There are twelve of us left. The first thing the prosecutor did during voir dire was ask all the men of color whether we trusted cops. Every black man had a story: police harassment, spurious arrests, intimidation. They were all eliminated. I was asked if I had any experiences of this kind, and I said no. It was the truth. Perhaps this was the time to mention that having witnessed the murders of Eric Garner and Walter Scott on video made personal experience unnecessary. I didn’t mention it.
In the end, only two men of color make it to the jury, and I am one of them. The other is Latino. There are two Latina women, one African-American woman, and one Asian woman. The remaining six jurors are white.
I admit I had gotten excited. I love courtroom dramas. I love the thrill of argument, the language games the law comprises. I don’t believe in guilty pleasures — pleasure is nothing to feel guilty about — but I’m not altogether proud of how much I admire Sam Waterston in Law and Order, Tom Cruise in A Few Good Men, even Joe Pesci in My Cousin Vinnie. I doubt I could ever be a lawyer like their iconic characters. I shy away from confrontation. But when I got my summons, I must have been the only citizen in the county who looked forward to reporting.
Then, with the rush to single out men of color, a bad taste starts to settle in. The prosecutor is slender and severe, with a face made up entirely of right angles. He’s a fast talker. He mispronounces my name. I start to worry about what I’m getting myself into.
The defense attorney, like the defendant, is black. He speaks with a languid drawl, in stark contrast to the prosecutor’s shrill bark. He precedes nearly every question with the phrase, “let me ask you this question.“ He is profoundly outclassed by his adversary. They could both be Law and Order characters.
The judge is genial and fair, but I’m already starting to hate the appellation “your honor.” Judges are glorified fact-checkers. You know who they should call your honor? Me. And the rest of the citizens on the jury who will be rendering a verdict.
Once we’re all assembled in the jury room, I soon learn that we’ll be spending the majority of our time here. Some of the most exciting moments on Law and Order are pretrial motions and sidebars, where Waterston does some of his most vehement sputtering. When you’re a juror, you don’t get to see this stuff. You have to go sit in the jury room.
To pass the time, I’ve started reading Bryan Stevenson’s book Just Mercy. Stevenson is an African-American lawyer, and the book is a memoir that deals with his struggle against the excessively punitive, racially biased nature of the American criminal justice system. One of the things I learn from Stevenson is how commonplace it has always been to exclude people of color from juries in the United States, with prosecutors still tending to use peremptory strikes to eliminate black jurors.
The judge has already instructed us directly that we are not to do any research on the law while sitting on this jury. This is the first of several times I will violate those instructions.
Through eavesdropping and small talk, I start to pick up on the cast of characters. The courtroom drama most relevant to this scene is, of course, 12 Angry Men. But trapped here in close quarters with a small group of people, I feel instead like I’m in The Breakfast Club. The most vocal members of the jury line up in a neat one-to-one correspondence with the archetypal characters written by John Hughes.
Emilio used to play baseball in college. Now he’s a salesman for a large corporation. He drips with confidence, and everyone is charmed by him. He’s the type of guy I would have resented in high school, but he seems to be going out of his way to establish a rapport with me. I’m flattered. In spite of myself, I want him to like me. Molly works in finance. She’s attractive. Emilio, who is married, starts hitting on her right away. It seems inevitable that the two of them will form a clique. I want Molly to like me too, and to my surprise she does, at first.
Ally is clearly intelligent, but acts deliberately childish. She’s loud and brash, and even light conversation with her turns into an argument. She makes me uneasy. Anthony wears a tie with a Transformers pin. He’s a classic nerd, so classic it’s hard to believe he didn’t step off the screen from a Hughes movie. Hardly a subject comes up that he doesn’t respond to with a useless tangential fact. He’s a staunch logical positivist, though I doubt he would know to describe himself as such. I’ve known plenty of guys like this in my life. I sat at a table full of them in my high school cafeteria.
I flatter myself that I’m Judd Nelson. To be honest, I never did get detention in high school. But I did walk out in protest of the Iraq War. I do believe in jury nullification. And I think the American carceral state is so corrupt that I’m starting to doubt if I could bring myself to render a guilty verdict under any circumstances. This thought will continue to haunt me.
I’ve always thought that The Breakfast Club, for all its flaws, is a remarkably perceptive account of the dynamics of teenage society. Its resemblance to the jury makes me wonder if we ever really grow out of the roles we adopt, or are imposed on us, as teenagers. The way I remember high school is that only a few people stood out of the pack — the cool kids on top, the outsiders on the margins. Everyone else just kind of drifted along with the tide.
I will find that a jury, too, is not quite about justice but instead about the direction of the tide.
The charge is homicide. A man is accused of killing another man. It’s serious.
It’s also boring. Testimony mainly consists of dates and names and places and times. I didn’t realize just to what extent lawyers are bound to ask only questions, which leads to some convoluted back-and-forth when a witness doesn’t know what answer to give.
There is a glaring lack of evidence in this case. A single eyewitness, who has a sexual history with the accused, who lied under oath in previous testimony, who was high at the time of the incident. No murder weapon. Claims of an accomplice, who has never been found. No forensic evidence — fingerprints, DNA, surveillance camera footage — tying the defendant to the scene of the crime. During breaks, I consider parallels to the prosecution of Walter MacMillan, one of Bryan Stevenson’s clients, whose story is woven through Just Mercy. It’s also a case with one witness, whose unreliable testimony snowballs into a death sentence.
There’s a handwritten confession that the defendant claims he didn’t write. He says he signed a blank page that appeared later containing a confession. In the months since the arrest, changes have been made to local precincts that now allow them to record all interrogations on video. In this case, no video was taken.
The suggestion of a police conspiracy is laughable to the prosecutor, and, I will learn, to many of my fellow jurors. I suppose this is why every black man was eliminated from the jury pool. If it’s biased to presuppose police officers are corrupt, it should be considered equally biased to presuppose that they always act lawfully. Instead, it’s considered ridiculous. The presumption of innocence is dangerously misplaced.
I keep thinking of Walter Scott, whose uniformed murderer is seen on camera shooting him while he runs away, and who plants a weapon on his freshly killed corpse. While doing all this, the officer reports over police radio that Scott attacked him.
The cops testify. Everyone concedes that they look nervous.
There is one other person in the room who doesn’t quite fit in, the Latino man who is the only other male juror of color. He sits and stares out the window. He doesn’t join in on small talk.
“I haven’t been sleeping,” he says, when asked why he is so silent. “A man’s life is at stake.”
I think of him as Henry Fonda in 12 Angry Men. We will share this role.
An old lady reminds me of Edith from All in the Family. She talks too much, usually about her grandchildren. Unlike Edith, she vies shamelessly to be the center of attention, though her inability to relate to others prevents her from retaining this position.
Three other women are on the late side of middle-aged, and are affable and pleasant. One is the foreman, but shrinks from taking the lead. Another always goes to Macy’s instead of eating lunch, returning with shopping bags. The last never speaks. There is a young man who hates being on the jury even more than the rest of us. “I’m so over this,” he keeps muttering to himself. Given the gravity of the situation, I find it hard to respond to this level of self-involvement.
The African-American woman is a cop. She immediately begins to violate the judge’s instructions not to introduce any personal expertise into deliberations. I don’t necessarily have a problem with ignoring the judge’s edict, but meanwhile, I’m frequently informed that I cite too many external facts and figures. It’s the privilege of the majority to enforce a double standard.
A couple days into deliberation, we take an anonymous vote. Ten for conviction. Two for acquittal. No one is surprised.
Outside of court, I tell everyone I can’t talk about the case. Then I usually talk about the case a little. I ask others if they would feel comfortable rendering a guilty verdict, even if they knew for sure the defendant was guilty. A friend says she would, but I don’t know if I believe her. I ask the same people if they’ve ever been in a situation where they were forced to make a moral choice that would have consequences outside of their own personal lives. A different friend says yes, but refuses to tell me what choice he made. Normally I would pry, but I don’t have the energy.
When acquaintances who don’t know me as well find out I’m on a jury, they ask what for. When I say it’s a murder trial, their eyes widen. They’re excited. They want to know more. I can’t blame them. I felt the same way before I got selected. I’m not excited anymore.
One morning I notice I’ve suddenly developed bald patches in my beard. I’m not a hypochondriac — I usually need someone to point out to me that I look sick before I recognize it myself. But this symptom is so bizarre I research it exhaustively. It’s called alopecia areata barbae, and is the result of an overactive immune system mistakenly attacking hair follicles. It’s generally believed to be a result of stress. WebMD points out this correlation is not clinically proven, but fails to offer an alternate theory.
During lunch, deliberation ceases. I haven’t practiced the kind of jovial one-upmanship that characterizes the interactions of male teenagers in years, but Emilio seems to have never abandoned it. I take some pride in being able to keep up with him. I’m less and less intimidated by Molly, who even suggests at one point we exchange numbers after the end of the trial. I’m surprised by how much they seem to be tolerating me, even as I stand in the way of their return to their everyday lives.
In the course of describing his affinity for computer programming, Anthony advances his positivist ideology to the group. He acknowledges the inherently incomplete nature of affirmative proof, but is untroubled by it.
I think of a story about Wittgenstein. He asked a class why people before Copernicus believed that the sun revolved around the earth. A student said, because it looks that way, of course. Wittgenstein then asked, so what would it look like if the earth revolved around the sun?
“There’s a story about Wittgenstein…” I start to say.
“Who?” asks Anthony. I realize his understanding of logic must come only from computers.
“Ludwig Wittgenstein,” I say.
“Never heard of him!” Edith interrupts.
I drop it.
I try to stick to evidence and logic in my arguments. I emphasize that in the absence of a direct evidentiary tie between the crime and the defendant, it’s legally improper to deliver a guilty verdict. Henry makes a more emotional appeal. Without questioning whether the defendant wrote the confession, he suggests that its contents may have been written under duress. He is shouted down by the others, who tell him that because this possibility was not presented by the defense, it’s merely a conspiracy theory and we can’t consider it.
Secretly, I’m considering it too. According to Stevenson’s Innocence Project, out of the hundreds of prisoners exonerated by DNA evidence after its introduction in the 1980s, one in four made a false confession. If the defendant did in fact write a confession but is claiming he didn’t, it doesn’t necessarily follow that the account given by the police is therefore the truth. An innocent man facing a monolithic judicial system accusing him unjustly might well lie if it seemed like his best hope of exonerating himself. How would we know, if not for his testimony? What would it look like if the earth revolved around the sun?
The defendant also claims he was never notified of a call from a lawyer to the precinct where he was being held. The form noting the call is marked with a time just minutes after the time noted on the confession. The proximity seems to me to be cause for unease. I’m suspicious of the chronology. The others tell me that if the confession was made after a call from a lawyer, it would have been illegal, and should have been excluded from evidence. If it hasn’t been excluded, I need to consider it. The implication is that if cops break the law, we have no means and no right to stop them.
The defendant did sign a Miranda waiver, a fact made much of by some of my fellow jurors. An innocent person wouldn’t talk to the cops, they say. I remember an article I once read about the psychology of interrogation. In actual fact, 80% of suspects decline their Miranda rights in order to appear cooperative. Hostile officers, interrogation rooms, hunger — it’s hardly a stretch to say that these factors can cause intimidation and hasty compliance, especially in light of growing awareness of police brutality. Would a young black man who is under arrest sign a blank page if instructed to do so by a cop? I don’t know whether or not this one did, but it would be unmistakably prejudicial to rule it an impossibility.
Anthony is angry at the direction taken by our deliberations, which he believes should proceed with the inexorable logic of a mathematical proof. He surreptitiously writes a jury note, which the judge told us should be delivered with the whole jury’s consent. He privately asks the foreman to sign it. Before he’s able to deliver it, I stop him. The note accuses another juror of improperly insisting on “baseless speculation.” It’s a coded attempt to eliminate Henry from the jury. To the rest of the jury’s credit, no one allows it to reach the judge. The foreman admits she didn’t know what it said when she signed it.
I’m struck by the incident’s resonance. It’s a conspiracy that hinges on a person signing a form she didn’t read.
Edith and Ally have clearly stopped caring. Edith brought a deck of cards, and they play card games while I try to present an argument. I think of a scene partway through 12 Angry Men, where Henry Fonda crumples up a tic-tac-toe game other jurors are playing, angrily hissing, “This is not a game!”
I’m no Henry Fonda. I ignore them and continue. I write up all the incriminating facts on a whiteboard in green dry-erase marker. In blue, I add all the facts in evidence that contradict them. Doing this kind of presentation, for an adversarial audience, is difficult for a preternatural introvert like me. I’m reminded of the comedian George Jessel’s line: “The human brain is a wonderful thing. It starts working the moment you’re born and never stops until you stand up to speak in public.”
At some point, one of the older women gets out her makeup kit and gives Ally a makeover. This is literally a scene from The Breakfast Club. Edith looks up from a game of solitaire and casually mentions that she actually thinks the murder was committed by the accomplice, who was never found and is not on trial. But since the defendant’s lawyer did such a poor job exonerating him, she concludes, she’s going to deliver a guilty verdict. My jaw drops. No one questions her obviously flawed reasoning, because she’s on their side.
Molly mentions that she watched 12 Angry Men over the weekend.
“It’s so good,” she says. “It’s just like this.”
She favors conviction. I imagine what an inverse 12 Angry Men would be like, starting with 11 jurors ready to acquit and Henry Fonda as the only one willing to convict. Would we applaud at the end, once he convinces the others and the boy is sentenced to death?
“I’ve lost my faith in trial by jury,” says Anthony, shaking his head.
The jury has given up on democracy.
I watch 12 Angry Men again. I notice this time that the boy’s innocence is never proven, and no alternate theory of the crime is produced. A possibility remains that the defendant is guilty. The brilliance of the story is that it shows this to be a defensible, democratic ideal, as in the formulation classically stated by William Blackstone: “Better that ten guilty persons escape than that one innocent suffer.”
The movie demonstrates how much of the judicial process hinges on transference, the imposition of preexisting ideas about people from one’s past onto others. Janet Malcolm describes its consequences in Psychoanalysis: The Impossible Profession. “The concept of transference at once destroys faith in personal relations and explains why they are tragic: we cannot know each other. We must grope around for each other through a dense thicket of absent others. We cannot see each other plain.”
At the climactic moment of 12 Angry Men, the sole remaining juror who favors conviction suddenly becomes aware of his transference of an Oedipal drama onto the defendant. He has identified the boy, accused of murdering his father, with his own son, who has cut him out of his life. After he lets the connection slip in an anguished outburst, he buries his head in his hands.
“Not guilty,” he finally says.
After the movie ends, I call my own father.
“You just have to spend a couple more days in court,” he tells me. “But you’ll have to live with this decision for the rest of your life.”
“Walk with me,” says Henry.
We’ve finally been dismissed for the day, and it seems like we’re the last to leave. Exiting the empty building feels just like leaving detention. Henry and I splinter off from the others. Jurors aren’t supposed to talk about the case outside of deliberations. We talk about the case. Henry assures me he’s not going to change his vote. He thanks me for standing with him. He is emotional. I wonder if either of us would have held our ground if we were alone. It’s becoming clear that there are two possible outcomes for this trial. Either Henry and I vote against our beliefs, or there is a hung jury.
Again I violate the judge’s instructions and research the law. I learn that while up to 7% of trials end in a hung jury, a 2009 study showed that 54% end with at least one juror voting for an outcome with which they do not agree. Call it Breakfast Club Justice. The desire to be part of the crowd can be stronger than the courage to render the verdict you believe in.
Henry gets into a shouting match with Molly. I get into a shouting match with Ally. Emilio is too used to getting his way to shout, but his disdain for me and Henry is increasing.
“I can’t vote against my conscience just to reach a consensus,” I say. “I took an oath.”
“If you change your vote to reach a false consensus,” says Anthony, “I’ll report you to the judge.”
I realize that for him, threatening to snitch on me for voting against my convictions is a strange way of showing respect. He accepts that my reasoning followed a logical process, albeit one that emphasizes uncertainty more than he is comfortable with. He has stopped arguing with me, but he isn’t changing his vote either.
We tell the judge we’re “hopelessly deadlocked.” I heard this phrase on Law and Order, and it sounds official.
The judge sighs and tells us to keep deliberating.
By the second week I feel catatonic. There is no institutional support for a holdout, even though a trial that does not reach consensus is an inevitable outcome of the jury system. Being in the minority is excruciating. I question whether I have the stomach for it. I think of people like Edward Snowden, Chelsea Manning, Thomas Drake. Their lives were irreversibly altered, in some cases ruined, as a consequence of their moral fortitude.
For some reason, Molly and Emilio refuse to submit another note that identifies us as a hung jury. No one opposes them. I’m mystified as to why they’re so determined to prolong the tedium of circuitous deliberation. Is it out of lawful piety? Punitive sadism? Subservience to authority? Whatever the reason, arguments drag on. I feel like I’m the one on trial.
I never did expect to be Henry Fonda, but now I know who I do feel like. I’m Bartleby. Asked to render a conviction, I am reduced to repeating, “I prefer not to.” I fear that like Bartleby, I may be destroyed by my act of refusal.
Emilio no longer looks me in the eye, but Molly has become vicious.
“You shouldn’t even be here,” she screams. “You lied during voir dire!”
“So report me to the fucking judge!” I shout back. I’ve never raised my voice like this with anyone outside of my immediate family, but she did just accuse me of perjury.
They report me to the judge. The jury note accuses me of not using “common sense” during deliberation. Since it will be read out in front of the court and it would be a violation to name a juror, it does not identify me specifically, instead referring generally to “one or more jurors.”
We file into the courtroom to see the judge, who reads out the Webster’s Dictionary definition of common sense.
As I scan the news one morning before the jury is called in, I come across a report from an organization called Law Enforcement Leaders to Reduce Crime and Incarceration. The group consists of both current and former police chiefs, prosecutors, and attorney generals. They do not mince words.
“We need less incarceration, not more, to keep all Americans safe,” says their boldest statement.
The facts about our excessive incarceration rate are well-known — we have 5% of the world’s population and 25% of its prisoners — and acknowledged even by the members of this committee, whose livelihoods formerly consisted of increasing it. Looking at these rates, not to mention considering life sentences and the death penalty, it’s clear that American criminal justice is not interested in rehabilitation. Rendering a guilty verdict in a court of law means voting to maintain a separate prison population for perpetuity. It’s an endorsement of a system that is undeniably failing.
All this time, Henry has been shrewder than I realized. While telling me in private that he will never vote guilty in this case, he leads the rest of the jury to believe he’s still undecided. He wears the others down, forcing them to push to call us a hung jury. It’s a more effective strategy than my attempt to push for it singlehandedly, based on rational argument and impassioned appeals to the Fourth, Fifth, and Sixth Amendments of the Constitution.
I write the note myself, carefully wording it to convey certainty and finality. The note submitted, deliberation comes to a halt. Awkward small talk simmers. Molly and Emilio have fallen asleep. Edith, who is preternaturally incapable of silence, proudly tells stories of occasions on which she beat her kids, lamenting the lack of corporal punishment in modern childrearing. She would even sometimes beat other people’s kids, she tells us, if they misbehaved and their own parents weren’t around. But you can’t do that anymore, she complains.
She thinks she’s being charming. I think of the final holdout in 12 Angry Men, and wonder if she thinks the defendant deserves a good beating.
The judge calls us in again and declares a mistrial.
The prosecuting attorney is waiting outside the hallway.
“You don’t have to talk to me,” he says, struggling to keep calm. “But it would help.”
I assume that none of us will talk to him, that no one would compromise the confidentiality of the jury. I walk off.
Needless to say, I am wrong. As soon as Henry and I have clearly separated from the group, the remaining jurors gather round.
“Was it split?”
Emilio shakes his head.
“Eleven to one?”
“Ten to two,” says Emilio. I wonder why either extreme had seemed more likely than the imperfect reality.
The ten eagerly offer a caricature of the position Henry and I had taken. They take pleasure in throwing us under the bus. The prosecutor seems to have sought out this conversation more for personal vindication than to accumulate data for the retrial. I speculate on how often he gets hung juries. I bet it’s going to happen more and more in the future.
“I’ve never had a jury request a definition of common sense before,” he smirks.
I resist the urge to argue. I’m tired of arguing and I’m no longer required to do it.
I walk out the door for the last time.