Reflections on Jury Duty?—?by Juror #10, aka Ethan Kurzweil

While I can admit to a passing fascination with the criminal justice system – and a mild obsession with Season One of Serial — I’d never given much thought to the human element of our judicial system. Until I found myself smack in the middle of it.

Last month, I added a new title to my resume: Juror #10, San Francisco Court Criminal Division, Department 21, called to serve on a roughly three-week long trial. Most friends assumed I’d failed to get out of having to serve. Those who knew me even better assumed I’d made a deliberate attempt to get selected! While neither is true, I’m glad I did my civic duty, as I gained an appreciation for the system, but also saw firsthand just how imperfect it can be.

The case: A bedroom encounter gone awry (with multiple versions of the incident depending on whom you believed). Judge Jeffrey Ross presided over the case, and while I have no basis for comparison, Judge Ross seemed highly focused on ensuring a fair trial for the defendant, and I was impressed by his consideration for the jurors as he worked to minimize the inconvenience to our lives and schedules. Each side was well-represented by competent attorneys: the state by an Assistant District Attorney from the San Francisco DA’s office, and the defendant by a Deputy Public Defender. Both were passionate in their advocacy and thorough in seeking evidence benefitting their case. (I later learned that San Francisco Public Defender’s Office is one of the best in the country.)

The first day, I rushed to the Hall of Justice from my office a few blocks away. (It turns out that court hours — for jurors, at least — are lean; I regularly scheduled meetings before reporting to duty.) Sitting in a jury pool of 300 people, the mathematical laws of probability implied that I was highly unlikely to be selected. So I did what any of us would: I pulled out my laptop, noted the Wi-Fi password displayed on the wall, and settled in for a couple of days of jury selection that would presumably end in my dismissal.

As it turns out, my calculations were a little off. More than half of the pool came up with at least one reason (some several) that they couldn’t serve objectively. Many were impressively creative, I’m sure. Then, juror after juror was dismissed by the Judge and attorneys, some for cause (e.g., explicit bias and other statutory reasons) while others were discharged through challenges allotted to either side, enabling attorneys to remove jurors they perceived to be unsympathetic to their case.

On the fourth day of jury selection, as I still waited to be interviewed, amongst a far smaller pool of people than on that first day, reality sank in: I might actually be selected for this jury. Visions of rescheduled meetings and an overstuffed email inbox danced in my head. Suddenly, I was called up and questioned for maybe two minutes. (That’s it? I remember thinking. That’s all you’re going to ask me?) When the attorneys finished their last questions of the latest batch of tributes, I mean, potential jurors, both sides stopped challenging, and within minutes, the Judge declared the jury selected. We were told to rise, take an oath, and clear our calendars. I was officially a juror.

Jury selection behind us, the trial started. My first thought was that the process really did resemble TV depictions: There were constant objections for what seemed like arcane reasons. Continual sidebars that we couldn’t hear leaving jurors to guess at the substance. Passionate advocacy from both sides. At least one wild courtroom scene involving a hostile witness. And, most vexing to us on the jury, facts that could be interpreted multiple ways depending on your disposition to the case and numerous other factors that I’ll discuss. There were also pleasant surprises. For starters, jurors can ask questions of the witnesses—or, more accurately, submit questions for consideration—a welcome addition to an experience that is otherwise entirely passive until the end. And, while the Judge often missed the mark (considerably!) on scheduling, he respected our time by telling us not to come in when legal issues needed to be handled outside of our presence.

The experience also revealed some major limitations. Our court system is living in the past. The acoustics and AV setup of the courtroom were severely lacking — even relative to one’s expectation of a 1950s-era building desperately in need of replacement. The Hall of Justice—untouched by decades of technological advances—stands in stark contrast to the offices and homes that we jurors were accustomed to. I wasn’t the only one to raise an eyebrow at the archaic stenotype machines and displays wheeled around on carts. Notes can only be written in a notebook, and querying testimony during the deliberation process happens through an arcane process: The jury must describe the portions we want on paper, give the attorneys a few hours to argue about what should be turned over, then listen as it’s read back to us by the court reporter. For those accustomed to Google and Evernote, it felt like the functional equivalent of communication through hieroglyphics and carrier pigeon. (At least once, we didn’t even get the testimony we asked for—no doubt the result of attorneys convincing the Judge to sculpt the reply to benefit their side.)

Even before the jury gathered to discuss a possible verdict, many things struck me about the process and the case. First: getting to the truth is hard. A great many facts revealed impossible inconsistencies between the parties and various versions of the events. We all wanted an explanation. Were witnesses lying? Misremembering? Being mistranslated (much of the testimony was in Spanish)? Confused about the question? All three? How many of these inconsistencies were fatal to the prosecution’s case — or how many should simply be overlooked as a natural consequence of being asked for specific details from an event a year in the past? When witnesses didn’t have a specific recollection of what they did during the day in question — and sometimes even when they did! — the attorneys would often ask witnesses with their “general practice” was. Should we consider these general practices as indicative of what did happen or may have happened that night?

Many inconsistencies were never even addressed, much less resolved, leaving us to wonder whether the contradictory facts really even mattered in the end. There were so many different explanations for even the agreed upon facts and evidence — from innocuous to nefarious — that piecing it together to get to a conclusion by necessity required ignoring incongruous pieces of evidence.

Then there were the constant sidebars and limitations of scope referencing motions and rulings that happened outside our presence. To the naturally inquisitive, like me, these were maddening. It felt like having five pieces to a nine-piece puzzle and trying to guess what’s missing and why. Also, abiding by the limitations of scope is an exercise in conscious delusion at best (e.g., the jury shall disregard the second part of the witness’ answer about having PTSD but may consider the first part where she said she was stressed): DON’T THINK ABOUT A PINK ELEPHANT RIGHT NOW. Actual social psychological research demonstrates the absurdity of it all.

The Judge has a huge impact on what facts get presented, how they get presented and how they are viewed. It’s impossible to know what we weren’t told or how our impression of the evidence may have shifted under different circumstances or with additional facts revealed. The Judge makes about 50 minor decisions every hour regarding which questions can be asked, when to stop a witness from answering, when to admonish an attorney, etc. and countless major decisions about what testimony and witnesses can be presented and what arguments made that impact the presentation to the jury. There were constant allusions to the Judge’s rulings and limitations, but we could only guess at what we weren’t told and why.

Most importantly, being forbidden to discuss the case with fellow jurors and hear their impressions and reactions live as the case progressed felt frustrating and artificial. Not being able to talk about specifics of the case with my wife, family and friends proved even more challenging. Imagine attending a riveting movie, and right as you walk out the door, an authority figure forbids you from discussing the movie with anyone – even to confirm which movie you saw. By the end, I developed a litany of off-the-cuff retorts to deflect the understandable curiosity of coworkers and friends.

As the case dragged on, life and work disruptions mounted. I felt a strong temptation to ask the Judge to dismiss the attorneys, let us talk to the defendant and a few witnesses directly so we could figure it out on our own. Or failing that, let us object to questions that I could say with near 100% certainty would have no impact on our determination of the case whatsoever. (E.g., Question: Did you sign this form on the date that you wrote next to our signature? Answer: I don’t remember.) At one point, I was so frustrated that I considered telepathy to convey my feelings to the attorneys.

Fortunately, the testimony and arguments finished, and we edged closer the magical moment where we’d decide the case: jury deliberations. But first...the jury instructions. 36 pages of them. Some were helpful guides to interpreting the law. Some were useless, like this gem: “You alone must judge the credibility or believability of the witnesses. You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe.” Or this: “If you decide that a witness deliberately lied about something significant in this case, you should consider not believing anything that witness says. Or, if you think the witness lied about some things, but told the truth about others, you may simply accept the part that you think is true and ignore the rest.” Thanks, California Criminal Jury Instruction No. 226; that’s helpful!

The meat of the jury instructions was a list of the elements that together made up the charges against the defendant in our case. This turned out to be tremendously complex with two major counts – each of which included 4-6 elements – each of which had to be proven beyond a reasonable doubt. If we didn’t feel that every element was sufficiently proven, there were another 5 or so lesser charges that might apply, depending on which elements we did feel were proven. Much of the first day of deliberation was spent outlining and discussing this, and we would need to revisit each item when we took final votes.

Finally, we got to the core of our deliberation — the hardest part of the process. Imagine taking a vote on a product decision for a startup or an investment decision requiring complete unanimity with twelve people you’ve never worked with before, or even talked to at all beyond cursory pleasantries. Our case, which dealt with an alleged sexual battery and assault, involved incredibly delicate material regarding where, in what manner, and how the defendant touched the victim, whether that touching was welcome, as well as highly subjective assessments of intent and state of mind and what a reasonable person would perceive in a similar situation. It’s not exactly comfortable to discuss these topics in detail with 12 strangers only days after meeting. Our case occurred before the courageous letter from the victim in the Stanford case was widely circulated, but the larger societal implications of this type of allegation were pervasive throughout.

As it turned out, our jury was diligent and highly competent. The foreperson took the role seriously, effectively ensuring that everyone’s voice was heard, and that we stayed on track, wading through the right issues and surfacing divisions in our points of view so we could discuss them openly in an effort to reach consensus. Most of us had taken detailed notes and had strong recollections of what was said and what it may have meant – and which testimony we should revisit to help resolve an issue. I was impressed and pleasantly surprised by my fellow jurors’ attention to detail, which turned out to be critical to resolving the various claims; I wondered at several points how a less attentive jury might ever reach a reliable conclusion.

In the process of deliberating, tidal waves of emotion carried us one way or the other. After hearing or discussing a particularly damaging or exculpatory piece of evidence, you could feel the emotional impact on the group. In moments like these, I could see how juries might get it wrong. Not every fact presented in the cold and dispassionate setting of a courtroom is as it seems. Things are said or done that seem suspicious but have innocuous explanations, and when these sorts of facts are later discussed by twelve strangers locked in a windowless room, it’s easy to imagine that a certain fact may be assigned more or less weight than it deserves. It requires incredible fortitude and emotional resilience to resist getting swept up in the current.

I found myself in this position at one point toward the end of our 3 ? days of deliberations, as did other jurors at various points. Thankfully, my fellow jurors gave me the space I needed to consider the point, offering their points of views without pressuring. I suspect all juries aren’t this considerate.

The process drained me; it drained us all. You could see it in the eyes of the jurors towards the end of the deliberations as we paced the hallways trying to reconcile the different views we had on the facts and legal conclusions that followed. Despite the Judge’s admonition not to think about the case outside of the jury deliberation room, I lay awake from 1-3am during this phase of the trial, running through details of the case and the various perspectives and arguments made in the deliberation room.

In the end, the human element of the process stuck with me the most — and how fallible that is, given the interpersonal dynamic of the jurors, their attentiveness, and most importantly how persuasive a particular set of jurors is in convincing others to adopt their point of view. At many points in our discussion, I could imagine different results if a particular insight wasn’t shared at just the right point in time, or we hadn’t had a specific piece of testimony shared with us, or a persuasive argument wasn’t framed in just the right way, striking a chord with those around the table.

Many jurors – myself included – changed their minds multiple times throughout the discussion. This is as it should be; the entire premise is to deliberate and not make up one’s mind until a proper discussion and analysis amongst the jurors occurs. But the degree to which I felt like the result of a given case could really go either way wasn’t clear to me until I experienced it first hand. I’m confident that we reached the right result in this case, but I also believe that we were a highly functional jury. What happens to defendants who aren’t so lucky?

I never imagined the emotional toll the case would have on me. (Deciding whether another human being is guilty of a crime felt like a very weighty decision.) But I feel fortunate to have served. Sure, it was a major distraction from the normal priorities of life, but it’s so foundational to our system of justice that it would feel wrong to shirk that responsibility. I didn’t love neglecting work and family to serve as Juror #10, but it’s worth stating that everyone understood. I told countless people that I needed to postpone a meeting or defer responsibilities because “I’m currently serving jury duty on a criminal trial”, and the excuse was so universally accepted that I may continue to use it! (Just kidding.) The Internet is rife with step-by-step instructions on getting out of jury duty; it’s a bit alarming that so many respectable, law-abiding citizens can’t be bothered. And despite my misgivings about certain limitations of the system, and my fears that a jury could really get it wrong, much like Winston Churchill’s thoughts on democracy, I’ve come around to the same point of view on the jury system. It has its flaws, but I can’t imagine it any other way.