The Ecphorizer

On The Jury
Jack Waananen

Issue 02 (December 2003)

Needless to say, I was a bit disturbed to find that I would be on this kind of case and I expected it to be quite distasteful. It was a misdemeanor so there was no rape or physical injury. Therefore, it turned out that the case was not uncomfortable to sit on and I found it fascinating. One factor we had in the back of our minds was that a guilty verdict would mean that the defendant would be branded -- and have to always register -- as a sex offender.

In California, as the result of high profile cases in the past where convicted sex offenders have struck again, offenders have to register with the local police departments whenever they moveand that information is available to the public -- published periodically on a CD-ROM available at all California police departments.

Because the verdict could affect the rest of defendant's life, it was important that I and the rest of the jury made the correct decision. During the same time period as the trial, my 90-year-old Mother had just come out of a few days in the hospital and then went back in before being discharged a few days later. Add to that some issues at home and I was fearful that I would be distracted and unable to concentrate and evaluate in a fair and impartial manner. However, I am happy to say I was able to "...keep my head on straight" to use the old cliché and render a decision that I can personally live with and be confident that I was right.

The offenses occurred in March of 1999 and were committed by a 32-year-old computer consultant of Persian heritage upon the 7-year-old daughter of a UPS driver and his stay-at-home Mom who also apparently does some computer work. There were also a pair of 18 month old twin boys and a couple of dogs running around the place at the same time.

The defendant, who I will call S., had gotten friendly with the father on several job sites where he was a subcontractor. They got to talking during several visits about how the father needed some help fixing some things on the computer. One night about 8:30pm the father and daughter (I will call T.) even visited S. at work. At that visit S. played with T., showing her the lunch room, giving her some apple juice, even carrying her around piggy back.

On March 24th S. was supposed to come to dinner and work on the computer but was late. He ended up having a plate that was saved for him while T. ate her dessert. Throughout the evening his mother described S. as spending too much attention to T. He even at one point helped the mother brush the twin's teeth in the kitchen, then T.'s teeth in the bathroom (even though a 7-year-old is perfectly capable of doing it herself).

The mother said T. was enamored with all the attention being paid to her since normally the two small boys seemed to get most of the family's attention (and understandable in the first 18 months). When T. was to take her shower, she wanted to still play with S. rather than take her shower. There was some joking around that S. offered to give T. a shower "...if she was a few years older like 25". When T. went to bed, S. even went into the room with T. and her parents and jokingly (?) jumped on the bed and said "S. go to sleep too" but jumped right off. S. later stayed at the house until after Midnight mostly socializing but with some computer work.

On the 25th, S. came over just as kids got home from school and day care to finish up computer work. The mother was tired from the late night before but while she worked on the computer, S. and T. played hide-and-seek (T. under one of her brothers' cribs at one point), played outside, played around the house. Again in the mother's words, excessive attention to T. However, whenever the mother needed help, S. would return within 30 seconds and was never out of sight for more than about five minutes.

That evening while T. was with mother in bathroom getting ready for bed (actually early before dinner -- about 6:00pm while this had all started about 3:00pm), T. told her mother that "S. had done something bad". He had supposedly "sucked on her boobs, " had kissed her plus had "sucked on her tongue" and asked her to suck on his. The body contact was supposedly in T's bedroom on her bed while she was changing her tee shirt. S. supposedly licked T.'s lips while she was under the crib to "taste her lip gloss". There were no reports of genital contact and though the mother made reference to T. reporting that S. said she had a "...nice butt" and touched it, T. did not confirm this in her later reports or testimony.

When the mother heard this from T., she got scared and called her husband who was not yet home from work. The husband told her to call the police which she did. They showed up in about three minutes and arrested S.

So the trial progressed first with the mother's testimony that the two days were a bit creepy with S.'s attention to T. but she did not feel uncomfortable enough to say anything. In hindsight, many things that happened provided clues that she did not sense except subconciously at the time. She explained the chronology and what T. had told her.

The little girl then testified. She is now almost nine and had to be lead very carefully to remember what had happened -- "Do you remember telling so-and-so about such-and-such?" and "Do you remember S. saying such-and-such". Both attorneys were very gentle and oddly enough, the defense attorney elicited more recollections than the DA.

The next witness was quite interesting. In California you can bring in testimony of previous infractions of the same charge to attempt to determine if the defendant had a predisposition toward this sort of crime. The jury can chose to accept or reject the testimony as suggesting that predisposition.

An 18-year-old girl called H. in this account testified to a pool party a 20-year-old coworker invited her to in an East Bay community back in September of 1998 (when she was 16). The girl went to party, no doubt about that, but it turned out to be more than she bargained for. The defendant, known to her as the coworker's boy friend N., was there also. During the evening, S. prepared dinner for them but there were also numerous alcoholic drinks.

They all swam in the pool. S. and the coworker proceeded to get naked and the defendant at one point removed H.'s bikini top (though she later wore a tee shirt and her swim suit bottoms). Inside in the living room the other two proceeded to have intercourse with H. present and attempted to include her in the events, at one point fondling H.'s breasts. Later in a bedroom this was repeated.

Even later when the very drunk coworker was vomiting in the bathroom, the defendant masturbated and ejaculated on H. and tried to get H. to touch his genitals. To the defendant's credit (if such be possible), he did stop doing anything to her when she said no.

The coworker was now passed out in the bathroom. The defendant proceeded to go to sleep. H. remained in the bed the rest of the night (in other words, did not go out to the living room couch or another bedroom or anything). In the morning the defendant prepared breakfast for the two girls, packed a lunch for them, and then drove them to work (?!).

The details above are of course not part of this current case and at this point there was no testimony as to whether the defendant knew H. was or was not under the legal age of consent (which is 18 in California). Although it was a distasteful incident, it was not clear to me at this time whether it did or did not demonstrate the supposed predisposition.

Two days later H. reported the incident to the local police. The case was apparently never tried in Alameda County so the DA's office there must have concluded that they would have trouble convincing a jury to convict. In any case, H., though now 18, was still a very scared and nervous but believable witness. She was embarrassed at what happened and did not want her mother in the courtroom to hear the testimony.

With that the DA rested the prosecution's case. If at that point the defense had also rested, (not presented any case) I and most of my fellow jurors would have been hard pressed to conclude anything other than not guilty based on the letter of the law as I will mention later.

The defense's case primarily consisted of the defendant's testimony. The guy is a snake and I am glad nobody I know -- particularly female -- is around the guy. But that is not in and of itself illegal.

S. went through his version of the events. There were some differences in the chronology and of course differences in his explanation of the events. Basically his story was that everything was in play. He claimed he was never in T.'s bedroom. He claimed he did not kiss her other than a friendly hello kiss. He claimed the torso contact was in the form of tickling and "razzberries" -- harmless play that was not sexual in nature.

The defendant then claimed to remember the East Bay events "perfectly," that none of the sexual events occurred and that he did not provide the alcohol. He claimed that H. was "...a liar and a lunatic" -- this alienated the jury immensely. We saw no reason to disbelieve H. No reason was presented that she would attempt to disparage this man for any other reason than the events, as presented, were true.

If S. had said "I was a jerk and I thought she was the same age as the other girl and I shouldn't have done what I did", we probably would have accepted that and let the difference between a pre-pubescent 7-year-old and a sexually mature but underage 16-year-old sway us from concluding any predisposition of sexual interest in underage females.

The defendant was arrogant, a smooth talker and very manipulative. It was understandable how he would have ingratiated himself into T's family and how H. could have gotten into the bind she got into. He tried to throw red herrings in our path, implying there was something fishy about the computer and its contents, implying that his Persian culture was counter to many of the actions purported. However, by the time he said "...on my word as a gentleman," the jury was hard pressed not to laugh out loud.

S. was charged with actions that annoy or molest a child under the age of 18. In order to be found guilty there are two criteria:

  1. That an act committed would "unhesitatingly offend or irritate a normal person" and,
  2. That the acts were committed while the defendant was under such a mental state that the acts had a sexual intent.

In number1, it was not necessary that actual touching of the victim occur. It was necessary, however, that all 12 jurors agreed at least one act was committed that met criterion number 1 and that the defendant did it with sexual intent.

After arguments by both sides, the jury had the decision to make and we went off to the jury room. This was about 1:45 on a Tuesday afternoon.

We all went over our notes (which California allows jurors to take during the trial) and reviewed our recollections. We reviewed the judge's instructions and asked back if there was a definition in California law of a "normal person" -- the response was no, use common sense.

Initially four of us (myself included) were undecided whether any "offending or irritating" acts occurred or was it all really just play. Also four of us (three of the first group of four in this second group) felt sexual intent was not demonstrated. I was in both groups.

The decision came down to who did we believe, T. or S. After further review of our notes and recollections, we all concluded that the defendant had no credibility while the victim T. had no reason to lie. She could be confused or not remember but it was unlikely that she would lie about this. She definitely knew what was inappropriate and told her mother. She is definitely a "normal person" as is all her family.

The defendant had no credibility. Therefore, if we believed T. and not him, then she was definitely offended and irritated.

And since we decided that we believed T. and her version of the facts, we (the undecided) then gradually became convinced that her depiction of the facts made no sense if there was NOT sexual intent -- in other words, the defendant had to have a mental state of sexual intent to have done what he did in the way he did them.

We all were thankful that there was not a subsequent meeting of the defendant and the little girl. We were suspicious that we might then be dealing with a felony.

Sooo...at just about 4:15pm we unanimously concluded the defendant was guilty of the law as defined by the legislature. The mechanics of returning to the courtroom and finishing our task took until 4:45 and we were excused. The defendant was to return on September 5 for sentencing. 

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Jack Waananen




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