By Bob Dorn
I had the distinction of being the first person thrown off a jury peremptorily in a courtroom this week. Before any evidence was introduced in this criminal misdemeanor case (a DUI), and before prosecution and defense had opened their arguments, the judge was forced to dismiss me from service.
It was the Deputy DA who had me thrown out. I’m not sure I understand why he did it. In legal terms, it was a peremptory challenge, and it means the attorney who exercised this right, the Deputy DA, could object to my presence on the jury without offering any cause or reason.
Was it my blue eyes? Do I look like a drunk? My curriculum vitae? Was it something I said?
Most likely, it was that last possibility, though I wouldn’t rule out the third. Judges and attorneys might not look favorably on journalists called up to jury duty, not even old, (re)tired ones.
For those who’ve never served here in San Diego (and I never had before this week, though I’d taken the #7 or been dropped off numerous times only to be sent home without an assignment) the first thing that happens is that each person in the jury pool, which was some 40 others who were in the courtroom with me, are asked a series of questions by the judge.
Here are most of them: area lived in, occupation or former occupation, marital status (!), spouse’s occupation (!!), any prior felony convictions…. As I write this I can’t help but wondering if the marriage questions don’t indicate a clear prejudice that married people are somehow under each other’s thumbs, but let that go.
The man whose courtroom I was in for my brief hour or so, Superior Court Judge Eddie C. Sturgeon, seemed a clever and avuncular professional, relaxed and intent on keeping others in his court awake and interested. I liked him.
He seemed interested in my former occupation. “What sort of things did you cover,” he asked.
I never know how to answer this. Back in the day we specialized but I was a sort of plug-in generalist who could be sent on multiple-death traffic disasters or to cover the County Supervisors and so on and so on up, or down, to the most painful sins and misbehaviours of San Diegans. So, I just said that much, that I was general assignment, leaving out that I’d covered some trials (Roger Hedgecock, you scoundrel). I thought it was only fair to leave out the specifics; after all I sometimes can’t even remember what I had for dinner last night, or the name of the person I’ve just been introduced to.
Then he asked me who I worked for. Now I was feeling a little cocky, and at the same time aware I might be judged a snob.
…Copley back when there was a semi-independent Evening Tribune that for many years did credible and creditable investigative work (a Pulizer, after all). And I said I quit the paper to freelance, stringing for The New York Times (they were slow to pay, but let that go), and the San Jose Mercury News, and writing covers for The Reader. And that I taught non-fiction.
Judge Sturgeon pursed his lips, cocked his head and furrowed his brow in a way that seemed to say, not bad, not bad. I figured I’d passed judgment, so to speak.
It was near lunch, and the judge told the entire room that if we were empaneled we’d be hearing technical information measuring degrees of intoxication and what happened where and when, according to the witnesses. He wanted to know if anyone in the room had been involved in any way with an adjudicated case of drunken driving, or otherwise had personal — a word he was careful to emphasize — experience with such.
A man raised his hand to say his daughter had been charged with a DUI. The judge asked if he felt the arrest had altered his ability to hear the evidence, and he said no, he could be objective.
That was followed by an almost palpable air of unease in the room.
Judge Sturgeon said he understood that some might not want to reveal the personal stuff of their lives, and assured them they wouldn’t have to, that the court did not intend to probe publicly, that he and the two lawyers and their aides would hear their stories in his private chambers. A young guy’s hand shot up and he said he’d like to reveal something privately. The judge looked at the lawyers and both must have assented because four or five of the legals jumped up and they all went into the judge’s chambers.
When they came back in people seemed to free up a bit. A woman sitting next to me lost either two daughters or her daughter and her daughter’s friend (my fail here) to a drunk driver, who’d been convicted. She admitted that as the subject had shifted to personal experiences she was “beginning to feel a little tight in the chest.” The attorneys and the judge listened a little longer. I could almost feel heat coming off her body as she spoke, her voice growing faint.
The attorneys were given a chance to address the room directly, the defense to go first. He was careful to assure the woman who’d lost people that he understood how deep a blow it must have been, and he wanted her to understand that no injuries occurred in the case before us all that day and that he believed she could be objective.
One of the attorneys asked if anyone had more to say about personal involvement with alcohol and a man working at a Hillcrest rehab facility said he routinely dealt with alcoholics and other addicts at the center, and knew their problems intimately. Are you certified, the judge asked, and the question brought a different tone, edgier, to the man’s explanation. No, he wasn’t state certified but had spent more than a decade working in the field.
The defense attorney said there would be 4 to 5 witnesses called in the case but that his own client would not be one of them. “He will not be testifying.”
We were told we’d be hearing .08 and 1.15 mentioned, the blood tests, the breathalyzer and other technical stuff having to do with legal and illegal drunk driving, but I couldn’t quite understand how important this question was.
He wanted to know if any of us might not be able to judge the case fairly if his client did not take the stand to defend himself. “Do any of you have trouble with this?”
He repeated it and my hand went up.
“I’m mystified, ” I said. A lot of people laughed; the remark seemed to have relieved some tension.
The counsel wanted to know what I meant. I said the good part of what he was saying was that he seemed to aim at attacking the technical side, the measurements, the cause of the stop in the first place and that it seemed to reasonable to do that, to impeach the evidence if it was shoddy. But if there’d been some failure in the measurements of blood alcohol or in the cause of the stop then I’d expect to hear the driver’s version of the events, what he knew and what he felt.
Hard stuff started happened after the break for lunch, when the judge and the two attorneys examined the jurors’ competence and objectivity.
People had relatives who were police officers, and said this would not affect their judgement. Another man with a DUI’d daughter said the case was “not a good one for me.”
The man, African-American by the way, who’d raised his hand and told the court that he’d been stopped many times, once by an officer who was so insulting and provocative that he’d had to call out to residents asking them to witness what was going on, and that the entire incident took 5 or 6 hours to resolve.
“But I can certainly be objective. That happened to me, but I can be objective.”
I thought of a long story I’d done on Ed Lawson, a black guy with dreads, who’d been stopped 13 times by San Diego cops simply for walking, once even told by the cop that he matched the description of a one-legged man. Lawson had a made a career of attacking the vagrancy law that was being cited when he was repeatedly arrested, and only a few years later he won his struggle. The laws he’d served time for breaking were declared unconstitutional.
And I remembered being told by Cecil Lytle, a world class pianist and then the provost of Thurgood Marshall at UCSD, that he’d been stopped by police while he was driving his 1980s big GM product to campus many times, for no reason.
I nodded my head to the man who’d told his own story to the court. He nodded back. That much passed between us.
Like him, I knew I could be objective, too. People are people, lots of cops can do their jobs without prejudice and personal animus.
It was the prosecutor’s turn to address us. He repeated what we’d been told about the law. And then added something I just couldn’t make sense of. Even now I have to approximate what he said, or claimed, because it remains a confusion in my mind.
He wanted to make sure, he said, that everyone understood the difference between a DUI charge and the proof of drunkenness. He said the case was not about being drunk.
I said I didn’t understand, and he pretty much settled for repeating himself. Though I’m sure I said no more, I suspect it was clear to him that the distinction still made no sense to me.
Judge Sturgeon asked if anyone had more doubts about their capacity to judge the case or trouble understanding the nature of what had already been raised.
No one said anything.
He turned to the woman with heart pangs and asked how she felt, and she admitted she was still having difficulties as she listened to what was happening in the room. He excused her. He also excused the man who’d said his daughter’s arrest made him feel ill-equipped for the trial. The young man who’d told his story within the judge’s chambers was released as well.
Then the peremptory challenges began, and the judge extended his hand to the DA’s table. The deputy had had trouble finding my name throughout the morning and afternoon but this time he knew it. It seemed to me he jumped to the mike and announced very loudly, “Dorn.”
I went downstairs, unsure I had to sign out at the jury selection office, and turn my juror’s badge in. No one around me could tell me and I was about to leave to catch the bus when I heard someone call out to me that I was supposed to sign out at the jury services counter. It was the brother who’d told his story about the stop he’d experienced. He’d been dismissed too, just after I was.
He must have seen I still had the badge on.
I gave up the badge and we walked out together, starting with some ironies about what could be known and what couldn’t but that it all seemed somehow familiar, too familiar.
“But, you know, justice is blind,” I said.
“Yeah, but I’d just like to see some,” he said.