In the 1957 film Twelve Angry Men, Henry Fonda portrays the lone dissenter on a jury whose other eleven members all favor a guilty verdict. To my dismay, I found myself in just that position recently.

 

In the early morning hours of October 12, 2008, gunfire broke out at an AM/PM mini-mart located at the intersection of 65^th Street and 4^th Avenue in Sacramento, California. Unbeknownst to those gang members involved, the shooting was recorded by a parking lot surveillance camera. More than three years later, on October 26, 2011, I and eleven other jurors gathered in a Sacramento courtroom to figure out who was responsible for the shooting. Each of our two defendants was charged with seven counts of attempted murder plus a whole menu of additional charges: committing a felony while part of a criminal gang, shooting into an occupied vehicle, disturbing the peace, attempted manslaughter, etc.

 “The incident was alleged to involve members of two rival African-American street gangs, KillaMOB and FAB (the prosecutor would tell us that FAB stood for Fourth Avenue Bloods, but his star witness said it stood for Fuck a Bitch). The judge instructed us not to visit the crime scene, search for information related to the crime on the internet, or do any investigative work of our own. I didn’t know it at the time, but a previous trial involving several of the same defendants was under a cloud of controversy because one of the jurors had posted comments about it on Facebook while the trial was ongoing. One night, after jury duty, I came home and Googled the names of the defense attorneys just so I could get the spelling correct in my notes. The next day in court the judge, although he mentioned no names, looked directly at me and said, “Ladies and gentleman of the jury, let me remind you that you are absolutely forbidden to look up anything about this case on the internet – is that understood?” After that, I was afraid to even go online again until after the trial ended. 

The trial was complicated. It involved five defendants and two juries. My jury (always referred to by court officials as “the yellow jury” because of the color of the badges we wore) was charged with determining the guilt or innocence of only two of the defendants, Ornelle Anthony and Ryan Malcolm. The fate of the other three defendants was in the hands of “the green jury.” There was only one jury box in the courtroom, so on alternate days my jury was required to sit in the elevated first rows of the gallery – an area known as “the risers” – while the green jury sat in the jury box.

 

Both juries had difficult tasks, but the yellow jury’s was arguably more difficult because one of our defendants, Ornelle Anthony, never appeared on the security video, while our other defendant, Ryan Malcolm, was never seen on camera doing anything overtly unlawful.

 

Each of the five defendants had his own defense attorney, which meant that each prosecution witness would be directly examined by the district attorney and then cross-examined by five different defense attorneys. Every time the defense attorneys got done trying to destroy the credibility of a witness, the prosecutor had an opportunity to repair the damage done. But if he availed himself of that opportunity, he opened up the door to another round of cross-examination. Each of the prosecutor’s two eyewitnesses spent about six hours on the witness stand, although those hours were spread out over a couple of days and interrupted by regular breaks.

 

The prosecutor was Jeff Hightower of the Sacramento District Attorney’s office. His case against the accused consisted primarily of three things: the testimony of one of the FAB shooting victims, the testimony of a KillaMOB accomplice-turned-snitch, and the video recording of the events. On a TV legal drama, this would have been an unbeatable trio: an insider willing to turn against his partners in crime, an aggrieved rival gang member eager to see his assailants punished, and an impartial mechanical observer incapable of lying. But real life is rarely as tidy as episodic television. As I listened to the D.A. describe his evidence during the opening arguments, I imagined the case would be fairly easy to decide. But 43 days later, when the forewoman handed our final verdict to the judge, I felt as if I’d been through a heavyweight fight with eleven opponents. I spent the last two weeks of that period locked in a room with a bunch of near strangers, all of whom were determined to get me to change a “not guilty” vote to “guilty.” And until you’ve been the lone holdout on a jury of twelve, you have no idea how lonely and unsettling that position can be.

 

 A VIOLENT ENCOUNTER 

Exactly what happened at that AM/PM on October 12, 2008 remains unclear, but here’s a rough summary of the D.A.’s allegations: At about 2:13 a.m., ten members of the KillaMOB gang left a party at a nearby apartment complex called The Verge and split up into three cars – a white ’91 Lexus, a white Cavalier, and a black Dodge Charger. Before driving off they agreed to reconnoiter at a nearby AM/PM to figure out what to do with the rest of the night. About a minute later the cars, lead by the Cavalier, prepared to enter the AM/PM parking lot just as a black Dodge pickup truck carrying seven alleged FAB members was about to exit the same driveway. As he approached the driveway of the AM/PM, the driver of the Cavalier made an aggressive move to briefly block the path of the truck. Then he pulled the Cavalier into the driveway and stopped it alongside the truck. At that point, backseat passenger Ryan Malcolm exited the Cavalier and began to verbally harass the FAB members in the truck. The black Charger, driven by alleged KillaMOB member Xavier Whitfield, arrived at the AM/PM’s entrance right behind the Cavalier. When the Cavalier came to a sudden stop alongside the FAB truck, the Charger was forced to stop in the street just beyond the driveway. A few seconds later, the white Lexus arrived on the scene, driven by alleged KillaMOB member Ravneel Atwaal. Seeing that the path around the driver’s side of the FAB truck was blocked, Atwaal proceeded to enter the parking lot on the other side of the pickup, the passenger side. Once the Lexus had entered the parking lot, the driver of the truck had ample room and time to drive away. Unfortunately he kept his vehicle in place and a verbal showdown ensued between the occupants of the Cavalier and the truck. About thirty seconds later, according to the D.A., Ornelle Anthony climbed up out of a passenger-side window of the Charger and fired shots across the roof of the vehicle into the front of the FAB truck. Excited into action by Anthony’s gunfire, another defendant, Trevor Williams, reached inside the Cavalier for a handgun and then fired across the roof of the Cavalier at the FAB truck, which by then was fleeing the scene.

 

Because there were seven people inside the FAB truck, all the occupants of the Cavalier and all the occupants of the Charger were charged with seven counts of attempted murder.

 

The prosecutor’s first witness was Tyrone Wilson, the driver of the FAB truck. He was shot in the lower back as his truck fled the AM/PM and was later treated at a nearby hospital and released the following day. Physically, he didn’t fit the Hollywood stereotype of a gang member. He was six-feet tall but weighed only 140 pounds. He was the only one of the truck’s seven occupants who bothered showing up in court to accuse his alleged assailants of attempted murder. The two juries were never told why none of the other “victims” came to court to aid in the prosecution of the men who allegedly tried to kill them. And even Wilson was an incredibly reluctant witness. Earlier in the year, he had been arrested on two separate occasions for carrying illegal weapons. He agreed to testify in the trial of the five alleged KillaMOB members only to reduce his sentences on the weapons charges. He wasn’t an especially helpful witness. Under direct examination he told the prosecutor that he had almost no memory of the events any more and that he didn’t recognize any of the five defendants sitting before him in court. When Hightower asked him if he remembered the black Charger, Wilson said no. When Hightower asked him if he remembered the white Cavalier, Wilson said no. In order to put together a narrative of the events at the AM/PM, Hightower was forced to rely on previous statements made to the police by Wilson. This was a tedious process that involved exchanges like this:

HIGHTOWER: Do you remember telling Detective Saario on December 2, 2008 about a black Charger that was stopped in the middle of 4^th Avenue?

WILSON: No.

HIGHTOWER: Would it refresh your memory if I showed you a transcript of that interview with Detective Saario?

WILSON: I guess.

HIGHTOWER: (handing Wilson a fat binder and pointing to the relevant passage of the interview) I want you to read those lines I have indicated quietly to yourself. (A pause while Wilson, who claimed he hadn’t read more than 100 pages in his entire life, slowly reads the relevant lines and then hands the transcript back to Hightower.) Now, Mr. Wilson, do you remember telling Detective Saario that there was a black Charger in the suicide lane of 4^th Avenue.

WILSON: If that’s what it says, then I guess so.

 

After an hour or two of direct examination by the prosecutor in this manner, the witness was cross-examined by each of the five defense attorneys in the same manner. This was followed by more direct examination and then five more cross-examinations. Many of the witness’s answers consisted of barely audible “yeah”s and “no”s. He appeared to be fighting a cold and many of his answers were drowned out by his constant loud sniffing noises. His voice lacked strength, perhaps because he still carried a bullet in his back, located a quarter of an inch from his lungs, which sometimes caused him breathing difficulties. The court reporter frequently asked him to speak up. The judge frequently asked him to clarify an answer. For instance, if Wilson was asked, “You didn’t see anybody get out of the Charger?” and responded “Yeah,” the judge would ask him. “Was that ‘yes you did see someone get out of the Charger’ or ‘yes you did not see anyone get out of the Charger’?” After about six hours of this, the jury was left with a small handful of cherry-picked facts about the incident, many of them contradictory. We learned that Wilson had lied about the incident to the police on several occasions. We learned that his truck sustained front-end damage when a light-skinned African American perched in the window of the back passenger seat of the Charger fired a silver gun across the roof of the Charger. We learned the names (or at least the nicknames) of the six other people in the truck. We learned that an apparently drunk individual exited the back of the Cavalier and started talking trash at the occupants of the truck. And we learned that Wilson’s truck was stolen and destroyed a few days after the incident and therefore could not be used as evidence in trial.

 

 DOWN THE RABBIT HOLE 

To the non-lawyer, jury service can seem like a trip to Alice’s Wonderland, a place where the meanings of words can change randomly and the contradictory is commonplace. The judge explained to us that, in a courtroom, certain words are used differently than they are in ordinary life. For instance, in ordinary usage “malicious” means merely “a desire to see harm befall another,” whereas in a courtroom it describes an act “specifically intended to cause harm to another.” Likewise, “willful,” which usually just means “stubborn” (as in “a very willful child”) in a courtroom always means “intentional.” What’s more, certain words that are vital in the world of fictional sleuths and lawyers have no place in a real courtroom. “Motive,” which, along with “means” and “opportunity,” forms part of a sacred trinity in the world of Perry Mason and Hercules Poirot, gets no respect in a real courtroom. As the judge informed us, “The prosecutor has the burden of proving each defendant’s guilt beyond a reasonable doubt, but he is under no obligation whatsoever to establish any kind of motive for the crime.” In the real world crimes are often committed for no reason at all.

 

There were other linguistic challenges as well. Just as Alice had to adjust herself to a world of Jabberwocks and frumious Bandersnatches, we pale-skinned jurors had to learn the names of various African-American hairstyles with which we were unfamiliar. In the transcripts of the early police interviews, before the identities of the defendants were known, the defendants were often described only by the way they wore their hair, making it necessary for the district attorney to school us in the fine distinctions between such terms as “twisties,” “singles,” and “dreads.” What’s more, every gang member seemed to have at least one nickname and some of them had two or more. Thus we had to keep track of nicknames like Reno and Mythical and E-Miraculous and Poodah, all of which tended to be used interchangeably with the defendants’ real names. On the witness stand, Tyrone Wilson told us that the KillaMOB members were “mean-mugging” him and the passengers of his vehicle. With the aid of the prosecutor, he eventually defined “mean-mugging” as “making angry faces at.”

 

Even the court reporter’s stenograph machine can be a source of amazement in the looking-glass world of American jurisprudence. I sat in the front row of the jury box, close enough to read the court reporter’s computer screen over her shoulder. At one point a witness described a defendant as looking like a Samoan. But on the computer screen the witness’s statement morphed into “He looked like a semiautomatic money.” I was startled when I saw the words come up. How could a professional court reporter commit such a bizarre typographical error? But at the very next break in the proceedings, the reporter went back to the appropriate place in the transcript and changed “semiautomatic money” to “Samoan.” Later, in the deliberation room, she explained to me that court reporters create a lot of two- and three-letter codes for words they encounter frequently during the testimony of witnesses. “SA” was this reporter’s code for “semiautomatic” and “MO” was her code for “money.” Thus, when she typed “Samoan,” “semiautomatic money” appeared on her screen. How she was able to simultaneously listen to the testimony, type it out in code, and then have the presence of mind later on to recall all the glitches in the transcript that needed to be corrected, I will never know.

 

For me, one of the most troubling linguistic aspects of the trial was the way that the prosecutor tried to get us jurors to believe that the word “validated,” when used in reference to a gang member, was synonymous with “convicted.” The groundwork for this verbal switcheroo was laid during the testimony of Detective Brian Bell, one of the Sacramento Police Department’s leading experts on African American street gangs. Bell testified that the SPD uses a system in which young African American men are “validated” as members of a gang if they meet any two of eleven criteria which the department uses to identify gang members. One of the criteria is wearing gang colors, such as red, which is the color of the Bloods. Another criterion is wearing a hairstyle – such as “twisties” or “singles” – that is popular among gang members. Defense attorney Keith J. Staten, the only African American attorney involved in the case, seemed especially disturbed by this system of validation. “So if an African American wears a red shirt and twisties in his hair and he’s seen by a police officer,” he can be validated as a gang member?” he asked Bell. Bell waffled a bit, saying that hairstyle and clothing were actually different parts of the same criterion. But it seemed clear from Bell’s testimony that if an African American male were to walk down the street in a red tee-shirt and stop to ask the time of someone who happened to be a member of a criminal street gang, he could be validated by the SPD as a likely gang member (having qualified on two counts: wearing red clothing and conversing with a known gang member). This struck me (and no doubt Staten) as blatantly racist. I, a white man, could perform the exact same act – unknowingly asking a gang member for the time while wearing a red shirt – as an African American, but only the African American would be “validated” as a potential gang member by the police. Staten asked Bell, “Is there anyway for a person to know that he has been validated? Do the police let a validated individual defend himself in court against the charge of being a gang member?” Bell said that validation is just a way for the police to keep tabs on potential gang members. But it was clear that the prosecutor wanted the jurors to believe that “validation” by the SPD was tantamount to proof of gang involvement by an African American male. Even after Bell left the stand, the prosecutor repeatedly referred to the defendants as “validated” gang members, in a way that seemed to suggest that their gang affiliation had been proved in court when in reality it had only been alleged. A person who has been convicted of gang membership has had a chance to disprove the allegation in court. A person who has merely been validated by the police as a gang member has had no such opportunity. But it seemed to me as if the prosecutor was hoping that by repeatedly hammering on the phrase “validated gang member” he might be able to plant the notion in some jurors’ heads that the defendants had been officially proven to belong to a criminal street gang.

 

The prosecutor’s second witness (and the only one capable of positively identifying the defendants) was Ravneel Atwaal, the driver of the white Lexus and an alleged member of KillaMOB. He was roughly the same age as the defendants, 21, about six feet tall and not exceptionally muscular. He must have been fairly strong, however, because three weeks after the AM/PM incident, on Halloween night of 2008, Atwaal was videotaped by security cameras as he participated in the brutal beating of a rival gang member at another Sacramento gas station. He faced a 23-year jail sentence for that incident but the D.A. offered to reduce it to seven years and eight months if he testified truthfully at the AM/PM trial. Wilson may have been a reluctant witness, but Atwaal was a downright unreliable one. Although he was much more animated than Wilson, and his answers were generally longer and more detailed than Wilson’s, many of the things he said were contradicted either by the videos we watched or by his own previous statements. He claimed that the Charger entered the AM/PM parking lot before either the Cavalier or the Lexus (the video showed clearly that the Cavalier entered first). He claimed that he stopped his car alongside Wilson’s truck for about three minutes (the video showed that he never stopped the car and that it was alongside Wilson’s truck for only a few seconds). He claimed that after driving behind the AM/PM building, he turned his car between the first row of gas pumps and the front of the building (the video from another security camera showed that his car was never between any of the pumps and the building). He claimed that he parked his car for a couple of minutes and watched the shooting unfold (various video cameras showed that he put himself in a position to see the shooting only about two seconds before the first shots were fired, and that the entire incident lasted only about fifteen seconds). He claimed that the first shots came from the shooter at the Cavalier and that the shots from the Charger began only after the shooting from the Cavalier had stopped (this was contradicted by Wilson, who testified that the first shots came from the Charger, and also by the video, which showed that the Charger was already fleeing the scene by the time the shooting from the Cavalier concluded). Atwaal swore that the defendant Trevor Williams rode to the AM/PM in the backseat of the Cavalier and that Williams was the person who shot over the top of the Cavalier, but the video clearly showed that the shooter was the person who got out of the front passenger seat of the Cavalier. By my count, Atwaal’s testimony contained at least ten serious discrepancies and dozens of minor ones.

 

Perhaps the most troublesome piece of information elicited from Atwaal was his claim that a young man named Emmett Pickford was sitting in the back passenger-side seat of the Charger during the AM/PM incident. This would place Pickford in the seat that Wilson said the Charger’s shooter rose up out of before firing at his truck, casting doubt on the DA’s claim that Ornelle Anthony was the Charger shooter. Thus Atwaal, during the course of his testimony, placed Anthony in a position where he couldn’t possibly have been the Charger shooter identified by Wilson, and he placed Trevor Williams in a position (the back passenger-side seat of the Cavalier) where he couldn’t possibly have been the Cavalier shooter seen in the video. If those contradictions aren’t valid causes for reasonable doubts about the witness’s credibility, then I clearly don’t understand the concept of reasonable doubt.

 

A lot of things about the story that Atwaal told in court sounded suspiciously convenient for the prosecutor’s case. Atwaal claimed that just as the ten KillaMOB members were leaving the party at The Verge, Ornelle Anthony showed a silver revolver to the people he was with. This struck me as odd. In Atwaal’s crowd, carrying a gun isn’t all that unusual. There was no real reason for Anthony to show it when he did. What’s more, if he had flashed it a few seconds earlier, before the gang had left the party, other people at the party might have seen it. A few seconds later, and Atwaal, who departed The Verge in a different car than Anthony, never would have seen it. As it happened (or at least as Atwaal claimed it happened) no one but Atwaal and the five defendants in the case actually saw Anthony flash a gun as he left The Verge. And since none of the defendants ever took the witness stand, Atwaal’s claim that Anthony had a gun on him that night, went unchallenged in court. But not only did Atwaal conveniently see this gun during the brief window of opportunity that allowed him to make his claim unchallenged by anyone else, he also remembered that it was a silver gun. This was convenient because a black gun held above the roof of a black car in the hand of a black man on a dark night would have been virtually invisible to the victim, Wilson. It was also convenient that Atwaal remembered seeing a revolver rather an automatic in Anthony’s hand, because no spent bullet shells were found at the AM/PM (a revolver retains its shells; an automatic pistol would have expelled them into the street). It was also weirdly convenient for the prosecutor that it was Anthony and not one of the other four defendants who flashed this gun as the group left The Verge, because all four of the other defendants possessed roughly the same dark skin color. Anthony, whose skin tone resembles President Obama’s, was the only one of the five defendants whose skin tone would have distinguished him from the others. If the victim, Wilson, had described seeing just “a black guy with a muscular build,” the police and the district attorney would not have been able to pin the Charger shooting on a specific individual in the group. Thus Ravneel Atwaal came across as Puff the Magic Witness: he not only spotted a gun in Anthony’s hand during the brief time frame necessary to avoid being contradicted by the other partygoers, he saw exactly the color of gun necessary to explain how the witness saw it in the dark, exactly the type it would have to be in order to leave no shells behind, and he placed it in the hands of the only defendant whom the victim could possibly distinguish by his skin color. What’s more he (and Wilson) claimed that the gun was fired during the brief ten-second period of time when the top part of the black Charger was blocked from the view of the camera by the canopy of a low-hanging tree, and he placed the shooter in the only position he could possibly have fired from (atop the Charger) and not been seen on video. Were these coincidences, or were they signs that the lead investigator on the case, Detective Saario, helped to craft the testimony of both Atwaal and Wilson?

 Neither Atwaal nor Wilson was especially articulate, but neither came across as stupid. On some matters they were easily tricked by the defense attorneys. Both men told the prosecutor that they saw someone shooting from the Charger, but each man, when asked by a defense attorney some variation of the question, “Isn’t it true that you never even looked at the Charger because all of your attention was focused on the activity around the Cavalier?” answered “yes,” thus contradicting his previous statement to the prosecutor. (A linguist might point out that “Isn’t it true” is another way of saying “Is it not true,” and therefore by answering “yes” to such questions, the defendants were actually saying, “Yes, it is not true that I never looked at the Charger…’ But that kind of sentence parsing just leads us back down the rabbit hole into a Wonderland of word mysteries.) But though much of his testimony may have been questionable, each eyewitness had a few topics on which no amount of defense-attorney hectoring could alter his story. The defense attorneys tried repeatedly to cast doubt on Wilson’s credibility by asking him to describe over and over again the damage his truck sustained during the shooting (suspiciously, the truck was stolen and destroyed a few days after the incident and wasn’t available as evidence). Wilson described the multiple bullet holes and deflection marks and shot-out windows and broken vehicle lights and interior damage with perfect consistency over and over again, never varying a single detail. Atwaal, despite persistent efforts by defense attorney Kelly Babineau to trip him up, was consistent whenever he gave an account of where each of the gang members in the three KillaMOB vehicles was sitting. Also interesting was the way Atwaal, whose vocabulary was generally limited, would occasionally produce a phrase (“I saw the defendant brandishing a weapon in a flamboyant manner”) that made you wonder if his testimony had been scripted for him or if he’d just seen one too many TV cop shows. 

After listening to hours of testimony by Wilson and Atwaal, I found myself hoping that the D.A. had some strong physical evidence still to come that would link our defendants to the crime. Alas, he brought forth no such evidence. By the end of the trial, my uncertainty about the defendants’ guilt must have been written all over my face, because the defense attorneys seemed to detect it.

 

During the course of the trial, Kelly Babineau and Peter Kmeto, the attorneys for Riley Malcolm and Ornelle Anthony, respectively, must have done some internet research on their jurors and reached the conclusion that I was the one most likely to champion an acquittal. When Kmeto began his final summation to the jury, he noted that in order to render a guilty verdict, the law required us to have “an abiding conviction” of a defendant’s guilt. Then, while looking directly at me, he said, “Our founding fathers had large vocabularies. They understood words like ‘abiding’ and ‘conviction.’ Nowadays, people have smaller vocabularies, and not everyone knows what those words mean. ‘Abiding’ means ‘enduring.’ A ‘conviction’ isn’t a belief; it is a ‘certainty.’ With their large vocabularies the people who created our judicial system were telling future jurors that they cannot find a defendant guilty unless they can live the rest of their lives certain of that guilty verdict.” Again and again he hammered at the word “vocabulary” while staring right at me. Clearly he had Googled my name and discovered that for the last five years I have written a column for The Vocabula Review, which caters to word-lovers and deals primarily with language, linguistics, and related subjects.

 

When the time came for her summation, Ms. Babineau looked directly at me and said, “Remember, you are one jury of twelve, but you are also twelve juries of one. If you don’t believe a conviction is called for in this case, any one of you has the power to stop it.”

 

 A JURY OF ONE 

In legal-thriller films like The Runaway Jury, jurors are often seen discussing the merits of a case before the defense and prosecution have rested. In real life, jurors are absolutely prohibited from discussing the case with each other (or anyone else for that matter) until both sides have rested. Every time he was about to release us from the courtroom the judge told us, “Remember the court’s admonition: Do not talk to anyone about the case, do not form any opinions, and do not reach any conclusions.” Thus, I had no idea how my fellow jurors might be feeling about the case until we reached the deliberation room.

 At that point everything changed. We had been cordial strangers during the trial. Only after we had filed into that deliberation room and jotted our names down on handmade nameplates (first names only; I never learned anyone’s last name), did we jurors truly come to know each other. We weren’t exactly a cross-section of society but we were nonetheless a diverse group. We were eleven Caucasians and one Asian. Five women and seven men. Five of us (as I recall) were government employees. One of us worked for Macy’s. One of us worked for a phone company. One was a nurse. One worked in insurance. Our tastes in food and movies and literature differed greatly.  

It took us only about an hour to unanimously acquit Ryan Malcolm of all the charges against him. In his closing statement, Hightower told the jury, “If Ryan Malcolm had stayed in the car, he wouldn’t be a defendant here today. But he didn’t stay in the car. He got out of it. And that’s why he is on trial.” But, as one of the jurors put it in the deliberation room, “This is still America. A guy ought to be able to get out of a car if he wants to and not be arrested for it.” What’s more, our jury instructions informed us that in order to find Malcolm guilty we had to determine that he taunted the FAB members with “obscene and offense language likely to trigger violence.” Since the video was completely silent, no juror felt comfortable passing judgment on what, if anything, Malcolm might have said during the AM/PM incident. Unfortunately, we decided to put off filling out the paperwork that would officially acquit Malcolm until we had reached a decision on the Anthony matter. Later this decision would nearly cost Malcolm his acquittal.

 

After determining that Malcolm was not guilty, we turned our attention to Ornelle Anthony. The other jurors all believed that Anthony was guilty. I had my doubts.

 The prosecutor’s most powerful piece of evidence was his silent eyewitness – the video recording of the incident. Defense attorney Peter Kmeto told us in his opening remarks that the video would disappoint us: “No guns are visible, no muzzle flashes are seen, the alleged shooting lasts for only a few seconds and it isn’t even clear that any shots were fired.” When I first watched the video, I tended to agree with Kmeto. It was underwhelming. A white car enters a gas station and stops alongside a black truck that is trying to leave. For 50 seconds very little happens. Then the viewer sees a 15-second frenzy of not entirely discernable activity, followed by the hurried departure of all the vehicles from the premises. Not until we got to the deliberation room and could play the video over and over again, freezing the frame whenever and wherever we wanted, did we jurors begin to see just how intriguing the video was. Like the centerpiece of one of those “lost footage” horror films, the eerily silent, 70-second clip was full of stories. Unfortunately, those stories tended to require a lot of imagination on the part of the viewer. The footage was shot at night and roughly a dozen sources of light (street lamps, oncoming vehicle headlights, brake lights, parking lot floodlights, AM/PM signage, apartment complex security lights, etc.) were bouncing reflections off the KillaMOB cars. The more a car moved (and the Charger was in near constant, if very slow, motion) the more light it caught and reflected. It was possible to view the clip and see a torrent of gunfire. But where other jurors saw muzzle flashes, I saw nothing but transient reflections of light. Two people thought they saw a possible shooter moving around inside the Charger. But one of those jurors placed the shooter in the backseat of the car and the other placed the shooter in the front seat. The video was like a Rorschach test – open to endless interpretation. Like every other aspect of the prosecutor’s case, it left me with plenty of reasonable doubts about Anthony’s guilt. None of the other jurors shared those doubts. 

For a day, my dissension was tolerated. By day two, however, I was a marked man. That’s when I found myself starring in a live unscripted remake of Twelve Angry Men. At one point I said, “Maybe I’m biased in favor of the defendant, but I thought the defense attorneys did a good job of discrediting the prosecutor’s case.” This unleashed a firestorm of accusations: “You admit that you’re biased. It’s your obligation to go to the judge and tell him you’re too prejudiced to continue as a juror on this case.” Mind you, plenty of other jurors had made statements I thought were far more biased than my own. One juror opined, “Regardless of what we decide, this guy’s destined to end up in the morgue or back in prison.” Another said, “The defendant can’t lose. If we convict him, he’ll wear it as a badge of honor. And if we acquit him, he’ll go back to his old neighborhood a hero.” But because I was the lone vote for acquittal, only my statements were ever deemed prejudicial. As a result of various other, perfectly innocuous statements I had made, I was accused by my fellow jurors of being hopelessly biased in favor of the poor and in favor of all societal underdogs. One juror pointed out that the prosecutor had presented irrefutable video evidence that Tyrone Wilson was in the waiting room of a hospital maternity ward when his truck was stolen and destroyed. “Sure,” I responded, “but that doesn’t mean that he had nothing to do with the crime.” For this statement, I was accused by some of the others of being hopelessly prejudiced against poor Tyrone Wilson. Because Wilson was a victim of the crime and not one of the defendants, his testimony was considered unimpeachable by most of the jurors, despite the fact that he was a member of an alleged criminal street gang and was testifying only to keep the D.A. from throwing the book at him for his illegal weapons charges.

 

When I refused to disqualify myself from the jury, the forewoman and another juror both sent notes to the judge accusing me of being hopelessly biased in favor of the defense. Later that day, we got word from the bailiff that the judge wanted to see us all in the courtroom. This created a euphoric atmosphere in the deliberation room. My fellow jurors all seemed convinced that I would soon be replaced by one of the four alternates. The forewoman declared that we would do no more deliberating until after our meeting with the judge. And so I sat by myself in the deliberation room while the others broke up into smaller groups and chatted amiably. Days seemed to pass before the bailiff finally came and summoned us to the courtroom.

 As we waited in the hallway outside the courtroom, I mentally rehearsed a defense of my damning statements. I considered whether or not I should mention the prejudicial statements made by other jurors. I didn’t want to be a tattletale, but I also didn’t want to be kicked off the jury. I believed the prosecutor’s case left plenty of room for reasonable doubt, and I was determined not to let the accused be railroaded into jail over my disqualified body. As we filed into the jury box I couldn’t help feeling as if I were now on trial. The judge was back on his bench. The prosecutor was back at his table. All five members of the defense team were at their table. Was it my imagination, or did they all seem peeved about this unscheduled gathering? The court reporter waited at her machine to take down our every word. I was terrified. I fully expected the judge to confront me with the accusation that I was biased. Instead a curious thing happened. He picked up a sheaf of papers and began reading what were obviously boilerplate instructions for juries unable to reach a unanimous verdict. He suggested we try naming a different foreperson every day. He suggested we try role-playing games. But primarily he suggested that we review the testimony of the witnesses and see if that might help us surmount our impasse. When he was done reading from his prepared material, I expected the trial of Kevin Mims, Juror Number Nine, to begin. But the judge never even asked us about the specifics of our impasse. He merely ordered us to return to the jury room and continue our deliberations.

AN 11-1 TIE 

The recent euphoria of my fellow jurors was now temporarily transformed into contrition. They seemed to realize that they had gone too far. I didn’t gloat. We all agreed to revisit the testimony of the prosecution’s two eyewitnesses. This wasn’t as easy as it sounds. If jurors want to review trial testimony, they have to have it read back to them by the court reporter. What’s more, if the court reporter reads a single line of a witness’s testimony to a jury, she’s required to read the whole thing. Each of our eyewitnesses had spent about six hours on the stand. That meant that we would now have to listen to twelve hours of testimony read back to us in a soporific monotone.

 

Though tedious, the read-backs provided both me and my eleven opponents with plenty of fresh ammunition. This did nothing to end our stalemate. By cherry-picking various talking points of the prosecutor (and ignoring the many holes in his case), the majority was able to make a decent case for the defendant’s guilt. By cherry-picking various defense talking points, I was able to make a case for reasonable doubt. The majority argued that their case for guilt was stronger than my case for innocence. I agreed, but I also pointed out that the defense wasn’t required to prove a defendant’s innocence beyond a reasonable doubt, merely to establish a reasonable basis for doubting his guilt. This didn’t seem to satisfy the majority. Seven days into our deliberations, we remained at an impasse.

 Some of our problems were due to our ignorance of the law. We were given 48 pages of jury instructions, but not all of them were clear to us. One instruction, for instance, informed us that we could interpret direct evidence any way that we wanted, but the rules regarding circumstantial evidence were different. If a piece of circumstantial evidence could reasonably be interpreted in two different ways, one of which favored a guilty verdict and one of which favored a not guilty verdict, we were required by law to interpret the evidence only in a way that was favorable to the defendant. This was a crucial point. Because of a tree blocking the camera’s view, the videotape didn’t show anyone shooting from the Charger, but it did show the people milling around outside the Cavalier all reacting at once in a manner consistent with being startled by a loud noise. My fellow jurors believed this was evidence of shots being fired from the Charger, which tended to support a guilty verdict against Anthony. I noted that it could also have been evidence of shots being fired by the unseen driver of the Cavalier (evidence was presented in court suggesting that the Cavalier’s driver had fired at the FAB truck), an interpretation which I believed created reasonable doubt about Anthony’s guilt. I also argued that since the video recording was circumstantial evidence we were required to accept only the interpretation that favored the defendant. The others insisted that the video was direct evidence and could be interpreted either way. We sent a letter to the judge asking him whether the video was direct or circumstantial evidence. His response was a terse note saying, in essence, “You have reviewed all the evidence in the case. If you have questions about how to proceed, refer to your jury instructions.” The jury instructions defined circumstantial evidence this way: “If you are sitting in the lobby of a building and see a man enter the building carrying a wet umbrella – that is circumstantial evidence that it is raining outside. If the man tells you that it is raining outside, that is direct evidence that it is raining outside.” (I took 35 pages of notes during the trial, but all of the jurors’ notes were destroyed by the court at the end of the trial. As a result, all of the facts and quotes reported here are reproduced from memory.) The most frustrating thing about being a juror is that it often seems as if the judge and the attorneys are conspiring to keep a lot vital information from you. The attorneys possessed numerous fat binders filled with the transcripts of interviews the police had conducted with witnesses during the course of the investigation. Yet we were permitted to hear probably less than one percent of the information contained in those binders. At one point, defense attorney Kelly Babineau showed us a heavily edited 45-minute video excerpt from an eight-hour interview the police conducted with an eyewitness to the events. This witness, the aforementioned Emmett Pickford, never appeared in court. Ms. Babineau allowed us to view only those portions of the Pickford interview that tended to exonerate her client, Ryan Malcolm. The prosecutor couldn’t use the Pickford video in court, because Pickford wasn’t under oath when he granted it. Why wasn’t Emmett Pickford ever put on the stand by either the defense or the prosecution? We were never given an answer to this question. Likewise, in his closing statement, the prosecutor told us that we were not allowed to consider why six of the seven victims of the alleged shooting never showed up in court. Ms. Babineau, in her closing statement, told us that we not only could consider that question but that we ought to consider it. I thought it was unfair that the defense attorneys never got a chance to question six of the seven people the defendants were accused of attempting to murder. “Doesn’t it cast doubt on the guilt of the defendants, if the so-called victims can’t even bother to come to court and identify their attackers?” I asked repeatedly. The other jurors, citing Mr. Hightower’s closing remarks, said that I could not even consider the matter. In defense of my position, I cited Ms. Babineau. Seeking clarity, we sent a letter to the judge. In return we got the same non-response we got to our first questions: “You have reviewed all the evidence in the case. If you have questions about how to proceed, refer to your jury instructions.” 

It struck us all as odd that six attorneys, a judge, and dozens of other behind-the-scenes legal professionals had put thousands of hours of work into this case and then thrown the outcome of the matter into the hands of twelve random citizens, none of whom knew what circumstantial evidence was. The juror who worked as a nurse summed it up this way: “This makes no more sense than if a bunch of doctors were to examine a patient, conduct numerous extensive tests on him, and then place all the medical information they’d gathered into the hands of twelve people pulled randomly off the street and tell them: ‘Here, come up with a treatment plan for this patient.’”

 Midway through week number two, it seemed clear that we were a long way from coming up with a treatment plan. 

There were a few lighter moments during the deliberations. We were given a long list of things that had been entered into evidence in the case and told we could request any item on the list and it would be brought to us. Much of it was stuff that was never mentioned in the trial. One item was the juvenile arrest record of someone whose name meant nothing to any of the jurors. It may have been the record of some peripheral member of the KillaMOB gang who was interviewed by the prosecutor but never brought into court. Another item on the list was identified simply as “a photograph of a black male.” As a lark, we requested that the bailiff bring it to us. A short time later the photo was delivered to the deliberation room. Sure enough, it was a photo of a black male, though none of us had any idea who the black male was. It certainly wasn’t one of the defendants. One of the jurors held up the picture and in a mocking fashion said, “Can we all agree that this is a black male?” Playing the role of contrarian to the hilt, I barked out, “Bullshit, that’s a white female!” This got a laugh from the other jurors, but it was laughter mixed with frustration.

 

Their frustration was understandable. In any other venue in the world 11-1 is a winning score. Only in the deliberation room of an American courthouse is 11-1 considered a tie. Even I felt uncomfortable with the standoff. Day after day I watched as, during breaks in our deliberations, my fellow jurors struggled to keep up with the work they were neglecting due to my extended holdout. Many of my fellow jurors arrived at the courthouse early – seven or seven-thirty – and then instantly began conducting business via their cell phones and laptops. One juror, Larry, is an executive with the world’s leading manufacturer of ski-lifts. He is in charge of conducting safety inspections and other vital services for dozens of west coast ski-resort operators. Winter, naturally, is his busiest season. But day after day, because of my extended holdout, he was forced to conduct his business from a dimly lighted and crowded hallway on the fourth floor of the Sacramento Superior Court building. Over and over again, I heard him apologizing to clients and co-workers for being unavailable to them in their time of need. His business sounded vitally important – much more so than mine, anyway – but, to his credit, he never said a word to me about the inconvenience I was causing him. A lowly freelance writer, I owned neither a cell phone nor a laptop. As I sat in the hallway reading a book or doing crossword puzzles, I felt guilty listening to my fellow jurors trying to meet their professional obligations. Had the rules allowed the majority to ignore my opposition and find the defendant guilty, I would have been relieved. Instead I was becoming an emotional wreck. I couldn’t sleep at night. I told my wife I was afraid I might end up agreeing to convict the defendant out of sheer cowardice or exhaustion. She told me, “No you won’t. You’re stronger than you think.” Her faith in me was about the only thing that kept me going.

 

Adding to my self-doubt was the fact that I am an expert on nothing, while many of my fellow jurors were quite conversant on subjects relevant to the case: guns, cars, medical treatment of gunshot wounds, video equipment, etc. Larry, in fact, was an expert on a surprising array of topics. Once, during a break, another juror, Darlene, told him that her fireplace wasn’t drawing properly and smoke was backing up into her living room. She asked Larry if he knew what the problem might be. Larry nodded and said, “You’re burning Presto-Logs, aren’t you?” Taken aback, Darlene said, “Yes, I am. But how did you know?” Larry explained that artificial logs burn at relatively cool temperatures. “What causes smoke to rise up a chimney is the temperature differential between the fire and the outside air,” he told her. “Unless the air outside is extremely cold, the differential won’t be strong enough to pull the relatively cool smoke of a Presto-Log up the chimney. And if there is an HVAC return vent near your fireplace, it will overpower the upward draw of the outside air and suck the smoke back into your house.” Listening to this, I found myself thinking, “Christ, this guy knows everything! Who am I to disagree with his guilty verdict?”

 

Through the west windows of the deliberation room, we jurors could watch as the steel framework of a high-rise construction project was slowly being erected by a crew of hardhat workers on a property across the street. Every few days, a massive crane with a sling attachment would lower a portable toilet from atop of the metal skeleton down to the ground about 100 feet below so that the toilet could be emptied and then returned to the top of the project. Once, while watching that airborne toilet twisting in the wind, I turned to Larry and said, “God, I’d hate to be sitting in that thing right now.” Larry coolly responded, “Those cranes use heavy-duty lifting slings made from an ultra-high density polyethylene that has about 15 times the tensile strength of structural steel. That port-a-potty is as safe a place to be right now as an elevator in a top-notch commercial building. Maybe even safer.” Later, as the deliberations dragged on and grew more and more heated, I found myself wondering about my own tensile strength and thinking that that airborne toilet didn’t seem like such a bad place to be after all. There were times when, if I could have transported myself from the deliberation room to the floating toilet, I’d have done it in a heartbeat.

 

In an effort to break me down mentally, emotionally, and physically (or so it seemed to me) some members of the majority tried to force me to dispute arguments of theirs that I had already disputed numerous times. I was required to reiterate my case for acquittal so many times that I began to feel as if I were in the wrong movie. I was no longer Henry Fonda in Twelve Angry Men; I was Jimmy Stewart in Mr. Smith Goes To Washington, forced to talk myself hoarse in order to keep my opponents from claiming victory. Eventually, though, it dawned on me that this wasn’t the U.S. Senate and I wasn’t required to filibuster my position. At that point I announced that I would no longer participate in the debate. This gave rise to threats: “You’re required to deliberate. If you don’t think you can defend your position, you should go to the judge and disqualify yourself.” But I refused. I told my opponents, “My mind is made up and I am no longer going to deliberate. If you think I am guilty of misconduct, report me to the judge. I’ll be happy to explain myself to him, but I’m not going to justify myself to you any longer.”

 

At this point, Juror Number Eight began claiming to have doubts about the innocence of Ryan Malcolm. “I think we need to go back and review his case,” she said.

 

It seemed clear that she was issuing a veiled threat to me: “Either join us in convicting Anthony, or I won’t allow Malcolm to be acquitted.” She put in a request to have an additional day’s worth of testimony read back to us. To me, this was her way of saying, “You’ve forced us to spend more than a week reviewing the case against Anthony. Now I’m going to force you to spend some time reviewing the Malcolm case. See how you like it when the shoe is on the other foot.” Of course, this is my own highly subjective opinion. Juror Number Eight (my right-hand neighbor throughout the trial), would no doubt deny that she had an ulterior motive in wanting to revisit the question of Malcolm’s guilt or innocence.

 

Meanwhile, another one of my fellow jurors sent a letter of complaint about me to the judge. Soon the bailiff came to the deliberation room to tell us that the judge wanted to see us back in court in one hour. Once again a euphoric mood prevailed among the majority. They seemed convinced that I was about to be kicked off the jury and replaced by an alternate. And once again I found myself sitting nervously in the hallway outside the courtroom. Ostracized by my fellow jurors, I sat alone and mentally rehearsed the words I would use to defend my not guilty vote to the judge.

 

 THE END OF THE HOLDOUT 

But in the end, words were not necessary. The bailiff ushered us back into the courtroom, where we took our usual positions in the jury box. The lawyers and court officials were all in their usual places. The judge turned to the forewoman and said, “I understand you are still at an impasse in the matter of Ornelle Anthony – is that correct?” The forewoman said yes. “Any chance of resolving the impasse?” the judge asked. The forewoman said no, not with the current make-up of the jury. The judge looked to the rest of the jurors and asked us if we thought there was any chance of a unanimous verdict. We all shook our heads. At that point I thought he would ask who the lone holdout was and then force me to stand up and explain why I refused to go along with the majority. But that’s not what happened. Without any further ado, the judge merely said, “I accept that you are now a hung jury and I declare a mistrial.”

 

Next he asked us about the Ryan Malcolm case. “Any chance of reaching a unanimous verdict?” he said to the forewoman. “I think so,” she answered glumly.

 

By the time we returned to the deliberation room, Juror Number Eight seemed to be having second thoughts about her second thoughts on the Malcolm verdict. She had already requested a read-back of a day’s worth of testimony. She couldn’t cancel this request without it becoming obvious that it had been made merely to intimidate me. But much of the combativeness seemed to have gone out of her. Our long ordeal was nearing its end. We came into the deliberation room the next morning and listened while the court reporter read back three or four hours of the transcript to us. After that, we took a formal vote on Malcolm.

 An hour or so later, we were back in the courtroom. It was December 8th, 2011, 43 days after the trial began and more than three years after the alleged crimes had occurred. The forewoman handed our paperwork to the judge. For several nerve-wracking moments (I can only imagine how excruciating they were for Malcolm) the judge inspected our paperwork. He shuffled the papers and divided them into separate groups with paperclips. He told us, “I’m just doing some housecleaning here.” Then he handed the sheaf to the court clerk and instructed her to read the verdicts aloud. Each charge had to be read out in full – the name of the case, the court, the judge, the defendant, the penal code number, etc. – so it took nearly a full minute for each of the sixteen not guilty verdicts to be read aloud. This was a suspenseful time for everyone. Malcolm sat nearly as stiff as a statue as each not guilty verdict was read. His eyes reddened, and he moved only once – to put a tissue to his nose. His lawyer, Kelly Babineau, clutched his arm and gave it a reassuring squeeze each time he was acquitted of another charge. Neither Babineau nor Malcolm could breathe a sigh of relief until the very end, because there was always the possibility that we might have found him guilty of a single charge and thrown his fate into the hands of the judge. That was surely what the prosecutor must have been holding out hope for. It took nearly fifteen minutes, but eventually the clerk read off the final “not guilty.” 

And just like that it was over. The judge thanked us and dismissed us from the courtroom.

 

Unlike Ryan Malcolm, Ornelle Anthony still faces the possibility of a retrial. I never came close to winning him the acquittal I thought he deserved. Apparently I am no Henry Fonda. Nonetheless I walked out of the courthouse on the last day of my jury service with my head held high. Over the course of eight days of unrelenting opposition I had managed to remain true to my conscience.

 

During the jury-selection process, the judge, the prosecutor, and the defense attorneys all told us what they wanted from a juror. The judge said his ideal juror works hard, listens, focuses, shows respect for the views of others and for his own views, can set aside biases, and can maintain a presumption of a defendant’s innocence throughout the trial. I believe I was able to do all those things. The defense attorneys wanted jurors who would stick to their guns even in the face of overwhelming opposition. I believe I did that too. The prosecutor wanted jurors who could determine the facts of a case without the kind of dramatic, irrefutable evidence that helps solve crimes on TV dramas such as C.S.I. or Law and Order. He also wanted jurors who wouldn’t automatically dismiss the testimony of a witness who was testifying primarily to reduce the prison sentence he had received in another, unrelated criminal trial. At least some of my fellow jurors would probably say that I lied to the prosecutor when I said I could do those two things. But I believe that I gave the prosecutor and his chief witness a fair shake. I’ve never seen C.S.I. or Law and Order, and I don’t think my judgment was warped by television. In the end, it wasn’t the fact that Atwaal’s testimony had been bargained for that caused me to dismiss much of it. In the course of describing a 70-second incident, Atwaal made roughly a dozen assertions that were clearly disproved by the video. Among our 48 pages of jury instructions (also destroyed by the court after the trial) was one which stated that if we could conclude that a witness had lied about something substantive while on the witness stand, we had the right to ignore his entire testimony. That – and not the fact that his testimony had been bought and paid for with a 15-year reduction in his prison sentence – is why I chose to discount much of what Atwaal said on the witness stand.

 

Throughout the deliberative process, I had sought advice and solace in the works of some of my favorite authors: the essays of Montaigne, the poems of W.B. Yeats, and the maxims of Baltasar Gracian, whose book The Art of Worldly Wisdom is a bible of sorts for me. But it was in a collection of poems by recent U.S. Poet Laureate Kay Ryan that I found the words that proved most helpful. They were from a poem called “Patience”:

 Who would

have guessed

it possible

that waiting

is sustainable –

a place with

its own harvests.

Or that in

time’s fullness

the diamonds

of patience

couldn’t be

distinguished

from the genuine

in brilliance

or hardness.

 

If you ever find yourself the lone holdout on a jury of twelve people, remember this: It is not necessary to be clever or courageous or persuasive, like Henry Fonda in Twelve Angry Men. If you are patient, the judge will eventually bring your trial (and your tribulation) to an end.

 

 (The names of all the defendants and the victim have been changed to protect their privacy. The name of the juror identified as “Larry” has also been changed to protect his privacy.)