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In July of 1996, Jay Levine sat on the jury of a small criminal case in New York City. It involved two separate yet equally important groups: The police, who investigated the crime, and the district attorneys, who prosecuted the offenders. These are their stories. DUN DUN!

Jury Duty i (15/15)

July 9, 1996

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Anyway, summations proved, again, unpredictably fascinating. First went Dwyer – and a pleasant surprise was she; accurately presenting various discrepancies w/succinctness + professionalism previously lacking in her examination + cross. By the time she was done I was firmly cemented in my already rapidly congealing conviction in lack of evidence to warrant surmounting that formidable + somewhat elusive obstacle known as “reasonable doubt.” Then, however, came Frankel and again a surprise only this time in the opposite direction. He had proved so powerful in cross, so capable + in control, that I expected a simply stunning + conclusive summation. Not so. A classic example, if I may, of where less would have been a LOT more Frankel vehemently proposed every countermeasure, every counter argument and counter possibility, just short of a mass conspiracy between Asians and cops; spitting passion + anger at the injustice of it all, and altho I certainly saw/see his point, I would submit [this is lawyerese: instead of “I believe” (which is a no-no) always say “I submit”] that every bizarre alternative scenario simply clarified the most probable scenario: that these guys had done it. If he had gone in with two, maybe three items = the discrepancy in position and skin tone – and that’s it, that’s all we needed to have significant doubt, and left it at that, I still feel that those major items do, in fact, exonerate (or at least excuse) our defendants from legal culpability. By heading into the myriad + vast sea of uncertainty that exists when you questions EVERYTHING, he made me, at least, wonder if perhaps those major and clear items were just NOT ENOUGH. And that he, as an expert on such matters, believed that we needed more to insure the innocent verdict.

Then came Hayes – a third surprise. Hayes is a sort of large, slightly goofy, somber but good natured, floppy dog of a man who reminds me a bit of George Bush. Unflappable, and even when he was clearly distressed by the direction of cross and the judge’s persistent resistance to his (Hayes’) repeated objections, his response was the head-shaking, lips-pursed and muttered “drat” of a playground martyr; the kid never picked for the team but doggedly returning to try again and never holding the other kids responsible. His summation was an, above all else, appeal for common sense and he quickly + steadily constructed his case built on that principle foundation. For example, in reference to Shahini’s admittedly not seeing if Lucky’s hand actually entered the pocket of the victim, Hayes constructed a scenario of a cloudy day, the forecast is rain, it’s dry as you head into the subway but at the other end you see people shaking umbrellas and with wet clothing and you assume… that it’s raining. There are other options and possibilities: a movie set, a burst pipe, a system explosion, a mass conspiracy, but the most likely, the most common denominator and the explanation that, in the end, goes beyond reasonable doubt emerges: it’s raining.

Another excellent example he proposed to counter the defense’s claim that the incident happened so fast that Shahini COULDN’T have recognized Moore + Lucky. Hayes introduced the example of a song. When you first hear it, it takes you awhile to identify the melody, the rhythm, where the refrain fits, etc. After you’ve heard it enough times, however, you can recognize the song after just a few beats, fill in the rest w/your mind, etc. EVEN (and this seemed quite true but a bit superfluous given the circumstances) even recognize other songs that you’ve never even heard before by the same band. I think Hayes was so enamored w/his metaphor and mental agility that he couldn’t resist carrying it out to this detrimental extra step. For what, exactly, was his point? Sure, when you know somebody well, you can recognize them w/the quickest glance, yes. But did he mean to imply that given familiarity you might be able to recognize their relatives as well? Did he intend us to infer that Shahini’s understanding of Moore + Lucky enabled him to accurately identify their relatives? And if so, why?

Another excellent explanation to dismantle another of the defense’s most potent (seemingly) arguments: throughout the testimony of Shahini it seemed problematic that his description of the perps remained so basic and simple to the point of non-existence. Height + skin color (much contested) was about it; with vague reference to weight. Very inarticulate, and for awhile I attributed this deficiency to shyness + language difficulties on the part of Shahini. I wondered if perhaps he had a translator it might release a torrent of description in his native tongue; if that might provide an entirely new + detailed profile. But Hayes made me see otherwise. He asked how any of us would describe Mona Lisa. He said: maybe hair color, length, round face, something about a mysterious smile, but how much more? How quickly do we tend to run out of words when describing a face we know? Of course now, sitting here, I could render a more complex + complete image, but I’m also somewhat trained (or at least practiced) in description, and even I could see his point. Thinking of Lucky, now, I wonder what I would say… would I dare to say caucasian features? That is, a not-so-negroid nose (it’s bulbed and slightly pugged), low forehead oft-wrinkled with concern, round eyes. Fairly round face, in fact. Straight forehead, too. Perhaps a thin, or at least thinner upper lip. Moustache, but that seems almost cheating; too easy and too easy to alter. His face is more broad than round… wide, square head. What else? He’s a large man, no question there.

Anyway, after concluding arguments I found myself wondering, suddenly, how my fellow jurors would vote. For the first time I felt that Hayes had a chance at conviction. Not from me (if I were there) but closer than ever during testimony, that’s for sure.

[And unfortunately(?) the category ends there. Jay made no further entries, that we could find, regarding this subject or this trial.


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