I dealt with race and racism pretty much constantly between 1972 and 2007, with greater or lesser wisdom. At any rate, here are some stories. Make of them what you will.
1. The Twofer. Sometime in the mid 70's, when I was public defendering and doing motions, one of our female deputies came into my office, mad as hell. Her client had been Black. She'd done jury selection in the conventional way, getting the conventional responses, and the case had gone forward without incident. But after the verdict (guilty), several of the jurors approached her. It seems that the moment deliberations had begun, one of the jurors who'd done a butter-wouldn't-melt-in-my-mouth number uring voir dire had sat down and said, first thing, "Only a stupid n----r would be dumb enough to have a dumb b----h for a lawyer." Crass racism and sexism in one sentence. A twofer.
My colleague and friend, who was in fact an awfully good lawyer and went on to a distinguished career as a Superior Court judge, was incensed, as was I. The reason was not just the prejudice, but the lying about it during the selection process. Recall that the jury panel is sworn, and these answers are given under oath.
But what happened in the jury room after that, is what was interesting. The other 11 jurors were infuriated. The initial reaction was to walk straight back into the courtroom and announce a 'not guilty' verdict. Unfortunately for my colleague and the defendant, cooler heads prevailed. They decided, despite the presence of one a------e that they were duty bound to examine the evidence, which is almost never good for a public defender's case. Worse than that, this was what we used to call a 'sit through', meaning that there was no defense, that in the face of overwhelming evidence, the defendant was demanding a trial out of sheer orneriness. He wasn't particularly dumb, but he was sociopathic. The deliberations went on without any input from the racist, who was apparently too intimidated to say another word. But it did result in a guilty verdict. The jurors then informed defense counsel, so that the offender could be properly disciplined.
Which he wasn't. The administration of the PD's office in those days was incredibly timid. My colleague and I wanted the matter referred to the DA for possible perjury prosecution, or the trial judge for contempt proceedings. You just don't lie during voir dire. But the higher ups wanted nothing to do with that. We could have run a new trial motion as there is some conduct in the jury room so egregious that it's not protected by the veil of secrecy. But my colleague really didn't want to do that. Despite the glaring misconduct, the verdict was a fair one, and the trial judge (though pretty upset by the juror) not disposed to grant a new trial. So it died aborning.
The point of the story isn't the creep at its center. These we will always have with us. It's the other 11 jurors.
2. The Wrong Man. The second story occurred about the same time. I had a friend, a really good trial lawyer, who was a Black Southerner. He took racial issues as seriously as you'd expect – he was one of the first in his town to ride the public transit in his town after it was integrated, in the Rosa Parks era (though my recollection is he was Georgian, not Alabaman.) One day he came back to the office in a state half-way between tears and laughter. He was defending a White guy, an inmate who for some reason had not been dressed out. (Maybe the defendant refused – it happened.) He was in the middle of jury selection, when a female juror, answering one of the standard questions, politely said she should not sit on this jury because she was prejudiced against Black defendants.
“I'm the lawyer,” my friend says. “I'm obviously the lawyer. The judge had introduced me to the jury. For God's sake, I'm sitting there in a three piece suit and a power tie.” (He was always well-dressed.) “My guy is beside me in an orange jump suit, with the 'SANTA CLARA COUNTY' printed on it. And she can't see beyond the race!” As I said, it was laugh or cry.
This did not require any major lawyering, as the juror was promptly informed of the error, turned about a thousand shades of red, and was excused. The trial went forward – another case in which the double damned jury decided the case on the evidence, and defendant and defense counsel were condemned to woe and misery.
A few days later, we were post morteming the trial. My friend referred to the incident and wondered whether he'd made a mistake in not fighting to keep the juror. What, you are saying, had he lost his mind? Not at all. What he was thinking is that the juror had actually said she was prejudiced against Black criminals. But this particular defendant was White. So she wasn't going to be prejudiced against him – that is, once she had figured out who the defendant actually was. She was honest enough to admit it out loud (unlike the SOB in story one.) And she'd made such a damn fool of herself that she might just have bent over backwards to be fair. Such was his speculative thinking, anyway. Public defendering legal practice has only one operative principle – will it work? We'll never know because it is out of the question to keep such a juror. But it is typical of the way racial issues play out. Mostly you try to maneuver around or neutralize them. On occasion you try to exploit them.
3. The Upper Class. The worst expression of racial prejudice I ran into in those years did not occur in a formal setting. I was out at a Stanford football practice in late December of 1977, watching Bill Walsh get the Cardinal ready for the Sun Bowl. A nice enough older guy came up, about the same age I am now, and we chatted enthusiastically about Darrin Nelson, James Lofton, other Stanford stars of the day, and the general high spirits of the team. The Crime of the Century that year (sic) was the Chowchilla kidnapping, in which a trio of armed guys had waylaid a school bus and buried it (and forty kids) underground. The perpetrators turned out to be a trio of disaffected rich kids from wealthy families up in the San Mateo-Hillsborough area. The crime actually occurred in 1976, but the perpetrators had only recently been sentenced (to LWOP, subsequently reduced to life.) The subject did not come up until my new friend asked what I did for a living. It turned out that he knew one of the wealthy families and was emotionally invested in the sentencing He leaned forward.
“Tell me,” he said, nudging me, with a conspiratorial glint in his eye, “would these kids have been sentenced so harshly if they were Black?” I think he expected me to confirm his belief that they'd have received some sort of wrist slap if they hadn't been white and rich.
I tried my best to be polite, but I must have reacted because I was absolutely dumbfounded, at the monumentality of this delusional thinking. Then I told him the truth as I saw it, that when you hijack a school bus and bury 40 children, you have transcended race, class, gender, and even planetary origin. You are going to get clobbered, no matter who or what you are, because you just hit the top of the charts. I also said that the criminal justice system is far more race neutral than non-participants realize, but it sure as hell isn't class neutral. It strongly favors upper class defendants, and particularly White upper class defendants. He looked at me with his own version of incredulity, then waved his hand in contempt, turned his back, and walked away. I had been dismissed, as One of Those, along with any other input that didn't meet his preconceptions.
Wow, I thought. What goes on in Hillsborough? There is such a thing as a limousine conservative (if not reactionary), completely divorced from reality.
4. Unlikely Hero*. I've asterisked this because it's probably the most important one. We have to jump 12 years ahead in time, to 1990, when I rejoined the civil service as a prosecutor. The first case I tried was a routine petty theft in Los Gatos, inconsequential, batting practice, so to speak. But it took some really unusual twists and I have never forgotten it.
The theft had occurred at an upscale bar, at a late hour. The place was a watering hole for the younger people, pariters, and specialized in exotic, pretty stiff drinks. The defendant, a young woman, had pocketed another girl's purse, then left. When the victim noticed it was gone, her boyfriend chased after the culprit, found her, made her come back to the bar, and the missing purse and some personal items were inside the defendant's purse. An ice cold case, and a good starter for me, though I wondered why it was being tried at all. (It turned out to be a vanity trial, at the insistence of the defendant's mother.)
It had been 13 years since I'd tried a criminal case. I had forgotten so much I had to approach the bench and ask the trial judge which side of the courtroom to stand on. (His face was a real picture.) The defense attorney was well known, and competent, but based on this experience and subsequent, grossly overrated. We picked a jury in nothing flat. One of the members of the panel was THE Chief Probation Officer of Santa Clara County, the guy responsible for all probation and sentencing services. You'd expect this type, who has to be a law-and-order guy, would be the first one taken off the jury by the defense. But the defense unaccountably left him on. I knew something was up and wondered what.
I found out with the second witness. (This was a 'cite-and-release' case, meaning the cop had written a citation and released the defendant, meaning there was next to nothing in the way of police reports.) The first witness was the victim, who turned out to be a youthful and extremely attractive young woman, aged 21, the sort who could easily excite jealousy or envy all on her own. Her testimony was non-controversial. The second witness was the boyfriend, who had retrieved the stolen purse. As it happened, he was Black. and in his mid 30's.
It's good trial procedure to raise issues of this type with the jury during voir dire, as I have indicated above, to eliminate anyone with a problem with that sort of thing. But I hadn't known this fact, and the defense had laid low. So this aspect of the case came as a complete surprise to this mostly-Caucasian, a-little-Asian jury.
The plot thickened. After the boyfriend had told his story easily and naturally, the defense cross-examined. The boyfriend had an unusual surname, one defense counsel recognized as that of a family, most of whose members had been in trouble with the law. He asked if that were the young man's family. Yes, it was. Stretching good faith to the limit, and maybe beyond, he asked the witness if he had been convicted of a felony. Yes, he had, twice for cocaine possession and once for . . . theft. Then came a series of questions implying that for reasons of his own, he had secreted the purse and produced it to make some sort of impression with the pretty victim. For a lot of evidentiary reasons too detailed to relate, the suggestion was absurd, but raw meat for anyone with a racial agenda looking for an excuse.
And let me throw one last log on the fire. There was a significant age difference between the girl and the guy – not enough to be obscene, but enough to raise an eyebrow. She was just out of her teens. He was in his mid 30's. Forget race for a second - if you know any families who would be thrilled with their young daughters keeping company with much older men with a criminal record at sophisticated bars, let me know. Because I sure don't know any.
So anyone with a racist bent who wanted to characterize this as Innocent White Girl Corrupted by Sophisticated Black Con had all the ammunition he or she would need. All of this hit the jury completely cold. Had I known the boyfriend had a criminal record, or his age, the jury would have been alerted to that, too. But the case hadn't been prepped at all by the regularly assigned deputy, and I'd taken it on about an hour's notice. So all of this was coming to the jury as a total surprise.
The witness answered all this beautifully, admitting the convictions, but denying without any fuss that he'd had anything to do with the theft. He had a good job at that time of his life, and said straightforwardly that his convictions were way, way behind him, ancient history. But all the ingredients for anyone with a racial bias were there. He was a convicted thief, and he had handled the stolen property. Anyone who had a racial bias he or she wanted to express could claim to have a reasonable doubt, with no one the wiser. It would not have been in good faith, but who could say him or her nay?
So I was a mite worried when the jury went out. As it happened, however, they were back in an hour with a guilty verdict, which is about all the time the relevant evidence in this absolute no-brainer of a case justified. Afterwards, a few of them hung around. I was mightily curious about how these totally unexpected developments had hit them. What I learned was that – to a man and woman – they had been . . . . utterly outraged by the impeachment of the boyfriend on felony convictions. They all regarded that tactic as completely below the belt. (The Chief Probation Officer was one of the most vehement.) None of them had snapped at the racial bait even for a second. This is only one case, circa 1990, but it has stayed with me – because I think it's paradigmatic.
I have no doubt that in an unscreened panel of even that small size, you had more than one who had deeply negative feelings about interracial couples, particularly Black men and white women. There's a lot of that out there, then, now, and always. But there wasn't one of them that was sufficiently distracted by however they felt to lose sight of the facts of the case, or fail to judge the individuals as individuals rather than racial stereotypes. THAT, to me, is the ultimate bottom line – not the racial feelings, one way or other, but the ability to bring the individual into focus as another unique human being, As with the 11 jury members in the first story, whatever racial notions this jury may have had stayed firmly in the background.
And this is true for just about every jury I have ever been involved with. More on these matters anon.
5. The Little Boys in the Photograph. During the 1990's, Santa Clara County high tech companies were hit by a really obnoxious pattern crime. On a given day when a large shipment of pricey components was expected, gunmen in ski masks would take over the loading dock, seize the shipment, and drive off with it. Scary stuff. We came to learn this was a rainbow coalition crime – basically, the intelligence as to when the shipment was due was obtained from delinquent gamblers, nearly always Asian, paying off a debt, leaked to someone who organized the robbery. The actual perpetrators were either Vietnamese locals, or occasionally Crips who came up from Los Angeles for that purpose. The goods moved very rapidly out of state or down to Los Angeles. For a while, these were extremely successful crimes. There were a few dozen instances.
The one I am going to tell you about was a variant of this m.o. A Fed-Ex driver delivering a huge shipment of goods (valued in the high six, low seven, figures) was carjacked by three African-Americans. He was forced out of the cab with at gunpoint, on to a busy expressway (fortunately uninjured). The perpetrators then took off for parts unknown.
Which is where the scheme became unglued. The perps thought they'd picked a vacant lot out of eyesight, but in fact an office worker severally stories up and a couple of blocks away looked out his window, and saw three Black males moving cartoned boxes as fast as they could out of a Fed-Ex truck, into a rental van. This looked pretty suspicious, so he phoned the police. But before any oficers could arrive, the men and the van were gone. These were very efficient operations.
The SJPD sergeant who was on the case was really good. He knew the pattern of the crime cold. Telling his wife he was going to be late for dinner, he drove down the freeway to the major exit to the I-5 Interstate, and waited. Sure enough, about 45 minutes later, along comes the rental van (matching plates) and three African Americans with matching descriptions. He calls for fill from the California Highway Patrol, a little convoy is formed, and they make a major league bust along the road, undoubtedly drawing curses from every commuter on his way home that night.
My assignment was high tech, so this was my case, even though this sort of street crime was a long way from the trade secret theft I'd signed on for. The ringleader of the group absolutely refused to deal the case, so we got ready for trial. This was preceded by a motion to suppress evidence, on the ground that the SJPD sergeant lacked probable cause to make a stop. If your mouth has dropped open in wonderment at the apparent lack of merit here, you're right. The motion was a complete non-starter. However, the defendant had retained an eager young newly minted attorney, brimming with hubris and political correctness, who absolutely believed in it.
I went over to review the evidence with the sergeant. We'd taken pictures of the stolen components and returned them to the company (price degradation was a real issue), but we'd never been over the personal items seized from the defendant that night. There might be something there that helped the case. We opened the driver's wallet. There, right under the defendant's driver's license, was a portrait photo of two of the handsomest young Black boys you ever saw, faces gleaming, smiles broad – maybe 7 and 9, about that age, I think they may have been in parochial school uniforms, but I don't remember clearly. It was absolutely crushing to see that picture and know what was coming at that family - because this was a multi-million dollar theft, with a car jacking, a gun, and heavy, HEAVY duty time.
The hard boiled sergeant slammed his hand on the table hard enough to startle me. 'God damn it,' he said.
'Not your fault,' I answered.
'I need some time,' he said, and left me for a while. Right that second I do believe he was regretting he'd ever made the bust, despite the brilliant police work. I thought of the Rodgers and Hammerstein musical Carousel, which turns on a crime committed by the hero to raise money for his unborn daughter. I wondered if that's why the guy had gotten involved in the scheme. The sergeant returned. He knew and I knew, that there was no way you can write off a crime of this magnitude, no matter how nice a school photo. We said no more about it.
A week or so later, we had the suppression hearing. I put on the People's case as I've written it up here. The young defense attorney (a white guy, by the way) got up and rose to his full height. He waxed indignant. “Sergeant,” he said, “isn't it true that the only reason you stopped that van was because the driver and passengers were Black?”
“No,” my guy answered quietly and professionally.
“Isn't it true that you are prejudiced against African-Americans?” he continued, a little pontifically.
“No,” the sergeant answered, without emotion, and rightly so. Enduring random, groundless slander is part of the job description. It went on for a while in that manner. I looked over at the defense side, where a fair number of friends and relatives had come up for the hearing. They were all nodding in sad, solemn agreement. Their loved one was the victim of a racist police officer. (I don't for one second think that exemplifies the African-American community reaction to a stop of this sort. Anyone without a bias recognizes the difference between a random stop and one on specific descriptions, which this one was. This was a personal and familial reaction, a rationalization, actually, to which I am somewhat sympathetic, to the devastation this arrest and prosecution was going to wreak.)
The defendant did go to trial, went down hard, and ended up with 15 years. I'd bet money that on the yard he blamed the racist cop and the racist judge who let him get away with blatant racial profiling.
But I see it a little differently.
(N.B. This one I novelized a little bit, for dramatic effect. But the gist of it, including the officer's reaction to the photograph, is accurate.)
6. The Engineer with the Sunglasses. Jury issues have occurred frequently in this brief reminiscence, first because it is where you see the community in action, second, because it is the area where biases of all types at the trial attorney level are apt to appear. Every trial attorney I have ever met, including yours truly, wants a jury of people just like himself. My ideal jury would be 12 of me - not just white men in later middle age, but actual clones. I'd know how they think, what arguments they like, what doesn't work – it would be wonderful.
Unfortunately, that's not the law. As it happened, I came to enjoy the challenge of rainbow juries, to such an extent that I developed a mild reputation for eccentricity in my willingness to accept just about anyone. I am going to close with two stories about jury selection.
The last major case I did, in 2002, was about as serious a case of Internet stalking as it is possible to imagine. Everyone in the case was Indian (from India). The defendant, a rejected suitor, had stalked and harassed his former girlfriend and her husband over a ten year period in both California and Michigan, spray painting their house in the dead of night, cutting car brake lines, etc. He'd been to prison once, in Michigan, but the incompetence of the parole authorities there had allowed him to get away with a series of harassments afterward. Finally, he moved to Santa Clara County, from whence he sent a 300 word, hair-raising, email (anonymous, naturally) threatening death by fire, castration, etc. The case cost a lot to try, but it was pretty important we get a conviction. I thought the danger to the young couple was growing, as this guy came more and more to believe in his immunity from detection. He was also becoming angrier.
Jury selection went normally. The juror I am going to talk about was a young, Black male in his late 20's, with a good job as a technologist in a local company. Race was no issue, but he bothered me a little. His answers on voir dire were so laconic that they stopped just short of sullen. Also, he was unmarried, which always worried me with a female victim, as you may have some misogyny kicking around some place. But the job was good, he was otherwise well socialized, and my thought was that – if he did have an attitude – that at the worst he'd be passive.
The next day, when opening arguments began, all sorts of big time warning lights began to go off. He showed up in sunglasses – which no one wears to court – and similar odd dress. But most of all, throughout the morning, he was showing off body language that stopped just short of contempt – swiveling away, from the court, turning his back on counsel, etc. I'm a little concerned that this description is inadequate, but the reader is going to have to trust me – I've done well over a hundred jury trials – and this was really unusual behavior. Every move this guy made seemed calculated to be an FU to the court and the proceeding.
Not good. The judge was an old friend but also old school. Like all good judges, he didn't care about the verdict, but he did care that we get a functioning jury. He was not at all on my page about jury inclusion, and had wondered before about some of my choices (though they'd always worked out.) This time he thought I'd goofed big time. I was quite worried he was right, as we had a lot riding on the case. So I did something I'd never had to do before, and checked the juror out – not on the criminal databases, but on Google and elsewhere. (This was 2002.)
Surprise, surprise – he turned out to be a graduate of an extremely prestigious technological University (MIT, if I recall correctly), and not just a good citizen, but an exemplary one. He'd won a couple of awards for his involvement in boys clubs and inner city youth organizations. He looked a lot different in the Internet pictures than he did scowling in the courtroom.
This did not end the issue – you can be a great person, and still have attitudes about the criminal justice system that disqualify you from jury service. But it did end any thought of doing more. All we had was a guy doing a great impersonation of Supremely Disaffected Young Black with Attitude – and we were going to have to assume that all that good citizenship was what defined him, not the courtroom demeanor. I told the judge I was going take my chances and let the matter go. I got the predictable disgusted look.
The case ultimately went to jury, with very solid evidence. In a relatively short time, we had the verdict we wanted. (Complete success, which is rare in my business, for the harassment stopped completely and the couple has been at peace ever since. I gave a version of a Godfather speech to the defendant at sentencing - 'if a meteor should chance to strike them . . . ' It must have sunk in.) The case had been interesting, and a few of the jurors lingered. Alas, the juror who had concerned me was not one of them. But I was curious how he'd acted during deliberations. As it turned out, fairly predictably – he'd been polite but distant, very quiet. At one point, he'd courteously corrected someone's misunderstanding of IP protocols, then remarked that the evidence in the case was overwhelming. He'd voted guilty on every ballot, which was what the weight of the evidence justified.
So . . . . an ideal juror. But I have always wondered what was bothering him during the presentation of the case. Something clearly was.
7. The Pear-Shaped Curve. I didn't fare so well in the last of these stories. The defendant was an executive with a major high tech company, and he was African-American (actually from the Caribbean). He was accused of embezzling some slightly out-of-date circuit boards which were, however, still current and serialized. The boards were discovered when his confederate was arrested, another African-American who belonged to the same congregation, an evangelical church in South Alameda County. The two had been observed moving something from the trunk of one car to another shortly before. So this was a pretty solid case.
The juror I am going to describe was the only African-American juror on the panel. He was in his late 30's, and a clerk at some company or other. Asked about biases towards the criminal justice system in general, he volunteered that he thought it was biased against African-Americans and that he'd been stopped a couple of times by cops that he thought were not justified. He said this with a mildly challenging, in-your-face, manner.
The challenging manner would be reason enough to toss him, but I was full of myself by that time, and decided to keep him. First, he'd been open about it, which to me meant he could be reasoned with. Second, he'd talked about disliking the police, but this was not a police-driven case – the core of the proof was corporate records. Third, both the defendant and the principal witness were African-American, so the case wasn't going to present like one lonely Black soul against the Man. Finally, I'd read more than a little about jury behavior, and knew that 11-1 hangs were extremely rare. (The recent trial of Barry Bonds had one count that hung on that division, but there were other counts with larger minorities, from which the lone holdout doubtless drew strength.)
Two other factors should have caused me to toss him, though. The first was entirely subjective. I didn't like him. (I'd been unable to connect with the juror in the last story, but I didn't get any impression at the time of jury selection that he was hostile, only distant.) The second I am setting forth in the interest of telling it like it is. The juror was another unmarried male, this in his late thirties, and fat to a point just short of morbidly obese – not from any easily recognizable glandular difficulty, but likely from years of overeating. Either factor by itself likely doesn't matter all that much, but together it adds up to a real possibility that the individual is isolated socially, a loner, not someone who's going to join the social consensus required in jury deliberations all that easily. So in addition to my loose dislike, there was the real possibility he was a social misfit, quite apart from any racial factor. That should have been enough.
I don't know how this strikes the reader, but in selecting a jury you have maybe five minutes to size some one up and make the best decision you can. A lot of this decision making takes place by default in a jungle of first impressions – most of which storm warnings I ignored in this case. Whatever the reasons, this decision turned out wrong, wrong, wrong. Even on the first day, my witnesses began reporting that he was rolling his eyes and making faces at them. This went on throughout the trial. The case went to jury without any evidentiary problems, and the jury got to 11-1 within a couple of hours. The lone holdout was you-know-who. The others pressured him for reasons, which is what's supposed to happen. He gave them reasons for a while, but had them blown out of the water by the other jurors. Finally he said he didn't believe the defendant was guilty, he wasn't going to vote guilty, and he wasn't going to discuss reasons anymore.
That's where it ended, hung jury, two days later. As the jury left, the holdout turned and gave me this long, smug look. Well, I guess I showed you. I don't know what exactly he thought he'd shown – cases in which the outcome is not related to any rational construction of the evidence are simply dismal generators of cynicism. They don't do anyone any good. His gesture had cost the County somewhere between one and two hundred thousand dollars, based on what it cost to keep a courtroom open for a day. Plus I had to go back to the Neanderthals in the office and admit, that while I still was going to keep selecting juries my way, they did have a point. The next day, I got two calls from infuriated jurors who felt their time had been wasted, and wondered what could be done about it. (Nothing.) I
don't know what the holdout juror thought his point was. But I am sure it made his next Double Whopper go down a bit more easily. (A little bitterness there).
The subsequent history of this case took some curious twists, which also bear on the racism – or lack thereof – in this society. But I'd like to make a couple of comments about the unanimity requirement in jury verdicts before I do. I love the jury system. Believe it or not, I think both the white racist in the first story, and the Black racist in the last, probably belong on the jury, and it probably does society some good to leave them there. The guy in the first story likely thought he was going to get a lot of approval and support for his crudity. He ended up in the corner with a dunce cap on (figuratively speaking), worrying about whether a judge was going to toss him in jail. That couldn't possibly have done him any harm. The Black racist wasn't so roughly treated, but he did spend a couple of days being berated by sensible, exasperated people. It had to have some effect. Again, not bad.
The problem is not that people like this have a voice, which they maybe should, but that the system gives them a veto, which they definitely should not have. My own thought is that changing the verdict requirement to 11-1 or 10-2 , which is Constitutionally permissible, would remove the necessity for trial lawyers to select 'perfect' juries, relieve the stress, and probably lead to more diverse and interesting panels. It would certainly make trial lawyers more willing to follow the law, which many at present do not. End of digression.
The case was retried, and I thought it would be pretty easy. Retrials usually are. Not so. To the amazement of myself and the trial judge, on identical evidence, the second jury acquitted the defendant as rapidly as the first had been ready to convict. I was amazed at first, but then I understood.
The defendant had testified at the first trial, and had not done well. He'd come across as pompous, arrogant, hypocritical, and without any easy answers to a lot of hard questions. At the second trial, more sensible advice had prevailed and he kept silent. The testimony from the first trial had been read to the jury, of course, but without the defendant in the flesh, sweating, writhing, and pontificating, it lacked the crackling dramatic force it had the first time. In its absence, the jury had gone straight to the other salient point in the case – the striking difference between the defendant (who in addition to being a ranking executive in his company, was a deacon in his church and had led a clean, blameless life to that point) and his confederate (who had a telephone book for a record.) Never mind that the inventory records showed beyond any possible doubt that Mr. Clean had indeed filched circuit boards from his employer and provided them to the Telephone Book. There was no way this hury were going to take him down on the word of the People's star witness. One juror told me afterward they hadn't even discussed the inventory records, which were indisputable proof of guilt.
At the time, I was more than a little nettled, as the defendant should not have been acquitted on this record. Over time, with the competitive juices subsiding, I've come around to the jury's way of thinking, One thing that had bothered me from the beginning was that there was no take out for the defendant. There was no evidence he'd ever received anything of value in exchange for the stolen boards. I expected to find it somewhere along the way, but in two trials it never turned up. His testimony was that his relationship with Telephone Book was only for the purpose of providing counsel (of the type a lay deacon in a church gives), which there is no doubt Telephone Book desperately needed. He also denied he had ever given the guy the stolen boards. He was lying through his teeth about that latter aspect of the matter, but it became more and more plausible that he'd provided them in some sort of misguided reclamation project. That didn't make him any less a thief as a matter of law, but it did mean that he was not 'in the life', so to speak – a thief, but a rather unusual one. Query whether destroying this guy's professional reputation over what was really a rather trivial theft might not have done more social harm than good. That was the way the jury saw it, anyway, and I am not so sure it wasn't right.
For those of you keeping racial score, the jury in the second case was almost entirely White. (Maybe there was an Asian or two, but no African Americans. None had been called on the random draw for that particular panel.) The defendant and his counsel were both African American. Everyone on the prosecution side (except for the confederate) was White. The judge was White, as was the prosecutor (me). None of this racial census meant a damn thing to the jury in its almost instant vindication of the defendant. This was in the 2003-2004 time frame, something like that.
I commented to someone once that if I did have to suffer a detriment in the form of potential prejudice as the defendant in a criminal prosecution, I would far rather be an upper-class Black than a dirt-poor white. This is the case I had in mind when I wrote that.
Conclusions: I call myself a Populist, which has drawn the occasional jeer, but I really am, and it goes down to the roots. Beneath the astounding diversity of cultures in this wondrous Nation lies an even more amazing commonality of values, once you scrape down to the root. I am fully aware that the Declaration of Independence and the Constitution did not repeal human nature. Fools and idiots like the ones in the first and seventh story we will always have with us. Nor will we ever escape completely the weight of history. Race, gender, and religious traditions claim us like a hand from the grave on the ankle.
But I do think that we have created the most open, tolerant society in history, given due allowance for the constraints of human reality. It is also my belief, based on my experience, that the vast majority of American citizens are able to judge individuals as individuals, regardless of whatever racial stereotyping they may have brought to the party. That's really the crux, the point in human interaction where racism either holds sway, or breaks down. These days, more often than not, it breaks down. That's the moral of the 4th anecdote.