BC SealBoston College Magazine Summer 2005
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. Prologue



Judgment call

I have a brother who's a cop and used to have an uncle who was a cop, and so I've never been asked to sit on a jury. Impeachment of the opposing side's testimony is the commonest of courtroom strategies, and generally speaking, if you're a defense attorney who intends to go after the patrolman who made the arrest, it's a good idea to use a preemptory challenge to ice the potential juror most likely to feel that it's his uncle's or brother's integrity that you're trying to tear apart under cross.

Still, uselessness is not yet a sanctioned excuse for ignoring a court summons, and so early on a cold winter morning a couple of years ago I found myself among 40 or so of my fellow citizens in an overheated juror's lounge on the second floor of a courthouse near Boston. The impoverished room with a linoleum floor, built-in bookcases full of law books testifying to hasty and sloppy repurposing, and vinyl chairs in parallel rows facing front was crowded with men and women, most silently balancing paper cups of coffee, newspapers, paperbacks, some talking with neighbors politely and nervously.

The room soon grew stuffy enough that the court officer propped open the door for us. With cooler air came the sights and sounds of a large marble-floored central hallway congested with lawyers, witnesses, police officers, defendants, and plaintiffs, just about all of them standing and talking while they waited for cases to be called in the adjacent courtrooms.

An attorney earnestly explained the meaning of "assault and battery" to two young women in jeans and tight sweaters, who stared at him openmouthed, as though in disbelief. A middle-aged woman complained: "The disposition [sic] was all wrong, so confusing." A man in a shiny black leather coat tugged on the suit-coat sleeve of a man who was talking into a cell phone and who did not turn around to see who was pulling. A woman cried out, "But I wrote to all those people and they said, 'We never heard of you!'"Another woman, clutching an armful of manila folders, said to a man in a suit, "She's been through 20 detoxes." "When was the last time she used?" the man replied. The woman opened one of her folders and read for a minute before announcing, "The last she used was November 15."

Late in the morning, court officers escorted us to a courtroom where a judge introduced a young man with spiked orangey hair who was contesting a DUI charge; a plump defense lawyer in an elegant, drapey black suit; a smooth-faced assistant DA in a double-breasted navy number that someone (his mother?) had inadvisably told him would make him look older and more credible; and two broad-shouldered young policemen dressed like twins in khakis and blue blazers.

I was in the first group of potential jurors called down to the jury box for examination, and after most of my companions were challenged for undisclosed reasons, and their places taken by other members of the pool, I began to think I had a shot at this one. And then I saw the lawyer in the fine suit looking me over. He took his time, and I gazed at the walls and ceilings in a manner I hoped conveyed benign idiocy. And then the lawyer leaned to the judge, and the judge called my number, and I was returned to the pool and eventually to the juror's lounge to continue with my eavesdropping until we were thanked and sent home.

Among members of my family, judgment is first nature, and the restriction of that response is hard to take. One particularly obdurate and proud member of the clan, whom we tend to call "Mom," frustrated by decades of having her native ability to see deeply into a stranger's heart discounted without a fair test, on one occasion some years ago managed to fill in the disclosure form in such a way that she was taken for a soft old biddy who had never spoken to cops except to call them to rescue kittens from trees, and she later confessed that she responded to the defense attorney's attack on the arresting officer as if it were an attack on her son. (It was a breaking and entering charge, the defendant was convicted, and I'm very relieved to say it wasn't a close call.)

Leaving the courthouse that winter afternoon, I came upon the orangey-haired kid taking some air in the parking lot. With him, and holding his hand as he strolled the driveway between cars, was a narrow-faced young woman the right age to be his girlfriend, though her demeanor was that of an older sister who'd been told to keep a close eye on junior. For a moment I thought I perceived that whatever the course of the trial, some hard judgment had already been invoked in this young man's life, and he wasn't about to escape its consequences. That did not prevent me, however, from thinking that I had a brother who was 10 times the man this kid was, and who would not even think of railroading a guy on DUI, even a punk who couldn't be bothered to wash the color of traffic cone out of his hair in preparation for a trial that had his father and mother worried enough to spring for an attorney in a tailor-made suit who knew his business very well.

Our story on the complexities of judgment begins here.

Ben Birnbaum


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