REGRETS, JUROR NO. 4 HAS A FEW


A chronicle of my four days on the no-mercy jury.

CALIFORNIA CODES
PENAL CODE
SECTION 403-420.1

417. (a) (2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any
manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows:
(A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.
(B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less
than three months.

“Without the fulfillment of [jury] duty, the court system simply would not work and the guarantees of freedom and justice in this country would become meaningless. Too many of our fellow citizens are not willing to ‘get involved,’ and many find any number of excuses to avoid jury service. As you may have found, for most people, jury service becomes their most intense exposure to the democratic decision-making process.”

— From a Dec. 11 thank-you letter to the jury by Judge Frederick H. Bysshe, Ventura County Superior Court

Rodney Icenbice and I both know what it’s like to regret something we’ve done.

For five seconds last July, Rodney pointed his dad’s Glock 26 at three teens in a shouting match with his father on Cochrane Ave. in Simi Valley. For five hours last month, I deliberated with 11 other jurors whether Rodney should be punished for pulling that gun. I was one of four who voted first to acquit Rodney. Eventually, I changed my mind. I tried not to look at Rodney’s face as the judge’s assistant read our verdict aloud to the court: guilty.

The following week I got a hand-signed letter from the judge thanking me for my participation on the jury. But like a member of the Broward County Green Party, I now wish I had voted differently.

Criminal courts require juries to deliver a unanimous verdict. No ballot of mine has ever counted more than the one I cast to convict Rodney Icenbice. Given the odds of me being impaneled for a second time on a criminal case, I doubt I will ever again have a vote that influences events so directly. If our scrutiny of two witnesses’ testimony had not convinced me to switch sides, the outcome would have been a hung jury. (I doubt there is any chance all eight of the jurors who initially voted to convict would have been persuaded otherwise, no matter how long we argued.) Rodney would get then a second trial, or Rodney would go free. I’d sleep easier with either of these scenarios than I do now, with Rodney headed for jail for a minimum of 90 days after he is sentenced.

To understand my remorse, you need to know some things about me, about Rodney, and about his father, Chris Icenbice. Let’s start with the one of these three on whom I am indisputably an expert: I hate handguns. I’m hard pressed to think of any invention that aids society less. (Car alarms, maybe.) If someone aimed a gun at me on the street, whether they intended to fire it or not, I would want that person to taste prison food for long time. That said, I don’t have to strain my imagination to think of scenarios in which I would rather have a gun in my hand than not.

On a dark street last summer, Rodney Icenbice found himself in one of those situations — or so he testified. He and his father were driving home from a movie when a young man allegedly stepped into the street in front of the their Ford Taurus, forcing Chris to swerve to avoid him. Seconds later, the Icenbices heard something strike their car. Chris made two U-turns before pulling over and confronting Kenny Petty, the 17-year-old he says was the street, as well as two women who were walking down Cochrane Ave. with Petty.

Chris has been a Los Angeles County probation officer for 27 years. According to his own testimony, tussles with hostile persons are just another day at the office for him. When he got out of his car and approached Petty that night, he felt safe enough to leave the smaller of his two 9mm Glocks — the one he carries with him in a fanny pack when off-duty — in the car. Chris testified he confronted Petty simply to ascertain if Petty was drunk, high, or otherwise in distress. Whatever his intent was, fat, fiftysomething Chris Icenbice and the stocky, teenaged Petty were soon standing nose-to-nose trading profane oaths at a rude volume. One of Petty’s companions, 19-year-old Nicole Wolfe, testified that her friend Nina, who was absent from the trial, stepped between the two men. Rather than try to defuse the confrontation, however, Nina verbally dared Chris to hit her, Wolfe said.

As the argument continued, Rodney Icenbice, who up to that point had obeyed his dad’s order to stay in the car, walked over and urged Chris to leave with him. When his father didn’t listen, Rodney went back to the car and brought out Chris’ gun. The witnesses differed over who Rodney trained the pistol on and for how long, but everyone agreed that Rodney’s appearance with the gun ended the confrontation. As the Icenbices drove away, Petty called 911 on Wolfe’s cell phone and read the Taurus’ plate number to the dispatcher. Chris and Rodney had only been home for a few minutes when Simi Valley police officers knocked on their door.

Rodney was charged with exhibiting a firearm “in a rude, angry, or threatening manner” — a misdemeanor, albeit surely one of the most serious. In charging Rodney with this crime, the prosecution assumed the burden of proving to the jury Rodney was not acting legally in self-defense. So the central question of our deliberations was, did Rodney believe his father was in imminent danger when he drew the gun? As we attempted to agree on a verdict by scrutinizing the letter of the law, the question evolved: Would a reasonable person placed in such circumstances believe Chris Icenbice was about to be hurt or killed, and that the threat of deadly force was necessary to deter his would-be attackers?

A couple of other things contributed to the surreal atmosphere of the proceedings. For one, the judge allowed us to submit questions for the attorneys to ask witnesses. We were given small squares of blank paper, on which we were to write questions as they occurred to us and hand them to the bailiff. He would place them on the bench, where the judge would summon the attorneys to collect the questions if he deemed them appropriate. As far as I know, the judge passed along each of the perhaps two dozen questions we submitted. Also, one of the bailiff’s duties was to instruct us in making noise whenever the judge conferred with the attorneys in private, to prevent us from overhearing them. Whenever the lawyers approached the bench, the bailiff would loudly announce it was time for a stretch break and then begin bellowing small talk in the direction of the jury box. It was an amusing tactic, and it mostly accomplished its purpose.

Before court in the morning, and again upon returning to the courtroom after lunch, Rodney waited in the hallway for the bailiff to open the doors along with the rest of us. The judge had sternly forbade us to discuss the case anywhere but in the jury room, but this still struck me as inconsiderate and unfair to Rodney.

Ironically, the two testimonies that ultimately convinced me to change my vote came not from the prosecution, but from the defense. These were the statements of Rodney and Chris, the defendant and his father.

In an effort to explain the testimonies of two prosecution witnesses who said he had “clicked” the gun at them, Rodney said he’d produced the sound by thumbing the safety catch of the weapon from the “off” into the “on” position. But Glock pistols do not have thumb-activiated safeties — they use a trigger safety, which is exactly what it sounds like: a safety built into the trigger. This makes the Glock very safe for trained users, but arguably even more dangerous to people who don’t know what they’re doing. Rodney’s ignorance of how to use the gun’s safety mechanism indicates it would have been frighteningly easy for him to fire by accident.

Rodney ultimately did himself in with an apparent plea for the jury’s mercy that had exactly the opposite effect. Under cross examination by the Deputy District Attorney, Rodney said, unprompted, that he knew what he’d done was wrong.

(Actually, Rodney first said what he’d done was “unprofessional.” A curious word choice, given that Rodney works as a call-center supervisor, but one easily attributable to his anxiety. But his father, the veteran law enforcement officer, was certainly guilty of forgetting his professionalism.)

Indeed, even before he hung himself with his apparent mea culpa, Rodney’s demeanor suggested his lawyer had done little to prepare him for the questions he would be asked. While no one could blame a young, first-time defendant in a criminal case for being nervous, surely he could have been coached into offering a more convincing testimony. For one thing, Rodney did not address the judge as “your honor” or the prosecutor as “sir.” With the exception of a Simi Valley police officer, none of the other witnesses did either, but they weren’t trying to convince a jury to keep them out of jail. Such a detail is theoretically irrelevant. But impressions matter, and never more so than in cases like this one, wherein no physical evidence exists, and the jury must in essence choose which side they believe. Worse, Rodney answered most of the prosecutor’s questions with a verbal torrent, giving much more information than what was requested. I am obviously no legal expert, but this hardly strikes me as the sort of behavior a competent defense lawyer would encourage. The comments that upon a second listen allowed the jury to agree on a guilty verdict came during one such fit of logorrhea.

The testimony I found most troubling was that of Chris Icenbice. Of the four key witnesses, only Chris had experience testifying in criminal trials. He understood the potential impact of each word he spoke under oath better than anyone. He knew what the jury needed to hear to acquit his son: At some point during his argument with Petty and his two companions, he believed his physical safety was threatened.

But Chris never said this. Instead, he undermined his son’s claim of self-defense by saying not only that he had Petty (who amply demonstrated his belligerence for the court in his own testimony) under control, but that he paid no attention to the two women while he quarreled with Petty. “They weren’t a threat to me,” he told the court, effectively torpedoing Rodney’s claim that Nina, the missing witness, stepped between Petty and Chris and reached behind her back as though to draw a weapon. Rodney had earlier testified that it was this action by Nina that provoked him to draw Chris’ gun. Wolfe, testifying for the prosecution, corroborated Rodney’s claim that Nina had stepped between Chris and Petty and loudly dared Chris to hit her. Yet Chris, ostensibly testifying in his son’s defense, did not recall the woman whom two other witnesses said was “in his face” shouting, “Hit me! Hit me!”

Rather than support his son’s version of the incident, Chris spent most of his time on the stand spouting self-impressed platitudes about what a badass he is. He testified that he needed “about three seconds” face-to-face with Petty to determine the 17-year-old was not a serious threat. He described approaching Petty and the women on foot after parking 20-25 feet away from them, in accordance with his training, to give himself time to watch and assess the trio before accosting them. “It’s the assumptions you make that get you killed,” he told us. Perhaps he thought this kind of fatuous tough-guy blather might dazzle us into overlooking his hypocrisy: If Chris was the trained and unassuming observer he claimed to be, he would never have discounted two of three potentially hostile persons on account of their gender.

I wondered why the defense had he bothered to call Chris as a witness at all, given the latter’s refusal to corroborate his son’s story. Did Rodney’s attorney know Chris would do this?

In the end, Chris’ testimony convinced me of nothing so much as the fact that he wanted us to find Rodney guilty. Moments after we delivered our verdict, I saw father and son exit the courtroom together, Chris with resting a consoling arm on Rodney’s back. But on the stand, it was Chris’ apparent contempt for his physically slight, awkward, nerdy offspring that seemed forever on the tip of his tongue. At one point, the prosecutor asked Chris what, if any, instruction he had given Rodney in the safe handling of firearms. “He’s into computers,” was Chris’ dejected reply, which he repeated in response to a follow-up question a moment later. “He was never interested in going shooting with me.” The day after Chris’ testimony, I recalled that comment as I sat in the jury room contemplating Rodney’s fate. I wondered if Rodney might reach for dad’s gun to prove to the old man he was no pussy.

We listened to a playback of Rodney’s testimony immediately before voting to find him guilty. The few of us who felt some lingering ambivalence assured one another that as a first-time offender, Rodney was unlikely to see the inside of a jail. In the hallway after the trial, we asked the prosecutor what the likely sentence would be. He first said Rodney would probably get probation. Only after he asked a senior colleague walking by to confirm this, did we learn of the charge’s minimum jail term of 90 days. His ignorance of the penalty in the case he had just tried stunned me. Upon hearing Rodney would definitely be going to jail, one of the jurors who had initially joined me in voting to acquit Rodney, an elderly first-grade teacher, exclaimed “That’s awful!” I felt like I had been punched in the stomach. Rodney was an anxious, dull kid with no college education, a father who hated him, and a crappy job he was about to lose. In a couple of months, he would be an ex-con. And misdemeanor or not, the fact that he had done time would haunt Rodney no matter what he tried to do with his life.

For days after the trial ended, I tried to figure out why I felt so guilty over having cast the vote that would send Rodney to jail. After all, he had pointed a loaded gun at and briefly threatened the lives of three people, whether he meant to or not. Yet I felt certain Rodney would never repeat this behavior even if we turned him loose. Rodney wasn’t someone who carried a gun or went looking for trouble. He had acted foolishly, yes, but in a questionable situation his father had, in effect, created. (When the prosecutor asked Chris if he could have simply avoided the confrontation with Petty, Chris replied with a question of his own: “Physically or morally?”) What purpose would Rodney’s incarceration serve, other than to make it exponentially more difficult for him ever to land a decent job? Would locking up Rodney deter even one person from reaching for a gun out of anger or fear or a need to affirm his masculinity?

I doubted it.





Posted: Sat - December 14, 2002 at 12:20 AM        


©