The Game of the System

At A Public Defender, Gideon writes about the lessons he takes from the story told by a first-time criminal juror, Gerald Walker. Walker offers two posts, the first about his experience up to the point of selection, and the second about the trial and deliberations.  Aside from the minor factual inaccuracies of the account (neither 100 nor 111 Centre Street are brick buildings), which can be ignored as literary license, Walker’s account is as revealing in what he doesn’t get as what he does.

Gideon writes about Walker’s perceptions:

Gerry walked into the courthouse somewhat of an idealist and instead left fully aware the system works not on grand notions of truth and justice but rather on the individual perceptions and agendas of everyone with a dog in the fight – and mostly those who don’t have one: jurors.

To get to the takeaway with the fewest wasted words, Gid quotes from the moment that Walker decided to make it his duty to own the jury:

And then he went to deliberate and his life turned into a version of 12 Angry Men:

As was expected, much debate ensued between those with opposing views. I disagreed with the foreperson’s statements several times in the next hours and could see in her eyes that she did not like me. But that was cool. No one is required to like me. But then something happened that changed me for the rest of the trial. As one woman attempted to explain her reasoning behind voting ‘Not Guilty’, the foreperson, who frequently talked over others and finished their sentences (until I invited her to cease), threw her hands up and said:

“See? This is just how O.J. got off!”

And that was it. That’s when Walker realized that, in America, justice is a game. That no matter what the judge tells you and what you’re fed on the nightly news and through rags that you read, it’s about what you feel in your gut. People disregard jury instructions and vote their conscience based on their life experiences. That people are emotional and no matter how strongly we chastise them to leave those emotions behind, they simply can’t.

According to Walker, he won the game and the defendant walked.  Not because the prosecution had failed to prove its case, although Walker thought that was the case, but because another juror said something that offended his sensibilities.  Walker was a black man of indeterminate age, which is necessary to know to appreciate his sensibilities.

So all’s well that ends well?  Well yes, but no. His story begins with his surrounding observations.

There were throngs of cheap suits filled out by public officials, mostly Caucasian, walking fast and talking faster to each other about this deposition and that arraignment, attempting to look important as they waved to fellow colleagues on the way to some other room in the building to do something legalish.

This smacks more of a good story, diminishing the “ants” scurrying about the building, in order to maintain the protagonist’s dignity. The same could be said about doctors in scrubs on their way to surgery, except it wouldn’t be nearly as funny. Especially if someone dies. Here, they can only be wrongfully convicted, which apparently isn’t of much significance.

The final group at The Anthill – my coined term for this downtown New York County courthouse building which bustled with activity but seemed to want for productivity – was the Newly Arrested. There were three things that branded this group, immediately telling you who they were and what caste they represented at The Anthill: 1) they were young, meaning under 25; 2) they were Black – every time; and 3) they were in chains. One of them would pop up somewhere in the building about every ten minutes, accompanied by at least five or six members of The Block, just in case all the chains were to suddenly break at once.

These aren’t, of course, “new arrests,” but defendants being returned on warrants for failure to appear. But Walker wouldn’t know that, and makes an easy if wrong assumption. But it leaves him with the vision of whites in suits and blacks in chains.

There are clues throughout Walker’s narrative that reflect the influences that affected his notion of what he was experiencing, like the judge.

I liked our judge. He thoroughly explained to us the trial for which we would be screened to be jurors, as well as the actual jury screening process. That took him almost an hour.

Despite his seeming perceptiveness, he had no clue that he was seeing a scene play out that had been played out a hundred times before, unaware of fake smiles and the script. Everybody likes the judge, and yet it didn’t dawn on Walker that the judge always appears likable and thorough because he produces the play. And as the trial goes on, all the stage directions come from that same judge, though Walker would never have realized it and would have blamed anyone else in the courtroom for it, since the likable judge wouldn’t be at fault.

Then, we were called up to the jury box in groups of twelve to be questioned. This seemed to take forever, and until I realized what was really going on, I was thoroughly perplexed: no people of color were being called into the box by the lawyers. What was happening? Didn’t somebody want this young man to receive at least some semblance of a “jury of his peers” (oops: I almost typed, “peeps”)?

But then it permeated my thick skull. The middle-aged White people from TriBeCa, Murray Hill and the Financial District were being called up first, so that they could get dismissed first.

As seen through Walker’s eyes, the lawyers decided who was called to the box.  It was a game to rid the jury of white people so that people of color could eventually find seats. He had no clue that names were chosen by the wheel and called by the clerk, with the lawyers having no more role in it than Walker did.  Yet, when “it permeated [his] thick skill,” he arrived at a completely wrong conclusion.

Notably, Walker concludes his first post with this epiphany:

That day, I received a crash course in not how our judicial system works (because honestly, after serving two weeks on a criminal trial jury I still don’t know), but rather in how it behaves. There are gangs in the courthouse, just like on the streets. There are strategies. There are plans. There are rules to keep others of all kinds in their place. And there are loopholes to those rules from which, if you’re smart and know how to play the game, and don’t mind losing a few friends and perhaps piece of your soul along with them, you could profit by squeezing through.

It’s a precursor to his second post, where he begins with voir dire.

After the long, grueling jury-picking session during which we were asked to publicly reveal criminal pasts, drug-addicted family members and the like, the trial began.

Apparently, he has no recollection of anything other than the judge’s routine questions. So much for the million theories about the impact of jury selection.  He was impressed by the prosecutrix, “at least six months pregnant,” but “quite nimble on her feet.”  Less so for defense counsel.

A stark contrast to our no-nonsense prosecutor, this lawyer was annoying. He seemed to think that he could play us like fiddles, most assuredly because he’d done so in the past. Throughout the trial, his flamboyantly glib and overactive cross-examinations had prompted the random rolling eyes of not only the prosecution, but a few jurors, as well.

Whether the defense counsel deserved such a scathing characterization or not isn’t the point. This is how he was perceived by one juror, perhaps more. After recounting the trial evidence, Walker makes no mention whatsoever of summation, another clue of omission.

From here, he launches into the game of deliberations, with the white forewoman uttering the O.J. comment, and his explanation of how he played the other jurors to win them over to his side.

And I felt shitty. Here, yet another young Black man’s life was at stake. And I had been reduced to playing chess, reindeer games. Because I didn’t like what somebody said to me. I didn’t even care about Kyle anymore. I had made this personal. All the times I’d been called nigger by the police in Nashville. All the times I’d gotten pulled over by a cop at eleven or twelve o’clock at night because “my window tint looked a little too dark.” All the hundreds of times I’ve witnessed a woman clutch her purse just a little (or a lot, honey) tighter when she realized that the ScarySexyBoogieMan was in her midst. All those times I’d been deemed “so articulate!” All those motherfuckin’ times someone else’s clumsy, careless privilege made me feel “lesser than” simply because of their fortuitous residence at the Center Of The Universe.

Walker’s revenge?  The shallow will cheer this time, because the defendant walked. But Walker could have been white and angry, whether for believing that he lost some opportunity in his life to affirmative action or that the country was in the toilet because of illegal immigrants stealing all the jobs.

Due to the ubiquity of keyboards, we get to read stories of jurors’ experiences with some regularity these days. This is one juror’s story, and it’s nothing like some of the others in many respects. But it does share one overarching feature that permeates the perceptions of the people who decide the fate of defendants at trial.

Regardless of whether a defendant is convicted or acquitted, the decision of the jury is almost invariably the product of things, bias, perception, emotion and even reason, that have nothing to do with the core of why they should be convicted or acquitted.  It happens, but for the wrong reason.

So Walker is right, but not for the reason he thinks. Gideon is closer when he writes:

The bottom line, as far as I can tell, is this: think like a juror. Think about who you want on your jury. Think about how evidence will affect jurors and how they will see things. Jurors aren’t the most sophisticated in the law, but they are adamant about what they know and what that means.

But still, this doesn’t quite nail it down. as it presupposes that the lawyers really have a clue who they select when the truth is we never get anywhere near the “soul crushing” Walker speaks of.

But Gid is absolutely correct when he says “they are adamant about what they know and what that means,” even though they are completely wrong about it.  And that is the game of the system.

2 comments on “The Game of the System

  1. Rich Matthews / Juryology

    Hi, Scott. I posted the essay that led Gideon to the original Gerry Walker essays. I’m a trial consultant (also a member of the California Bar) and would refer you to my blog, Juryology, for what I personally think is important for courtroom lawyers to notice in Gerry Walker’s essays.

    My concern about your take — and mind you, I think your take is probably the majority reaction for courtroom lawyers — is that instead of accepting the input from an actual juror and mining it for what can be gained for your own practice, you’re judging it and dismissing him because he is “incorrect” in some ways; more focused on pointing out what the juror “didn’t get.” I hope it is not a news flash that jurors, judges, lawyers, experts, get stuff wrong all the time. One could argue that every trial proves that half the lawyers involved in that case were “wrong.”

    When I switched from practicing law to doing jury consulting, one of the big mind shifts for me was to stop judging laypeople when they’re incorrect, and instead learn from that and improve my game & my attorney clients’ game from understanding those errors. I now know where laypeople are likely to go astray and anticipate it with high accuracy– a real benefit. I perceive in your essay a little contempt for the juror-essayist Walker, and I just wanted to encourage you that, once off one’s high horse, one can learn a lot from the ultimate holder of your & your client’s fate, even when that person is incorrect in some respects. Your essay — and I will stipulate that your learned, initiated, professional view is correct — makes me wonder what you “got” and “didn’t get,” to borrow your judgment scale for the juror.

    Take care, and good luck to you. Thanks for adding to the conversation.

    1. SHG Post author

      Hi Rick, and thanks for being the feeder of Walker’s story. I think you may have missed a piece of my purpose. I don’t dismiss Walker for being wrong about many things. Indeed, just the opposite, and he’s informative not just for what he says, but what he doesn’t say (or realize. or understand correctly) as well. That is a crucial takeaway, that we should expect jurors to wrong, and wrong about a lot of things, including the verdict. I don’t look down on him for it, any more than I would expect to be looked down on by physicists at the Large Hadron Collider. They understand I’m not a physicist, just as I understand Walker’s not a lawyer.

      The point is that Walker, and the thousands of other non-lawyers who serve as jurors regardless of their mindset, think they know something they don’t, and lawyers need to appreciate how they think they’ve got the inside secret of the law (whatever that may be for any individual juror) hidden away in their heads where we will never see or otherwise appreciate it. If you read this post as simple dismissal of a layperson, then you’ve sadly taken nothing worthwhile away.

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