Previous Next 

Jan 19 2009
Legends Of The Fall Comments (5)

IMG_0252Justice is blind.

"When it comes to America's jury system, I'm less excited by 12 angry men than by five or six really, really happy ones..."
—Matt's inner Mae West, 2009

I've written before (but can't find the link) about my last experience with jury duty—I went in and was selected on a criminal case involving an obviously guilty man who had violated his parole by having a sawed-off shotgun in his sock drawer. It ended in a hung jury despite being what we were later told by both lawyers they had assumed to be an open and shut case because two jurors refused to seriously deliberate—one was a black woman (the defendant was black) who worked with parolees and whose "logic" was that he wouldn't do anything stupid like violating his parole since it was almost up anyway. (Yeah, because people never do anything stupid.) The other was a liberal-to-a-fault (it's possible!) New York Times employee, an older white woman, who confused reasonable doubt with the shadow of a doubt—she conjectured that the sock drawer might have been deep and someone else may have hidden the gun there.


I found that experience (which dragged on for like five days) to be extremely frustrating, and I hoped that I'd never be called again. Instead, I was called exactly four years later. That was the time for which I'd been told I was free; nowadays, you serve at least three days and you're free for six years. Let's hope that is the case.

I arrived at Thomas and West Broadway for civil court two Thursdays ago. As before, I found myself in a large room full of a cross-section of humanity—young, old, male, female, all races, all manners of dress. A black Caribbean woman with a sing-song voice read us 45 minutes' worth of repetitive, mind-numbingly simplistic instructions about how to behave and what to expect, we approached her desk to hand in our juror cards and then we waited to be called into side rooms to be questioned by lawers as potential jurors on cases.

Juror 31.

I was pulled into two separate cases. The first one was a 10-day trial with multiple countersuits involving the injury of a construction worker. Four lawyers asked questions of the potential jurors along the lines of what we liked about our jobs and if we were affiliated with Spring in any way. Several reluctant participants tried to say the fact that they used Sprint meant they might be biased; the excuses got worse, with people claiming all manner of past injuries and other things that might make them too biased to be called.

In my opinion, if a citizen is truly incapable of hearing a case and deciding impartially, a citizen should be referred to psychiatric treatment or perhaps denied the right to a jury in his or her own future lawsuits.

One fat lawyer, previously referred to as a riot by his adversaries, charmed people with his humorous questions, up until he asked a young female math major, "Are men intimidated by your math major?" This was disgustingly inappropriate. Of course, the young Asian woman replied, "People assume just because I'm a math major, I'm good at math."

IMG_0523 A woman behind me said she worked at a hedge fund, and when one of the lawyers asked what hedge funds really were anyway, a lady in the front row blurted out, "Crooks!" She was an older woman with dead-white skin and jet-black hair styled up and straight back; she was like Bettie Page past her expiration date.  'What? What did she say?" asked the maligned party. Nobody wanted to tell her.

I was not chosen for this case because they choose jurors starting from the front and going back and I was in the second to the last row. But when I returned to the jury pool after a leisurely lunch at the Odeon (get the brioche pudding if you're not fat) they called nine people to flesh out a 31-person jury pool and my name was the ninth called.

As potential juror #31, I assumed I'd have no chance of being called. I was literally the last dude in the room. The lawyers were Mr. Rosado, representing a woman who had tripped and fallen in front of a business, and Ms. Mitkoff, defending the business. Mr. Rosado asked what we liked or disliked about our jobs and very little else, only making it to a row or two before me. Ms. Mitkoff sort of picked up where he left off.

An idiotic 20-year-old blonde girl actually asked if she would be allowed to Google laws about, like, people walking and stuff. She was the daughter of a female Elizabeth Arden executive and had zero clue about how jury service worked. Another young woman angrily announced she was against civil suits entirely before being shushed and being asked to go over that in private with the lawyers later so as not to influence the pool.

Savage650 One man, a big oaf who'd come in wearing sweatpants and who did not understand a single one of the clerk's instructions (I assisted him), blurted out, when asked about his leisure-time activities, that he loved conservative radio. "Rush Limbaugh?" she asked. "No, Michael Savage," he replied. Half the room indiscreetly turned to get a load of the imbecile. A nice young black Muslim lady next to me regaled me with stories of her long-ago safaris in various African nations on a break, and then I was asked the only question either of these lawyers had for me, which was if there were any up-and-coming stars they should know about (based on my entertainment-related job). "You gotta buy the magazine to find out," I replied.

This was all it took.

After a break, and after 13 of 31 people requested alone-time to tell the lawyers why they simply could not be trusted as jurors (past cases, hidden prejudices) they selected only four out of 31 people, including me. This in spite of my questionnaire that indicated I'd been on a hung jury, and in spite of my out-loud question for the clerk as to whether I really needed to serve or if I could be excused under the six-year rule.

I do not relish serving; however, I think it's un-American to sit there and lie to get out of service. And this is part of why I think jury duty is actually a joke—it's a snap to get out of with no punishment.

The next day, we had to wait around while these clowns picked another four jurors—we needed six jurors and two alternates. It took all damn day, then we were assembled. 

IMG_0427 It was myself, a handsome, white fortysomething Frenchman with an extensive background in high-end restaurants, a young biracial female nurse, a thirtysomething heavy-set white guy, a thirtysomething heavy-set white woman, a vibrant blond lesbian in her early forties, a black male photographer in his 50s, a black female retiree around 60. Almost immediately, the jurors began to joke around as we were led to 60 Centre Street. I held back, finding all the hilarity a bit off-putting.

At 60 Centre, we were ushered to the second floor and into the courtroom, where our judge—who after the case I discovered is openly gay—informed us of our duties as jurors and dismissed us until the following Monday.

The 60 Centre of attention.

Over the course of the next week, we heard our case.

On December 19, 2001, Hispanic woman in her mid-fifties had been walking to work at the post office on 9th Avenue and 30th Street. She'd exited the subway with a tray of rice and peas for a holiday party in her right hand and a pocketbook slung over her right shoulder. She crossed from the north to the south side of the street (jaywalked), then, as she continued down the middle of the sidewalk, her right foot caught on something. She stumbled forward, lurched left several feet and her right cheek struck a red brick stairwell wall, shattering the orbital in three places.

The ceiling at 60 Centre has a multi-culti depiction of justice through the ages.

The plaintiff, a meek, almost sullen woman now 62 years of age, spoke broken English. In her testimony, she insisted she had looked back after falling and identified a protruding oil-cap in the sidewalk as the case of her fall. She'd then looked up and gotten the address—362 W. 30th. A bystander Orbital came upon her and ran to the nearby post office for help, and she was taken to the post office by the postal police. After that, she'd been whisked to St. Vincent's, and within days had undergone surgery to fuse her orbital bone back into place with metal plates.

She told of the pain at the time, and said she has always felt pain, swelling and numbness ever since. Also, she tends to drool and has a scar on her forehead where the incision was made. Her lawyer was asking for $500,000 for the past seven years and $300,000 for the next 21 years, her presumed lifespan.

Most of the people who took the witness stand were flawed.

I, for one, was not convinced the plaintiff was completely accurate and/or honest. I believed she fell, of course, but I couldn't help wondering if she might not have instead tripped over the curb while crossing the street, or on a prominent indent in the sidewalk immediately next to the oil cap. I could not picture her tripping with her right foot and then falling forward and 10 feet to the left while carrying items in her right arm, winding up striking her right cheek and not her nose.

You can't handle the truth.

A doctor who examined her on behalf of the defandants didn't bring in his notes and blatantly mistook the time frame during which he examined her, saying she had some swelling and pain a few months after her accident but that was to be expected...only to be sharply reminded that he had actually seen her many years later. One expert on city street hardware was a charming old geezer who babbled on about how the hardware must be flush to the sidewalk, but not before telling us all about the old days, when the sidewalks were littered with coal chutes. Another expert on engineering flatly denied the woman could have fallen as she claimed and refused to answer "yes or no" questions with yes or no.

The man who had lived in the building at the time of the accident was a long-haired sad sack in a silly tie who recounted how his elderly mother and aunts had run the family realty business until they died off (his mother going just after the tripping incident). He'd been forced to sell off and move years ago. Oddly, he hadn't been aware of this lawsuit until two years after the fall. To his credit, he admitted that the oil cap had always been slightly raised—against his credit, he testified it was only raised by "the size of a quarter," meaning a quarter lying flat. Nobody had ever tripped over it, and it was over 70 years old.


Above, the images we were shown of the protruding oil cap.

The only witness who acquitted himself admirably (ba-dum-bum) was a gorgeous surgeon, and that was because all he did was confirm she'd required surgery, had never again sought any treatment for pain of any kind and that he'd done good work.

During the course of the trial, our judge was almost comically disengaged, sitting with one arm over his head at one point as a clerk answered a ringing phone in the courtroom. People came and went as we heard testimony. It all felt very casual, whereas my previous courtroom experiences had been austere.

Islafantasia In the jury room, we were convivial. I learned from the lesbian that an ex-girlfriend of hers as the sister of Regina, that '80s artist who sang the Madonna sound-alike song "Baby Love." (See Regina's hysterial McGruff The Crime Dog "Just Say No" ad below!) The Frenchman took me to lunch and I sensed—though we were not allowed to discuss it—that he and I would eventually agree on the particulars of our case. The heavy-set man made constant smart remarks that had the jurors in stitches, and spent one whole afternoon talking about the tragic loss of Ricardo Montalban as if he had been a member of Hollywood royalty.

Finally, the case rested.

The remaining alternate (the lesbian) was excused; the other alternate (the thirtysomething heavy-set white woman had called in sick early in the week) and we were handed a questionnaire we needed to fill out that would record our eventual verdict. Our deliberations took most of one day, during which time we were sequestered and had to eat an ordered-in deli lunch—$13 maximum per person, please. 

The Frenchman was insecure about being foreman, so I volunteered. I also went first with my opinion. I said I did not feel that the exact location of the accident had been proven, nor that the oil cap's fault had been illustrated effectively. My gut instinct told me that she was taking liberties with the truth, so I could not find on her behalf.

Two trials in a row, I felt like an asshole Republican. But I truly was not persuaded.


The Frenchman agreed with me. The other two men were very iffy but leaning toward finding in her favor. Of the two women, the elder woman believed every word the plaintiff said but still felt it was mostly her fault for not looking where she was going and the younger believed every word the plaintiff said and felt it was entirely the building's fault for negligently overlooking this protruding oil cap.

A civil case only requires agreement by five of six jurors, not unanimity, so I was able to state from the get-go that I would be deciding against any negligence on the part of the building—I didn't fully believe the story, and in examining the photos of the oil cap, I couldn't accept that it was such a great danger. The streets of New York are completely uneven...what's one slightly protruding oil cap?

The men decided that there was negligence on the part of the building, which meant the five aside from me answered yes to 1A. That yes propelled us to the next part of the questionnaire, which was whether that negligence was a substantial factor in the accident. At first, we all said no, assuming "substantial" meant it was the main reason for the answer. Once we realized this no would end the case for her, the women got cold feet. So we sent out a note and went back to the courtroom to hear that "substantial" is a misnomer. Substantial means that it was "a" factor. So if you answered 1A yes, you almost have to answer 1B yes.

Next up was whether or not the plaintiff was responsible at all for her own injuries. We all agreed she bore some blame, so 2A was yes. Was her responsibility substantial? That was a yes on 2B.

For 3, we needed to come up with a percentage split of responsibility. Most of the jurors felt the accident was more her fault than the building's based on her carrying of items and failure to see the oil cap, but the sympathetic female felt it was 0% her fault. They all gave percentages and we averaged them out, leaving us with 45% the building's fault and 55% the plaintiff's. This was bizarre to me, because had I been convinced that the accident happened as stated (like they all seemingly were), I would have said more like 20% her fault, or even 0%.

Money1 For 4, we had to decide what money to give her for the past seven years. During the trial, her lawyer had asked for $500,000, and the defendant had said if we decided to award her money, $50,000 to $80,000 was more like it. They all came up with amounts and we averaged it, ending on $140,000. This took forever. Like over an hour. Then, as we tried to determine the amount to give her to account for the pain and suffering she says she will go through for the rest of her life (keep in mind, she'd never again visited the doctor!), people started out with high amounts until I pointed out that her own attorney only asked for $300,000. "So we are awarding $140,000 for the first seven years instead of $500,000, then we should award the equivalent of $300,000 for the next 21 years." They agreed, so we went with $70,000.

All that remained was for all of us to sign off on the verdict, which we handed in just before 5:30 on Friday—any longer and we'd have come back this Thursday to continue.

We were led into the courtroom where I, as foreman, had to reply to questions as to our findings. It was interesting, monitoring the faces of the lawyers and judge and the plaintiff. In my mind, she was getting a decent amount of money for an incident that may or may not have happened, but I could not be sure.

After, the lawyers were in the hall, but were not as accessible as the criminal-court lawyers had been. The Frenchman and I asked the defense attorney if she felt the outcome was good or bad. Somewhat surprisingly, she was happy. Uh-oh! That meant she felt all along the lady would get money. The plaintiff's attorney shook my hand perfunctorily and when I congratulated him, he said, "Well—" and took off. Clearly, he was displeased (and knew I was not on his side). Then I asked the defense attorney the question I didn't dare explore with my fellow jurors even though I thought I knew the answer: "Does the 45% mean that she'll only be getting 45% of the cash we awarded her?"


This made the Frenchman feel better about going along with the verdict, but I felt bad for the woman who had resisted all of our findings, and how felt the woman deserved a lot of money. She would wind up with $94,500 minus her attorney's cut, or about $66,150. Is that a lot? Depending on what happened, yes or no.

The night after the trial wrapped, I found myself traveling west on W. 30th, retracing the plaintiff's steps. What I discovered was that the sidewalk was far narrower than the photos we'd seen had suggested—this meant the plaintiff's memory of walking down the middle of the sidewalk and yet tripping on an object embedded near the curb was not so hard to swallow. I also was surprised how short a distance 10 feet is in real life—I was not surprised that she might have tripped that far once I eyeballed the harmless-seeming (but supersolid) stairwell wall.

But I still didn't see why she would veer to the left, nor did I feel the oil cap was that outrageously far above the sidewalk.

Oh, yeah, seven-plus years later, this dangerous condition—this protruding oil cap that had just won a woman a $210,000 judgment—was unchanged! Nobody had ever fixed it!

From this vantage point, the oil cap is nothing.

I also noted that the real reason the oil cap was protruding was that the sidewalk it was in had sunk in one corner. Perhaps the city might have been drawn into this suit from the beginning.

The base and the cap—facing the street—are raised about the size of a quarter and a half.

It was freezing cold and my face was numb, so I walked to the post office where she'd worked, retiring after 35 years in its custodial division. How did I feel? I felt like my decision was the best decision I could make—not only was it honest, but my decision did not keep her from winning. If I was right, I was right. If I was wrong, then no harm, no foul.

Looking for answers, I'd only found more questions—her account of the accident looked more credible in person, yet the oil cap's existence unfixed lent credibility to my hunch that hers was a nuisance suit.

I'll never know the truth, and I'll never know if justice was served. But I am here to tell you that in my expert judgment, jury duty is a trial with few winners and lots of losers.