Judging the Judge: The Black Robed Attorney

This is the 2nd blog in a series on my experience as a juror in a criminal case.  The 1st blog is Judging the Jury

Trumbull County Courthouse

 

The courtroom has to be one of the few places in America where propriety is practiced.  Everyone in the court must rise and stand each time the esteemed members of the jury enter or depart.  The jury and all must stand whenever the judge enters or leaves.   Besides this courtesy however, there was very little ceremonial or ritual behavior, at least compared to what I am used to seeing in the Orthodox Church.   There are rules of behavior which govern the judge and attorneys and they keep to those strictly even when they are done merely by habit.   The judge is the only person, outside of the sheriff deputy, in the courtroom who wears a uniform,  which is patterned after the flowing black robes of the ancient philosopher. 

The judge’s position is somewhat the combination of an umpire and the Commissioner of Baseball.   It is her courtroom.  She determines a lot of what happens, especially what the jury is permitted to see, know or even remember!   She decides a lot about what the rules of the game are, though she is following a pre-determined set of rules herself.  When the attorneys dispute, the judge rules between them (again the jurors are not permitted to witness how the decisions are reached – they can only know what the decisions are even if they never were told what the dispute was in the first place; nor is the jury even told what the rules are which are governing the trial.  You are expected to accept the judge’s judgment – that is one of the few rules that are given to you before the trial).   Disputes, however little is explained to the jurors, end with the judge saying, “Proceed”  (the courtroom equivalent of the umpire shouting, “Play ball!”). 

The attorneys, as already mentioned, are always playing to the jury.  Here is where the courtroom is very much like baseball.  I am told that baseball is a game of strategy – which for me translates into it being painfully slow as each pitch thrown is part of the strategy, and many pitches are thrown for no purpose than to confuse the batter or waste time, which is a part of the strategy.  The attorneys too are enacting their strategies for the benefit of the jury, and questions however obscrure are done for some purpose.   The attorneys do want the jury to reach a certain conclusion, though they don’t necessarily want the jury to understand the strategy, or even to be aware that all that is happening is part of the strategy.  If you pay attention to everything the lawyers say, you find yourself very frustrated, especially in their questioning witnesses as they throw many curve balls, fastballs and sliders, not to mention a few knuckleballs and even a few spit balls just to confuse the witness (or worse they keep throwing the ball to the first basemen to keep a runner close to the bag which seems to do nothing but prolong the trial).  Sometimes the jurors are confused about who the “he” is who is now being discussed, but the jurors can never ask questions to clarify things.  For part of the strategy is that when the juror meets to decide the case they have to rely solely on what they remember was said in court.  And if the intention of the attorneys was to leave a point confused so that the juror’s deliberation will be confused and inconclusive, this adds to the mix of how decisions are made or missed.   

Like in baseball where the pitcher has to keep throwing pitches at the batter no matter how many balls he fouls off, attorneys also appear to be able to ask the same question 8 different ways to fit their own strategy of what they are trying to do with the jury.  There seemed to be no “Asked and answered!” limit in court.   The attorneys seem to be in no particular hurry to enact their strategy, and for this juror at least the main question at times was not “where is he going with this?” but “is there no end to this?”  This was more true of the defense attorney (which by the way, is a thankless job in a criminal case in which you are the public defender.  You may have little defense to work with, and though the defendant is presumed innocent until proven guilty, if  you win the case, the public is not very thankful that someone they presumed guilty has gotten a get out of jail free card allowing them to resume their “normal” activities). 

The defense attorney’s task in the criminal trial is not to establish the truth, but only to make the jurors have “reasonable doubt.”   The burden of proof falls totally on the prosecuting attorneys.   This is the court of the Enlightenment, skepticism rules: if you can’t overcome doubt, your case is not to be counted as true.   From that point of view it struck me that the prosecuting attorney has a much more difficult job than the defense.  The defense is not proving anything, just casting doubts.    The prosecuting attorney has to get you to believe something, the defense attorney only has to cause you to question the story or to doubt. 

Witnesses are sworn to tell the truth, but jurors are warned never to assume the truthfulness of the witnesses.  The courtroom is not a scientific experiment with perfectly controlled results.  The human element including human error, human motivations, self-interest, misunderstanding, misreading and hubris is a huge part of the courtroom dynamic.   So as in much of life where a “buyer beware” mentality is in place, the juror must rely on intuition, discernment and wisdom to evaluate what is being said.  Truth is not the goal of the proceedings, rather influencing the jurors’ thinking is the goal: the prosecutor wants to make a believer of you, the defense only needs you to be reasonably skeptical. 

Next:  Judging the Attorneys: The Art of Storytelling

Teach Us to Pray

When Jesus’s followers asked him to teach them to pray, he didn’t tell them to divide into focus groups and look deep within their own hearts. He didn’t begin by getting them to think slowly through their life experiences to discover what types of personality each of them had, to spend time getting in touch with their buried feelings. He and they both understood the question they had asked: they wanted, and needed, a form of words they could learn and use. That’s what John the Baptist had given his followers. Other Jewish teachers had done the same. That’s what Jesus did, too…” (N.T. Wright, Simply Christian: Why  Christianity Makes Sense, pg. 165)