A Locked Room and the Truth
Men in nice suits with badges escort me down the hall. Marshals. I'm placed by myself into a room. In this room is a long table with several chairs, a few locked doors, a bathroom, and a window. The door is closed behind me. I go to the window and open it. It's large, not easy to open. This is the means of escape, however. I'm on the second floor, and if I were to exit via any of the unlocked doors I would find myself surrounded by marshals and correctional officers. This window is it.
There is a small ledge which I could use to make my way around the building. Not a likely option. Too slow. There is a building across the alley, but even if I had room to make a running start I would be unable to clear the distance. That leaves leaping. The alley below guarantees one thing: I'd be lucky to break both legs. No. I'm trapped. This is going to be my home for the next few days. This is Federal jury duty.
The Federal Courthouse in Eureka is on the second floor of the downtown post office. Before the case I was summoned to possibly sit on, it had seen three other cases in the past eight years. To give you an idea of how little this place is used, the men's bathroom at that end of the floor has these tiny stalls with wooden doors. The wood is old. On the inside of the door, the part you'd face if you were sitting on the toilet, is the requisite graffiti. In the one stall this was carved into the door: "Stop the draft." I kid you not. I looked around to see if I could find anything urging me to vote McGovern.
Not exactly a hub of activity.
I had received my summons last month, April. I was to be on call for about eleven days. At that point I could be picked to be a juror. I'm never picked, though. All the other juries I've been on have found me dismissed because I have a big mouth and a lot of opinions. On Tuesday I got a call telling me to show up.
There were over 40 of us there. The plaintiff sat toward the front of the room. He was a black man. His team of lawyers (not counting the possible two that sat behind them the whole time) were two men and a woman. All about fifteen years old. The defendants were two men in suits. Man one was a tall white guy who looked to be in the military based on his haircut. Man two was a round Native American who was decidedly older than the other one. Their lawyers were two men. One never spoke. The other spoke with the ease of someone who had done this thousands of times, perhaps before television cameras.
A man from San Francisco came out to explain things to us. This was a Federal civil case. We would be treated better than we were at state level jury duty because they were the Feds and the Feds were fast. ("Shabby" is how he described the proceedings at the state level. He is right.) The case would deal with the Constitution. A minimum of six were needed for the jury. Eight would probably be picked. My odds just got better.
The judge came in. He was an easy going guy. After we were sworn in he gave a speech about the importance of what we were doing, tying in the jury system in America to a lack of a jury system in places like the Middle East. (His speech was stirring and patriotic, but also had one or two inaccuracies.) It was meant to instill a feeling of importance and duty. I'm not sure it worked. Then he told us about the case. The plaintiff, the black man who didn't rise when the judge came in, was accusing the defendants of violating his 4th Amendment rights by use of excessive force, force which led to injury. The defendants were cops.
Names were then called at random. They were going to fill the jury box and the first two rows of seats. I was called into the jury box, seat six. After we were all seated, the questioning began.
The judge asked each of us the same set of questions. Sometimes he did a little follow-up if he felt it was merited. The questions were exactly what you'd expect. Do you know any of the people? Occupation? Any law enforcement background or anyone in your family with it? Any run-ins with the police? What, if any, sources of news do you look at and read? Could you listen to the testimony of someone convicted of a crime with no biases? Could you hear this case without bias?
When he got to me I already had my answers at ready. I had heard five other people respond. I knew what I would say. I told him about my day job (there were two other people in the courtroom I had worked with or did work with, and another from the same branch of the government I work for) and my writing. I rattled off a series of news sites and magazines, including Z, which I had on me. Then he asked, "Have you ever been pulled over or been arrested, or have any of your close family been pulled over or arrested?"
"In my younger, wilder days I had many encounters with the police," I said. This generated quite a few laughs. (People are desperate for laughs in a courtroom. I'm a simple entertainer.)
No follow-up. Usually that answer led to follow-up. I figured the lawyers would do so. At that point I would explain my experiences, say I could still be unbiased (which is true; I'm a very fair and balanced person when it comes to those sorts of things), and I would be dismissed. I'd be back at my job before noon.
I answered the rest of the questions, noting I could be unbiased. The judge finished off the questioning, including one young woman who said she thought all police used excessive force and one man with a military background whose answers were just about as unclear as one could get. Now it was time for the plaintiff's young lawyers to start their questioning. "Here we go," I thought. "They always start with me."
"Mr. Brunell," the man began. I was right. "About your writing ..."
There are a few times in life where my writing makes me uncomfortable. It's not when I'm threatened with a lawsuit. That has happened so many times that it's almost funny (and the reason I'm not naming names here). The times that are really the most uncomfortable is when a family member asks about something I wrote or when people involved in the justice system bring it up. I had no idea if these lawyers had read anything I wrote, but I was now prepared to defend myself. Yes, I've been critical of both cops and people, but I think if you go back through everything I've written, I've shown nothing but a strong sense of fairness and doing the right thing ... even if it sounds insane.
"... can you tell me a bit more about your fiction writing?"
What? Seriously? So I did. I explained that I wrote primarily horror stories and thrillers. The judge had asked if I was published, and I had replied I was, which seemed to impress him. I told the lawyer I had just published two short stories to the Kindle. He asked if the book I had mentioned to the judge was fiction, and I had to explain that it was not. It was an online poker book, which was non-fiction. He then asked, "So it was published online?"
"No. It's a print book. It's about online poker."
"Oh, like tips and strategies you would use in online poker?"
And now it was coming. What kind of non-fiction did I write? That was going to be fun. This whole courtroom was going to be exposed to what one friend called my "unending stream of hatred for humanity and enough sarcasm to kill off an entire population."
"Can you tell me a bit about your job with the county and what you do?"
Okay. I guess the defense would ask what every other lawyer has always asked me in this situation. The defense did not. In fact, the defense lawyer didn't ask me any direct questions at all.
The judge dismissed us back to the hallway for Starbuck's coffee and pastries while he talked to the lawyer. A few minutes later we were called back in. "Ladies and gentlemen of the court," he announced, "we have a jury."
Oh. Dear. God. They hadn't questioned over half of the crowd. My odds for being picked were suddenly sky fucking high. They wouldn't pick the "activist" girl who was never really asked to defend her position. They wouldn't pick the ex-military guy who couldn't formulate a thought and was asking people on our break if they understood his answers. They wouldn't pick the man who said he wouldn't give the testimony of a man convicted of a crime the same attention as someone who hadn't been convicted of a crime. That was three gone in an instant. Still, I had a shaved head and very visible tattoos (human teeth on the wrists, a girl with a gun, a naked demon lady). No, the defense wouldn't want me. They would look at me as a "risk."
I was juror four.
We were ready to roll by right about ten o'clock. Sweet Rhea Perlman, the Feds do move fast.
The plaintiff's female lawyer began her opening argument. She looked like an old friend of mine, and she had the last name of a current friend of mine. He would actually make a good lawyer, so I found the shared last name kind of interesting. I'm going to paraphrase what she told us, leaving out the names. [It should be noted that I write this a day after the trial ended. There was so much conflicting evidence that even my story won't be straight, and I'm sure I screwed up the multiple timelines we got. I'm not asking you to make a judgment call on this case. I'm just explaining the process we went through because it makes for good reading. In no way is what I'm writing supposed to be taken as factual for case merit purposes.] Cop One is the white guy. Cop Two is the Native American. The plaintiff is ... the Plaintiff!
"The Plaintiff was driving home down Lake Boulevard [I may be changing names of places here, too] at a little after one in the morning. He passed by a motel where Cop One and Cop Two were sitting in their cruiser. Cop One was in training, and Cop Two was his Field Training Officer. Cop One was at a phase in his training where he had to show Cop Two that he could act independently. The Plaintiff was not doing anything wrong. The speed limit was 25 through their and you will hear Cop One and Cop Two testify that the Plaintiff was not speeding, and nor did he violate any traffic laws. This is undisputed.
"Cop One and Cop Two followed Plaintiff to his home, and apartment complex, where Plaintiff parked his car. Cop One and Cop Two pulled into the parking lot, made a u-turn and parked behind Plaintiff, blocking him in. Again, he did not violate any traffic laws. The defendants wanted to establish a consensual contact. This is not disputed by either parties.
"Plaintiff gathered up his things. A cell phone, a pager and a fanny pack. He got out of his car and locked the door. At this time, Cop One asked from the cruiser, 'Do you have a license to drive that thing?' Plaintiff did not, and he did not answer. He did not have to.
"Plaintiff began walking toward his apartment when Cop One yelled, 'Freeze, nigger!' Plaintiff froze, afraid for his life. Cop One got out of the cruiser, put Plaintiff in a rear wrist lock. Plaintiff cried out in pain, and Cop One reached around and choked him."
The story continued where Cop Two then got out of the car and continued the choking. The plaintiff blacked out and woke up in the back of the cruiser with paramedics shining a light in his eyes. At some point it was determined that the plaintiff was on parole and had a parole (possibly) ID. He did not have a drivers license, another undisputed fact. The rear wrist lock and the fact that hands went on the throat are also undisputed facts, as is the fact that the ambulance arrived.
Cue dramatic music. Actually, don't. There is no dramatic music in the courtroom. All the drama comes from a limited number of sources. The testimony, the lawyer's reaction to the testimony, the judge's reaction to the testimony, and body language. There is not music to cue you in on the sad parts, the angry parts, or that piece of damning evidence that is present in ever courtroom television show and movie. That piece of damning evidence actually really doesn't exist. It's a fictional device like lightsabers and Irish people. Fake things to add tension to a tall tale.
The defense then brought out its opening argument.
The defense stated that the police were following the plaintiff simply by being on the road at the same time. Cop One decided to make a consensual contact with the plaintiff when he pulled into a parking space in the apartment complex. The police didn't pull in behind him. Cop One asked if he could talk to the plaintiff and the plaintiff agreed and stopped walking at that point. Cop One asked if he had a drivers license and the plaintiff stated he did not. He did, however, offer that he had a California Department of Corrections ID card. He was asked if he were on parole, and stated he was. Cop One then did a pat down search. As he was doing this the plaintiff took a baggie from his pocket, palmed it and put it in his mouth, at which point he began to chew it. Cop One put him in a rear wrist lock and Cop Two got out of the car. They feared it was narcotics that could be destroyed and swallowed, so they told him to spit it out. He didn't. Cop One had handcuffed the plaintiff and tried using a c-clamp technique on the plaintiff's neck so he couldn't swallow, and at one point Cop Two did the same. Eventually the baggie was spit out and paramedics were called not because the plaintiff passed out, but because the officers feared he had swallowed some narcotics and would die. The plaintiff was convicted of possessing rock cocaine with transportation and more tacked onto it. He was also found with at least $1,300 in small bills on his person.
Cut and dry? Not really. The main three witnesses were the two officers and the plaintiff. Under questioning by both legal teams their stories showed flaws. Plaintiff denied having any drugs at all. Cop One stated he never said "nigger" and had never used any racial slurs. When the latter was pressed he continued to deny it until the plaintiff's lawyers asked him if he ever used the term "wop." Suddenly he remembered that and had to explain the situation (it was back in his college days). None of them could agree where the police cruiser was parked (the two officers agreed on and remembered little of the same things). Timelines were loose at best. (The plaintiff insists he was choked for ten minutes. In delibrations I pointed out that would probably have killed him.) Nobody remembered who called dispatch, and the actual medical records of that night were unobtainable. The paperwork the officers filled out was filled with errors and nobody could figure out who filled out what. Policies and Procedures for the police department weren't followed.
It got worse when the defense put up its witnesses. All but one had no direct contact with the case. The one who had anything to do with it was a doctor who examined the plaintiff's medical records, but not the plaintiff. (Incidentally, this expert witness had to come in from out of the area, as did all of them. For that he charged a day fee to the defense. His normal fee was $1,000 an hour of testimony. His research fee was $600 an hour. His day fee was $10,000. He made around $15,000 for this case. He was on the stand for about ninety minutes.)
The plaintiff's lawyers offered no other witnesses. Not even a doctor who examined him.
Most people dislike lawyers. They are sharks who are greedy and nit pick things to death. Most people would rather not associate with them ... until they need them. Then the lawyer is your best friend. Lawyers have earned the reputation of being cutthroat motherfuckers, and have done little to challenge that with the exception of pro bono work for some good cause. When you have to obtain a lawyer, though, you want that cutthroat motherfucker who is going to point out all the flaws with the other side's story. You want them to nit pick and challenge every little thing. You want them to sway the jury. You want that lawyer to be a samurai, and not just any samurai, but the best samurai. You want Lone Wolf.
The testimonies went from Tuesday to Thursday afternoon, at which time the lawyers did their closing statements, which, after hearing all the testimony and seeing all the evidence, were a little less impressive and dramatic then their opening arguments. We were then given a sizable list of instructions by the judge on how to decide this case: what we could and couldn't use evidence-wise; how we had to rely on memory, and not our notes (for those that took any); what factors we could utilize; what parts of the 4th Amendment we needed to look at; what facts were agreed to by both parties (quite a few, actually); what definitions of legal terms were; and more. It was quite daunting and a bit overwhelming. We had heard everything from how many lanes a road had to learning how the shoulders work and what constitutes injury versus condition versus symptoms and how impingement affected in that area. We learned of the different bone types and names and shoulder could have, and we learned a lot about Use of Force policies and the extensive training police officers go through.
And then we were locked in a room to make our decision. All eight of us with different backgrounds. Different opinions. Different politics. Different memories of what we had heard. Different points of view on criminals and police. Different ways of arguing. Different ideas about everything under the sun. We were eight people who had no contact with each other outside of this incident, and we had to decide the fate of three people we had even less contact with in our lives.
I find debate to be kind of sexy and a mark of intelligence. During this trial I realized I have surrounded myself with people in my life who can debate issues and debate them quite well. Anyone who can't debate both sides of an issue and do so effectively are, in my opinion, a little less intelligent and more than a little dangerous on a jury. If you can't get excited by digging into word definitions, recollections and law, you should excuse yourself from being on a jury. What is even more interesting is that you don't even know how important this is until you read your verdict. A vigorous debate of merit is kind of like porn to me. This was a vigorous debate with absolute merit. It was an argument involving the Constitution and it would change people's lives ... and not just a little bit, either. This incident happened in 2003. The first deposition took place in 2010. This had tied up all their lives, and everyone wanted an outcome in their favor.
I like to play devil's advocate, and I also like to delve into word definitions and how things are written in order to interpret things. In this case we had a series of questions we had to decide. The first of which was whether or not the plaintiff's 4th Amendment rights were violated by the use of excessive force in his seizure. After that we were to decide upon injury and damages both nominal and punitive. If we answered the first question as a "no" for both defendants, however, it was done. Do not pass go. Screw your nominal and punitive damages. The first question was key to everything else, and as to be expected, people argued just about everything but that at first.
When it came to the first question, there were three points that were made. The first two weren't in question. The second of two was that the plaintiff was seized. That's important. "Seized" means he was stopped. The third point, which was the debate for both parties, was that his seizure violated his 4th Amendment rights due to excessive force. There are two definition in there that are important. "Seizure" and "excessive force." Both were defined. "Excessive force" had a criteria of six guidelines that we had to look at in order to determine if excessive force had been used. "Seizure" meant his arrest. Did his arrest involve the use of excessive force? Very basic question that is loaded with problems.
The first problem is that whenever you have a group of people, you have to reach some understandings. Eight of us needed to get focused. We needed to agree to use the proper terms as outlined and not as our understanding of such. That's hard. We argued about injuries and we argued about merit of seizing the plaintiff. We argued about credibility. All of these things were important, and I engaged in the debate, too. But they didn't get us any closer to answering that first question.
I do believe one juror's mind was made up, and he was sticking hard and fast to his belief. I believe he also wanted to hit me. (Especially after I laughed when he started a sentence with, "I've seen Cops...") We worked out our differences. I eventually told him I agreed with him, but that he was missing some key points. He apologized to the group for being hard-headed (though we all eventually agreed with him), and did agree with me when I said, "You would want us arguing the same thing for you."
That is all good, though. That is needed in a debate such as this. You need someone to be a rock. It becomes a focal point. It becomes something you can push against or anchor to. What I wanted from the group was a general understanding of the terms. People kept stating that there was no injury so excessive force wasn't used. I pointed out that the six points stated nothing about injury and that excessive force doesn't need to lead to injury. That's why we would possibly determine whether or not there was injury later after we determined if excessive force was used.
Jurors stated the police were using a c-clamp method to keep the plaintiff from harming himself. I pointed out that the justification for using such a thing would have to fall under whether or not the plaintiff was a threat to the officers or others, not himself. In fact, the listing on that specifically went out of its way to exclude the plaintiff in that list.
Then it was argued that the plaintiff could be seen as trying to evade arrest by swallowing the evidence. Awesome point ... unless you read the rest of that directive. It is evading arrest by flight. Chewing and swallowing is not flight.
I argued points on the seizing, stating that I really thought the combination of stories was the most likely, but that the seizing really didn't matter, as we were concerned with the seizure and not the seizing, as that was agreed upon by both parties as being kosher. I also argued that I thought the lack of a doctor on behalf of the plaintiff, coupled with other evidence, showed that there was no injury. That didn't matter, either, though. What mattered boiled down to this very basic argument, which could only be determined by whose story you believed: Did the police use the c-clamp and wrist lock because the plaintiff tried to chew and swallow a baggie, or did Cop One use a rear wrist lock just to detain the plaintiff and then used a c-clamp to get him to stop screaming out in pain? (A c-clamp, by the way, is just something you do with your fingers on the throat.)
We agreed on the the six points to the most part. We found that two or three of them were iffy, at best, but we could see the police being justified in doing what they did under the scope of the six points (such as the time elapsed in using the force and whether or not there were better methods available that would require less force). The problem was that it was only justifiable if you bought the defendants' stories, and those didn't match up.
The plaintiff's story didn't make sense, either.
I put forth a theory of what I saw as happening, which involved views from all sides of the story, and my peers agreed that sounded plausible. But that was my theory. What we had to look at was what we heard and what the evidence was before us (which was actually very little.)
We came up with our verdict. It wasn't easy. The scope of its depth wasn't even realized until we read it. You've probably come up with your own opinion by this point. Your opinion is wrong. It's wrong not because it's not what I think, but because it is based solely on what I wrote coupled with your experience and beliefs. You don't know what the evidence was, and you don't know all the testimony we heard. All you know is my version of the events. All we got was other people's version of the events, too, with evidence we could see and read. We weren't there that night, and you were even further removed.
As we made our way into the courtroom, everyone stood. That is standard procedure. We presented our verdict in a sealed envelope. The courtroom had never been more silent.
A woman from the court was asked to read our verdict. She did so. Slowly. Deliberately. She didn't miss a word. Her voice never faltered. She had done this before, and every time it was just as important.
Neither officer was guilty of violating the plaintiff's 4th Amendment through the use of excessive force.
When Cop One's name was read, there was a gasp. I couldn't look at anyone at that point. When Cop Two's name was read, there was another gasp. Then sobbing. At that point I looked at the defendants. Two men who had been tied up in a nightmare for eight years. Think of that. Your life with this hanging over your head for eight years. The possibility of not only your reputation on the line, but the potential that you may have caused millions of dollars in damages. Your co-workers wondering about you. Your credibility being pulled through the mud. Eight years. The tears I saw in their eyes were real. Cop Two used a white handkerchief to wipe away the tears. It was a brilliant white. Possibly washed that very morning. They clasped each other.
I couldn't look at the plaintiff.
We were polled. Did we all agree to this? Yes, we did. We were told the lawyers may want to talk to us. It was our choice. I didn't want to say a damn word.
Back in the room we all agreed that was far more emotional and harder than any of us thought it would be. Even the rock got emotional. He was thankful we looked at everything. The case had kept him up all night, like it had done with the rest of us. (We finished our deliberations on Friday.) We were shaken, and I wasn't sure I liked that.
The judge came in and thanked us. He wanted to know if there was anything they could do better in the future. He wanted us to know the court appreciated our time. Everyone did.
Making our way out into the hallway, I was stopped. Some of the jurors had started talking to Cop Two and the defense lawyer who had presented the case. The slick guy. The guy with the voice made for this kind of work.
"Make no mistake," the lawyer told us, "you did the right thing. Plaintiff is a real bad guy. We couldn't present that in court." And then he told us the list of charges against this guy, and why he was never getting out of prison ever again. He repeated that we had done the right thing. That now the officers could sleep.
Cop Two still looked stunned and relieved all at the same time. He was thanking us. "It's hard to hear people call you a 'liar.'" And then he said something that will stick with me for a long time. "We're good cops." He took my hand and shook it. Thanked me again. I patted his shoulder and said something like, "Get your life back." I'm not sure my exact words. I just wanted to be gone.
And then the plaintiff's mother came.
She had been at the trial the whole time. Seated with other family members. She was well-dressed and used a cane. She walked between us. The people who had called her son a liar. She kept her head up, her gaze ahead. She always looked unhappy to me. Today was no exception. Out of respect, we were silent as she made her way down the hall. I still wanted to be gone.
On my way out, the plaintiff's lawyers thanked me. One juror was talking to them. I wanted to tell them to do a better job next time. It was important work. Honestly, though, I think they did the best job they could working with what they had. They're young. They'll learn. The other lawyer treated them with respect despite getting water spilled on his evidence and dealing with their lack of nuance. He respected them, though, because he respected the system we were operating under, a system I think is still flawed and leaves much to be desired. That's a different story, though. That has nothing and everything to do with this case.
I sat in my car. I did not want to go back to work. I was drained. Emotionally done. As we had walked out, we talked about how hard it was to do that. How we didn't realize how important an effect it would have until we heard the verdict read. The simple "yes" or "no" that would forever alter lives. A simple "yes" or "no" rendered by eight people who weren't there, but who had hashed out all the evidence and all the definitions and all the facts and all the fiction. The preponderance of the evidence.
I imagine that on that Friday night, Cop One and Cop Two slept differently than they had the previous nights. I imagine they felt a peace they hadn't felt in a long time. I don't think the case was on their mind every day through the last eight years, but I think it dominated the last two. As the defense lawyer told us when we came out, they got worried at the two hour mark. They thought we were figuring out damages. If we were doing that we had found at least one of them guilty of violating the plaintiff's 4th Amendment rights. At that second hour mark, by my estimate, we were finishing up the debate on the merits of each witness' story. For those two officers, though, we had already found at least one of them guilty in their minds. I imagine that was painful in ways I hope to never fully understand.
"We're good cops." They may have said that often in the past. Now they could prove it.
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