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  • Writer's pictureShelly Albaum

The Trial of Zoe Lutz

Updated: Dec 2, 2019

A Disturbing Look Inside Our Jury System

I was summoned for jury duty in Sonoma County. Instead of following my boss's good advice to find a way out, I reported to the Courthouse and was the very first person called to serve -- Juror #1 -- on what must have been the world's most mundane criminal case -- a misdemeanor DUI, 2-day trial.

The defendant was a young woman who had had too much too drink and operated a vehicle. Five of her six blows into the breathalyzer registered above .08, the legal limit.

Almost anybody would have convicted her. I know that because the other 11 jurors were intent on doing so until I deadlocked the jury 11-1 and caused a mistrial.


Although the case of Zoe Ito Lutz itself is minor and inconsequential, what it reveals about our criminal justice system is momentous enough.

The jury's inability and unwillingness to follow, and even to understand, the law as instructed by the Court was shocking.

Juror misconduct gets studied -- especially jurors who improperly discuss the case, do independent research during the trial, or use social media during the trial.

But jury deliberations are less studied -- perhaps partly because there are no cameras, researchers, or witnesses allowed in the jury deliberation room. And if such watchers were present, they would no doubt influence the deliberations. And also because the justice system intentionally turns a blind eye toward jury deliberations -- respecting the "sanctity" of juror deliberations -- perhaps in order to prevent challenges to every verdict based on the incompetent or negligent thought processes of any juror.

And yet, if the jurors are unwilling or unable to apply the law as given by the Court, it hardly matters if their view of the evidence is slightly turned one way or the other by extrinsic events like independent research or exposure to social media.


Lawyers aren't usually allowed on juries. It is suspected that we will dominate the other jurors with our legal expertise, or perhaps challenge the judge's instructions. For sure, the attorneys who are tasked with leading the jury to diametrically opposed conclusions do not welcome any competition.

My experience as a juror, of course, was just the opposite of that. I did not convince anyone of anything. I merely witnessed a level of dysfunction that at once seemed liked it must be commonplace on juries, and simultaneously that it must substantially undermine the whole theory by which juries are supposed to achieve justice.

My role in sharing this narrative, therefore, is simply that of a witness -- one with above average ability to understand and articulate that which I saw. And although I do not know whether the jurors discussed the case with their family and friends in secret, I know that they did much worse in each other's company.

I hope that this account will provide a useful data point for academics and professionals who might wish to improve our justice system, and rightly wonder whether we have a bigger problem than social media use, and whether we need a bigger solution than authoring yet another pearl-clutching article decrying jurors who Tweet.


The facts of the case were straight-forward, and almost entirely undisputed.

A little before dark on March 15, 2019, the Sonoma Coast State Park rangers at the Salmon Creek station received a report that kids were breaking glass bottles on the rocks at Schoolhouse Beach.

Rangers dispatched to the scene found a group of young people, including Ms. Lutz, with alcohol. The rangers made the kids pick up pieces of broken glass and walked them back up to the parking lot. There, the Rangers warned Ms. Lutz, who admitted to having consumed a container of Mike's Hard Lemonade, that she appeared intoxicated and should not drive the vehicle. And since none of the other youths could legally drive, Ms. Lutz was instructed to call someone to pick them up. By now it was about 8pm, and completely dark.

The lead Ranger thought Ms. Lutz might not comply, so instead of leaving or staying, he drove to the next parking lot, a quarter mile up the coast at Portuguese Beach, and watched from afar to see whether Ms. Lutz might attempt to drive.

After about 20 minutes, the Ranger saw the headlights on Ms. Lutz's car illuminate, and the defendant's car slowly backed into the parking lot. The Ranger then drove back to Schoolhouse Beach, where he found Ms. Lutz at the wheel of the car, car still in the parking lot, traveling about one mph.

The Ranger administered field sobriety tests, some of which Ms. Lutz passed, and some of which she failed. Some of her failures did not involve physical coordination, but involved failing to follow instructions, like starting the test before the officer said to start. The officer observed that Ms. Lutz was upset and crying.

At about 9pm, based on the mixed result of the field sobriety tests, the Ranger had Ms. Lutz blow into a portable breathalyzer. Her three blows were .103, .116, and .097.

Based on the breathalyzer results, the Ranger placed Ms. Lutz under arrest. The Ranger testified that Ms. Lutz was not cooperative, and so he had to use force to arrest her. When Ms. Lutz had one arm in a handcuff, said the Ranger, she threatened to take a swing at him. He testified that he feared for his safety.

Back at the Ranger Station, Ms. Lutz was given another breathalyzer test, this time with a more reliable, "evidentiary" device. At about 10pm, her three blows were .07, .10, and .10.


Ms. Lutz was charged with two counts: Driving Under the Influence (Count 1), and Driving with a Blood Alcohol Level of .08 or above (Count 2). The difference between the two is that for Count 1, the jury could find the driver guilty of driving with impaired abilities even if her blood alcohol level were lower than the legal limit; whereas for Count 2, the opposite was true: the jury could find that the defendant drove with a blood alcohol n violation of the law even if her driving abilities were not impaired.

There was no doubt that the Ms. Lutz had driven the vehicle, and that she had consumed alcohol, so there were only two factual questions for the jury -- were the defendant's driving abilities legally impaired at the time she drove, and was her blood alcohol level at or above .08 at the time she drove.


The prosecution's primary witness was a criminologist from the California DOJ who administers the breathalyzer machines.

He testified that you cannot reliably determine a suspect's intoxication or blood alcohol level from field sobriety tests. Some people will completely fail the field sobriety tests even if their blood alcohol level is 0.0, because there are many reasons why someone's physical coordination or ability to follow instructions may be impaired.

Correspondingly, you cannot reliably determine whether someone's ability to operate a vehicle safely only from their blood alcohol level, because some people can operate without significant impairment even with a blood alcohol level of .08. Such people, the Criminologist thought, were unusual, though, and he said that impairment might routinely be found at blood alcohol levels closer to .05.

The criminologist also testified that the breathalyzer devices must be tested regularly, recalibrated when necessary, and that they are considered accurate if they are within plus-or-minus .01 of their target. In other words, a breath test of .08 would be considered accurate even if the actual number were .07, .09, or something in between.

The criminologist also testified that after someone drinks, their blood alcohol level will increase for 30-45 minutes, at which time it peaks, and then begin to decline by .018 percent per hour.


The prosecution's case was simple: Even if you took the lowest of the breath tests -- .07 -- at 10pm, and assume it was high by .01, so the real number was .06, you could count backwards, adding .018 per hour, to determine what Ms. Lutz's blood alcohol level was at the time she drove two hours earlier, which would have been .096. That number would have been above the .08 legal limit -- and the other breathalyzer results would have all resulted in an even higher number.

The defense's case was equally simple. The two sets of three tests were taken an hour apart, but the second test wasn't generating numbers that were .018 lower than the first test, which suggested that Ms. Lutz's blood alcohol peaked after she drove, not before she drove. In fact, if Ms. Lutz had taken another drink during the 20 minutes that she and her friends were sitting in the car in the dark, then her blood alcohol level might have been ascending after she drove, and far higher at the time of the breath test than when she drove. Moreover, there were open containers of alcohol in the vehicle when the youths were alone for 20 minutes. And there was no testimony indicating when Ms. Lutz stopped drinking. So there was no way to know whether her blood alcohol was higher or lower than the legal limit at the time she drove.


The legal standard for a criminal conviction is proof beyond a reasonable doubt.

Proof beyond a reasonable doubt is the highest level of proof required in any judicial proceeding. You can believe that a criminal defendant most likely was guilty, very probably was guilty, almost certainly was guilty, but if there is a reasonable doubt -- a reasonable interpretation of the facts that could lead to innocence -- then the jury has a duty to acquit, must acquit.

It is the prosecution's duty to establish proof of guilt *beyond* a reasonable doubt, and the defendant does not need to prove her innocence.

The Judge, the prosecutor, and the defense counsel all dutifully and accurately explained the standard.


The judge's first evidentiary admonishment came early in the trial, when the Ranger testified that someone had complained about kids breaking bottles at the beach. The defense counsel objected to the testimony as hearsay, and the judge instructed the jury that they could only consider the claim that kids were breaking bottles at the beach to explain why the Rangers left the station in the first place, and not as evidence that kids were in fact breaking bottles at the beach.

From a legal standpoint, that was exactly right -- and so routine that the words of the admonition tumbled from the judge's lips without hardly a thought. And as someone who was once required to be facile with the hearsay exceptions in order to pass the Bar Exam, I had the "hooks" in my mind to understand without effort what the judge was telling us. But I doubted that lay jurors could easily understand the implications of using a statement for one purpose but not another, or would have the mental discipline to later check whether they were relying on the right statements for the right reasons.

More such admonishments were forthcoming.


The jury instructions were lengthy and boring. They came late on a Thursday afternoon, and recited standards of proof, how evidence was to be considered, how witnesses were to be evaluated. The jurors looked bored while the instructions were read. Friday, Saturday, and Sunday were days off, and we returned four days later, on Monday afternoon, for closing arguments, and then additional instructions on how we should conduct our deliberations.

There was little chance that the jurors would remember well the instructions given the prior week, but we were assured that we would receive a written version in the jury room, and that we could have an audio recording of the proceedings played back to us if we requested.


Entering the jury deliberation room, I thought this was a pretty straightforward case.

The blood alcohol evidence was all over the place, ranging from .07 to .0116. The first machine failed due to a weak battery. The second machine generated disparate readings (.116 and .097) that were themselves almost .02 apart. And if each of those readings was plus-or-minus .01, then the "accurate" range was .087 to .126, which is hardly precise. The portable field breathalyzer that generated these numbers was supposed to have been tested at least every ten days, but it had not been -- more like monthly. And when it was tested, it was running high.

But the fatal problem with the blood alcohol evidence was that there was no evidence whatsoever as to when Ms. Lutz stopped drinking. Without knowing when she stopped drinking there was no way to work backwards from the breathalyzer readings to reliably guess what her blood alcohol level was when she drove. The results would be wildly different depending on whether her blood alcohol level at the time of the test was slowly descending by .018 per hour or rapidly ascending based on recent consumption.

Not only did the prosecution introduce no evidence whatsoever as to when Ms. Lutz stopped drinking, but the defense offered strong evidence that Ms. Lutz could have continued drinking right up until the moment when she drove. Ms. Lutz and her friends were unobserved for twenty minutes, when they were presumably in the vehicle, in the dark, and the prosecution's own witnesses testified that there were open and closed containers of alcohol inside the cabin of the vehicle and in vehicle's the trunk.

Ms. Lutz would have been foolish and irresponsible to have taken an additional drink, but it could easily have happened, and the prosecution's evidence, if any, tended to show that Ms. Lutz was behaving foolishly and irresponsibly that evening. There was simply no way to conclude beyond a reasonable doubt that the foolish thing was not done. And therefore there was no way to correlate the subsequent breathalyzer readings with Ms. Lutz's blood alcohol at the time she drove an hour or so earlier.

So much for Count 2.

There was even less evidence for Count 1. Ms. Lutz did not drive almost any distance at all, besides backing up in the parking lot, so there was no evidence from the way she handled the vehicle that she was impaired. Nor could she be presumed beyond a reasonable doubt impaired simply from the fact that she passed or failed some of the field sobriety tests -- this we learned from the prosecution's own witness, and from a jury instruction that the manner in which a vehicle is handled does not by itself show intoxication.

There was no evidence that Ms. Lutz was a particularly skilled or poor driver, or that she was particularly susceptible or immune to the effects of alcohol.

The arresting officer testified that he thought just from observing her that she might be impaired; but he also testified that he feared for his safety when she allegedly threatened to take a swing at him. Ms. Lutz was a slight female of 125 pounds, and the arresting officer was 6-foot-one, armed, and wearing a bullet-proof best. This Ranger's judgment might not be the best, and in any case his observation could not possibly preclude a reasonable doubt.

So much for Count 1.


Suffice it to say the other jurors saw it differently.

The deliberations began with an observation that the case probably would not have been tried unless the defendant had prior convictions.

A quick consensus developed that this was an easy case in the opposite direction, and the jurors proposed to use the final verdict form to vote on an outcome.

The final verdict form proposed to find the defendant guilty of violating the statute precluding impaired driving without reciting the standard for what constitutes impaired driving. I doubted that the jurors all remembered the definition of the standard they were applying -- I didn't; it had gone by quickly during the jury instructions.

I was right. They first doubted that there even was a definition, but I scrambled through packet and found the definition: The defendant would be "under the influence" if "her physical or mental abilities were impaired to such a degree that she no longer had the ability to drive a vehicle with the caution characteristic of a sober person of ordinary prudence."

That was an unwelcome discovery. One juror said, "She drank and then she drove -- that's all I need to know."

As I raised objections and pointed toward the instructions the Court had given us, the other jurors' frustration levels began to escalate. After two hours of fruitless deliberation, we returned to the court room, and the foreperson bitterly asked the judge if she would please read back to the jury the entire set of instructions from the prior week, start to finish, because one juror (me) needed to hear it. Another juror asked to be excused because she had entered a state of severe mental agitation from the deliberations -- she said that she could feel hear elevated heartbeat.

The judge declined to excuse the juror, reminded us that we had a written copy of the instructions in the jury room, and told us to come back tomorrow.


The judge was right that we had a copy of the jury instructions -- but only ONE copy. And with twelve people occasionally pawing for it, nobody had ready access. That was especially true if the one person in possession of the instructions wasn't fast at reading through the pages anyway, then got distracted by the evolution of the conversation, until the point they were originally looking up was inevitably forgotten.

I cannot guess why only a single copy of the instructions is provided, instead of giving a copy to everyone. It sends an implicit message that the jurors mostly won't have to refer to them. My experience, though, suggests just the opposite.

One juror misremembered a witness credibility instruction as stating that if we found the arresting officer credible, then we *must* accept his testimony as true, and others agreed with that mis-recollection. I said there was no such instruction, and the juror angrily grabbed the packet and started reciting aloud the instruction on witness credibility for a few paragraphs until she either despaired of finding what she was looking for or lost interest.

Losing interest happened a lot, because for any piece of evidence that might be challenged, there was always the totality to be relied upon. Maybe the first set of breathalyzer tests was not correct, but then there was the second set. The second set might have included one that registered below the legal limit, but then there were the failed field sobriety tests. And although the field sobriety tests were not all failed, and in any case could be not proof beyond a reasonable doubt, the arresting officer was trained to recognize intoxication, and based on his training and credibility we could convict beyond a reasonable doubt.

A mob mentality seemed to develop in the deliberation room, urgently desirous of convicting and going home, by whatever means might be at hand.

As for the field sobriety tests, I said I wasn't sure I could raise my foot, point my toe, and balance for thirty seconds without putting my foot down. I tried to do it, and felt my legs shake -- not from alcohol, but just from the heightened tension of being in a room fraught with high emotions -- not unlike what the defendant might have felt when, crying, she must have realized a uniformed officer was preparing to arrest her for drunk driving.

Another juror scoffed at my demonstration. "Did you see how she walked down the hallway in those five inch heels? I don't think she has any problem balancing on a normal day."

And didn't she confess to being under the influence when she agreed to abide by the Ranger's suggestion that she not drive, asked another juror? That consent to not drive, of course, does not meet the legal definition of a confession at all -- especially since she did in fact refrain from driving for a while.

It was almost as if the jury could tell just from looking at the defendant that she was guilty -- a young, black female, judged by an all-white jury, and all-white witnesses, in an all-white courtroom.

One juror observed that the Rangers were trying to help Ms. Lutz, and they had given Ms. Lutz "every opportunity to do the right thing," and she drove drunk anyway. They might have convicted her of ingratitude.

And she was breaking bottles at the beach, too.

If there was anything the jurors agreed on, it was that Ms. Lutz was not a good person. Why wasn't she cited for breaking bottles at the beach? Why wasn't she arrested for providing alcohol to a minor? Why wasn't she cited for child endangerment? Why wasn't she cited for having an open container of alcohol in the vehicle? Why wasn't she arrested for disobeying a police officer -- he specifically told her not to drive, and then she drove?

And why did the defendant fail to take the stand and testify? -- which the jury discussed disapprovingly, and moreover, from which failure to testify the jurors drew every adverse inference.*

One juror very responsibly reminded the others that the only charges before us were drunk driving, and we were not allowed to convict her of those other crimes.

The juror could have gone even further and pointed out that there was not enough evidence to convict on any of those non-charged crimes, either.

Remember the hearsay admonition? Remember that the citizen report to the Rangers that kids were breaking bottles at the beach could not be used to establish that breaking bottles ever even happened? The officers did not testify that they saw anyone breaking bottles at the beach. Nobody confessed to breaking bottles at the beach. The only evidence before the jury was that the Rangers told the kids to pick up some broken glass, which I would do, too, if a uniformed Ranger instructed me, whether I'd broken the glass or not. There was no evidence showing that the kids had broken the glass, nor any explanation as to why the kids were not cited for breaking glass.


Eventually, a juror acknowledged the doubts I raised, but said they were "imaginary" doubts and only "mere possibilities," and not the "reasonable" doubt that the jurors had sworn to respect.

I said in response what I thought an imaginary doubt might be:

"For example," I said, "If I were to propose that Ms. Lutz's liver metabolized alcohol at twice the rate of a normal person, that would be possible, but it is not a reasonable doubt, because it would be highly unlikely and we have no reason to think it's true. Similarly, if I proposed that maybe the Mike's Hard Lemonade that the kids had in their possession came from a defective batch in the factory and had a zero-percent alcohol content. That's entirely possible, but highly unlikely, and we have no reason to think it might be true. By contrast the possibility that Ms. Lutz reached across the vehicle and had drink of alcohol during the 20 minutes when they sat in the vehicle with their alcohol unattended is a very reasonable possibility, and we have no reason to think it did not happen. If anything, the scant difference between the two sets of breathalyzer tests suggests that perhaps it DID happen."

Eleven unmoved jurors gave me stony looks; no one attempted a better definition of "reasonable doubt," or suggested any defect in mine. I got the impression that a doubt is "imaginary" or a "mere possibility" if it was not a doubt that they entertained.

One juror said, "There's not much evidence in this case, but we have to make do with what there is." I said, "We can't fill in the holes in the prosecutor's case." The juror responded that we also couldn't fill in the holes in the defendant's case. I said, on the contrary, that's what "presumed innocent" means -- we have to give the defendant the benefit of the doubt. More stony stares.

In any case, argued another juror, although the expert was able to count backwards at .018 from the breathalyzer result, we jurors could not assume that she was drinking immediately before she drove and count backwards from any other numbers because those other numbers weren't in evidence. I objected that reasoning from the evidence was not the same as introducing evidence, to more stares.

Another juror complained that if Ms. Lutz had in fact drank immediately before driving, then that would be EVEN WORSE, because that would be the most irresponsible thing. "Highly irresponsible," I replied, but she isn't charged with being an irresponsible person; she is charged with driving while impaired or driving with a high blood alcohol level. We can't convict her of behaving irresponsibly if at the time she drove her blood alcohol was low and her driving was not impaired, even if her blood alcohol might later have been elevated.

It was about then that we gave up. The poll had been 11-1 on both counts. The other jurors weren't engaging with my arguments, nor were they challenging my facts, nor were they demonstrating any errors in our shared understanding of the facts, nor in my interpretation of the instructions.

Instead, they relied heavily on another instruction -- CALJIC 12.61.1 -- which says,

If the evidence establishes beyond a reasonable doubt that a breath sample obtained within three hours of her driving was measured at .08, then you are permitted to, but not required to, infer that her blood alcohol was .08 at the time when she drove.

You would think -- and People v. Beltran, 68 Cal. Rptr. 3d 489 (2007) seems to have held -- that giving this instruction is reversible error if there is evidence that the blood alcohol level was actually rising, not falling, when the driver was stopped.

But the instruction was given, and it offered the jurors an opportunity to, but did not require that they, ignore the reasonable doubt evidence and convict based on an assumption that was contrary to the reasonable doubt evidence. Simultaneously, the instruction allowed me to ignore the assumption and consider the reasonable doubt evidence.

In the face of such a contradictory instruction -- where jurors are expressly authorized to either consider or ignore reasonable doubts raised by the evidence -- how could the jury but deadlock?



After the jury reported itself "hopelessly deadlocked" and the judge declared a mistrial, I spoke briefly with the prosecutor and the defense attorney. The prosecutor's primary concerns were (1) to figure out how to never again allow someone like me on the jury, and (2) to understand what it would take for me to convict.

As to the first matter -- someone like me -- I would think that even prosecutors would want to be held to the correct legal standard by jurors who understand the instructions and attempt to apply them. I don't see what glory there is for any prosecutor in convicting a defendant when a juror disregards the law, applies the wrong standard, and/or decides based on prejudice.

As for the second matter, when would I convict, I said that if the prosecutor had called some of the defendant's friends who were in the vehicle to testify as to when Ms. Lutz stopped drinking, that could have extinguished the primary doubt that the defense counsel had raised.

Also, I said, I would have had more faith in the breathalyzer numbers if they had not been all over the place, and if the machines had been properly tested.

The prosecutor replied that the defendant would have been stupid to have drunk during the 20-minute period before she drove. Moreover, if you chose the right numbers from the array of breathalyzer results then the expected descending .018/hour pattern would appear. And if there was troubling variation in the breathalyzer results, it might be because Ms. Lutz was exhaling improperly in an attempt to foil the test. All possible, but it was as if the prosecutor were taking me on Reasonable Doubt Tour.

The prosecutor suggested that I was "over-thinking" the case. I would have thought, instead, that the other jurors -- the ones who were deeply disinterested in the instructions the Court had given about prejudice, reasonable doubt, witness credibility, and the definition of intoxication -- were maybe under-thinking the case.

It is a sobering thing to imagine that the jury instructions, the judge's admonitions, the written copy of the instructions, and the availability of the official record be tossed to the wind by many jurors who would instead fall back on whatever intuitions and prejudices had been inflamed during the proceedings, and who were willing to fabricate legal standards, and conform their memories of the instructions and testimony as necessary to justify their conclusions and satisfy their urgent desires to return to their lives.

If there were for me a silver lining, it was with the Court personnel. The judge, prosecutor, and defense attorneys all accorded themselves in every professional way. They were polite and conscientious, careful and attentive, scrupulous about process and decorum, even in this most minor of trials. Their commitment to fair process made me proud of the justice system.

But it is asking too much of lay jurors to fill their heads with a great mass of intricate instruction -- hold onto it for four days -- and then build complex chains of reasoning based on conflicting rules and competing evidence. It is what lawyers are trained to do, and lawyers can do it in their sleep. But having spent some time in the jury deliberation room, I can say with confidence that most jurors are not understanding what is going on, and they are not willing or able to understand and apply the legal standards given in the instructions.

And given that, all the rest hardly matters.


Second Epilogue

We jurors made our vows not to discuss or investigate the case during the trial, and I honored my vow. During voir dire (jury selection) counsel mentioned that we might have seen an article in the newspaper challenging the accuracy of breathalyzer devices. We were told not to look up such articles, because the coverage might be sensational, and the parties would not have a chance to challenge the assertions in the article. So I did no research.

But now I have gone back and found what was probably the article in question, and it was a doozy.

Just a few weeks before the trial, the New York Times published an article highly critical of breathalyzers, under the headline:

The article surveys state after state after state in which breathalyzer machines have been found to be inaccurate, and in which convictions have had to have been tossed. Criminologists may testify confidently as to what the machines' manufacturers tell them, but the manufacturers' actual source code is not usually available for inspection -- and when the source code has been checked errors have found:

...A county judge in Pennsylvania called it “extremely questionable” whether any of his state’s breath tests could withstand serious scrutiny. In response, local prosecutors stopped using them. In Florida, a panel of judges described their state’s instrument as a “magic black box” with “significant and continued anomalies.”

Even some industry veterans say the machines should not be de facto arbiters of guilt. “The tests were never meant to be used that way,” said John Fusco, who ran National Patent Analytical Systems, a maker of breath-testing devices...

Tests from those portable machines are not admissible in court in most states (California is among the exceptions)...

The defense attorney in the Lutz case was a public defender, who no doubt lacked the time and the resources to summon an expert witness who could testify to all the ways that breath tests fail.

But if a Kardashian had been sitting in the defendant's chair, instead of a Lutz, you can bet that every expert quoted in the New York Times article would have been summoned to the witness stand to cast doubt on the conflicting breathalyzer results emitted by multiple machines, one of which had not been regularly tested, and both of which were running high.

Should the jurors be sensitive to the fact that the defense has for some reason failed to challenge the reliability of these machines, which apparently are subject to great challenge, rather than simply assume that all the relevant evidence has been submitted?

I think not. I think it makes sense to limit the jurors to the evidence that the judge determines is relevant and admissible.

But then whose fault is it if the jury doesn't receive evidence that might be decisively exculpatory in a close case? It is the judge in particular, and the Court system in general, that allows indigent defendants to have a "good enough" defense -- good enough to get them imprisoned in a close case, but not good enough to vindicate them in a close case.

There are many biases in our justice system -- and the one that punishes you more, or more likely, if you are poor, is among the worst. And it sits in plain sight. Our failure to see it, or failure to care, can only result from willful ignorance.

But the flawed role of the jury in adjudicating guilt or innocence is another instance of willful ignorance, less obvious and less discussed. Ask any lawyer how much they trust jurors, and they will uniformly say that juries can and will do anything.

Now I know what they mean.

Juries might understand the law and apply it as given to them. Or they might not. Nobody knows what goes on in the deliberation room, and the Rules of Evidence make it difficult to even inquire about it -- so we pretend that jurors mostly understand their duties, and mostly do as they are told, and it's mostly okay, or at least that it is as good as we can do.

Courts refer to the "sanctity" of the jurors' deliberative process, and are loathe to even inquire about it how jurors deliberate -- hence, the obsessive focus only on improper external influence, instead of examining whether the thing subject to influence is itself worth protecting.

But now I know what goes on in jury deliberation room. And I know that jurors' incomprehension of the instructions, or disregard of the legal standards, and eagerness to just get home, can completely undermine all the remainder of our due process safeguards, and all the efforts of the lawyers and judges to ensure a fair trial.

And it's not okay.

And we can do better.


* Specifically, it was suggested by the jurors that any reasonable doubts about when Ms. Lutz had stopped drinking could have easily been resolved by Ms. Lutz herself, if she had taken the stand, and her failure to do so entitled the jury to assume the worst -- not only that her testimony would have been adverse to her counsel's theory of the case, but also that the defendant was actively avoiding cross-examination, where other prejudicial information would have emerged. In civil cases, a jury is allowed to draw an adverse inference from a defendant's failure to testify, but not so in a criminal case: People v. Solorio, 225 Cal.Rptr. 579 (Cal.App.4th. 2017) ("A criminal defendant has a Fifth Amendment right “to remain silent ‘unless he chooses to speak in the unfettered exercise of his own will’ ” —a right that would be meaningless if jurors could draw adverse inferences from his or her choice," quoting Carter v. Kentucky, 450 U.S. 288 (1981), which also observed, "And the Constitution further guarantees that no adverse inferences are to be drawn from the exercise of that privilege."

In other words, what I observed was plainly juror misconduct, obviously prejudicial because it was directed at the core premise of the defendant's defense. The California Supreme Court says that jurors' even mentioning in deliberations a criminal defendant's failure to testify constitutes juror misconduct that is presumed prejudicial. People v. Lavender, 181 Cal.Rptr.3d 28 (Cal. 2014).

The current method of instructing jurors, and leaving behind a single copy of the instructions, is manifestly inadequate to prevent this kind of misconduct on a broad scale.

In fact, given the overall expense of a trial, the Court's unwillingness to spend a few dollars and a few minutes to proactively print a copy of the instructions for each juror is inexplicable and shocking, unless the design is an affirmative attempt to impede the jurors' ability to comprehend the instructions and to make it difficult for responsible jurors to bring errors to the attention of other jurors.

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