criminal trials and jury duty

I have just received a summons for jury duty. So far, and I get a summons every year, when I call, as instructed, the day before my day on 'duty', I get the message that I am not needed. My day to start jury duty, this year,  is three days before Christmas. I doubt if any big trials will get going then. I probably won't have to serve but it would be fine with me to be on a jury. I don't do Christmas. That week is very painful for me. I'd love to be absorbed in someone else's criminal or financial misery. Wouldn't it be cool to sit on a big environmental law case?  As if.  Judges would rarely want to open a long trial just before Christmas, am I right?!

And I doubt if any smart lawyer would want me on a jury. I'd actually like to sit on a jury, and especially for a long, complex trial. A business litigation trial would bore me. A criminal trial would break my heart and bruise my soul. I might be an okay juror for business but any good prosecutor should reject me.

I did two clerkships in law school for two different criminal defense clinics. I was excited by the idea of a career in a courtroom and criminal defense was a fast ticket to court appearances. And later, when in private, solo practice, I did lots of misdemeanor defense, a few 'minor' felonies.  When you hang out your solo shingle, you take what comes in the door.

During those misguided years when I targeted a career in criminal defense, I regularly sat in on trials for major felonies, such as homicides and aggravated rapes. I sat in to learn from the attorneys, not to hear about the crimes.

One of the worst aspects of criminal defense work is, for the most part, you are dealing with criminals. Whatever they were being prosecuted for was never the only crimes they had committed. And career criminals just aren't all that great to be around.  Most of my clients casually talked about all the crimes they 'got away with', crimes they never got arrested for. And most of my clients never denied their guilt for whatever charge I helped defend.  I know some people are wrongly convicted but I never repped any innocents in criminal defense work.

One summer, clerking for a private nonprofit criminal defense clinic that only accepted major felonies, believing that most public defenders were not up to the task of providing effective defense  for major felonies for indigent clients. Major felonies meant violence. I spent a whole summer clerking for rape cases that involved vicious violence. Not just ordinary rapes. And this clinic pretty much only accept black men accused of major felonies as clients because our justice system is much harder on black men.  I spent the whole summer defending rapists, who had committed very violent rapes and thus rising to the status of being eligible for this clinic's great lawyers for free.  The clients whose cases I worked on spoke freely to me and their lawyer about the rape they were charged with and had committed. They expected to be found guilty and go to prison but they fantasized we could get them lower sentences. The lawyer I clerked for, who went on to be a state supreme court justice, never plead out major felonies against black clients. He had a true calling to pursue justice.  They schmoozed their lawyers, and their white, blond law clerk sitting at the defense table before jurors for each trial, right next to the accused rapist. How harmful could the accused be if that young blonde woman felt safe next to him day after day?  I was used, a bit, by the attorney I worked for al that summer but he was also a great mentor.

gosh, as I recall that summer, I am chagrined to recall my racial naivete. Sure I understood black men got arrested more, got charges with more serious charges but it was all a bit diffused for me. And I was still a bit intimidated about speaking to judges, clients and practicing lawyers.

I'm rambling.

During the few years I did some criminal defense work and whiled away days when I had no work watching the rising stars in the criminal defense world of the city I was then practicing in, I realized it is highly probable I would never, as a juror, vote to convict most accused felons. Every time I sat through a major felony trial to watch the star lawyer, I realized I would not have voted to convict.  I realized that my training as a lawyer lead me to always see the possibility of doubt. I realized that my reasonable doubt was a far higher standard than most juries used.

I realized I would make a poor juror after sitting through a first degree homicide trial. Some lonely, geeky guy had managed to have a few days with a girl and even have sex with her. Then she dumped him, flaunted the fact that she was sleeping with someone else and the defendant killed her. He got convicted all right.  The evidence that he had killed her was irrefutable. Maybe I could have voted to convict for manslaughter but first degree murder, in that state, at that time, required a clear finding of intent to commit murder. And I just couldn't allow myself to believe the defendant deliberately set out to kill her. I thought he was out of his mind in his emotional pain, that he had gone to quarrel with her and had not had the legally required intent to murder her.

I also realized few laymen would have drawn the very fine distinctions about the defendant's emotional state when the jury came back with their guilty verdict. I was truly surprised, even shocked. I had been sure they would have found him guilty of manslaughter or, maybe, second degree homicide. I no longer remember the gradations in that state's legal code between manslaughter and second degree murder.

I sat in the courtroom observing my thoughts, my empathy for the defendant, my disinclination to find him guilty of intent to kill. And I realized no good prosecuting lawyer should ever allow me on a jury. And all criminal defense lawyers should want me.

Heck, I once represented, at the first clerkship I had in law school, a teenager who had robbed a card shop. A dumb little crime unlikely to yield the kid the kind of money he wanted. You don't see card shops much these days and this wasn't a mall card shop. It was a dinky, neighborhood cardshop, the kind you wondered how they managed to stay open. A place like that never had a lot of cash.

So the kid goes in, demands the cash, the cashier hands it over. The kid, high, was waiving a switchblade with a surgical-sharp blade at the girl behind the counter and, because he was high, stupid and violent, he slashed her cheek. She had handed over the cash. She had not given him any resistance. Why did he give her cheek a very long gash that left a scar that would have required lots of plastic surgery. And I doubted that a gift shop cashier, especially back in the seventies, had health insurance, much less good health insurance so she was not going to get the plastic surgery.

That kid evinced no sense that he had done anything wrong.  He actually bragged about slashing her cheek, oblivious when we explained to him that because of that razor slash, he was going to spend a lot of time in prison.

I felt lots of empathy for that razor slashing criminal, even though he showed no remorse. He seemed almost animal-like, almost free of any emotions I recognized. It was heartbreaking to see that he had as little care for himself as he had for that girl he had slash with a razor.  When I would think about how the guy didn't seem to care for himself, I then would conclude he had grown up uncared for and uncared about. And that bruised my whole being. And then I would think hopeful, prayerful thoughts for his victim, pray that she was loved and cared about so she would survive and find her way back to her life without too much lasting wrong.

Who wants to deal with that kind of inner dialogue while making a living?

Not me.

I had defended the slasher, who still in high school, but being a bit young and dumb myself, I kept going in the direction of criminal law, still dazzled by the prospect of spending lots of time in courtrooms. I loved the stage, the public speaking. I loved knowing the rules of court inside and out, feeling competent and smart.

Eventually, and in hindsight I berate myself for having taken so long to reach this conclusion, I realized I was miserable interacting with criminals. Once I had that come to Jesus moment, I never did any criminal defense but drunk driving. This was before Mothers Against Drunk Drivers reformed the way our justice system dealt with drunk drivers. When I 'defended' drunk drivers, I took a fat fee for entering the accused guilty plea, 'bargaining' his sentence down to a big fine, probation, license suspension but no jail time. The prosecutors in that city would have given the drunk drivers that same deal without me but lots of folks are afraid when arrested for drunk driving and wanted a lawyer's support. I did all the things I was supposed to do. I reviewed the prosecutor's file to be sure he had evidence for a conviction and then, always, the prosecutor I caught on a given day would give me the same deal. That was for first offenses. The deal: a fat fine, one year license suspended and that was it.

I quickly learned, doing that easy DUI defense work, that almost anyone could get one charge of drunk driving and never drive drunk again. I learned that anyone who came back with a second charge of drunk driving, which required more complicated defense, the person was an alcoholic, unrepentant and would offend again. Those cases, I referred to the guys I shared my office suite with.

Once, after I had told an interstate trucker I didn't want to take his case, because he had already had his driver's license suspended in several states. He would just get a driver's license in another state and he kept on driving. He drove for a living, putting lives at risk every time he drove drunk. And this guy always drove drunk.  I told him I couldn't help him, that his record in other states would be before the court and he was going to jail. I was surprised when he still insisted he wanted me to defend him. He offered me a lot more money than I usually charged. I felt okay taking his money, for I had made it clear to him that I didn't think I could help him. And I didn't help him. He was repugnant to me. Oh, I did what I should have done as his attorney but I could not magically keep him out of jail. His mere existence repulsed the judge, the prosecutor and anyone versed enough to know, when hearing his long list of DWI's all over the country while driving drunk through America.  And I had made full disclosure:  he was going to jail this time. And that was when I moved away from drunk driving, easy-money cases. Nowadays, I think it is hard, if even possible, to get a professional trucker's driving license in multiple states after drunk driving convictions. I hope it is.

When I practiced law, I kept finding I hated every kind of case I got. Family law? Shudder. Business conflicts? A lot like family law.

Nowadays, many people say to me "why didn't you do environmental law?" First, in 1979 when I graduated from law school, the field of environmental law was barely a twinkle in the profession's eye. The few jobs that existed then were extremely competitive. Secondly, environmental law, if one is pro-environmental protection, is a Sisyphean task and you are always in a fight. Lawyers are in a fight, always repping someone with a serious conflict. Some folks see this as noble work and I think it is. It just wasn't the right work for me.

I finally concluded that anything I could do within the law involved a fight. A dispute. A conflict. A quarrel. And I accepted I didn't have the stomach for it.

Estate planning? I never did that, other than a few simple wills but I have heard plenty of horror stories of how ugly people can get fighting over mom's estate. Shudder again.

Tax law? Tediously dull to me.

Bankruptcy law? Ibid.

I had wanted to join the Peace Corps and, upon my return to the states, get a PhD in Cultural Anthropology. Dad said "There are no jobs for that. go to law school and you will never starve."  I was 22, fresh out of college, more naive than the average new college grad and I loved my dad. I let him bully me into law school.

If I had broken free and joined the Peace Corps, my entire life course would be unrecognizable from the life I have lived.

If I could turn back time, I would.  Of course, I cannot.   Sigh. People my age can and do join the Peace Corps but they would reject a type one diabetic. Dreams deferred are dreams denied, eh?