The lone juror
The first-person account of a jury-member holdout in a recent Sacramento gang-shooting trial
In the 1957 film 12 Angry Men, Henry Fonda portrays the lone dissenter on a jury whose other 11 members all favor a guilty verdict. To my dismay, I found myself recently on a jury, in a downtown Sacramento courtroom, in just that position.
In the early morning hours of October 12, 2008, gunfire broke out at an AM-PM mini-mart located at the intersection of 65th Street and Fourth Avenue just south of Sacramento State University. Unbeknownst to the gang members involved in the shooting, a parking-lot surveillance camera captured much of the violent occurrence on video. More than three years later, on October 26, 2011, I and 11 other jurors gathered in court to figure out who was responsible for the shooting. Each of our two defendants was charged with seven counts of attempted murder, plus a whole menu of additional and/or alternate charges: committing a felony while part of a criminal gang, shooting into an occupied vehicle, disturbing the peace, attempted manslaughter, etc.
The incident was alleged to involve members of two rival African-American street gangs, Killa Mobb and FAB (the prosecutor would tell us that FAB stood for Fourth Avenue Bloods; his star witness said it stood for Fuck a Bitch). Practically the first instruction we were given by Judge Steve White was that we should not even glance at the current edition of the Sacramento News & Review, which apparently carried a front-page story about street gangs in Sacramento (I can’t confirm this, having obeyed the judge’s order).
The judge also instructed us not to visit the crime scene, search for information related to the crime on the Internet, or do any investigative work of our own. I didn’t know it at the time, but a previous trial involving several of the same defendants was under a cloud of controversy because one of the jurors had posted comments about it on Facebook while the trial was ongoing. One night, after jury duty, I came home and Googled the names of the defense attorneys just so I could get the spelling correct in my notes. The next day in court the judge, although he mentioned no names, looked directly at me and said, “Ladies and gentleman of the jury, let me remind you that you are absolutely forbidden to look up anything about this case on the Internet—is that understood?” After that, I was afraid to even go online again until after the trial ended.
The trial was complicated. It involved five defendants and two juries. My jury (always referred to by court officials as the yellow jury because of the color of the badges we wore) was charged with determining the guilt or innocence of only two of the defendants, Ornelle Anthony and Ryan Malcolm. The fate of the other three defendants was in the hands of the green jury.
The prosecutor was Jeff Hightower of the Sacramento District Attorney’s office. His case against the accused consisted primarily of three things: the testimony of one of the shooting victims, the testimony of an accomplice-turned-snitch and the video recording of the events. On a TV legal drama, this would have been an unbeatable trio: an insider willing to turn against his partners in crime, an aggrieved rival gang member eager to see his assailants punished and an impartial mechanical observer incapable of lying.
But real life is rarely as tidy as episodic television.
As I listened to the DA describe his evidence during the opening arguments, I imagined the case would be fairly easy to decide. But 43 days later, when the forewoman handed our final verdict to the judge, I felt as if I’d been through a heavyweight fight with 11 opponents. I spent the last two weeks of that period locked in a room with a bunch of near strangers, all of whom were determined to get me to change a “not guilty” vote to “guilty.” And until you’ve been the lone holdout on a jury of 12, you have no idea how lonely and unsettling that position can be.[page]
A violent encounter
Exactly what happened at that AM-PM on October 12, 2008, remains unclear, but here’s a rough summary of the DA’s allegations: At about 2:13 a.m., 10 members of the Killa Mobb gang left a party at a nearby apartment complex and split up into three cars—a white ’91 Lexus, a white Chevrolet Cavalier and a black Dodge Charger. About a minute later the cars, lead by the Cavalier, prepared to enter the AM-PM parking lot just as a black Dodge pickup truck carrying seven alleged FAB members was about to exit the same driveway. As he approached the driveway, the driver of the Cavalier made an aggressive move to block the path of the truck. Then he pulled the Cavalier into the driveway and stopped it alongside the truck.
That’s when backseat passenger Ryan Malcolm exited the Cavalier, and began to harass the FAB members in the truck. About a minute later, according to the DA, Ornelle Anthony climbed up out of a passenger side window of the Charger, which was situated in the Fourth Avenue suicide lane, and fired shots across the roof of the vehicle into the front of the FAB truck. Excited into action by Anthony’s gunfire, another defendant, Trevor Williams, reached inside the Cavalier for a handgun and then fired across the roof of the Cavalier at the FAB truck, which by then was fleeing the scene.
The prosecutor’s first witness was Tyrone Wilson, the driver of the FAB truck. He was shot in the lower back as his truck left the AM-PM and was later treated at the UCD Medical Center and released the following day. He was the only one of the truck’s seven occupants who bothered showing up in court to accuse his alleged assailants of attempted murder.
Physically, Wilson didn’t fit the Hollywood stereotype of a gang member. He was 6 feet tall but weighed only 140 pounds. He spoke in a low voice, perhaps because he still carried a bullet in his back, located a quarter of an inch from his lungs, which sometimes caused him breathing difficulties. Under direct examination he told the prosecutor that he had almost no memory of the events and that he didn’t recognize any of the five defendants sitting before him in court. In order to put together a narrative of the events at the AM-PM, Hightower was forced to rely on previous statements made to the police by Wilson. This was a tedious process that involved exchanges like this:
HIGHTOWER: Do you remember telling Detective Saario on December 2, 2008 about a black Charger that was stopped in the middle of Fourth Avenue?
HIGHTOWER: Would it refresh your memory if I showed you a transcript of that interview with Detective Saario?
WILSON: I guess.
HIGHTOWER: (Handing Wilson a fat binder and pointing to the relevant passage of the interview.) I want you to read those lines I have indicated quietly to yourself. (A pause while Wilson, who claimed he hadn’t read more than 100 pages in his entire life, slowly reads the relevant lines, and then hands the transcript back to Hightower.) Now, Mr. Wilson, do you remember telling Detective Saario that there was a black Charger in the suicide lane of Fourth Avenue.
WILSON: If that’s what it says, then I guess so.
After an hour or two of direct examination by the prosecutor in this manner, the witness was cross-examined by each of the five defense attorneys. This was followed by more direct examination and then five more cross-examinations. This wearisome process went on and on.
Down the rabbit hole
To the nonlawyer, jury service can seem like a trip to Alice’s Wonderland, a place where the meanings of words can change randomly and the contradictory is commonplace. The judge explained to us that, in a courtroom, certain words are used differently than they are in ordinary life. For instance, in ordinary usage “malicious” means merely “a desire to see harm befall another,” whereas in a courtroom it describes an act “specifically intended to cause harm to another.” Likewise, “willful,” which usually just means “stubborn” (as in “a very willful child”) in a courtroom always means “intentional.”
What’s more certain, words that are vital in the world of fictional sleuths and lawyers have no place in a real courtroom. “Motive,” which, along with “means” and “opportunity,” forms part of a sacred trinity in the world of Perry Mason and Hercule Poirot, gets no respect in a real courtroom. As the judge informed us, “The prosecutor has the burden of proving each defendant’s guilt beyond a reasonable doubt, but he is under no obligation whatsoever to establish any kind of motive for the crime.” In the real world, crimes are often committed for no reason at all.
The prosecutor’s second witness (and the only one capable of positively identifying the defendants) was Ravneel Atwaal, the driver of the white Lexus and an alleged member of Killa Mobb. He was roughly the same age as the defendants, 21, about 6 feet tall and possessed an average build. He must have been fairly strong, however, because three weeks after the AM-PM incident, on Halloween night of 2008, Atwaal was videotaped by security cameras as he participated in the brutal beating of a rival gang member at a Shell gas station across the street from Arden Fair mall. He faced a 23-year jail sentence for that incident, but the DA offered to reduce it to seven years and eight months if he testified truthfully at the AM-PM trial. Although he was much more animated than Wilson, and his answers were generally longer and more detailed, many of the things he said were contradicted either by the videos we watched or by his own previous statements. By my count, his testimony contained at least 10 serious discrepancies and dozens of minor ones.
Neither Atwaal nor Wilson was especially articulate, but neither came across as stupid. On some matters they were easily tricked by defense attorneys. Both men told the prosecutor that they saw someone shooting from the Charger, but each man, when asked by a defense attorney some variation of the question, “Isn’t it true that you never even looked at the Charger because all of your attention was focused on the activity around the Cavalier?” answered “Yes,” thus contradicting his previous statement to the prosecutor. Though much of this testimony may have been questionable, each eyewitness had a few topics on which no amount of defense-attorney hectoring could alter his story. The defense attorneys tried repeatedly to cast doubt on Wilson’s credibility by asking him to describe over and over again the damage his truck sustained during the shooting (suspiciously, the truck was stolen and destroyed a few days after the incident and wasn’t available as evidence).
Wilson described the multiple bullet holes and deflection marks and shot-out windows and broken vehicle lights and interior damage with perfect consistency over and over again, never varying a single detail. Atwaal, despite persistent efforts by defense attorney Kelly Babineau to trip him up, was consistent whenever he gave an account of where each of the gang members in the three Killa Mobb cars was sitting (his certitude on this matter was problematic because some of his assertions were contradicted by Wilson, and some were in conflict with other evidence in the case). Also interesting was the way Atwaal, whose vocabulary was generally limited, would occasionally produce a phrase (“I saw the defendant brandishing a weapon in a flamboyant manner”) that made you wonder if his testimony had been scripted for him, or if he’d just seen one too many TV cop shows.
After listening to hours of testimony by these two men, I found myself hoping that the DA had some strong physical evidence still to come that would link our defendants to the crime. Alas, he brought forth no such evidence. By the end of the trial, my uncertainty about the defendants’ guilt must have been written all over my face, because the defense attorneys seemed to detect it.
During the course of the month-long trial, Babineau and Peter Kmeto, the attorneys for Malcolm and Anthony, respectively, must have done some Internet research on their jurors and reached the conclusion that I was the one most likely to champion an acquittal. When Kmeto began his final summation to the jury, he noted that in order to render a guilty verdict, the law required us to have “an abiding conviction” of a defendant’s guilt. Then, while looking directly at me, he said, “Our founding fathers had large vocabularies. They understood words like ‘abiding’ and ‘conviction.’ Nowadays, people have smaller vocabularies, and not everyone knows what those words mean. ‘Abiding’ means ‘enduring.’ A ‘conviction’ isn’t a belief; it is a ‘certainty.’ With their large vocabularies the people who created our judicial system were telling future jurors that they cannot find a defendant guilty unless they can live the rest of their lives certain of that guilty verdict.” Again and again he hammered at the word vocabulary while staring right at me. Clearly, he had Googled my name and discovered that for the last five years I have written a regular column for a monthly online journal called The Vocabula Review, which caters to word lovers and deals primarily with language, linguistics and related subjects.
When the time came for her summation, Ms. Babineau looked directly at me and said, “Remember, you are one jury of 12, but you are also 12 juries of one. If you don’t believe a conviction is called for in this case, any one of you has the power to stop it from happening.”[page]
A Jury of One
In films like Runaway Jury, jurors are often seen discussing the merits of a case before the defense and prosecution have rested. In real life, jurors are absolutely prohibited from discussing the case with each other until both sides have rested. Thus, I had no idea how my fellow jurors might be feeling about the case until we reached the deliberation room.
At that point, everything changed. We had been cordial strangers during the trial. Only after we had filed into that deliberation room and jotted our names down on handmade nameplates (first names only; I never learned anyone’s last name), did we truly come to know each other. We were 11 Caucasians and one Asian, five women and seven men. Five of us (as I recall) were government employees. One of us worked for Macy’s. One of us worked for a phone company. One was a nurse. One worked in insurance. Our tastes in food and movies and literature differed greatly.
It took us only about an hour to unanimously acquit Malcolm of all the charges against him. In his closing statement, Hightower had told us, “If Ryan Malcolm had stayed in the car, he wouldn’t be a defendant here today. But he didn’t stay in the car. He got out of it. And that’s why he is on trial.” But, as one of the jurors put it in the deliberation room, “This is still America. A guy ought to be able to get out of a car if he wants to and not be arrested for it.” Unfortunately, we decided to put off filling out the paperwork that would officially acquit Malcolm until we had reached a decision on the Anthony matter. This decision would nearly cost Malcolm his acquittal as you’ll see later in this story.
Next, we turned our attention to Anthony. The other jurors all believed he was guilty, but I had plenty of reasonable doubt about his guilt.
For a day, my dissension was tolerated. By day two, however, I was a marked man. That’s when I found myself starring in a live unscripted remake of 12 Angry Men. At one point I said, “Maybe I’m biased in favor of the defendant, but I thought the defense attorneys did a good job of discrediting the prosecutor’s case.” This unleashed a firestorm of accusations: “You admit that you’re biased. It’s your obligation to go to the judge and tell him you’re too prejudiced to continue as a juror on this case.” Mind you, plenty of other jurors had made statements I thought were far more biased than my own. One juror opined, “Regardless of what we decide, this guy’s destined to end up in the morgue or back in prison.” But because I was the lone vote for acquittal, only my statements were ever deemed prejudicial.
When I refused to disqualify myself, the forewoman and another juror both sent notes to the judge accusing me of being hopelessly biased in favor of the defense. Later that day, we got word from the bailiff that the judge wanted to see us all in the courtroom. This created a euphoric atmosphere amongst some of my fellow jurors. They seemed convinced that I would soon be replaced by one of the four alternate jurors. As we waited in the hallway outside the courtroom, I mentally rehearsed a defense of my damning statement. I believed the prosecutor’s case left plenty of room for reasonable doubt, and I was determined not to let the accused be railroaded into jail over my disqualified body.
As we filed into the jury box, I couldn’t help feeling as if I were now on trial. The judge was back on his bench. The prosecutor was back at his table. All five members of the defense team were at their table. I was terrified. I fully expected the judge to confront me with the accusation that I was biased. Instead he picked up a sheaf of papers and began reading what were obviously boilerplate instructions for deadlocked juries. The judge never asked us about the specifics of our impasse. He merely ordered us to continue our deliberations.
An 11-1 Tie
Back in the jury room, we all agreed to revisit the testimony of the prosecution’s two eyewitnesses. Though tedious, the read-backs from the court reporter provided plenty of fresh ammunition. This did nothing to end our stalemate. Seven days into our deliberations, we remained at an impasse.
Some of our problems were due to our ignorance of the law. We were given 48 pages of jury instructions, but not all of them were clear to us. One instruction, for instance, informed us that we could interpret direct evidence any way that we wanted, but the rules regarding circumstantial evidence were different. If a piece of circumstantial evidence could reasonably be interpreted in two different ways, one of which favored a guilty verdict and one of which favored a not-guilty verdict, we were required by law to interpret the evidence only in a way that was favorable to the defendant. This was a crucial point. Because of a tree blocking the camera’s view, the videotape didn’t show anyone shooting from the Charger, but it did show the people milling around outside the Cavalier all reacting at once in a manner consistent with being startled by a loud noise.
My fellow jurors believed this was evidence of shots being fired from the Charger, which tended to support a guilty verdict against Anthony. I noted that it could also have been evidence of shots being fired by the unseen driver of the Cavalier (evidence was presented in court suggesting that the Cavalier’s driver had fired at the FAB truck), an interpretation which I believed created reasonable doubt about Anthony’s guilt. I also argued that since the video recording was circumstantial evidence, we were required to accept only the interpretation that favored the defendant. The others insisted that the video was direct evidence and could be interpreted either way. We sent a letter to the judge asking him whether the video was direct or circumstantial evidence. His response was a terse note saying, in essence, “You have reviewed all the evidence in the case. If you have questions about how to proceed, refer to your jury instructions.”
It struck us all as odd that six attorneys, a judge and dozens of other behind-the-scenes legal professionals had put thousands of hours of work into this case and then thrown the outcome of the matter into the hands of 12 random citizens, none of whom knew what circumstantial evidence was. The juror who worked as a nurse summed it up this way: “This makes no more sense than if a bunch of doctors were to examine a patient, conduct numerous extensive tests on him, and then place all the medical information they’d gathered into the hands of 12 people pulled randomly off the street and tell them: ‘Here, come up with a treatment plan for this patient.’”
The frustration of the others was understandable. In any other venue in the world 11-1 is a winning score. Only in the deliberation room of an American courthouse is 11-1 considered a tie. Even I felt uncomfortable with the standoff. Day after day I watched as, during breaks in our deliberations, my fellow jurors struggled to keep up with the work they were neglecting due to my extended holdout. I felt guilty listening to my fellow jurors trying to meet their professional obligations. Had the rules allowed the majority to ignore my opposition and find the defendant guilty, I would have been relieved. Instead, I was becoming an emotional wreck. I couldn’t sleep at night. I told my wife I was afraid I might end up agreeing to convict the defendant out of sheer cowardice or exhaustion. She told me, “No, you won’t. You’re stronger than you think.” Her faith in me was about the only thing that kept me going.
In an effort to break me down mentally, emotionally and physically (or so it seemed to me), some members of the majority tried to force me to rebut arguments that I had already rebutted numerous times. Finally, I announced that I was through defending my verdict. This gave rise to threats: “You’re required to deliberate. If you don’t think you can defend your position, you should go to the judge and disqualify yourself.” But I refused. I told my opponents, “If you think I am guilty of misconduct, report me to the judge.”
At this point, one juror began claiming to have doubts about the innocence of Ryan Malcolm. “I think we need to go back and review his case,” she said.
It seemed clear that she was issuing a veiled threat to me: “Either join us in convicting Anthony, or I won’t allow Malcolm to be acquitted.” She put in a request to have an additional day’s worth of testimony read back to us. Meanwhile, another juror sent a letter of complaint about me to the judge. Soon, the bailiff informed us that the judge wanted to see us back in courtroom in one hour. Once again I found myself sitting nervously in the hallway outside the courtroom, mentally rehearsing the words I would use to defend my not-guilty vote to the judge.[page]
End of the holdout
With the jury once again back in court, the judge turned to the forewoman and said, “I understand you are still at an impasse—is that correct?” The forewoman said yes. At that point I thought he would ask who the holdout was and then force me to stand up and defend my verdict. But without any further ado, the judge merely said, “I accept that you are now a hung jury and I declare a mistrial in the case of the People vs. Ornelle Anthony.”
Next he asked us about the Malcolm case. “Any chance of reaching a unanimous verdict?” he said to the forewoman. “I think so,” she answered glumly.
By the time we returned to the deliberation room, the juror who’d earlier expressed doubts seemed to be having second thoughts about her second thoughts on the Malcolm verdict. She had already requested a read-back of a day’s worth of testimony. She couldn’t cancel this request without it becoming obvious that it had been made merely to intimidate me. But much of the combativeness seemed to have gone out of her. We came into the deliberation room the next morning and listened while the court reporter read back three or four hours of the transcript to us. After that, we took a formal vote on Malcolm.
An hour or so later, we were back in the courtroom. It was December 8, 2011, 43 days after the trial began, and more than three years after the alleged crimes had occurred. The forewoman handed our paperwork to the judge.
And just like that it was over. Malcolm was acquitted; Anthony still faces the possibility of a retrial. The judge thanked us and dismissed us from the courtroom. I never came close to winning Anthony the acquittal I thought he deserved, but I walked out of the courthouse on the last day of my jury service with my head high. Over the course of eight days of unrelenting opposition, I had managed to remain true to my conscience.
Throughout the trial, I had sought advice and solace in the works of some of my favorite authors: the essays of Michel de Montaigne, the poems of W.B. Yeats, and the maxims of Baltasar Gracián, whose book The Art of Worldly Wisdom is a bible of sorts for me. But it was in a collection of poems by recent U.S. Poet Laureate Kay Ryan that I found the words that proved most helpful. They were from a poem called “Patience”:
a place with
its own harvests.
Or that in
from the genuine
If you ever find yourself the lone holdout on a jury of 12 people, remember this: It is not necessary to be clever or courageous or persuasive, like Henry Fonda in 12 Angry Men. If you are patient, the judge will eventually bring your trial (and your tribulation) to an end.