Friday, June 5, 2009


Late this afternoon I finished the jury service which began May 11th in the Court House on the corner of McAllister & Polk in San Francisco's Civic Center. Throughout the trial the judge would instruct the jury to "remember the Admonition" whenever we left the courtroom. "The Admonition" was his order not to discuss the case with anyone and not to let anyone discuss the case with us. This afternoon after the lengthy, formal ritual of reading the verdict and polling the jury individually on each of the ten assigned questions in the case, the judge said we were no longer bound by "the Admonition" and could discuss the case as much as we liked, so I now have a legal license to blog about it, and that will probably be a good way to make it stop running around inside my head like a hamster on a wheel in a cage.

The image above shows a pleural mesothelioma, a cancer of the pleura (a membrane that covers and protects the lungs). Nearly all cases of this rare form of cancer are caused by inhalation of asbestos fibers. The exclusiveness of its cause is the reason that mesothelioma has become somewhat notorious as a generator of lawsuits, since the origin of most cancers cannot be traced back with certainty to a single source. Even better, from the lawyers' point of view, a high percentage of asbestos exposures occurred in the workplace, and that means there is frequently somebody with significant assets and/or insurance who can be sued.

The disease typically develops decades after the minuscule asbestos fibers (as seen above, greatly magnified) have lodged in the lungs, but once it starts almost all patients die within a year or two. At present there is no cure. Even treatment is largely limited to pain control. One lawyer in the courtroom used the analogy: "your lungs turn to concrete and then you suffocate to death."

The case I was on involved two days of jury selection, nine days at trial, and two days of deliberation. We took a week-long break in the middle of the trial because, as the judge cryptically explained, "there is a matter in another court that affects the matter in this court." During the nine non-consecutive days of testimony we learned bits and pieces (in no particular chronological or thematic order) about the life of a 72-year-old African American man who received his mesothelioma diagnosis last August. The lawyers on both sides of the case agreed that this man is very unlikely to live even until the end of this summer.

This was my second long trial as a juror in San Francisco. The first was ten years ago in a landlord-tenant dispute. That first experience was so tedious and badly organized that I could appreciate the relative coherence imposed by the judge on the conduct of this asbestos trial. All the same, there were more similarities than differences in the two long trials. The lawyers in both cases were manipulative and clumsy to about the same degree. Worse, the juries in both cases were distressingly inclined to make adverse moral judgments against parties in the cases who were not like the jurors themselves, who were, in other words, not educated, not affluent, not privileged.

The already-privileged are overwhelmingly the ones (at least in San Francisco) who answer the jury summons in the first place, and show up. Our initial jury pool in early May consisted of about 120 people. Of that number only one was African American. In San Francisco African Americans comprise 7% of the population, so a true cross-section of the community would have included eight or nine African Americans. That single African American woman who did show up was questioned during jury selection and dismissed. Latinos were similarly under-represented in the initial pool and completely unrepresented on the final jury.

The twelve who ultimately deliberated consisted of eight White Americans and four Asian Americans. Ten of the jurors were college-educated professional-class people. Two represented what used to be known as the working class, with some or no college. On my previous long trial in San Francisco the jury composition was essentially the same as to race and class. In both cases the yawning gap between the life-circumstances of the jurors and the life-circumstances of the victim-plaintiffs created major frustrations for me, and resulted in what I would call limited or partial justice, if not outright injustice.

I suppose the problem is really my own naivete in assuming that affluent educated San Franciscans understand that the biggest chunk of their successful stable lives is due to unearned privilege that attached to them at birth. Not so. Judging by these two juries, a few privileged individuals do accept that fact, and do try to compensate for it by stretching their minds to understand people who are cheated and exploited as a matter of course from cradle to grave. But most of the privileged jurors look at the chaotic lives of the poor and then eagerly set about the business of blaming the poor themselves for allowing their lives to be so messy.

The corporate defense lawyers know this. In the just-concluded case they harped ceaselessly on the lifelong heavy drinking and heavy smoking of the low-wage laborer who had contracted mesothelioma. Nobody can get mesothelioma from drinking or from smoking. Mesothelioma is caused by asbestos. Yet the drinking and smoking, for all their irrelevance, worked successfully as a coded message to the majority of jurors that this man's self-destructive habits should reduce his credibility in the eyes of reasonable people. Not only that, his bad habits reduced the value of his life itself. When asked to assess the monetary value of his anxiety, grief, humiliation and loss of enjoyment due to the onset of a terminal illness caused indisputably by environmental conditions where he was employed, many jurors suggested that the emotional cost was less for him than it would be for somebody who was younger and healthier and more responsible. It made me want to vomit, this freely discussed concept that his pain came at a discount to the extent that he failed to resemble the jurors themselves.

As it worked out, an informal alliance (forged mainly by eye-contact) between me and two like-minded women succeeded – after many, many hours of persuasion and negotiation – in shifting the trial decision toward a small award of money for the dying man. Just about enough to pay for a very modest funeral..