A Dispatch From the Jury Pool

FOR about 10 years now, Massachusetts has had a simplified jury system referred to as a "one trial or one day" system. Almost everybody serves, but almost nobody serves for very long. It's a good way to keep the public in touch with the court system.

And so it was that I found myself the other day in the jury box, as "foreperson," no less (such is the wonderful gender egalitarianism of the commonwealth) hearing the case of a man accused of drunken driving.

We are torn between the desire not to have to judge our fellowman and the recognition that we yet must judge. The punishments of the court system are society's instruments, however crude, for controlling the unacceptable behavior of its members.

Drunken driving - "operating under the influence" - is taken more seriously than it used to be. Experiences in other countries, where the legal limits on alcohol consumption for drivers are stricter, suggest that however ingrained the problem of alcohol abuse itself may be, strict law enforcement can at least help keep people from driving drunk.

From the opening statements of both sides, the broad outlines of the case emerged: A group of buddies celebrating the forthcoming wedding of one of them traveled from a private club to a bar to another bar. By the small hours of a Saturday morning, they were making for a local pancake house accessible via the kind of tangled routing that has made "You can't get there from here" a proverbial expression in New England. Their car jumped onto the median strip briefly and then was maneuvered back onto the roa d. They proceeded a short distance before peeling off into a small parking lot to inspect the damage to the tire.

There the arresting officer, who had passed the men's car from the opposite direction when it jumped the road, caught up with them. After engaging the man who had evidently been the driver in conversation, the officer suspected him of having been drinking; when the fellow was unable to walk a straight line to his satisfaction, he put on the handcuffs and brought him to the police station.

The commonwealth's argument was that the car had left the road because of lack of control by the driver. The defense attorney countered that a tire had blown. But then why were the ostensible driver's first words to the officer (as reported by the officer), "I did a stupid thing," and not, "Something happened to my tire," or something like that?

What followed was a modest but useful example of the fact that there really are two sides - at least two - to every story. At points the defense attorney seemed to be seeking repeal of the laws of common sense: What does "wobbly on his feet" mean, officer? Have you ever seen my client before to know how he usually stands? What do you mean, slurred speech? How does he usually sound when he talks? Was the smell of alcohol the result of the defendant's having had too much to drink - or of a beer spilled on the front of his shirt in a crowded bar?

And all this, of course, is exactly what a defense attorney is supposed to do.

We came back in the morning primed to hear the rest of the story, frankly curious to know what the defense witnesses would say, how they would argue away the state's charges. We gathered in the jury room and waited. And waited. And waited, while the lawyers conferred with the judge on some defense motions filed overnight.

And then we were led back into the courtroom for an anticlimax: The judge thanked us for our willingness to serve but announced that there would be a mandatory finding of "not guilty": The arresting officer had not adequately verified that the defendant had indeed been at the wheel.

It seemed fairly clear that the defendant was drunk, if not falling-down drunk; his own lawyer acknowledged that alcohol had been consumed. But jurors must find on the basis of what the state proves; if the state did not bear the burden of proof, the contest of state vs. individual would be unfair.

The episode was a "victimless crime" that could have been a tragedy. I want to believe the defendant - and his buddies - will learn from his close call. And so it was that we could accept a finding of not guilty "on a technicality," and still feel satisfied that justice was done.

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