March 7, 2014
Loved your performance in 12 Angry Men. Also, it helped me write the following article for CounterPunch. Thank you so much.
The Jury Is Out
In the early 1950s, playwright Reginald Rose served on a jury for a manslaughter case where there were several hours of fierce debate in the jury room. That experience led Rose to write his masterpiece, the Emmy-winning drama 12 Angry Men, in which a lone dissenter blocks the rush to judgment by a jury weighing the fate of a Puerto Rican youth accused of killing his father.
Over Thanksgiving weekend, I saw a new theatrical production of 12 Angry Men at the Pasadena Playhouse in Los Angeles. Director Sheldon Epps and half of the twelve members of the ensemble cast are black. This drives some of the jury’s internal conflict in Epps’ retelling of the story, even though the defendant isn’t identified by race. The multiracial cast flies in the face of the media stereotype of Los Angeles juries as old, white, and middle class.
In the spring of 2012, I found out for myself the accuracy of Epps’ jury depiction. Summoned for jury duty, I reported to the big Superior Court building in downtown Los Angeles, where fifteen to twenty courts are going every day. There are potential jurors everywhere--in the hallways, the assembly rooms, the cafeteria.
LA juries today are a head-spinning mix of colors, ages, and nationalities. I would estimate that as many as one in ten don’t speak functional English. Middle class is there but hardly dominant. I saw one huge jury panel where over eighty per cent of the people were excused for economic hardship. Part time jobs, shitty jobs, small business owners.
Does this mean defendants in Los Angeles receive their Constitutional right to a trial by a jury of their peers? Some do, but someone up on gang charges won't see his or her reflection in the jury box. And while non-citizens, a large section of the LA population, can be tried, they can't serve on juries.
Despite the intimidating atmosphere, the diversity of the jury pool helps to stimulate a wide-open discussion during jury selection. People denounce the court system when questioned and many challenge every aspect of judicial dogma. Why can't I take the possible punishment into consideration? Circumstantial evidence is bullshit. But it was the topic of the police which drew the most attention.
As potential jurors, we were asked if we would accept the word of a police officer testifying on the witness stand. Among others, I saw a number of white people say that, based on their own experience, the cops cannot be trusted. One middle-aged white woman spoke about how she had grown up believing that the police always told the truth, but that she had lived through experiences which changed her mind completely.
In 12 Angry Men not one of the jurors expresses any reluctance to serve. But the overwhelming vibe in Los Angeles Superior Court is the desire to avoid jury duty. It is spoken about in the courts and in conversation constantly. Few people listen when a judge gives his stock rah-rah welcoming speech to the jurors in the assembly room.
Why don't people want to serve on juries? Inconvenience? To a degree. For "political" reasons? Sometimes. But the majority of it is just alienation from a hostile process conducted in a deliberately obtuse language. Jurors are generally treated like criminals, except without the pretense of a presumption of innocence. You are forced to share your feelings and experiences, often quite personal and intimate ones, with an entire courtroom filled with strangers. Who are these people? Let me out of here!
Jurors may enter a courtroom thinking only about how much they want to go home, but they can’t help but be affected by the way that our 21st century incarceration nation seeps into every pore of our being, like pollution or television advertising. The economic, social, and racial inequalities are so glaringly obvious that only a juror in total denial would be unaware of them.
There are 2.7 million people incarcerated in the U.S. with millions more on probation or parole even though our crime rate is below the international norm. For example, according to USA Today, violent gun crimes are down 75% compared to twenty years ago. Yet the United States imprisons men and women at a pace nearly ten times greater than that of other industrialized nations. An estimated 65 million Americans have a criminal record. This means that a large percentage of potential jurors have a friend or relative who has already been run over by the juggernaut which is the American court system. It’s worth noting that LA Superior Court judges are paid more than the justices of the U.S. Supreme Court, perhaps because they perform a more vital function for that system--keeping the prisons full.
A country based so heavily on incarceration needs the police to keep it that way. Driving through my neighborhood, I often see young men sitting on the sidewalk, handcuffed. They’re waiting for the police to take them to jail, most likely only as a way station on the way to prison. These cops are modern day slave catchers, but with a broader racial mandate than the nineteenth century enforcers of fugitive slave laws. Those sent to prison today may well wind up as slaves, working behind the walls for a Fortune 500 company that pays just pennies an hour. But whether they just sit in their cells or package products for Microsoft, they are adding to the bottom line of the prison industrial complex just by being there.
Whether it’s a publicly or privately owned jail or prison, their budgets feed the bottom line of countless vendors who supply them. In the case of private prisons, there’s a more insidious economic imperative at work. In The Public Interest reviewed sixty contracts between private prison corporations and state and local governments and found that nearly two thirds of them contained language mentioning “quotas” for prisoners. Mandatory occupancy is 70 per cent in California and 100 percent in some Arizona prisons. Mandatory occupancy means more people must be arrested and convicted, the Constitution and the sensitivities of juries be damned.
The annual report of the GEO Group, a private prison corporation, says corporate risks include: “reductions in crime rates” that “could lead to reductions in arrests, convictions, and sentences.” Bill Gates is a major investor in GEO Group and he expects the criminal justice system to guarantee him a profit. And so it does.
While the majority of America’s poor are white and most inmates are poor, it’s also true that the lifetime likelihood of imprisonment for white men is 1 in 17, 1 in 6 for Latino men, and 1 in 3 for black men. A survey by the Bureau of Justice Statistics showed that an estimated 500,000 people were threatened by or had force used against them by police officers in one year. Blacks and Latinos made up half of those who had such experiences even though they made up only one fifth of the population covered by the survey. Eighty per cent of those 500,000 were arrested.
Similarly, eighty per cent of defendants are indigent and unable to hire a lawyer. In Wisconsin, anyone who earns more than $3,000 a year is considered able to afford a lawyer and thus over 11,000 people each year in that state go to court without representation.
The morphing of the United States into incarceration nation dates to the beginning of the so-called “war on drugs,” which got underway during the Reagan administration when drug use was actually declining. What was increasing were factory and mill closures, which created a mass of permanently unemployed. No jobs waiting on the outside has meant the end of most educational and cultural programs in prison as there is no longer anything to be rehabilitated for. This also removes, from a corporate perspective, any need for lenient sentencing. Alan Mobley, an ex-con who is now a professor of criminology at San Diego State, writes that today “the prison industry creates its own repeat customers.”
Funding for various law enforcement drug task forces began to dwindle during President Bush’s tenure, but presidential candidate Barack Obama promised to revive the Byrne grant program, claiming that it is “critical to creating the anti-drug task forces our communities need.” Following the election, Obama allocated $2 billion in new funding for the Byrne grant program despite its abysmal failure to do anything other than lock up casual drug users and smalltime dealers.
Not only does the drug war fuel the prison industrial complex, it corrupts the police who make it all function with constant arrests. The South Florida Sun Sentinel reported that the Sunrise, Florida police made millions luring would-be cocaine buyers there and then seizing their cash and other goods. In Maysville, Kentucky, Timothy Fegan, the former director of the Buffalo Trace-Gateway Narcotics Task Force, has been indicted for stealing money seized in drug raids as well as cash kept on hand for drug buys. In Birmingham, Alabama, the former head of the West Alabama Narcotics Task Force, Jeffrey Snyder, was sentenced to federal prison for stealing money seized by the task force.
The drug war and its twin brother, the war on terror, provide the excuse for the militarization of American police forces, both urban and rural. MRAP (an 18 ton armored vehicle of the type used in Afghanistan), is now in the arsenal of several police departments, including some on college campuses. It came, as Chase Madar wrote in TomDispatch, “like so much other equipment police departments are stocking up on—from tactical military vests, assault rifles, and grenade launchers to actual tanks and helicopters—as a freebie via a Pentagon-organized surplus military equipment program.” We are now at a point where a movie like The Hunger Games, with its depiction of high tech equipment used without hesitation for class warfare, looks like a documentary about the United States.
That doesn’t mean plain old-fashioned guns are obsolete. Shootings of presumably innocent people by the Los Angeles Police Department are increasing at a rate of greater than 50% a year. Meanwhile, German police fired a total of 85 bullets in 2011 while 84 shots were fired at a single suspect in Harlem in April 2011. This ratio must seem about right to the one per cent. In the same year that New York cops in Harlem sprayed twice as many bullets at an unarmed man as they did when they killed Amadou Diallo—leading Bruce Springsteen to write his protest anthem “41 Shots”--JPMorgan Chase donated $4.6 million to the New York City Police Department.
Schoolchildren are also now at risk of getting caught in the line of fire as the school-to-prison pipeline continues to run at near capacity. Kids are now incarcerated for school disciplinary offenses which once would have been handled in the principal’s office. A recent Department of Justice lawsuit revealed that in Mississippi, students have been arrested for dress code violations and for playfully throwing peanuts on a bus. If students are never going to find work, why not get them into prison early?
Jurors will have a tough time fairly evaluating those and all other cases. Court appointed defense attorneys, such as the one in 12 Angry Men , face crushing case loads with little in the way of resources. Meanwhile, as legal expert Ben Eicher describes it: “A prosecutor has the entire law enforcement investigative power and money at his or her disposal; a prosecutor’s evidence is based on what the same law enforcement investigators say was found or said—meaning the fact-gatherers are also the advocates; a prosecutor has unlimited resources. The defense attorney generally has little to work with. When a defendant does have money and gains an acquittal the hue and cry is always ‘See, money buys acquittals.’ No, money buys convictions.”
The wildly disproportionate power that prosecutors hold can overwhelm the resources of even a wealthy defendant. Money certainly didn’t buy former heavyweight boxing champion Mike Tyson an acquittal. Tyson was sent to prison after being convicted by an Indiana court in 1992 of raping Desiree Washington. According to juror David Vahle, at one point in the deliberations the vote to convict was only six to six and, just as in 12 Angry Men, it took a lot of debate to reach a consensus. But that consensus fell apart after Tyson was in prison. Five jurors came forward to say they had doubts about Tyson’s guilt because it had come to light after the trial that the prosecution had withheld key evidence. Juror Ken Turnbaugh said Tyson deserved a new trial. Vahle and NBC-TV legal correspondent Star Jones, a former district attorney, both said that Washington may have brought charges in order to extract a financial settlement from Tyson.
How many times do American prosecutors withhold evidence but nobody discovers it? Jurors have the impossible task of trying to divine that, guided by defense lawyers whose position is akin to that of Grenada when it was invaded by the United States.
In Arkansas, evidence may consist solely of the word of a landlord as allegedly delinquent tenants are funneled directly to criminal courts and, if they can’t pay up, the result can be arrest and imprisonment. In Minnesota, a quintessential “blue state,” there has been an exponential increase in arrest warrants for debtors over the past four years. And those two states are just the tip of the debtor prison iceberg.
Jurors are put in an impossible moral bind, asked to referee a game between two very unequal teams. When you see a man facing his third strike searching the pool of potential jurors for a friendly face, or an immigrant woman defendant who speaks no English stare blankly at the judge, it makes you search for your own humanity. But you can’t find it because you are a cog in an inhumane system.
At the end of the Pasadena Playhouse production of 12 Angry Men, the last holdout for a guilty plea changes his vote to innocent. It is an emotionally charged moment and the audience responds with a standing ovation. The feeling in the theater is intense and palpable: Justice is done! We’ve won!
Justice was not done. A life was saved and that is a beautiful thing. But the unseen defendant in 12 Angry Men also stands in for the millions of defendants who have been brought to the bar and convicted over the past thirty years of steroidal prison growth.
In the middle of this one-sided assault on our rights and our peace of mind, jurors are expected to deliver justice and feel good about it. That can happen—and not just on stage. I watched a jury celebrate after acquitting a Mexican man who faced seventeen years in prison. But juries themselves are becoming obsolete. Over 90 per cent of cases today are resolved by plea bargaining in which a defendant, quite possibly innocent, takes a lighter sentence in exchange for a guilty plea. The media emphasis on juries and our Constitutional right to a jury trial distract us from this reality. “The rule of law and due process are now largely a fiction,” Alan Mobley told me.
This is the end result of allowing ambitious prosecutors and private prison corporations so much power. The international restorative justice movement (RJ) is trying to take us in a different, much healthier direction. RJ recognizes that our adversarial system of prosecution versus defense doesn’t reveal the truth, it only creates more adversaries. RJ brings together offender and victim to speak frankly to each other, to move beyond vengeance in an effort to find solutions, healing, and balance. RJ has been effective in many countries, although in the U.S. it has so far been limited mostly to juveniles. Studies show that RJ reduces repeat criminal activity, saves money, and in most cases is satisfying to victim and offender alike. Once this door has been opened, anything can happen. In Vermont, two art shows took place in tandem, one featuring the art of crime victims and one featuring the art of those who had committed crimes. Deborah Lee Luskin of the Brattleboro Community Justice Center said that “Seen together, these two exhibits provided a good reminder of the human stories behind the sensational news accounts or dry statistical accounting of violent crime.”
As RJ tries to move into the world of adult offenders in the United States, it will meet greater resistance from those with a vested interest in the status quo. That struggle could help unleash a meaningful debate about solutions, an escape from the endless shrill cries of “Get tough on crime!”
But to achieve systemic change, solutions must go beyond the criminal justice system. The most common denominator of all the people who are incarcerated is that they are poor. This confirms that there is no way to significantly reduce crime without eliminating poverty. Take the case of my father-in-law, who was murdered by two homeless teenagers. They were homeless because our politicians, Democrat and Republican, are far more concerned with protecting the real estate industry and its financiers than they are about housing people who have nowhere to live. If we had put an end to homelessness when it emerged (at the exact same time as the drug war began and factories began to close), my father-in-law would be alive today. Get tough on crime? Get serious about crime prevention.
Are the American people prepared to do this? They are trying to show that they want to. In 1959, Reginald Rose wrote his follow-up to 12 Angry Men, a teleplay called Thunder on Sycamore Street which told the story of an ex-con attempting to go straight while his neighbors form a mob to drive him from their neighborhood. That wind is shifting today. In a recent poll, which the LA Times characterized as “a shift from a tough-on-crime stance,” up to 72% of Californians favor releasing nonviolent offenders and reducing their sentences. Nearly half of those questioned opposed building or enlarging prisons, this in a state where a massive prison building boom has meant tens of thousands of jobs.
Similar attitudes carry over to the “crime” of entering the United States without papers. While federal prosecution of immigrants for “illegal entry” has gone up 1,600 per cent since 2002, only 19 per cent of Californians say that those “illegally” in the country should be deported. This is one factor in the abysmal approval rating Americans give to their millionaire-dominated, anti-immigrant Congress.
Can we become a country where the hard-won unity of the jury in 12 Angry Men becomes a template for daily life while the convoluted court system which brought that jury together in the first place is replaced by various forms of restorative justice? This will only be possible if we have the courage to promote a vision of a world where things are controlled but people are not; a society of unlocked doors where no one lives in the streets and no one is given carte blanche to make those streets into free fire zones.
Thanks, Lee! This is awesome. I’m honored that our show helped spark this incredibly insightful peice. Thanks for sharing it! You’re a terrific writer.
Given that you're straight, was it difficult to do the kissing and sexscenes in QAF?
I'm a gay man and not theatrically inclined (at least, on the stage!) but I cannot even *imagine* seriously kissing a woman, let alone having sex (real or simulated) with one!
Did physical contact with another guy present problems for you and the other straight members of the cast; and what did you do to feel comfortable inthose scenes?
BTW: I thought you and Randy Harrison were the two most convincing actorson QAF, though there were times when I wanted to step into the TV and *slap*Ted Schmidt (which shows you were doing a REALLY good job of acting)!
Believe me, Mark there were people who didn’t bother trying to step into their TV’s … they just slapped me when they saw me on the street. Odd way to take a compliment ... but I did.
You know, it’s kind of part of the job if you’re playing a romantic scene to find something beautiful and attractive in you partner no matter WHAT their sex is so you can play your scene honestly. If I had to be romantic with a woman I wasn’t attracted to it wouldn’t present any more challenges than kissing a man would … except, hopefully, for the razor burn.
I was reading through your Q&A's, having a good laugh at some of the questions and your responses, and wasn't going to write anything to you because I'm ~shy. But then I read in one that Largo is (was?) one of your favorite concert venues in Los Angeles. It happens to be my very favorite as well (don't worry, I'm not going to stalk you), and I was wondering, have you ever seen Jon Brion perform there?
It's always nice when some of the actors I very much respect have exquisite taste :)
You know, Ciarra as crazy as it sounds (because he’s there all the time) I’ve YET to see the amazing Jon Brion perform at Largo but I have very much wanted to for YEARS! I’ll have to make a more concerted effort to try. If I do and you stalk me there you are well within your rights! ;o)