting black suit on the next days. His hair was closely cropped, in contrast to his dreadlocks in the bodycam videos. Obviously he had been advised to dress conservatively for trial.

The defendant did not testify. We had been instructed during jury selection that we shouldn’t draw any negative conclusions about the defendant if he didn’t testify, as was his right. It was the burden of the state to prove its case, not the defendant to prove his innocence. These admonitions by the defense attorneys came so many times that I knew he wouldn’t testify. Also, it’s difficult not to read anything into his silence, but I would try. It’s always best for a defendant to testify, but some defendants, even innocent ones, have trouble testifying convincingly and articulately.

The case seemed pretty straightforward given all the video footage. The prosecution argued during opening and closing arguments that the defendant could be seen resisting arrest and battering the policeman, and that the drugs they found on him were packaged for sale. He obviously didn’t have the resources to buy ten small baggies of drugs for himself, the lawyers said, so he must have intended to sell them. And they were packaged for sale.

The defense argued during opening and closing arguments that during the second stop, which was the time he was charged with these crimes, the defendant recognized the police officer as the one who had harassed him previously and thus ran for his life. Fearing bodily harm is the only way that a citizen can legally run from a police officer and legitimately attack him. And with all of the incidents over the past few years of black men being shot by white officers, the defendant had a reasonable fear. As for the drugs, they were for himself and not for sale.

The trial ended around 5:30 PM. The judge asked us if we wanted to stay late or adjourn until tomorrow. I raised my hand. “Can we have a couple hours tonight to see if we can come to a conclusion? If not, we can return tomorrow.”

Heads nodded all around, so the judge permitted it.

Deliberations

I decided early on that I wanted to be the jury foreman. I don’t usually seek positions of leadership because of the stress, but I’ve learned that if I serve on a committee, it’s best to be the leader. I’ve served on many nonprofit boards where meetings drag on without any conclusion or decision because some people need to make speeches, some people get caught up in unimportant trivia, and some people question every decision. I have the ability to keep people on track, and I can usually keep the emotions to a relatively low level. We had important decisions to make. The decision needed to be correct—I won’t say it needed to be fair because, as we had been admonished by the judge, we were to follow the law despite our feelings about the fairness of the law. I thought I could keep things under control and on schedule.

It didn’t go quite as smoothly as I’d hoped.

Fortunately, when we stepped into the jury room, the man who had complimented me on my speaking abilities suggested me as foreman even before I could request it. A few people gave sounds of agreement, a few others nodded, and no one objected. So that part was easy.

I gave a short speech I had prepared in my mind. I said something about wanting to hear everyone’s opinion. I said something about us all trying to let everyone finish an answer without interrupting. I said something about how we all wanted justice and that we all needed to follow the laws even if we disagreed with them. And something about how we needed to consider only the facts that had been presented but not anything we might have heard or thought or believed. I asked if people preferred to vote anonymously, but everyone agreed that wasn’t necessary.

I also noted that I had read an article just recently that gave an explanation about the American legal system that was really great. It summed it up in one sentence. A judgment of “not guilty” is not a judgment of “innocent” but rather means that the government could not prove guilt.

At that moment, the bailiff knocked on the door and wanted to know if we wanted dinner. We all enthusiastically said yes and ordered pizza.

Battery on a Peace/Police Officer

I thought I would start with the third charge, battery, because this seemed straightforward. The video showed the defendant wrestling with the policeman and hitting him.

But again, I was wrong.

The jury was fairly diverse, though I don’t pretend to be able to know someone’s ethnic heritage or political viewpoint by looking at them. However, we had all discussed our educational background and our jobs during voir dire, so I knew we came from very different educational and economic backgrounds. When I brought up the third charge first, everyone agreed that the defendant was guilty, except one white woman who worked as a teacher for disadvantaged kids. She brought up the fact that many black kids distrust the police and that the defendant could have feared for his life knowing that the policeman beat him up last time. When others on the jury brought up counterpoints, she kept repeating, “but we don’t know his state of mind.”

These were civil but sometimes heated back-and-forth arguments for maybe ten or fifteen minutes. I made sure she had plenty of time to talk, but it did get frustrating as she went on without breath and I had to stop her to let others speak. She seemed dug in, and I began mentally preparing for a long night and possibly several days of deliberations. If we couldn’t get past the simplest charge, the other charges would certainly take much longer.

The teacher kept insisting that it was reasonable for someone who was high on drugs to make the decision to run. One person pointed out that we didn’t know if he was high. She said he might have had mental impairment due to his drug habit. I said that it was “unfair” and “unjust” for us to make assumptions about someone’s allegedly diminished mental capacity based on how he looked. I was hoping that might appeal to her seemingly progressive ideals.

Someone asked to rewatch the body cam of the arrest and his search. She liked that idea. People had me stop and start the video several times. Everyone noticed some detail they hadn’t seen when it played on the screen in the courtroom. After another ten minutes, the teacher had softened her objections but still wasn’t convinced. “We just don’t know what he was thinking,” she said.

“But what would a reasonable person do,” I replied. “We can’t know his state of mind, and we’re not here to judge that. What would we do in that situation? During his first stop by this policeman, the defendant wasn’t injured. He even refused medical help. So how could he be afraid of great harm the second time?”

She was silent, which was a good sign.

I added, “The judge can take his drug use and state of mind into account during sentencing. That isn’t our job.” We waited in silence for a minute or two, and then I suggested another vote. This time it was a unanimous verdict of guilty on a charge of battery.

Resisting Arrest with Use of a Firearm

We all agreed that the defendant had resisted arrest. Having decided that a reasonable person wouldn’t wrestle with a policeman or hit him, this charge of guilty came quickly. The question was whether we would add the more serious charge of use of a firearm.

The teacher spoke up again. “How do we know he was grabbing at the policeman’s gun? He might have been grabbing at the belt or pushing himself up to get away?”

At this, everyone seemed to agree, and the comments went back and forth again, but this time all in agreement with slightly different explanations. When it quieted down, I said, “We only have the police officer’s testimony about what happened during the struggle. The defendant didn’t remove the gun from his belt. The police officer said he felt the man grabbing for it, but the video didn’t show one way or another. The defendant could have been grabbing at the belt and happened to touch the gun. The police officer may have felt something in the struggle without knowing exactly what it was. Or the policeman may have even been exaggerating to justify his use of force. There was reasonable doubt that the defendant wasn’t trying to get his gun.”

We voted unanimously for guilty on the lesser charge of resisting arrest but not the greater charge of use of a firearm.

Possession of a Schedule 1 Drug with Intent to Sell

The drugs were found in small baggies inside a rubber food container. Three of ten small bags found on him were empty, obviously used by him. The state presented no witnesses who testified why they believed the drugs were for sale. I personally had no experience that this kind of packaging meant the drugs were for sale and I asked if anyone else did. There were discussions among the jurors, and two or three of the jury members were convinced the drugs were for sale. Why would he have so many? Why were they wrapped that way? He was probably intending to sell them at the nearby homeless encampment, they said.

I said that the prosecution’s opening and closing remarks said he had bags for sale, but opening and closing arguments are not evidence. The government needed proof and they didn’t have proof. They could have brought in an expert to testify about how they knew these bags were for sale, but they didn’t. Many of the jurors thought that was a definite possibility, but I pointed out that the government hadn’t proven its case, which is all that matters.

We unanimously voted not guilty for the charge of possession of a Schedule 1 drug with intent to sell.

Pizza and Verdicts

I went out of the room and told the bailiff that we were very close to a decision but just needed the pizza to finalize our verdicts on full stomachs. He assured me it was coming. Inside the jury room, you could feel the relief. People were talking and joking. When the pizza came, it was like a little party in there.

At about 9 PM, we had finalized our decisions and finished the pizza. I thanked everyone. I told them that I think jury duty is one of the hardest things and one of the most important things that most Americans will do in their lifetime. I was really proud of everyone in that room and proud of the American judicial system. It’s not perfect, and mistakes get made, but I’ve participated in court cases around the world, and I believe ours is the best system in the world. The other jurors agreed.

We went back to the courtroom, and I handed the verdict form to the judge. Her clerk read the verdicts, and the jurors were led out of the courtroom. As we paraded by the prosecution and defense lawyers, they all smiled and thanked us.

The entire experience felt really good. Like we had been thoughtful and reasonable and unbiased, and justice had been established to the best of our abilities. Lawyers on both sides indicated that they recognized that. Essentially, it felt like the American justice system had worked the way it was supposed to. It felt like people of different backgrounds could come together, treat this matter seriously, argue their differences of opinion, and come to agreement. In a country that is so divided and a world whose values seem to be crumbling, I needed this experience to give me back some hope.

On my way out, the judge called out, “Mr. Zeidman?” I stopped, concerned that I had done something wrong. I turned back to face her.

“Yes?”

“I have one question for you” she said.

I waited.

“Have you received your money yet from the pillow man?”

I smiled. “Not yet, but I’m working on it.” I gave her a thumbs up, turned and walked out.

About the author

Bob Zeidman is the creator of the field of software forensics and the founder of several successful high-tech Silicon Valley firms including Zeidman Consulting and Software Analysis and Forensic Engineering. His latest venture is Good Beat Poker, a new way to play and watch poker online. He is the author of textbooks on engineering and intellectual property as well as award-winning screenplays and novels. His latest book is Election Hacks, about the true story of how he challenged his own beliefs about voting machine hacking in the 2020 presidential election and made international news and $5 million.