In My Name
I‘m sorry, so very sorry. I say this to myself over and over trying to disinter exactly what I am sorry for. I keep seeing you in that moment, your entire body stilled and focused through the interminable reading of this court number in that particular district with those docket numbers until finally it comes. Count One, Assault Likely to Produce Great Bodily Injury. The court clerk dispassionately intones Not Guilty and you jerk involuntarily, a sound of relief and hope escaping. Then he continues to read, Simple Assault on Count One, Guilty, and worse, Count Two, Assault with a Deadly Weapon not a Firearm Likely to Produce Great Bodily Injury, Guilty. And I don’t have the courage to watch any longer but imagine you sagging in your chair.

 

I entered that courtroom ten days ago, armed with my electronic weapons: a Kindle, my laptop, and smarter-than-me phone, expecting a day of excruciating boredom. I’ve been in these juror cattle calls half a dozen times and was never called, always the bridesmaid, never the bride. I listen with half an ear as the court clerk mangles names of multiple nationalities – Biming  Feng, Sharesca Chaudhury, Francesco Mattucci – and then my own, barely recognizable. Please take the seat marked Juror #12. As I walk to the jury box, a bit bemused, I look around. Two African-American men – one, slight, perhaps in his early forties, dressed in a clean T-shirt and pants; the other, about the same age, in a tasteful suit and shined shoes – sit together at a large wooden table. A white man sits alone at the other table. He is big, at least 6’3”, beefy, a footballer gone to seed, in a rumpled suit, with big features and a full head of greying hair. The judge is a middle-aged white woman with a used face and blonde-gray hair that she periodically pushes behind her ears. A court recorder sits at a mysterious machine, assiduously typing. There’s a court clerk who functions as ringmaster, keeping track of dates, jurors, attorneys, defendants. Two bailiffs with matching guns and bellies round out the cast of this first scene.

The defendant is black and homeless. I figure I can do this: if he’s guilty, I’ll convict; assault is never okay. But I can make sure he doesn’t get railroaded, I think smugly. I’ll see that he gets a fair shake.

Voir dire, the selection of the jury, takes two days of musical chairs. The female teacher whose wife works with the homeless at the county hospital, gone. The middle-aged Asian man who thinks the judicial system is broken because the police are too soft on crime, gone. The only black person in the entire panel of seventy-five potential jurors, gone. I keep a low profile, the façade of an older, respectable white lady. I answer truthfully all the questions asked me but volunteer nothing else. Yes, I am a retired nurse. No, I’ve never had a physical confrontation with the San Francisco Police Department. No, I never sent money to the ACLU (but they didn’t ask about last month’s contribution to Black Lives Matter). During the endless, repetitive questioning, the personalities of the prosecuting and defense attorneys begin to emerge. The prosecutor is self-deprecating with an easy manner. I like the way the defense attorney touches his client, respectfully, almost tenderly. But his questioning is repetitive, disorganized; he is constantly rifling through his notes, breaking the rhythm of his questioning. The process is both interesting and exquisitely tedious.

The jury, reflecting the new San Francisco, begins to coalesce: three techies, three health care workers; seven whites, four Asians, one Latino; eight men and four women. No black jurors. Not a one. The defense lawyer starts to point out the obvious elephant but is quickly shut down by the prosecutor and the judge.

Two and a half days of testimony. The story is this. The defendant is homeless and uses the garage of a large up-scale housing complex as, in his words, a safe haven. He stored his valuables – a leather hat, his ID, some other items – in the pump room. When he came back to retrieve them, the room was locked so he spent the night on the steps outside the complex. In the morning he tries to find someone with keys who will open the pump room for him. A building manager does so, telling him to take his stuff and never come back or he will be charged with trespassing. He waves to a maintenance man that he got his stuff and is on his way out or he screams something at the guy, who speaks no English. The maintenance supervisor is called to the scene, who either calls him a nigger or doesn’t. The supervisor either shoves him or they grab each other. Mr. Smith, the defendant, is caught on video running out of the garage, with the two maintenance men walking behind him, sixteen point two seconds later.

Mr. Smith runs outside and goes down a flight of stone stairs, looks back, yells “Get back. Stay away from me” and throws a wine bottle at the stairs. Or he picks up a bottle and throws it directly at the two men, just missing them and the bottle shatters at their feet. The supervisor, Mr. Henry, goes down the stairs to pick up the bottle debris, or follows Mr. Smith to make sure he leaves the area. On the sidewalk either Mr. Smith punches Mr. Henry first or Mr. Henry throws the first punch. They scuffle. The maintenance man, Mr. Henry, is bent backwards over the hood of a car and either trips and falls to the ground or is pushed. Mr. Henry hits his head and elbow on the cement. A bystander calls the police.

Mr. Smith steps back when Mr. Henry goes down or Mr. Garcia, the second maintenance man, steps in between them to protect Mr. Henry. Mr. Smith goes into the garage again to retrieve his hat, which he dropped in the initial confrontation. When he comes out of the garage he immediately heads toward Officer Jones to tell him that he had been assaulted or he approached Officer Jones screaming and yelling. Officer Jones tells him to calm down and then, when he doesn’t, places him in handcuffs, which further enrages Mr. Smith.

Mr. Smith, the defendant, has no injuries at all. There are pictures of Mr. Henry with long scratches down his face, an abrasion on his elbow, a split lip which he got either from a punch or from biting his lip when he fell, and a large abrasion on the back of his head. Much is made of the number of paper towels he used to staunch the bleeding. The EMTs send him to the ER. There are no medical reports. There is no skull fracture nor mention of a concussion. There are a few stitches to his lip, none to his scalp. He is sent back to work from the emergency room.

That is the story told by Mr. Smith, Mr. Henry, Mr. Garcia through an interpreter, and Officer Jones. Two other police officers, who transported Mr. Smith from the scene to the police station and from the police station to the jail are called to testify that Mr. Smith ranted and screamed that he wanted to split Mr. Henry’s head down to the white meat and that no honky was going to call him a nigger and get away with it.

We, the twelve jurors, are led into a small, windowless room furnished with a long conference table surrounded by twelve chairs. We are given fifty or sixty unnumbered pages of judicial instructions and told to choose a foreman. Does anyone want to be foreman? No one responds. Okay, is anyone willing to be foreman? Immediately a tall young man, good-looking in a white-bread kind of way, raises his hand and consents to be foreman. He does not ask anyone what that entails, nor does anyone instruct him. We look at the charges, which are written in language so abstruse as to be almost unintelligible. It takes an hour to figure out that there are in fact two different charges and a lesser charge for each, in the event we find him not guilty of the greater offense. We talk for an hour or so, slipping from one charge to another, confused, unable even to figure out a format for discussion. Then it is time to go home. We are not able to take anything with us – not our personal notes nor the written charges nor the legal instructions. We are admonished not to talk about this with anyone and to come back at 9:30 in the morning. 

The next day we figure out that the first charge is about the fight on the sidewalk. It’s clear that most if not all the other jurors think he’s guilty. The foreman channels the prosecutor, interrupting other people to make his point. Clearly he thinks the prosecutor is the alpha male, and he himself the alpha male in training.

No one disputes the facts that Mr. Smith and Mr. Henry had fought, that Mr. Henry had been injured and Mr. Smith had not, and finally that Mr. Smith had thrown a bottle. The public defender argued that Mr. Smith acted in self-defense, that he was pushed in the garage and called racial epithets by Mr. Henry and felt threatened by the two maintenance men following him as he ran from the garage. Self-defense is predicated on what a reasonable person would do in the circumstances. We argue about what that means. The foreman, who is over six feet and fit, argues that Mr. Henry, who is in his sixties and overweight, is not a physical threat. Most of the men agree with him. The female health care worker, Sophie, who is smaller than me, begs to differ. Both she and I would be threatened by a man who weighed over a hundred pounds more than us. We open the definition of a reasonable person a tad wider.

The testimony of the second maintenance man, Mr. Garcia, seemed very straightforward, very definite, very damning. But the last question from the defense is: “Isn’t it true that you have been offered a visa in return for your testimony here?” Answer: yes. The prosecutor, attempting a save, asks: “Isn’t it true that the visa does not depend on what you say here today?” Through the translator: “No, I didn’t know that.” We ask to have Mr. Garcia’s testimony read back to us and I can see the last interchange seeding doubt, at least in a few minds.

I point out, as a nurse, that scalp wounds are notorious for copious bleeding. In fact, there are no significant injuries, though that by itself is not legal justification to find him not guilty. George, a young Asian man with a dyed streak of white hair, argues that the acts themselves – a punch, a push, a scratch – do not rise to the level of likely to cause great bodily injury. I piggyback on his argument and say that Mr. Smith did not bang Mr. Henry’s head on the sidewalk, he did not jab him in the eye or kick him in the ribs, vicious acts that would be likely to cause grave injury. Just like that, everyone agrees. Not guilty on the first charge, a felony.

I’m stunned. George questions whether Mr. Smith should be found guilty of simple assault, an included lesser charge, but the rest of the jurors revolt and George quickly backs down. Clearly this is a quid pro quo: misdemeanor assault for felony assault. 

We move on to the second charge, assault with a deadly weapon (the bottle) likely to produce great bodily injury. Faces harden. The not-so-secret vote is 11-1. Sophie, who can talk about the criminalization of poverty, says maybe they charged him with felonies because he wouldn’t plead but, even so, throwing a bottle in the vicinity of a person makes him guilty, period. The fact that he threw the bottle is not in question. There does not have to be an injury to warrant a conviction of felony assault. There does not have to be intent to cause an injury. There must only be an act that is capable of causing great bodily injury. That is how we read the law. How can this be?

I argue that maybe it was a beer bottle or a Coke bottle. We get a blown up video of the glass, which clearly shows the detritus of a wine bottle. I can see this guy, frightened and pursued, throwing a bottle at the stairs as, in his own mind, a warning shot, his only defense. The millennial foreman repeats dismissively, “Even though you may sympathize with Mr. Smith, you have to go by the law.” I call him out and say that surely he is not suggesting I am not abiding by my oath to follow the law just because I find his logic faulty. Watch out! Granny bites. The ballot is 10-2.

We go back to this notion of a “reasonable person.” Would a reasonable person, who had a twenty-second head start, stop to pick up a bottle and throw it, rather than just continuing to run? Was it a warning shot or an attempted direct hit that missed? Most of the jurors do not ascribe ordinary motivation to a homeless man. If he was yelling at the policeman, it’s not because he felt himself the wronged party who wasn’t being taken seriously, it’s because homeless people unpredictably erupt. That fear of unpredictability lurks behind the measured words of trajectory and force. The foreman says that the maintenance man had the right to push Mr. Smith since it was a private garage. This is too much and he is told that laying hands, even on a homeless person, is assault. Which is the defense’s case, but no one sees the irony.

We move on to trying to figure out where everyone was standing when the bottle was thrown. We are lost in the minutiae. I ask if it can be shown that the bottle landed a few stairs away from the maintenance workers instead of at their feet. Would that convince anyone that it was just a warning shot? One juror just repeats, over and over, he tried to hit them, he’s guilty, but one man who has hardly spoken says yes, that would change his mind.

It’s now the afternoon of the eighth day of the trial. I am mentally and physically exhausted and I’m scheduled to be on a flight the following morning. Although I say I am prepared to cancel my flight I am hoping against hope that I don’t have to. How much that had to do with my final decision is going to haunt me.

We ask for all the testimony having to do with where Mr. Smith, Mr. Henry and Mr. Garcia were standing when the bottle was thrown. We file back into the courtroom where the judge, attorneys and defendant wait for us. I avoid looking at anyone. We hear the testimony that does indeed seem to indicate that the bottle was thrown at their feet. We march out in silence, back to the adjoining deliberation room. I look at the young Asian man who is the other holdout and he nods, guilty. I nod my arthritic, stiff neck back: guilty.

These are the questions that tear at me. Did I cave in because I became part of the group instead of remaining an outsider? Was it a capitulation or did I honor my oath to follow the law, whether I agreed with it or not? Did we interpret the law correctly? If the foreman had been someone with a greater breadth of experience, would we have reached different conclusions? Did we get lost in the minutiae? Is that what the law is, rules that have little patience with a deeper truth? Should I have hung the jury? Was I so puffed up about getting the first charge knocked down that I lost sight of the bigger picture?

This is a guy who lives in a dangerous world. He felt assaulted in that garage and pursued out of it. He ran out to a street full of people who would never take his side. He approached a police officer who immediately arrested him. Yes, he threw the bottle and, yes, he started the fight. He will go to jail for years. I know in my blood and bones and sinews that it is not enough to welcome the stranger at the gate. We must know, viscerally, that we are the stranger, that each of us is a universe that encompasses the righteous and the damned, that within us there is good and evil, and that it takes a lifetime to figure out which is which. With each breath, with each act, we choose, over and over, who we are.

Juror #12. Guilty. I weep.

 

Author's Comment

This piece was written from a personal perspective because it was a deeply personal experience. I suspect the answers to the questions I posed at the end do not put me in a good light. At the least, I should have hung the jury: it is unlikely the prosecutor would have re-tried Mr. Smith. That is something I will have to live with. However, the take-away is not self-flagellation. If I, a reasonably decent person, with good intentions, found myself inextricably enmeshed in a system that sent a black man to jail for many years for what was, essentially, no more than a schoolyard brawl, then the take-away is that our criminal justice system is insidiously and criminally broken.

Bio

Shoshana Levenberg has been a Jill-of-all-trades, from community organizing in the 1960s, to becoming an RN in the 1980s to work as a hospice nurse during the worst of the HIV epidemic. Now retired, she lives in California with her wife and their neurotic poodle.

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