Before . . .
Part Two: Jury Selection
You can't just drop a bomb on potential jurors telling them that they will be deciding whether someone lives or dies without wide reaching anxiety and apprehension. As soon as I knew that information, I had a feeling that I would be chosen for this jury. In my head I started to tick off the things that I knew both sides would like: advanced degrees, government worker, unlimited jury duty days, mid-30's, English speaking, law school experience, and eye contact. These are, of course, what went through my head and may not have actually impacted the attorneys desire to have me on the jury. Especially the eye contact factor. I have always given unparalleled eye contact to speakers. No brag, it is just true. If there was an eye contact Olympics, they would ban me from it for being too good. I follow the speaker with my eyes, nod my head in acknowledgment of understanding, and ask questions when appropriate. My mother has always been very good at this and I patterned myself after her. I honed this unusually specific skill in high school. I was on, and eventually head nerd of, the speech and debate team. Also, adding to my popularity, I played badminton. Part of my demeanor during student congress sessions was eye contact, taking notes, and asking questions. You might say, this was my milieu, my wheel house even. Eye contact on point, for sure.
Before I start to sound crazy (-er), my mind is always working. I mention above that I attended some law school. I didn't wash out, I just decided to leave because I judged my peers to be far less serious about the study of law than I. They were more "Ally McBeal" into playing grab-ass and swapping partners, while I was more "Law and Order" with a huge dollop of Clarence Darrow throw in. "There are reasons, as I have stated" for why I thought I would be selected. You wouldn't be reading this if that didn't come to fruition. I know correlation is not causation, but stay with me. The thing to note here is that I didn't want to be on the jury, I didn't want to have to decide this awful question of life or death, and I didn't want to see the things that would forever change my life. I should also note that the things I discuss and quote here from various sources are mostly from memory, so they are imperfect. Meaning, they occurred, but the exact details or wording may be close to and not exactly as it happened.
What I have failed to discuss up to this point is that I was certain, CERTAIN, that I would never make it past the jury interview, if I even got to that point. There were still in excess of 80-100 jurors seated in the courtroom when we reconvened after two weeks of court recess. That is just numbers though, probability said I might not ever be called up to be interviewed. The numbers also said that they might fill the jury before I ever was called up. Neither of those things happened. I was also, absolutely sure that one final factor would get me excused from the jury: I knew the prosecuting DA. Now, we weren't best friends or frequent friends, but we knew each other. My lifelong best friend had worked for the DA's office for many years and I was introduced to the prosecutor in charge of this trial on two separate occasions. Both of these occasions were happy hour/friendly outing events and she was a very affable, intelligent, and funny woman. We got along just fine, but that was it. For some reason I just knew this would get me excused by the defense or, even, the prosecution.
In fact, when I was filling out the questionnaire the day before, I very explicitly wrote in the area for additional comments that I knew the DA personally. I wrote pretty much what I wrote above and felt fully certain that I would be back to work shortly. I was wrong, so fucking wrong.
Oh, speaking of the questionnaire, it seems like an appropriate time to discuss that. This wasn't a "Hey, how'd you like our service" survey or a "Tell us what you think" review. This was a never-ending questionnaire which asked questions from "Name" to "Have you ever been the victim of a crime?" to "Do you believe someone who murders children should always be put to death?" Some light-hearted, run-of-the-mill things for a lazy afternoon of fun. The questionnaire stared up at me in it's Dickens-like magnitude and the profundity of what was being asked slowly washed over me. I felt like I had completed another thesis when I answered the final question after two hours. As I lugged the emotionally and physically heavy document back to the bailiff who was collecting them, I heaved a sigh of relief knowing that this would be the last I heard of this case.
That night, as I tried to clear my head of the past few weeks of on-and-off jury duty, my mind kept fixating on one question that the questionnaire had asked: "Do you believe someone who kills children, their own child, should always be put to death?"
___________
The next day, as we sat waiting to be called in to the court, a few of us talked about what we did and our hopes that we were released from the jury pool. We were all under caution not to investigate, discuss, or read anything about the case - since we knew the name and nature of the case. It is exceedingly hard to have so many simultaneous questions, so many things knocking around in your head, and not be able to discuss them with others who have the SAME SHIT in their heads. Most of us fully understood and adhered to this order from the judge.
There is a bit of procedural stuff that I should explain here. There is a lot of fucking waiting around once you're a potential juror. Before and during a time when you may be seated on a jury, there are many procedures that have to be done out of the presence of the jury so as not to potentially prejudice your judgment. That translates to a lot of sitting around trying NOT to talk about the VERY THING you are there to DECIDE (if chosen). So, I brought my crochet work. My best friend, the one who used to work for the DA, was having her very first baby and I was working on an ambitious baby blanket. I was not only able to start and finish this baby blanket before the trial ended, but was also able to finish two other projects in the intervening time.
The process of taking roll by juror number began. It was hard to determine the order at first, but after about 17 codes had been called, my code was called and I responded as present. After roll, 10 jurors were seated in the jury box, as well as four alternates. This was not the "official seating" of the jury, just the first 14 to stand for questioning and review by the attorneys. A sinking feeling suddenly came over me with a realization that the first 14 people seated were done so in the exact same order they had called roll. If I was right, it would only take a few dismissals or excusals before I would be called up. The slow and tedious interview process began. It is hard to describe how excruciating the process can be, unless you have sat through it. The prosecution and the defense take turns interviewing potential jurors who have been seated. The questions can range from personal views on police, to responses on the questionnaire, and even to whether the person could be fair and impartial knowing what little we already did: the defendant had already been convicted of killing a toddler.
There were, of course, light-hearted moments where an attorney misspoke, or the judge cut in with a pun or joke, but overall it was a very serious time. A specific moment made my hair stand on end at the back of my neck. An elderly white male potential juror was being questioned by the defense and they asked him if he thought he could be impartial. He replied with, "It would be hard to be impartial." When prodded on why, the man said that he had been a police office many years ago in a nearby county and had developed a very negative view of black men. In his estimation, he had been a racist, but felt he had moved past that as he grew older. The defense summarily excused the elderly man and thanked him for his honesty. Wait. WAIT. He just admitted in a room of nearly 100 people, that he was "previously" a racist and wasn't sure he could get beyond the fact that the defendant was a black man. IN 2015. Many in the court were left slack-jawed. On one hand, I respected his honesty, but on the other hand, I was disgusted.
By that afternoon, the growing apprehension in the pit of my stomach found release. I was called up to the jury box. Not as an alternative, they had excused one of the seated members. I was now up for interview and prepared for the questions about my relationship with the DA. It took a few minutes for the attorneys to question others and get around to me. The DA stood and greeted me. She just blurted out that "we know each other, don't we?" and we chatted briefly about that. I let her know that our mutual friend was pregnant and she said to send her best. A few other questions and then the co-counsel for the defense addressed me next. He was an older, very tall, barrel-chested (and bellied) black man with a definitive style of speaking slow and pausing at odd places. He was affable and started right off with questions about how I knew the DA. I answered loudly and directly. Quickly, he moved on past that subject and surprised me by what he asked next, "You know what it's like to live with a strict father, don't you?" I was taken aback, I had forgotten the questionnaire had asked about experience with parental discipline, especially being spanked or physically reprimanded. I must have turned very pale while I sat thinking. He clarified, "You grew up with a Marine father and might classify his parental discipline as strict?" I said, "Yes." "Very strict?" I said, "Yes sir." I didn't want people to get the impression that my father was violent or abusive, but I also wanted this to just end quickly. I added, "He was a marine. His father was a WWII veteran. Discipline was part of growing up." My face was burning red and I could not break my world-famous eye contact with the attorney. He asked a few other questions about impartiality and my experience in law school. Then he said, "Thank you" and moved on to another juror.
As my face returned to a normal temperature and my heart stopped racing, it struck me suddenly that - not only- had he not asked me to be excused, he seemed to be trying to indicate that I might be a good juror because of my own strict upbringing. He smiled and told me during our brief exchange that he, too, had grown up under strict discipline. Not unfair or mean, just strict. By the end of the day, much to my surprise, neither side had asked me to be excused. They spent a lot of time on a new potential juror, who would become Juror #7, than they ever did on me. I had already started to form my own opinion of this potential juror. He would show up often last to the court, he fell asleep at least once during the jury seating process, and now (in the jury box) he was sitting slouched down in his chair and giving what seemed like overtly vague answers to the prosecutor's questioning. The familiar tension in my stomach and chest returned as the day wore on and cemented by the words "We are satisfied by this seating of the jury" uttered first by the prosecution and then the defense.
We were sworn in, I guess that's what you call it, and given all of the procedural things that would occur now. When to report, where to report, where to park, what to avoid reading, discussing, or investigating, and all of the other things a juror needed to know. The scene became surreal. I was actually going to be seated on this jury, despite my definitive belief that chance and circumstance would keep me off of it.
A new realization came to mind: I would now have to impartially assess whether or not I believed this defendant should live out his life in prison without the possibility of parole, or whether I believed he should be sentenced to death? I grew physically ill and turned pale. Another juror near me asked if I was "OK" and I shook my head yes. Juror #9 was my new identity for now.
The judge read us several things, including that the defendant had been convicted of first degree murder of his own 4 year-old son, A.J. Burden, with special circumstances of torture. The finding for special circumstances as "true" meant that he would either spend the rest of his life in prison without the possibility of parole, or he would be sentenced to die. By us; this collection of men and women would decide his fate. This spun through my brain in a blur. The judge also made it very clear that we were not deciding if he was guilty or not, the first jury had already unanimously found the defendant to be guilty with a special circumstance of torture being true. We were ONLY deciding what punishment he would face. The defense did make an excellent point that, while we could not overturn the previous finding of guilt, we could use any personal belief in forgiveness as part of our decision process. The judge said we would see pictures of A.J.'s autopsy, the crime scene, a video of the defendant's arrest interview, medical records, and the weapon used to finally kill AJ may also be brought in to court. The judge said he wasn't going to lie, it might be tough. In fact, for those of us who work with young people, including an elementary teacher, it might be very tough.
A dead four-year-old. His father convicted unanimously of his murder, through torture . . . with a full-sized baseball bat. I cried that night. I cried many nights throughout the trial. I still cry thinking about A.J. I never felt pity for his father. I will never.
You can't just drop a bomb on potential jurors telling them that they will be deciding whether someone lives or dies without wide reaching anxiety and apprehension. As soon as I knew that information, I had a feeling that I would be chosen for this jury. In my head I started to tick off the things that I knew both sides would like: advanced degrees, government worker, unlimited jury duty days, mid-30's, English speaking, law school experience, and eye contact. These are, of course, what went through my head and may not have actually impacted the attorneys desire to have me on the jury. Especially the eye contact factor. I have always given unparalleled eye contact to speakers. No brag, it is just true. If there was an eye contact Olympics, they would ban me from it for being too good. I follow the speaker with my eyes, nod my head in acknowledgment of understanding, and ask questions when appropriate. My mother has always been very good at this and I patterned myself after her. I honed this unusually specific skill in high school. I was on, and eventually head nerd of, the speech and debate team. Also, adding to my popularity, I played badminton. Part of my demeanor during student congress sessions was eye contact, taking notes, and asking questions. You might say, this was my milieu, my wheel house even. Eye contact on point, for sure.
Bad-Ass Badminton Baby Angel
(1990 Sophomore year, sun blisters, braces, and picture day)
Before I start to sound crazy (-er), my mind is always working. I mention above that I attended some law school. I didn't wash out, I just decided to leave because I judged my peers to be far less serious about the study of law than I. They were more "Ally McBeal" into playing grab-ass and swapping partners, while I was more "Law and Order" with a huge dollop of Clarence Darrow throw in. "There are reasons, as I have stated" for why I thought I would be selected. You wouldn't be reading this if that didn't come to fruition. I know correlation is not causation, but stay with me. The thing to note here is that I didn't want to be on the jury, I didn't want to have to decide this awful question of life or death, and I didn't want to see the things that would forever change my life. I should also note that the things I discuss and quote here from various sources are mostly from memory, so they are imperfect. Meaning, they occurred, but the exact details or wording may be close to and not exactly as it happened.
What I have failed to discuss up to this point is that I was certain, CERTAIN, that I would never make it past the jury interview, if I even got to that point. There were still in excess of 80-100 jurors seated in the courtroom when we reconvened after two weeks of court recess. That is just numbers though, probability said I might not ever be called up to be interviewed. The numbers also said that they might fill the jury before I ever was called up. Neither of those things happened. I was also, absolutely sure that one final factor would get me excused from the jury: I knew the prosecuting DA. Now, we weren't best friends or frequent friends, but we knew each other. My lifelong best friend had worked for the DA's office for many years and I was introduced to the prosecutor in charge of this trial on two separate occasions. Both of these occasions were happy hour/friendly outing events and she was a very affable, intelligent, and funny woman. We got along just fine, but that was it. For some reason I just knew this would get me excused by the defense or, even, the prosecution.
In fact, when I was filling out the questionnaire the day before, I very explicitly wrote in the area for additional comments that I knew the DA personally. I wrote pretty much what I wrote above and felt fully certain that I would be back to work shortly. I was wrong, so fucking wrong.
Oh, speaking of the questionnaire, it seems like an appropriate time to discuss that. This wasn't a "Hey, how'd you like our service" survey or a "Tell us what you think" review. This was a never-ending questionnaire which asked questions from "Name" to "Have you ever been the victim of a crime?" to "Do you believe someone who murders children should always be put to death?" Some light-hearted, run-of-the-mill things for a lazy afternoon of fun. The questionnaire stared up at me in it's Dickens-like magnitude and the profundity of what was being asked slowly washed over me. I felt like I had completed another thesis when I answered the final question after two hours. As I lugged the emotionally and physically heavy document back to the bailiff who was collecting them, I heaved a sigh of relief knowing that this would be the last I heard of this case.
That night, as I tried to clear my head of the past few weeks of on-and-off jury duty, my mind kept fixating on one question that the questionnaire had asked: "Do you believe someone who kills children, their own child, should always be put to death?"
___________
The next day, as we sat waiting to be called in to the court, a few of us talked about what we did and our hopes that we were released from the jury pool. We were all under caution not to investigate, discuss, or read anything about the case - since we knew the name and nature of the case. It is exceedingly hard to have so many simultaneous questions, so many things knocking around in your head, and not be able to discuss them with others who have the SAME SHIT in their heads. Most of us fully understood and adhered to this order from the judge.
There is a bit of procedural stuff that I should explain here. There is a lot of fucking waiting around once you're a potential juror. Before and during a time when you may be seated on a jury, there are many procedures that have to be done out of the presence of the jury so as not to potentially prejudice your judgment. That translates to a lot of sitting around trying NOT to talk about the VERY THING you are there to DECIDE (if chosen). So, I brought my crochet work. My best friend, the one who used to work for the DA, was having her very first baby and I was working on an ambitious baby blanket. I was not only able to start and finish this baby blanket before the trial ended, but was also able to finish two other projects in the intervening time.
Sweet Baby Angle Baby Blanket
(Yes, I actually crocheted this during the trial)
The process of taking roll by juror number began. It was hard to determine the order at first, but after about 17 codes had been called, my code was called and I responded as present. After roll, 10 jurors were seated in the jury box, as well as four alternates. This was not the "official seating" of the jury, just the first 14 to stand for questioning and review by the attorneys. A sinking feeling suddenly came over me with a realization that the first 14 people seated were done so in the exact same order they had called roll. If I was right, it would only take a few dismissals or excusals before I would be called up. The slow and tedious interview process began. It is hard to describe how excruciating the process can be, unless you have sat through it. The prosecution and the defense take turns interviewing potential jurors who have been seated. The questions can range from personal views on police, to responses on the questionnaire, and even to whether the person could be fair and impartial knowing what little we already did: the defendant had already been convicted of killing a toddler.
There were, of course, light-hearted moments where an attorney misspoke, or the judge cut in with a pun or joke, but overall it was a very serious time. A specific moment made my hair stand on end at the back of my neck. An elderly white male potential juror was being questioned by the defense and they asked him if he thought he could be impartial. He replied with, "It would be hard to be impartial." When prodded on why, the man said that he had been a police office many years ago in a nearby county and had developed a very negative view of black men. In his estimation, he had been a racist, but felt he had moved past that as he grew older. The defense summarily excused the elderly man and thanked him for his honesty. Wait. WAIT. He just admitted in a room of nearly 100 people, that he was "previously" a racist and wasn't sure he could get beyond the fact that the defendant was a black man. IN 2015. Many in the court were left slack-jawed. On one hand, I respected his honesty, but on the other hand, I was disgusted.
By that afternoon, the growing apprehension in the pit of my stomach found release. I was called up to the jury box. Not as an alternative, they had excused one of the seated members. I was now up for interview and prepared for the questions about my relationship with the DA. It took a few minutes for the attorneys to question others and get around to me. The DA stood and greeted me. She just blurted out that "we know each other, don't we?" and we chatted briefly about that. I let her know that our mutual friend was pregnant and she said to send her best. A few other questions and then the co-counsel for the defense addressed me next. He was an older, very tall, barrel-chested (and bellied) black man with a definitive style of speaking slow and pausing at odd places. He was affable and started right off with questions about how I knew the DA. I answered loudly and directly. Quickly, he moved on past that subject and surprised me by what he asked next, "You know what it's like to live with a strict father, don't you?" I was taken aback, I had forgotten the questionnaire had asked about experience with parental discipline, especially being spanked or physically reprimanded. I must have turned very pale while I sat thinking. He clarified, "You grew up with a Marine father and might classify his parental discipline as strict?" I said, "Yes." "Very strict?" I said, "Yes sir." I didn't want people to get the impression that my father was violent or abusive, but I also wanted this to just end quickly. I added, "He was a marine. His father was a WWII veteran. Discipline was part of growing up." My face was burning red and I could not break my world-famous eye contact with the attorney. He asked a few other questions about impartiality and my experience in law school. Then he said, "Thank you" and moved on to another juror.
As my face returned to a normal temperature and my heart stopped racing, it struck me suddenly that - not only- had he not asked me to be excused, he seemed to be trying to indicate that I might be a good juror because of my own strict upbringing. He smiled and told me during our brief exchange that he, too, had grown up under strict discipline. Not unfair or mean, just strict. By the end of the day, much to my surprise, neither side had asked me to be excused. They spent a lot of time on a new potential juror, who would become Juror #7, than they ever did on me. I had already started to form my own opinion of this potential juror. He would show up often last to the court, he fell asleep at least once during the jury seating process, and now (in the jury box) he was sitting slouched down in his chair and giving what seemed like overtly vague answers to the prosecutor's questioning. The familiar tension in my stomach and chest returned as the day wore on and cemented by the words "We are satisfied by this seating of the jury" uttered first by the prosecution and then the defense.
We were sworn in, I guess that's what you call it, and given all of the procedural things that would occur now. When to report, where to report, where to park, what to avoid reading, discussing, or investigating, and all of the other things a juror needed to know. The scene became surreal. I was actually going to be seated on this jury, despite my definitive belief that chance and circumstance would keep me off of it.
A new realization came to mind: I would now have to impartially assess whether or not I believed this defendant should live out his life in prison without the possibility of parole, or whether I believed he should be sentenced to death? I grew physically ill and turned pale. Another juror near me asked if I was "OK" and I shook my head yes. Juror #9 was my new identity for now.
The judge read us several things, including that the defendant had been convicted of first degree murder of his own 4 year-old son, A.J. Burden, with special circumstances of torture. The finding for special circumstances as "true" meant that he would either spend the rest of his life in prison without the possibility of parole, or he would be sentenced to die. By us; this collection of men and women would decide his fate. This spun through my brain in a blur. The judge also made it very clear that we were not deciding if he was guilty or not, the first jury had already unanimously found the defendant to be guilty with a special circumstance of torture being true. We were ONLY deciding what punishment he would face. The defense did make an excellent point that, while we could not overturn the previous finding of guilt, we could use any personal belief in forgiveness as part of our decision process. The judge said we would see pictures of A.J.'s autopsy, the crime scene, a video of the defendant's arrest interview, medical records, and the weapon used to finally kill AJ may also be brought in to court. The judge said he wasn't going to lie, it might be tough. In fact, for those of us who work with young people, including an elementary teacher, it might be very tough.
A dead four-year-old. His father convicted unanimously of his murder, through torture . . . with a full-sized baseball bat. I cried that night. I cried many nights throughout the trial. I still cry thinking about A.J. I never felt pity for his father. I will never.
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