Jury Experiences
02-08-2008, 10:58 PM
[Footnotes appear at the end.]
Dear Reader
This was my first experience as a juror since becoming a citizen in 1985. Over the 21 days of my jury service I traveled over 1,680 miles and got paid $40 per day. I seek neither agreement nor sympathy from anyone. However, I am critical of the justice/jury system because of my experience that will be explained in the following paragraphs.
I was Juror No: 4, one of two dissenting jurors in this case. I have interest in neither party. I understood at the start of deliberation that a just verdict first required a process of discussion and unanimous agreement. Least significant is my description of the absolute dissonance and deviation from that process which occurred in the jury room. Most important is the refusal by the Judge to recognize the degree of that dissonance and the extreme measures which she pursued to secure a verdict on her own whim.
At the end of the fourth day of tedious deliberation on Saturday, December 22, 2007 it had become apparent that there would be no temporary recess on Sunday. I was depleted. It was clear that the dismissal of our jury would only occur if there was unanimous agreement by every juror.
The People’s case brought two charges against the defendant. The first was Manslaughter and the second was Criminal Possession of a Firearm. This letter only discusses the first charge. The second charge was never deliberated upon by this jury. By the eleventh hour on Saturday I was exhausted. My mind and my psyche had endured a prolonged experience of such intense stress that I needed rest. Unfortunately, the Judge had a different agenda to pursue.
The Court provided an overwhelming number of pledges and instructions, which it ultimately failed to uphold due to its own inconsistency and hypocrisy. Some examples include:
Jurors were instructed to avoid contact with persons involved in the proceedings. However, in the morning the jurors entered the court building waiting in a security line alongside either the defendant or the deceased’s family. Yet, at the end of the day when we exited court, court officers took active measures to ensure that we maintained a distance of approximately 70 feet from them.
After the trial was over, I recalled the face of a character named Joey Guns whose picture was in a story I was reading about the Marty Tankleff case. He had crossed my path in the lobby of the court building during a lunch break and had sneered at me in a sinister manner.
During the trial, while the Judge had instructed us not to read newspaper accounts, a newspaper was brought into the jury room by a juror most days of the trial.
Close to the end of deliberations late on Saturday afternoon a juror had lost control of himself and, the court had accommodated him in a separate jury room. Upon his return, he tried to engage me and I had suggested that he take a walk outside before he makes any further attempt. He agreed provided that I accompany him. We both proceeded with a request to the Judge to talk outside and she consented with the escort of four court officers. We discussed the case without the presence of other jurors and within earshot of all four court officers assigned to us. We had tacit approval to talk.
My Background:
I am white African-American. While I’m not black I’ve witnessed more overt racism than most Americans may realize and am able to recognize it. That is my label, but don’t label me. If you think you know me, you don’t, just as I don’t know you the reader.
I was born in South Africa in 1961. The character of that era would have led me to believe that the white South African government was the bulwark of democracy in sub-Saharan Africa. After coming to America I had also believed that the jury system is a bulwark of American democracy. Ironically, after my experience as a juror on this case, I conclude that there are unfortunate similarities between the two systems. Just as the white South African government was limited to the participation by the white minority of its citizens by law, so the American jury system has placed many voluntary limits on jury service participation. The reader will discover in the following paragraphs that there are many reasons for this.
The irony of my circumstance was that the same beliefs and mindset which controlled ordinary South African lives many years ago were pervasive at the Criminal Court in Riverhead in 2007. It appears to me that while a Judge may have the duty to secure a verdict, the justice system has a greater responsibility to ensure that this does not occur in violation of reasonable standard, or with disregard or lack of recognition and respect for every juror’s uncontaminated individual decision.
It is important to put this writing into perspective. There was never uncertainty in my “not guilty” verdict. The jury communicated to the Judge that we were deadlocked on several occasions and, the jury heard the standard Allen charge to continue deliberating read back repeatedly. In hindsight, one may criticize another’s choice. Most important, is that we keep our criticism free from double standard and hypocrisy.
Speculation:
From the first day of deliberations, the jury speculated on the defendant’s situation and his finances. Questions were asked and comments made in the jury room in the very first hour such as, “Why wasn’t he in custody? He probably posted bond. How much was the bond? How could he afford it? Does he still live in the same house? That’s a million dollar property! Did you see the golf course? I’m sure the lawyers are getting paid by the hour. No, they probably charged him a fixed fee. Yeah, but he has two lawyers to pay. No, he doesn’t…there are three.”
They speculated about the deceased having a romantic interest in the girl whose honor he was allegedly defending when he arrived at the defendant’s home. They speculated about the defendant’s son having ADHD. They speculated about the identity of members in the audience. During the trial a Suffolk County police chief in the audience and a detective on the witness stand was even identified by a certain juror. Several other jurors questioned him, “How do you know these guys?” He answered, “You have to hang out at the right place on Fire Island”.
By failing to communicate clearly and consistently regarding the schedule of the trial and the deliberations, the Judge also promoted further speculation and conflict among jury members. On the last day of deliberations another juror had shared an opinion with me that the judge might possibly keep us there until Easter. I replied that I would be happy to stay until Easter. That’s when a third juror chided me from the opposite end of the table stating that I was irresponsible to make that statement even though she hadn’t even been a party to the whole conversation. I replied abruptly, which caused tension and an uneasy silence. This is just one example of a situation which could have been avoided with clearer communication from the court.
Although there was never any evidence to suggest that the confrontation occurred anywhere other than on the defendant’s property, the jury speculated about the boundary line of the property. They ignored their duty to consider the facts of the case.
Deliberations:
One juror argued during deliberations that he was a gun owner and, that as such, he knew that the defendant should never have taken the Beretta outside because it had too much firepower for the situation at hand. I quote, “I can’t understand why the defendant testified that he left the shotgun behind because it had too much firepower. He should have taken the shotgun outside”. I was intrigued by his reasoning because it was apparent that this juror was supporting the defendant’s justification defense as reasonable action. He apparently disagreed with the weapon of choice.
Nevertheless, since he had brought up an interesting point I felt an obligation to inquire further. He answered that a shotgun blast disperses into tiny fragments when the gun is fired and that those tiny fragments would normally be too small to create a hole of a size comparable to the one in the deceased’s left cheek. He pointed to the photograph of the deceased in evidence as he explained this. He then concluded, “We wouldn’t be here if he had taken the shotgun”.
He later added, “I’m just glad he didn’t use a 45”. Another juror asked him to explain why. He answered, “Because the bullet would have traveled right through his head and, would have exited at the other end”. The juror who had asked for the explanation tightened her facial muscles into an expression of concerned silence.
I challenged his reasoning, “But from the ballistics expert testimony, the gun was fired at close range. Surely if a shotgun was fired so close the result would have been the same?” Another juror agreed with me quickly. The gun-owning juror felt rebuffed at this point and said, “Well, it was just overkill. C’mon man the clip had 8 rounds in it. That meant he could have just gone trigger crazy and pop, pop, pop….killed all of those kids…it just doesn’t make sense man”. He continued, “Besides, the shotgun is so much more visible. I’m sure those kids would have backed off if they had seen the shotgun. You saw how the DA held the gun concealed in his hands. It was not easily visible”.
Because I was convinced that the defendant’s actions had been justified, I was determined to continue in order to make that point. I reminded everyone of several important facts:
That the defendant’s son did have the shotgun with him
That the young men had testified that the defendant had fanned them with the handgun and that they were afraid
That the defendant was not trigger crazy and that he didn’t fire indiscriminately
That the tragedy occurred because the deceased was the only one who had challenged the defendant
But no-one was listening anymore. The deciders of fact were moving out from the deeper water. It was hopeless. I was swimming alone. The jury ignored their duty to listen to a plausible explanation pointing to the defendant’s innocence.
The Jury Mindset:
The jury identified with the actions of the group of young men. They believed it is normal for young men in this phase of maturity to consume alcohol excessively and to get involved in fights. In contrast, they completely discounted the defendant’s mindset on being awakened abruptly, on the threat to his family and the intimidating nature of the young men’s behavior, as they were intent on threatening him with racial epithets at the entrance to his own home.
One juror recounted an activity that he and his friends had engaged in at a similar age to the deceased. He started, “We were also young and irresponsible”. He volunteered his story as an example of how teenagers are, by nature, irresponsible and to make the point that society should never sanction such “normal” behavior by introducing a gun into the situation.
The story was told of how he and a group of friends would rent a car and purchase the accompanying accident insurance. They would then drive the car with the intention to purposefully wreck it. All the jurors questioned him, “But, why would you do that?” His response was, “We had nothing better to do and so we purposefully bought the rental insurance so we had nothing to worry about”.
I recognized some parallels between the story told by the juror and the case we were discussing in the deliberation room. Instead of a renting a car, the young men in this case had engaged in the game of beer pong. When their irresponsibility led to tragic consequences, the district attorney’s office became their insurance. They didn’t even have to purchase it. It came with the compliments of hard-working, taxpaying citizens, including the defendant himself. The jury believed that it’s “normal” for young men to be irresponsible and that society has a duty to pay for the consequences of their irresponsibility.
In the jury’s minds a kid was dead and the person who pulled the trigger was responsible. It was an open and shut case of simple justice. Any legal defense was just an exercise in futility. The jury failed in exercising their duty to understand, consider or accept a plausible defense.
Conspiracy of Ignorance:
The 10 jurors who were convinced of the defendant’s guilt were obsessed with removing me from jury service. Their charge was that I was dishonoring my [1]oath. Although the oath was printed in the juror handbook in the jury room they persisted with repeated requests for the Judge to read the oath. They regarded me as a foreigner who was rejecting their laws. More appalling was the fact some jurors spoke with confusion about whether they were County or State laws.
There were endless concerns that I didn’t hear the legal terms and definitions after they were read aloud. Ironically, I was one of few who had actually read them myself and understood them.
The jury persisted in using their perverted definitions. For example, “attempted burglary” was explained using words such as “possessing burglary tools and being at the immediate perimeter of a dwelling in the act of breaking a door or window etc”.
I still remember that the Judges instructions on “attempted” had included phrases such as “intentional behavior which would tend to affect the outcome of such crime”. Her instructions on burglary had included a phrase similar to “knowingly enter and refuse to leave a dwelling with intention to commit a crime”.
In my opinion the young men had met the criteria of “intent” when they deliberately met from separate locations and drove to the defendant’s home and encroached upon his driveway at such an unreasonable hour. They were certainly close enough to engage in a number of alleged crimes by any reasonable assessment. The criteria of “behavior…” was demonstrated by the manner in which they parked their cars and, the number of them that exited those cars to stand aggressively and, their actions when they threatened the defendant and his son and used racial epithets and refused to leave.
On the last criteria of any actual crime, the judge’s instruction specifically stated that it didn’t matter that the defendant was mistaken and that a crime never actually occurred. I will always remember that the significant criteria for the “justification defense” was that a person in such similar circumstances must have reasonably held a belief that a crime would have occurred had the defendant not taken any action.
Every young man who uttered the racial epithets that evening did so at their pleasure. The hypocrisy from the jury was very evident when they suppressed the sentiment of hate after those young men had openly expressed it.
Invitation to High Tea
The 10 jurors concluded that the defendant’s son had invited the group of young men to his home to challenge them to a fight. However, he had been the uninvited guest to a party earlier in the evening and had left that party without any resistance or fuss when the deceased had asked him to leave.
One of the young men had visited the defendant’s home several times before and there was testimony to suggest that he knew the way there. We do not know what was discussed in these telephone conversations to and from the defendant’s son cell phone, but clearly the deceased had initiated contact.
10:32:24 IN Cicciaro 1:49minutes
10:47:23 OUT Cicciaro 2:09minutes
10:57:36 IN Delgado 2:23minutes
11:06:28 OUT Cicciaro 1:18minutes
In my opinion it is extremely prejudicial that the 10 jurors concluded that the deceased was invited by the defendant’s son in the 10:47:23 outbound call and that the defendant’s son gave the deceased the directions to his home.
The most biased example of the 10 jurors actions were that they decided conclusively that the defendant was awakened with this same call and believed the District Attorney word for word in his summation when he stated that the defendant had over 20 minutes to prepare for the arrival of the group of young men. One juror proceeded to mock the defendant by imitating him in speech and tone when he repeated the defendant’s testimony, “They weren’t coming over for high tea”, and then laughed aloud.
There is some suggestion from surveillance video that the purpose of Delgado’s call at 10:57:36 was timed with his drive-by of the defendant’s house. In my opinion, the young men wanted the defendant’s son to witness their arrival in order to intimidate him further. Further evidence suggests that the defendant was awakened at or after this call and had approximately 10 minutes from the time he was awakened until he found the young men in his driveway. The jury thought the defendant had a duty to serve the young men high tea.
The 911 Hypocrisy:
Should one need the assistance of the SCPD in the event of a non-emergency situation, one would think that one should be directed to call their local precinct for such assistance since 911 should only be reserved for emergency situations.
Everyone should recognize that this is not the case in Suffolk County. For example, I can remember reporting an illegally parked car in the front of my home to the local 3rd precinct. The desk officer who answered my call directed me to call 911. I inquired, “But this is not an emergency?” The officer insisted, “Sir, if you expect us to respond you must call 911”.
During the trial, evidence was introduced that the defendant’s family had called 911 in the past for so many frivolous issues and, that they had failed to call 911 for this serious incident. The district attorney was deliberately and unfairly discrediting the defendant’s family.
The facts are that 911 were never called and there wasn’t any legal requirement that they had to be called. An objective person might have similarly reasoned that the young men should have called 911 to report that a man was threatening them with a gun. Furthermore, it is a reasonable defense that the defendant had requested his wife to call 911 and she failed to hear him. The next door neighbor had made a similar request of his wife to call 911 that evening, and she too, failed to hear him.
Our society must hold those accountable on the true purpose of the 911 system. Otherwise, it becomes fair to use a defendant’s seemingly frivolous use of the 911 service in the past as conclusive proof of unreasonable behavior under similar tragic circumstances. Until then, our society is applying a dangerous and unfair double standard.
Facts vs. Emotions
The court and the judge’s instruction were for us to deliberate fairly and impartially, starting with the premise that the defendant was not guilty. I was not going to defend a criminal act. However, I was determined to follow the court’s instructions and to uphold the process whereby any law-abiding citizen should be protected by due process instead of having had one’s fate sealed by a jury guided by ignorance and prejudice.
The 10 jurors in favor of guilty enjoyed the secrecy and silence of the deliberation process. They had disagreed about so many hard facts without reasonable explanation. On the second day of deliberations, December 20th 2007, we had agreed that Delgado was the most credible witness and we had agreed for his testimony to be read back. I was hopeful that this exercise would reveal some significant inconsistency to my juror peers.
For example, Delgado’s testimony that he saw the defendant exit the garage door apparently contradicted his testimony about his placement close to the mailbox. One would have had to have been positioned further north to see anyone exit that garage door. When I challenged the jury about this contradiction, their prejudiced response was that he had probably meant that he heard the garage door opening. They were more concerned with the emotional break-down which the court reporter had just suffered than with establishing the truth. My challenge was met with responses like, “Shame for all this. I hope she’s alright. I feel like throwing up myself”.
Readers should understand the monumental extent of the bias and prejudice on this jury. They should also understand that the Judge’s refusal to acknowledge that the jury was deadlocked, and her order that we continue to work unreasonable hours effectively contaminated the verdict. On Saturday, after much speculation about the absence of the alternate jurors we finally inquired with our assigned court officer, who reluctantly made us aware that they had already been dismissed. However, the Judge had forgotten about her duty to keep us informed of the schedule.
Decider of Facts:
I had met with the Judge on the second day of deliberation to indicate that the jury was deadlocked. I felt the seriousness. I wanted this jury to be impartial. I felt that the defendant had competent attorneys to make a case in his defense and I felt resolute that I would defend the process under which the facts were decided beyond reasonable doubt by an impartial jury.
The truth was that, in order to be the decider of facts, one must first establish the facts. In the end, if one focuses on the shooting incident itself and removes all the secondary information, it is unconscionable for any reasonable person to find that the defendant raised the gun and shot the deceased in the face as the People have prosecuted.
The ballistics expert testified that the bullet entered from the left cheek just above the mouth and came to rest near the right ear traveling in a horizontal to slightly upward trajectory. This was in direct contradiction to the young men’s testimony that the defendant, who was a foot taller and was standing on elevated ground, raised his hand and fired the gun directly in front of the deceased’s face.
On the second day of deliberations, December 20th 2007, after I became aware that the jury wanted me to be excused from their room, I felt reassured after having been identified in private to the court. In an emotional voice, after being hurried by the Judge that it is not proper to discuss the deliberations, I was desperate. As I proceeded to exit my meeting, I blurted out that I had no intention to waste the court’s time which was the sentiment I was experiencing at the time. Let me be clear now by stating that I have never been challenged on the facts which support my belief that the defendant was justified and is not guilty. I had intense feelings of frustration with the jury rather than even subtle pressure from them.
My Reasoning:
The defendant had excellent lawyers but, even with the best lawyer, a defendant doesn’t stand a chance with a tainted jury.
I’ve been critical of the jury but I also felt that their behavior was merely symptomatic of a broader systemic failure of the jury system. That is beyond the scope of this case.
The Judge’s repetitive admonitions that [2]another jury in Suffolk County would have to try the case resounded. The Judge had already nudged the axis under the scales of justice.
I have no regard for insincerity or for a judge who cannot keep fairness as her guiding principle. I relied on her word and respected her for it and, now there was neither. Our judicial system has enormous flaws and I cannot be expected to fix things by myself. This cannot be my lone mission.
Just after 5pm on Saturday afternoon, I had felt that the spirit of justice was lost and events more closely resembled those on a brainless television reality game. The Judge’s blatant disregard for the well-being of the jury and her request for us to deliberate such unreasonable hours in order to extract a verdict at all costs had become a perversion of the truth and a mockery of justice.
My Decision:
A jury is a team. When I refer to a tainted jury, I’m implying that the entire team is tainted. This reasoning gave me the support I needed to reach my painful decision. I had come to realize that I was part of a tainted jury and, that I could not absolve myself as a separate entity.
I didn’t speak with a single juror after 8:30 pm when the Judge asked about our plans for religious observance on Sunday. There was not a single juror who could, or did convince me to change my verdict. I didn’t have a religious or mental revelation. Instead, I wanted the overwhelming intensity and stress of the last four days of deliberations to be over, and the judge had just given me a final ultimatum with her inquiry into our plans for Sunday religious observance.
The events of the day had been all too overwhelming. After working such long hours on Saturday, her inquiry into our plans for Sunday religious observance was abusive of my freedom and manipulative of my integrity. It felt like a punishment that a parent would place on a disobedient and uncooperative child. My response was equally and blatantly abrupt: “Alright, Mr. White is guilty. I’m going home. This is such a mockery”. No one challenged or questioned me. There was silence. The time was 8:35pm.
Since Thursday, I had been unwavering in my belief that the defendant was not guilty and the Judge and the Jury both knew that. I had been resolute and would have been willing to sit on that jury until Easter but not under such desperate and unreasonable circumstances as those imposed by Judge Kahn.
Judge Kahn is the Reason Why We Were All There:
Delgado had consciously driven the deceased and had led another car with 3 occupants to the defendant’s home. The young men had arrived at the foot of the defendant’s driveway blocking possible safe exit and had a baseball bat within easy grasp for good measure.
The young men had driven there at 11 pm with their headlights on and engines running which is indicative that their visit was not intended to have any redeeming social value. The number of them, five against one, and the fact that they all exited the vehicles seemed consistent with their intent to evoke fear and to practice intimidation. In my opinion they were, unquestionably, the aggressors. Their intentions were clear to me, regardless of the manner and the degree to which they intended to harm the defendant’s son. In my opinion their threat wasn’t idle. As a group, they had acted on their word and had done so irresponsibly.
In my opinion the deceased’s actions were the reason why the defendant was being prosecuted The young men’s actions were the reason why the deceased had arrived at the defendant’s home. It is not surprising then why I believe that the biggest lie came from the District Attorney when he stated in his summation, “John White's actions are why he's here. John White's actions are why you are all here. John White's actions are why Daniel Cicciaro is not here."
Late that Saturday evening I knew that Judge Kahn was the reason why we were there. The Judge should have known better than to expect reasonable standards of behavior from an exhausted and overworked jury. After the verdict was over, I incoherently remarked to the Judge in front of the jury how all the flies in Africa would be so happy now. She smiled but she didn’t understand. No-one could understand. The jury may have deliberated the case but the Judge had deliberately refused to acknowledge the will of the jury.
Judge Kahn:
I had failed to persuade the jury. However, the Judge had also failed on several occasions, to recognize that we were deadlocked and had reached an impasse. I wonder why we seldom hold persons in positions of authority and accountability responsible for our misinformation and unmet expectations.
On a related note, I still wonder what became of the Judge’s expectation that the trial was scheduled to last until Friday 12/21/07. She had stated clearly at the start of the trial that it would take place during normal business hours of the work week and that she would keep us informed of any change in the schedule.
I hadn’t expected to be deliberating on a Saturday. Anyway, I was still flexible and felt a reasonable time to be dismissed would be 5pm. That would still have given me Sunday to re-energize and recharge myself for the important task at hand. A juror is not a slave instrument of the court whose actions and behavior are decided by the court. For the record, the juror handbook had stated that every juror has the right to be treated with courtesy and respect, so I had certainly not expected the process to become a test of emotional endurance.
The shock and disappointment of sitting on a jury in court on a Saturday night after four long days was exacerbated when we were asked about our plans for religious observance on Sunday. Why hadn’t we been afforded the same consideration in case our religious observance was on Friday night or Saturday? The Judge’s hypocrisy came through loud and clear.
Our society has [3]labor laws which establish reasonable standards beyond which employers cannot force employees to work. A working jury should never be exempted from such standards of reasonableness and society must demand and expect Judges to uphold similar standards. Sincerely, Judge Kahn why was it reasonable to feed us dinner at 8:40pm, and why was it reasonable to deny us any expectation of the time at which we would have dinner on that Saturday?
Conclusion:
Accountability and privacy are the two most important characteristics that should be promoted in our jury system. The first cannot exist without the second. The justice system should have zero tolerance for bias and prejudice. The voir dire process in which potential jurors have the opportunity and obligation to talk the truth should be expanded to ensure that jurors can also walk the truth before one is selected for service. At the same time, jurors should have assurances that their names and their privacy are secured. A secured parking facility and/or shuttle bus are minimum steps which should be considered.
When we speak of “impartiality and fairness”, these are the critically established standards which should be upheld in any jury system. Today, I have concluded that while jurors are expected to apply reasonable standards, the same standards of reasonableness are not applied to them. The justice system should be more sensitive and should be held accountable when exposing ordinary people to oftentimes violent and gory details for extended periods of time without adequate preparation or setting of expectations. A fair and impartial jury system should give jurors more protection under the law and make them more aware of their rights as jurors. The alternative is a society which is in jeopardy of losing all sense of fairness, truth and respect for the law.
To my fellow jurors this message is not personal. We agreed that we were deadlocked and we communicated that fact to the Judge on several occasions. It is no secret that we disagreed. Although some of you may forget how anxious you were to get home, never forget that you have a right to spend time with your families. Never forget that you have the right to a good night of rest every night and, a good day of rest at least once a week.
The reader should know that I have an unwavering belief that the defendant is not guilty. I have never changed my mind. The Judge had a duty to grant our exhausted jury a temporary reprieve especially given the extraordinary amount of energy we’d already expended working for 12 hours on Saturday. Sincerely, Judge Kahn if you have such a keen sense of justice, why do you have such blatant disregard for the reasonable standards already established under New York labor law guidelines?
The bulwark of American democracy may be the jury system but the reader should be aware that it is easily manipulated and needs a lot more protection for its fragile state than society may be prepared to afford.
Sincerely
Francois Larche
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[1] to act fairly and impartially and follow the law that is explained by the judge
[2] Judge Kahn later recanted in private with me that a different county would have been selected
[3] Every person employed for a period starting before 11am and continuing later than 7pm shall be allowed an additional meal period of at least twenty minutes between 5pm and 7pm and; employees must be given one day, defined as a consecutive 24 hour period, off per week.
Dear Reader
This was my first experience as a juror since becoming a citizen in 1985. Over the 21 days of my jury service I traveled over 1,680 miles and got paid $40 per day. I seek neither agreement nor sympathy from anyone. However, I am critical of the justice/jury system because of my experience that will be explained in the following paragraphs.
I was Juror No: 4, one of two dissenting jurors in this case. I have interest in neither party. I understood at the start of deliberation that a just verdict first required a process of discussion and unanimous agreement. Least significant is my description of the absolute dissonance and deviation from that process which occurred in the jury room. Most important is the refusal by the Judge to recognize the degree of that dissonance and the extreme measures which she pursued to secure a verdict on her own whim.
At the end of the fourth day of tedious deliberation on Saturday, December 22, 2007 it had become apparent that there would be no temporary recess on Sunday. I was depleted. It was clear that the dismissal of our jury would only occur if there was unanimous agreement by every juror.
The People’s case brought two charges against the defendant. The first was Manslaughter and the second was Criminal Possession of a Firearm. This letter only discusses the first charge. The second charge was never deliberated upon by this jury. By the eleventh hour on Saturday I was exhausted. My mind and my psyche had endured a prolonged experience of such intense stress that I needed rest. Unfortunately, the Judge had a different agenda to pursue.
The Court provided an overwhelming number of pledges and instructions, which it ultimately failed to uphold due to its own inconsistency and hypocrisy. Some examples include:
Jurors were instructed to avoid contact with persons involved in the proceedings. However, in the morning the jurors entered the court building waiting in a security line alongside either the defendant or the deceased’s family. Yet, at the end of the day when we exited court, court officers took active measures to ensure that we maintained a distance of approximately 70 feet from them.
After the trial was over, I recalled the face of a character named Joey Guns whose picture was in a story I was reading about the Marty Tankleff case. He had crossed my path in the lobby of the court building during a lunch break and had sneered at me in a sinister manner.
During the trial, while the Judge had instructed us not to read newspaper accounts, a newspaper was brought into the jury room by a juror most days of the trial.
Close to the end of deliberations late on Saturday afternoon a juror had lost control of himself and, the court had accommodated him in a separate jury room. Upon his return, he tried to engage me and I had suggested that he take a walk outside before he makes any further attempt. He agreed provided that I accompany him. We both proceeded with a request to the Judge to talk outside and she consented with the escort of four court officers. We discussed the case without the presence of other jurors and within earshot of all four court officers assigned to us. We had tacit approval to talk.
My Background:
I am white African-American. While I’m not black I’ve witnessed more overt racism than most Americans may realize and am able to recognize it. That is my label, but don’t label me. If you think you know me, you don’t, just as I don’t know you the reader.
I was born in South Africa in 1961. The character of that era would have led me to believe that the white South African government was the bulwark of democracy in sub-Saharan Africa. After coming to America I had also believed that the jury system is a bulwark of American democracy. Ironically, after my experience as a juror on this case, I conclude that there are unfortunate similarities between the two systems. Just as the white South African government was limited to the participation by the white minority of its citizens by law, so the American jury system has placed many voluntary limits on jury service participation. The reader will discover in the following paragraphs that there are many reasons for this.
The irony of my circumstance was that the same beliefs and mindset which controlled ordinary South African lives many years ago were pervasive at the Criminal Court in Riverhead in 2007. It appears to me that while a Judge may have the duty to secure a verdict, the justice system has a greater responsibility to ensure that this does not occur in violation of reasonable standard, or with disregard or lack of recognition and respect for every juror’s uncontaminated individual decision.
It is important to put this writing into perspective. There was never uncertainty in my “not guilty” verdict. The jury communicated to the Judge that we were deadlocked on several occasions and, the jury heard the standard Allen charge to continue deliberating read back repeatedly. In hindsight, one may criticize another’s choice. Most important, is that we keep our criticism free from double standard and hypocrisy.
Speculation:
From the first day of deliberations, the jury speculated on the defendant’s situation and his finances. Questions were asked and comments made in the jury room in the very first hour such as, “Why wasn’t he in custody? He probably posted bond. How much was the bond? How could he afford it? Does he still live in the same house? That’s a million dollar property! Did you see the golf course? I’m sure the lawyers are getting paid by the hour. No, they probably charged him a fixed fee. Yeah, but he has two lawyers to pay. No, he doesn’t…there are three.”
They speculated about the deceased having a romantic interest in the girl whose honor he was allegedly defending when he arrived at the defendant’s home. They speculated about the defendant’s son having ADHD. They speculated about the identity of members in the audience. During the trial a Suffolk County police chief in the audience and a detective on the witness stand was even identified by a certain juror. Several other jurors questioned him, “How do you know these guys?” He answered, “You have to hang out at the right place on Fire Island”.
By failing to communicate clearly and consistently regarding the schedule of the trial and the deliberations, the Judge also promoted further speculation and conflict among jury members. On the last day of deliberations another juror had shared an opinion with me that the judge might possibly keep us there until Easter. I replied that I would be happy to stay until Easter. That’s when a third juror chided me from the opposite end of the table stating that I was irresponsible to make that statement even though she hadn’t even been a party to the whole conversation. I replied abruptly, which caused tension and an uneasy silence. This is just one example of a situation which could have been avoided with clearer communication from the court.
Although there was never any evidence to suggest that the confrontation occurred anywhere other than on the defendant’s property, the jury speculated about the boundary line of the property. They ignored their duty to consider the facts of the case.
Deliberations:
One juror argued during deliberations that he was a gun owner and, that as such, he knew that the defendant should never have taken the Beretta outside because it had too much firepower for the situation at hand. I quote, “I can’t understand why the defendant testified that he left the shotgun behind because it had too much firepower. He should have taken the shotgun outside”. I was intrigued by his reasoning because it was apparent that this juror was supporting the defendant’s justification defense as reasonable action. He apparently disagreed with the weapon of choice.
Nevertheless, since he had brought up an interesting point I felt an obligation to inquire further. He answered that a shotgun blast disperses into tiny fragments when the gun is fired and that those tiny fragments would normally be too small to create a hole of a size comparable to the one in the deceased’s left cheek. He pointed to the photograph of the deceased in evidence as he explained this. He then concluded, “We wouldn’t be here if he had taken the shotgun”.
He later added, “I’m just glad he didn’t use a 45”. Another juror asked him to explain why. He answered, “Because the bullet would have traveled right through his head and, would have exited at the other end”. The juror who had asked for the explanation tightened her facial muscles into an expression of concerned silence.
I challenged his reasoning, “But from the ballistics expert testimony, the gun was fired at close range. Surely if a shotgun was fired so close the result would have been the same?” Another juror agreed with me quickly. The gun-owning juror felt rebuffed at this point and said, “Well, it was just overkill. C’mon man the clip had 8 rounds in it. That meant he could have just gone trigger crazy and pop, pop, pop….killed all of those kids…it just doesn’t make sense man”. He continued, “Besides, the shotgun is so much more visible. I’m sure those kids would have backed off if they had seen the shotgun. You saw how the DA held the gun concealed in his hands. It was not easily visible”.
Because I was convinced that the defendant’s actions had been justified, I was determined to continue in order to make that point. I reminded everyone of several important facts:
That the defendant’s son did have the shotgun with him
That the young men had testified that the defendant had fanned them with the handgun and that they were afraid
That the defendant was not trigger crazy and that he didn’t fire indiscriminately
That the tragedy occurred because the deceased was the only one who had challenged the defendant
But no-one was listening anymore. The deciders of fact were moving out from the deeper water. It was hopeless. I was swimming alone. The jury ignored their duty to listen to a plausible explanation pointing to the defendant’s innocence.
The Jury Mindset:
The jury identified with the actions of the group of young men. They believed it is normal for young men in this phase of maturity to consume alcohol excessively and to get involved in fights. In contrast, they completely discounted the defendant’s mindset on being awakened abruptly, on the threat to his family and the intimidating nature of the young men’s behavior, as they were intent on threatening him with racial epithets at the entrance to his own home.
One juror recounted an activity that he and his friends had engaged in at a similar age to the deceased. He started, “We were also young and irresponsible”. He volunteered his story as an example of how teenagers are, by nature, irresponsible and to make the point that society should never sanction such “normal” behavior by introducing a gun into the situation.
The story was told of how he and a group of friends would rent a car and purchase the accompanying accident insurance. They would then drive the car with the intention to purposefully wreck it. All the jurors questioned him, “But, why would you do that?” His response was, “We had nothing better to do and so we purposefully bought the rental insurance so we had nothing to worry about”.
I recognized some parallels between the story told by the juror and the case we were discussing in the deliberation room. Instead of a renting a car, the young men in this case had engaged in the game of beer pong. When their irresponsibility led to tragic consequences, the district attorney’s office became their insurance. They didn’t even have to purchase it. It came with the compliments of hard-working, taxpaying citizens, including the defendant himself. The jury believed that it’s “normal” for young men to be irresponsible and that society has a duty to pay for the consequences of their irresponsibility.
In the jury’s minds a kid was dead and the person who pulled the trigger was responsible. It was an open and shut case of simple justice. Any legal defense was just an exercise in futility. The jury failed in exercising their duty to understand, consider or accept a plausible defense.
Conspiracy of Ignorance:
The 10 jurors who were convinced of the defendant’s guilt were obsessed with removing me from jury service. Their charge was that I was dishonoring my [1]oath. Although the oath was printed in the juror handbook in the jury room they persisted with repeated requests for the Judge to read the oath. They regarded me as a foreigner who was rejecting their laws. More appalling was the fact some jurors spoke with confusion about whether they were County or State laws.
There were endless concerns that I didn’t hear the legal terms and definitions after they were read aloud. Ironically, I was one of few who had actually read them myself and understood them.
The jury persisted in using their perverted definitions. For example, “attempted burglary” was explained using words such as “possessing burglary tools and being at the immediate perimeter of a dwelling in the act of breaking a door or window etc”.
I still remember that the Judges instructions on “attempted” had included phrases such as “intentional behavior which would tend to affect the outcome of such crime”. Her instructions on burglary had included a phrase similar to “knowingly enter and refuse to leave a dwelling with intention to commit a crime”.
In my opinion the young men had met the criteria of “intent” when they deliberately met from separate locations and drove to the defendant’s home and encroached upon his driveway at such an unreasonable hour. They were certainly close enough to engage in a number of alleged crimes by any reasonable assessment. The criteria of “behavior…” was demonstrated by the manner in which they parked their cars and, the number of them that exited those cars to stand aggressively and, their actions when they threatened the defendant and his son and used racial epithets and refused to leave.
On the last criteria of any actual crime, the judge’s instruction specifically stated that it didn’t matter that the defendant was mistaken and that a crime never actually occurred. I will always remember that the significant criteria for the “justification defense” was that a person in such similar circumstances must have reasonably held a belief that a crime would have occurred had the defendant not taken any action.
Every young man who uttered the racial epithets that evening did so at their pleasure. The hypocrisy from the jury was very evident when they suppressed the sentiment of hate after those young men had openly expressed it.
Invitation to High Tea
The 10 jurors concluded that the defendant’s son had invited the group of young men to his home to challenge them to a fight. However, he had been the uninvited guest to a party earlier in the evening and had left that party without any resistance or fuss when the deceased had asked him to leave.
One of the young men had visited the defendant’s home several times before and there was testimony to suggest that he knew the way there. We do not know what was discussed in these telephone conversations to and from the defendant’s son cell phone, but clearly the deceased had initiated contact.
10:32:24 IN Cicciaro 1:49minutes
10:47:23 OUT Cicciaro 2:09minutes
10:57:36 IN Delgado 2:23minutes
11:06:28 OUT Cicciaro 1:18minutes
In my opinion it is extremely prejudicial that the 10 jurors concluded that the deceased was invited by the defendant’s son in the 10:47:23 outbound call and that the defendant’s son gave the deceased the directions to his home.
The most biased example of the 10 jurors actions were that they decided conclusively that the defendant was awakened with this same call and believed the District Attorney word for word in his summation when he stated that the defendant had over 20 minutes to prepare for the arrival of the group of young men. One juror proceeded to mock the defendant by imitating him in speech and tone when he repeated the defendant’s testimony, “They weren’t coming over for high tea”, and then laughed aloud.
There is some suggestion from surveillance video that the purpose of Delgado’s call at 10:57:36 was timed with his drive-by of the defendant’s house. In my opinion, the young men wanted the defendant’s son to witness their arrival in order to intimidate him further. Further evidence suggests that the defendant was awakened at or after this call and had approximately 10 minutes from the time he was awakened until he found the young men in his driveway. The jury thought the defendant had a duty to serve the young men high tea.
The 911 Hypocrisy:
Should one need the assistance of the SCPD in the event of a non-emergency situation, one would think that one should be directed to call their local precinct for such assistance since 911 should only be reserved for emergency situations.
Everyone should recognize that this is not the case in Suffolk County. For example, I can remember reporting an illegally parked car in the front of my home to the local 3rd precinct. The desk officer who answered my call directed me to call 911. I inquired, “But this is not an emergency?” The officer insisted, “Sir, if you expect us to respond you must call 911”.
During the trial, evidence was introduced that the defendant’s family had called 911 in the past for so many frivolous issues and, that they had failed to call 911 for this serious incident. The district attorney was deliberately and unfairly discrediting the defendant’s family.
The facts are that 911 were never called and there wasn’t any legal requirement that they had to be called. An objective person might have similarly reasoned that the young men should have called 911 to report that a man was threatening them with a gun. Furthermore, it is a reasonable defense that the defendant had requested his wife to call 911 and she failed to hear him. The next door neighbor had made a similar request of his wife to call 911 that evening, and she too, failed to hear him.
Our society must hold those accountable on the true purpose of the 911 system. Otherwise, it becomes fair to use a defendant’s seemingly frivolous use of the 911 service in the past as conclusive proof of unreasonable behavior under similar tragic circumstances. Until then, our society is applying a dangerous and unfair double standard.
Facts vs. Emotions
The court and the judge’s instruction were for us to deliberate fairly and impartially, starting with the premise that the defendant was not guilty. I was not going to defend a criminal act. However, I was determined to follow the court’s instructions and to uphold the process whereby any law-abiding citizen should be protected by due process instead of having had one’s fate sealed by a jury guided by ignorance and prejudice.
The 10 jurors in favor of guilty enjoyed the secrecy and silence of the deliberation process. They had disagreed about so many hard facts without reasonable explanation. On the second day of deliberations, December 20th 2007, we had agreed that Delgado was the most credible witness and we had agreed for his testimony to be read back. I was hopeful that this exercise would reveal some significant inconsistency to my juror peers.
For example, Delgado’s testimony that he saw the defendant exit the garage door apparently contradicted his testimony about his placement close to the mailbox. One would have had to have been positioned further north to see anyone exit that garage door. When I challenged the jury about this contradiction, their prejudiced response was that he had probably meant that he heard the garage door opening. They were more concerned with the emotional break-down which the court reporter had just suffered than with establishing the truth. My challenge was met with responses like, “Shame for all this. I hope she’s alright. I feel like throwing up myself”.
Readers should understand the monumental extent of the bias and prejudice on this jury. They should also understand that the Judge’s refusal to acknowledge that the jury was deadlocked, and her order that we continue to work unreasonable hours effectively contaminated the verdict. On Saturday, after much speculation about the absence of the alternate jurors we finally inquired with our assigned court officer, who reluctantly made us aware that they had already been dismissed. However, the Judge had forgotten about her duty to keep us informed of the schedule.
Decider of Facts:
I had met with the Judge on the second day of deliberation to indicate that the jury was deadlocked. I felt the seriousness. I wanted this jury to be impartial. I felt that the defendant had competent attorneys to make a case in his defense and I felt resolute that I would defend the process under which the facts were decided beyond reasonable doubt by an impartial jury.
The truth was that, in order to be the decider of facts, one must first establish the facts. In the end, if one focuses on the shooting incident itself and removes all the secondary information, it is unconscionable for any reasonable person to find that the defendant raised the gun and shot the deceased in the face as the People have prosecuted.
The ballistics expert testified that the bullet entered from the left cheek just above the mouth and came to rest near the right ear traveling in a horizontal to slightly upward trajectory. This was in direct contradiction to the young men’s testimony that the defendant, who was a foot taller and was standing on elevated ground, raised his hand and fired the gun directly in front of the deceased’s face.
On the second day of deliberations, December 20th 2007, after I became aware that the jury wanted me to be excused from their room, I felt reassured after having been identified in private to the court. In an emotional voice, after being hurried by the Judge that it is not proper to discuss the deliberations, I was desperate. As I proceeded to exit my meeting, I blurted out that I had no intention to waste the court’s time which was the sentiment I was experiencing at the time. Let me be clear now by stating that I have never been challenged on the facts which support my belief that the defendant was justified and is not guilty. I had intense feelings of frustration with the jury rather than even subtle pressure from them.
My Reasoning:
The defendant had excellent lawyers but, even with the best lawyer, a defendant doesn’t stand a chance with a tainted jury.
I’ve been critical of the jury but I also felt that their behavior was merely symptomatic of a broader systemic failure of the jury system. That is beyond the scope of this case.
The Judge’s repetitive admonitions that [2]another jury in Suffolk County would have to try the case resounded. The Judge had already nudged the axis under the scales of justice.
I have no regard for insincerity or for a judge who cannot keep fairness as her guiding principle. I relied on her word and respected her for it and, now there was neither. Our judicial system has enormous flaws and I cannot be expected to fix things by myself. This cannot be my lone mission.
Just after 5pm on Saturday afternoon, I had felt that the spirit of justice was lost and events more closely resembled those on a brainless television reality game. The Judge’s blatant disregard for the well-being of the jury and her request for us to deliberate such unreasonable hours in order to extract a verdict at all costs had become a perversion of the truth and a mockery of justice.
My Decision:
A jury is a team. When I refer to a tainted jury, I’m implying that the entire team is tainted. This reasoning gave me the support I needed to reach my painful decision. I had come to realize that I was part of a tainted jury and, that I could not absolve myself as a separate entity.
I didn’t speak with a single juror after 8:30 pm when the Judge asked about our plans for religious observance on Sunday. There was not a single juror who could, or did convince me to change my verdict. I didn’t have a religious or mental revelation. Instead, I wanted the overwhelming intensity and stress of the last four days of deliberations to be over, and the judge had just given me a final ultimatum with her inquiry into our plans for Sunday religious observance.
The events of the day had been all too overwhelming. After working such long hours on Saturday, her inquiry into our plans for Sunday religious observance was abusive of my freedom and manipulative of my integrity. It felt like a punishment that a parent would place on a disobedient and uncooperative child. My response was equally and blatantly abrupt: “Alright, Mr. White is guilty. I’m going home. This is such a mockery”. No one challenged or questioned me. There was silence. The time was 8:35pm.
Since Thursday, I had been unwavering in my belief that the defendant was not guilty and the Judge and the Jury both knew that. I had been resolute and would have been willing to sit on that jury until Easter but not under such desperate and unreasonable circumstances as those imposed by Judge Kahn.
Judge Kahn is the Reason Why We Were All There:
Delgado had consciously driven the deceased and had led another car with 3 occupants to the defendant’s home. The young men had arrived at the foot of the defendant’s driveway blocking possible safe exit and had a baseball bat within easy grasp for good measure.
The young men had driven there at 11 pm with their headlights on and engines running which is indicative that their visit was not intended to have any redeeming social value. The number of them, five against one, and the fact that they all exited the vehicles seemed consistent with their intent to evoke fear and to practice intimidation. In my opinion they were, unquestionably, the aggressors. Their intentions were clear to me, regardless of the manner and the degree to which they intended to harm the defendant’s son. In my opinion their threat wasn’t idle. As a group, they had acted on their word and had done so irresponsibly.
In my opinion the deceased’s actions were the reason why the defendant was being prosecuted The young men’s actions were the reason why the deceased had arrived at the defendant’s home. It is not surprising then why I believe that the biggest lie came from the District Attorney when he stated in his summation, “John White's actions are why he's here. John White's actions are why you are all here. John White's actions are why Daniel Cicciaro is not here."
Late that Saturday evening I knew that Judge Kahn was the reason why we were there. The Judge should have known better than to expect reasonable standards of behavior from an exhausted and overworked jury. After the verdict was over, I incoherently remarked to the Judge in front of the jury how all the flies in Africa would be so happy now. She smiled but she didn’t understand. No-one could understand. The jury may have deliberated the case but the Judge had deliberately refused to acknowledge the will of the jury.
Judge Kahn:
I had failed to persuade the jury. However, the Judge had also failed on several occasions, to recognize that we were deadlocked and had reached an impasse. I wonder why we seldom hold persons in positions of authority and accountability responsible for our misinformation and unmet expectations.
On a related note, I still wonder what became of the Judge’s expectation that the trial was scheduled to last until Friday 12/21/07. She had stated clearly at the start of the trial that it would take place during normal business hours of the work week and that she would keep us informed of any change in the schedule.
I hadn’t expected to be deliberating on a Saturday. Anyway, I was still flexible and felt a reasonable time to be dismissed would be 5pm. That would still have given me Sunday to re-energize and recharge myself for the important task at hand. A juror is not a slave instrument of the court whose actions and behavior are decided by the court. For the record, the juror handbook had stated that every juror has the right to be treated with courtesy and respect, so I had certainly not expected the process to become a test of emotional endurance.
The shock and disappointment of sitting on a jury in court on a Saturday night after four long days was exacerbated when we were asked about our plans for religious observance on Sunday. Why hadn’t we been afforded the same consideration in case our religious observance was on Friday night or Saturday? The Judge’s hypocrisy came through loud and clear.
Our society has [3]labor laws which establish reasonable standards beyond which employers cannot force employees to work. A working jury should never be exempted from such standards of reasonableness and society must demand and expect Judges to uphold similar standards. Sincerely, Judge Kahn why was it reasonable to feed us dinner at 8:40pm, and why was it reasonable to deny us any expectation of the time at which we would have dinner on that Saturday?
Conclusion:
Accountability and privacy are the two most important characteristics that should be promoted in our jury system. The first cannot exist without the second. The justice system should have zero tolerance for bias and prejudice. The voir dire process in which potential jurors have the opportunity and obligation to talk the truth should be expanded to ensure that jurors can also walk the truth before one is selected for service. At the same time, jurors should have assurances that their names and their privacy are secured. A secured parking facility and/or shuttle bus are minimum steps which should be considered.
When we speak of “impartiality and fairness”, these are the critically established standards which should be upheld in any jury system. Today, I have concluded that while jurors are expected to apply reasonable standards, the same standards of reasonableness are not applied to them. The justice system should be more sensitive and should be held accountable when exposing ordinary people to oftentimes violent and gory details for extended periods of time without adequate preparation or setting of expectations. A fair and impartial jury system should give jurors more protection under the law and make them more aware of their rights as jurors. The alternative is a society which is in jeopardy of losing all sense of fairness, truth and respect for the law.
To my fellow jurors this message is not personal. We agreed that we were deadlocked and we communicated that fact to the Judge on several occasions. It is no secret that we disagreed. Although some of you may forget how anxious you were to get home, never forget that you have a right to spend time with your families. Never forget that you have the right to a good night of rest every night and, a good day of rest at least once a week.
The reader should know that I have an unwavering belief that the defendant is not guilty. I have never changed my mind. The Judge had a duty to grant our exhausted jury a temporary reprieve especially given the extraordinary amount of energy we’d already expended working for 12 hours on Saturday. Sincerely, Judge Kahn if you have such a keen sense of justice, why do you have such blatant disregard for the reasonable standards already established under New York labor law guidelines?
The bulwark of American democracy may be the jury system but the reader should be aware that it is easily manipulated and needs a lot more protection for its fragile state than society may be prepared to afford.
Sincerely
Francois Larche
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[1] to act fairly and impartially and follow the law that is explained by the judge
[2] Judge Kahn later recanted in private with me that a different county would have been selected
[3] Every person employed for a period starting before 11am and continuing later than 7pm shall be allowed an additional meal period of at least twenty minutes between 5pm and 7pm and; employees must be given one day, defined as a consecutive 24 hour period, off per week.