It was bound to happen. Back in February, I wrote a column on how much I disagreed with the tort reform bill introduced by State Senator Tom Price. In that column I commented on the fact that I had never been chosen for jury duty since living in Cobb County for 13 years. About 6 weeks after that column, I received notice in the mail that I was to appear at Cobb County Superior Court for jury duty on April 21, 2003.
On the morning of April 21, all jury parking lots were jammed-pack and those arriving late were redirected to an overflow lot at the Marietta Library where we were picked-up by a bus to ferry us back to the courthouse.
The room where all potential jurors were assembled was also jammed-pack, likely numbering around 300 people in a room 20 feet wide by 50 feet long. Judge Michael Stoddard entered the room and read us an oath that we raised our hand and swore to, and then introduced us to Sheriff Bill Hutson, District Attorney Pat Head, and some guy I will just call "Mr. Skip", since I don't recall his last name. And it is likely that there is only one "Skip" in the court administration so if you call and ask for "Mr. Skip," they will likely not ask you "Skip who?"
So, Mr. Skip gives us a little intro into the court process and tells us how important our role is in it and we see a quick video about the Cobb County Superior Court and all of the judges, etc. Then Mr. Skip proceeds to tell us that under his administration, the court has become one of the most updated and advanced systems in America. The jury room we were in had at least 8 full-fledged computer workstations in the room that you could use to logon to your e-mail or, if you had to, use Microsoft Word, Excel, Access, and a few other programs as well. Very, very handy, especially if you were stuck in the jury room all day waiting for your name to be called to appear in a case.
He also discussed their jury check-in procedure. On my jury summons, there was a bar code that when I handed the form in as part of check-in, the bar code was scanned-in immediately with a hand-held scanner. It may not sound like much, but for a court system to have that technology was pretty impressive to me. And, apparently, they built the system in-house with software written by in-house IT folks. The Cobb Superior Court system has since re-sold their technology to other court systems and brought in a tidy sum of $128,000. If I learned nothing else through my jury service (i.e., had I not been selected to serve on a jury), I did learn that the Cobb County court administration has some pretty darned sharp-minded individuals working in our government.
During the time of the introduction to the jury process and video, etc., our names were being randomly assigned by their computer system to different "jury panels" of which each panel totaled 12 people. Lucky me, I was assigned to Panel #3 and we were the first panel ushered into a courtroom for case examination. Two other panels followed us until there were 36 potential jurors sitting in the courtroom.
Lucky us, Panel #3 was the first one called to go up to the jury box and take a seat for the "drilling" by the assistant district attorney ("Prosecution") and the defense attorney ("Defense"). Now, I could name both attorneys, as well as all parties in the case, but, in this arena, I really think it is best to describe elements of this case in a sort of "case study" format where the names are 1) not really needed to understand the events, and 2) I don't wish to bring anymore attention to the families of this case than what has already been brought out by the trial.
Now, it may sound weird, but I don't believe I was supposed to sit on that jury. I say that because of my answer to one of the Defense's questions. After the Prosecution had gone through a (rather) in-depth series of questions about our backgrounds and potential knowledge of the parties involved in the case, the Defense had a go at it with his own questions. One of his questions was "Would any of you have any bias or prejudice in favor of the testimony of a member of law enforcement?" Now, this question was actually objected to by the Prosecution, and sustained by the Judge, two times before it got to this point. No one in the jury box raised their hand...except me.
I told the Defense that I didn't quite understand his question and asked him if another way to ask that question would be "Does anyone believe a member of law enforcement would be less likely to lie on the witness stand than any average person?"
The Defense said "Yes," to which I replied "Then, yes, I believe that a member of law enforcement would be less likely to lie on the witness stand than the average person." This should have put me in the definite category of potentially being a biased juror. But, when it came time to read off the names of the jurors to be accepted or struck from the pool, I was surprised not to hear the Defense's objections to me. (Note to members of law enforcement: My thoughts about people lying on the witness stand is that everyone has the potential to lie on the witness stand, and on average, while law enforcement is less likely to lie, that doesn't mean I believe law enforcement will never lie.)
The trial started first thing Tuesday morning. The gist of the case is as follows: On October 4, 2002, on a Friday evening when it had been raining off and on all day, a traffic wreck occurred at about 6:00 PM. The driver of a Honda Passport was traveling westbound on a 4-lane road (2 lanes going west, two lanes going east) where there was a concrete median separating the two directions of travel. The Passport driver had his 5 year-old daughter in the backseat. The driver of the Passport lost control of his vehicle and crossed the median and smashed into a car traveling eastbound at the time in the outside lane. The Passport bounced off the collision with the first car and was subsequently struck in the passenger side by a second vehicle traveling eastbound in the inside lane. The Passport ended-up crossing backwards over the concrete median after this second collision before coming to a rest with its front wheels still on the median.
The driver of the first car the Passport hit, a 19-year old female, was knocked unconscious and never regained consciousness, passing away three days later. The driver of the second car the Passport hit was shaken but she was otherwise okay. The Passport's airbags had deployed and that driver was up and out of the car rather quickly. His daughter was not critically injured as it was testified to later that she was seen standing first next to the car, then on the side of the road with her father.
A paramedic on the scene reported to a Cobb County police officer on the scene that she smelled an odor of alcohol on the Passport driver when she checked to see if he was injured. The Cobb County police officer had a portable breath-alyzer kit with him whereupon after reading the Passport driver something called "Implied Consent" (which is sorta like Miranda, but not identical words) regarding his rights in an alcohol-related case. The Passport driver consented to the on-scene alcohol test whereupon (I believe this is what happened) he blew into the machine and the machine indicated that alcohol was present, but it could not measure the amount. At that point, the Passport driver was loaded in the back of a police car (and, for reasons of expediency, I will refer to him going forward as the "Defendant").
A little while later, another officer on-scene ordered the first police officer to administer another "Implied Consent" warning where he informed the Defendant that they needed his consent to a blood test. According to the police officer, the Defendant agreed on scene to consent to a blood test.
The accident investigation took over an hour-and-a-half and the Defendant didn't get to the hospital until about 8:30 PM. At the hospital, after the Defendant was shown to a room where the hospital lab-tech came in to draw blood, the Defendant changed his mind and refused to allow the blood to be withdrawn. There were three officers at the hospital and the officer in-charge told one of the other officers to get a search warrant from a judge to force the blood test. After some time, the officer came back to the hospital armed with a search warrant for the Defendant's body and a blood sample was withdrawn at 10:30 PM. (I will get to the discussion of the blood results in a minute, but there were other witnesses before the police testimony and the GBI testimony.)
There were witnesses for the Prosecution that testified that they had been traveling westbound before the time of the accident and encountered the Passport in a couple of different ways. One couple, in a Jeep Cherokee, reported that the Passport passed them at a high rate of speed. A second witness who was ahead of this couple testified that after she had made a right turn onto this road and accelerated her car to a speed of 50-55 mph in the left lane, that the Passport blew by her in the right lane and had jerked his vehicle back over to the left lane in front of her to pass another car in the right lane. The posted speed limit on this road was 45 mph. None of these witnesses were in view of the accident when it actually took place.
Another Prosecution witness was traveling in the eastbound direction and he was three cars behind the driver of the first vehicle struck. He stated that the Passport was in the process of passing a car on the right when he lost control and darted across the westbound inside lane and crossed the median and the eastbound inside lane to strike the first vehicle in the eastbound outside lane.
It was the testimony of these witnesses who helped us determine that the Defendant was driving way over the speed limit for the conditions. The police did not, and testified why they could not, attempt any speed calculations for the Passport. Under direct testimony, the police accident reconstructionist testified that when a vehicle has more than one hit occur, it is impossible to backtrack and estimate the original speed. Had the Passport hit the first car and not gotten hit by the car in the inside westbound lane, it would have been a relatively simple matter of momentum physics to estimate the speed of the Passport. As it was, no speed could be estimated in precise detail so the police didn't try.
Back to the blood samples. After the search warrant was served to the Defendant, two vials of blood were taken and placed in a "blood kit" specially designed to be sealed and mailed to the GBI lab. However, there is a bit of a conflict of testimony between what the police officer who supposedly handled this sample kit and the testimony of the GBI as to when it was received by them.
The police officer testified that he sealed the kit with the samples inside and loaded the kit into the back of his patrol car. He further testified that he was off for the next three days (i.e., Saturday, Sunday, and Monday) and that the box sat in his car all during that time. He then testified that on Tuesday morning (October 8th), he then brought the kit into work and obtained the necessary postage from the station to mail it to the GBI.
But, after his testimony, the GBI toxicologist got on the witness stand and testified that the blood kit had been received on Monday, October 7...one day before the day that the police officer testified that he had even mailed the kit to the GBI lab.
As a juror, it was only my place to listen to testimony and evidence. But, it puzzled me that the Defense did not address the issue of the difference in reported dates of how and when the kit was sent and received by the GBI lab. The Defense did cross-exam the GBI toxicologist on whether or not she detected any putrification of the blood sample, and she stated that she had not. In the end, it would not have had an impact on our decision, but, still, it was kind of disconcerting that there was this conflict in dates by law enforcement with no attempt to resolve it by either side.
Fast-forward to the toxicology results. The tests were run on the blood on October 28. According to the GBI's toxicologist, the blood test produced a BAC (blood alcohol content) level of 0.039. The BAC is measured in terms of grams of alcohol present in one milliliter of blood. The legal definition of pure "Driving Under the Influence" of alcohol in Georgia is a level of 0.08, whereby if you register 0.08 or above, you are automatically charged with DUI.
The GBI further testified that alcohol levels in everyone, on average, decrease from your system at a rate of 0.015 per hour. This can, according to the GBI's testimony when cross-examined, vary between rates of 0.010 on the slow end and 0.025 on the faster end. (As an aside to defense attorneys reading this story, these values were testified to by the expert witness for the Prosecution, but the Defense did not offer any challenge to the validity of these values, nor did he offer a rebutting expert witness.)
So, by using simple math, the toxicologist calculated the difference in time between 6:10 PM (the time estimated of the accident on Friday evening) and 10:30 PM (the time the blood was drawn on Friday evening) and she used the rate of alcohol elimination of 0.015 to determine that the Defendant's BAC must have been higher by about 0.065 than it was at 10:30 PM, thus putting the Defendant's blood in the estimated range of a BAC of 0.104 near the time of the accident.
The Cobb County District Attorney charged the Defendant with 6 counts which was affirmed by the grand jury in their indictment:
1) Vehicular Homicide by DUI - Less Safe
2) Vehicular Homicide by Reckless Driving
3) Driving Under the Influence of Alcohol
4) Endangering a child under the age of 14
5) Reckless Driving
6) Driving with a Suspended License
For the jury, Count #1 was the most difficult decision to wrestle with. All of us were experienced drivers. All of us had personal knowledge of the effects of alcohol on our own driving skills. All of us, at the time of deliberation, were required to look at the case in an objective and emotionally-detached manner and only look at the evidence. That is the law and that is the oath we all swore to from the Judge.
So, at the beginning of the deliberation process, some of us, including me, had decided that we didn't wish to find the Defendant guilty of vehicular homicide. And, it was probably due to one or both of these thoughts in our own heads: a) this could one day be us in that Defendant's chair, and 2) when I think of the word "homicide," I think of people like Jon Benet Ramsey and Laci Peterson...and others who had deliberate acts of violence performed on them. Losing control of my car and unintentionally killing someone else? I couldn't dream of it happening, but it could happen and I wouldn't want to be charged with a "homicide" due to losing control of my car.
However, we were not charged with having the ability to make an emotional decision. We were charged with making an objective decision based on the specific letter of the law, beyond a reasonable doubt. Not our own interpretations of what we thought the law meant, but the precise definitions of the words in the law, as dictated by the Judge in the case.
"Homicide by vehicle" is, by legal definition in the Georgia Code, defined to be that if you cause the death of someone else with your vehicle, you are guilty of vehicular homicide ("VH"). Now, there are three "degrees" of VH with the first degree being the most serious and requiring the highest punishment.
This indictment called for VH by a driver who was driving in a "less safe"manner. A "less safe" manner was defined as being influenced by the consumption of alcohol in their driving. The Judge explained that we had 4 criteria that we were to use to determine if the driver was "less safe." Those 4 criterion used were: A) Was he traveling at a rate of speed inconsistent with the road and traffic conditions?...B) Was he following other traffic too closely?...C) Was he staying in his lane?...D) Was he passing on the right in an prudent manner?
The Judge had given us a range of BAC to use to determine the likely effect of his alcohol on his driving. If we concluded that his BAC at the time of the accident was 0.08 or above, then the immediate conclusion had to be that it was definitely VH in the first degree. If we thought that the range was between 0.05 and 0.08, then we would have to use the 4 criterion above to determine if he was driving in a "less safe" manner.
As a jury, we determined that, at a minimum, he was traveling much too fast for conditions, and that the alcohol in his system impaired his judgment to do so without considering the higher risk to himself or to others. This led us to determine that, according to strict, objective interpretation of the law, he was guilty of VH in the first degree.
Count #2 was VH by Reckless Driving. When it came time for the Judge to define for us what the legal definition of "reckless driving" was, the Judge initially gave us this answer: "Driving with reckless disregard for other people and property." Gee. Great definition, Judge. Use the term "reckless" in the definition of "reckless driving" and things are as clear as mud. Which is the precise reason why, over the course of 7 hours worth of deliberation time, we sent the Judge about three requests to more fully explain things.
You might think that anyone can figure out if someone is driving "recklessly," but, really, the term is based on your own perspective, is it not? To someone who drives less than the speed limit, cars that zip by them might be considered "reckless" in their eyes. To someone who parks their vehicle in the far left lane of I-285 and goes 55 mph and ignores the horn-blowing of the guy behind them who must pull around to the right to pass them, that guy passing them on their right might be considered "reckless" in their determination.
Thank goodness we have legal definitions in this state as to what "reckless" really means. The Judge told us that it means driving in a "careless, neglectful, indifferent, and/or inconsiderate manner to others on the road at the same time."
Based on the testimony of the eyewitnesses who saw the Defendant's driving habits prior to the wreck, as well as our own inferences from the condition of the vehicles after the wreck, we determined that he was flying down the road, a road which was still likely slick in some spots due to rain. And, he was changing lanes to pass most of the other drivers on the road, some of whom admitted on the witness stand that they were going faster than the posted speed limit themselves.
However, we did not just take the witness testimony as the factual truth. Because, as we discussed throughout the deliberation process, their interpretation of how the Defendant was driving was also a matter of interpretation, and this was also a matter for careful debate amongst us. One witness said the Defendant "roared past" them. "Roaring" is a relative term. Define "roar."
Another witness said that the Defendant made him uncomfortable because he got right up on the rear bumper of his Jeep Cherokee...while they were sitting at a red light. Uhhh...okay. I've had 18-wheelers ride my bumper on I-285 and all I have is a Honda Accord...now that makes me uncomfortable. But, sitting at a traffic light? Nah.
As a jury, we pieced the witness testimony together with the conditions of the road to determine that, yes, by the legal definition of the word "reckless," the Defendant was guilty in the first degree of VH by reckless driving.
Count #3 followed Count #1. If he was guilty of VH by less safe driving due to alcohol, then he had to also be guilty of driving under the influence, regardless of him driving over or under the 0.08 legal limit. And, point of truth, even with the largest error possible from the GBI's numbers on how fast it takes the average person's BAC to decrease, there was a very good chance his BAC was well over the legal limit at the time of the wreck. The Defendant's actions after the wreck, as described by witnesses, was of the sort that he was very active and his metabolism was probably in overdrive as a result of those actions. Thus, this put his likely BAC significantly higher than the legal limit (But, I'm no expert.)
Count #4 was a piece of cake. The Defendant had his 5 year old daughter strapped in the backseat of the Passport. We had previously determined that he was driving recklessly and was less safe and caused the death of someone else with his vehicle, therefore he endangered his daughter with his driving.
Count #5 was driving recklessly. Guilty.
Count #6 was driving with a suspended license. At the time of the wreck, the Defendant possessed a valid Florida driver's license, but when his name was checked on the scene to the Georgia database, it was discovered that his license had already been suspended in Georgia. So, while the Defendant was legally allowed to drive in Florida, he had already had his driving privileges revoked in Georgia. Guilty.
CONCLUSION
As I sat with my fellow juror members in the jury room during the trial, I heard several stories of people either being previously excused from jury duty only to end-up on this jury, or stories of themselves or someone they knew who had successfully skirted jury duty several times and/or never getting picked.
As I said in my article back in February about jury duty, I don't agree with what Rush Limbaugh once said about jury duty: "If you're a juror, it's because you weren't smart enough to get out of it." Bull. If you're on a jury, it's because you were determined by someone else that, chances are, you could be objective and fair in your approach to listening to the evidence and coming to a decision. Rush is a moron if he believes he doesn't have a duty in this country to answer the jury summons and to serve if asked.
Yes, this was quite the inconvenient time for myself and others who had to stop our lives to serve on this jury. However, this specific case was rather educational. It was educational because it informed me about the law on DUI more than I had ever known. The results of this guy driving while intoxicated told me that even if I think I can handle my car and get it safely home after I've been drinking a margarita or two and feeling slightly dull, I shouldn't, regardless of my "experience" as a driver. While some of you might think "Duh!," you are forgetting all of the times that you yourself have put your vehicle or other vehicles at risk because you figured you were a skillful enough driver to navigate your way home after drinking "only two beers." The definition of "less safe" could garner you, at a minimum, a ticket for DUI, even if your BAC is less than 0.08...and, at a maximum, the loss of your life or someone else's.
Oh...one other thing. After our verdict was read by the Judge, we were still present as a jury for the sentencing phase. The Judge made some remark to the Prosecution regarding "aggravating" circumstances that should be considered in the sentence determination. At that point, the Prosecution brought forward and introduced 5 priors for the Defendant, including hit-and-run, DUI, driving with a suspended license, driving with an open alcohol container in the vehicle, and a felony shoplifting. There may have been a 6th charge as well, but when I heard the "hit-and-run," I sorta reacted with numbness.
As a jury, when we exited the jury room to deliver the verdict to the Judge, we all knew we had made the correct decisions based on the law. When those prior convictions were read in the courtroom prior to his sentencing, we knew we had made good decisions.
We were only introduced to one of these aggravating circumstances during the trial in something the Judge explained to us as being a "similar transaction." It was an incident in 1998 when the Defendant was arrested for DUI and public indecency (he urinated on the road in front of the police officer) on I-75 around Delk Road.
And, if the Prosecution ever reads this, I have to say that this "similar transaction" wasn't used in our determination of these verdicts. Our decisions were based on the BAC level reported by the GBI, the various witness testimony, the Defendant's own admission that, at a minimum, he had chugged one 16-ounce beer prior to jumping into the car and hitting the road, and our own reasoning about all of the evidence presented as it applied to this particular event..
There are two families that were directly affected by him deciding to drink and then drive. The family of the deceased woman who died when his car demolished hers. And, his family, including his wife, his daughter, and his mother, who was in the courtroom when he was sentenced to 15 years. Probably not a happy ending for anyone, but a necessary ending for all.
| Bill Simon - Thinking Outside The Box Bill Simon is the creator, editor, and publisher of The Political Vine. He has been a Republican since 1990 and been active in Republican politics since 1996. Professionally, Bill runs a political research services firm called Political Intelligence, Inc. and has another venture called ID Builders that helps political and business clients promote and market themselves using effective and innovative promotional products. He is single and lives with his adopted 90 lb. Yellow Lab named Brewster. |