Uncrushable

You may wonder why this isn’t a story about alpine adventures or the artist’s journey, my normal go-to topics. Sometimes a memory vibrates and resonates with recent news. And, we don’t get to choose. It just happens. However, we do get to choose whether we share the story or just keep quiet. This seems like one to share. A story of hope. One of a new dawn.

E. Jean Carroll’s lawsuit against the one who will not be named had been on my radar for months. Finally, a brave woman would take him to task for his serial sexually abusive behavior. I rejoiced when the trial began and followed news of the daily testimony. As the trial proceeded, I wondered what it was like for the jury. What did they notice when E. Jean Carroll responded to questions both direct and cross? How did the jury react to pugilistic Joe Tacopina, the defense lawyer, as he brutally cross-examined Ms. Carroll? What did they feel for her? How did they evaluate her testimony? And, more to the point, what would it be like for me if I was a member of that jury? I wondered because I had once served as a Superior Court Juror in a case with a striking similarity, the charge of sexual abuse.

While E. Jean Carroll’s trial was a civil case, ours was a criminal case. The New York case had nine jurors while our Washington case had twelve, plus one alternate. The burden of proof in the civil case was lower, with guilt based on “the preponderance of evidence,” whereas the burden of proof in the criminal case was “beyond a reasonable doubt.” While a unanimous jury is required to convict in a criminal trial, the nine-person jury might only need 7 of 9 to convict in a civil trial. The bar was much higher for our criminal case.

I received my jury summons in early December 2015, a postcard ordering my presence at the King County Superior Court in the Malang Regional Justice Center in Kent, Washington. Driving south on a rainy gray day, I pondered my journey into the unexpected. I wondered if I would be selected to serve. A juror’s card, with a bar code and ID number, accompanied me, my validation for entry. I parked and approached the imposing courthouse, the front of which was dominated by a multi-story rotunda, the colonnaded public entrance, whose architectural grandeur no doubt signified justice. But I entered through an institutional metal service door at the back of the building, the juror’s entrance. No architectural grandeur whatsoever. An armed guard examined my card and waved me through the security equipment. I followed large yellow arrows taped on the floor, and then on the walls, making my way through a maze of gray hallways to Room 2E.

I took a seat in the crowded room and pulled a thick history book from my satchel. I expected a long day. Intermittent, seemingly random numbers appeared on a video screen at the front. My number finally appeared, along with a group assignment to an unnamed case. Eventually, a moderator stood and asked whether anyone had a legitimate reason to be excused. If not, you stayed. Most of us wanted to be excused. Some were. Dismissals ranged from child-rearing responsibilities to ejection for inappropriate outbursts. Without excuse, I continued to the subsequent round, now assigned to a group and a case, destined to return the next day.

We entered the spare dark wood-paneled courtroom and sat first in the spectator area as another smaller group was ushered into the jury box for questioning. I quickly lost interest and opened my book. I continued reading as both the prosecution and defense queried prospective jurors, and either dismissed or selected persons from the groups ahead of us. Then it was our turn. Now, one of thirteen in the jury box, I wondered what questions I would face and if my dismissal was a possibility. I hoped so.

Until this moment I had only seen the defendant from behind. I could see him clearly now as he faced me. Clothed in an orange county jail jumpsuit, with his long and disheveled hair he looked gaunt and hard and suspicious. He asked me a question. Stunned, I now realized that he had elected to represent himself. He would be both defendant and attorney for the defense. I recalled the old law adage that a man who chooses to represent himself has a fool for a client. I wondered if that would be born out. We would see.

After several rounds of questions from both prosecution and the defense, a few of us remained. The judge now queried the smaller group, if any of us had concerns whether we could serve without bias. I raised my hand. The judge motioned for me to stand. I explained that the defendant bore a strong resemblance to Ted Kaczynski, the Unabomber, with his crazy hair. I questioned whether that might predispose an assumption of guilt for me due to my perception of him. Surprisingly, my statement was not enough to deter anyone, even the defense. I was selected. Of course, the defendant evaluated my comment about his appearance. At the trial, he was physically transformed. His hair now neatly trimmed, and wearing a grey suit, he pretended to be an attorney.

We did not know the nature of the case until we were seated in the jury box on day one. I had wondered if it would be robbery or murder. It was not. It concerned the repeated sexual abuse of a young girl. The crime was despicable. And, once our jury duty was over, I wanted to never think of it again. But now, over seven years later, after many high-profile adult sexual assault cases, and the recent E. Jean Carroll trial have the memories of my jury trial experience returned to be examined once again.

Although the genre of the crime was the same, there were several differences. E. Jean Carroll was an adult woman at the time she was assaulted and, although it was a violent encounter, it was a one-time event, something she kept to herself for decades until she reached her personal tipping point. And, once resolved to act, she bravely came forward to face her perpetrator some 30 years later. The victim in the Washington case was a young high school girl who had been sexually abused multiple times as a young teen, over a span of a few years and now facing her abuser only two years later as a high school senior. And, the perpetrator was her father.

During E. Jean Carroll’s trial, two other women testified of their experiences of sexual abuse at the hands of the miscreant. The one other witness who testified of sexual abuse in the Washington trial was the victim’s older step-sister, again victimized as a minor, by her father. I found myself repulsed by the heinous and repeated acts.

Carroll’s trial included seven key witnesses: two close friends, her younger sister, two other women who had been assaulted by the perpetrator, and two expert witnesses. A small group, all adult professional people. By contrast, the state, representing the young woman in the Washington trial included a broader spectrum, the victim’s younger brother, her best girlfriend, her older step-sister, her mother, her stepmother, her stepfather, a school teacher, a school guidance counselor, a policeman, a detective, and her best friend’s mother. They came from more everyday walks of life than those in the New York trial. Another key difference was that several of the Washington witnesses were young teens. The prosecution had to proceed deliberately but with extra care. It was emotionally difficult for the witnesses to revisit and recall their memories, and the details of the case. There was an emotional impact on the jury as well. How did we manage to feel the pain that the perpetrator had presumably caused while tasked with staying objective? I found it difficult.

E. Jean Carroll was represented by a renowned litigator, Roberta Kaplan, along with the best legal team that money could buy. The wealthy LinkedIn founder Reid Hastings provided the financial means. Kaplan’s team was tightly organized, on point, and efficiently prosecuted their case. They did not waste time. They made the defense lawyer, Joe Tacopina, look like a bumbler. Their prosecution was regarded as a masterpiece.

While the Washington prosecutor was buttoned up, concise, and professional, she was court-appointed and had one clerk, a small team. Unlike the New York defendant, who employed a highly paid team of lawyers, the defendant in the Washington case had the arrogance to choose to represent himself. He would prove himself to be incompetent and, in the process, drag everyone through what seemed an interminable undertaking. Playing at being his own attorney, he was rambling, vague, and repetitious. As I tried to remain without bias and understand the purpose of his questions to the witnesses it became clear that some of them made no sense. It was often difficult to discern exactly where he was going during his cross of the witnesses.

He often badgered witnesses with repeated versions of the same question. When he did this to his daughter it felt to me like continued abuse, psychological abuse. His behavior throughout the trial was challenging for both those on the stand and the judge, who often had to intervene. The defendant, while performing as an attorney, revealed himself to be a narcissistic time waster who wore me, and everyone else, out. Consequently, the trial took three weeks before the prosecution and defense finished. It could have been completed in half that time and because of that, I felt the defendant had abused us all.

Soon after jury selection and before the trial began, we received instructions from the court. They included the admonition not to discuss the case with anyone outside the case and not even among ourselves until the prosecution and defense had rested and we retired to deliberate. Although we spent time in recess together and sometimes shared lunches over many days, I doubt there was any substantive discussion of the case. We were a mixed group of men and women from many trades and professions. I was easily the oldest.

We were each issued a notebook, a black 3-ring binder full of blank pages. It was ours to take into the jury box to take notes if we wished. We returned them to the court at the day's end and received them again at the beginning of every new day. I took copious notes. I wanted to be able to follow what seemed to be a potentially long and rambling evidentiary thread with key reveals at unanticipated points in the testimony. Several other jurors also took notes while others merely listened. That surprised me. How could they remember it all? So, one day, in the jury chambers, I asked one of the court clerks if the transcripts of the trial would be made available to the jury during deliberations. The answer was no. Suddenly, more of my fellow jurors began taking notes.

I wrote well over thirty pages and I was glad that I did. It served at least two purposes. It helped me stay more emotionally grounded while sifting through the testimony. Unlike a murder trial which might rely on a recovered body, weapon, fingerprints, or trace evidence such as DNA, there was no physical evidence. There was only testimony, verbal recollections of memories, and impressions of events past. Our task was to make sense of it as best we could, by examining the witness statements for consistency, continuity, and veracity. We had to discover the threads that would tie the narratives together and provide us with the information necessary to confidently evaluate and determine guilt, or not. My notes helped provide the information, the pieces of the puzzle, that would build that evaluation structure.

As the days passed each witness added more pieces to the puzzle. I found the process and testimony all-consuming as I analyzed both the approach taken by both the prosecutor and defender and the content that slowly revealed itself through the voices of the various witnesses. I found myself looking forward to each new person, their answers and recollections of events, their experiences, and their insights. As I took notes, I tried to achieve clarity. It wasn’t always easy but near the end, I felt the pieces fitting together. I became ever more confident that I could make sense of the events and see the truth. And though we did not share our thoughts on the case I felt that the same was happening for others.

Once both sides rested it was our turn. Time for deliberations. The alternate juror was revealed and released. Though I hoped it would be me, it was someone else, someone that I knew, from our lunchtime interactions, who would make the final process much more difficult, perhaps impossible.

That troublesome insight occurred during our first recess on day one. One juror brashly announced to the rest of us that, in his opinion, the defendant was innocent, and that he was being railroaded and framed by the women. I was shocked, appalled, and annoyed. I did not know what the others thought as we were too new to each other and we were not supposed to openly discuss the testimony, or any insights or opinions until deliberations. And now, this juror had already made up his mind in the first hours of the trial and made a smug public announcement, as if to influence the rest of us. I noted his statement, thought him an idiotic misogynist, and considered how we might examine the evidence to determine the truth, despite his bias. If he maintained his pre-determined position while the rest of the jurors used the evidence to arrive at a guilty verdict, we would have a hung jury and a mistrial. That thought hung over me for the duration of the trial, like the precarious sword of Damocles. Fortunately, he was later identified as the alternate juror and was subsequently released. I was not sorry to see him go.

We needed to select a foreman to lead the process. A brash younger guy, who worked in sporting goods sales, volunteered and actively lobbied for the role. I was not impressed. In fact, I was taken aback. While the young man was gregarious, sometimes boisterous, and an occasionally interesting lunchtime companion, I had no confidence in his ability to lead the jury. At first, I waited. When no one else expressed any interest, I finally raised my hand. I thought my experience in managing business teams was more suitable. Fortunately, I received a majority of the votes and became the jury foreman.

The first task was to determine how to proceed. We received no instruction from the court on how to arrive at a verdict. We were on our own. With four criminal counts to consider we’d have to pare down and focus. We would tackle them one at a time. We needed a process with structure, one that would allow every juror’s voice to be heard without the group devolving into a chaotic debate with everyone talking at once. Without a structured process, we’d struggle mightily to arrive at a well-reasoned verdict.

I stepped up to the whiteboard and authoritatively proposed a process. It was important to project authority. I explained an input survey format to gather, rank, and evaluate the evidence that applied to each count. Everyone accepted my proposal. The process involved going around the room and allowing every individual to contribute without interruption. After listening to my fellow jurors, I would restate what they said in a more concise way and ask if they approved. I then wrote it on the whiteboard. I would add my input last. This is where my rigorous note-taking really paid off. Once we had the first round of input, we kept on going until the question or issue at hand had exhausted all input. We then reviewed the input, each point in turn. The goal, at this stage, was to involve everyone and create alignment in focusing on the issues or the case, without debate. The process provided both inclusion and structure and my fellow jurors embraced it. A good first step for the job with which we were tasked.

After our initial input and examination, I thought we had convincing evidence of guilt on the first count. I proposed we go around the room and each vote in turn. I was astonished that five of our group found themselves unable to reach a guilty verdict. We had run out of time and adjourned for the day. I was despondent. As I drove home my mind churned on the problem. How could we reapproach this and come to a decision? I wasn’t sure that we could.

We began the next day by stepping back to discuss the determinants of guilt or innocence and reexamine our whiteboard entries one by one, discussing in detail what each statement meant and its relative importance as evidence. We drilled down and, in that process, gained further insight and alignment. Again, using the input survey format. The second vote narrowed to two holdouts on a guilty verdict. We then queried each juror about their rationale. That process led to resolving their sticking points. We reached a unanimous guilty verdict in the third round. I knew we were all pleased with the knowledge that we could work together to do this. Know that there was no predetermined motive to reach a guilty verdict. That is simply what the testimony supported and where it took us.

After the first count, we used the same approach to examine the second and third counts and made a unanimous decision for each. Guilty. I was elated with our progress. In my mind, the perpetrator was guilty on all four counts but the decision had to come from all of us. The fourth count stymied us. One juror just could not get to a guilty decision on the fourth count. After three rounds, it was clear that no reasoned debate would sway her. It was time to stop. We all agreed that we would present the court with a guilty verdict on three counts but we were unable to reach a unanimous verdict on the fourth. The court accepted our verdicts. The next day I stood in the jury box and addressed the court. I read our decisions out loud. The prosecution was pleased. Our job was done. We stood, turned, and left the courtroom.

During the trial, the most anticipated witness was the victim, the daughter of the defendant. As she took the stand, she seemed measured, yet confident. And once on the stand and answering questions, she was poised, composed, and articulate. In those moments I found myself proud of her and wondered at her strength and resolve. How had she achieved that?

Once the trial concluded, we filed back to the jury chambers to surrender our notebooks, gather our belongings, and depart to resume our normal lives. As we did, the judge unexpectedly entered the room, thanked us for our service, told us that we had done well, and shared that she was very pleased that it was now over.

She surprised us when she revealed that we were the second jury to hear the case. It had been tried before. But all the prior testimony and work of the court, prosecution, defense, jurors, and witnesses had been for naught. The case had to be retried because one juror refused to participate in the deliberations. He stubbornly opted out of the process when he was told that court transcripts of the testimony would not be provided to the jury. The judge’s satisfaction with the successful completion of the trial meant even more to me with the knowledge of the prior failure. We were appalled by the behavior of that juror and even more proud that we had collaborated to reach our decisions and play our role in serving justice for this young woman, who could now move forward with her life.

While the young woman’s father, the perpetrator received a prison sentence and it seemed that justice was served, the trial and deliberations were a messy and emotionally exhausting endeavor. They could in no way compare with the impact of the crime, yet we felt we had done the best we could. It was a case that I did not want to dwell on further. Like many others, I just wanted to move on and get back home for the holidays. Now, for me, E. Jean Carroll’s case, with a well-earned guilty verdict, has brought back many of those memories. But, even with recent social progress, such assaults remain all too common as the evolution of man seems to occur at an aggravatingly glacial pace. Even so, I like to think that we are moving forward. The optimist in me needs that. And, to believe, that despite the darkness that surrounds us, my optimism will remain as uncrushable as the courage of the victims who came forward.