Almost a Juror in a Murder Trial in Washington County

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I sat and wrote this mostly in one continuous effort, so please forgive the errors, boredom-inducing commentary, and staggeringly ineffective points. In my own defense, I was around lawyers today. I wanted to get much of this written down while it was still fresh, for comparison after I have time to think about it more. I’m going to leave out details, as some of it is accusatory and would probably get me into some trouble – being honest is rarely rewarded.

Of the hundreds of citizens called for jury duty in Washington County every year, I was one of the few both interested and anticipating the process. Not only does my employer still pay me as if I were working, but the process itself was something I was looking forward to seeing from the inside. I’m one of those rare unicorns who would have loved the experience. I knew that my desire to be called, in conjunction with the lack of legitimate financial or personal reason to not serve, was going to doom my enthusiasm – and not just because that seems to be the way everything associated with the government sometimes seems to work. Lord forbid that people who are both able to serve and interested in service get picked, much less serve on a jury. Somehow, it seems so much less fair to know that defendants and prosecutors are working with citizens who would rather be anywhere on the planet other than being forced into jury duty. I was expecting people to be disinterested, but I was put off by the level of frustration and lack of candor about the preconceptions and misconceptions about crime, criminals, and mental illness from many of the prospective jurors.

After getting the 3-month call of service, several weeks passed without any hint I might be selected. Finally, the call came and I showed up early today at the Washington County Courthouse. Part of the reason to arrive early was to people-watch and to observe the discomfort, nervousness, and behavior of those involved. As I always do, I brought a stack of index cards to take notes – or to take them until someone told me that I couldn’t do so. People laugh at me a lot when they see that I actually do have index or note cards in my back pocket. Even while waiting in the lobby area on the 4th floor of Judge Lindsay’s courtroom with the other 70 or so potential jurors, I wasn’t nervous and passed the time attentively listening and watching. Almost without exception, no one wanted to be there or be picked. Most joked that it was the befitting beginning for a Monday morning. I told several people that I was excited by the learning process – they looked at me with leprosy-filled eyes of suspicion or laughed because telling people you wanted jury duty is so rare that it sounds foreign when spoken aloud. It seemed as if a few people knew what kind of case it was going to be and that it would take a few days if it wasn’t settled. I don’t know how  they knew that or where the information came from. At that point, I didn’t hear them say it was a criminal case, but they did talk among themselves and one of them seemed to be familiar with previous hearings related to the case. One was a female voice seated around the corner to the right. As more people entered the lobby outside the courtroom, it got harder to pick out conversations, especially when the gentleman who works recycling was talking. I mostly stood in front of the glass case (the one with the 1980 Wash. County Bar members pictured) to the right of the elevators, facing the doors to the courtroom and the clerk’s office, basically dead center of all the people, seated and standing. The female deputy was mostly behind me, talking. Her voice made it hard to hear any of a conversation taking place to her right. It seemed like one of the women knew about the case, too, but I didn’t hear the specifics. They were all potential jurors, as they were identified by roll call once inside the courtroom.

When we all were called inside the courtroom, I deliberately sat in the middle, as far up front as possible in the front row, directly behind the defense table. Most of the other people did their best to get away from the action, so to speak, just as happened when we were all in school. The judge caused a murmur, as it turns out the case was for Samuel Robert Hill, a 27 year-old who was initially charged with capital murder and capital attempted murder, back on August 20th, 2014, in Elkins. It was the same case in which his mom shot Capt. Reed of the Sheriff’s office, claiming she thought Capt. Reed was her son Samuel as he approached her in the dark, intent on killing her as she escaped out a window. He’s also charged with aggravated assault due to allegations he beat his wife at another residence before driving over to where he shot his father. That charge will be tried separately and the defense has previously won the right to keep that from even being mentioned at the murder trial. Most people had no inkling they were there for a murder trial, although some definitely did. Since the initial charges, the charges were amended to take the death penalty off the table, as well as for the defense to claim an affirmative defense of mental defect at the time of the crime. With the capital punishment being off the table, I knew I could serve and listen to the law and the instructions related to it. When the judge explained that the capital portion had been removed, there were several verbal exchanges from the jury pool. It was my overactive imagination, of course, but I thought of the spectators inside the gladiatorial stadium.

I was able to sit 6’ from the defense table, close enough to read notes if I had wanted, and also with a clear view of the prosecution table. (I keep seeing the defendant’s unusual tattoo inside his left ear lobe.) While sitting there, I had no memory of the crime as it was described to us all. Several of the jurors talked about having memories, but almost no one spoke up, which is not the way the process is supposed to occur. When I got home and googled it, the fact that his mom shot the sheriff (deputy) (sorry, Eric Clapton…), jogged my memory. I remember people joking about it because it seemed like everyone in that house in Elkins was armed. Being so close, I had the chance to watch the defendant and his two attorneys very closely, see their body language, and watch them as they watch us, waiting to be called up to sit in the jury box.

The elderly lady sitting on the pew with me to my left was angry she was there at all. With the judge’s first question, she aggressively insisted that she believed that anyone charged by the police was 99.99% guilty. I think she meant it, too. The judge dismissed her. Behind me, among the courtroom pews full of potential jurors, I heard more than a few people make comments in agreement with the elderly lady who was dismissed for believing that defendants were basically all guilty. In reality, all of those people should have been sent home, too – but none were. The bailiff and the waiting police officers to my left next to the door undoubtedly heard the murmurs, too. There were several others dismissed as well, following her, for different reasons. Exactly as I predicted, I was picked to be seated among the first 12 numbers called. With the exception of one number, I noted the juror numbers as they were called up before and after me.

From there, it was voir dire, listening to the defense and prosecution ask us a series of questions about our fitness, opinions, and ability to be impartial based on the law and instructions. Since I was seated on the far left of the jury box, I had a perfect line of sight for the judge, defense, and prosecution. I watched all of them closely. The prosecutor talked a long time, much longer than the defense. For presentation and likeability, the defense lawyer John Baker was much more likeable and disarming. The two office workers seated on the other end of the table from the prosecutors were watching more much closely than the lawyers for the state – the dark-haired lady second from the end in particular seemed to have more interest in the proceedings and based on the documents she was holding, already had a good idea who they didn’t want, based our very basic questionnaire and/or appearance. While the judge and lawyers talked to us and asked us questions and explained points of law, I watched the body language of the prospective jurors. I was one of the few people who was in no way bored and felt comfortable being there – and felt okay turning to look down all the jurors who were seated to my right. I made eye contact with the defense lawyer and the prosecutor as much as possible. I could tell that the prosecutor was expecting some surprises in the judge’s instructions, ones that would benefit the defense over prosecution. Remember that the defense wasn’t denying that the defendant killed his step-father, just that he was out of his mind at the time, vaguely speaking.

The defense lawyer specifically asked us about the points of law associated with the absence of the defendant choosing to testify. Most jurors nodded their heads in agreement when he asked everyone if they felt that they defendant was guilty or hiding something if he didn’t testify. Most of the courtroom nodded their heads in agreement, whether they were seated and waiting or on the jury. While the prosecution would have tried to get me kicked out, here is what I would have told the defense attorney if he asked me: “No, since your defense is predicated on admitting that your client killed his step-dad, you are also maintaining that he was or is suffering from a mental defect. It would be idiotic to put someone of uncertain mental stability on the stand, even on his own defense, and doubly so if your intent is to get him help.” My answer would have been heard by every potential juror in the room, even if the prosecution would have thrown me out the window. It was truly a lost moment for the defense. What the lawyers didn’t see was what I saw from my viewpoint. Other than the court reporter and the judge, I had a great view of most of the courtroom. I wish they had they seen almost everyone nod their heads in agreement with the idea that a defendant who chooses to not testify is almost certainly guilty. It wasn’t a lukewarm agreement – it was confident and almost universal. This observation added to my premise that they defendant wasn’t going to get a fair review if most of the courtroom basically just agreed that if he didn’t get on the stand, he was lying or hiding something. This right to not testify, despite being described as a right and a point of law, one necessary to be on the jury, was obviously unimportant to most of the jury pool. But it was ignored. To be more specific, I think a reasonable person not involved in the case would have seen this and assumed that the jury pool was mostly comprised of people who could not be follow the law and not draw an inference of guilt or deceit solely because the defendant would not get on the stand. From this pool, though, the jury was chosen. Even if for that reason only, I knew that the jury pool was tainted. That was my opinion – and I was paying attention.

Ask yourself and your friends. I think most of them will say the same thing about a defendant not testifying- and there’s nothing wrong with believing it. Most people will say it is common sense and the way it should be. But as a point of law and for being chosen to sit on a jury, you shouldn’t serve if you truly believe that a defendant is lying because they invoke their right to not testify.

Since my group was the first seated, I knew most of us weren’t going to make it. If you’ve never witnessed voir dire and the juror questioning in smaller trials, it is important to remember that while each side has a certain number of strikes and challenges, the truth is that in the beginning, both sides almost never challenge the opposition if you don’t both call the same jurors out. It is only during the latter part of the juror voir dire system that the defense or prosecution starts trying to fight to keep certain people on or off the jury. A murder trial has larger implications and I knew that both sides were going to play it safer and then dig their heels in. Seeing the jury, I knew that, in general, older white males weren’t going to fare well during selection, for example. Older people in general seemed to have made up their mind.

After the initial presentation by both the defense and prosecution, both went up to Judge Lindsay’s bench and the clerk turned on the static generator for the intercom, presumably to mask the sound. There were a couple of problems with this, though. First, the courtroom is very small and even despite my old ears, I could still associate sounds with lip movements. Second, I also had a great view of the prosecution table. Third, it is easy to understand words in context and in this case, one commonality for all of it was that almost every comment or sentence started with the word “juror,” then “number” and then the juror number. Keep in mind that with the exception of one juror on the panel, I had noted on my note card the juror number for all of us. (That juror was a young red-headed female,  who was asked to leave when she said she couldn’t get past the grisly nature of the murder.) The judge almost immediately interrupted to tell the courtroom to be quiet so that the two teams and he could hear other. The net effect of his asking for silence resulted in me being able to hear and/or ‘see’ every juror number being called, including mine. I leaned to the older gentleman on my right, telling him that both he and I were being excused. “What did I do or say?” was his demeanor to my comment. He told me that they probably would have excused him anyway if they had discovered he was a pastor. He could see my note card with juror numbers on it, in two rows. No one had ever said I couldn’t note juror numbers – or anything else for that matter. He had his cellphone in his front shirt pocket so I asked him what time it was. I had heard 3 phones ring while seated in the pews, either softly or vibrating. The bailiff and court personnel didn’t seem to notice. A lot of jurors had cellphones, something that probably was a bad idea.

According to my count, only 4 remained. The judge called out 3 names, and the rest of us were excused. I’m not sure where I counted wrong, but it wasn’t too far off, given the circumstances. Even though I estimated 70 people had been called to the cattle call, I also realized that they were going to encounter some issues later in the day as they attempted to fill 12 seats and 2 alternates. I also predicted that juror selection was going to take much longer than anticipated. What troubled me is that I had already seen and heard a lot of evidence that jurors weren’t exactly being honest about their foreknowledge of the crime, their attitude about mental illness, their attitude about the defendant needing to testify, and the presumed guilt of someone being charged for such a crime. Nothing about it seemed fair or impartial. I was surprised that it wasn’t obvious to everyone else. It wasn’t just because I had been paying careful attention since I entered the building. It seemed like that sort of thing was commonplace and almost expected. Were roles were reversed, I would have asked these questions: “Did any of you overhear people before or after y’all were called in talking about the case? Or do you think you did?” “Do you know of anyone who might have used their cellphones inappropriately?” The latter I would ask after each round of jurors.

Were I ever charged with a crime, or a close family member, I would not want the kind of indifference or lack of transparency from most of the jury pool. It is not what we have in mind when we think of a fair jury. After thinking about for a day, it pisses me off a little.

As we went to see the court clerk to get a note of excusal, I told the youngest excused juror at the desk he would have never made it past a defense challenge, anyway. As the clerk asked for my information, I went through the process of repetition of my name a couple of times, as I well know how weird it is. The gentleman who I had told that he wasn’t going to be picked then said, “Oh, that’s what you meant about your name.” I told him that the two sides were working on incorrect assumptions about people and their biases – and that based on what I had just seen and heard, that the defendant’s affirmative defense of mental illness was going to be ignored and that he would be found guilty without being able to invoke mental illness as a defense.

PS: After the clerk gave me my notice of excusal, I lingered in the outer office by the unattended desk for a long moment. I pulled out my wallet to put the notice away and as I did, both the defense lawyer and the prosecutor came out the courtroom inner door and stood there talking, where I could hear them.  After the prosecutor asked, “Are you sure you don’t want so-and-so on the record?” I also used the bathroom on the 4th floor before I left, as the judge had given the remaining potential jurors a short break so that the two lawyer teams could confer. The bathroom had about 15 men in it, basically every male called to jury duty who hadn’t been excused.  Here’s what I heard: “God, how boring!” And, “I hope they don’t pick me.” Or, “He’s not crazy.” Another guy waiting in line answered him by replying, “He’s got to testify!” “Did you see that tattoo in his ear?” (I don’t know if it was a tattoo, just that jurors called it one. And I had seen it up close while seated behind the defense table.) Followed by commentary. As I was leaving, another guy pointed out that he couldn’t go through the entire week like that.  These people are among those I left behind me in the building, almost certainly some of whom were going to be chosen to sit in judgment. I’m sure there are some lessons in there somewhere, or criticisms of how things work. I heard other commentary, but I am omitting it on purpose. Looking back, I think that several people would like to forget that they talked that way, especially those chosen for jury duty. Their disinterest and disdain for the niceties of law and mental illness will be fogged by the spectacle of the trial and their own specific renditions of their memories. Collectively, though, I wouldn’t want such a group to be the one chosen for me or my family if we are ever charged with a serious crime, especially if we are guilty. I mean no disrespect toward them as individuals! But to deny a lack of enthusiasm or to deny that you already had intense preconceptions which could seriously impact the trial goes against what we shared in moments and commentary.

Edit: I’m adding a few details a day later, and I’m not too sure I should include it, because it seems damaging to bring it up, but it is bothering me. I don’t want to get called to explain or to try to remember faces with some of the commentary I heard. Some of the potential jurors definitely had previous knowledge of the case – but didn’t mention it during questioning by the judge or the attorneys. Some jurors didn’t believe that mental illness was ‘real,’ or shouldn’t affect being found guilty, no matter how crazy they might have been when they commit a crime. This goes in direct contradiction to what we were told to consider, especially by the defense lawyer. I’ve been wondering all day just how many people with those attitudes made it on the jury – I’m sure some must have. It is part of the reason I predicted yesterday that the defendant’s mental defect defense would be thrown out completely by the jury. From my experience, I’ve found that people are mostly not receptive to mental illness reasons for behaviors, including crime. I’m certain that this carried over and contaminated the jury pool, as people just weren’t being forthcoming. I don’t want to say ‘dishonest,’ because everyone believes they can overcome bias – even when it is invisible to them. Just as people know they can’t go around justifying bigotry, they also can’t go around saying socially unacceptable things about mental illness or the legal process.

The prosecutor made a point to describe in detail the necessity of using our common sense, but to follow the points of law over our our misconceptions and preconceptions. Overwhelmingly, I think this contributed to the direction of the jury. Because if you feel that those who don’t testify are guilty or that mental illness isn’t a real defense, you aren’t going to let facts confuse you out of continuing to believe them. The deck was therefore stacked before one word of testimony was uttered.

(Also, without being too specific, it would be wise to not let people use their cellphones, as you can be certain that despite being told not to do so, people are going to google the trial or crime as soon as they think they have privacy. FYI – for anyone over judicial proceedings such as this one. While I wouldn’t want the scrutiny, I’ll edit this comment to cover my specific situation. Most of the potential jurors had sat through a LOT of advisories, questions and warnings about what to do or not to do about the case. After my group was mostly excused, that left around 30-4o potential jurors, all of whom now had heard specifics of the case. They are then given a break. As you would imagine, all of them had cellphones. How many of them do you think used their break to look up the background of the case during that break? How many saw the parts in the news accounts that weren’t allowed to be brought up in trial, such as the allegations that the defendant had beaten his wife prior to killing his step-dad? If they did, don’t you think they would talk about it, given the chance? How many of those people ended up on the jury? Don’t you imagine that people using the stall in the bathroom succumbed to curiosity and looked it up, despite being warned not to do so?)

After leaving the 4th floor bathroom, I went directly out of the building and made 5 or 6 index cards full of notes, some long, some bullet points to jog my memory when I would write a recap. I stopped before I got home and did the same again because I had accumulated another long list of ideas and questions I wanted to try to incorporate. Most of them I’ve added either that day or a day later. I softened my language because I don’t want to be judgmental and I don’t to be second-guessed or questioned. My goal wasn’t drama or blame, but they are side effects.

So, even though I would have worked to listen to instructions and to be attentive to the law, I would like to say that the defense team made a horrendous error by eliminating me from the juror pool – or at least an error by not fighting for me to stay there. Unlike many of my other counterparts, I wanted to be there and had looked forward to the process of several days of a trial. And while I am unabashedly liberal, despite my constant humor and irreverence, I would have relished the chance to listen. Absent the threat of capital punishment, it would have been much easier to listen and help people decide.

The defendant is going to be found guilty and his affirmative defense of mental illness will not sway the type of juror that I saw to be remaining.

I’m not making this prediction based on points of law or familiarity with the case notes – quite the opposite. But I went in there early and dedicated my time to practice human observation. I wanted to watch people, to listen to them, and be part of the process. While I was excluded from the trial, I cannot understand how anyone will be surprised when the defendant is found criminally guilty. I would have been an ideal advocate for the idea of ‘preponderance of the evidence.’ Unlike a murder charge, using an affirmative defense of mental defect doesn’t require the same burden of evidence for the defense. In other words, it’s easier to achieve that point. I would have listened closely, but I also don’t have – or hide – a disdain for mental illness that many other people do.

Most of the witnesses for the prosecution were police. The defense already stipulates that the defendant killed his step-father. In this context, the truth is that the prosecution wants to color the scope of the proceedings by bludgeoning the juror with the brutality of murder. And it will succeed in this case. I’m certain that the most of the jurors will not be able to separate the criminal act from the separate issue of mental defect at the time of the crime. Most people wouldn’t, and that is exactly why the defense did itself a disservice by not fighting to keep me on the jury for trial. I could already see that the crime details were going to be presented harshly – as they should be, except with the net effect that people would rather not let someone off if such a crime had been committed.

Again, I know it sounds whiny to complain about not getting chosen for jury service – and not only because it sounds crazy. It’s because I can see the path already chosen by what happened today. Should I charge someone a lot of money for this type of insider observation?

Or I can just wait until the next time when I get called and my enthusiasm has turned to apathy or hostility toward the process? The only question I was asked directly was basically “If you hear rumbling, hear drops hitting the roof, and wake up to the ground being wet, what happened?” My answer “Precipitation.” That’s it. Despite my sense of humor and mouth, I didn’t say anything crazy – because I literally said nothing.

I didn’t say or do anything provocative, even when the prosecution talked about motive, intent, and mind reading. In short, I was a great candidate for jury service, just as were most of the people who were excused the same time I was. On the surface, I was perfect for both sides. Yet, I was excused for reasons and criteria not observed. In other words, invisible evidence or ‘feelings / instinct,’ the very things both sides said should in no way be allowed into our minds during the trail. 9 out of 12, or  75% of a representative cross-section of this county was excused for no reason whatsoever, for criteria which cannot be measured or observed.

Even though I was in a very small group of people who wanted to be called, several of those dismissed for no reason were irritated at their dismissal. They didn’t want to be there, but they didn’t really expect to be told “go home” without cause. The prosecution had said “Don’t take it personally” at the early stages. How else can it be taken? Each of us were eliminated for reasons we will never know, or for no reason at all. That’s not the kind of legal system people are going to rally behind. They feel like they were accused – although of what, they can never know. In my case, I heard many reasons from other jurors why they shouldn’t be a part of any jury process – but almost certainly were.

What was it I heard while standing outside the courtroom waiting to go in? “Great. What a waste of time. 12 people too stupid to get out of jury duty.” It’s a cliché, of course, but it took a different twist after experiencing the process.

It is strange for me to go into a process that is universally disliked or perceived to be negative by almost everyone – except I went in with an unnaturally positive outlook. I don’t mean to come across as negative about the day or experience, but it had a big dose of everything I had hoped it would not. I learned some things, many of which I would have rather remained ignorant about.

I’ve made my prediction and I would love to be wrong. But I see it coming. Their is no way the defense is going to get an impartial trial for a mental illness defense. Too many of the jurors weren’t forthcoming about what they knew about the case or their attitudes about mental illness and the defendant’s right to not take the stand. If he truly was ‘crazy’ at the time, it won’t matter because based on what I saw and heard, the jury pool mostly already had their own ideas. I wanted to call the defense team and tell them that they were fighting a losing battle. I told my wife more than once that the jury had no intention of following the evidence or the law from the outset of the jury selection, much less the trial.

And the process of jury selection failed to eliminate those who shouldn’t be seated to hear such a case. Or maybe I’m stupid – maybe all criminal trials are conducted that way – with a veneer or process and pomp but concealing deep conflicts.

 

Regards, X

 

 

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