by Hunter Beckelhymer
Dr. Beckelhymer is associate professor of homiletics at Texas Christian Universityís Brite Divinity School, Fort Worth, Texas. This article appeared in the Christian Century, May 5, 1976, pp. 432-436. Copyright by The Christian Century Foundation; used by permission. Current articles and subscription information can be found at www.christiancentury.org. This material was prepared for Religion Online by Ted and Winnie Brock.
The charge was murder. The defendant was a handsome black man looking considerably younger than his 29 years. He sat impassively at a table with his court-appointed lawyers while a prosecutor from the district attorneyís office questioned the panel of prospective jurors sitting in the spectatorsí section of the courtroom. Like the rest of the panel, I was there by "invitation" and had no excuses which the law considered valid for declining. I wished I had.
"Do any of you know the defendant or his family? The victim or his family? Are you familiar with this case from newspaper or television reporting of it? Do you know any of the attorneys? Have you ever been convicted of a felony or are you now under any indictment? Are you related to, or close to, anybody in law enforcement? Have you been a victim of any crime?" A Yes answer to any of these questions brought further questioning as to whether the person responding thought his or her judgment or impartiality would be clouded by the circumstances. I was clean on all of these counts.
First the prosecution and then the defense asked additional questions of each person on the panel by name. "Where are you employed? What is your work? How long have you been on that job? Are you married? Does your wife [husband] also work outside the home? Where, and at what? Have you any children? How long have you lived in the county? How many years of education do you have? What is your church affiliation? How active are you in it? What do you do for recreation?"
I was not at all apprehensive as my turn came to answer these personal questions. After all, I had been assured by some of my colleagues that neither side wants professors on a jury. They want "ordinary" folks -- not overeducated eggheads who think so abstractly that they donít recognize a plain simple fact on the one hand, or donít respond to emotional appeals on the other. Furthermore, I am a minister and the husband of a minister. If the prosecution didnít reject me as a sentimental bleeding-heart, surely the defense would refuse me for being overly judgmental of sin. Besides, I had within the hour become a jury-panel reject on a dinky civil suit involving a nonfatal auto accident. If I couldnít be trusted to judge innocence or guilt in that litigation, what was the likelihood that I would be seated on a jury in a murder case?
Many are called, but few are chosen. I neither desired nor expected to be among those few. But I was. My education in the functioning of justice, American style, moved forthwith from television, newspapers and civics books to the courtroom, the jury room and the jurorsí sleeping quarters in the courthouse. My preconceptions and stereotypes proceeded to fall like iron ducks in a shooting gallery.
It was a profoundly positive experience and one that considerably increased my respect for the day-to-day functioning of our legal system in its efforts to achieve a tolerable approximation of justice -- or the equitable distribution of injustice -- for all of our citizens. Obviously my testimony here is that of a layman and a novice, based on a single experience as a juror in a criminal case.
Briefly, the case before us, according to the evidence submitted during the trial, was this: The treasurer of a Baptist church took the offering, after Sunday evening services, to the night depository of a neighborhood bank. As he was about to deposit it, the money bag was grabbed by a man who then shot the victim through the heart at close range with a sawed-off shotgun. The victimís two teen-aged daughters, who had gone with their father to church and accompanied him to the bank to make the deposit, watched in horror from their car. The man who grabbed the money and pulled the trigger was shortly thereafter arrested -- and subsequently sentenced to life imprisonment by this very judge in this very courtroom.
The defendant before us, according to a statement over his signature, was waiting in the gunmanís car nearby. He had learned that the robbery was to be committed only after he got into the car with the killer; he had "jacked around" with the shotgun in the car en route to the bank. When he heard the shot, he panicked, slid into the driverís seat and drove the car to the home of a relative, where the killer picked it up. Then he rode back to his own home with someone else.
Other than the defendantís statement, the incriminating evidence submitted by the prosecution was fragmentary and circumstantial. No eyewitness testified that the accused man was in the killerís car. No witness testified that the defendant had helped plan the robbery, although he knew of the Sunday evening routine of his neighbor, the church treasurer. The treasurerís daughter had told him, and the killer and some other "dudes" were present on that occasion at the defendantís home. A person is criminally responsible for an offense committed by the conduct of another if "acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids or attempts to aid" the other. This provision applies not only to the offense planned, but to any graver one that may take place, if its occurrence ought to have been anticipated. So the law provides, and so the judge instructed the jury. Hence the charge not of armed robbery but of murder.
Clearly, the defendantís statement was a crucial issue. A city detective testified that about three hours after the arrest he had typed the defendantís statement, laboriously paraphrasing it into an intelligible whole from the defendantís rambling oral account. The accused man sat beside him, and gave his assent to the written statement, or revised it, one segment at a time, as the detective read it back to him. The defendant did not sign it at once, but asked and received some time "to think about it." He then signed it twice: once in the presence of the detective alone, and again later with a news reporter present as a witness.
The accused man was advised of his rights, à la Miranda, not once but four times. They were read to him first at the time of his arrest, and twice more after he was taken in and booked. They were also mimeographed at the top of the form on which the detective typed his statement. These are (1) the right to have a lawyer present to advise him either prior to questioning or during it; (2) if he cannot afford a lawyer, the right to have one appointed by the state to counsel with him prior to or during the making of a statement; (3) the right to remain silent and not make any statement at all, knowing that any statement he does make may be used against him at his trial.
The last sentence at the bottom of the defendantís statement indicated that he had read the completed statement, and that he knew the above-stated rights and voluntarily waived them. The detective had taken at face value the defendantís assertion (which he had also made to others on different occasions) that he had finished the tenth grade in high school and could read and write the English language, and the officer included that assertion in the typewritten statement. He admitted under inquiry from the defense that had he known the accused man to be illiterate, the procedure in taking his statement would have been somewhat different.
The main tactic of the defense was to prove the defendant to be an illiterate who could not read and write the English language. How then could he "knowingly, intelligently and voluntarily" waive his rights; or even be absolutely sure that the statement he signed said exactly what he wanted to say? The defendantís mother testified that her son had been hit by a car and seriously injured when he was in the sixth grade, and that he had never really gone back to school after that. She said he could not read and write. The defendantís wife confirmed her husbandís illiteracy. A cellmate in the county jail testified that he wrote letters for the accused to the wife. The defendantís report card from the seventh grade of an all-black school showed straight Fís in every subject except citizenship (C), some 15 years ago.
That was the substance of the case as it was unfolded before us. Now who were we, the jurors? Not one but two of us were professors. (In fact two other professors on the earlier civil-suit panel with me had been chosen for that jury. That is four out of four.) Those, prosecutors were a bit careless; the guilty verdict which they seek has no room for professorial provided thats, moreovers and howevers.
Four Baptists, and some active ones, too? When the victim was a Baptist protecting the Lordís money? The wife of a police officer? And the sister of a police officer? Have those defense attorneys lost their minds? They are about to lose their client. All of us, five men and seven women, had white skin. There were some blue collars, and some red necks. Four were apparently quite affluent: a dentist who paid for his lunch in a small restaurant with a hundred-dollar bill, an appliance distributor for the area, the wife of a businessman with a prestigious address and a fine car, the widow of a building contractor, 80 years old and a world traveler. None of us were, like the man whose guilt or innocence we were to pronounce, illiterate, poor and black.
All four attorneys dressed fashionably and appeared to be in mid-career. The team from the district attorneyís office was headed by a man whom his opponent called a "seasoned prosecutor." One defense lawyer held the Ph.D. degree in addition to his law degree; both had good professional addresses. The judge was a cheerful, courteous, low-keyed veteran of 15 years in his present office, soon to retire.
The trial itself was a far cry from the moviesí dramatic nail-biters and TVís courtroom morality plays. From the jurorís point of view, the process consisted mostly of waiting followed by recessing. To the judge and the attorneys it was quite different, I am sure. When something does not go quite according to Hoyle on the witness stand, the first move is to hustle the jury out of court and into their soundproof room while the judge and the counsel confer. When we were in the box, listening to witnesses, the data seemed made of little technicalities interrupted by little legalisms. No sweeping panorama of freedom versus tyranny, progress versus retrogression, right versus wrong (or even right versus left) opened before us.
Why donít they get on with the case? This is the case. When do we get to decide for justice and against injustice? When we have the bare essential evidence, bit by ambiguous bit. How can we get the whole picture? We canít. Nobody can. But we jurors may have only those portions of it which the attorneys and the judge decide we must know in order to decide whether the defendant is guilty of the specific charge against him -- no more, no less, and very little other, however interesting and important it might be.
There were in the grim proceedings two amusing incidents. Both brought red faces to some attorneys, chuckles to the judge, and of course hasty trips out of the courtroom for the jurors, while a conference was held at the bench. One testy prosecution witness, after solemnly giving his name, immediately pleaded the fifth amendment when asked if he knew the defendant. Later the defense summoned the accused manís mother to the stand. She was supposed to be in the witness room, for witnesses are not allowed to hear each otherís testimony, lest they adjust their own. While the flustered bailiff searched for her in the witness room and the halls, the ancient black woman, her countenance ruined by many cares, got up from the spectatorsí section of the courtroom, where she had been listening to all preceding testimony, and gravely made her way to the stand.
Three and a half days after we were seated as a jury the trial was over and the outcome of it given into our hands. The judge, at his discretion, had allowed us to go home each evening while the trial was in progress, with strict instructions to discuss it with no one. Only when the case was delivered to us for decision were we sequestered until our verdict was reached. If the verdict was "guilty,"í we would meet again to recommend punishment on a scale of five to 99 years.
Here was a black man obviously involved to some degree in the theft of church funds and the murder of a white man in a southern city, now on trial in "the Manís" court before an all-white middle-class jury. A textbook case! But a textbook case of what? It depends upon the cliches and stereotypes of oneís particular ideology.
Some would say it is a clear-cut case of street crime by hooligans -- which crime has made city life a terror for decent, innocent citizens: "The reason such crime has increased so much is that we are too soft on criminals. They know that the hands of law-enforcement officers are tied by the rulings of a libertarian Supreme Court. They know that the odds against their conviction are high even if they are caught. They know that if they do go to prison they will soon be let out by soft-headed parole officers. Then theyíre back on the streets again committing more serious crimes. Look at the statistics! Is that justice? Now here is a chance to make an example of this one hoodlum, and to teach them all a lesson."
That, however, was not our job as a jury.
Others would say, "Just one more example of the poor, ignorant, oppressed black getting a raw deal from the power structure of this country! What chance has he? Society is more at fault than he is. Why is he poor and ignorant? Why canít he find a steady job? Why was he in an all-black school? If he were a wealthy white man he wouldnít have sweated out six months in the county jail worrying about a long term in the penitentiary. Besides, if he is sent to the pen, it will only make matters worse. It will make a criminal out of him whether he is one now or not. Look at the statistics! Is that justice? What really needs correction is the whole social system."
That, however, was not our job as a jury either.
Our task had been described to us almost ad nauseam by attorneys for both prosecution and defense, and by the judge. They outlined our job and its ground rifles before the trial began, and again at its end in the attorneysí summaries and the judgeís instructions. The defendant is presumed innocent until he is proved guilty. The burden of proof lies upon the prosecution. The grand jury indictment is not evidence of guilt. The defendantís failure to testify in his own behalf is not to be taken as a circumstance against him. His confession may be used as evidence against him "if it appear that same was freely made without compulsion or persuasion" and he waives "knowingly, intelligently, and voluntarily" the rights previously mentioned, prior to and during the making of the statement. If the jurors have a reasonable doubt about this, they must not consider the statement for any purpose, nor any evidence obtained as a result thereof. Circumstantial evidence against the accused man must not only lead consistently, step by step, to a conclusion of his guilt; it must also "exclude to a moral certainty every other reasonable hypothesis."
I had not realized before how high things are stacked against the prosecution in criminal cases. I knew it intellectually, but not existentially. Was that a shrug of resignation or a plea for help between the lines of the prosecutionís closing speech?
We deliberated formally as a jury for about three and a half hours in the afternoon. We deliberated for another hour or so the next morning after a not-so-restful night in the jury dormitory. All of us pondered on our pillows. Some of us prayed. All of us heard the banging of iron doors in the jail on the floors above us. I doubt that any juror among us believed that the defendant was innocent of all involvement in the brutal robbery and murder of a Christian layman discharging his responsibilities. I know that none of us believed that he was proved guilty as charged beyond a reasonable doubt, to the point of moral certainty, by the evidence presented to us in court, construed as the law provides and as the judge instructed. The verdict was unanimous on the first ballot. Not guilty.
In the hall afterward, the woman juror with the fine car and address hugged the ex-defendantís beautiful wife of seven years, mother of his two children. "I hope this is a new beginning for you," she said. The attorneys, who werenít allowed even to say "good morning" to a juror while the trial was in progress, chatted with us too. One pointed out that the United States still uses the jury system much more extensively than any other major country and that it is under considerable fire. It is so expensive. Expensive? I should say so. Think of the time of those four attorneys over the past six months. Think of the hours put in by 12 jurors for six days, not to mention the token $10 a day the state paid each of us -- plus the nice steaks we had for dinner on our one sequestered evening.
The jury system is accused of being horribly inefficient. We can testify to that. Mostly we sat and smoked too much and drank too much coffee and waited to be called into the courtroom and sat some more. But if efficiency is the measure of a system of justice, it would be hard to beat the six-gun and hemp-rope justice of the legendary old west -- and its sophisticated proponents are with us to this day. When it comes to dealing with a troublesome race, the gas chambers and crematories of Auschwitz were superbly efficient. And a certain trial in the Soviet Union, as Alexander Solzhenitsyn described it, was quite efficient too. The communist prosecutors observed many formalities, but the outcome for the defendants was never really in doubt from the beginning -- Siberia, or somewhere in the Gulag Archipelago. Peoplesí courts and military tribunals in the newer nations and some older ones too? Very efficient. I will settle for the inefficient system in which I participated, and pay my share gladly.
On the one evening when the jury was taken out together to a steakhouse, we traveled in three taxis with a bailiff in each carload. The taxis were to go and come together in a convoy. Because of the heavy traffic, our taxi got separated temporarily from the others. This circumstance caused considerable distress to the elderly bailiff in our car. I asked the old gentleman why the cabs had to stay together anyhow, since the distance was short and every driver knew where we were going. His reply was at once petty and profound. "Itís the law."
Itís the law. Those irritating legalisms and time-consuming technicalities that had alternately irked and amused us while we were trying to do justice, love mercy, and walk humbly with our God looked a bit different as our cab caught up with the others waiting for us. It is by such little legalities that we are all protected from each other, from our government and from ourselves. Despite those trivialities and legalisms -- or maybe precisely because of them -- one man had been sent to prison for life and another charged with the same crime was to be set free.
Maybe that grand goal of the good society is brought into being not by vigilante types taking over from what they call a too-permissive culture, nor yet by romantic revolutionaries and utopians eager to junk the whole system and start over, nor by any visionary ideologies and scenarios of the right or left. Maybe we "let justice roll down like waters" -- not in torrents of rhetoric nor cataclysmic tides of revolution, but in the slow melting of the snow-mass of backed-up grievances, by the ambiguous resolution of human tragedies in thousands of little courtrooms across the land.
Maybe justice and the good society are brought about precisely by lawyers and judges sending the jury out of the courtroom while they decide whether to admit the testimony of an old black woman who has been listening in on the whole trial of her son. And by jurors sitting and smoking and drinking coffee for hours on end while they had rather be about their jobs -- and then finding their way through legalisms and technicalities to reasonable doubts and moral certainties. Iím committed to that way -- until, say, our countryís tricentennial.