Over the last 30 years, I’ve been fairly lucky when it came to jury service. I’d rarely been summoned and I’d never served.
I’ve been summoned maybe half a dozen times. In all but one of those times, I never even made it into the jury box for questioning. The one time I did get to the jury box, I was dismissed by the defense when I disclosed that my half-brother is a federal law enforcement agent. I thought that would be my “get out of jury service” card from then on.
No longer. Week before last, I was summoned. I made it into the jury box. I disclosed the federal law enforcement connection. The defense didn’t ask me about that or anything else. The State Attorney asked if my brother was in Florida and I said he was. There were no more questions, such as where in Florida or what federal agency.
I had a bad feeling. Especially when there seemed to a be a lot of
wackos….strange…folks in that box. You’re supposed to get a jury of your peers but I’m not sure how that word is defined these days.
I know what the word meant in England in the days of the monarchy. Does “peer” mean strictly in a socio-economic sense? That alone is not a “peer” as far as I’m concerned and we are not peers in that regard anyway. (Plus, the defendant was in his twenties…how can we be “peers”?)
The State Attorney asked if anyone felt the testimony of a law enforcement officer should carry more weight than anyone else. A few folks agreed, on the basis that they are “sworn” officials. It was clear from her additional questioning of those folks that a law enforcement agent’s testimony should not be given more weight than other testimony. Those folks did not make the jury.
The defense attorney, perhaps rhetorically, asked what he needed to do for a “not guilty” verdict. After no one volunteered an answer, he asked if anyone disagreed that he had to do absolutely nothing. He reiterated that the judge had pointed out earlier that the burden of poof is with the State Attorney, that his client is “innocent” until proven otherwise.
The defense doesn’t need to refute what the State Attorney says or call a single witness. Unless the State Attorney makes the case for “guilty beyond a reasonable doubt” then the verdict must be “not guilty” even if the defense is completely silent during the whole trial.
A few folks took issue with that. If the State Attorney makes certain claims and the defense does not contest them, does that not suggest the claims are correct? That silence is effectively concurrence with the claims? Those folks did not make the jury.
Neither did some folks who had close relatives convicted of DUI, which the defendant was accused of. Nor one guy who had served as a juror three times and described the experience as “frustrating.” When the State Attorney pressed for clarification, he said that trials do not seem to be concerned with the “facts.”
The only time I made it to the jury box, potential jurors were dismissed as soon as the defense or State Attorney had a problem with them. Not this time. After questioning, we were sent out of the room for about 15 minutes so the judge and attorneys could confer.
When we returned, the judge said he’d read off the names of the seven selected jurors (which included an alternate). After that, everyone else could leave. The seven jurors needed to stay for about 5 minutes for instructions about the trial date.
I wasn’t too surprised when my name was the third one read. Bummer…
There was still one opportunity not to serve. We had to call the night before the trial date and see if perhaps a plea agreement had been reached. Otherwise, we needed to be in court by 8 so the trial could begin at 8:30. The trial for this case should not last more than the morning. After that, it’d depend on how long the jury took to reach a verdict.
I didn’t see how that could take too long. Maybe there’d be a Breathalyzer. Or at least video. Not too much to contest it seemed to me. I wondered why the guy was even fighting the charge. Maybe he’s been convicted of DUI before and if he’s convicted again there’ll be a big penalty and so he figures he’s got nothing to lose by going to trial.
Wednesday night, I called in to check the trial status. No deal… My jury service virginity would soon end.
The trial was less than two hours. The only witness was the arresting officer. There was no Breathalyzer and no video. There was only one evidence exhibit, which I’ll discuss soon.
The defense focused on the sobriety tests. Four exercises were performed. The defendant (who I’ll call “G”) failed two and passed two. The defense stressed that the officer’s conclusion of DUI was very weak. It was only the officer’s “opinion.”
The defendant did have some drinks earlier in the evening, returned home and then had gone out hours later to get something to eat. That is why G was wearing flip flops and basketball shorts. By this time, he was no longer impaired. That was the defense argument.
In the jury room, we took a quick poll. There were six of us; one juror had been excused for an emergency. I was one of four who was convinced G was guilty on the DUI. I was one of two who wanted some clarification before deciding on the “failure to sign the DUI summons” charge.
The two “on the fence” on the DUI charge wanted to talk through the sobriety test issues. One of the two was the youngest juror, in her early twenties. She seemed to think that if there were any “holes” in the prosecution, then “not guilty” was the verdict. She seemed bothered that G had only failed two of four exercises.
The other juror, who we had volunteered as foreman since he had previous foreman experience, then discussed the sobriety tests. He expressed concern that even the tests G had failed were not, in his opinion, necessarily definitive. He said that even if sober, he probably would not pass the “stand on one leg” test.
Also, the fact the G failed all 18 steps in the “heel to toe” test (walk a straight line by putting one foot in front of another so the heel touched the toe of the other foot) meant nothing if in fact he was wearing flip flops. The footwear was not in the report and the officer could not remember what G was wearing. The defense noted that during the walk, G never strayed from the yellow line (a parking spot stripe) and that meant he was not impaired.
One juror noted that she was relying on one of the four exercises: the horizontal gaze. Follow a moving light only with your eyes. G failed this test. She and one other juror knew that this test is very reliable because failing it is based on an involuntary response. (After the trial, I confirmed that this is in fact considered the most reliable of the sobriety exercises.)
After we talked the tests out, I explained that my reason for “guilty” on the DUI charge was not the tests, since I agreed they seemed inconclusive, but the “totality” of the evidence. That none of the individual facts was critical to me but that together they left me no doubt he was guilty of DUI. Because…
The officer first became suspicious when he heard G squeal his tires and decided to follow him. Then, G stopped, backed up, turned the wrong way onto a one-way street and accelerated to 55 when the limit is 35. At this point, the officer turned on his lights.
When the officer approached the car, he saw G put a breath mint in his mouth. When he began talking to G, he could smell alcohol on his breath. So he asked G to perform the sobriety tests. After deciding that G was DUI, he arrested him and took him to jail. At the jail, he asked G to submit to a Breathalyzer but G refused by not saying anything. Nor would G sign the DUI summons.
The State Attorney asked the officer what credentials / experience he had in DUI. Three 24-hour courses in DUI; one 24-hour course in advanced DUI; one 40-hour course in DUI instructor. And over 1,000 DUI stops, with some 300 arrests. (This was an FSU officer; lots of students drinking and driving.) I was impressed….
Had this officer’s credentials / experience been minimal or had there been no bad driving, I’m not sure whether I would have found G guilty since the sobriety tests did not seem that conclusive. We all agreed that it was the “totality” of evidence that mattered. That won over the youngest juror who had been focusing on the sobriety tests.
Probably, G was “right on the line” of DUI, either because he only had a few drinks or had been drinking earlier and then was going out again for whatever reason. But if G was convinced he was not impaired, he should have taken the Breathalyzer. If he didn’t have the blood alcohol level to be DUI, the officer’s “opinion” would not matter.
His refusal to take the Breathalyzer was taken very seriously by all of us. We even asked the judge if that failure could be considered. The judge’s response: the failure to take a Breathalyzer test is a fact and therefore a type of “evidence” which can be considered along with all other evidence.
Oh, and the one evidence exhibit? A paper wrist bracelet that said “Miller Light” which is what the bars near FSU (where he was arrested) use to ID those who showed at the door they are of drinking age. So he definitely had been in a bar. If he had returned home and gone out again, why did he leave the bracelet on? More likely, he was returning home from drinking.
As for the “failure to sign the summons” charge, once I clarified that signing the summons is not in any way an admission of guilt, then I had no problem finding him guilty on that charge too. So it was a unanimous verdict of “guilty” on both counts. The deliberation took about 45-60 minutes.
After the trial, I did a Google search of the defendant’s name and included “Tallahassee.” I had one hit and went to a website which had mug photos. It was his mug photo from the night he was arrested. Included in the information was that he had a previous DUI conviction. If convicted on a second DUI, he loses his license for five years, could serve up to nine months in jail and faces a fine of at least $1,000 and up to $2,000.
Of course, the prior DUI conviction was legally “irrelevant” and could not be presented in court. What if the youngest juror held her ground? There’d be a hung jury and a mistrial. Would the State Attorney have prosecuted again? If not, what had the defendant learned? That he can drive DUI and get away with it. And the next time, he might have killed or seriously injured someone.
But even if his license is revoked, I’m not confident that will stop him from driving. The prior DUI conviction didn’t stop him from driving DUI again. He probably drove DUI many times before getting caught the second time. His attitude will be that he can drive until he gets caught. At that point, they better put him in jail for awhile.
But I’ve done my part to keep him off the street…