An Act of Justice
I wanted to serve on a jury. And for my sins, they let me.
“It takes courage to sit on a jury. How many of us want to decide the fate of another person's life or freedom?”
Regina Brett
The trial is over, so I look him up. His profile picture shows them on their wedding day, kissing, in front of a blurred-out golf course. I know where it is. She mentioned it during her testimony. I recognize her immediately; he looks different. I scroll down, and there he is, looking directly into the camera. His hair is longer, and he looks chubbier than in the courtroom. Most of his posts are about him and her: wedding pictures, vacation snapshots, engagement photos, and professional accomplishments. In between, he posts about anime and motorcycles. His mom comments from time to time. She uses a lot of heart emojis and says how proud she is of him. His younger sister teases him a lot and likes every post he makes. He seems loved.
There’s a picture of the three of them at the end of 2018. She was 9 at the time. I notice her big smile and his hand on her hip. Just below the picture is a video. It’s muted, but I see him talk into the camera. I realize that I’ve spent the better part of the last 4 weeks in a room with him, but I don’t know what he sounds like. I unmute the video. Everything about him is soft: his eyes, his jawline, the tone of his voice. He seems warm and sincere.
The Sixth Amendment of the United States Constitution granted him the right to a public trial by an impartial jury of his peers. I was one of those peers.
“You never know with juries. I’d take a judge every time unless, of course, I was guilty.”
Kenneth Eade
The California Court System is one of the largest court systems in the world. It serves approximately 40 million people and processes about 4.5 million cases a year through 58 superior courts.
A vast majority of the processed cases–about 3.2 million–are criminal cases, such as felonies, misdemeanors, and infractions. Felony filings represent about 180,000 cases, misdemeanor cases about 450,000, and infractions account for about 2.6 million filings each year. While infractions are generally tried by a judge, for most felony and misdemeanor cases, the defendant has the constitutional right to choose between a judge and a jury trial.
Interestingly, a staggering amount of felony and misdemeanor cases–about 99%–never go to trial and are either dismissed or resolved through a plea deal. Of the roughly 7,000 felony and misdemeanor cases that remain, only about 2,500 are tried in front of a jury.
Approximately 9 million Californians get summoned for jury duty each year. Even though a little more than half of them are qualified and available, only about 94,000 are actually sworn in to serve.
On April 4th, 2023, the Superior Court of California summoned me in all caps for JURY SERVICE. I had never served on a jury, and didn’t know what to expect–other than what I had seen on TV–but I was excited when I was confirmed to appear at the courthouse on May 3rd.
I left the house early and drove the 25 minutes to the courthouse in silence. Google confidently guided me to the parking lot behind the three-story, Donald Wexler-designed Larson Justice Center.
I walked towards the entrance and joined the short line that had formed outside the building. It was a beautiful day, mild for this time of year in the desert.
After a few minutes, the security guard nodded at me, indicating that it was my turn. I dropped my belongings on the belt of the x-ray machine, walked briskly through the metal detector, and took her tired “Thank you” as confirmation that I was free to go. I followed the signs for Jury Duty to the second floor and walked past three courtrooms–2G, 2H, 2J–before turning right into room 213. Behind the door was a small hallway that led into a large, rectangular, window-lined room: the jury assembly room. It was filled with long rows of plum-colored chairs, about a third of them occupied with people, their heads buried in their phones.
I got in line for the check-in counter, and when I was up, the man behind it scanned my summons and handed me a form to complete. It was a one-pager, titled Juror Availability Form. On top, it listed the name of a defendant and a case number. Just below that, I had to fill in my name, the juror badge number from my summons, and my phone number. Next was a box with text in bold: You will be needed until May 30, 2023. Jurors need to be present Monday - Friday, 9 am to 4:30 pm.
Below the box was a list of legally defined hardships and a small space for a brief explanation should any of those apply to me. None did, so I checked the only other option “I am not requesting to be excused,” signed the form, and dropped it into a red box by the check-in counter.
I went back to my seat and looked around: two wall-mounted TVs on opposite ends of the room displayed a muted cooking show. There was a little kitchenette against the wall straight ahead of me. To its right was a podium with a microphone, next to it several chairs and flags, and the Great Seal of the State of California was on the wall behind it.
The room felt like an odd cross between an employee break room, a DMV waiting area, and a high school auditorium on graduation day. A female voice announced over a speaker that she would read out a list of names of folks who would be excused and could leave. My name wasn’t on the list.
About 15 minutes later, a man handed out a second form. This form was two pages long and titled Juror Qualification Questionnaire for Criminal Cases. I filled in my name and badge number again and continued reading the instructions. They asked me to answer each question as completely, honestly, and accurately as possible and to not research or discuss the case in any way. Below the instructions was a signature field, confirming that my responses on this questionnaire were true and correct to the best of my knowledge.
The final section on the first page was titled: “General Information About the Allegations”. I started reading: “It is alleged that between August 2018 and January 2021, the defendant sexually abused his stepdaughter.” Oh, fuck me. “The abuse is alleged to have begun when she was eight or nine years old.” What a piece of shit.
The defense attorney would later call my reaction a gut reaction and identify it as the first step in doing the work of becoming a fair and impartial juror. Acknowledge your bias, practice awareness, and proactively work to put it aside.
The form continued stating that the charges and allegations against the defendant were merely accusations at this point and not evidence that the charges or allegations were true. The purpose of this trial was to determine whether the people could prove the defendant’s guilt beyond a reasonable doubt.
I flipped to page two and reviewed the five questions on it:
Is there anything about the charges themselves that would make it difficult or impossible for you to be a fair and impartial juror in this case?
Would the nature of the charges, in this case, make it difficult or impossible for you to presume the defendant to be not guilty?
Have you, a family member or a friend ever been the victim or suspect of sexual abuse, child molestation, or sexual misconduct?
Is there anything about that experience that would prevent you from being a fair and impartial juror in this case?
Do you believe that you can be a fair and impartial juror in this case, rendering a decision based on the evidence that is presented in court and the instructions on the law that the judge gives you?
I took a deep breath and leaned back in my chair.
“We are talking about somebody’s life here.”
Juror 8, 12 Angry Men
I looked at the questions again and stopped at number three: “Have you, a family member or a friend ever been the victim or suspect of sexual abuse, child molestation, or sexual misconduct?” Yes. Question number four: “Is there anything about that experience that would prevent you from being a fair and impartial juror in this case?” Good question. Could I be impartial? Would I be impartial? Did I even want to be impartial?
I flipped back to page one and re-read the general information section: “The purpose of this trial is to determine whether the people can prove beyond a reasonable doubt the truth of the charges and allegations. In deciding this case, you must base your decision only on the evidence presented in the courtroom during this trial.”
I wrote a short explanation under question three, completed the other questions, and dropped the form off in the red box. About half an hour later, the judge came into the room. He welcomed everyone, thanked us for being there, and told us what to expect next. He shared that jury selection for this case had started yesterday with a total pool of 400 prospective jurors. They were soon going to read another list of names of people who were excused, and the remaining 90 of us were ordered to report back for jury selection on Monday, May 8th, at 8:30 am outside of courtroom 2G. The judge reminded us not to talk to anyone about the case and left. My name wasn’t on the list, so I would be back on Monday.
I arrived at the courthouse shortly before 8 am on Monday and walked upstairs to courtroom 2G. Dark brown double doors with narrow glass windows marked the entrance to the courtroom. Three notes were taped to the doors. One asked the reader to please wait outside until called by a deputy. Another one informed about live streaming due to COVID, and the third, bright yellow one, titled Courtroom Rules, listed all the things that were prohibited in the courtroom such as food, shorts, sunglasses, and winking at the inmate.
At 8:15 am the court clerk came through the double doors to take a first roll-call. About an hour later she was back and told us to enter the courtroom one by one as she read out our names. “Melanie Heymans.” I got up and entered the room. It was smaller than on TV, but everything else was there: dark cherry wood, marble, flags, a public gallery, a witness stand, a jury box, and the judge’s bench on an elevated platform on the far side of the room.
A deputy stood at the end of a center aisle that ran through the public gallery and pointed to an empty aisle chair on the left. I took a seat. The public gallery was separated from the rest of the courtroom by a hip-height wooden wall with a small opening in the middle for people to walk through.
Just beyond the wall were two long tables: the prosecution and the defense. On the left, a tall slender man, in a dark gray suit, with thin-rimmed glasses and a beard stood facing the gallery. On the right, two men. One in a dark blue suit, smaller than the other two. He looked sternly at the incoming prospective jurors. To his right, stood a young man in dark dress pants, a tan dress shirt, and a striped tie. He kept looking down at the floor ahead of him. All three men had their arms crossed at their wrists in front of them. They looked odd, motion- but not emotionless. Similar, but very different.
Behind the two desks, in the middle of the courtroom was the court reporter’s station. To its left, was the jury box, and to its right the witness stand and the bailiff’s desk. Right behind the court reporter’s station was the judge’s bench, and to its right was the court clerk’s desk. There were two wall-mounted TVs, one to the left of the judge and another one on the wall to my right, facing the jury box.
The bailiff called the court to order and the room quieted down almost immediately. The judge welcomed everyone and asked the court clerk to swear us in. “Do you, and each of you, understand and agree that you will accurately and truthfully answer, under penalty of perjury, all questions propounded to you concerning your qualifications and competency to serve as a trial juror in the matter pending before this court, and that failure to do so may subject you to criminal prosecution?” I do.
We took a seat and the judge introduced the court reporter, the bailiff, the prosecution, the defense counsel, and the defendant: the man in the tan shirt. He looked stocky. Clean-shaven. Boyish, with no edges, except for his jet-black hair styled in a neat undercut.
The judge continued to talk about jury duty. How it was a right and a responsibility. He spoke of its importance for a functioning court system in a functioning democracy. He talked about the defendant's right to a trial by a fair and impartial jury and the responsibility of that jury to decide if the defendant's guilt had been proven beyond a reasonable doubt. He paused shortly before he said: “If not, the defendant is entitled to a not guilty verdict.”
The judge then went on to explain the jury selection process. We would now move into what’s called voir dire–French for “to speak the truth”–a process during which prospective jurors are questioned to decide whether they can be fair and impartial in a specific case. He shared that it was his responsibility as the judge to ensure that all parties received a fair trial, so in the first phase of voir dire, he would question us to judge our ability to apply the governing law fairly and impartially. Anyone who would be unqualified to serve–due to their citizenship or residence status, their age, or their mental competence–or anyone who would have difficulty serving due to implied or actual bias, would be excused.
Removing a prospective juror for any of those reasons was called a challenge for cause and allowed a judge to dismiss as many jurors as necessary to ensure a fair and impartial trial.
The judge further explained that the second phase of voir dire would allow the trial attorneys, both the prosecution and the defense, to question us and remove up to 10 jurors each who they believed might be unfavorable to their side of the case.
This part of the process was called a peremptory challenge and unlike a challenge for cause, which required a definitive conclusion that the prospective juror was unqualified or could not serve fairly, peremptory challenges required no justification.
The judge asked us to not take these challenges personally and reiterated that the goal of voir dire was to select a jury that would provide a fair and unbiased judgment based solely on the evidence presented during the trial.
After a short break, the judge opened the first phase of voir dire with questions regarding accommodations and disabilities as well as general qualifications needed to serve on a jury. He excused one person and proceeded to share some brief details about the case. He then clarified that any further questions at this time would be directed only to the 18 prospective jurors in the jury box, not to those in the public gallery.
The judge asked if anyone thought that they couldn’t be impartial due to the nature of the case. Two men raised their hands and were excused after each gave a brief explanation.
The judge went on to explain that in a criminal case such as this one, the burden of proof was solely with the prosecution, which meant that the prosecution would be required to prove the defendant’s guilt beyond a reasonable doubt. This highest standard of proof required that the evidence presented was so strong and convincing that there would be no reasonable doubt as to the defendant's guilt. In other words, the jury would have to be virtually certain of the defendant’s guilt to render a guilty verdict. He continued to explain that the defense didn’t have to prove anything or present any evidence, as our job was not to decide who presented the more convincing evidence but only if the prosecution proved the defendant's guilt beyond a reasonable doubt.
The judge paused, took a long look at the jury box, and asked if anyone had an issue with the burden of proof. None of the potential jurors raised their hand.
He then went on to explain part of the fifth amendment, specifically that the defendant has the constitutional right to not testify and that the jury could not hold that decision against him in any way. He asked if anyone struggled with that. No one raised their hand.
The judge proceeded to ask if anyone had served on a criminal or civil jury before, and if so, if they were able to come to a verdict. He then moved on to explain the different standards of proof in civil and criminal cases: While in most criminal cases, the standard of proof was beyond a reasonable doubt, in civil cases, it was generally lower and described as a preponderance of the evidence. This meant that the party who made a claim had to provide evidence that was more convincing and more likely to be true than the evidence presented by the opposing party. In other words, they didn't have to prove their claim beyond a reasonable doubt. Their version of events just had to be more likely.
He asked those who had served on a civil jury before if they were able and willing to disregard what they had learned during the civil case and apply the higher standard of beyond a reasonable doubt. They confirmed.
After completing the group questions, the judge gave the prospective jurors in the jury box a laminated sheet and asked them to review the 12 questions on the front and the list of names on the back. He then proceeded to ask each juror to answer the following questions:
What’s your name and your profession?
Do you have children? If so, how many and how old are they?
Who do you live with and what do they do for work/school?
Have you, or anyone close to you, ever been convicted of a crime? If so, what kind of crime?
Have you ever been a victim of a crime? If so, what kind of crime?
Do you have family or friends in law enforcement?
Do you have family or friends with legal training?
Do your religious or spiritual beliefs prevent you from being impartial in this case?
Will you be able to apply the law as it will be given to you by the judge, even if you disagree?
Can you think of anything else that could prevent you from serving as a fair and impartial juror on this trial?
Will you be able to be a fair and impartial juror in this case?
Do you know anyone on the witness list on the back of this sheet?
After all 18 people went through the questions the judge dismissed one person. Then he invited the trial attorneys to question the prospective jurors in the jury box.
Each attorney took about an hour to ask a variety of questions related to the case as well as what the potential jurors had shared about themselves and their values and beliefs so far. The defense attorney showed a slide deck and spoke about bias, gut reactions, and what it meant to be a fair and impartial juror. Some people tried to answer every question as briefly as possible, often with just a “Yes” or a “No”, others volunteered a lot of unasked-for information. Some started very confident: “Yes, I can be fair and impartial,” but after some additional questions they looked down and quietly said: “I don’t think I can be fair in this case.” One prospective juror when confronted with the fact that he may hear and see some disturbing evidence said: “Well, I just want to hear his side. Maybe something happened to him and that’s why he did it.” The judge reminded the juror that the defendant was presumed innocent until proven guilty and that it was his constitutional right to not testify. The prospective juror nodded and was dismissed shortly after.
After both attorneys completed their questioning the judge asked first the prosecution and then the defense who if anyone they would like to dismiss. Both started their requests with: “Your honor, the people/the defendant and I would like to ask the court to please thank and excuse juror number x.” Several people were excused in that manner and left the courtroom. The judge refilled the resulting empty seats in the jury box with prospective jurors from the public gallery in the order we were seated.
We went through the voir dire process multiple times. The judge and the attorneys kept asking questions, taking notes, dismissing people, and refilling the jury box. I glanced over to the defense table a few times and noticed a large sheet of paper with sticky notes that the defense attorney used to take his notes. He regularly leaned over to his client to discuss something. I wondered what they were talking about and how these three men decided who to dismiss and who to trust with their case or with their life.
By 4:30 pm there were three empty seats in the jury box, and I was the next prospective juror to be called from the public gallery. We were dismissed for the day and ordered back the next day, at 8:30 am.
The deputy called us into the courtroom shortly after 9 am. I took my aisle seat and watched the jury box fill with now familiar faces. Three seats remained empty: seat number 10, seat number 12, and seat number 18. The judge welcomed everyone and let us know that he would need to talk in private to one of the jurors. The judge, the trial attorneys, the court clerk, the court reporter, and juror number two left the courtroom. They returned a few minutes later and juror number two was dismissed.
The bailiff called the court to order and the judge asked me to join the jury in seat number 10. He filled the remaining empty seats in the jury box and directed his voir dire questions to the four of us. I was surprisingly nervous. Hearing my amplified voice threw me off. My mouth dried up, and I didn’t know where to put my right arm. No, I don’t have any children. Yes, I do have friends with legal training. No, I don’t have any religious beliefs that would prevent me from being impartial in this case. Yes, I will be able to apply the law as it will be given to me by the judge, even if I disagree.
We moved quickly through the judge’s part of voir dire and the defense counsel took over. I was the second juror he directed his questions to. “Miss Heymans. Am I pronouncing that right?” He did. “You said you have lawyer friends. What type of law are they practicing?” “Corporate.” He continued: “Without sharing what happened, do you think that despite the experience that you shared on the Juror Qualification Questionnaire you can be a fair and impartial juror?” “Yes.” He pushed on and pointed at the defendant: “Your experience has nothing to do with my client, correct?” “Correct.” He looked at me and said: “Thank you juror number 10, Melanie Heymans,” and moved on.
The prosecutor asked me four questions: Did I disagree with anything he had said the day before? “No.” Was I okay with the fact that one witness alone could be credible evidence? “Yes.” Did I have any issues following the law as the judge would give it to me? “No.” Even if I didn’t agree with it? “Even then.” He looked at me and asked: “Do you have any issues with attorneys in general?” I smiled and said: “I have a few good jokes about them but no issues.” He laughed, thanked me, and walked back to his desk: “No further questions your honor.”
The judge sat up in his chair and asked the prosecutor if he had any challenges. The prosecutor answered: “Your honor, the people accept the panel as it is presently constituted.” The judge directed his request for challenges to the defense attorney who responded: “You honor, the defendant and I accept the panel as it is presently constituted.” The jury was selected. A collective sigh went through the public gallery. I wasn’t sure if it was out of surprise, relief, or disappointment–it was hard to imagine that the people who were still here weren’t somewhat invested in the case at this point.
The court clerk asked jurors one through twelve to stand and swore us in. "Do you, and each of you, understand and agree that you will well and truly try the cause now pending before this court, and a true verdict render according only to the evidence presented to you and to the instructions of the court?" “I do.” The bailiff handed us our juror badges and we sat back down.
The judge and the trial attorneys continued the voir dire process for the alternate panel–four additional jurors that would sit through the trial but join the jury only if one of the twelve jurors wouldn’t be able to attend anymore. They went through the voir dire process a few times and after about an hour four men were accepted as alternate jurors by the prosecution and the defense. They were sworn in and handed their badges.
The judge released the remaining prospective jurors who were now free to leave and sent us on a quick break.
When we returned, he read the eight counts the defendant was charged with:
three counts of sexual penetration of a child 10 years of age or younger,
four counts of lewd or lascivious acts with a child under the age of 14,
one count of annoying or molesting a child.
The courtroom was silent.
The judge continued to tell us how the trial would proceed: He would now read us pre-trial jury instructions as defined in the California Criminal Jury Instructions (CALCRIM). After that, the prosecution would present an opening statement. The defense was not required to do the same, but if it chose to do so, it could do it after the prosecution or at the beginning of the defense case. During the opening statement, the attorneys would give us an overview of what they expected the evidence to show. After the opening statement(s) the prosecution would present its evidence, which included testimony and exhibits. After the prosecution finished, the defense could present evidence but was not required to. Once we would have heard all the evidence the attorneys would give their closing statements and he would instruct us on the law that applied to this case. After that, we would start deliberations.
As part of the pre-trial jury instructions, the judge let us know that we were not permitted to talk about, research, or investigate the case in any way. He also cautioned us to not make up our minds about the verdict until after we had heard all the evidence and had discussed the case with our fellow jurors during deliberations.
The judge went on to explain the presumption of innocence and the people’s burden of proof. The defendant had pleaded not guilty to the charges and the fact that he was arrested, charged with a crime, and brought to trial was not evidence of guilt. In deciding whether the prosecution had proven their case beyond a reasonable doubt, we would have to impartially compare and consider all the evidence that was presented throughout the entire trial.
He further explained that we alone would have to judge the credibility of the witnesses. In deciding whether testimony was true and accurate we should use our common sense and experience, and make sure that we judged each witness's testimony by the same standard. When evaluating testimony we could consider factors such as: How well was the witness able to remember and describe what happened? What was the witness’s behavior while testifying? Did the witness understand the question and answer it directly? Was the witness’s testimony influenced by a factor such as bias or prejudice or a personal interest in how the case was decided? Did the witness make a statement in the past that was consistent or inconsistent with his/her/their testimony? How reasonable was the testimony considering all the other evidence in the case? The judge cautioned us to not automatically reject testimony just because of inconsistencies or conflicts and asked us to consider whether the differences were important or not. People sometimes honestly forgot things or made mistakes about what they remembered.
After the judge finished the pre-trial instructions, he told us that we would start the afternoon with the prosecution's opening statement and dismissed us for lunch. I barely touched my salad.
“I dreamed a dream tonight. Some consequence yet hanging in the stars shall bitterly begin.”
Romeo, Romeo & Juliet
Join me again at the end of August for part two, An Act of Justice: The Trial.
Background music in voiceover: Embrace by Sappheiros | https://soundcloud.com/sappheirosmusic Music promoted on https://www.chosic.com/free-music/all/ Creative Commons Attribution 3.0 Unported (CC BY 3.0) https://creativecommons.org/licenses/by/3.0/
We have to wait a whole month to find out what happened?! That’s mean ;)