A Juror's Trials

LONDON, ONTARIO – Owing to some weird fluke or glitch in the system, I’ve been called up for jury selection on four different occasions and have actually served on a criminal jury twice. I’ve never met another Londoner who’s been so frequently called upon in this way and I know many people who’ve never been asked even once. As a kind of companion piece to my recent Hermaneutics post recounting my incarceration in the old Middlesex County Jail at the age of twenty-two, I offer you this account from my thirty third year which recalls my first and most memorable experience as a disher-out of justice.

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By 9:30 on that Monday morning there were 120 of us sandwiched together in the pews of a single courtroom. Selected at random by computer from the Middlesex County voters list, torn from jobs and homes and compelled to come here by a summons to juror duty that would carry legal penalties if ignored, many people openly voiced their hope that they would not be given a seat on any of the five criminal juries that were being chosen that day. Since each of the juries would be made up of twelve citizens, the odds were 50/50 that we’d be chosen or turned away; at least until next Monday when we’d have to go through this selection process all over again for another set of juries.

Few of us were so shallow or selfish that we couldn’t recognize the value and importance of the jury system; it was just a little hard to focus on the worthiness of that ideal when our perspective was meanly cramped and distorted by more mundane considerations. About eighty per cent of us were being pulled away from daily jobs, perhaps for two weeks or more, and about half of that number would receive no recompense from employers for time spent sitting on a jury. The court in its archaic beneficence would pay us ten dollars a day for our services. This would represent an eighty per cent drop in income even for me – a perpetual member of Canada’s poverty class.

The Juror’s Handbook provided by the Ministry of the Attorney-General advises you, with one month’s warning, to schedule your three weeks holiday to commence on your first day of jury duty. (A typical lawyer’s delusion; that everyone gets three weeks.) Even if holidays could be arranged at such short notice, how awful it would be to have to fork over that one clear stretch of free time that we work all year to obtain. I’ll consider giving them my holidays when I hear about a secretarial pool of vacationing lawyers and magistrates willing to type up my manuscripts for ten bucks a day. A woman in the pew behind me kept exclaiming to anyone who’d listen, “But the Buxbaum case has been going on for more than a month! This will beggar me! What am I supposed to buy Christmas presents with? Buttons?”

As a worker on the night shift, I had the option of sacrificing my sleep instead of my wages and was dragging my way through my third straight day of double duty when my employer stepped in and pledged to cover my pay for those days when I was needed on a jury. These were some of the pressures being experienced by a roomful of people who hadn’t even been selected for jury duty yet. Surely anyone can see that such befogging concerns are hardly conducive to a fair and complete examination of the facts concerning anyone’s guilt or innocence.

One man suggested that all 120 of us could sign a petition stating that, chosen or not, hereforthwith we all declared everybody guilty. “That would streamline this whole exercise, wouldn’t it?” We all laughed, relieved to hear our darkest musings voiced. Gallows humour is twice as chilling when you hear it before the trial.

Further darkening our mood that morning was the irritating spectacle of languid lawyers. Once our names had been checked off the sheriff’s master list, we all were left to rot for the better part of an hour as a blackly be-gowned gaggle of $80-an-hour lawyers dawdled, fussed, joked, ran errands and got things underway with a geological leisureliness that was infuriating to behold under those circumstances. If they didn’t need us until 10:30, why didn’t they tell us?

The accused for the first case was finally led in and seated at a bench just in front of our pews. After his charge was read (an incident involving a shotgun on an Indian reservation), the accused officially pleaded ‘not guilty’ and the process of jury selection began.

Our names, occupations and places of residence had all been written down on individual cards and placed in a big wooden drum which the registrar now gave an elaborate spin just like Fred Davis getting ready to pick some lucky Wintario numbers. Twenty people were called to the front of the room where they formed a clear line in front of the accused, his lawyer and the lawyer for the Crown. There, one a time, they would stand away from the line and look directly at the accused while the lawyers for each side got to form snap decisions about the apparent suitability of these respective jurors.
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If both sides said they were “content”, the juror would be immediately sworn in and sent over to take his seat in the jury box. If the defense lawyer said “challenge”. The juror would be turfed back into the pews and wait to be called for another case. If the prosecutor said “stand aside”, the juror would be sent over to a special limbo bench for possible recall – a bench which could have been labelled, ‘People We’ll Use If We Absolutely Have To.’ Before these marginadoes could be picked through for possible reconsideration, the lawyers had all the rest of the jury panel to go through to make their choices with the registrar or the court calling up fresh faces in batches of ten. There are limits to the number of people which either side can reject but those limits are complicated and vary with the seriousness of the case to be tried.

Many prospective jurors were obviously ill at ease with this whole process – having to stare at someone accused of wielding a shotgun, enduring a moment of intense public scrutiny and then probably getting rejected for reasons that would never be explained to you; a rejection that was hard to not take personally. (What? I mean, I don’t want to be on your stupid jury anyway but just what? Am I too fat? Is my fly undone? It’s my necktie, isn’t it?)

As I wasn’t even called up for consideration until the fourth jury, I got to watch this process at some length and was soon able to predict with considerable accuracy who would or wouldn’t be chosen for what. Over all, women were chosen more often than men. (More merciful? Rational? Fair?) Three of the four juries I saw selected had eight women to four men. When the jury was selected for a case of break and enter at a restaurant business, predictably enough, any prospective juror with a managerial position was instantly challenged by the defense and thrown back to the pews. If anyone looked too nervous, frightened, amused or pitiless, they too would be rejected.

There was one rotund old man in a grey suit who got called up for every case and immediately rejected. Asked to face the accused, he would clasp his hands behind his back, spread his legs defiantly, tilt back his head at a contemptuous angle and witheringly glare right at him. He looked as ferociously threatening as everyone’s least favourite vice-principal and I went up to him in the hallway during a brief recess and told him, admiringly, that he easily took the prize for sternest demeanour in the room. By way of reply, he cracked a warm and deeply flattered smile that told me he was really a very nice and approachable guy who’d do anything – even amateur theatrics – that would keep him off a jury.

While the third jury was being chosen, I must confess, I considered emulating the vice-principal. The poor oaf in this case was accused of swiping a pack of smokes and then pummeling the man who attempted to apprehend him. Not very pleasant behavour, I’ll admit, but seriously, in terms of courtroom drama and intrigue . . . well, who gives a grunt? Twelve free citizens are supposed to give up their time for two whole days to deliberate on something as tawdry and stupid as this? Was it too much to ask for a little mystery or scandal? Convinced that the cases were being presented to us in descending order of interest, I braced myself in dreary anticipation of what seemed likely to follow . . . jaywalkers in chains? A hardened gang of candy bar-nicking nine year-olds? A devious dietitian who’d run flagrantly afoul of Canada’s Food Rules? (And may I suggest to the court that you, madam, were knowingly and criminally negligent in offering up the required quotient of fibre? What say you to that?)

And then they brought him in. A furtive looking man charged with sexual assault and gross indecency in the molestation of a fifteen year-old boy. Now, this was a case I could care about and I silently prayed that if I had to be chosen, let it be for this one. My card was the third one selected and my occupation was given as ‘writer’ – a label which I think the lawyers assumed would signify a liberal sensibility. (It usually does.) Both were content that I should sit on this jury. As I stood and faced the accused, trying to maintain a not-too poker face, I wondered what my chances for selection would be if the lawyers knew I was the father of two children with a third one on the way? Or that my main reason for giving up hitchhiking in my early twenties was because I’d grown so tired of being hit on by pushy homosexual men?

But seeing the fear and humiliation on the face of the accused, the anguished vulnerability of one who has thrown himself on the mercy of the state, I instinctively knew how much I owed him and was determined he would receive it in full measure. The members of a jury aren’t professionally hardened to the spectacle of a man in the dock who stands to lose everything as a result of their decision. Knowing that you’re this guy’s last chance, you banish prejudice, pay slight attention to how things may at first appear, and dig into each case just as deeply as you can. I realized it’s not beyond all possibility that some day the dumb fates just may conspire to put me in that same lonely, awful seat. And when and if they do, I know what I’ll be seeking from those who are chosen to sit in judgement. I took the Bible in my right hand and, promising to well and truly try the case between our sovereign Queen and the accused, the clerk of the court swore me in.

I am forbidden by law to discuss the deliberations of the jury when absent from the court room but I anticipate no objections to recounting my personal interpretation of the evidence as it was brought forth. And the first bit of evidence for the defense which the entire jury witnessed, took place in the lobby of the court house on the first morning of the trial while waiting for the usher to take us upstairs in the judge’s private elevator. There, sauntering among us, casual as can be, was the accused with a real live woman on his arm; wholesome heterosexuality on parade. Was this his lawyer’s idea? His? As ruses go, I found it cheap and cynical and strove to put it out of mind for the sake of coming to the trial unbiased.

All the evidence was presented that first day. The kid got to speak his piece before lunch as well as some corroborating testimony from his mother and the policeman who was called onto the case. The kid, a frail, slight child with a minor learning disorder, seemed to spend half his time on the stand in trying to think things through, correcting himself or the attorneys, openly admitting that questions of time and sequence had grown fuzzy in the ten months since the alleged incident. It was this weakness that the defense attorney preyed upon repeatedly, asking vague and bewildering questions that tied the kid up in sequential knots but effected no significant changes in his story.

After lunch we heard from the accused and nobody else. There wasn’t a single character witness who was willing to speak for his side. In contrast to the kid, the accused rattled off his version of the facts, their sequence and times, with unvarying certainty and precision. The alleged assault, he simply denied, claiming that nothing whatsoever happened, yet his recounting of the facts prior to and following the alleged incident, was virtually identical to the kid’s. Neither side claimed any prior reasons for animosity, and the story as told by the kid seemed too artless and bewildering to be a concoction. Also there was a jar of Vaseline seized as evidence. The kid had an awful lot to say about that bottle and what it was used for but, according to the accused, it wasn’t even brought out until after the kid had left the scene.

The accused’s manner was markedly defensive and curt; he wasn’t going to tell any more than he absolutely had to. In the craftiest exchange of courtroom repartee we were to witness, the crown attorney drew the accused out much further than he meant to come by pretending to get certain allegations wrong, causing the accused to blurt out corrections on details and actions which he had previously denied. Then came half a day’s worth of summations from both attorneys and we were left to come up with our verdict.

Blaise Pascal used to maintain that judges and lawyers went in for priestly garb and sage-like wigs as pompous and intimidating camouflage; a way of dressing up the monstrous presumption of God-like status and acumen which jobs would really require. While they don’t go in for wigs at the Middlesex County Court, the lawyers, judge and sheriff’s deputy were certainly a holy looking lot; rather like well-heeled Quakers who’d just wandered off a box of instant oats.

This elevated tone was somewhat lowered by us grubby, mortal earthlings in the jury box. My all-purpose tweed sport jacket (picked up for two dollars at the First-St. Andrew’s fall bazaar on the morning I got sprung from jail for running a red light on my bicycle) had badly fraying cuffs and my only presentable shoes were my red Chuck Taylor Converse All Stars. In the row ahead of me one of the jurors was wearing a light grey suit which only needed a few crucial stiches on the seam of his seat to look positively dignified. And down at the end of my row was a woman with a nagging cough which both lawyers quickly learned to anticipate, taking occasional pauses in their rhetoric while she freely hacked away and sniffed.

I doubt the lawyers ever learned why we sometimes all broke out in smiles, why we sometimes had to cover our mouths and think tragic thoughts lest we succumb to fits of the giggles. They probably couldn’t hear any of it out there in the larger room but jurors three through five all had remarkably talkative tummies, given to grumbling and gurgling at some of the most inappropriate moments. In vain we hoped that a little light lunch might muffle the rowdy organs but, if anything, they became even more verbose for having ingested something to argue about.

The judge was visibly perturbed on the afternoon of the first day when we reconvened after lunch and there were only eleven jurors in the box. “She’s coming,” we assured him and I for one was not sorry to see this institution, which had been recklessly frittering our time away every chance it got, finally gets a taste of its own carelessness. ‘Na, na, na, it serves you right,’ was the song in my heart. After about two minutes during which the judge repeatedly sighed and rearranged all the pens on his desk, there came the sound, off stage as it were, of a flushing toilet and then juror number five, blushing from head to toe and trying to hide behind her handbag, scurried into the box and took her seat.

Perhaps I too had hoped for some of that courtly grandeur Pascal talked about – the clerical robes, all the glorious woodwork in this cathedral of law, the noble coat of arms on the wall above the judge – to lift the proceedings of this place onto some higher and more perfect plane. But here we all were, dressed up in our makeshift best, ripping our pants and coughing and peeing and being serenaded by the squiggly song in our guts . . . human, all too human, and somehow expected to come up with a verdict of dreadful importance and consequence. ‘Beyond all reasonable doubt,’ I knew I’d find him guilty. But beyond all doubt whatsoever – never.

It so happened that I was reading John Buchan’s life of Oliver Cromwell that week. Not my favourite historical character by a long shot but I was haunted by one particular quote of Cromwell’s which he dispatched in a letter to the general assembly of Scotland on the eve of the Battle of Dunbar in a final attempt to prevent armed conflict. Again and again, as I could see which way my judgement was inclining, I’d recall Cromwell’s awful plea and scour my conscience for mitigation and doubt: “I beseech you in the bowels of Christ, think it possible you may be mistaken.”

As the only juror who’d ever served time in jail, I was particularly worried about what our judge would make of our verdict when it came time to pass a sentence. What would a few months or a year in the Kingston Pen teach this guy about utilizing the proper channels of affection? Though my jail experience had been strictly small potatoes, I’d seen enough to know that jail is punishment pure and simple; for many, an enraging and perverting ordeal that only breeds a heightened and more pervasive contempt for the law and society. If we branded this guy as guilty and then got him sent down there, I feared we’d be foreclosing on any possibilities of a second chance or a change of heart.

As a juror I’d been instructed not to consider the consequences of our verdict but I did and found myself experiencing the same frustration as a witness often encounters when a lawyer belligerently demands a ‘yes’ or ‘no’ answer to a question of greater complexity. I wanted to be able to say, ‘Guilty as charged but if all we do is punish him, it’ll only get worse.’ But that was about fourteen words more than they were interested in hearing from me.

As foreman of the jury, it was my task to face the accused with our verdict. I was only the spokesman for twelve people who’d independently reached a unanimous decision but mine was the face he’d remember forever. And after his release, I was the guy he’d come gunning for some drunken and demented day when and if his rage went spilling over the brim. (Didn’t you see that episode of Perry Mason?) I’d been trying to read his face all morning to see what verdict he expected but I couldn’t make him out. I stood up and spoke that single, horrible word and it hit him like a blow to the stomach, draining the colour from his face and making him slump over in his chair. It was not my proudest moment either. The judge accepted our verdict, it was duly recorded and he announced that sentence would be passed in six more weeks.

Ten minutes later, my hands still trembling, I endeavoured to push the ‘down’ button in the lobby elevator when the kid and his mother came floating out of the courtroom on waves of relief and happiness. The mother almost said, ‘thank you,’ but, perhaps sensing that wouldn’t be cricket, stopped herself and spoke instead about her satisfaction with our verdict and mentioned that the crown attorney had told her the guy would probably get put away – “for a while at least”.

From their perspective, justice had been done and it was impossible for me to deny them their right to a feeling of something like victory. Their long siege was over and now they were ready to put it behind them and carry on. For them, I was genuinely glad. At the same time, it was only in meeting them like this, that my own emotional state stood out in higher relief and I recognized it for what it was – shame, or something much like it. I felt I’d been used as a battering ram in the cause of something I didn’t believe in. I had no qualms about what we had done for the kid and his mom. I believed he was innocent. I believed he was attacked. And I believed it was right to condemn the man who carried out that attack. But as regards the punishment to be meted out to the perpetrator of this mean and squalid crime, I wasn’t at all confident that what we’d won was justice rather than vengeance.

The elevator doors slid open and we all rode downstairs in the company of the crown attorney and the sheriff’s deputy; two men I’d been watching from a distance for two days and now we were shoved together, big as life and twice as clammy. Discreetly (I trust) I stared at them in the silence of that plummeting elevator, looking for a sign, a glimmer of their own feelings, but they were still zipped up courtroom tight. I pitied them, feared them and even admired them in a grim kind of way. This was their job and they did it every day of their lives. Did it never get to them? Had they grown accustomed to wielding such dreadful power or did half their gargantuan salaries go into the steady procurement of sedatives?
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We stepped out into the main floor lobby and scattered in our separate directions like a bag of marbles emptied out onto the floor. I was due back here Monday for another session of jury selection and would spend my weekend perfecting the art of making vice-principal faces in the mirror.

An earlier version of this essay first appeared in the Encounter supplement of The London Free Press in December, 1985