Lee Geiger

There’s proving, and then there’s knowing.

Saul Goodman, “Better Call Saul”

WARNING! – Today’s post describes my recent experience participating as a juror in the trial of a man charged with crimes related to sexual abuse of a minor. I have tried to soften the inflammatory nature of the case, but the subject matter may be uncomfortable for some readers. It’s also VERY LONG.

Jane Doe, nine-years old, tugs the caps off felt-tipped markers to add splashes of color to her picture. She appears to be drawing flowers, but the location of the video camera makes it difficult to tell. Sitting across the table from Jane in the brightly-colored playroom is a pleasant adult woman trained not to ask leading questions. While complimenting the young girl on her art work, the woman asks Jane questions relating to three specific events that took place two years earlier, during the summer of 2017, when she was just seven.

Two weeks ago, prior to the taping of this interview, Jane’s Uncle Hector was arrested on charges of downloading child pornography. When Jane’s mother asked her what she thought of her Uncle Hector, Jane replied, “He’s weird.”

“Why is he weird?” asked her mother.

“Because,” said Jane in the sweet, matter-of-fact innocence of a fourth-grader, “he touches me on my private parts.”

Monday, March 28, 2022

It’s late in the day, and I’ve been sitting in the jury bullpen for hours, doom scrolling through my Twitter feed. This is the third time in almost thirty years that I’ve had to make the trek to the Superior Court building in Martinez, with over twice that many jury summons where I called the night before and learned I didn’t have to show up. I’ve always thought it would be interesting to sit on a jury, just so long as the case had some juice to it. You know, something akin to a gripping episode of “Law and Order.”

A clerk comes to the lectern and informs us that she has good news and bad news. The good news is we don’t have to leave our seats. The bad news is the judge is coming down the see us. This strikes me as odd.

Tall, broad shouldered and dressed in a flowing black robe, the silver-haired arbiter of justice is right out of central casting. In what can only be described as The Voice of God, the judge tells the assembled mass that we are potential jurors for a criminal trial that should last between 7 to 10 days, with a break from April 11-15 for spring break, and asks how many people will request a hardship hearing because of professional or personal circumstances. Almost 80% of the room raise their hands. The judge instructs them to go upstairs to his courtroom so they can plead their case. Good luck with that.

Meanwhile, the rest of us are asked to complete a five-page questionnaire and return to court on Wednesday. Many of the questions are related in one form or another to sexual abuse. This case already stinks.

Wednesday, March 30

A sea of humanity awaits in the hallway outside the courtroom. A uniformed officer appears and calls out a list of twenty names who are required to enter the courtroom. One of them is mine. He hands me a slip of paper with the number “12” scribbled on it and tells me to sit in that seat. I dutifully enter the courtroom. The judge is standing. So are both attorneys. And the defendant, a short, pear-shaped Hispanic man in his thirties. He has a crew cut and Fu-Manchu beard and moustache. He’s wearing rubber-soled shoes, khaki pants, and a grey sweater over a tie. My initial thought is I wouldn’t think twice about him if he passed me on the sidewalk.

I find my seat. Holy Jack McCoy, I’m seated in the jury box!

The legal proceeding known as voir dire begins, a process of examining potential jurors to determine whether they are fit to serve for a particular trial. After some instructions, the judge and lawyers start questioning Juror #1. Over the course of the next ninety minutes, the eleven jurors whose numbers precede mine answer questions from the judge and attorneys, many leading to tearful and disturbing stories about past experiences of sexual abuse, no doubt delivered with the intention of getting themselves excused from having to serve on this jury. Some stories go into excruciating, sordid details. Yuck.

Now it’s my turn. The judge puts on his reading glasses and begins scanning my questionnaire. He finally asks, “Mr. Geiger, do you understand the instructions I’ve given?”

This I can handle. “Yes, your honor.”

Nothing more. Nada. Zilch. He turns it over to the attorneys. The prosecutor, a strapping young man who must have played football in school asks, “Mr. Geiger, in your role as a compliance officer, do people report to you?”

Why on Earth would he ask me that? He hasn’t asked anyone else that question. “No,” I answer.

The prosecutor follows up. “In your career, have you ever been in a position where people did report to you?”

I have a lifelong habit of saying silly things at awkward times. This was one of them. Plus, the room could use some levity. “Yes, but my version of Wall Street has more in common with Michael Douglas than Leonardo DiCaprio.” Those who get the joke snicker. Even the judge belts out a chortle.

The female defense attorney, the only court official wearing a mask, has no questions for me. The judge now asks the attorneys to select which of the twelve potential jurors they want removed. I cross my fingers, hoping my flailing attempt at humor will showcase that I can’t take anything seriously. Then again, I was only asked two questions. All the other potential jurors were questioned as though they were the ones on trial.

Negative. But two others who cried a river are excused. I move over two seats and become Juror #10.

Monday, April 4

Jeez Louise. A third day of jury selection. Thirty more people are interviewed in an attempt to seat the last two jurors along with two alternates. It’s brutal. Nearly everyone who gets dismissed delivers some tale about past sexual abuse or sexual violence, inside and outside their families, including many who claim the case has unearthed memories that have been suppressed for decades. Finally, after sixty call-ups and three full days of voir dire, a jury is empaneled. The case begins tomorrow at 10:30.

On a positive note, because we’re required to take 90 minutes for lunch, I drive over to In-N-Out Burger in Pleasant Hill. Double-Double, no onions, fries, and a medium Dr. Pepper. Booyah!

Tuesday, April 5

The defendant, Hector, is charged by the State of California with the following:

• One count of Lewd Act Upon a Minor with Force or Fear (Contra Costa County)
• One count of Lewd Act Upon a Minor with Force or Fear (Stanislaus County)
• One count of Showing Pornography to a Minor

The timeline of the case goes something like this:

• January 2019 – Yahoo, Hector’s internet service provider, reports to local law enforcement authorities that he is downloading child pornography on to his computer.
• May 16, 2019 – Preciously at 6:00am, twelve Contra County sheriff officers raid and search Hector’s apartment. Hector is questioned at length by two detectives, specifically about five pictures taken with his cell phone. These pictures were taken in 2011 in Jacksonville, Florida, and feature an adult male with a three-year old female toddler. Henry confesses to both taking the photos and being in the pictures. He is arrested. His computer, cell phone, and a sex toy are confiscated as evidence.
• May 19, 2019 – Lisa, Hector’s sister-in-law, learns of Hector’s arrest. She then asks her daughter, Jane Doe, what she thinks of her Uncle Hector. “He’s weird,” she says. When asked why, she says, “Because he touches my private parts.” Lisa asks Jane when Hector touched her, and Jane says he touched her three times when she was seven (sometime during 2017); the first time was at her grandmother’s house; the second time was also at her grandmother’s house, where Hector asked her to sit on his lap and he showed her a picture from his cell phone; and a third time, when she went with her grandparents to a weekend getaway at a lake in Stanislaus County, when Henry touched her under the water in her bathing suit. When asked by her mother why she didn’t tell her until now, Jane Doe says it’s because Henry told her not to tell anyone or else she’d get in big trouble. Lisa calls the local police and reports that her daughter has been molested by a family member.
• May 28, 2019 – Jane Doe is interviewed by a forensic child psychologist about the events she claims happened to her in 2017. (See opening paragraphs). Unlike a bland, intimidating police station interrogation room, the space where she is questioned is located inside a strip mall, set up like a children’s playroom, with toys, paint brushes, stuffed animals, and a television. And unlike a courtroom, Jane Doe is neither testifying under oath, nor being cross-examined by an attorney.

The facts of the case are these:

• Hector and Jane Doe are members of two large Mexican families related thru marriage. The families are very close, and gather for holidays and family celebrations two or three times a month, usually for backyard barbeques. The gatherings range in size from 30-60 people, with lots of kids running around. They also gather for weekend getaways and family vacations.
• Lisa, Jane Doe’s mother, was a full-time San Francisco policewoman during 2017, working 50-80 hours per week, usually swing shifts beginning at 8:00pm. Divorced at the time, Lisa’s parents cared for Jane Doe on weekends, while during the week she was cared for by her mother-in-law, who also happens to be Hector’s mother. Lisa has recently left the San Francisco Police Department for another full-time law enforcement position in another Bay Area community.
• Hector has two small children of his own. He is separated from his wife, and she has custody of the kids.
• In February 2020, nine-months after being arrested, Hector pled guilty to federal charges of possessing child pornography. He received a six-year prison sentence and is presently serving time at a federal facility.

After opening statements, the prosecutor begins laying out his case. His first witness is the Contra Costa County sheriff’s detective who arrested Hector for child pornography. He testifies to finding five unique photos on Hector’s cell phone, and that every time a digital photo is taken on a device it contains metadata, i.e., a digital fingerprint. That’s how he discovered the photos were taken on Hector’s cell phone in 2011 in Jacksonville. A recording of Hector’s confession is played, and the photos from his cellphone are displayed on an overhead screen in the courtroom. They. Are. Disgusting.

The sheriff also testifies to the sex toy, which is brought into evidence. It is a silicone replication of a female torso. While overtly voluptuous, it is small in size, and the prosecution contends it is representative of a child’s physique. However, during cross examination, the defense attorney contends the sex toy, because of its tiny waist and oversized hips and buttocks, is more representative of an adult female, despite its small size. It, too, is disgusting.

The next witness is Lisa, Jane Doe’s mother. She cries throughout her testimony, bemoaning the guilt she feels for having to work full-time while raising her daughter, exposing Jane Doe to the evil of her uncle. I truly feel her pain. Lisa further testifies to asking Jane Doe about Hector after his arrest in 2019, when she was nine, and Lisa swears under oath that, other than that initial conversation, she hasn’t never discussed with her daughter the details of the alleged crimes. I have real compassion for Lisa, but I don’t believe her. No way has she gone three years without asking her daughter the what’s, where’s, and whys of the events in question. No way.

Wednesday, April 6

Today is a BIG day…Jane Doe testifies. The entire case likely rests on her testimony. Everyone in the courtroom, including two dozen family members who show up to support her, knows this. The tension is the room is insufferable.

Jane Doe turned twelve-years old only yesterday. Her family threw her a big party. She is pretty and petite, with sparkling brown eyes. Her long black hair is tied in a pony tail. She looks like a typical seventh-grader.

I can hardly breathe, and I can feel myself getting emotional. Holding a small squeezy toy in her left hand, Jane Doe raises her right hand and swears to tell the truth, the whole truth, and nothing but the truth, so help her God. I swear I’m going to lose it.

Jane Doe testifies for over an hour. She is an honor student, loves math, and wants to be a doctor when she grows up. She is a bright, well-spoken young lady. She testifies to what Hector did and said to her in 2017, and what she told the child psychologist in 2019. However, she stumbles. A lot. Under heavy cross examination, the defense attorney pokes hole after hole in her story, her timeline, as well as the details of each of the three events in question, which in totality probably consumed less than sixty seconds of her young life. Despite the defense attorney’s best efforts at creating confusion, and thus reasonable doubt, all I can think about is this: what do you expect from a twelve-year-old child, trying to remember what she said at age nine, about events that took place when she was only seven?

The most dramatic part of Jane Doe’s testimony concerned the picture Hector allegedly showed her when she sat on his lap at a party. Today, she testifies that the picture featured numerous naked adults touching each other’s private parts. However, during her 2019 interview she said there was only a bunch of people in the picture and that she couldn’t remember what they were doing. This sounds like reasonable doubt.

The prosecution calls its last witness, a Contra Costa sheriff who investigated Jane Doe’s allegations against Hector. The 2019 video with the child psychologist is played in its entirety. Jane may be only nine, but she is smart, quick to please, and appears to be a very happy, well-adjusted little girl. Her recollection of the details of her encounters with Hector are spot-on. One thought consumes me: she has no reason to lie. I believe every word she says.

The prosecution rests. The judge orders everyone to reconvene in twelve days. Twelve…Days…

Monday, April 18

It’s almost 11:00am. We jurors are cooling our heels in the hallway outside the courtroom. The bailiff says the judge is running late and to be patient.

Noon. We’re told to take our perfunctory 90-minute lunch break and show up at 1:30pm. I head to In-N-Out. Again. Booyah!

We dutifully return at 1:30. Only there’s no judge. We’re informed that the judge is sick, and that the trial is being suspended for another week. Smart money says the judge contracted Covid. Whoever said “the wheels of justice grind slowly” wasn’t kidding. What a waste of a day.

Monday, April 25

The judge, now wearing a mask, apologizes for the delay. It wouldn’t hurt to have a refresher on the case, as nineteen days have passed since the prosecution rested. But no go. We begin right where we left off.

The defense attorney proceeds to call three witnesses, all members of Hector’s family. All three testify that they saw nothing and that there were too many kids running around at these family gatherings to pay particular attention to one specific kid or adult, and that no one ever saw Hector do anything malicious to Jane Doe. Besides, they said, he brought his own children to these parties. Scribbled in my notebook are the words “See No Evil/Hear no Evil/Say No Evil.” Their testimony is worthless.

The defense next calls an investigator from the Public Defender’s Office. She testifies about shopping for a version of the sex toy that was confiscated from Hector’s apartment. One was found at a local brick and mortar adult toy store, and that nowhere on the box is the toy described as imitating a child’s body. After an hour and a half of hearing about the consumer buying patterns of the adult sex toy market, I want to reach for a razor and slit my wrists. I’m literally sick to my stomach, another lunch stop at In-N-Out notwithstanding. Not only that, but her testimony has nothing to do with the case. NOTHING!

Tuesday, April 26

The entire day is taken up with closing arguments and jury instructions. The prosecutor delivers his closing statement with a detailed PowerPoint presentation. He sells his case well. The defense attorney, on the other hand, reads from a 20-page script. She appears robotic, with little conviction in her voice. She’s been dealt a bad hand, but she has played it badly. Back in the 1990’s, my dad and two brothers were convicted of crimes and sentenced to prison while being represented by public defenders. Now I know why.

At 4:00, the case is FINALLY given over to the jury. A stately woman in her 60’s nominates me as jury foreman because I was always taking notes. So does the guy who sat next to me for the entire trial. I accept. My first pronouncement as jury foreman is to suggest that everyone go home and get a good night’s sleep.

Wednesday, April 27

Deliberations start a few minutes late, thanks to my having to sprint back to my car to get a hat. We need something to collect our secret ballots. My Bandon Dunes rain headgear does the trick.

I suggest we take a vote on Count One (Lewd Act Upon a Minor with Force or Fear – Contra Costa County). The vote is 8-4 for guilty. I then ask if the four dissenters would vote for a guilty verdict on the lesser charge within the same count (Lewd Act Upon a Minor). They agree, so should we not be unanimous on the top charge, at least the defendant would be guilty of the lesser charge. Let the debate begin.

I sit quietly and let others speak their piece. I finally speak up after ten minutes or so of discussion. “I believe the entire case comes down to the girl’s testimony,” I say with Perry Mason conviction, “but I don’t trust her testimony in court. However, I believe she was telling the truth when she was nine. As such, I think the defendant is guilty on all counts.” Several of the jurors nod their heads in agreement. Perfect.

Everyone agrees to rewatch the 2019 interview. During the replaying of the video, I thumb thru a thick black notebook. It contains the alleged charges, legal definitions, and forms I’ll need to fill out as foreman. I finally find what I’m looking for. I’ll bring it up when the time is right.

Debate starts up again after the video. I can sense the room is still not unanimous on Count One. I sense an opening and intercede, reminding everyone about something the prosecutor brought up yesterday in his closing statement — California Criminal Code 1191A. It says:

1191A: Evidence of Uncharged Sex Offense.

The People presented evidence that the defendant committed the crime of possessing child pornography that was not charged in this case.

You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. Proof by a preponderance of the evidence is a different version of proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

If you decide that the defendant committed the uncharged offense, you may, but are not required to, conclude from the evidence that the defendant was disposed or inclined to commit sexual offenses, and based on that decision, also conclude that the defendant was likely (and did commit) the sex offenses as charged here.

Game. Set. Match.

“It didn’t matter that no one saw Hector touch Jane Doe, or that we never saw the actual picture Hector showed her while she was sitting on his lap,” I implore. “He’s a sexual predator, a monster, and he was ‘more likely than not, and ‘disposed or inclined to commit’ the crimes he was charged with. CalCrim 1191A allows us to connect the dots. He’s guilty, dammit.” Or something to that effect.

Two hours of deliberations and we’re done. Ironically, we don’t spend a single minute talking about the sex toy, which we hid out-of-sight underneath the room’s table. I thank everyone for maintaining their composure, for acknowledging, listening, and respecting the opinions of others, and for not letting their emotions over the disturbing nature of the case prevent them from considering all the facts. Kudos are sent my way for doing a good job as jury foreman. If I’ve learned anything today, it’s that jury trials are living events, and success is never assured. Twelve people from a diversity of backgrounds, educations, and experiences, who don’t know each other from Adam, sit around a table and determine the fate of someone charged with committing a crime. I’m just happy it’s over.

But it’s not.

After collecting our belongings and waiting over an hour for the victim’s family to show up, we finally enter the courtroom at 3:00. The clerk blithely reads off the first guilty verdict. I look quickly toward Jane Doe’s mother. Tightly holding a tissue, with a relative’s arm draped around her shoulder, she lowers her head and bursts into tears. The defendant, meanwhile, shakes his head. He’s scared; state time is a whole lot meaner than federal time.

After reading off the verdicts for the other two charges, the judge informs us that we must return to the jury room to deliberate possible sentencing “enhancements.”

Excuse me?

A sentencing enhancement suggests the crime committed rises to a higher level within the crime itself. For example, in this case, because we found the defendant guilty on all charges, the prosecution wanted the jury to consider the following four enhancements for each count:

1. That the crime committed was especially violent and callous.
2. That the victim was particularly vulnerable.
3. That the defendant took advantage of a special trust or bond he held with the victim.
4. That the defendant should be considered a menace to society.

Normally, a judge considers sentencing enhancements. As he or she should, since they are the ones who have overseen the trials of dozens, if not hundreds, of similar crimes. But the law changed in California on January 1, 2022. Just our luck. Why weren’t we told of this ahead of time? Three verdicts, each with four enhancements, meant we had TWELVE more decisions to make (True or Not True). And we had to be unanimous.

Are you kidding me?

We trudge back to the jury room. No one, and I repeat no one, wants to be here. Everyone is upset. Some more than others. One man, who I got the impression wanted to be foreman, spouts off like a volcano the moment the door is closed. “I don’t care what any of you say—I want this guy to burn at the stake!” He goes on to say that he has a seven-year old daughter, and that he’s voting “TRUE” on every one of those enhancements, no matter what.

The majority of the jurors, however, feel differently. Jane Doe wasn’t raped or penetrated, she was touched on the outside of her clothes, and the crimes committed happened not in some dark alleyway but in common areas surrounded by family. We had already found the defendant guilty, and he was going away to prison for a long time. Though we didn’t take an official vote, I’d say we were 9-3 or 10-2 for NOT TRUE on all twelve enhancements.

The debate begins. Only it gets ugly. Quick. Everyone is stressed, tired of discussing such awful behavior. Voices rise. Accusations fly. Insults are hurled, and arguments become personal. The decorum and civility of our previous deliberations goes right out the window. I, as jury foreman, have lost control.

After thirty minutes of meltdown, I am finally able to get the room to focus on the task at hand. Based on the conversations bouncing off the walls, it appears we can unanimously agree on TRUE for Enhancements #3 (violation of trust/bond) and #4 (menace to society). We do, and just like that we have agreement on six of the twelve enhancements. Finally…progress.

But there is no way we are going to find a unanimous outcome on Enhancements #1 and #2. Positions are just too polarized. I send a note to the judge explaining our predicament, and underlined a passage stating, “further deliberations would be FRUITLESS.”

After a ten-minute wait, the bailiff marches us back into the courtroom. The judge asks me to stand. “Mr. Geiger, what exactly do you mean by the term ‘fruitless?’”

I explain how we had jurors on both sides of the argument who refuse to budge off their positions, and that no amount of deliberation will get them to move. The judge then says, “I see you’ve agreed on half of the enhancements. I’m predisposed to accept the jury’s findings and have you come back tomorrow to deliberate on the other half.”

I look over the jury box. The clock on the wall says it’s 4:30. I know what I have to do.

“No disrespect, your Honor,” I say, my body language signaling that I, and we, are at the end of our rope. “But you can’t have us come back tomorrow. After four and a half weeks of trial, and nine court appearances, we are done. If you were a fork, you could stick yourself right through us.”

The judge calls the lawyers to sidebar. After a short discussion, the prosecutor agrees to drop the remaining two enhancements.

Free at last, free at last. Thank God almighty, we are free at last.

POSTSCRIPT – The prosecuting attorney asked me to wait outside so he could download our deliberations. When he finally met me on the courthouse steps, Jane Doe’s ecstatic family followed him like the Pied Piper. Jane Doe’s mother ran and asked if she could give me a hug. After squeezing every scintilla of oxygen from my lungs, she planted a kiss on my cheek so wet and sloppy that it could have borne fruit. Afterward, the prosecutor informed me of two legal developments. One, the enhancements we considered would most likely only affect Hector’s future parole hearings. So, they were not as important to Hector’s sentencing as we were led to believe. And two, after his sentencing in July, Hector would be expedited to Florida to face state charges of producing child pornography, i.e., the five photos he took with his cell phone.

I did my civic duty, and justice was served. Not only that, I made a decade’s worth of trips to In-N-Out Burger.

Booyah.