The Notebook of Alternate Juror No. 4
I've been here a week and a half, sitting through jury selection, and I've learned a few new things about our justice system. For instance, I already knew the difference between direct and circumstantial evidence, but I didn't know, as the judge patiently explained at least four or five times, that the two are equally valid. If someone comes into the courthouse dripping wet, stamping his feet and shaking his umbrella, and tells you it's raining, it's reasonable to accept that as fact.
There was another judicial concept potential jurors were having trouble with: You have to be able to look at the defendant and presume him to be innocent until you hear all the evidence, go into the jury room and begin deliberation. Why was this so difficult? Because we were not looking at an alleged burglar or sobered-up drunk driver who recently found Jesus. The guy sitting there is charged with possession of child pornography (illegal) and — infinitely more offensive — molesting two 10-year-old boys who were expected to testify. The judge and both attorneys warned jurors the pornographic videos we would be viewing would be explicit and even disgusting, "But you can't just turn your head and not watch." You have to listen to all the testimony and view the evidence.
There were more than a few — I lost count — potential jurors who said, "But he must have done something or he wouldn't have been arrested." "They didn't just randomly snatch him off the street." "If this were any other type of case, your honor ... I have kids."
The initial pool of more than 200 jurors dwindled at first due to the expected length of the trial, six to eight weeks, and again because of answers we had to provide on the lengthy questionnaire. One question read: Have you or anyone you know ever been involved in a sexual molestation incident?
The number of people answering yes was a little startling. I had become friendly with one woman sitting next to me. We talked over several days of jury selection about her daughter, her husband, her work. When she got in the jury box, with hands folded in her lap, she quietly told the story of a girl, about 5 or 6, who was repeatedly molested by her two older brothers, until one day the boys inexplicably stopped. She said she was that girl. No, she never told her parents. She ended up on the final jury panel, but others who told their stories were excused. There was one man who kept clenching and unclenching his fists as he told about a male predator who had stalked his son, now grown, when his son was 10 and playing Little League. Another had a father, he kept insisting, who had been "falsely" accused of molestation but forced by his own family to plead guilty just to bring an end to the nightmare. Television shows could not compete with the drama in that courtroom those early days in February. This was real and it was gritty.
As we finished the first week, the 12 in the jury box were deemed acceptable to attorneys for both sides. It was a good panel that included some pretty smart people: several teachers (one who spoke six languages), a retired chemistry professor from Humboldt State, a retired journalist who used to edit copy for the Journal a few years back. The 40 or so of us remaining in the leftover jury pool gave a little cheer at the prospect of being dismissed. Then the judge reminded us of the need for four alternates.
Back in court after a holiday weekend, the examination of potential jurors began again. The judge repeatedly asked could you be fair and impartial? Two beefy law enforcement types were excused after they admitted they'd give extra weight to any testimony from their brothers in blue. After an hour or so, it looked like we had three acceptable alternates. Then my name was called. I sat in the chair of Alt Juror No. 4.
Yes I had been a juror before, 30 years ago. Criminal case. On a scale of one to 10 (one being super-terrific), what do I think of the judicial system? I gave it a cynical "four." Why? The system favors the wealthy. Plea bargains. And don't get me started on what damage Bush has done to our legal system. Yes, I'm called almost every year for jury duty but I am always excused because I'm a reporter. Well, not because I'm a reporter, but because I know so many people involved. In this case: some of the cops, the district attorney (but not the deputy trying the case), Judge Watson, the school superintendent who may testify. I've written lots of stories and even opinion over the last 27 years involving molestation cases — the pedophile teacher, the priest who liked young boys he took camping, the foster father/molester of a girl who was eventually murdered but not by him. (Surely you don't want me? I added silently.)
"You know serving as an alternate juror can be pretty frustrating," said the defense attorney, continuing his questioning of me. You have to sit through all the same testimony just like the other jurors, but you don't get to go into the room to deliberate. You don't get to decide the case. You just have to be ready in case someone gets sick or there's an emergency.
"Yes, I know," I heard myself say. But what I was really thinking was I'm a reporter. I can write about it. Not during the trial, of course. I'll keep a daily journal of notes at night. After all, it's an important case on a topic I've covered many times during my career but never from the point of view of a juror.
"Will you all stand and raise your right hand."
Kindly Judge Bruce Watson, with his raspy, permanently damaged vocal cords, made it sound like a job reasonable people could do. Presume defendant innocent. Hear evidence presented in court. Determine facts. Yes, don't worry. It's OK to take into consideration a witness's background, training, motivation, believability — all of the above — in determining whether they are lying or telling the truth. Apply law to the facts and — presto! — render a verdict. Piece of cake.
All that went out the window today. This was day one: opening statements. Opening statements are not evidence, we were reminded. They're just a road map of what the evidence would show. Unfortunately, there was more than one road map.
First up was the slightly rumpled, graying Deputy DA Arnie Klein, a recent transplant from Los Angeles, who kept peering at us over his bifocals. He told us of the victims, "Boys will be boys." We would learn that apparently the two accusers, those young rascals, may have been involved in a series of 911 prank calls that tied the county's emergency system in knots for weeks in early 2007, but they weren't on trial for that. And they were being raised by their grandmother because the mother had some major drug issues and had lost custody of her sons a couple of times, once for sharing her marijuana with them on their eighth birthday. But the mother wasn't on trial either. The defendant, we were told, is the one on trial for a number of alleged crimes, including possession of pornography involving children, and, after a long period of time befriending the boys, repeated molestation.
Road map No. 2 was presented by the defense attorney, Glenn Brown. He told us his client, the defendant, age 23, was an Eagle Scout and assistant leader of his Boy Scout Troop who, yes, befriended many neighborhood boys — and girls — in the trailer park where they all lived, teaching them computer skills, handing out keys to his shed adjacent to the trailer he lived in so they could use his computer to play games when he wasn't around. He was especially close to the two boys, twins. He was a father substitute even, taking them camping, helping with their homework and getting them involved in scouting. Why? Because he, too, had a drug-addled mother, an absent father, and was raised by his grandmother.
Today we learned how easy it is to download highly specialized pornography. (PTHC means pre-teen hard core.) The first witness was a computer expert. His testimony was taken out of order because he's in high demand and has to be elsewhere soon. Today we really got into the nuts and bolts of file-sharing, how you can erase files and even reinstall a computer's operating system in its entirety, but guess what? The files are still there!
And what did the inspector find on some of the six different computers and two extra hard drives seized as evidence in this case? Pornography, including child pornography, all of which had been erased — or so the user may have thought. Oh, and the detective found user accounts for the defendant and the two 10-year-old alleged victims among others.
Watching the boys' mother testify was painful for everyone in the courtroom, not just her. Most of us jurors have children, some of us grandchildren. That two boys should have such a rough start in life — father in prison, mother on drugs, boys in and out of foster care, finally placed with their ill grandmother — would make a stone weep. But that broken woman did tell a compelling story — when she was possibly telling the truth — of her growing suspicion that the boys' relationship with the defendant was too close. Unnatural. She said she and her own mother, the boys' legal guardian, fought a lot, and were often estranged — something about a restraining order barring her from the trailer park. But for months prior to the defendant's arrest, the mother kept trying to tell the grandmother she was worried about this overly friendly neighbor, one who was so close to the grandmother and the boys he had daily contact and often walked into their home without knocking. The boys' mother had a nasty nickname for him. She called him that "pedophile fairy backup caller" because he was so willing to watch the boys for the grandmother when she had a doctor's appointment or wasn't feeling well.
We wrapped up the day with a CHP guy, the one who was heading a team investigating a rash of 911 prank calls. The team had descended upon a local school April 5, 2007, to interview the twins, who were suspects. But as soon as the lieutenant heard words about a possible molestation from one of the boys, he pulled the plug on the 911 investigation and called in the sheriff.
I heard a story on NPR recently reporting about the growing percentage of children today in the United States who are being raised by their grandparents. Today one of those grandmothers took the stand on the second floor of the county courthouse. She had been given custody of the boys in 2005. It had been a rough couple of years prior. Both her husband and her own mother, who were very close to the boys, died just a few months apart and she had been depressed. She had chronic health problems, diabetes and bad knees. That year she also suffered a toxic infection that caused her kidneys to nearly shut down. The boys were a handful, yes, and she was eternally grateful for this friendly neighbor, the defendant Matthew Christopher Davis, who would pick up the boys from school sometimes. He took them to scout meetings. He fixed her computer. He even helped the boys with math.
"I used to know how to multiply fractions, but I forgot. It's just gone," she said almost in tears. (Several jurors nodded sympathetically.)
Her relationship with her own daughter, the boys' mother, was terrible — drugs. And there were periods of time the daughter was banned from the home. But not the night of April 4, 2007. That was the night when John Doe No. 2, one of the twins, went to scouts with Davis while his brother stayed behind. The mother testified earlier, and the grandmother confirmed, that the boys' behavior had grown progressively worse since the previous summer. John Doe No. 2 had frequent and serious headaches that doctors could not diagnose nor treat. The twins were fighting more and more. It was that night of April 4, 2007, in his brother's absence, that John Doe No. 1 told his mother his story for the first time. The mother told the grandmother and together they agreed to wait until the boys' regularly scheduled counseling session after school the next day to report their fears of molestation to someone who could do something about it.
Detective Troy Garey, lead investigator, told the court about events leading up to the arrest of the defendant about 6 the next evening, April 5. A team of investigators, closing in on possibly some the 911 pranksters, went to the boys' school in the early afternoon. The grandmother arrived to pick the boys up for counseling but when she encountered the police, she decided it was as good a time as any. She turned to grandson No. 1 and told him to tell the officer what he had told his mom the night before. And he did.
An undercover cop was the next witness, leading us through two painful days of evidence seized at the defendant's home. First was a music CD hand-labeled "(John Doe No. 2) and Matt's Music to Get Horny By." We not only had to listen to the entire CD of explicit rap songs, we were each provided with a printout of lyrics so we could read along. The prosecutor was clearly torturing us.
Things got decidedly worse.
In his second day of testimony, Mr. Undercover guy, who I may have seen pushing a rusty shopping cart a time or two in Old Town, played downloaded pornographic clips off one of the defendant's homemade DVDs. I can describe what we saw that day since trials are open to the public and anyone could have wandered in. But I can't yet express an opinion since we'd been admonished not to form any before deliberation begins. What we saw was sex — oral sex, anal sex and lots of boys. And then there was one five-minute video clip of a girl, 8 or 9 years old, with an older man and an older woman. They molested the girl under bright lights while the camera rolled.
A friend of mine said he recently sat on a molestation jury. The alleged victim was 5 years old. When she took the stand, she fell apart, unable to testify, ending the trial.
John Doe No. 1 is now 11. It's been almost a year since the last incident allegedly took place. I had seen him in the hall, kind of playful and goofy, but that day on the stand he was solemn, nervously glancing around, sweaty, occasionally dropping his head. He told about getting taken away from his mother, coming to live with his grandmother, and meeting Matt at the trailer park when he was 9 or 10. He told us about camping with his twin brother and Matt, going to scouts with Matt, learning how to tie knots with Matt, placing prank pizza calls with Matt (order a pizza for your neighbor unawares then laugh when the guy tries to deliver and collect). He told us about spending time in the computer shed adjacent to Matt's house almost daily, staying overnight sometimes, playing video games, listening to music, learning how to make prank 911 calls with Matt, watching pornography with Matt, masturbating with Matt and worse. (Davis was charged with sodomy.)
On cross examination, No. 1 admitted to lying previously but he said he was now telling the truth. He said he was scared of getting in trouble so he lied about any knowledge of the 911 calls (yes, he made some), about when he denied he, too, had been molested (he had), and basically, he was easily confused about facts, dates, details, leading to ... contradictions. Make no mistake, the job of the defense attorney during cross exam is to stroll around the courtroom, reach into his pocket every once in a while and sprinkle seeds of doubt. He was very good at it, especially when his witness is an 11-year-old sometimes-liar.
The twins are not identical. No. 1 is big for his age, taller and heavier than his brother, slow in his answers. (His grandmother called him a "sweet, gentle" boy.) He can barely read. No. 2 appears to be like a younger brother, yet smarter, quicker and crisp and direct with his answers. The district attorney began slowly, asking him what happens when you lie. "You get in trouble." What happens when you tell the truth? "You don't get in trouble but someone else gets in trouble." He couldn't stop himself from glancing nervously at the defendant.
No. 2 loved Matt, he told the court. Matt loved him. Matt was his best friend.
Then No. 2 testified about what happened when Davis took him and his brother camping at Swimmer's Delight late in the summer of 2006. He said that he and Davis had a sexual encounter after his brother went to sleep. He went on to describe later encounters in the shed, where he said they played video games, watched pornography and listened to rap music.
The prosecutor asked him about the pornographic movies they watched in the shed. He said that they watched them several times a week. One movie, he said, was about a little girl and her parents.
To me, they were actors in that video, but to No. 2, they were a real family. I had mentally prepared myself to sit through the sordidness of this trial. Today was tough.
Cross exam of No. 2 continued from the previous Friday. Attorney Brown sprinkled more seeds, but to me, it was like peeling an onion with more and more translucency emerging from the witness. Apparently the twins had been formally questioned at least a half a dozen times by someone of authority over a period of 12 months since that day all hell broke lose and Matthew Davis was arrested. Two videotaped CAST interviews (the multi-agency Children's Assault Task Force) occurred that first week. They were interviewed six months later by the District Attorney's office as the case proceeded toward trial, and several times more as the trial approached.
During jury instructions, the judge said we may believe all of the testimony of a witness, some of it, or even none of it. I choose some. No. 2's answers were linear in a way, revealing more in each interview, things he didn't want to tell about his best friend, secrets he said Davis had told him never to tell.
Finally No. 2 was excused. Next on the stand was a trailer park neighbor who added an odd piece of corroborating evidence. The neighbor took his wife-to-be and her three daughters camping at Swimmer's Delight in the summer of 2006. When Davis and the twins unexpectedly showed up he offered to share his prime campsite with them near the water but Davis declined, choosing a more private location. That was the night, according to No. 2, he had his first sexual encounter with Davis in the tent.
All was not seriousness in and out of the courtroom. One morning the jurors were chatting loudly and laughing as the judge gaveled the session to order. "I see the Stockholm Syndrome has set in," he observed wryly. True enough. Many of us had made friends over the weeks we spent together. On one coffee break we agreed to get together after the verdict for a beer to celebrate the end of this god-awful trial.
As the people's case continued, we heard from a handwriting expert that yes, Davis was the one who labeled DVD discs "male porn" and the CD titled "Music to get Horny By," burned about a month prior to his arrest. An evidence technician testified where certain items were found (the multiple cell phones, some used to call 911, in Davis's couch where he slept). A nurse practitioner instructed us on the Tanner Scale of sexual maturity, how one could tell the approximate ages of the children on the pornographic videos as well as the sexual maturity of the accusers who had testified. She also examined both boys after the defendant's arrest, finding a bruise and some swelling on the rectum of No. 2.
Another witness, one for the defense, was taken out of order. She was a 911 dispatcher in Eureka during the time of a high volume of 911 prank calls. Then we listened to Julia (not her real name), a neighbor girl who testified that John Doe No. 2 made 911 calls in Davis' presence while Davis laughed.
March 7, 10-11
We actually heard from the defendant. He didn't exactly take the stand, but he had voluntarily given two lengthy statements, which the prosecutor was happy to play for us, that resulted in hours of video and hundreds of pages of transcript. The first interview was the night of his arrest. He was nervous but not unconfident, and he outright fibbed about several things. (Q. What kind of pornography is on those DVDs? Girls, boys? A: "Oh, girls!" Q: Any knowledge of 911 calls? A: "No!") He fully expected to get out of jail that night once he explained everything and his friend, an older scout leader, posted bail. Whatever the two boys were saying, well, it was his word against theirs but he wouldn't call them liars since they were his friends. He said their mother was putting them up to making false accusations because she was jealous of his relationship with the boys and basically, she hated him.
It was a very different Matt Davis on video the following Monday after spending four days in jail. He was tired, scared and the confidence gone. He said other inmates were ridiculing him for cooperating with the investigation. About that pornographic magazine found in the shed? He blamed one of the boys for bringing it over and leaving it, just like he tried to plant some drugs in the shed once in a baggie. His mother told him to do it to get Davis in trouble.
Two parts of that second interview stayed with me. One was the defendant's account of how child pornography relates to the scout oath, at least in his mind — why pornography might be ... healthy. ("It seems like 'mentally awake' could be somewhere in there, or perhaps pornography in general ... mentally awake, morally strong. It seems like that's the closest thing to scouting that I could tie something like that into.") The second was his intentions toward the boys. He wanted to guide them and seemed locked in a battle with the mother for their affection, especially John Doe No. 2. "As time went on I became attached to these kids ... and they became attached to me. They would say, uh, I love you, Matt." He said the struggle with the mom over the boys grew and worsened "over the last three months ... and I lost."
The defense attorney was up to bat. He recalled several investigators to re-grill them about inconsistencies in the boys' stories from one interview to the next. He also landed a few punches of his own: The prosecution had claimed victim No. 2 suffered from severe headaches that coincided with the onset of the alleged molestation, the summer of 2006. The only relief for his pain was hot showers, which he took several times a day. The headaches and the frequent showers apparently disappeared after the defendant's arrest, according to the boy, his mother and grandmother. But medical records show that the headaches actually began in 2005. In addition, even though the boys said they saw Davis masturbate frequently in the shed and "clean up" with a towel and tissues, no forensic evidence of sperm was found. (I thought this point irrelevant anyway because the defendant himself on videotape admitted he regularly masturbated in the shed.)
There was also a parade of character witnesses: Three fellow scouts saying they never saw inappropriate behavior and Davis was a good guy. Two father-figure scout leaders who guided Davis from the rank of Cub through Eagle Scout to assistant leader of Troop 27 said his character was exemplary. One of them, Ed O'Meara, said young scouts loved Davis. He was "a pied piper of little kids." (Under cross exam of witnesses by the prosecution, it was revealed that Troop 27 leaders had never had training in child abuse until February of this year, just weeks prior to trial, even though there is a Guide to Safe Scouting, specifically dealing with the prevention of child abuse and a rule that adult leaders are forbidden from sharing a tent with their young charges.)
Davis' grandmother testified on March 16 about the tough life he had in Los Angeles until he moved to Eureka to be raised by her and her late husband. At least three jurors had tears in their eyes as we broke for coffee.
We were almost done. Jury instructions came first. There were 43 pages. My mind began to blur, but then I remembered as an alternate I wasn't going into that room to deliberate unless I was needed.
The prosecutor summed up his case. The defendant had continual access to the victims. He gained their trust, exerted strong parental-like control over them. (In one taped phone call Davis told No. 2, "All I want is your love, buddy.") Then with his "sick sense of perverted love," he began molesting them, a crime that takes place in private. No witnesses. There is no "innocent interpretation" of the mountain of evidence, Klein said. You just have to find "lewd and lascivious conduct" three times over three months "and he's cooked."
The defense attorney begged to differ. Every detail of the boys' testimony "has changed over time," especially No. 1 who couldn't tell a story the same two times in a row. The boys had been exposed to pornography at their grandmother's house, anyway, via cable TV. The physical evidence was thin — he actually said "zero" — and the testimony presented merely gave "impressions" of guilt, not guilt. In other words, reasonable doubt.
I kept my cell phone near in case I was needed. I was informed of the hours the jurors were working: until 2 p.m. this day, noon the next. I was surprised it was taking so long. Three days passed and they broke for the weekend. On Tuesday, March 25, I finally got the call that a verdict was in and I drove to the courthouse.
There in the hallway were my fellow jurors waiting for court to reconvene, looking subdued and avoiding much eye contact with me or with each other. I approached a few of them and handed out my business cards, reminding them I am a reporter and would be writing a story. Most declined to talk. One said, "It was tough. I just hope nobody gets thrown under the bus." In other words, we made a decision together and we should stick together.
Although the headline in the Eureka Reporter the next day read, "Scout Leader Found Guilty," that was only part of the story. He was found guilty of possessing child pornography. He was found guilty of lewd and lascivious conduct, a significantly lesser charge by iteself. He was found not guilty of the greater crime of repeated molestation over a period of three months with someone under the age of 14 (with an age difference of more than 10 years between the perpetrator and the victim).
There was no beer celebration at the end of the trial. The attorneys like to talk with jurors immediately after a case to obtain feedback on how to improve. Only a few jurors could be cornered since most headed to the courthouse exits as quickly as possible. While defense attorney Brown spoke with one juror, I followed Klein into a side room to debrief another who was resigned to the verdict but clearly not happy. The jury started out with three jurors — him included, he told us — who felt the defendant was guilty of the repeated molestation charge, two who wanted to acquit on all charges and everyone else in between. Seeds of doubt grew.
"In the end, I felt half a loaf was better than a hung jury."
Matthew Davis' sentencing hearing is scheduled for April 30. However, on April 9, Glenn Brown, Davis' defense attorney and the chief of the Humboldt County Conflict Council's Office, filed a motion for a new trial. In the motion, Brown alleges that Deputy District Attorney Arnie Klein introduced material at trial that had not previously been disclosed to the defense.
During the trial, Davis' neighbor — the one that had testified about seeing Davis and the victims at Swimmer's Delight — related a story his young daughter had told him about seeing the defendant in the shed, handling a pair of boxer shorts. The neighbor said he believed the shorts belonged to one of the victims. In court documents, this is referred to as "The Boxer Shorts Incident." The neighbor testified that after the incident the did not want his daughter to return to the shed.
In his motion for a new trial, Brown writes that the first time the defense had heard of "The Boxer Shorts Incident" was at trial. Brown contends that bringing up the incident amounted to "prejudicial prosecutorial conduct." If the Judge rules in favor, the case would have to be tried all over again.