It's the Law!

My jury duty is over. I'm allowed to talk about it now. So I will.

Pima County Superior Court

This is where I spent several hours today: the Pima County Superior Court building. State of Arizona criminal trials are held here, administered by the county. Don't ask me how that works; I didn't think to ask.

My original scheduled date for jury duty was Wednesday September 5th. After 3:30 PM the day before, potential jurors are supposed to call either a taped message or go online to see whether their group is still due to come in, and if so, when. Sometimes they have more people in the pool than the current caseload requires, so that some groups are dismissed then and there. This time, however, my group was merely postponed to Tuesday the 11th at 7:30 AM. Yeegh. That's pretty darn early for me, factoring in the travel time downtown.

So at 7:30 Tuesday morning I was in the Jury Assembly Room. Everyone checks in, they show a little film about the importance of jury duty (citing my old buddy Thomas Jefferson, no less) and what happens in an Arizona courtroom. Then bailiffs started arriving to collect people to go upstairs. It was kind of hot in the Jury Assembly Room, and more so after the 9:00 AM people arrived to fill the rest of the seats. I found an old issue of The New Yorker, and read until my name was called.

A nice female bailiff whose name I've forgotten, a recent law school graduate, handed us index cards with the judge's name and a hand-drawn smile on them, so as to distinguish us from any other jurors who might be sent to the third floor. Forty of us went up in the rather small elevators, and waited around in the hallway for a bit. She then lined up the first twenty people on her list. Those people went into the jury box. The rest of us sat in back.

We were introduced to the judge, the attorneys, the defendant, the court reporter and the clerk. Then the judge explained that the case was a DUI and started asking us questions. Had we any personal experience with a DUI case? Did we know anyone in the courtroom? Did we have friends or family in law enforcement? Did we have strong feelings for or against police? The twenty in the box were to raise their hands if their answer was yes. The rest of us were to remember the questions, and be prepared to tell the judge of any yes answers if we got to the jury box.

For each yes, the judge would ask the person to explain the answer, and whether would it hamper the person's ability to be fair and impartial. If it would, he dismissed the person, and one of the people from the back of the room entered the jury box, there to tell whether he or she had any yes answers so far. I was about the second person to leave the back of the room. I had a lot of "yes" answers by the time we were done, including a longish explanation of my somewhat precarious work and financial situation. But I stated honestly that Dan's death thirty years ago, my uncertainty about work, my course in business law, etc., had no bearing on my ability to behave fairly and impartially. I stayed.

There were a lot of yeses from other people, too, and the pool in the back of the room dwindled to about three people by lunchtime. Nearly everyone in the room had some kind of DUI-related experience: an arrest of themselves or a relative, cars totaled by others, friends or family injured or killed. Nearly everyone mentioned having had a home burglarized when the question was about being the victim of a crime. Sometimes the yes answer made no difference, and people stayed. Then the two lawyers asked follow-up questions. The defense attorney, who has a famous Arizona surname, asked me more about my work situation. I explained further, but admitted I'd only been out of work for a week and was not in dire straits financially. Shortly after that, the judge conferred with the two lawyers, and then announced that everyone still in the jury box was found to be capable of judging the case fairly. The three people left in the back were sent downstairs, back to the jury pool. There was a lunch recess, and then we learned which eight people out of the remaining twenty were to be jurors. I'd had a feeling I was to be one of them. I was right.

The trial started right away. The state called three police and the defendant's brother to testify. (I'll explain the case itself in a bit.) We were allowed to take notes, and even pass up questions to be asked if deemed legally acceptable. At 4:30 we knocked off for the day. I walked outside, and was immediately accosted by a drunken guy who wanted food money, and could not understand or believe me when I explained that I only had five dollars, and that the parking garage was about to charge me five dollars for having left my car there since 7:30 AM. I finally got away, only to find myself waiting at the same crosswalk as the defendant and his brother! Having heard the pretrial instructions about avoiding contact during the case, I hung back, and even took a different route back to the parking garage, only to see the brothers again as I neared my goal. I stayed well away, and did not hear a word they said, or even whether they spoke at all.

If took me a while to get back to the office, what with all the walking and avoiding, plus the beginnings of rush hour traffic. I checked in with a co-worker, left a note for my boss and went home.

The old and new county courthouses, seen from the municipal garage

Wednesday morning I got up early again, and worked at the office from 8:00 AM to 10:00 AM to put a dent in my backlog of work, and to show my commitment to the job. I was due at the jury deliberation room at 10:25 AM. It took me almost 20 minutes to find my way to the right parking garage, (which was closer than the one from Tuesday, plus they validate parking so it was only $2.00 instead of $5.00). I knew where it was, but the maze of one way streets and the lack of an entrance from Church Street made it very difficult to get into that garage. Even when I got in, I had to drive and drive, nearly to the top, looking for a parking space. With only five minutes to cover the two blocks to the courthouse and get up to the third floor, I ran as much as I could, puffing like a steam engine. I got there before the bailiff, so it was okay, except for the burning sensation in my lungs and a lingering cough.

The second day we heard from policeman #2 again in light of the testimony from policeman #3. The other two witnesses were a criminalist in charge of testing the breathalysers and someone in charge of MVD recordkeeping. The defense called no witnesses, and the defendant did not testify. Then there were more instructions, the selection of a foreman, lunch, and deliberation.

Here is the gist of the case:

In December, 2006, the defendant (we'll call him D) went out to dinner with his Wall Street trader brother (we'll call him B), visiting from New York. D says he had four ounces of wine at dinner. B says that D had a beer with his burger. They then went to the Rialto downtown to see a band. B says he thinks D had one drink at the Rialto, but was not impaired. According to the police and the defense lawyer, D claims he had no drinks there

Shortly before 1:15 AM, the brothers left in B's rental car, with D at the wheel. (D was not on the rental agreement.) The reason given was that B didn't know downtown Tucson, so he had his Tucson resident brother drive. About 1:15 AM, D turned north onto a stretch of Stone Ave that is one way south. The only other person on the street was a policeman on a motorcycle, heading for the station to finish paperwork on another case. The policeman turned around, got behind the car, and put his lights on. D drove two full blocks the wrong way on Stone, passing Pennington (a right turn on which would have been the correct direction for that one way street), and turning right on Alameda - which meant he was now going east on a street what was one-way westbound. He went a quarter of a block and pulled over.

The cop asked D for his license. D handed him B's license, and said that he (D) was B, visiting from NYC and unfamiliar with Tucson's downtown grid. Cop #1 gave D a field sobriety test called Horizontal gaze nystagmus, or HGN. This is the test that involves following a pen or something with one's eyes. There are six possible ways to be marked off on this test. D failed all six.

Shortly after this, policeman #2 arrived, and administered the heel to toe test. D failed 7 out of 8 checks on that one, and refused to take the third test, the one leg stand. Somewhere about this time, D admitted he was D, and not B after all. When the policeman informed him that he was driving on a suspended license, D claimed that that had "been taken care of" and was not suspended. Cop #1 went on to the police station, and cop #3 arrived to administer the breathalyser test, which he was certified for and carried in his car. D blew a .299 the first time, a .286 the second time. Legally impaired in Arizona is .08 or higher. Some people go into comas with alcohol poisoning at the level this guy tested at.

Here was the defense: although D was personally served with a notice of suspension in late 2002, and attended a hearing to contest it, he didn't know it was suspended because (supposedly) the followup letter was mailed to an outdated address. Legally, it is up to the driver to notify the MVD of address changes, and in fact D did so - the day before he drove north on southbound Stone, nearly four years after that letter was sent out. No one made any statement about when the guy actually moved. As for the .299, the defense said it must have been wrong, since he didn't have more than a drink or at most two all evening, and wouldn't have been able to make a competent right turn (from the wrong way on a street to the wrong way on another street) at .299. But the equipment was tested at the beginning of December and the end of December, and passed, and passed a bunch of internal checks during the test itself. For the guy to be totally not guilty,

• the equipment would have to have suddenly showed more than four times as much alcohol as was truly present, despite many diagnostic checks;
  
• cops #2 and #3 would have to be wrong about D having bloodshot eyes, alcohol on the breath and a stagger;
  
• D could not be expected to know that his license was suspended after being served with papers and attending a hearing about it (a guilty finding on the indictment requires that the defendant knows or should have known about the suspension); and
  
• he would have to have had an unsteady gait and problems with his eyes functioning through extraneous factors such as allergies or nervousness.

Uh-huh. Sure. Is the almost nonexistent evidence for this massively unlikely scenario sufficient to instill reasonable doubt about the guilt of a guy who tried to pretend he was his own brother, and that hadn't had a drink in five hours? I don't think so! Guilty, guilty, guilty!

There was one person on the jury who was a little hinky about the equipment's reliability due to the high reading, but she eventually conceded that her doubt was not reasonable. So we went in and gave the verdict, the judge thanked us, and we walked out again. We were done - almost.

We weren't required to stay for the next bit, but nearly everyone did. The judge came to the jury deliberation room, and we were allowed to ask questions about the case and the process. We asked about whether suspensions expire (yes) and whether you had to do something to make the license valid again (also yes). We also asked about the equipment. The judge said that every time a new model comes out, it fixes the previous model's problems. Defense lawyers then challenge the validity of the new equipment, that is fought out in the courts and then the equipment is ruled to be reliable. The judge felt that the current model was extremely reliable.

And we asked why, given that the defense had very little to offer, why the case had even gone to trial. The judge explained that the aggravated DUI over .08 on a suspended license carries a minimum 4 months in prison before probation. For a drinker who nevertheless functions well enough to hold down a job, and who can afford the attorney fees, that's an unpleasant enough prospect that the person will try anything possible to avoid or delay the jail time. That was sort of sad, but the fact remains that the guy broke the law, repeatedly, lied through his teeth, and was trying to duck the consequences or his actions. Under the law, we did the right thing.


I have just a few more photos to show you tonight as I wrap up this long-winded entry. This building, across a park from the old pink courthouse, is a really interesting shape. I think it's the Main Library for Tucson and Pima County.


Here's another extraordinary view from the parking garage, taken after the trial was over. I was back at work by 3:45 PM. This photo is looking north toward the Catalinas. You can see a freight train going by in the middle left of the photo.



And here's yet another view from that parking garage, this time looking west toward the Tucson Mountains.

Enough. Must sleep now. Good night!