Many Are Called…I Was Chosen

But not for something most folks want. Despite the odds being against it, I was selected for jury duty last Monday.

When I received the summons, I wasn’t too concerned. I’d been summoned before and not selected.  There are many opportunities for not being selected.

The first opportunity is when a plea bargain is reached before the day jurors are selected. But when I called the day before, I was told to appear.

The second opportunity is to not even sit in the jury panel. But I was in the first group of 21 called. Now, I was concerned. There were two cases and I had to be passed over for both cases. Still, since they only need seven jurors (one of which is an alternate), there was a 65% chance of my not being selected.

My spirits rose when I was not selected for the first trial. Only to be dashed when I was the fourth one named for the second trial. I’d need to return Tuesday morning, when the early morning temperature was predicted to be the season’s first hard freeze with a low of 34. Since retiring 2 1/2 years ago, my normal “get out of bed” time is no earlier than 9 AM but I needed to be at the courthouse at 8:30. Unless…

Unless there was a last minute plea bargain. But when I called Monday evening, I was told the trial would proceed.

The case involved domestic violence. The first charge was “domestic battery by strangulation.” The second charge was “aggravated assault with a deadly weapon” (a serrated bread knife).

At least five years ago, I was a juror in a Driving Under the Influence case. From that trial, I learned that the defense will go to trial if they believe the evidence is not that clear cut and the prosecution is unwilling to a plea deal that the defense / accused like.

During the jury selection, the defense kept stressing that “all” elements of a crime had to be proven “beyond a reasonable doubt.” The accused is presumed innocent unless there is convincing evidence to the contrary. The defense does not have to prove anything; the entire burden is on the prosecution.

The old McDonald’s Big Mac commercial was brought up: “two all beef patties, etc.”If a Big Mac is a crime and even one of those “elements” is missing, the defense noted, then it is not a Big Mac. So if the bun has no sesame seeds, it is not a Big Mac and the verdict must be “not guilty.”  Because “close enough” doesn’t count in a trial. That led me to conclude the defense believed something was missing from the prosecution’s case.

And I was right. The State failed to provide evidence of all elements of the principal charges. There was little objective, supporting evidence. We had to rely on the victim’s credibility and we found it lacking on several counts. Without complete evidence and credible testimony, we had “reasonable doubt.”

The prosecution’s case was that last July 4th, the victim and accused, who were living together, had a party at their duplex with one friend of the woman. The woman’s mother called and she took the call on the back porch. The boyfriend thought it was another man calling and became upset, so he went to the woman, grabbed and broke her phone and then began beating her “for some time.” (No information about what the friend did or didn’t do after he began beating her.)

After this, the woman and man went to sleep in the same bed. In the morning, the woman went to the kitchen and was followed by the man. He took a serrated bread knife, held it “very hard” to her throat and said “I should kill you.” Then he went to work while the woman stayed home all day.

That evening, the woman’s daughter stopped by and she called police after seeing her mother’s bruises. The investigating officer interviewed the man and woman separately. The man admitted that a fight had occurred. He stated that he never put a knife to the woman’s throat. That morning, sensing she was still upset, he went to the kitchen, brought the knife to the bedroom , put it on the bed and told the woman to stab him if she was still mad.

On the first count (domestic battery by strangulation), photos of the victim’s neck taken by the investigating police officer some 24 hours after the incident showed bruising on both sides of the neck but not the throat area. Why not? Had they faded? Or were they never there?

The prosecution provided no medical testimony that throat bruising can fade away after about 24 hours. It seemed to me that if the man had grabbed the woman from behind, that would explain bruising on the sides of the neck but not the throat. But it was not the jury’s job to speculate why there were no neck bruises. The prosecution had to prove, beyond a reasonable doubt, that he had strangled her and there was no photographic evidence of that.

Should we just accept the woman’s testimony that she was strangled? In the jury room, we all had problems with her credibility. Why was her mother not testifying that she had called her daughter at that time? Or that phone records show her mother had called? Just to support the woman’s credibility. The victim was on work-release from prison and had been convicted of two felonies. Not exactly an upstanding citizen. There was another credibility issue I’ll get to regarding the second charge.

We did see photos of  bruising on other parts of her body. Consequently, we found the man guilty of the lesser charge of battery. No reasonable doubt there.

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On the second charge (aggravated assault with a deadly weapon), it was a “he said, she said” situation. If a sharp knife had been placed against her throat “very hard” why did the photos not show any sign of even a slight cut?

Her credibility was further eroded when, on questioning by the prosecution (to pre-empt the defense asking it) she told us that the reason she did not go to the neighbor’s duplex to call police the next day after the man had gone to work was because she was “too sore” from the beating. But in the jury woman we noted that she was not “too sore” to walk to the kitchen, where the man purportedly put the knife to her throat. It was not that many more steps to the neighbors.

We considered the lesser charge of “assault” but that had the same problem of “he said, she said.” We cannot assume that she is telling the truth and he is lying, especially considering her credibility problem.

Some folks will say: “why would she lie?” But the defense noted that we do not need to answer that question. Folks lie for all sorts of reasons. The real question is: is she credible? And we did not believe she was. So without objective evidence and because we found the woman’s testimony lacking credibility (which does not mean we think she was lying), we all easily agreed on “not guilty” on both of the two “assault” charges.

We did find him guilty of another lesser charge: improper exhibition of a weapon. He had told police that he brought the knife to her and suggested he stab her if she was upset. Even if he did not threaten her, he put himself in danger by bringing her the knife. And that is illegal.

Under Florida law, it is illegal for someone to: exhibit a weapon in a “rude, careless, angry or threatening manner.” The key word is “or.” Any one of those four things is illegal. Bringing her a knife and allowing a situation for her to harm him is certainly “careless” for his own safety. And he admitted to bringing her the knife when talking with the police.

The deliberation only took about 45 minutes. Not one of the jurors believed either of the two original charges had been proven “beyond a reasonable doubt.” We all had doubts about the woman’s credibility and the supporting evidence, mainly the photos, did not convince us “beyond a reasonable doubt” either.

I am surprised the prosecution believed that we would accept the woman’s testimony at face value given her status as a felon. The lack of testimony from her mother and friend was glaring and suspicious. As was the issue of her being able to walk to the kitchen but “too sore” to take a few extra steps to go to the neighbor.

For me, if evidence had been presented that her mother had in fact called then I might have been more inclined to believe the woman’s testimony. Maybe she believed that if it came out that she was talking to another man, and not her mother, then perhaps a jury would think that somehow lessened what the man did and so she lied. But if she was lying to the police about who had called, then what else was she lying about?

I’m glad we were able to convict him of battery. That was an obvious verdict. I think the State took a significant gamble that it could win at least one of the two original charges. And it lost. Maybe next time, it will offer a good deal when the evidence is weak and the victim’s testimony has credibility issues.

I was puzzled about why the defense did not raise the issue of evidence about who had called in order to impeach the woman’s credibility. Maybe they believed that raising the issue might backfire by the jury thinking they were being heavy handed, thereby creating sympathy for the woman. They did note she was a twice-convicted felon and may have believed the jury would realize there was no evidence corroborating the mother’s call and come to a conclusion about that on our own. And we did.

If you serve on a jury, remember this: the trial is proceeding because the defense has seen one or more weaknesses in the prosecution’s “evidence” and believes it will find at least one juror whose verdict will be “not guilty” to the principal charge(s).

We read in the newspapers about how someone accused of a crime is found “not guilty” and wonder how the jury arrived at that verdict. But the media often only presents some of the evidence, not all of it. Especially what might be lacking. Or the nuances involved in what must be presented for “all” the elements of a crime to be present for there to even be a crime.

Only the jurors (or those present in the courtroom) hear all the evidence. If you have been a juror, or when you serve as a juror, you’ll understand. But I won’t have to serve for at least another year.

 

 

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One response to “Many Are Called…I Was Chosen

  1. Winner, Winner! Big Mac dinner!!

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