Forty-two years ago, I was admitted to the California bar and began the practice of law. There were lessons learned that very first day. Many of us were admitted in a ceremony in the morning and made our first appearance that afternoon at status conferences in Orange County Superior Court.
In those days, the courts were severely backlogged with cases. California law required civil cases to go to trial within five years and there were courthouses that were only sending “five-year cases” out for trial. A status conference was a process that advised the courts on how timely a case was proceeding through the system towards trial and it was the perfect vehicle for new attorneys to appear before a real judge in a real courthouse in a real case and gain some real experience.
Status conferences were held before the presiding judge of the courthouse and in December, 1980, the presiding judge in Orange County was the Honorable Robert Rickles. Although I was not sure if they were related, Judge Rickles was a no-nonsense kind of judge that reminded everyone of the comedian Don Rickles.
Those that had arrived early and were appearing for status conferences that day were witness to a couple of attorneys trying to get their cases out to a trial court. One attorney, who was particularly obnoxious even for a lawyer, taught us rookies a major lesson that day: no one cares how they do it in L.A.
This attorney kept whining and complaining about his inability to be assigned a courtroom. Finally, Judge Rickles was able to somehow find a courtroom to send the case, whereupon the attorney issued a peremptory challenge to the judge assigned to the case, thereby prompting lesson number two: don’t piss off the presiding judge.
A peremptory challenge, aka “papering the judge,” can be invoked by a party once in a case to prevent a particular judge from hearing the case. It’s not a procedure to be taken lightly. Judge Rickles then informed the attorney to get his witnesses in the courtroom because he was going to try the case—starting in ten minutes. The trial started with motions in limine, which are pre-trial motions heard outside the presence of the jury and intended to limit possibly prejudicial evidence that can be presented in front of the jury. The attorney’s first motion was summarily denied. His second motion quickly denied, as well. His third motion—that was also denied—whereupon the attorney wisely asked for a few moments to consult with the opposing counsel about a settlement.
Quite a first day.
In the intervening years I only practiced law a total of twelve years before moving on to other things but there was always one thing I had wanted to do, something on my bucket list before there even were bucket lists: I wanted to serve on a jury. Fast forward forty-two years to the day and I got my wish in Department 19 of the Contra Costa County Superior Court.
I wasn’t too hopeful it would ever happen. Over the years I had been called for jury duty several times but whenever I got on the jury panel for questioning I was always excused once it was revealed that I was both an attorney and a minister. I figured the same thing would happen here but—shock of all shocks—I was picked as an alternate juror. As an alternate, I listened to all of the evidence and was on stand-by if something necessitated one of the jurors being unable to complete the trial. On Tuesday morning I was having breakfast with my wife and I mentioned I must not have been needed. No sooner had I said that when the call came to come on down to the courthouse; I was, in fact, needed to replace one of the jurors.
The case was nothing particularly noteworthy—at least as far as we on the jury knew. The defendant was charged with driving under the influence. As presented to the jury, the defendant had done a “donut” coming out of a driveway in front of a California Highway Patrol officer—turning one way out and then reversing to go the other way. A field sobriety test was conducted and he was arrested and taken to the CHP station where he tested as having a blood alcohol count of 0.10 roughly an hour after being stopped. Under California Vehicle Code section 23152(a), it is illegal to drive while under the influence, and under CVC section 23152(b) it was illegal to drive with a blood alcohol of 0.08. After hearing evidence from the arresting officer and a criminologist the jury found the defendant not guilty under subsection (a) and were unable to reach a verdict under subsection (b).
At first blush, the Department 19 courtroom of 2022 seemed very much like the Department 1 courtroom of 1980. Set up in the same manner, they even utilized the same stenographer notebooks for the jury and everyone still had trouble with the audio-visual system. There were two things that stood out, though. First, I don’t recall there being metal detectors as one entered courthouses in 1980. God knows how many times we rushed briefs to the clerk’s office at the very last minute and ran up to a courtroom like O.J. Simpson back when he was just a famous football player in an airport. Having to go through security would have changed the dynamic. Oh, and the judge did inform the jury not to read newspaper articles or talk about the case to anyone. That was standard but she also instructed us not to access the internet concerning the case, either. Back in 1980, Al Gore was just beginning to invent the internet and there was no mention of utilizing the information super-highway to assist in deliberations.
More importantly, my Loyola Law School class of 1980 (which began in 1977) was the first ABA-accredited law school in the nation with a majority of women, a fact we were all quite proud of, and whereas in Orange County in 1980 there were only a handful of female judges on the bench, by 2022 half of the judicial officers were women. I suspect the same would be true in Contra Costa County. My case was tried before Judge Colleen Gleason and both the prosecuting and defense attorneys were women, but numbers only tell part of the story.
I haven’t done the research and I have no empirical evidence to back it up, so take what I am about to say with that in mind, but I suspect the most profound difference between 1980 and 2022 is that juries are far more sophisticated today in terms of court procedure, police conduct, and the weighing of evidence than they ever were in 1980, and, with the evolution of civil society in those forty-two years, they are empowered to express that sophistication. Having lived in an era of endless episodes of Law & Order, not to mention the proliferation of gavel-to-gavel coverage of real-life courtroom dramas, today’s jurors have greater expectations for what they see and need to see in their cases. Perhaps more significantly, they are better able to assess what they don’t see.
My point was confirmed for me, at least, in one of the questions asked of jurors during voir dire, the picking of the jury members. In trying to establish the notion of innocent until proven guilty, jurors were asked to raise their hand if, while driving past a scene where the police had an individual pulled over on the side of the road, they thought to themselves, “What did he do?,” and most everyone smiled and raised their hand. I wasn’t in the jury box at the time but if I had, I probably would have raised my hand but that’s not the sentiment I would have been thinking. Having eaten dinner for years watching Law & Order reruns, and currently being a Dateline and 48 Hours junkie, rather than “What did he do?” I would have been thinking, “What’s going on here? and demanding an answer from either the evidence or my own presuppositions in the jury room.
I’m not going to reveal here the deliberations in the jury room, but I will say that the standard legal instructions given to juries need to be rethought and perhaps revised to take into account the increased sophistication and empowerment. There was an assumption that the defendant had prior convictions, which were not, of course, disclosed to the jury, and while it might be assumed disclosure of such information might be prejudicial to the defendant, it was not the case with this jury. There were also things the jury was expecting to see, like the entire video of the traffic stop, including the field sobriety testing. Having only been given snippets, the assumption inside the jury room was that things were being hidden from the jury and that weighed in favor of reasonable doubt.
So, at the end of the day, was justice committed? In our constitutional system of justice, where reasonable doubts are resolved in favor of a not guilty verdict, the answer is, yes. If the purpose of the trial was for an impartial fact finder to determine actual truth? In other words, was the defendant innocent? Perhaps not. Would I want to serve on a jury again? You betcha!