When Punishment Doesn’t Fit the Crime

The juror lives in Westchester. His name is Howard. As for his surname, W. will suffice, for reasons that will become apparent.

The judge occupies a courtroom in Santa Monica. His name will not figure here at the request of Howard W., who worries about further judicial displeasure.

One Friday morning in August, after a bad night with a cough and sore throat, Howard W.--a jury panelist on a bank robbery case but not yet on a jury--called in sick to the court.

When the judge himself phoned later that morning, Howard W. wasn’t home. He later told the judge he had been at the doctor’s office. He had not, although he went later that same day.

For that fib, the judge sentenced Howard W. to five days of community service, later reduced to one. He is not to violate any court orders for six months. And he had to pony up $500 to pay a lawyer to represent him in court.

Now, Howard W. agrees that truth is a laudable thing and should not--as Oscar Wilde once recommended--be used sparingly, particularly with judges. But five days of community service for telling a yarn to a judge? If the law lets that happen, says Howard W., quoting Dickens instead of Wilde, then “the law is a ass.” .

Since Howard W. retired nine years ago, he has answered each of the half-dozen jury summonses that has arrived in his mailbox. He has acquitted an indecent exposure defendant, hung on a drunk driver and gotten bumped from a celebrity slip-and-fall case because his years as a city traffic engineer taught him about deep pockets.

So where is the gravitas, the respect for the law in a system that, with one hand, lets first-time wife beaters out of its overcrowded jails after five days and, on the other hand, puts 68-year-old Howard W., World War II veteran, to work sweeping up high school kids’ lunch trash to teach him a lesson?

*

His throat really did hurt, and he had coughed all night. He called the court clerk at 8:30 a.m. to say so, talked to her and was transferred to the jury clerk, just the way it said to in his juror instructions.

About an hour later, he felt well enough to run some errands. That’s when the judge called and left a message: he wanted a note. And that’s when Howard W. admits he screwed up. He called the judge back and said he’d been to a doctor at Kaiser Permanente.

In fact, Howard W. did not go to Kaiser until the afternoon. The Kaiser doctor recommended some over-the-counter cold medicine and gave Howard W. a note for court, with some aside about judges and egos.

On Monday morning, some fellow jurors told Howard W. that the judge had announced in court that he had issued a bench warrant for Howard W. Jury selection was delayed while Howard W. faced the robed judge in the emptied courtroom.

Howard W. admitted to the judge he had fibbed. When he told the judge that the court clerk had not challenged his illness, “he said something to the effect [that] ‘I think you were hearing what you wanted to hear.’ ”

And the judge asked him whether he had considered retaining a lawyer.

The next morning, Howard W. went to court with attorney Paul Fitzgerald, who by his own reckoning has in 30 years of practice “never heard of a juror being disciplined by a court” to the tune of five days of community service.

After lunch, Howard W. happened to see the judge in the hallway. Howard W. asked him for the name of the presiding judge. He wanted to write a letter about jury sick-call procedures.

“He said, ‘You know, we could have worked this out without an attorney.’ I said, ‘Well, you suggested it.’ I didn’t tell him how much I paid.”

The upshot was that the judge promised to look into sick-call instructions and reduced Howard W.’s sentence from five days to one. He spent it sweeping up at Westchester High.

*

By now, we know that the three-strikes law carried an invisible rider: the law of unintended consequences. One is that the law that has snared repeat offenders has required more trials, and more trials means more jurors.

Jury summonses that used to be accorded all the respect of junk mail by some now carry some heft. In June, more than two dozen repeat-offender jury scofflaws were fined $1,500 each.

The mayor of Los Angeles began jury duty this week. He found it “a welcome change to be treated like a normal human being again.”

Fellow jurors might call him on that. In the jury assembly room, the rule of the herd can prevail; someone in the jury pool crowd I was in once made cattle-drive noises as we were shepherded down a hall.

Granted, one little stone can bring the whole mechanism to a halt, the way one rush-hour traffic accident can ruin dozens of miles of commuting. A defendant gets left behind at the jail. A lawyer gets held up in traffic. A juror has a medical emergency. And yes, a Howard W. fibs to the judge.

Making any one of those shoulder the blame for a court system as outdated as Univac in the age of cyberspace is like punishing the nail for the flat tire.