Lex Friedman blogs here.

Lex is the EVP of Sales and Development for Midroll, the world's best podcast advertising network.

He was previously Macworld's senior writer, and continues to contribute to the publication. He is the cohost of the Not Playing podcast, a cohost of the Turning This Car Around podcast, a cohost of the The Rebound podcast, and the sole host of the Your Daily Lex podcast.

Lex's first book, The Snuggie Sutra, is exactly what it sounds like. His most recent book is a Dr. Seuss parody for adults; it's called The Kid in the Crib.

You should follow him on both Twitter and App.net.

Lex would be delighted to speak at your awesome event.

One Angry Lex

After thirteen days of service, I have completed my civic responsibility to the state of New Jersey: My jury duty is over.

Folks tend to dread getting summoned for jury duty. I’ve been called twice now; once in LA, and once here in Jersey. Both times, I was selected to serve on a trial. I don’t appreciate the interruption to my work life, but I’m not on board with the notion of getting out of jury duty when it’s not absolutely necessary, just because it’s an annoyance. Were I ever wrongfully accused of a crime, I’d want bright, astute jurors to sit in the box to judge me—not just the folks too dopey to find a way to get dismissed.

In other words, I don’t force my way out of jury duty. I answer voir dire questions openly and honestly. If I’m booted, that’s fine; if I’m seated, that’s okay, too.

* * *

On this case, many potential jurors—dozens—sought to get dismissed. That’s partially because the trial was expected to take six days, and it’s partially because of the charges alleged: sexual molestation of young girls. Objecting to the case based on its focus was a “Get Out of Jury Duty Free” card, and many folks played it. I understand why.

Ironically, even before I knew what the charges would be in the case, before the judge had spoken a word, I noted one skeevy looking fellow potential juror in the courtroom. I pointed him out to a new friend seated next to me in the galley. We joked that this juror was the guiltiest looking dude in the courtroom because he kinda looked like a pedophile. Oops.

The judge in this case was a good guy, and he tried hard to set reasonable expectations for time—what time we’d start or resume hearing testimony, how long breaks would be, how long the trial itself would take after certain changes occurred, and so on. He failed miserably at these predictions.

I’ll admit that I felt frustrated early in the case when, after the opening witness’s testimony and our lunch break, we were never brought back into the courtroom. (Instead, we sat in the jury lounge from lunch through 4pm, at which point we were dismissed.) The following day, we returned to the courthouse, only to get dismissed (without hearing any testimony) around 10:30. The wheels of justice were turning slowly, and we weren’t even in the car.

The judge frequently apologized for these delays, which I appreciated. He more clearly apologized for them today, after the trial’s conclusion, assuring us that they (he and the lawyers on each side) were steadily working on the case even in our absence. I believe it. That doesn’t make it suck less if you’re the juror whose time is getting wasted.

* * *

There were two alleged victims in this case. They’re sisters. They claim that the defendant, Mom’s then-boyfriend, touched them inappropriately in the places you’d imagine, and that he did so regularly over the course of four years.

One of the two alleged victims sandbagged her case from the get-go. She changed her story—first reported to detectives a year ago—the week before the trial began, while the jury was being seated. In the witness box, she testified that she further corrected some of her earlier reports to a woman from the Child Advocacy Center, a division of the state prosecutor’s office. That woman sat in the galley throughout almost all of the trial.

She later testified, when called by the defense, that in fact the alleged victim had never called her.

Quite frankly, I believe the defendant molested the older girl. But by sullying her testimony with lies past and present, and since the only evidence of her molestation could come from her own testimony, the witness made it impossible for the jury to find proof beyond a reasonable doubt on the charges that concerned whether she was molested.

* * *

The younger alleged victim didn’t impugn her own testimony. Nor did anyone else. She spoke emotionally yet stoically. She testified about which acts the defendant performed upon her, when, how, and with what frequency. On cross examination, her story similarly remained consistent—even with the statement she had given the police more than a year ago. During the case, this witness turned 13. It’s alleged that the sexual assaults occurred while she was between ages 4 and 8.

Though he tried valiantly, the defense attorney could not trip up this alleged victim or catch her in any lies or misstatements. There was no woman from the Advocacy Center to contradict this witness’s testimony. She was believable, moving, and compelling on the stand.

Put another way, the witness was clearly credible and quite clearly telling the truth.

* * *

We were warned before the case began that there would be no evidence save for witness testimony. During voir dire, we had to answer questions about whether we could fairly judge cases—including rendering a guilty verdict—when the only evidence would be testimony: no DNA, no photographs, etc. We also had to answer a question about whether we could convict someone based on the word of a child, if we believed that child was telling the truth.

Over time, the jurors reached consensus on the charges that related solely to the older daughter. While some (not all) of us thought her testimony contained some truth—i.e., that she had been molested—we all agreed that because of the lies she’d been caught in, we couldn’t be convinced of her story beyond a reasonable doubt.

When we took our first votes on the charges that related exclusively to the younger alleged victim, three of us voted guilty, seven not guilty, and two were undecided.

* * *

The defendant took the stand in his own defense.

A man’s freedom is on the line; horrible crimes are alleged. You don’t want to contribute to getting a man thrown in jail, and you don’t want to believe that someone could do these unspeakable things to these young girls.

You want him to defend himself. You are thrilled—and surprised—that he takes the stand. You want him to tell you how he loved the kids, took great care of them, and is flabbergasted by these accusations.

“Did you molest these kids?”


That’s when he should have sat down. He didn’t.

Were you ever home alone with the kids? No, never.

Never, not once? Well, if I came home and I was the only adult there, I would leave and go visit my other kids.

So as soon as you got home, if no other adults were there, you’d leave right away? You were never alone in the house with the kids? Maybe a few times.

A few times? Sometimes.

Okay then.

The defendant also denied that he ever acted as a parent to the kids (several charges carried more serious consequences if we found him guilty while acting as a caregiver or in loco parentis). He claimed that he never—not once—asked the kids to pick up a toy, put something way, or get something for him. He also claimed that he’d never told the kids to call him “Daddy.”

Not even once? No. It made their mother mad if I told them what to do.

Okay, but if you say that it made their mother mad if you told the kids to do something, wouldn’t that imply that you did so at least once for her to get mad at you in the first place? I don’t recall.

The state’s prosecutor also asked the defendant why the kids would make these false allegations. “I have no idea,” he said.

The prosecutor then asked if the defendant remembered speaking to the detectives who’d interviewed him a year ago. The defendant couldn’t remember whom he’d spoken to. He claimed that he couldn’t remember the detective—who had testified immediately prior—as being one of the detectives involved. He couldn’t remember what he’d told the detectives when they’d asked why the kids might make these allegations. He even claimed he couldn’t understand the questions. His attorney objected all the while.

The jurors were again dismissed from the courtroom. The defendant watched a portion of his interview on DVD; for whatever reason, the interview wasn’t admitted into evidence for us to watch ourselves. When we returned, the defendant begrudgingly admitted that he’d told the detectives in the case about The Dog Incident as an explanation for why the girls might make these allegations.

The girls, as the defendant described it to us, were asleep. The puppy was sleeping between them. He wanted to remove the puppy from their room, and may have accidentally touched them inappropriately—while they slept—in his attempt to get the dog.

And this incident, to which neither girl testified, and which the defendant alleges they slept through, apparently could explain their false allegations.

Oh, by the way: The girls actually slept in a bunk bed; the older girl got the top bunk. How the dog could be between them, and how he could make contact with both of them, and how they would remember it if they were asleep, is all beyond me.

So is how the defendant would recall such a non-incident from his perspective when talking to the detectives.

He says the kids never liked him, he never took care of them, never made them meals, never was alone with them, never was in the room with either girl alone, never bathed them, never helped them on the toilet, never helped them dress.

Just that pesky Dog Incident.

* * *

As we discuss the case in the deliberation room, there are three folks ready to convict the defendant on the charges relating to her unassailed testimony about the sexual assaults she says she suffered at the hands (and, less often, mouth) of the defendant. The three folks attempt to convince the other nine jurors to see the case there way.

I am one of the three.

Over two days, we convince six more jurors to see things our way. We now sit at nine guilty votes to three not guilty votes. The not guilty voters tell us their opinions cannot be moved.

On day three—not through browbeating or harassment, I might add—one of the not guilty voters experiences an epiphany. Another follows almost immediately. We’re now 11 to 1.

The eleven of us are ready to convict the defendant on two charges that relate to the younger girl. One of us isn’t. I’ll call him Asshole Juror, or Asshole for short.

Asshole is in his late 40s. He’s single, never married, no kids. He tells us he thinks that we’re falling for the younger girl’s lies hook, line, and sinker. He tells us that our interpretations of “proof beyond a reasonable doubt” are ridiculous. We ask him to define his. He says he needs 99.5 percent certainty.

Asshole tells us that just because the girl wasn’t caught in any lies doesn’t mean she’s not lying. On this, we agree. He also tells us that he’s not convinced the defendant lied under oath, even though the defendant a) provided different, changing answers to the same repeated question (from “never” home alone with the kids, to “a few times,” to “sometimes”), and not all of those answers could be true, and b) claimed to never once have told the kids to clean something up, put something away, or anything in that realm.

Thus the girl with the testimony into which even the defense attorney could insert no wedges or uncertainty, Asshole says, is lying. And the defendant who acted cagey and disingenuous? He was telling the truth, apparently.

What makes you doubt the girl’s veracity, we ask Asshole. “Well, the defendant said he didn’t do it,” comes the reply.

“What’s her motivation?” we ask Asshole. “I think there’s a conspiracy afoot between the mother and the daughters. I think the defendant said he was going to stop paying child support [for another sibling, one he fathered], and they got mad and set him up,” Asshole explains.

No explanation is given for why the defendant didn’t testify to the child support part of the equation. Nor is any offered for how a then-11-year-old could create a lie in a matter of hours (during which Asshole alleges the conspiracy was created), memorize it, recite it perfectly to the detectives, and never waver once or differ from that statement on the stand a year later.

Nor is an explanation provided for why, if the whole story is bogus and manufactured, they didn’t go the extra step of having someone—Mom, Sister, Third Party—”witness” the molestation and thus be able to further testify to it. In other words, why create such a shitty lie?

Asshole eventually acknowledges that he’s not sure his self-manufactured conspiracy theory works, but it’s enough for him to develop reasonable doubt, he says. He’s only 70 percent convinced of the defendant’s guilt, he says. He could convict—and would!—if some other witness could have SEEN the molestation happen. Or if the victim were older and thus somehow more credible to him.

I pressed Asshole on this. He eventually acknowledged, plainly and simply, that barring any other evidence, if the only testimony was the girl’s with no defense presented, he still wouldn’t vote guilty. He can’t convict a man based solely on the testimony of a child. And in, as Asshole described it, a he-said/she-said case, one person’s word against another’s isn’t enough; he’d need at least two folks to testify to the “she-said’s” side. He needed not another victim—which we sort of had, though one with credibility issues—but another witness.

* * *

At one point in our deliberations, Asshole came to us with a proposal. He suggested that he could vote “guilty” on a lesser alternate charge related to the lesser of the two charges concerning the victim, if we would agree to vote “not guilty”—not “undecided” or “hung”—on all the other charges. We unanimously rejected his offer.

Over the next several hours, Asshole continued to stress that we could say whatever we wanted, but he wasn’t going to change his mind. He was firmly entrenched in his view, and no debate, no reheard testimony, no anything would have any impact.

We pointed out that many jurors had changed their minds over the course of the deliberations, that two of the three longest-standing “not guilty” voters had changed to “guilty,” and surely hadn’t expected that they would do so 24—or even two—hours before.

Asshole didn’t care.

* * *

Eventually, another juror and I sent a note to the judge stating that we felt a fellow juror hadn’t answered all of the voir dire questions completely honestly. That led to a bit of a hullabaloo. Our note was read to all the jurors in open court. The judge questioned me in open court, on the record, with counsel present—advising me to ensure that my answers didn’t reveal anything about the nature of our deliberations.

He then questioned the other juror who reported the concern with me. Eventually, Asshole was called out. I wasn’t witness to what he told the judge. I imagine it went something like this:

Judge: Some jurors allege that your answer during voir dire regarding how you would interpret a child’s testimony hasn’t held up during your deliberations. Would you like to change your answer?

Asshole: Judge, for crying out loud, my name is Asshole. Of course I will like about the fact that I lied during voir dire.

We were eventually instructed to continue our deliberations with no juror changes.

* * *

We didn’t.

Instead, 3 days and five and a half hours after we began our deliberation, we gave up. Asshole couldn’t be moved.

We returned verdicts of not guilty on some counts, and hung on others. Most of the eleven of us reported these verdicts—we were polled on each count—with tears in our eyes and on our faces. Asshole, unsurprisingly, smiled wide the whole time.

* * *

This is our criminal justice system, and this is how it works. It’s not always a jury of your peers. It’s a jury of peers, plus people much smarter and much stupider than you. People better and worse than you. People well-equipped mentally to handle the process, and people who aren’t.

I’m crushed by this verdict and fearful that the state won’t retry its case on the undecided charges. I’m very concerned that a man I’m certain abused at least one girl will go free. Asshole was worried that he wouldn’t be able to sleep at night if we wrongly sent an innocent man to jail. I, of course, will be haunted that we wrongly let a guilty one stay out.

I’m as convinced of the defendant’s guilt as I am that we’d never convince Asshole to vote guilty.

It’s surely meaningless, but I’d be remiss if I didn’t point it out. That creepy potential juror I spotted before the jury selection process began?

None other than trusty old Asshole.

Posted on August 3rd, 2011