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Crossing Jordan

For what it says about law and justice in the 21st century, a transcript of Ruth Jordan's post-Tyco-trial interview with CBS News Anchor Dan Rather ought to be required reading for every judge, prosecutor, defense attorney and law student in the country. For what it says about the real-world harm than can stem from poor reporting and arrogant editing, "Juror No. 4's" words ought to be a part of every journalism-school curriculum, too.

After all the headlines, after all the speculation, after last week's mistrial and the recriminations it brought against her, it turns out that Jordan is merely a little old lady who did the best she could as a juror in a complex criminal trial. Contrary to what you may have read and heard about her, Jordan isn't wealthy. She didn't take a limousine to court every day. She isn't necessarily a poor tipper. She didn't signal defense attorneys in the courtroom. She didn't refuse to deliberate with the other jurors.

Jordan didn't ask to be woken in the middle of the night and accused of taking a bribe on behalf of the defendants. She didn't ask to receive a coercive letter during deliberations. She didn't ask to spend over six months of the precious rest of her life sitting in a courtroom listening to a bunch of attorneys and witnesses argue about whether two rich executives had stolen money from their company. She didn't ask to make the front page of the New York Post or to become fodder for the chattering class on cable television.

She didn't ask to be a victim of "assumption journalism." She made a signal that looked like an "okay' sign to a few reporters, whose editors imperially decided that she had engaged in "extraordinary" conduct that warranted identifying her during deliberations. Turns out the poor woman, who was born on September 11, 1924, has shingles that make her frequently touch her head with her hands. If any of those journalists or their organizations have apologized to Ms. Jordan, either publicly or privately, I have yet to hear about it. And news people wonder why the rest of the population so hates the media.

Jordan simply did what tens of thousands of other jurors do every year in this country; she tried to figure out whether prosecutors had proven their case beyond a reasonable doubt. In the end, she says, the Tyco prosecutors failed to meet their burden. In the end, she says, she was not convinced that the defendants, Dennis Kozlowski and Mark Swartz, had the criminal intent necessary to be guilty of a crime. So she told Rather that she would have voted "not guilty" had the deliberations reached the point of voting.

Now, you can agree with her conclusion or not. But if you say, as some have, that Jordan "fixed" the case for the defendants, then you had better be prepared to open the books on thousands of other jury deliberations in this country. Judges tell jurors that they are the conscience of the community and that they ought to bring into their deliberations all of the experiences of their lives. Seems to me, from reading the transcript, that Jordan did just that. Are we now going to make pariahs of jurors who in good faith stand up and say "not guilty" when they really mean it? If so, there is no point in having a jury system anymore. We should just have a star chamber.

Jordan is a former schoolteacher and probate attorney who left the practice of law many years ago because she didn't like to see families fighting over the property of their loved ones. If you are wondering how a former attorney made it onto the panel for the criminal case against Kozlowski and Swartz, ask the attorneys in the case and Judge Michael Obus. It's not Jordan's fault she was selected; in fact, she told Rather that she was shocked when she was.

When she reported for jury duty, the name Tyco "mean nothing" to her. "I didn't know what they did or who they were," Jordan told Rather. "I didn't know the names of the defendants at all." She considered her jury duty "sort of like winning a privilege" and even after the accusations and the insults she told Rather that she was "absolutely honored to have been given an opportunity. I felt it from the very beginning, to be given an opportunity to play-- my small one-twelfth part in making a momentous decision over the lives of somebody else."

On the merits of the case she sat through, Jordan had plenty to say. And if the Tyco prosecutors are smart they will listen to her. Jordan panned the government's presentation. She said that she and other jurors "were confronted with… a huge, lumbering, unwieldy case, extremely complex in its details and overburdened with masses of unnecessary evidence to wade your way through." What that tells me is that the next Tyco trial ought to be-and will be-less than half as long as Tyco I was.

Jordan also said that she was "insulted with the fact that the prosecution thought that that display of excessive and often bad taste things would persuade the jurors that the character of these men were so bad that it would add to their probability they committed a crime." She said that other jurors felt the same way, too. She said the crux of the case to her was whether the defendants had the "authority" to take the money they did. What this tells me is that prosecutors will, and should, focus a lot less in Tyco II on how the defendants spent their money and a lot more on how they got their money.

As far as jury duty itself went, Jordan put into words what many lawyers long have believed. She perceived herself and her fellow jurors as "12 independent horses all going in their own different ways… some strong, some weak, some high, some low, whatever… on either side was the baggage of all of the defense and all of the prosecution… and the judge was trying to keep his vehicle on the road." She also articulated a concept that all jurors everywhere ought to have when they begin deliberations. "You have to presume them innocent. You start there… The defendants were acting in good faith. Then it's the district attorney's job to… overcome that presumption by saying, `This and this and this and this indicate that they knew what they were doing and it was wrong.'"

Jordan was kinder to her fellow jurors than several of them were to her. She told Rather: "I don't think I have any better or exclusive claim to have tried hard to come to a just verdict and seriously and faithfully consider the evidence and try to make a decision. I think all of them were trying just as hard as I was."

And, in what surely should be blackboard material in law school, she said: "If I had voted against my conscience, and said, `Alright, they're guilty,' when I don't believe, then why can't anybody else do the same thing? And that's an absolute destruction of what the jury system is about. And that would be a loss."

Amen to that.

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