Tales & Trails of a Traveling Wiseguy

Four and a half years ago we were struck in a multi-vehicle car collision in Seattle. The driver of one car was charged criminally, and a few weeks ago the case finally went to trial (after 4.5 years). We were subpoenaed at witnesses and traveled to Seattle early last week to testify. Today we learned of the result of the trial. The jury deadlocked.

The prosecutors explained the situation to us in a video call today. The jury deliberated for 2 1/2 days and was unable to reach a unanimous verdict. I don't know what the final vote was. The prosecutors did get some feedback from jurors about where their case was too weak to support conviction. They've offered the defendant another plea bargain. They're also considering whether to try the defendant again if he declines the offer. I'm skeptical he'll take an offer. He declined all previous offers, and his bargaining position would seem stronger now after prosecutors tried and failed once to convict him.

Well, if they do try him again, we'll go back to Seattle!

This just in! A jury in Manhattan this afternoon found former president and 2024 candidate Donald Trump liable for sexual assault and defamation of E. Jean Carroll. Carroll alleged that Trump raped her in a department store fitting room in the 1990s. The jury awarded Carroll damages of $5 million.

I am surprised by this verdict. Just last night I remarked to my spouse, after the case had gone to the jury for deliberation earlier in the day, that I thought there wasn't enough evidence to prove the allegations. Carroll testified that it happened, and a few friends testified that she told them about it years ago, but there was no hard evidence of an assault.

Now, this is a civil law trial, not a criminal case. The standard of proof is lower. Plaintiffs only need to show that allegations are supported by “a preponderance of the evidence”. Perhaps I'm mis-intepreting what preponderance means, legally, but I'm not sure it wasn't met.

Trump didn't help himself in this trial. In a videotaped deposition he defended his "Grab 'em by the pussy" comments in the infamous Access Hollywood tape from several years ago. At the time he minimized his statements as "locker room talk". He repeated that characterization on social media within the past week. But here's the thing: the phrase "locker room talk" describes idle boasting that is exaggerated or untrue. When challenged about that quote in the deposition, Trump defended it. "Historically that's true," he said, reaffirming that in his worldview powerful men have the prerogative of being able to have their way with any woman— "unfortunately or fortunately."

Perhaps more crucially, Trump undermined one of his own lines of defense in the deposition. "She's not even my type," Trump has said numerous times, broadly implying that she's too fat, or old, or unattractive for him to even consider touching sexually. Yet when the plaintiff's attorney showed Trump a picture of him standing next to Carroll at a public even years ago, Trump misidentified Carroll as Marla Maples, one of his ex-wives. "That's my wife," Trump said matter-of-factly in the videotape. One can easily conclude that if Carroll looked enough like Trump's ex-wife for him to confuse them in a press photograph, she is the type he found physically attractive.

We're in Seattle on a 19 hour bender to testify at a criminal trial Tuesday morning. It's for a car crash that happened 4.5 years ago.

The county got us comfy digs at the Marriott Renaissance hotel downtown. After I gave the hotel my Marriott membership number, with my lifetime Titanium status, they upgraded us to a corner junior suite with a wraparound view. Woohoo, right?!



...Except the wraparound view is of the freeway. It's a good thing we're not here for the view.

It was about 8:30pm when we got to the room. Our first order of business after dropping our bags was to get some dinner. Food choices are actually poor here in downtown Seattle. There was basically nothing within a 1/2 mile radius that was open at that hour, other than the hotel's bar downstairs. So to the hotel's bar we went. The food was... okay... and expensive.

We stayed up until about 11pm. It felt like we should have more time in the evening to do personal stuff. I figure that's because the flight swiped several hours of our time. We didn't want to stay up too late so we turned out the lights at about 11. Our morning alarms rang at 6:00 so we could get up, shower, dress, eat breakfast, and walk over to the courthouse in plenty of time for our 8:30am appearance.

This week I got a jury duty summons. I've rarely gotten those. The last was 10 years ago, and the only other one ever was a long time before that. When other people talk about being summoned every few years I feel like the county doesn't like me or something!

When I was younger, getting out of jury duty was a sport. The popular zeitgeist was that it was a waste of time, and anybody with a real job or a family to support practically had a responsibility to get out of it. Comedians told jokes like, "Do you want to trust your fate to a jury of 12 people too dumb to get out of jury duty?"

I'm glad that zeitgeist has changed, because jury duty is important— especially for intelligent and otherwise well employed people. The justice system depends on having reasonably intelligent jurors who can understand the facts of the case, weigh the credibility of the witnesses by more than their physical attractiveness, and apply reasoning within the standards of the law. I look forward to bringing my intellect and perspective to whatever jury I serve.

There is one conflict for me, though. The week in May I was summoned for jury duty creates a cluster of activity where I'd be out of office for 4 out of 5 consecutive weeks. That's a big work disruption. Thus I filed for a brief postponement. My new week of jury service comes in June.

In what has sadly become far too common of a story, police officers pulled over Black motorist Tyre Nichols for an alleged traffic violation, beat him heavily in a confrontation that turned violent, and Nichols subsequently died of his injuries.



Nichols, 29, was pulled over by Memphis, TN police on January 7 allegedly for reckless driving. I take care to say allegedly because in evidence that's come out since then, there's no evidence that Nichols was driving badly. That's also part of the sad pattern— police making questionable claims of wrongdoing as pretext to detain a Black or brown driver.

Nichols was beaten repeatedly by several officers in a confrontation that lasted for several minutes. He was prone and crying for mercy most of the time. He was taken to a hospital and died of his injuries 3 days later.

So far so sadly familiar. Then the story took an uncommon turn.

A week after Nichols's death, the Memphis police chief announced 5 officers who participated in the beating would be fired. Even that level of accountability is uncommon. So often officers are protected by their departments, put on paid administrative leave as internal investigations wind on for months, then returned to duty or hired by other jurisdictions.

But just getting fired wasn't all. Yesterday the Memphis district attorney announced the 5 former officers would be charged with 2nd degree murder.



Finally! Swift action by the authorities against bad cops! I thought. No more 'open season' on Black men!

Then I saw the picture of the 5 men charged with murder. They're all Black men, too.

That gave me pause for a moment. Does this mean this isn't part of the pattern of police violence? After a moment I decided no because the scourge of violence against Black men isn't limited to just some white people in positions of authority. The scourge is, more broadly, violent abuse of authority. The mentality, the training, and the groupthink that create that can infect police officers of all colors.

The photo of the 5 Black officers triggers another concern, though. Why are consequences so slow & unlikely to come when White officers are the alleged perpetrators, but swift & hard when they're 5 Black men?

Note, I am absolutely not saying these officers are innocent or even that they're being prosecuted inappropriately. There's a video being released this afternoon of their actions that's downright horrifying. The problem is how often such evidence is seemingly swept under the rug when the cops are White.

Over 4 years ago Hawk and I were involved in a car accident in Seattle. We were passengers in one of several vehicles that were struck by a person driving unsafely. Here's a picture of the vehicle we emerged from:



We were both in the back seat. Hawk was on the near side. You can see that the airbags deployed on that side of the car. Those kept her and the driver from smashing their heads through the glass.

The crash occurred on October 7, 2018. Police decided to charge the driver of one of the other cars with crimes including vehicular assault. Hawk and I would be summoned to appear as witnesses in the trial.

The wheel of justice turn slowly, though. The trial wouldn't be for months after the events in question. Then the Coronavirus pandemic came and scrambled everything. The jurisdiction of Kings County, Washington did not allow remote trials, so cases were delayed even more.

A little over a year ago, in October 2021, the trial got back on the court's docket. I sat for an interview (remotely) with defense counsel. It seemed like the trial would go forward, even if 3 years later. But then another form of delay occurred: the defendant failed to appear. The police wouldn't find him for at least 9 more months.

Police captured the fugitive a few months ago. He remains in custody awaiting trial. Apparently he has a long "rap sheet" of prior criminal convictions; these plus his proven flight risk undoubtedly helped a judge decide to confine him.

As for the trial? Well, it's still bumping with delay after delay. It was scheduled in October. Then early November. Then late November. Then late December. Our last notice from the county attorney's office, late last week, says the schedule is now late January.

The wheels of justice do turn slowly.

4 years, 2 months, and still counting.

President Biden on Thursday pardoned all prior federal offenses of simple marijuana possession. It's widely seen as a first step toward decriminalization of marijuana. Example news coverage: CNN.com article, 6 Oct 2022.

"Wow, this must affect a lot of people," I thought at first. I've been hearing from marijuana legalization advocates for decades that some 90% of all people in federal prison are there on nonviolent drug convictions. So I skimmed through news articles such as the one linked above to find how many people would be freed, and it's... zero. "Officials said there are currently no Americans serving prison time solely on federal simple marijuana possession charges," the article reports. The government estimates, though, that there are 6,500 people convicted of such crimes in the past.

So where are all these nonviolent simple drug possession offenders, this supposed 90% of all convicts, being imprisoned? They're not in state prisons. Ten years ago I asked a brother-in-law of mine who's a state prosecutor about the 90% statistic. He just laughed. "If that were true, given the short sentences that crime carries, marijuana possession would be 98% of my office's cases. It's more like zero. Maybe that 90% is the feds."

Well, the numbers from drug legalization advocates are clearly hokum. (Is anyone really surprised?) But that doesn't mean Biden's pardon is wrong. I'm in favor of correcting government drug policy to be rational and evidence based. Marijuana was miscategorized by the federal government decades ago, contrary to available facts and for openly racist reasons. Biden is working on changing that, too. He says he will instruct the HHS and Attorney General to review the facts and set new policy as appropriate. We'll see how long that takes.

Yesterday the Supreme Court published its decision on Dobbs v. Jackson Women's Health Organization. This is the political earthquake of a ruling that was leaked in draft form 7 weeks ago. Earthquake, because it reverses the 1973 ruling in Roe v. Wade that affirmed a woman's right to seek abortion. That "law of the land" has guided how women live their lives for nearly 50 years.

The overturning of a Supreme Court ruling is rare. There's a principle in jurisprudence called Stare Decisis. It's Latin for "Stand by things decided" and it means that judges should respect the precedent of previous decisions on an issue rather than whipsawing the law back and forth when they happen to disagree with it. Chief Justice John Roberts explained during his confirmation hearings years ago that stare decisis means that to reverse a past ruling a judge must conclude more than just that it was "wrongly decided"; judges must also weigh issues such as how a reversal upends settled expectations, whether a reversal diminishes the legitimacy of the court, and whether a particular precedent is workable or not.

Roberts did not to vote for overturning Roe v. Wade. Though he concurred with 5 other justices in upholding the Mississippi law at the center of Dobbs v. Jackson, a law that restricted abortion after 18 weeks, making that decision a 6-3 vote, he did not join the 5-4 majority that went far beyond that to strike down Roe v. Wade entirely.

How rare of an outcome is this? The only other time a Supreme Court ruling that affects the daily lives of literally tens of millions of Americans was when Brown v. Board of Education in 1954 overturned the 1896 ruling in Plessy v. Ferguson. Plessy notoriously upheld the doctrine of "Separate but Equal"— a cornerstone of racism perpetuating legal apartheid after the elimination of slavery in the 1860s. Note how the long arc of history bends toward justice in that reversal.... The reversal of Roe v. Wade is the first time the Supreme Court has ever reversed a previous opinion to take away a civil right.

Three White men who chased and murdered 25-year-old Black jogger Ahmaud Arbery in south Georgia were sentenced to life in prison today. Two have no chance of parole. The third, a 52-year-old, will be eligible for parole under Georgia law only after serving a minimum of 30 years. Example news coverage: CNN.com article 7 Jan 2022, Yahoo! News article 7 Jan 2022, New York Times article 7 Jan 2022.

Ahmaud Arbery was killed on the afternoon of February 20, 2020. The convicted men spotted Arbery jogging in a residential neighborhood near his home, determined— with zero evidence— that he was a suspect in recent area robberies, and chased him for 5 minutes with their pickup trucks. Once they proceeded to block him in, the three men closed on him, at least one leveling a shotgun at him while another recorded cellphone video. A fight ensued, and the man with the shotgun shot Arbery 3 times at close range.

Swept Under the Rug

This murder was originally swept under the rug. Police arrived at the scene and quickly made a determination that the men who chased Arbery and pointed a gun at him were acting in self defense. Nobody was arrested. Two district attorneys chose not to prosecute. Justice might never have been served... until 73 days later one of the perpetrators posted his cellphone video of the murder on social media, boasting about it. This caused an outrage among members of the community— and across the state and nationwide. The Georgia Bureau of Investigation, Georgia's Attorney General, and the FBI were called upon to investigate.

As an aside, this is one of the critical ways that racial injustice is perpetrated. Not only are Black people convicted more often when brought to trial than Whites, and not only are they given harsher sentences when convicted, but they are also charged more often in circumstances where police and prosecutors use their discretion not to arrest or prosecute White suspects.

Aside #2: In case it's not obvious, this was a modern day lynching. White men decided a Black man in their neighborhood was a crime suspect. Even though they called 911 to report him, and even though he had committed no actual crime they witnessed, they decided to chase him down and threaten him with guns. When he acted to defend his life, they killed him. Then, of course, the chummy local authorities let them go.

Justice Delayed but not Denied (So Far...)

This is a case where justice may have been delayed but has ultimately not been denied.... so far. The judge who sentenced the men today made the courtroom sit in silence for one minute before reading their sentencing to put "into context" how long they chased Arbery.

Judge Timothy Walmsley told the courtroom on Friday that he was going to "sit quietly for one minute and that one minute represents a fraction of the [5 minutes] that Ahmaud Arbery was running" away. Example news coverage: Yahoo! News article, 7 Jan 2022.

Note how I do add the caution "so far" to justice having been delivered here. That's because the convicted men have avenues of appeal. Though there's no visible mistake in their trial, they are of course able to challenge it from multiple directions, and quite possibly the same racism embedded in the system that shrugged off their actions as "Seems legit" the first time will support them again on appeal. But it's also possible that they'll be convicted of more charges, as federal civil rights cases are pending against them.

A few other positive changes have come out of this case. The first district attorney who passed on charging the men, and who allegedly told the police not even to arrest them, has been charged with one felony count of violating the oath of a public officer. Days after the shooting the police chief was indicted on charges of coverup for unrelated incidents. Voters subsequently voted out the district attorney and elected new county commissioners who replaced the police chief. Finally, the Georgia legislature passed a bill, which was signed by the governor, repealing the law allowing Citizen's Arrest— a holdover law from the Civil War era used as a common pretext for lynchings, which these murderers asserted, falsely, in their defense.

Friday I had my interview with defense counsel for the case against the man charged in a multi-vehicle car crash that occurred almost three years ago. I was a passenger in one of the vehicles struck.

Long story, short: The interview went well. Defense counsel was impressed with the level of detail I was able to recall. But days beforehand I was worried it wouldn't turn out like that. Here's the longer story:

This accident occurred nearly three years ago. Just 6 days short of 3 years prior to the day of this interview, in fact. After so long my memory of specifics about the event was beginning to fade. Usually my observation of events and ability to recall them is vivid and detailed. This one was no different— at the time. Days after the accident a police detective interviewed me, and I gave a very detailed statement. Three years later... I couldn't recall as many details. What would happen to the prosecutor's case if, on the stand, I responded to every defense question with, "I don't know... I don't know... I don't recall anymore"?

Although Friday's interview wasn't testimony on the stand, just a pre-trial interview with defense counsel, I shared this concern with a paralegal for prosecutor a few months ago. She said she'd ask the prosecutor what was legit for me to do to refresh my memory. Sadly, she didn't follow through. As a side note, this office, Kings County in Washington, seems to rotate through paralegals who aren't the sharpest knives in the chandelier.

I turned to my brother-in-law, Don, for guidance. Don's a prosecuting attorney in a different jurisdiction. "What's legit for me to do to refresh my memory?" I asked. Don suggested three things:

1. Review any notes you wrote at the time
2. Review pictures you took
3. Ask the police for a transcript or recording of your interview with the investigator.

#3 especially was helpful. I asked the paralegal, and she came through with an audio file recorded of our telephone interview. I listened through it twice and wrote out notes on it to prepare for this interview nearly three years later.

As an aside, Don explained that if a witness on the stand does start saying, "I don't remember, I don't remember" to questions, he'll place a transcript of their interview with police (already entered into evidence) in front of them and, without telling them what it is, ask them to read part of it aloud. Then he'll ask them if they recognize what it is and if they made true statements at the time.

The interview went well. Defense counsel was impressed with the level of detail I was able to recall.

I shared this result with Don after the call. "Good, maybe they'll be able to work out the case, then," he said.

"Do you think the defense has being creating delays in an effort to diminish the evidence against them?" I asked. "Stretch out the time so witnesses can't clearly recall what they saw or move away and can't be found anymore?"

"As a defense tactic that's not unusual."

Not here. Not with me.