If the 90′s were all about excess, the 2000′s are all about putting excess on trial. And with this wave, as with the last one, innocent people are getting caught in the middle. I’m talking, of course, about New York jurors, the people who once enjoyed easygoing, dim-sum-filled jury duties as a brief respite from their real jobs. No more.
Now that white-collar criminal trials are flooding lower Manhattan-the toga-filled trial of Dennis Kozlowski is ongoing, Martha Stewart’s jury selection has just started, technology banker Frank Quattrone’s retrial is coming up-every able-bodied juror within a 10-mile radius of the courthouse should be prepared to see some action … and not on the standard open-and-shut, three-day affair of yore.
I’ve just come back from the front lines after a brutal three-week-long white-collar criminal trial in which I ended up as the lone not-guilty vote, à la Henry Fonda in 12 Angry Men (more on that later). For those who have recently received that tri-fold envelope with a bold stripe marked “Jury Summons Enclosed,” along with a note in tiny cherry print stating that “willful disobedience of this summons” can get you 30 days in jail, I can say this much: Nothing you’ve done in life has prepared you for the experience. Sure, they show you a hokey video. Diane Sawyer tells you how proud you should feel to be a pillar of the justice system, and a few actors in medieval costumes throw a defendant in the water to see if he’ll float (guilty) or sink (not guilty). Lovely. But our current system isn’t exactly perfect, either. No one teaches you how to be a juror. You can’t drive without a license, but you can decide someone else’s fate without the slightest hint of a road map. Go figure.
So I’ll step into the breach. Kozlowski jurors, future Stewart, Quattrone, Enron and Adelphia jurors, here are three things to keep in mind:
1) White-collar crime-even when it’s accompanied by videos of carousing semi-clad models-is boring . Staying awake is a real issue. In the Martha Stewart trial, jury selection will probably be the most exciting part.
Take the December trial I sat through. The two defendants were Ph.D.’s in economics. Together they ran an investment-advisory firm that specialized in mortgage-backed securities, including complex derivative securities known as collateralized mortgage obligations, or C.M.O.’s. (Getting drowsy? See what I mean?) The charge was grand larceny in the first degree. Basically, the issue we jury members had to decide on was whether loans totaling $6.5 million the defendants took from one of their clients-a company whose assets they managed-were real loans (perfectly legal) or merely “loans” that no one had any intention of paying back (not legal). The defendants ended up being responsible for $2.5 million (which they repaid), but $4 million they reloaned to other companies controlled by their clients, and those loans were not repaid. (Still awake?)
Prosecutors got interested in the loans when it turned out the defendants’ clients had been running a giant Ponzi scheme that ultimately left investors holding the bag for more than $100 million.
Hmmm … risky business, but did the defendants know about the Ponzi scheme? According to everyone who testified on both sides, the answer was no. In fact, the prosecution’s main witness, one of the two creators of the Ponzi scheme who had already pled guilty, said he never told anyone about the shady side of his business. He also said he intended to repay the $4 million, and had always understood the defendants would pay their loans back. That right there seemed to put a big hole in the prosecution’s case. This could end right now, I thought. But there were still two and a half more weeks of testimony left.
Spend a few weeks staring at a diagram of a multiple-loan transaction-which our jury did until it felt like it was emblazoned on my brain-and the figures start to bob and weave. One alternate juror (as it happened, an administrative-law judge) dozed off on occasion, which would result in a court officer pointedly prodding him awake. The judge finally excused the dozing alternate from further service.
Helpful hint: Try taking up a lunch-hour hobby. Something that will free you from the endless documents and the terrible feng shui in the courtroom. On our jury, we happened to have a professional violinist. I play some too, and halfway through the trial we decided to play Bach’s Double Violin Concerto in D Minor. The bailiffs took our request for a rehearsal space seriously, and we got to use back offices during lunch hour. We gave a performance right before the jury started deliberations. It was our last happy moment as a group.
2) Don’t try to figure out what actually happened.
The judge will have told you not to make up your mind until both sides have rested, but let’s face it-everyone walks into the jury room with their own personal theories about what really happened. Who in this city has not given thought to the question of what Martha knew, and when she knew it?
The beauty of being a juror is you don’t actually have to decide that-your only job is to decide whether the prosecutor has proved the charge beyond a reasonable doubt, or not. Period. But what happened in our jury room-and it must happen all the time-is that jurors jumped to conclusions based on supposed facts that weren’t actually part of the evidence.
This, I predict, is going to be one of the biggest obstacles for all the upcoming juries. Most of us, after all, have worked in offices. We’ve certainly earned the right to spin theories about the pull of office politics: What won’t a vice president aiming for the corner office do to get ahead? Just how much power does the chief executive’s girlfriend wield? (The prosecutors in the Kozlowski case certainly haven’t missed an opportunity to put a mistress on the stand, you notice). With the actual facts at issue being so deadly dull, it’s blessedly easy to get caught up in-or invent-the drama of it all.
3) Someone has to keep order in the jury room. It might as well be the foreman.
We started out evenly split: six guilty, five not guilty, one undecided. Our first day of deliberations was marred by total anarchy- talking out of turn, constant interruptions-and it never got much better. A foreman willing to keep everyone in line might have helped. When you shut 12 strangers in a windowless room, it gets ugly fast. By the last day of deliberations, the decibel level was way up. It was 11 to 1 for the entire day, and I, unfortunately, was the 1.
Other jurors questioned my honesty. While I was shut in the bathroom on a crying jag, there were hushed conversations about sending the judge a note about me. My objection was that the prosecution’s main witness essentially exonerated the defendants. One juror said flat-out that I was being ignorant.
Luckily, I lasted until the judge decided to honor our request to be declared a hung jury. Later, our foreman-a mild-mannered computer-systems analyst who never seemed suited to the job of playing headmaster-said he “felt some relief in a hung jury” because he had “lingering doubts.”
Helpful hint: Reread Lord of the Flies before you go into deliberations.