I Also Can’t Breathe: But This Jury Hangs

While every precaution has been taken in the preparation of this book, the publisher assumes no responsibility for errors or omissions, or for damages resulting from the use of the information contained herein.

In this book, I portray my best recollection of the details of the trial. I was unable to access any of my courtroom notes. Those were all retained as property of the court. Therefore, the details I present in this book will differ from the recollection of other jurors or from the court transcript. That is the nature of human memory; it is selective and easily influenced by past experiences and external factors.

The opinions and views expressed are entirely those of the author and not those of the other jurors, the King County Superior Court, the plaintiff, or the defense in this case.

I ALSO CAN’T BREATHE: BUT THIS JURY HANGS

COPYRIGHT © 2021, 2022 Galeeb Kachra

Cover Design by Galeeb Kachra

Dedication

To two people who have inspired me, encouraged me to think before acting, and demonstrated true humility, tolerance, and compassion: my mentor, Behrooz Ross-Sheriff and my late colleague, Dr. Donald Alford.  

Preface

On the surface, the American jury seems, frankly, ridiculous. Why should a random group of people, not versed in law, decide someone’s fate before the law? What does a jury of random citizens know about the finessed intricacies of the judicial system or medicine? How can they make a balanced and fair decision without possessing this knowledge?

Yet, our jury system, in which someone is tried by normal people instead of the government, is brilliant. At least for criminal cases—the government can seek justice for crimes committed against its rules and then leave the final decision to a neutral party, the jury. Juries have been the centerfold of countless books, TV dramas, and movies, many of which focus on high-profile criminal trials. Jury consultants and mock juries form an integral part of trial preparation.

The jury system also applies to civil cases. Unlike criminal cases, in which the state charges an individual, a non-state party brings a civil suit against another party. On the rare occasion that these cases go to trial, the state becomes a neutral party, a referee or umpire. It provides a formal legal system, equipped with courtrooms and judges, for the two parties to use. But the decision, once again, rests with a jury of the defendant’s peers.

Concepts such as beyond a reasonable doubt and the need for a unanimous verdict are commonplace in our society. But do we really understand them? Our frustrations erupt when news headlines cover verdicts that are counter to our expectations. News pundits, social media’s keyboard warriors, and dinner conversations explode when a jury fails to return a verdict in favor of the victim or their family. These cases are not restricted to racial injustices; they span medical malpractice, wrongful death, environmental degradation, or other liability cases. Do we know what really happens during a jury’s deliberation? While some jurors have written about their experiences on criminal cases, one would be hard pressed to find a book about a civil case. Researchers have developed models, simulated trials, conducted surveys, and dug into court records. But the mysteries shrouding deliberations remain one of America’s most well-guarded secrets.

The standard for civil cases is not beyond a reasonable doubt, and the jury does not have to be unanimous. I learned this, and much more, during my experience serving on a civil trial in the King County Superior Court system. King County is home to Seattle, with world class medical systems and renowned brands that include Boeing, Amazon, Costco, and Microsoft. The trial took place in the middle of the COVID pandemic. I served, as Juror Five, with fifteen other jurors on a heart-wrenching, confusing, long-lasting, and educative wrongful death medical malpractice case.

The heart-wrenching underpinning of this story is shrouded in the same vocabulary that shocked the world in May 2020. George Floyd pleaded for his life as a police officer’s knee obstructed his airway. In October 2020, the victim in this Seattle medical malpractice case told the paramedics that he could not breathe. His respiratory system had totally failed only eighteen hours after being discharged from an urgent care facility.

This book discloses my experience, observations, and analysis as a juror; not as an innocent bystander, and not as a twenty-first century keyboard warrior or protestor. With considerable reflection and research, I posit that in our current cosmopolitan America, civil juries will rapidly and increasingly fail to meet expectations. This is true not only due to the expectations of the plaintiff, defendants, judicial system, and society, but also a result of the expectations of the decision-makers themselves: the members of the jury.

The Summons

Iknew I had been selected for jury duty even before I opened the mailbox. No, I do not have a flawless sixth sense; I simply rely on the U.S. Postal Service Informed Delivery Digest. It’s a free service that sends me an email each morning with images of the envelope or postcards I can expect to find in my mailbox. The world was in the midst of the 2020/2021 COVID pandemic and I, like many others, had adopted a hermit-like lifestyle. I only ventured outside for my daily run with my dog, Zuri, a rescued white shepherd-husky, and my weekly trip to the grocery store. Uncertainty shrouded my environment; I could picture the virus hanging out at every street corner in my hometown of Redmond, Washington. That image prevailed in Redmond before other parts of the country because we were next to Kirkland. Kirkland, in March 2020, had been the focus of the nation; the nursing home and hospital that traced the first cluster of COVID casualties was less than five miles from my home.

My mailbox is clustered with all forty-nine of my neighbors’ mailboxes at the west end of our street. It’s only 1,000 feet from my front door, if measured in a straight line. But the cluster lies at the top of the steep hill and is fifty feet higher in elevation than my front door. So I don’t generally step out to get the mail. I also don’t stop to get the mail when I am out running with the dog—my mailbox, unlike my house, requires an old-fashioned key, something I do not carry when running. Nor do I remember to stop on my way to or from the grocery store—on the way there, I am too busy making sure I have my face mask, credit card, and shopping list. On the way back, I am thinking about how to fit the week’s supply of food into the fridge and hide the ice cream in the freezer without my daughter seeing it!

That was my routine from March to October 2020. In the middle of the presidential election run-up, things changed. For three whole weeks, I was able to stop at the mailbox on my way home, unencumbered by dogs or groceries. I was venturing out daily to serve on jury duty. Those three weeks transformed my daily pattern; a pattern that had enveloped me like a cocoon since I started full-time teleworking, and the kids stopped attending physical school. Our adoption of Zuri, three months after the self-imposed lockdown began, changed our lives for the better. It pumped much-needed vigor into my downward spiral. But these temporary, daily drives to the courthouse, seven months into the lockdown, was a much bigger transmogrification than adopting a dog. I temporarily broke out of my COVID cocoon. I interacted with other human beings. I was proud to be venturing out to do my civic duty, serving as a juror for the first time in a quarter century.

I had been serving my country for more than fifteen years. I spent ten years with the U.S. Agency for International Development (USAID) and five as a contractor for the National Marine Fisheries Service (NMFS). But jury duty was a very different type of service. I was not supposed to be a diplomat or development specialist representing the United States. Nor was I analyzing the environmental impacts of federal actions. Rather, I was serving while being an average, normal member of the public. I was supposed to be a peer to the defendant.

One downside of the three-week jury schedule was that I had to forfeit my daily run. We were in court by 8:30 a.m. and rarely left before 4:00 p.m. I did not have enough daylight at either end of the day to go running. Seattle is pretty far north; sunrise in early November was at 7:00 a.m. and sunset at 5:00 p.m. Zuri is eighty pounds of muscle. With us, he is harmless; the kids cuddle him, I stick my hand in his mouth to brush his teeth, and he whimpers like a baby when I trim his nails. But I would not want to face him on a dark sidewalk or trail. He is intimidating. He is supposed to be a white shepherd and Siberian husky mix, but we have not had him genetically tested. Sometimes we consider spending $50 to tell us more about him. On the other hand, we realized that, other than a label we can share with others, knowing his breed mix would not change our relationship with him. It would not change his moods, habits, or personality. I am sure he missed the runs as much as I did; he has an amazing sixth sense for that daily event. Even if he is in my daughter’s bedroom, joining her in online school with the door closed, he can sense when I come out of my bedroom-office to go on a run. Why does he not jump up and whine at her door when I come out of my room to go get more coffee? Does he sense my gait or my energy? My timing is never the same. My breaks depend on my work meetings schedule. Is that the same sixth sense that doctors exhibit when they glance at a patient’s test results or listen to the stethoscope for a few seconds?

The U.S. Postal Service email was open, my cursor hovered over the image of a postcard from King County Superior Court. It was clearly a jury duty summons. But the details were hidden on the other side of the postcard. The U.S. Postal Service digest only shows you the front of a postcard, flyer, or envelope. I had to wait until the end of the day because our mail carrier came in the late afternoon. That evening, after work, I trudged up the hill and unlocked the mailbox. I stuffed everything into a bag, locked the mailbox, pocketed the key, and then examined the postcard. I was to report for jury duty in a few weeks, on October 12th, 2020.

This was actually my third summons in twenty-five years, not my first. But it was the first time that I was able to participate in my civic duty, the first time that I was in the right city at the right time. I had emigrated from Kenya to the U.S. in 1989, and I became a resident alien. I love that term! In 2021, newly inaugurated President Biden proposed striking it from American law, regulations, signage, or literature. That was not the first attempt to change the terminology and will likely not be