My First Experience as a Juror

 

It was bound to happen sooner or later. This author was called for jury duty. Three months, and I would have to call in every week to see if I had to report. OK. So be it. In advance, I thought I would never be seated as a juror. Why? Two reasons:

1. I am a firearms instructor. Can't imagine a criminal defense attorney would want me in that jury box. 

2. I believe wholeheartedly in the idea of jury nullification. No prosecutor worth their salt would want me in the jury box. 

For the record, judges often warn against jury nullification. The thing is: jury nullification is not illegal in Tennessee. The apparent contradiction comes from the difference between what a jury has the power to do and what judges believe jurors have a legal duty to do. Interesting fact, in the case that was tried, and for which I was selected as a juror, the judge directly said: "As jurors, you are the ultimate judges of the law and the facts." 

That statement openly invites nullification, in my eyes. 

However, getting dismissed in the process was not part of what was in the cards for me. Why? The prosecutor never asked the right questions. The defendant represented himself, and only asked a single question of the jurors - which was unrelated. The case was a DUI case. 

So here are some of the facts:

• The defendant: A man representing himself in a DUI case, without an attorney.
• The charges: DUI and driving with a blood alcohol concentration of 0.08% or greater. His measured BAC was 0.139%, according to the TBI forensic testimony.
• The initial police encounter: The defendant called 911 during an argument involving his former girlfriend. Officer responded in connection with a welfare or domestic disturbance situation, which developed into a DUI investigation.
• The central evidentiary problem: Nobody testified to actually witnessing the defendant drive. The strongest evidence that he had driven was his own repeated admissions on police video.
• The field sobriety tests: The officer testified that the defendant failed all three. After watching the video, the other jurors and I concluded that officer had lied about the defendant's performance.
• The police video: Approximately 45 minutes long, with portions of officers' conversations muted or redacted.
• Other potential weaknesses: Questions surrounding the blood draw: consent was weak, chain of custody was never questioned, the timing of the defendant's intoxication, and the Officer's credibility. The defendant said on camera he had taken cocaine - and yet the blood draw toxicology report we were given as evidence had no mention of cocaine in his system, or even if it was tested for. 
• The jury had some interesting observations: we all agreed the officer was full of manure. It was very evident with the tells of changed speech pattern, speaking more quickly on certain questions, fidgeting, and clear tension in his body during same questions. Because of this, we agreed the probable cause was weak, at best. Again, had the defendant SHUT UP, this would have made for a field day for a criminal defense attorney. 
• On the field sobriety tests, aka, the agility tests: The  horizontal gaze nystagmus (the eye test) was interesting. We COULD NOT SEE the results. The officer had his bright light right in the defendant's eyes, washing out any ability for us to make out what was happening. The walk in a straight line test - the defendant performed the move as asked, then forgot how the turn was supposed to be executed and asked how to do it. The officer said "I showed you." The camera never demonstrated the officer showing this. There was a part when this might have happened, but it was off camera. So the officer testified the defendant turned wrong. None of us jurors felt this was fair - we would have forgotten, too. And, the defendant was agitated as he and his ex girlfriend had been in an argument. Understandable. Finally, the stand on one leg test - the defendant performed this well. Better than I could have. No wobbling. 
• The defense: The defendant gave no opening statement, conducted no meaningful cross-examination, presented no defense evidence, and delivered an ineffective closing argument - asking jurors to do what was moral, but not legal. We saw no moral issues. It was a poor defense. 
• The verdict: Guilty on both counts, reached in less than 15 minutes. 

Some takeaways from me:

1. Don't talk to police. This is not legal advice from me. And, it is not difficult to find criminal defense lawyers going on the record to give this advice. Hell, police don't talk to police when being investigated. Per several friends and students, in Tennessee, they undergo 12 days of training in police academy on how not to talk to police. For contrast, the officer in this case testified he had 40 hours training in academy on DUIs. 
2. Hire a criminal defense lawyer. Seriously. I firmly believe that if this defendant had not spoken to police and had hired an attorney, the verdict would have been substantially different. 
3. The officer was called to do a welfare check for a domestic dispute. That turned into a DUI stop in like 3 minutes. Tell me again they don't have quotas??? 
4. This defendant took a knife to a gunfight. The prosecutor showed up with a .22LR revolver, missing ammo in half the cylinders, and the defendant proceeded to stab himself with the knife. Don't talk to police and hire an attorney. Seriously. 

Thoughts?