I have never served on a jury despite an unusual wish to do so. Whether a rumpled student or a polished physician, my lawyer friends laughingly noted, “Nobody would want you on a jury.” I am resigned; I will likely be called to jury duty when my mental faculties have mostly slid and my lawyer friends will then say, “That will work!” Kernie on the other hand has served on juries. Her last trial is related below with just a little artistic license on my part.
Kernie was not thrilled about the jury selection but the timing was not associated with any obvious obstacle to her participation. She showed up as requested, noted that she dressed up more than the average juror in her pool, and come home with some reassuring news: she was on a jury and the trial was to start the next day. The case was a DUI being contested and the scuttlebutt was that the trial would last a day. Kernie shook her head with some surprise: “How in the world would they allow me on this jury? I was clear that I am an RN and when asked about my feelings regarding DUI cases in general, I noted that I was a member of MADD, Mothers Against Drunk Driving. The defense lawyer did not object to my serving.”
Kernie came home the next day fired up. Note, the judge asks all jurors to NOT share details of the case with anyone. “Unbelievable. Here’s the case. This guy has a history of rheumatoid arthritis, treated, with on and off again success, who then needed a laminectomy in his neck. He was on huge doses of morphine for months and was pretty much laid up at home. All that activity found him bored and decided to take a drive at midnight. He was on a country road and rounding a corner, saw a deer; he swerved as he hit the brakes and slid into a parked car. He freaked out, worried that he had damaged his neck, so he called 911. The State Trooper shows up and thinks he looks a little off. He can’t really do a field sobriety test because the guy is in pain with a neck injury. He gets transported to the ER. He was interviewed further and still not sounding, ‘right’ a blood sample was requested to test for drugs. Now, he knew he took morphine regularly, had done so for months, and did not feel impaired, but he did not know if he should consent to the blood draw so he said, ‘I don’t know.’ He decided to call a lawyer to sort it out. Before he could reach a lawyer, the Sherrif made a DUI arrest and at that point, he did not have a choice. The blood results showed that he was on narcotics, but the blood alcohol was negative.”
She paused. “The prosecutor then called an expert witness who presented field maps of that part of the county; they went over deer migration patterns and whether there were signs of deer where the accident occurred. The prosecution spent hours today trying to make the case that deer don’t go where the accident occurred. He called another Sherrif who also looked for deer sign a day or two after the accident.”
The details of witnesses for the prosecution were many, and one would think a murder was being prosecuted. DNA was not brought into evidence, but it did become clear that there were a variety of narcotics in his bloodstream. The prosecutor made much of the fact that there was not just morphine in the blood, but a number of other narcotics.
The defense brought in an expert on toxicology; they gave a very clear report on the report noting that morphine is broken down into a number of other products and these in turn are broken down further and that that was a logical explanation for “multiple” narcotics to be present when a person reliable took morphine.
There was a long discussion about habituation ie the process by which regularly taken sedatives have less sedating qualities over time.
Kernie and I had our sidebar discussion. Treating a number of people for chronic pain, my epiphany was that all the theories of habituation in the world would not prevent a case like this from going forward. I had maybe twenty patients who accident or no accident, if pulled over and tested, would look impaired—as driving with morphine in your system makes an emotional and a legal impression. Most my patients on regularly taken morphine worked and were functioning normally as they reported back to me.
In the end, the man himself took the witness chair. As this was many months after the arrest, he was able to report that he no longer took any narcotics for treatment of his various problems. And, Kernie reported, “He was weird in his speech and physical movement walking to and from his seat. I think what the sheriff saw was this guy’s baseline behavioral repertoire. He can’t help not looking right.”
I was proud of Kernie. Already two and a half days into the trial with a weekend coming up, she had herself a mission. This despite having a huge amount of work setting up a Fall event that she helps plan every year. When the jury first convened, they felt 10/12 that he was obviously a druggy and guilty of DUI. “Scumbag druggy,” was part of that conversation. More conversations flowed. One juror thought the defendant had cancer as his list of medications included methotrexate (used for both cancer and inflammatory conditions like rheumatoid arthritis). Kernie, an oncology nurse proved her worth to the prosecution when she clarified this point; there was no need to give the guy a break because he was dying. At one point, as they reviewed the evidence, one juror pointed out the toxicology showed that he was on more than morphine, Kernie proved her value for the defense: she pointed out that there was a logical explanation for that, showing the report by the defense toxicology consultant. Morphine turns into all sorts of interesting chemicals in the bloodstream. The juror took the paper from her hand and threw it on the ground. “They paid to have that opinion. I don’t believe it and I won’t consider it.” Note, judges ask jurors to consider all the evidence entered in a case when considering a verdict.
Kernie used her RN credentials to further lend credibility to both the toxicology report and my point about the process of habituation for people taking drugs regularly. The jury left that night annoyed in that it was not clear, on their last day before a weekend, they were going to agree.
The next morning’s deliberations were interesting. One of the jurors, stimulated by the controversy, drove out to the site of the accident at the same time of night! He reported that it was dark, the corner sharp, and he could easily see how if your gaze shifted for a second that an accident could occur. Note, jurors are instructed NOT to return to the scene of the crime or to develop their own research outside of court. The toxicology issue resurfaced. A juror thought that given the problems with drugs, no one should drive whether drugs were prescribed or not. Kernie asked if anyone in the room took blood pressure pills or medications for diabetes; some did. “By that standard, should any of you be driving?” By noon on Friday, the jury agreed that based on the evidence they had been presented, a Not Guilty verdict was given.
As the jury was excused and the court broke up, the judge made eye contact with Kernie and gestured for her to approach. They had their own private sidebar. It turned out, the judge knew of Kernie through a mutual friend. The judge asked how it took three days and how they came up with a non guilty judgement. Kernie went through the jury's process and the judge paled a bit. “You can’t just disregard evidence on the basis that it was paid for by the defense! Everyone gets paid to provide evidence in one way or another. Good God!~” She shook her head when she heard of the juror’s research in the middle of the night, driving the rural roads of rural Thurston County.
“Well, what we couldn’t tell you was that this guy has an extensive history of drug related issues in this county and he has been cited for DUI in his past. I expect we will see him again. But I have to say, as the law goes, I think you guys reached the proper verdict given the evidence.”
This became the basis of a discussion I had with the businessmen, nurses, and blue collar workers I treated for chronic pain with narcotics. It further motivated me to find alternatives to narcotics for chronic pain but even with those, I noted that DUI was always going to be a practical concern to those driving or operating machinery. It is fascinating to me that a machinist with a doctor’s note confirming the use of mimd altering medication gives him or her a pass to continue working. If I was a fly in the room of Kernie’s jury, I could imaging putting out the thought that gabapentin, commonly used to help with chronic pain and a replacement for chronic narcotic use, is also sedating and a risk for driving, operating machines, etc. Where do we draw our lines? Benadryl? Glyburide? Atenolol? Insulin? It seems to me that an objective work performance screen might be used to assure competence, alertness, and functionality on the job in this setting. Even that would not be perfect.
This story also reflected people doing something they were explicitly told not to do: learn more and clarify important points of the trial outside of the trial process to come to a decision. I wonder how often this happens in normal trials. The reciprocal event in the story was validated in The Cutter Incident ie jurors often present with pre-conceived ideas of how the world works. Legitimate evidence is dismissed or gets assigned a value more than an expert in the field would give it. The Jury in the Cutter Litigation felt that the overall process facing failures with all the companies in a sense absolved Cutter for having done anything wrong. The experts in the field might have argued that a 30% failure rate vs a 1% failure rate was significant and would be worthy of blame. The end result of the Cutter litigation opened up a world of litigation because state-of-the-art process no longer protected a company from having to pay awards. Juries awarded verdicts against companies for damages that no science could support; juries feel sorry for some defendants. Juries find some defendants “scumbags” worthy of punishment regardless of the evidence.
Kernie loves to watch British Mysteries. A common means of murder is poison. I have learned from the shows that many of my patients have had symptoms of intentional poisoning and yet it has rarely been something I seriously considered. I wonder if that Judge got a taste of something that might happen more than we think, and yet don’t stop to look and find out. If we found out juries routinely were ignoring the very oaths they swore to uphold, what reform could we possibly entertain?
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