“Thank you for being here today,” began Judge Andrew Sweet to the twenty-five of us assembled in the courtroom. After several hours of waiting, we had each been randomly selected and marched through airport-style security to Courtroom D of the Marin Civic Center. After another fifteen minutes of waiting, the bailiff came out and brusquely ordered us to turn off our cell phones and enter the courtroom. We filed in to the sight of Judge Sweet behind the bench in his black robes, and the prosecuting and defense attorneys stiffly standing and watching us file in with plastic smiles. The defendant sat at the table and looked down.
After welcoming and thanking us for obeying our summons (“Not that you had a choice” said Judge Sweet, chuckling politely) the judge reminded us of our civic duty, and then finally told us why we were here. “This is a criminal trial,” he informed us. “The charge in this case against the defendant is –” Judge Sweet hesitated a second, “ – prostitution”. Someone behind me gasped, and we all looked at the woman sitting next to the defense attorney, who kept her eyes down on the table in front of her. Though it wasn’t even noon yet, the judge then dismissed us for the day and told us to come back tomorrow for the voir dire, or the process of questioning and selecting twelve jurors from the pool of twenty-five of us.
I was pissed off as I drove back to Oakland. Pissed off that I would have to go back to San Rafael the next day, pissed off that the judge didn’t at least start the selection process and eliminate some people, and most off all pissed off that the Marin County’s District Attorney’s office was wasting taxpayer dollars and all of our time by prosecuting a minor prostitution charge. Of all the complex and systemic problems and injustice facing our society today, to pursue a case against a woman for prostitution seemed ridiculous. Didn’t they have more important things to do? The fact that the accused was a minority woman only indemnified the whole system even more, as the cynic in me wondered bitterly whether a white woman would have found herself in the same place.
I was conflicted as to whether I wanted to be selected for the jury or not. A significant part of me wanted to object to the whole stupid system and get out of having to serve. Another part of me thought of all the post-election conversations about the importance more than ever of everyone strongly participating in our civic duties and institutions in the new Trump era. If I were selected, I decided, I could at least help ensure that the poor woman would get every chance in the world to be found not guilty.
The next day at the beginning of the trial, Judge Andrew Sweet kindly gave us some advice as the lawyers prepared their questions to determine whether they wanted to kick us off the jury or not. “We all have biases,” Judge Sweet said, making sure to look at each of us in turn. “The question is, can you set aside your bias and judge whether or not the accused committed the crime based on the facts of the case or not?” If you cannot then that’s okay, he said, but you must acknowledge that now and be excused.
Several people exercised the right to retain their biases. “I don’t believe prostitution to be a crime,” bluntly stated an 18-year-old girl with mascara-caked eyes, in response to the prosecutor’s first general question to the group asking us how we felt about the charge. Yet when the judge asked if she felt able to determine if the defendant broke the law, whether she believed in it or not, the young woman quickly backed down and said “yes”. She was one of the first jurors excused. The man sitting next to me, in response to the question of whether he could be impartial given the fact that the defendant chooses to not take the stand, scratched his head and said “Well, that troubles me … I mean if you’re innocent why wouldn’t you testify and fight for yourself?” He was dismissed by the defense. Another man was dismissed since he regularly interacted with the Novato police through his work, and we were informed that the central witness would be a Novato City police officer. Another was dismissed because he sat on the same board as the judge.
And then there was the only potential juror dismissed by the judge himself. The man was a lawyer, and like the 18-year-old girl he said he did not believe prostitution should be a crime. Yet unlike the young woman, when pressed he did not back down. “I do not think I can in good conscience set aside the grey area of the law”, he said in lightly accented English. It would … be very hard for me to judge someone guilty of something I don’t believe in, he continued softly. I tried to imagine a job and life where he had the luxury of choosing which laws to believe in, and came to the snide assumption that he probably worked in patent law for a tech company. After the judge called both lawyers aside for a consultation, he returned to the bench and thanked and dismissed the lawyer.
“Beyond a reasonable doubt” is the phrase that kept resonating in my head, as myself and 11 other jurors sat in a tiny deliberation room behind the courtroom. Judge Sweet’s jurors room held a conference table with twelve chairs crammed around it, a tiny men and women’s toilet, a mini fridge, and a nearly empty cabinet with a few sad small packets of tea, coffee and sugar. For two days the twelve of us randomly selected strangers had sat through numerous breaks and waited for court to begin in the cramped jurors room, patiently abiding by the judge’s edict to not discuss with each other the one thing that had brought us together. The first day and a half, we obeyed the edict by remaining silent and absorbed in our phones throughout our 15-minute breaks. Finally out of sheer boredom we began discussing the weather, reporting to each other from our phones which local roads and areas had been flooded by the latest storm. By the last day, we were asking each other what we did and relating stories about work, family, and the like as if we were old friends. One woman upon learning my profession asked if I happened to know a Russian water rights activist. “He died last year,” she said sadly. A younger juror told me his construction company was working on the new Apple campus in Cupertino. “168 acres,” he chuckled, shaking his head. It was so big, he explained, the company was going to put in a transit center for their private buses, but would also need a separate shuttle just to get people from the parking lot to the main building. The new campus would definitely increase the traffic, he concluded, “which sucks for locals but it doesn’t matter though – Apple owns that town.” A physician and retired health care practitioner rattled off names of people they knew in common. “He’s still working?” asked the physician, surprised. “I swear he was close to retirement when I was working there.” There was a sense of camaraderie, an acceptance of each other and our task despite the wide range of differences in our age, ethnicities, and professions. The opportunity to be in a room and interact with a variety of people from different backgrounds is increasingly rare today, as we slip deeper into our homogenous social circles and online lives. As jurors young and old chatted with each other around the table, I wished that this type of respectful acceptance and collaboration could have been highlighted during the last election, instead of the media’s propensity to focus on (and perpetuate) the vicious polarization that instills fear about our country and its direction. But the thought was interrupted by the bailiff, who entered to inform us that the lawyers, defendant, and judge were awaiting us in the courtroom.
In the end the trial was not great. Both lawyers, from the district attorney’s office and the defense, were young, inexperienced, and made numerous mistakes. The defense attorney tried to dismiss a potential juror who had been interviewed but wasn’t yet even in the jury box. The prosecutor, annoyingly referred to as “the people” – though I don’t recall the people of Marin asking their local government to devote scarce and valuable resources to arresting and prosecuting a poor woman for trying to make money – awkwardly shuffled through and mixed up the order of her 36 items of evidence, which consisted of photos of the defendant’s cell phone messages. This required the other attorney and the witnesses to laboriously shuffle through their copies as well in order to find the page the prosecutor referred to. The prosecutor also stumbled over several “incomplete hypotheticals” in her enthusiasm to lead her expert witness outside his expertise to the world of the conditional (“If these items were to be found together on a person would you…”). She lost several objections by the defense until the judge kindly advised her to give up her line of argument. There was a grainy and shaky video from the arresting officer’s body camera, which consisted of several minutes of silence where the audio had been redacted and only about a dozen seconds of actual sound that we were allowed to hear.
Back in the jury room, once deliberations began there was silence at first. We quickly agreed that due to the confusing nature of the evidence – multiple texts from multiple people over multiple days which we heard in bits and pieces as the lawyers asked witnesses to read certain texts, or highlighted during the lawyers’ powerpoint presentations as they made their closing arguments. We laid out the 36 pages of evidence, separating them into distinct conversations. It became quickly apparent as we discussed the evidence that several people were already vocally leaning towards voting guilty.
Now that we were allowed to discuss the case, biases came out in the open, and some were ugly. “That woman must be on drugs,” sniffed an older woman. “Did you see her shaking?” “She seemed sleepy,” said another, “of course who wouldn’t be if you’re working the streets all night?” I was appalled – as if the poor woman had been prostituting right up to the minute the trial began! Several others, including me, were obviously on the defendant’s side. We gently and politely reminded everyone that we needed to stick to the evidence presented and the charge she was accused of – other opinions and observations were not allowable for consideration.
It was quickly established by all of us that there was little question that the woman had engaged in “sex acts”, as the lawyers put it. The multitude of texts from unknown numbers asking how long, how many “kisses” or “roses” per hour – standard lingo for pay rate, according to the expert witness – and text conversations negotiating the location of late night meetings cast little doubt. The second part, however, was much more difficult – and that was determining “beyond a reasonable doubt” that the defendant had received money for the sex act. There was no direct evidence, since the police officer had neglected to photograph the text which talked about payment. However the officer testified that he saw a text indicating that the cost of the oral sex the woman was giving the guy when they were caught was $60. And exactly $60 was found in her purse, right next to the hatchet that she was carrying for protection.
As the jurors’ conversation slowly started circling towards a conclusion of “guilty”, I felt frustrated. From the instant the judge described the charge at the beginning of the trial I had leaned towards “not guilty” – an admitted bias against a system that finds a single woman guilty of receiving money for sex acts yet makes no attempt to understand or care why. Judge Sweet from the beginning clearly and deliberately instructed all of us that the scope of our job was to simply determine whether the woman was guilty or not of the crime she was charged with – that we were not to consider other factors such as why the man soliciting the sex acts from her wasn’t being charged, or why her pimp wasn’t arrested. Justice, it seemed from our instructions, is supposed to exist in a vacuum – however I struggled to see how justice with no context could be justice at all.
It also deeply bothered me that what could be up to six months in jail for the defendant was likely for the young prosecutor a notch in her belt, perhaps even a platform for a future political career. I hated the fact that although I tried as hard as I could to find one, there was no other reasonable explanation for the evidence presented. But most of all I hated that we could not find out the context of the crime. We the people put this woman on trial yet we also loaded the dice against her – holding her to laws written and enforced by privileged people existing far, far away from the harsh reality that she faced daily. A high-end escort service, which I imagine are not hard to find, would likely never find one of its escorts in a courtroom charged with prostitution. This woman in front of us was here not because she broke the law against prostitution; but because she happened to be caught, and didn’t have the resources or knowledge to avoid the charges.
Yet we were repeatedly instructed that none of that mattered, that we didn’t have to agree with the law – we just had to decide whether she had broken it or not. We were to judge her, but who puts society on trial and judges it for rigging an unfair system? Or judges a process that asks people who have mostly benefitted from the existing unfair system to close our eyes to the root causes of prostitution, and ignore the why but simply focus whether she did it or not? It’s as if we began watching a race at the end and looked up to see the runners flash across the finish line. ‘Why, it’s easy to see who won,’ we say to each other nodding sagely. It’s obvious who crossed the finish line first. But how that person happened to be in position to win when we looked up, the sum of the events that put them in that position – those details apparently don’t matter, according to our sacred and hallowed institutions of law and justice. Just the end result.
The end result was we found her guilty. While the judge’s aide read the verdict, and as the defense lawyer made us each affirm that we had voted guilty, I kept my eyes on the judge. I felt too ashamed for my participation in an unfair system that shamelessly calls itself justice to look at the defendant. After we were dismissed I glumly trudged to my car to begin the long drive back to Oakland, and fell in step with another juror who was walking out – the young construction worker building Apple’s new campus in Cupertino. “She looked shocked when they read the verdict,” the person I only knew as Juror #6 said conversationally. I told him that I didn’t look at the defendant; I hadn’t wanted to see her reaction. Juror #6 didn’t seem bothered though.
Over the next week when co-workers, neighbors, and friends asked me how jury duty went I expressed my frustration with the system, and vented about my forced role in perpetuating a system that can find a person guilty of a crime and completely ignore the circumstances leading to the crime. I suppose the defendant could have testified, and she might have talked about being poor and having no choice but to make money the only way she knew how. She might have talked about needing to feed kids at home, and not being proud of her profession but doing it to take care of her family. She could have talked about why she had to carry a hatchet for protection, about the very real physical danger she faced every night while working – imminent dangers which likely make the long-term consequences of being found guilty of prostitution seem like nothing. She could have talked about wanting to leave the profession, about preferring to do anything else but having no other options. She could have talked about facing intimidation from her pimp (named “Daddy Koolpad” on her phone, as we discovered during the trial) for not working. She could have pointed out the injustice of the fact that she was being charged for a crime, while the man soliciting her services and the man pimping her were both out free.
She could have talked about any or all of those things. However, in our system of “justice”, not a single one of those details would have mattered. Which is perhaps why she chose to remain silent.