Damon Darling Trial – if I were juror . . .

I guess my question is, “Can you be compelled to serve on a jury?” If I had been summoned for the Miami trial of Damon Darling, knowing what I know now about the jury system, I would not have wanted to serve on his jury – but not out of any lack of civic responsibility.

Evidence of Gangs

Yesterday, the defense called a convict in a jail jumpsuit to testify against the defendant’s chief accuser, the other known participant in the shootout that killed a young child. In rebuttal, to expose the witness as a liar, the prosecution called a police officer who was supervising this witness at the time. Regardless which side is right about the witness, all that his testimony and the counter-testimony proves is that this was a gang shootout.

Gangs are all about drugs. Drugs are all about international drug cartels. So I can’t help but feel the trial really isn’t about the murder of a little girl: The jurors in this case are being asked to convict a gangbanger (and I’m sure they will). But are they safe?

Juror Privacy

The current American jury system requires jurors to reveal extensive personal information to the court. This information is made available to both the prosecution and defense. I understand the need for this, but the system also makes this information available to the public. For example, anyone present in the court during jury selection can take notes and subsequently track down a juror.

In addition, after the trial jurors are free to speak publicly about what went on in jury deliberations. In the event of an appeal, the defense can charge jurors with misconduct based on what jurors report. In the event of a mistrial (hung jury), the prosecution can charge jurors with misconduct based on what jurors report. I understand the reason for this: the system has no other way to ensure that jurors were truly “impartial.”

But why would any Miami resident want to expose herself to this invasion of privacy or to run the risks associated with jury service?

Book Deals

On the other hand, judges seem to have the power to restrict jurors’ post-trial speech. For example, in O. J. Simpson’s La Vegas trial, the judge warned the jury against post-trial book deals. But by what right?

Under the First Amendment, the government “shall make no law . . . abridging the freedom of speech, or of the press . . . .”

Under the Constitution, jurors have an absolute right to speak or write about their jury-duty experience and to express their opinions about the trial.

This freedom is actually a means by which the citizenry can ensure that the justice system operates in an impartial manner—not only the jury. Freedom of speech and press is almost the only power an individual citizen can exercise to curb the government’s power.

Crimes against the People versus Crimes against a Person

If any case illustrates why American law views crimes such as the murder of a child in gang crossfire as a crime against the people rather than a tort (injury to a person), it is this one. And because it is so clearly a crime against a community, I predict this jury will find Darling guilty despite reasonable doubts about who fired the AK-47 bullet that killed the child.

But if I were a juror in this trial, I would be outraged at the way the prosecution handled the case. The prosecution chose not to charge Leroy Larose with first-degree murder. The prosecution permitted the defense to hide behind a bizarre sort of self-defense argument. The prosecution permitted the police to ignore the evidence of a third party in the shootout, probably because they did not have sufficient evidence to charge the individual. (Although, according to TruTV’s Beth Karas witnesses identified an individual, who subsequently claimed to have an alibi. He was supposedly with his mother—hardly an ironclad alibi.)

  • Sidebar: Given that this was clearly a gang shootout involving drugs, perhaps the feds can bring charges against all three of these people—since the city of Miami itself cannot find a way to control drugs and gang violence in their jurisdiction.

The Jury

So, what if I had been summoned to jury duty in this case? And what if I expressed reluctance to serve for fear of reprisals? What if I said I thought all gangbangers ought to be in prison? And what if, despite this, both sides decided I was qualified to serve? Could I have appealed to the judge to dismiss me, or could the judge have compelled me to serve?

I suspect that a judge can charge a citizen with contempt of court for refusing to serve on a jury. And  “contempt of court” would be an apt description of my attitude toward the way the system treats juries.

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Thomas Fast Trial: The Art and Science of Memory

Yesterday in the trial of Thomas Fast , a woman testified for the defense about a memory she has of seeing the murder victim speaking to an employee in the Publix Supermarket near where the body was later found.

In a statement to police, the witness at first said she thought the incident occurred about two weeks before the body was found but after Thomas Fast was jailed (I believe this is what she said—TruTV’s spotty coverage of the trial yesterday prevented me from hearing the testimony). If credible, her testimony would have introduced considerable reasonable doubt into the trial. However, on the stand, I think the witness said the incident was two weeks or two days before she saw the first TV reports that Mrs. Fast was missing, which would instead have been before the crime occurred.

Memories in Court

There ought to be a category of forensics for memory experts, and such experts ought to testify both for the prosecution and the defense in trials such as the Fast trial. Science is rapidly learning what memory really is—and it isn’t at all what most of us were taught as children. I suspect that testimony about memories that doesn’t take into account this new knowledge serves only to confuse juries.

The old way of thinking is that memories are imprinted on the brain rather the way images are caught on celluloid film (“photographic memory”). In past trials, hypnotists have sometimes been employed to regress witnesses to the time of a crime in an attempt to retrieve lost memories. In the Scott Peterson case, for example, the police employed an inept hypnotist to retrieve a witness’s memory of a pregnant woman walking a dog in a park. Instead of retrieving an accurate memory, the hypnotist suggested things that altered the witness’s memories. As a result, the witness was not permitted to testify—and the Peterson defense lost a critical source of reasonable doubt.

(This sort of memory-tampering should be explored. Science is showing how easily this is accomplished. In fact, neurologists now believe that every time a person thinks about a memory it changes. The potential for police investigators to plant false memories in witnesses is very substantial.)

In the Trooper Robert Higbee trial, Prof. Geoffrey Loftus of the University of Washington explained many phenomena that create memories and how the mind constructs and reconstructs memories. In that trial, an issue was whether or not the defendant lied about trying to stop at an intersection or simply misremembered what happened.

The July/August issue of Discover Magazine contains a clear explanation of the current state of the art of memory, “Out of the Past,” by Kathleen McGowan. In short, memory is highly subjective and ever-changing. Memory is perhaps a human being’s most important learning tool. Without memory we wouldn’t be able to survive, because we’d be helpless in each disjointed moment. If memory weren’t the product of an individual’s interpretation of events, it wouldn’t help us learn. If memory weren’t ever-changing, it would mean we weren’t learning by reinterpreting the past.

  • Sidebar: One recent discovery is that it is rather easy to alter specific memories by administering drugs and then suggesting alternatives to the subject of the alteration. Again, it raises some frightening possibilities for law enforcement and the justice system.

The implications of this neuroscience for trial testimony are tremendous. It means that jurors must view all eye-witness testimony skeptically and with great wisdom. To understand a witness’s memories, a juror needs to understand who the witness really is and how he or she is likely to interpret events. For example, a white witness is very likely to remember an incident involving an African-American very differently from the way another African-American would. It has nothing to do with racial prejudice—and everything to do with the process of formulating memories.

In the trial in which I served as a juror, the victim was a thirteen-year-old African-American girl and the defendant was a Hispanic in his twenties. All the eye-witnesses were African-American. I hesitate to mention this, but it’s my impression that Chicagoan African-Americans do not take kindly to Hispanics and vice versa. So, in retrospect I wonder if I ought to have taken the witnesses’ testimony with a grain of salt. Instead, I took it as literal truth.

In the Thomas Fast trial, the eye-witness to the victim’s presence in the Publix is actually very important. Yet the defense is going to be hard put (IMHO) to use the testimony in closing arguments, because the defense presented no expert memory witness. On the other hand, had the witness been more definitive about when she saw the victim, the prosecution might have been the side that needed an expert memory witness.

My point is—as I’ve said before—I believe judges ought to take greater care when admitting certain evidence into a trial. I’m not a lawyer, and I imagine what I’m going to suggest is far outside the scope of law. But, what if the Fast trial judge had asked neurologists and memory experts for both prosecution and defense to examine/interview this witness and then explain to the jury how the woman’s memory was constructed and why it changed?

In my debut novel, Verdict Déjà Vu, I explore the idea of an eidetic (photographic) memory. My juror/heroine thinks she has a perfect memory. It comes in handy during deliberations when she can repeat the coroner’s testimony to her fellow jurors verbatim. Of course, they don’t believe her and demand a read-back by the court reporter. Then—to my heroine’s great surprise—she discovers her memory is far, far from perfect. Worse yet, she realizes how many of her values have been shaped by a misunderstanding of her own past.

  • Sidebar: On the issue of Fast’s mortician skills, perhaps it was wise to keep his biography from the jury. Apparently morticians do commit murder from time to time. In Lancaster, PA, right now a funeral director (Michael Roseboro) is being tried for killing his wife. Perhaps a familiarity with death makes killing easier. Even if that’s true, I don’t think funeral directors make good villains for fiction. They are interesting characters, but not entirely unsympathetic. I suppose Fast’s lawyers are less concerned about their client’s homicide potential and more concerned the jury might believe a mortician would be capable of dismembering his victim. Occasionally, people inured to dead bodies give them little respect: witness the fiasco at Alsip, IL, Burr Oak Cemetery where grave diggers dumped buried bodies to make room for new ones, and don’t forget the Tri-State Crematory case in 2000.