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.