This week’s blog is a shift away from COVID 19. You likely have read as much as you should for this week on COVID 19. The goal of this blog is a diversion. It is a crime story. More than that it is a character study. Think of it as a chance to clear your mind. As usual, this is a story from my past.
The Cast (In order of appearance):
- Juror number 12 (the main character): A young primary care physician. Previously had served in the U.S. Navy as a physician. Hoped to get out of jury duty.
- The Judge: A federal district court judge. Reputation for being stern and running a tight orderly courtroom.
- The defendant: A neurosurgeon. Also previously had served in the U.S. Navy as a physician. Accused of tax evasion, falsification of records on a federally insured loan and mail fraud.
- The young man: A key witness for the prosecution. Accused of being a part of the scheme to falsify records. His life fell apart the day the FBI knocked on his door. Anxious and eager to get this over with and hopefully get on with his life.
- The office manager: Former office manager for the medical practice for the defendant.
- The out of state attorney / investigator: Hired by the prosecution to testify about key findings.
- Juror number 4: A GM auto worker. Detroit Tigers baseball fan. Always very direct in what he says and what he does.
- Juror number 7: A 65 year old mother and grandmother. Anxious about serving on the jury.
- Juror number 10: A worker at a local factory. Very strong sense of justice. Eager to serve on the jury and do his duty.
The Prelude:
I got called for jury duty.
I tried to get out of serving. I am glad I didn’t.
I thought I could get out of it. The summons was clear however that everyone had a duty to serve. They were not easily going to excuse me. I hoped that I would get through my two weeks without too much disruption to my life. I was a primary care physician. I had a full practice. My days and nights were busy. It was going to be a real hassle to reschedule and find coverage for my patients. It would put me behind for weeks.
Jury Selection:
I got the word that I needed to report for a jury selection on a Tuesday. I cancelled my patients for the morning but optimistically left my afternoon schedule intact. I went to the waiting room hoping that it would be a formality and that I would be allowed to leave soon. I didn’t. I got called into the courtroom.
It was the federal district court. The trial was for tax evasion, falsification of records on a federally insured loan application and mail fraud. The accused was a physician. Like me he had served in the U.S. Navy as a physician.
Perfect.
No way they would keep me. I am a physician – and more than that – a former Navy physician. Clear conflict of interest there. This would be quick. I was picturing myself having time to maybe even get caught up on charts with my extra time that morning.
The judge was stern. “Just because you are a physician does that mean that you cannot be objective in this case?”
“Um. No. I guess not,” I stammered.
The judge spoke to the prosecution and the defense, “I don’t have a problem with him. Do either of you?” They both meekly nodded, “no.”
The next thing I knew my hand was in the air and we were all being sworn in as jurors. I was in shock. The judge gave us our instructions and charges as jurors. We were not allowed to talk to anyone about the trial while it was going on. We were each handed a 3-inch-thick 3 ring binder filled with evidence.
This was not going to be a quick trial.
At my first break, I ran to find a telephone. I called my scheduling staff and told them what was happening. They needed to clear my schedule for at least the next few days and likely for the next week.
The Back Story (story jumps back 1 day to show what led to this point): They had already gone through a day without seating a jury. I was in the second day of potential jurors. The lawyers had all used up their peremptory challenges (ability to dismiss jurors without stating a cause). The judge was eager to get the trial started.
The Trial:
It was a bit complicated. The prosecution laid out the case for us in their opening statement. In short, the defendant didn’t pay his taxes. He also didn’t send in the money he withheld from his employees to pay for their taxes.
It gets worse. When the IRS started coming after him, he tried to hide his money. He got a teenage friend of his daughter (the young man) to “buy” his expensive lake front house. Of course, there was no way that this young man who was earning $15,000 per year could afford the huge expensive house. The defendant helped him fill out the loan application. He told him to just put the $15,000 as being his monthly income. He reassured him that no harm would come from that little lie. It worked. He got the loan. The young man bought the house (sort of).
The scheme was that the defendant would write a check for the house payment to this young man. The young man in turn would use the money to make the payments on the house. In that way the defendant was building and hiding equity in the house where the IRS could not see it.
When the IRS came after the defendant, he told them that he had no money and they needed to “forgive” his debt. He told them he had no assets and he was broke. The paperwork he filled out was fraudulent (or so the prosecution contended.)
The prosecution called the young man as a witness. He testified that the defendant had helped him get the loan application and then coached him into fraudulently filling it out. The prosecution had us all turn in our binder to look at the loan application. The young man also told about how each month he would get a check from the defendant (another series of tabs in the binder) and then mail the checks to pay the mortgage payments (more tabs in the binder).
On cross examination we heard about more recent events. The young man was now married and living his life and no longer involved with the defendant. He told how the FBI showed up at his door. We heard about the deal he made to testify in exchange for immunity from prosecution.
We heard testimony from the office manager. We heard how years before the defendant had bought a CT scan machine when the technology was new. He had the only CT scanner in his community. All of the patients from the local hospital went to his CT scanner for imaging. He made a fortune off of all of the business he was getting. Eventually the hospital bought their own CT scanner. His CT scanning business dried up. He hadn’t planned for this. The huge cash inflow that supported his extravagant lifestyle was no longer coming in. He was going to have to make some cuts. He decided to just not pay his taxes and he kept his employees’ tax withholdings for himself. In our binder we saw employee withholding statements. There was additional testimony about how the IRS did not receive any of the money that was withheld.
The next witness was the out of state attorney. The next tab was a job contract signed by the defendant. That was followed by another tab with an interest free loan application. He testified how the defendant took an out of state job that came with a $500,000 no questions asked interest free loan plus a guaranteed salary of $500,000 per year. (This was 25-30 years ago. That is the equivalent of $850,000 per year now.)
The testimony continued with details about a shadow “research” organization that the defendant had put together. He described money going into the organization but no accounting for all of the money that came out of the organization. More and more tabs in our binder. More and more documents documenting pretty shady activity for money that seemed to disappear.
The defense tried to trip up the witness on cross examination. He was not flustered. The defense jabbed and probed all around the testimony. The out of state attorney was patient but eventually began to just show annoyance with the repeated questions from the defense. The jurors also started to share in the annoyance as the battle for words went on and on. We could see the defense was trying to discredit and create “a shadow of a doubt.” He wasn’t making very much progress.
Eventually the prosecution rested their case.
The only thing the defense could offer was a testimony from the defendant himself. He took the stand. He wore a simple but nice suit. He looked confident but not smug. He had an elaborate story to convince us that he was broke. He said that he had $500,000 in debt (the interest free loan from the hospital he took out). The debt ($500,000) minus his salary ($500,000) meant that the two cancelled out and he had no money. That is at least what he tried to convince us.
We were instructed that we were not allowed to discuss the case with anyone while the evidence was being presented. We were allowed to go home at night but couldn’t tell our families anything about the trial. We couldn’t even talk to the other jurors about the trial. With each break in testimony we would make small talk to avoid talking about what was on all of our minds. We talked about what each of us did for work, our families, and even baseball scores. We didn’t talk about the huge book of evidence or what we thought about the now 22-year-old “homeowner” giving testimony against the defendant.
We heard testimony for a week.
We heard final arguments from the prosecution and the defense. The defense started his closing arguments with, “You don’t have to like my client. Frankly, I don’t particularly like him. But…” He went on to come up with a few cohesive arguments to attempt to create some reasonable doubt on the various charges.
The Deliberation
We were locked into the jury room. If we needed anything, we were to knock on the door and then slide a slip of paper under the door. We sat down at a large table. It looked a lot like the show, “Twelve Angry Men,” except that we had both men and women.
The 1st order of business was to select a foreman. We looked around the room at each other. No one else was eager to do it. I thought the case was fairly straightforward. I hoped that by leading I might be able to help get us through the deliberations without too much trouble. I volunteered. They voted. I was now the foreman.
The 1st thing I did was to take a secret ballot vote. It came back evenly split – guilty and not guilty.
We had work to do.
The whole process of a jury trial is amazing. We are put in a room alone. We don’t have a professional or a coach in the jury room with us to guide us. That of course is the idea. We are supposed to hear the evidence and then without coaching or influence come up with what we think the verdict is supposed to be. We were told that we were not allowed to be finished with our work until we had a unanimous decision on all of the counts. We clearly didn’t have that. As foreman I had to try to figure out how to guide us through the process to get us to agreement.
I started by asking some open questions to get people talking. As they talked I listened to hear points of agreement as well as where we disagreed.
What was clear: He didn’t pay his taxes. We had no questions there.
What was not clear:
- Was it really his fault if the “kid” committed fraud on a loan application?
- Was it right that the “kid” was getting off completely free of penalty for agreeing to testify against the defendant? (He had made a deal.)
- Was it right to charge the defendant with 48 counts of mail fraud? They were charging him for mail fraud for every time he mailed the “kid” a check and every time the “kid” mailed the check to the bank to pay the mortgage. How was that wrong? Weren’t they just keeping up with the loan agreement? Wasn’t that the right thing to do?
- Wasn’t he being honest when he told the IRS he had no money to pay his back taxes and penalties? He did the math for us: $500,000 pay minus $500,000 loan debt = no money?
I got us to agree that he had failed to pay his taxes. That we could agree on.
We started working on the concept of an illegal and fraudulent “scheme.” I had us review the definition that we had been taught by the prosecution. We agreed that we believed the “kid” that the defendant had pushed him to buy the house. It was indeed a scheme. We agreed that the intent of the scheme was to hide his money from the IRS. We could all see that he had created a scheme to commit fraud.
Then everyone got mad at each other. A lot of the jurors were really mad at the “kid.” How come he was getting off completely free of any penalty? Wasn’t he at least as guilty as the defendant in the scheme?
They also hated the idea that sending the checks through the mail was “mail fraud.”
Again – I took them back to the prosecution and how they had taught us what constituted mail fraud. If the mail was being used to continue on with a fraudulent scheme, then that became a federal offense because it was using the federal (US) mail service to carry out the scheme. I explained that we didn’t have to like or even agree with the law. That was not what we were being asked. We were being asked to judge if he had violated the law as it exists.
We were now a few hours in. We had to decide if we would go home and come back the next day or order for dinner. I really didn’t want to come back another day. Fortunately, the rest of the jury felt the same way. I slid a note under the door asking for dinner and knocked on the door for the bailiff. They ordered some pizza for us.
We went on with our discussions.
Dinner came and we ate pizza and socialized. This time we could discuss the case. Mostly we talked about family and work and friends and holidays and baseball. We were all getting tired.
Once we had eaten we went back to work.
I had us start to tackle the issue of whether or not he had any money. I needed to help them through the logic:
- He took out a loan for $500,000. Q: How much money does he have in his hands? A: $500,000.
- Ok. Next he got paid $500,000 for his job as a neurosurgeon. Question: Now how much money does he have in his hands? Answer: $500,000 + $500,000 = $1,000,000.
A few of them had the lights go on. They started to get a little bit angry at the defendant for how he had tried to confuse them. For a couple of the jurors it took a bit longer. They still felt that he had the debt for the money he borrowed. I agreed with them. I told them that he could indeed pay that back. Question: If he paid back the entire loan, how much money did he still get to keep that year? Answer: $500,000.
All the lights were on. Everyone agreed. He was lying about not having any assets. More than that he thought all of us as jurors could be confused and deceived by his logic.
We were left just with the problems with half the jurors angry about “the kid” and the problem with the mail fraud thing.
I had us take a break. I used every skill I had ever learned in mediation. I went over to juror number 4 and the rest of the “black and white, he is guilty, why can’t they see it” faction. I asked for their patience. I asked them to try to understand why the others were struggling.
I went to the other side of the room.
“I know. It doesn’t seem fair that the ‘kid’ got a plea bargain. But that isn’t what we are being asked, is it? We don’t get any say in that. That is not our task. Even though it is frustrating we must do the job that we have been given. That is to determine if the defendant did or did not commit the crimes he is accused of. Do you believe that he created the scheme for the ‘kid’ to buy his house?”
Eventually, reluctantly, and almost painfully the few that were left on this side of the room began to agree. Juror number 7 didn’t like it, but she had to admit he was guilty.
Next I went on to the mail fraud charges. I almost lost them there. They were willing to admit that the doctor had created the scheme. But they didn’t want to admit that mailing the checks was a crime. Juror number 10 didn’t like this at all. He felt that if you commit to paying a loan, sending checks to make the promised payments on the loan could not be a crime.
I stopped them again. “I know. It doesn’t seem like that should be a crime. But we didn’t write the laws. It is not our job to judge whether the law is good or not. It is not our job to decide if we agree with the law or not. It is only our job to apply the law and decide if he broke that law.”
They didn’t like it at all. But they agreed.
Guilty.
I pulled us together. We agreed. Guilty on all counts. Unanimous.
We had been deliberating for about 6 ½ hours.
Another slip of paper under the door and a knock on the door.
The smokers went outside with the bailiff while the court was being pulled back together.
The Conclusion:
We all filed back into the jury box. I was the foreman. This part was hard for me.
“Have you reached a verdict?” the judge asked.
I stood. “Yes, your honor, we have.” I was standing and I could see the defendant staring me in the face. His eyes were boring holes through me. The defendant – another physician – another veteran US Navy physician – was looking to see if we would “stick together” or if I was going to betray the bond that we shared.
We then went through all of the counts against him including the tax evasion, lying on a federal loan application and 48 counts of mail fraud. They would read each count. After each count my words echoed through the court room, “Guilty.” Over and over again my words: Guilty.
The judge thanked us for our service and then dismissed us to the jury room. We were told to wait for a debrief before we went home.
The After Party:
What happened next surprised me. The judge, the prosecuting attorney, and the defense attorney all came into the jury room together. It was clear that they were colleagues who respected and liked each other. They were relaxed and comfortable with each other. They stood close together like friends. In spite of all that had gone on, they were professionals who were doing their job.
The judge (softer, fatherly, and more likable now) told us, “It was obvious to all 3 of us that he was guilty. But he asked for a jury trial. He had the right to that. We therefore had to go through the process. You all did a good job sorting through the details and realizing he was guilty. I had discouraged the prosecutor from pursuing all of the mail fraud charges. I worried that would trip you up. I am glad it didn’t.”
The prosecutor and defense said similar comments.
It felt oddly like the end of a sporting event. The two teams along with the coaches were on the field chatting collegially, shaking hands, etc. There were no hard feelings. They had played a good game. It was over and it was time to go home.
The judge told us he was going to delay sentencing until he could get a psychological assessment on the defendant. He said he needed to better understand him to decide on an appropriate sentence.
The Characters and the Lessons:
The defendant: The defendant was a very intelligent man. I think that was his downfall. He had gone through his life getting what he wanted by using his brain. He could think his way through problems. Whatever he faced he could and would overcome by being more and more clever. The problem is reality. There are certain laws. Like the law of gravity. As much as I would like to think that I can fly, I still fall to the ground every time I flap my arms and try. I see this as a common error of the intelligent and the educated. There is a tendency to think that you can always reason your way out of problems. Sometimes you have to accept reality and deal with the world as it is rather than how you want it to be. He wasn’t willing to give up his lifestyle. He manipulated and schemed and connived. He dug a deeper and deeper and deeper hole for himself.
The young man: He was young. He was not very different than most of us when we were that age. He got in way over his head. He liked a girl. The girl’s father pressured him. An adult in a position of authority pushed him to do something he never would have done. He gave into the pressure. A few years later he was older and married (not to the defendant’s daughter) and the FBI knocked on his door. He was in big trouble. He may end up in prison. He was ashamed of what he did. He had to walk through the shame over and over again testifying in depositions and then in court. That was the only way to get through this. When he was young he was weak and bent to pressure. The 1st compromise brought him a lot more pain than he would have faced by just saying, “no” in the first place. He had learned his lesson. But it still was bringing him a lot of pain.
Juror number 4 (the GM auto worker): He was one who was ready to find the defendant guilty from the very 1st vote. He was impatient as the rest of the jury went through the 6 ½ hours of deliberation. He had made up his mind and was ready to be done. I sensed that was how he lived a lot of his life. Everything had to do with getting to the end. The trip was about the destination. It was always freeways for him. Take the most direct and fastest route. Just get there. Get it done.
Juror number 7 (the mother/grandmother): This was one of the jurors who was older than the rest of us. She was white, had grown up in West Michigan and believed that people in positions of authority were always right. She couldn’t believe that the defendant – a neurosurgeon – could be wrong. He looked like such a nice man. He was a man who had helped so many patients. It hurt her to think that the world was not neat and tidy. She was confronted by someone she wanted to respect and forced to see that he was wrong. It was hard for her to find him guilty on all of the counts. Didn’t he deserve some respect?
Juror number 10: He was one who was fine with everything except for the mail fraud charges and the plea bargain that the young man had made. It didn’t make any sense to have mailing the checks be a crime. They were keeping up with paying the loan. How was that wrong? He bristled against the idea of our role as applying the law rather than making the law.
Me: The honest truth is that I am all of them. Let me explain. In real life the characters are always much more complicated. They do not neatly fit into little categories. They all have so much more depth than what I described. I am telling the story. Because of this I interpret them through the filter of myself. In them I see all of my weaknesses, insecurities and deficiencies. I make myself the hero. I describe them based on the weakness that I hope you do not see in me.
I am the same person as the defendant. I too learned at a young age to manipulate my way through circumstances by using my mind. I too like to think that the rules that apply to others don’t apply to me. I like to think that I don’t have to accept bad things and that I can somehow by extreme cleverness figure my way out of them. But it is not always true. There are times when you need to honestly accept the facts for what they are and deal with them. You have to pay taxes. People get cancer. People lose their jobs. COVID 19 happens. Bad things happen. The wise man is able to see and accept the truth and then determine his actions based on what is real. The wise man knows that if you manipulate and connive you just dig a deeper and deeper hole for yourself. See the truth. Know the truth. Act based on reality, rather than what you want to pretend to be true.
I am the same person as the young man. I too want people to like me. I too have let them push me and mold me and make me do things that I know I shouldn’t do. It has been easy to make small compromises. When I do so I pay a long-term cost. Sometimes it is not even an external cost. Sometimes it is just the little bit of my soul that I have sold for the sake of acceptance. It is regret that plays over and over in my mind that is far more expensive than the initial rejection would have been.
I am the same person as the auto worker. I too push to get to the conclusion. I race through life and then wonder where everything went. I push to get to the destination but forget to look outside the window at the trees and grass and birds and sunshine filtering through it all. I can become impatient with people who need to live through the process. I should instead be learning from them and retraining myself to feel, to experience, to live.
I am the same person as the mother. I want to think that this is a neat and tidy world. I want to think that we have good guys and bad guys. Can’t we just have “nice people” who always do good things? I don’t want to think that people in positions of authority are sinful or corrupt. I don’t want to think that I would ever be capable of sin. Aren’t most of us all “good people”? Painfully I have had to see that all of us are indeed flawed. Most days I still run back to my pretend world where everyone is good. In that world we do not have to live with each other as flawed and sinful human beings. But it is not real.
I am the same person as the justice guy. I want a world that is black and white. I want everything to make sense. I don’t want to have to accept a complex world with multiple shades of gray. I don’t want to have to accept that some things are complicated. I don’t want to have to have mail fraud be the way to convict someone who did far worse things that just mail a mortgage check.
But time is our friend. Whether it is 6 ½ hours of deliberation in a jury room or a lifetime of lessons, I am learning. I am seeing the strengths and weaknesses in each of these characters inside of myself. By God’s grace I am being remade. I know that this world is broken. There are bad things that happen in this world and sometimes I just need to accept and deal with the world that I have been given rather than the world that I wish it to be. I don’t want to have it be a world with COVID 19. I liked the world before COVID 19. But wishing does not change reality. By my cleverness I cannot fix this problem. I need to be wise. I need to accept reality and then find what my path through that reality should be.
I know that I must do what I know and believe to be right. I like people and I want to be liked by them. But it is not worth the price of myself. It is not worth selling a piece of my soul just to please others.
I am impatient. I step hard on the gas. I am constantly working to remind myself to slow down. When the Lord puts people in my way to slow me down, I should appreciate them. I should realize they are a reminder to live the process, not just the destination.
I like shows where the good guys are clear. I want to have people to blindly look up to. I don’t want to know that they are like me flawed and sinful. But in doing so I am putting them on a pedestal that they do not deserve and cannot maintain. Like me, they are real. They are complicated blend of good and bad, strong points and weak points, altruism and sin.
Finally, I want to think the world is neat and orderly and simple. But it is complicated. The wonder of it is that it is indeed bigger than me or my mind or my ability to understand. The amazing complexity is a joy of life and I should appreciate that.
The Final Conclusion:
As we left, the judge told us that he was going to delay sentencing. He needed to get a psychological assessment on the defendant. He wanted to understand why he had committed these crimes. He wanted to figure out how to use the penalty for good. He didn’t want to do it just as a punishment. He told us that he knew it would hurt the defendant’s family. He needed to think about it.
He also told us that tax evasion cases rarely ever go to trial. It is expensive to do a trial like they had just done. He said the IRS will leverage financial means to hold offenders accountable. In this case the crimes were just so blatant that they felt like they had no choice but to prosecute him.
A few months later I read in the paper that he was sentenced to 3 years in prison.
