Ph.D. Octopus

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The Trial

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by Luce

I went to jury duty last week at the sleepy Middlesex County Courthouse in Somerville, MA and ended up sitting on what appeared to be an open-and-shut civil trial with relatively low stakes. I was there at 8 and out by 3, and within those 7 hours something I’d always abstractly known was brought home experientially: that the legal cards are really stacked up against certain segments of society.

It is not a profound thing for an historian to say that her legal system is flawed. And yet, as someone who has invested her life in “knowing more,” it was jarring to be asked to make a decision directly impacting two people’s financial situations on evidence that would  hardly support half an undergraduate term paper. As historians we are taught to keep digging through the archives, to distrust every seemingly obvious discourse, to employ a hermeneutics of suspicion, to doubt the possibility of ever discovering a “truth,” to consider the entire intellectual, social, cultural, political context of one’s narrative. For historians everything is a relative “lie,” since every claim depends on the claimant’s positionality.

In order to determine whether a woman should be awarded damages from an apartment manager she had accused of negligence due to a loose railing that ostensibly caused her to fall and break her collar bone, a jury of 6 (plus 1 alternate) listened to 2.5 hours of testimony by 3 witnesses–one the manager, one the woman, and one the woman’s friend. The questioning was constrained by legalese, yes and no answers to cross-examination, constant interruptions by the judge asking the lawyers to rephrase their questions or rephrasing their questions for them to make them understandable to the witnesses. Photos were shown of the staircase, though they had been taken at some vague time after the incident and so provided no real evidence of the situation of the staircase at the time of the incident. But significantly this point was hardly emphasized, and my fellow jurors kept referring to the photos as if they represented the exact same situation the woman herself had encountered.

Here’s the thing. At the end of the day this was basically a “he said, she said” case. She said that she had gone to the owner’s apartment building at 2am to bum a cigarette from a friend, had walked up two flights of stairs hanging onto the railing, fell back when the railing loosened and broke, lay on the floor for five minutes calling for help and then walked home, called a personal injury lawyer first thing in the morning, but waited 9 days to go to the hospital after the pain failed to subside. He said that everything she said was a lie, that the railing was in good condition, and that he was an excellent apartment manager.

I relied on the questioning of two smarmy lawyers who used their time both to ask leading questions and to engage in character assassinations. To the woman from the defense lawyer: “Isn’t it true that there’s a picture of you drinking a bottle of alcohol outside that building?… You don’t work during the day, correct? You just lie around all day?… You are on the following medications…” To the manager from the plaintiff lawyer: “You’re not from this country, are you? Lebanese?”

In order to decide a case that in the end turned on the plaintiff’s inconsistencies and the defendant’s more polished responses, the judge told us that we would need to judge the credibility of the witnesses in order to judge their evidence. Easy enough, right? Just decide if we believed them based on whether, to us, they were believable.

And yet how was I to judge what was credible for a woman on the margins of society? “The moment she said she was going out to bum a cig at 2am I knew this thing was bogus,” a fellow juror said. But why? The definition of negligence runs along the lines of a resident or guest experiencing injury due to lack of upkeep by the owner. A woman going out to score coke at 2am could still be the victim of a faulty railing, right?

This is when the sociology of the trial became both interesting and determinative. My fellow jurors were mostly middle-class native-born Bostonians — mothers, a school cafeteria worker, a musician/tech guy. There was one biology PhD, who convinced me even further of the need for analytical thinking developed through the humanities. I of course was the effete humanities academic. And as such I was the self-designated devil’s advocate; to my fellow jurors, the naif and fool. Because despite inconsistencies in the woman’s story, despite her decision to call a personal injury lawyer before visiting the hospital, and despite, or in fact because — a stance that makes my a priori assumptions just as problematic as my fellow jurors’ — this was a woman who was not in great physical or mental shape, who had a 9th grade education and apparently no job, who according to her own testimony lay around all day and then stayed up all night watching TV, I wasn’t so sure that her testimony was discreditable.

No she didn’t act as I would have. Yet from the beginning she inhabited a body vastly different from my own: older, heavier, much more unwieldly. A fall for her would likely have been an almost-tumble for me. If I were a woman without a paycheck or health insurance, maybe I would have first called a personal injury lawyer to discuss whether I could get the landlord to cover any potential bills. Perhaps I would have had a friend who’d had a similar experience, or maybe I would have watched so much TV with its ubiquitous ads for personal injury lawyers that that just seemed the natural first call. Maybe I would have waited 9 days to go to the hospital, because it’s easier to make a call than board a bus, because my body already hurt and I was used to everyday discomforts, because I was lazy, yet in the end still had a broken collar bone. Yet her story was inconsistent even on which part of the railing had fallen off and at which step she had fallen. But if it were 2am and I was on a number of medications, including a possible sedative (information that was never extracted though a sleeping pill was listed amongst her prescribed medications) and had had a bad fall, would I necessarily remember? Would I then remember to remember to get my story straight?

Trials encourage a lack of imagination and in their emphasis on judging what is “credible” to you, rather than, perhaps, what is “conceivable,” they encourage judgments often rooted in subjective socioeconomic positions. I was struck by the class politics involved in the jury’s deliberations–something I don’t often focus on very much in my own historical writing.

“This is a huge waste of our time. She’s a bum,” said one of the middle class working women as if that point were decisive. I felt the need to suggest that even bums have legal rights.

“It’s all a scam–they’re a bunch of scammers trying to take a hard-working man. Look at her, can’t even make $75 rent on section 8 housing some days, all her money going to cigarettes when she has asthma” said another about the woman’s friend. I countered that even those whose life decisions we don’t agree with might conceivably be telling the truth about a negligently managed stairwell. Yet all my fellow jurors’ minds were made up before they entered the deliberation room. And to be honest, so was mine.

Perhaps I’ve felt the need to write this blog post to make up for the fact that in the end I voted with the other jurors in a unanimous judgment finding the apartment manager not negligent. Despite my feeling that we couldn’t possibly really know what had happened, that the woman might at base have been telling the truth despite her inconsistencies, and that the entire process actively discouraged empathy and imagination, there was simultaneously no way to find the manager negligent. He could just as easily have been telling the truth as she, and favor fell on the side of inertia.

On the other hand, the jury didn’t need my vote — they only needed 5 of the 6 — and so I could have registered a symbolic vote against a system in which a person who existed outside the dominant behavioral norm was never going to receive a fair trial within the legal norm. Yet despite my counters and protestations during jury deliberations, I didn’t. I’m still not sure why.

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Written by Kristen Loveland

February 19, 2011 at 00:30

10 Responses

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  1. I always listen to jurors after trials. Most have good experiences, but wish the case could have been presented quicker. Sidebars and hearings outside the jury’s presence are tedious if you’re not involved, and the whole point is that jurors should not be involved. Other common complaints relate to individual judges, witnesses and lawyers (one woman fixated on the way I pronounced the word “murder;” apparently it’s hilarious), and the idea of “un-ringing the bell” when the judge tells the juror to disregard a prejudicial piece of evidence.

    I have also come across a few people for whom the jury experience leaves a long-lasting bitter taste in their mouth. Usually they are upset by the whole system or feel justice wasn’t done in their particular suit. In most instances, their concerns are weighty and completely valid. I really don’t think that’s true here. There are a number of things I’d like to respond to in this article. I’ll take them one at a time.

    “[W]ithin those 7 hours something I’d always abstractly known was brought home experientially: that the legal cards are really stacked up against certain segments of society.”

    As noted above, I place a great deal of store behind jurors’ experiences. That said, no one – I don’t care if you’re William Brennan, Oliver Wendell Holmes or Elvis – can make such a sweeping indictment of a process as complex, nuanced and variegated as the Anglo-American jury trial system on the basis of 7 hours in the Middlesex County Courthouse. You don’t have to have studied law to critique it, but you should make an effort to understand why the rules you are so quick to criticize are there. This system has evolved through the efforts of lawyers, politicians and social activists for over 800 years. It is one of the most imitated and admired in the world. People have died for it. To presume you know better without digging a little deeper is presumptuous at best.

    More to the point, while there are ways in which certain kinds of parties are at a legal disadvantage, nothing in the article indicates this was the case here. In virtually all criminal and habeas corpus cases and many kinds of civil suits (bankruptcy, commercial/debtor-creditor, real property suits) there are systematic problems with access to adequate legal counsel and components of the substantive law that operate to the derogation of subordinate classes. This is not really true in slip and falls. On the whole, personal injury plaintiffs have better access to lawyers than PI defendants. You have to be exceptionally rich to pay for decent defense counsel in a civil suit out of pocket. In this case, I’m sure the defendant was represented by a firm supplied by his insurance company, but I’m equally certain the plaintiff was represented on a contingency basis. In all but the biggest tort suits, that will not create inequalities of spending power or expertise. Certainly, the law of negligence relating to a slip and fall is not exactly rocket science.

    The numbers bear this out. Even though they have the burden of proof and tend to be poorer, individual plaintiffs in personal injury suits like this one win at trial 61% of the time against individual defendants and 63% of the time against insurance companies according to the American Bar Association. The only defendants that consistently beat individual plaintiffs are government bodies. Even corporations lose around 50% of the time.

    On a personal level, I can tell you that although I usually worked for large corporations, I sometimes had to handle cases for insurance companies where my client came from a particularly disadvantaged background. I can tell you any competent lawyer can turn this to their advantage unless the jury is entirely composed of racists, etc (in which case the lawyer’s done a poor job in voir dire). People are funny. They often are fully capable of keeping multiple conflicting stereotypes in their head at once and they like cases to fit one of those templates. Everyone has seen images of bullshit PI cases on TV, but we are just as saturated by images of the little guy getting screwed over by businesses, bosses, landlords and the like. I don’t know the people in this jury, but I would bet dollars to donuts that if the plaintiff in this case seemed more credible than the landlord, they would have sat in the jury room spouting a clichés about a-hole landlords rather than social leeches. Maybe you would find this just as disturbing, but I wonder if this article would have the same tone (or, indeed, if I would have written such a turgid reply) if this case fit the “Erin Brokovitch” archetype. I suspect not.

    A lot of research suggests most jurors say they made up their minds before opening statements. This horrifies me, but I think the process is more complicated than that. Most jurors start the case with a menu of snap judgments and then follow one or more as the case unfolds to confirm those pre-existing ideas. In a long case, you can change juror’s pre-conceptions — I have seen it happen — but in a seven-hour trial with two witnesses and no earthshaking ideas, that is asking a bit much of either the jurors or the system. This, I know, is a debatable point, but I feel strongly about it.

    “[I]t was jarring to be asked to make a decision directly impacting two people’s financial situations on evidence that would hardly support half an undergraduate term paper.”

    As the plaintiff quite sensibly has the burden of proof, this just means she didn’t have much of case and the other jurors’ complaints about her wasting time were probably valid.

    “For historians everything is a relative “lie,” since every claim depends on the claimant’s positionality.”

    I study history and I have no fucking clue what that means. Some things are true; some things are not true; some things are arguable. Am I missing something? Is “positionality” a term-of-art? I honestly don’t think it’s a regular English word.

    “The questioning was constrained by legalese, yes and no answers to cross-examination, constant interruptions by the judge asking the lawyers to rephrase their questions or rephrasing their questions for them to make them understandable to the witnesses.”

    I think there are good reasons for all these, all of which related to the basic concept that, at the end of the day, a trial is for the benefit of the parties, not the jury. Thus, for example, if asked a “yes or no” question, witnesses should give a yes or no response because irrelevant and/or prejudicial information inevitably follows. A classic example in this context is insurance (though there are many more). If the plaintiff reveals her health insurance paid her meds or the landlord reveals whatever the jury awards the plaintiff will come out of the insurance company’s pocket, that might have factored into the jury’s calculation of liability and damages. If this format stops the witness from giving a full answer, the other lawyer can ask for the additional information on redirect; (C) I find it hard to see how either the judge or the lawyers rephrasing a question to make it easier to understand or conform to the rules of evidence is problematic. As I suggested above, this sort of thing is a common source of frustration for jurors, but most of these rules are there to protect the litigants.

    “Photos were shown of the staircase, though they had been taken at some vague time after the incident and so provided no real evidence of the situation of the staircase at the time of the incident. But significantly this point was hardly emphasized, and my fellow jurors kept referring to the photos as if they represented the exact same situation the woman herself had encountered.”

    I suppose a non-lawyer might not know this, but if subsequent remedial measures had changed the condition of the stairs, the photo would not be admissible. Thus, either the parties agreed, or the judge ruled in advance, that the photo accurately represented the condition of the stairs.

    “I relied on the questioning of two smarmy lawyers who used their time both to ask leading questions and to engage in character assassinations.”

    Many lawyers are smarmy; I’m pretty smarmy. But this article deserves a special place in the smarm hall of fame. More to the point, leading questions are completely appropriate in this context. They are not allowed when questioning your own witnesses, because you’re providing them with answers, but they are desirable on cross because they (i) bring out new information and (ii) ferret out liars.

    “In order to decide a case that in the end turned on the plaintiff’s inconsistencies and the defendant’s more polished responses, the judge told us that we would need to judge the credibility of the witnesses in order to judge their evidence.”

    First of all, the standard jury instructions (which I’m sure were used here) state witnesses can be credible even if they are inconsistent at times. Secondly, on what other rational grounds could you decide a case that apparently relied entirely on two contrasting witness accounts?

    “[H]ow was I to judge what was credible for a woman on the margins of society?”

    Well, did she seem like she was telling the truth about the fall? I think almost everyone has some way to tell whether someone is lying to them or not. It may not be 100% accurate, but that’s life.

    “Trials encourage a lack of imagination and in their emphasis on judging what is “credible” to you, rather than, perhaps, what is “conceivable,” they encourage judgments often rooted in subjective socioeconomic positions.”

    Yes. For very good reason. The sole purpose of a civil trial is to determine what probably happened. This is a pretty liberal standard (much more lenient than the “reasonable doubt” standard employed in criminal cases). Any lower bar than that would pretty much lead to chaos. If plaintiffs could recover damages if their injury or its alleged causes were “conceivable” to someone using their
    “imagination” that could, let us all agree, lead to problems. Surely, in a case like this, both witnesses’ accounts had to be conceivable. So where does that leave you? Which is more “conceivable?” How is that any different from doing your best to assess credibility?

    In fact, there are no meaningful suggestions here for how this case might have been handled better. Should we have a panel of social scientists decide cases instead of juries? Certainly, they don’t seem any less prejudiced. The author admits she was tempted to deliberately vote against the facts and law of the case to make some fainthearted point about inequality? I’m sorry, but I find that narcissistic and callous. Maybe the landlord is jerk (I have no idea), but he is person with a livelihood to protect and premiums to pay, too. This case lasted seven hours for the author. It probably lasted months or years for the defendant, not knowing what was going to happen. I’m certain that wait would have been all the more worrying had he known some people consider disregarding the merits to make a “statement” about issues over which he has no control.

    Obviously, I wasn’t involved with this case, but the overwhelming sense I get from reading this account was that the problem was not the smarmy lawyers failing to take the jurors’ views seriously because they lacked expertise, it was the author belittling her fellow jurors and the legal system because they lacked her profound social science/ humanities insight. Maybe we would all benefit from some of that insight, but I would think long and hard before tinkering with the justice system on those grounds, lest we all end up making decisions like the one she contemplated here.

    Winston

    February 21, 2011 at 11:34

  2. I don’t understand why you think that the result is unfair. Six people sat down and agreed that one version of events was more likely true than another version. Maybe they got it wrong, but they did just what they were supposed to do. If the issue is that not everyone came from the same social or economic background as the plaintiff, I find it hard to think of a good way for the system to correct for the difference. The plaintiff could just as easily have drawn a pool of jurors like her in every respect. Maybe she was unlucky that she didn’t, but I don’t think that makes the system unfair.
    Luck cuts in all sorts of directions when it comes to the question of who will judge a person. Consider the pool of judges drawn for the upcoming trial of the Italian Prime Minister for his alleged dealings with an underage prostitute and attempt to cover it up. I don’t think it’s unfair that all his judges will be women, but it was probably unlucky for him.

    chris

    February 22, 2011 at 00:49

  3. I want to respond to these comments, but I recognize that there is a risk in over-explaining a post that was intended to convey a personal and emotional reaction to my experience as a juror. Here is the assumption that lay at the very base of why I felt I even had the right (which Winston seems to contest) to write this post (besides the fact that it was published on a Sunday morning on a small academic blog to which I am a frequent contributor): we live in a pluralistic society which is a democracy. As such I think it is important that we fight against technocratization and value the experiences and perspectives of different people from different areas of society, whatever their ignorance of the technical details.

    Thus, Winston, while I appreciate your points of clarification on the legal process (particularly on the staircase – though this is something that might have been made clear to us jurors) I want to make clear a few things that I was NOT doing in this post:
    1) critiquing the technical legal proceedings (for instance, when I wrote that this was a “he said, she said” case it wasn’t a critique but an explanation of the circumstances of the dilemma in which I found myself)

    2) suggesting that there should have been a different outcome to the case or that the manager should have been found negligent (as I said, my mind was already made up– that he could not be found negligent– when I entered the deliberation room. I did not mean that I thought he was negligent but legally couldn’t be found negligent, but that I just didn’t know whether or not he had been negligent, and therefore couldn’t find him negligent since it would have meant taking money out of the hands of someone who was just as or more likely innocent in the entire affair. I only considered a symbolic vote against him at a point when it would have had absolutely no legal impact on him (as far as the rules were explained to me). And even then one of the reasons I did not cast that dissenting vote was that I was unwilling to indict a most likely innocent individual because I found disturbing cracks in the larger structural system.

    3) (in response to Chris): arguing even that the outcome of the trial itself was unfair. I hope I would have the courage not to vote for a conclusion I found fundamentally unfair. Within the rules of the legal process—rules that I am not making a critique of—the result was fair. My post was not about the fairness of the technicalities of the trial itself, but the way that unjust social disparities were reflected and instantiated in the trial.

    This also may be a key source of confusion: I was not prescribing some clear path of reform forward but attempting to generate a discussion that might contribute to the complexity of how jurors think about their role as adjudicators of their fellow citizens, specifically on the credibility of testimony. My purpose was communicative (i.e. to generate and participate in a dialogue) rather than strategic (i.e. to achieve some ultimate end). I didn’t particularly expect to run across an interlocutor who threw accusations of callousness and narcissism my way, but if the Tea Party has taught us anything, it’s that you can’t necessarily choose your interlocutors.

    My basic contention was the not wholly surprising one that social behavioral norms in part determine legal judgments. What does it mean for something to be credible? Like Winston said, it means that it seems believable. What does it mean to be believable? That one could see someone’s action as a rational thing to do given the contingencies of the situation. My and my fellow jurors’ immediate intuition was that it was not a rational thing for the woman to have called a personal injury lawyer before going to the hospital if she had actually broken her collar bone on those stairs the night before. In fact this was one of the decisive pieces that the jury focused on in discrediting the rest of the woman’s testimony. On second thought though, in thinking about her position in the society, it became more conceivable that this might have been the chronology of events. The way that “credibility” went down in my jury room was that people believed the people they thought had behaved in ways they recognized as “rational.” But the problem is that rationality is not a universal thing, and in fact is largely constituted through a society’s dominant discourse. This woman could very well have been acting in ways that were rational to her given her situation in life but that were not rational to others who occupied more “typical” places in society. You might read the introduction (or even just some reviews) of Bourdieu’s “Distinction” and think about the idea of habitus in this context, or immerse yourself in Foucault for a bit, or something. Not that these dudes have all the answers, but it’s a good place to start. [Update: I realize that these book recs may come off as pretentious–in my personal academic reading they happen to be the ones that have helped me clarify some things about dominant discourse and socioeconomic positions.]

    On that note I’d like to briefly take up Winston’s confusion about “truth” in history and the definition of “positionality.” I apologize, positionality is something I come across in my own academic reading and I didn’t realize it isn’t in your basic Merriam-Webster. It’s generally used in philosophy or sociology and it’s pretty much what it sounds like though specifically it indicates a relational position. From the Oxford English Dictionary:
    1. The fact or quality of having a position (in various senses) in relation to other things.
    2. The occupation or adoption of a particular position in relation to others, usually with reference to issues of culture, ethnicity, or gender.

    On the question of “truth,” this is not the time to get into an argument about postmodernism and whether you agree with the linguistic or cultural turn of the late 1980s, but I would hope as a historian that you would at least recognize that it happened and not be shocked when historians argue against essential truths, or at the very least that they find it hard to come to any real conclusions based on 2 ½ hours of legally mediated testimony. If not you may be dismayed by much of the intellectual production of the past twenty years. I would recommend going to the introduction of David Nye’s book, Narratives and Spaces: Technology and the Construction of American Culture, on this one, which I think offers a very fair analysis of how one can still do history (and quite well) even when all representations can be questioned for hidden assumptions and simplifications.

    Finally I do want to seriously address your charges of “condescension,” “smarminess,” “belittlement.” (Well to be honest just the first and last ones. I have never been called smarmy before in my life. I hardly expect ever to be so-called again, so I am going to revel in that just a little longer.) Let me be clear that I am ABSOLUTELY NOT recommending that we fill a jury with social scientists or even humanities scholars—I was making a point on the value of a humanities education not on the value of us all becoming humanities scholars—heaven forbid. I find it important (and remember I am saying this from my position as an American citizen, not as a legal scholar—I have done no research on the legal justifications for juries) that a jury be as representative of the American citizenship as possible because this is the best guarantee that as many different experiences—and hence understandings of what is credible and rational — as possible may be contained within it. And I myself have spoken from nothing more than my own experience (this is the only post I have ever written on this blog that contains no references to other sources, evidence, or authors). This is why I stated in my post’s second paragraph that I was jarred “as an historian,” because the legal procedure is so different from the one I use in history—as an historian, I can ask as many questions in as many different ways as my sources allow.

    Rather than directly answer your accusation of condescension let me dwell on my relationship with the other jurors a little longer. This is something I had meant to do in the original post. I found them all nice, smart people. I wish they had not leapt to what I found to be prejudicial conclusions so quickly: “she’s a bum,” “we can’t trust her because she acts irrationally by smoking while having asthma”—these are things I quite honestly found irrelevant, distracting, and biased in term of judging the woman and her friend’s credibility. You will not convince me otherwise, nor that these are trivial critiques of how jurors should approach their responsibilites. In the deliberation room, I presented my own critique of these sentiments, they either agreed or countered back. I was hardly a tutor—in the end, after all, they schooled me.

    I wish however that there was a larger discourse in society where people discussed what it means to be a juror who judges their fellow citizens. Yes the judge, as well as the plaintiff lawyer, said that inconsistencies did not imply lack of credibility but I don’t think this idea was fully digested or dwelled upon either in the court or jury room. On the other hand, it is obvious that I was just as implicated in the socioeconomic dynamics of that deliberation room, and I hope that I did not come off as external to them in my post. Now is not a time to get into my autobiography, but suffice to say I sit around reading books all day, trying to understand people’s perspectives that may at first seem quite foreign to me, and I get paid for it. I’ve also worked in prisoner reentry programs and inner city school programs with “underprivileged” youth. I feel like these experiences have made me more alert to issues of social justice, but others might think me a softie instead. Most of the people in that room worked nine to fives, tended to their kids, had families who depended on them for support. They were much less sympathetic to a woman who didn’t have a job than I was, and I don’t blame them for having that intuitive reaction just as I don’t blame myself for my own intuitive reaction, structured by my own life situation. But I do think we might all do well to dwell on what meaning those life situations have when we are asked to adjudicate others’ claims.

    And I do think that we would value as a society from a conversation about what the responsibilities of jurors are, and what the relationship between “credibility” and “conceivability,” or “rational” and “imaginable,” is. I think someone once called this empathy. The legal system should not be a black box removed from all lay critique, analysis, or understanding and quite honestly, a former trial lawyer’s use of technocratic legalistic arguments and hyperbolic insults in response to a post written from one juror’s experience only contributes further to the artificial cordoning off of the courtroom from society at large.

    luce

    February 23, 2011 at 01:30

    • Tedious though I realize this is becoming, I feel the need to respond at some length again.

      That said, I should start with an apology. I am rightly rebuked re: “positionality.” It was a facetious remark and while – as you guess – I was unable to find it in two dictionaries, I have come across this lingo before. It’s just the kind of jargon that irritates me. No one can deny that an individual’s point of view colors how they see a situation, but I see no reason to “doubt the possibility of ever discovering a ‘truth,’” nor am I in any way persuaded that “everything is a relative ‘lie,’” as you assert. Nevertheless, I think your response offers a compelling case that some people do conceive of the “truth” in relativistic terms.

      You tell Chris you are not arguing the trial was unfair. Surely, you must understand why he’s confused when your original post claimed our legal system is one “in which a person who existed outside the dominant behavioral norm was never going to receive a fair trial within the legal norm.” Like Chris, I see no evidence in anything you have written that supports this quite audacious claim.

      In your response you state that you do not wish the result had been different and that you did not “cast that dissenting vote [because] I was unwilling to indict a most likely innocent individual because I found disturbing cracks in the larger structural system.” Yet in your original article, you say you “felt the need to write this blog post to make up for the fact that in the end I voted with the other jurors in a unanimous judgment finding the apartment manager not negligent.” Make up for doing the right thing? Likewise, you end the piece by stating you are “still not sure why” you didn’t break the law to “register[] a symbolic vote[.]”

      You now claim you were not critiquing the legal process, yet your first substantive sentence claimed that “within those 7 hours something I’d always abstractly known was brought home experientially: that the legal cards are really stacked up against certain segments of society[]” and you proceeded to buttress this claim with a laundry list of gripes about the legal proceedings, ranging from the smarminess of the lawyers to the substance and form of their questions to the fact that legal evidence was “constrained by legalese[.]” Even your response claims you “found disturbing cracks in the larger structural system.” There are none in sight anywhere in either the response or the original article. Again, I’m sure you have a coherent point, but I think I can be forgiven for seeing inconsistencies here.

      Now you claim “it is important that we fight against technocratization and value the experiences and perspectives of different people from different areas of society, whatever their ignorance of the technical details.” Nevertheless, in your original you claim the biology PhD’s lack of understanding “convinced me even further of the need for analytical thinking developed through the humanities.” I’m beginning to think I understand where you’re going with this based on your other explanations, but I hope you can see how this seems pretty contradictory on the first, second and third read.

      Let’s talk about the other jurors. You now state you “found them all nice, smart people.” Fair enough. Again, however, there is absolutely no way anyone could have gotten that impression from your original piece. Virtually every time you mention the other jurors it is to criticize them. Aside from bemoaning a biologist’s lack of analytical prowess (by the way, I think scientists are generally taught some rudimentary forms of analysis), you spend the whole time describing them as close-minded, myopic and biased. Here’s an example: ‘“This is a huge waste of our time. She’s a bum,’ said one of the middle class working women as if that point were decisive. I felt the need to suggest that even bums have legal rights.” You needn’t refer to these people by name, but I’m sure that lady wouldn’t enjoy being renamed “middle class working woman.” More to the point this quote serves mostly to establish both her prejudice and your (silent) lack thereof, just like your complaint that they dismissed you as a “naïf” and a “fool.” So yes, based on this evidence I did think you were “belittling” the jurors and their views. Perhaps that’s not what you intended, but that’s what you did.

      Regarding what now seems to be the only major point to which you’re willing to stick: that credibility is subjective and the jury system is not brilliantly calibrated to evaluate the credibility of subalterns, I disagree on very personal grounds. I grew up in what passes for poverty in the first world. My father is disabled and a convicted felon; my brother was a heroin addict before he died. While I’m sure this sounds like a laughable Hortio Alger bromide to you, my family came to this country with one suitcase each for all our possessions. I can guarantee you they would all be credible on the stand (and they’d probably be guilty as hell anyway). In my experience (which I know isn’t the be-all-end-all), credibility isn’t necessary determined by social status or even familiarity with the system. Cops and doctors, for example, frequently make terrible witnesses.

      As to “smarm,” that was your word, not mine. Unlike you, I did not use it in an ad hominem attack on someone’s character; I employed it to make what I think is an eminently defensible characterization of the overall tone of your article based, among other things, on the quotes above.

      You now claim your sole purpose in writing this piece was to “generate and participate in a dialogue” and (so far as I can tell) that you didn’t intend to make any argument. Accepting, as I must, your new description of your motives, I don’t think your critique of my motivation/attitude is very good. You attempt to marginalize my criticisms by comparing me to the Tea Party. I freely admit my tone in the debate has been vituperative. I’m a really easy-going guy, but I was (and obviously still am) outraged by the tone and content of your original piece. Nevertheless, I explained the reasons for my criticisms at some length. I am not some Tea Party loon howling at the moon. I see no reason to couch my criticisms in smug passive aggressive advice or scholarly bullshit. Furthermore, although I found this article infuriating, I did not initially criticize it on this forum. A mutual friend asked me for my response on another platform and I gave it. You then contacted me out of the blue and requested me to post those critiques here (twice) so you could respond. That’s perfectly fair, but under those circumstances, I think it’s unfair to act as if I’m hounding you or singling you out.

      Contrary to your assertions, I never questioned your “right” to say your piece about the jury experience. To paraphrase Voltaire, I would defend that right to the death. The reason I like the jury system is that lay jurors often reach better results than judges. The reason I read this article is because I find that laypeople often say interesting things about the jury experience. Here’s an example of one: http://www.washingtonpost.com/wp-dyn/content/article/2010/01/22/AR2010012202273.html As a lawyer, I would not have approached the case the way this guy did, but I think his criticisms are sound. I honestly don’t think yours are.

      Winston

      February 23, 2011 at 17:36

  4. Winston, you’re probably the only person who read Luce’s initial post who felt that she was attacking the other jurors. All I read was a couple of quotes from them, which Luce cited to prove her point about different perspectives. She never attacked their character at all. She also criticized BOTH lawyers’ smarminess: the plaintiff lawyer wondering needlessly if the defendant was “Lebanese.”

    Luce was primarily offering her perspective, and in the interest of brevity and privacy didn’t feel the need to expound on the other jurors, which makes sense to me.

    As an aside, you don’t sound easy-going if a post on someone else’s blog gets you outraged. I think easy-going people are not easily outraged. But maybe that’s just me.

    Funnily enough, I’m very sympathetic to your dismissal of relativism, though I don’t think you’ve really done a good job of it here. All I see is you trying to defend a legal system that wasn’t attacked nearly as much you think it was. I think the larger point is that the legal system, like most areas of our society, are subject to class bias. This point is uncontroversial, what is interesting here, I think, is Luce’s experience of it.

    I can’t speak for Luce, but in my reading the main point, which you missed, is about different ways of thinking: the historical way, which involves considering what is conceivable along with the probable, and the legal, which gravitates towards the probable. Luce understood this, and her role, but she wanted to share how different these two ways of thinking are. The latter view is more focused, and in many ways, probably more practical. But the former view is both wider and deeper, and allow for emotions like empathy, which you don’t acknowledge in your response, but which is what Luce clearly felt for the plaintiff, even though she also believed that her case was wrong.

    And that’s the point, Luce felt empathy for someone unlike her, but was still able to come to what was likely the correct verdict. The legal system, as I understand it, doesn’t encourage that sort of thinking, but at least some historical theories might.

    weiner

    February 23, 2011 at 18:59

  5. […] reminded of the sentiments of our very own Luce, who while performing jury duty, sympathized with the plaintiff in the case, despite the chasms of class and culture that divided […]

  6. […] on the sciences and problem-solving, rather than on critical thinking, and have suggested some practical implications of this. Nonetheless, is this a transhistorical phenomena? Did it begin with 1968 or with […]

  7. […] of the thinking I had when I went into my own open-and-shut trial as a jury member, which I then wrote about here. And now I’ve realized I should start sitting in on more of these trials and […]

  8. […] But it became a deciding point in the jury’s deliberations. It proved she was untrustworthy. The jury I sat on this winter focused on the fact that in a 2008 (or was it 2007?) deposition the plaintiff (who was suing a […]

  9. […] a library with too many books, led to my throwing a rope into the real world with posts on Octomom, jury duty, and the Cronon Affair (the latter also including an excellent review of German philosophy for […]


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