Blind Juror

Blind Juror

The Braille Monitor

July 2003

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Blind

Juror

by

James Moynihan

Jim

Moynihan

From the Editor: Jim

Moynihan is a longtime member of the National Federation of the Blind. He and

his wife Jana are active in the Kansas City, Missouri, chapter, where Jim is

now a member of the board. The couple have two almost-grown children. In the

following story Jim reports on his experience as a member of a jury. As a federal

employee he was allowed to take administrative leave to perform his civic duty.

That meant that he could continue to draw his salary and was therefore required

to turn back his juror's pay of a princely $6.48 a day. No wonder serving on

a jury is a financial hardship for many people. Here is Jim's story:

I

have often wondered what it would be like to serve on a jury, and I finally

got my chance on August 5 and 6, 2002. After receiving my summons to serve,

I reported at the courthouse in downtown Kansas City, Missouri, at 8:00 a.m.

on Monday, August 5, 2002. When I reached the desk, the clerk told me that I

was excused. When I asked why, she said, "because you are blind."

I

informed her that I did not wish to be excused on the grounds of blindness and

would serve if selected. The incredulous clerk directed me to the room where

the panelists sat waiting to be culled for jury duty. The lucky twelve would

be selected for the jury, and the rest would be sent home.

I

assumed that I did not have much to worry about since I would not be selected.

I completed the form telling the judge and attorneys for the prosecution and

defense that I was a civil rights investigator working for the U.S. Department

of Education, Office for Civil Rights. Knowledgeable coworkers had told me that

I would automatically be rejected for jury selection because attorneys did not

want people on the jury who could separate fact from fiction. Attorneys want

dummies who might be persuaded in favor of their client.

During

the next few hours I tried to read Syndicated Columnists Weekly, attempting

to blot out the loud television programming. Then about fifty of us were sent

to the room where the jury selection process began. We were told that this case

concerned the XO club. A woman had fallen and had then filed a personal injury

lawsuit. This information immediately set my teeth on edge.

My

detestation of lawyers is exceeded only by my revulsion at the frivolous lawsuits

filed by whining plaintiffs that are clogging our court system. So much for

that noise, I told myself. Then the lawyers began explaining the details of

the case, so I decided that I had better listen.

The

woman, in her twenties, was employed as an airline attendant. She was socializing

with a group of friends at a nightclub in Westport, and the rest of the group

left. She struck up an acquaintance with a young man, and they shared several

cigarettes--the regular kind. They decided to go to the XO club, which specializes

in dancing and serves drinks.

The

couple danced for a while and then decided to have drinks, which were served

upstairs. When they reached the landing, they came to a ledge, which overlooked

the dance floor. The building had been inspected, but the ledge did not meet

building code and should have been eighteen inches higher.

Somehow

the woman fell over the edge, and, though the man tried to stop her from falling,

he was not successful. As a result the young woman suffered a broken wrist,

a broken shoulder, and a broken pelvis. She also incurred an indentation on

her left hip, which is permanent.

I

do not recall all the details, but I think she had about $6,000 in medical expenses.

She was cared for at her mother's home and returned to her airline attendant's

job a few months later. The plaintiff then moved to California and has a live-in

boyfriend, who fathered her child, now about a year old.

The

plaintiff sued the XO club and also the building's landlord. Fellow jurors informed

me that the landlord slept through the trial, but he was represented by an attorney

who spoke on his behalf.

The

attorneys for the plaintiff and the defense questioned the panelists to make

the jury selection. We were asked whether we knew any of the doctors who had

treated the plaintiff for her injuries. I was surprised to find and acknowledge

that I knew the orthopedist, who treated my daughter Jeanene after she jumped

from a trampoline, injuring her knee.

One

of the attorneys for the plaintiff referred to my occupation as a civil rights

investigator and asked me if I thought too many lawsuits were being filed. I

agreed that there were too many lawsuits, but I had learned that in my job my

opinion did not matter. In fact, a supervisor once told me she did not give

a damn about my opinion. My training required me to keep digging until I was

satisfied I understood the facts of a case so thoroughly that I could explain

it to team leaders and attorneys. After that response I thought to myself, you're

a goner.

The

questioning continued until the judge finally pounced on one unlucky soul, observing

that this man was the only panelist who had remained totally quiet during the

selection process. The judge commented that nature abhors a vacuum. The judge

asked this man if he thought there were too many lawsuits, and he agreed that

there were. He then asked the man if he could keep an open mind if he were selected,

and he said that he could, to a point. I was not surprised when this man was

not selected.

The

judge told us to go to lunch and report back at 1:30 p.m., when we would be

told whether or not we would be on the jury. This gave me the opportunity to

eat lunch with my wife Jana in the federal building cafeteria. The judge admonished

us not to discuss the case with each other or with outsiders.

When

I returned from lunch, I was surprised to learn that I was one of the twelve

jurors selected. The judge admonished us not to discuss the case until it was

time for the jury to deliberate. The trial would begin that afternoon and conclude

on Tuesday, he hoped. It might continue on Wednesday with the jury handing in

its verdict that day.

The

trial was straightforward, and the facts were not in dispute. The plaintiff

and her attorneys agreed that she had been able to return to her occupation

as a flight attendant but had to be careful lifting bags that might weigh up

to seventy pounds.

The

plaintiff said she was living a normal life but sometimes experienced pain in

her shoulder when putting on her seat belt or doing other tasks. Her attorneys

stressed that the indentation in her hip was a permanent disfigurement. They

asked the jury to award her $125,000 for punitive damages based on her injuries

and medical costs. Now here comes the kicker. They also asked the jury to award

an unspecified amount based on the plaintiff's pain and suffering because she

had endured pain and humiliation and has a permanent disfigurement, which for

a woman is devastating.

The

defense did not dispute that the plaintiff had fallen at the XO Club and had

suffered injuries. The XO attorneys said that of course they were sympathetic

but that the injury to the plaintiff was not their fault. She had been drinking

before she arrived at the XO Club, but they did not say she was drunk. The building

had been inspected and was given a certificate by Kansas City.

Thousands

of patrons had observed the ledge, but it had not raised any questions about

safety. The violation of the building code became a factor only after the shallowness

of the ledge was discovered by engineers hired by the plaintiff's attorneys

during the lawsuit. The implication was, okay jurors, give her something, but

don't go crazy on us.

The

trial ended late Tuesday afternoon. I wanted to get started, but a number of

my companions required a smoke break. We all agreed that the plaintiff should

get something; the question was how much. Being a conservative fellow, I threw

out a figure of $50,000. I have often been astonished to read of smokers or

people paralyzed in auto accidents being awarded settlements in the millions

of dollars. I could never fathom how this happened, but I was soon to find out.

Several

jurors maintained that this woman had suffered a devastating injury and that

no price tag could be placed on her pain and suffering. One juror suggested

a figure of two million dollars. Some of us pointed out that she had returned

to work and was leading a normal life. The jurors expressed their opinions strongly

but remained goodtempered throughout the deliberative process.

The

jury foreman went around the table trying to reach a consensus. Pressure was

building to wrap things up on Tuesday to avoid continuing to deliberate on Wednesday.

I was enjoying myself and was not averse to continuing on Wednesday. The Department

of Education was paying my salary, but I had to return my $6.48 per day jury

stipend.

Other

members of the jury were not being paid for taking off work to serve on this

jury. I was impressed that these citizens were making a real sacrifice to serve.

We

finally reached a consensus that the XO club and landlord were guilty. We agreed

that the plaintiff should receive $120,000, which was close to the amount requested

by her attorneys. I believe that most of us were reasonably satisfied. I thought

the settlement was somewhat excessive but was pleased that we had avoided the

astronomical sums suggested by some of the jurors.

We

repaired to the courtroom, where the jury foreman handed in the verdict, which

was read by the court clerk. The expressions on the faces of the attorneys for

the defendants indicated that they were not happy. But I believe that one of

the treasures of our democracy is the right to a jury trial. It bothered me

that the clerk was willing to excuse me from serving on a jury based on blindness,

and it shocked her that I wanted to serve if selected. Yet other citizens are

expected to serve on juries unless they come up with a legitimate excuse. We

all know that blind people are excused from working because others expect that

society will take care of us.

I

was impressed that the people on my jury took their task seriously. They grappled

with the issues presented by the attorneys and tried to arrive at a fair and

equitable solution. We came from all walks of life and had never met before.

We were of different races and levels of education. We tried our best to hammer

out a reasonable and fair settlement. We even accommodated the smokers; how

about that?

The

XO case will probably not be remembered as a monumental case in the annals of

legal jurisprudence. Thousands of such cases may be heard across America every

day by average people like me who serve on juries. Sure beats Communist China,

Cuba, North Korea, Iraq, or Iran. I would do it again if called upon. You can

turn me down for any of a number of reasons, but don't let my blindness be one

of them.

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