Keeping the World Safe from Fudge-O Thieves

Jury duty is the very epitome of our democratic system. I know. The judge told me so, in a much more eloquent manner than I have just relayed to you. And we took our duty seriously. Yes, it was an imposition on our normal day-to-day existences, but it was also a civics lesson come-to-life. A rare glimpse into our judicial process and the world of lawyers and prosecutors and court reporters and official legalese gibber and gabber. And on that snow-covered morning in March, we twelve chosen men and women sat stone-faced in the jury box, prepared to pass judgment on a fellow citizen. Today, we temporarily suspended our lives as gas station attendants and secretaries and ministers and consultants and retirees, and instead assumed the solemn role of jurors. Little did we know we were about to bear witness to a profound and far-reaching trial, the likes of which would reshape the legal landscape. Well, okay, maybe it didn't reshape the legal landscape. Kind of just the opposite. Let's just say that it made for good columnist fodder in more than a few of the state's newspapers.

The events described in this article are true. The names may have been changed - not because I'm interested in protecting the innocent, but because I forgot most of the names.

9:20 a.m. - The trial gets underway. We all rise as the judge enters the chambers. We all sit because he tells us to. So far so good - we're all playing our parts as expected. The state prosecutor introduces himself. The defendant's lawyer introduces himself. The judge reads the complaint. "Mike" has been charged with theft of an item from a local supermarket, the judge explains in very succinct and deliberate terms. I make a quick mental analysis of the situation, translating the legal lingo into layman's terms - "Okay, the guy shoplifted something," I think to myself.

9:25 a.m. - Opening statements. This is where the prosecutor and the defendant's lawyer inform the jury of how they see the case unfolding. This part of the trial does not necessarily deal with the facts of the case and cannot be used in any way in the deliberations of guilt or innocence of the defendant, the judge warns. Mental analysis #2 - "Some preliminary lawyer B.S."

The prosecutor is up first. The facts of the case are indisputable, he argues. We will show beyond a reasonable doubt that the defendant stole an item from the store, he assures us.

"We will show that on October 15, 1998 (the dates have been changed to protect my ignorance), the defendant did knowingly walk into the local IGA," the prosecutor continued, "walk over to the ice cream cooler, grab an ice cream bar, known as a Fudge-O bar, and walk out of the store without paying for it, thereby depriving the grocery of the 25 cents the ice cream cost."

Mental analysis #3 - "Please don't laugh, Greg. You can't laugh, this is a courtroom. No one else is laughing. Please don't laugh. Think of something sad. Don't laugh. Come on, please don't laugh. Wipe that smile off of your face. How can the judge keep a straight face? How can the lawyers keep a straight face? Don't laugh, Greg. You can't laugh."

The gravity of the situation had me dumbfounded. Here we were, 12 members of a jury, two lawyers, a judge, a court reporter, a clerk of courts, a bailiff, and juror clerk, spending our time and the taxpayer's money arguing a case over a 25 cent ice cream bar. Suddenly, even the OJ Simpson trial looked sane in comparison.

Then it was the defense attorney's turn for his opening statement. There would be no argument that his client did, indeed, leave the store without paying for the ice cream treat, he began.

Mental analysis #4 - "Okay, he took it, he's guilty. Let's vote on it and get out of here."

But he didn't mean to, the lawyer continued. He then went into a rather lengthy dissertation on how his clent was a bit different from "you and me."

"He might dress a little differently than you would," he went on to say. "He rides a bicycle around town. And, as you'll see, he talks very fast and is sometimes difficult to understand." And on he went, clearly trying his best to say that his client was a rather strange bird without actually putting it in those terms. As this was transpiring, I kept looking at the defendant to see how he was reacting to this very public belittling. All the while, he appeared unfazed. I concluded that this probably wasn't the first time that somebody had accused him of being a bit "peculiar."

As the defending attorney continued to outline his client's case, it became apparent that the verdict wasn't going to be so cut and dry after all. He ended by stating that the only witness he was going to call to the stand on his client's behalf was the defendent himself. After his rather unflattering description of his client, I knew this was going to be interesting.

And so, with the opening statements out of the way, the "factual" portion of the trial began. First up was the prosecuting attorney. And the first witness called was the manager of the IGA. With the utmost seriousness, the manager was questioned as to his position at the store, including what duties it entailed, how long he had been there, what he did before he was the manager at the store, and numerous other questions obviously designed to establish his credibility. Then began the summary of the evening's events, in the manager's words. Here, the trial took a dramatic new twist as the store manager was implored to walk over to the chalk board and draw a diagram of the layout of the store - the position of the checkout counters, the position of the ice cream cooler, and a rather lengthy and detailed description of the two sets of doors leading into the store.

Mental analysis #5 - "Here we were, stuck in our own version of Arlo Guthery's 'Alice's Restaurant,' with a chalk board substituting for the 8x10 glossies of the crime scene (the police in Belfast, Maine, apparently didn't have the budget for 8x10 glossies that the Massachusetts police did). I can't believe they're going into this much detail over a 25 cent ice cream bar. And we are bound by duty to take it seriously as well."

According to the store manager, the defendent, who frequented the store, took the ice cream and quickly bolted out the doors, never even attempting to pay. The manager, witnessing the even from behind one of the counters, quickly gave chace. When he caught up with the perpetrator at the end of the shopping plaza, the defendant was eating the ice cream. When informed that he didn't pay for it, the store manager testified, the defendant said he forgot and offered the store manager a dollar and said "keep the change." But the store manager would have none of it, and the 25 cent theft case was born.

Other witnesses followed, including a clerk who was working one of the cash registers that night, and the police officer who handled the case. And a key piece of evidence was entered into the books - a portion of the wrapper of the infamous Fudge-O bar, found in the alleyway next to the shopping plaza! Ah-ha, the smoking gun!

By now we were about an hour and a half into the case, and it was time for a short recess. We, the members of the jury, solemnly got up out of our seats and filed into the jury room. As they shut the door behind us, a chorus of heavy sighs filled the room. We were instructed not to discuss the case at all at this point, so we made no direct mention of the case. But we made plenty of indirect comments.

"I could barely keep from bursting out laughing," one of the ladies said, echoing my sentiments exactly. Others nodded in agreement. From the serious faces I had seen out in the courtroom, I had began to wonder whether I was the only one who was seeing the humor in all of this. I was relieved to see I wasn't.

Fifteen minutes later, we got back to the trial. Next came the what would prove to be a pivitol witness in the case. It was the "kindly citizen" who, by some nasty cosmic twist of fate, was dragged smack into the middle of this earth-shaking controversy. It seems that there is a chinese restaurant located next to the IGA (if you were paying attention to the chalk board crime scence drawing, you would have known that!). Said citizen and his wife were innocently emerging from the restaurant, after having finished their heretofore uneventful evening meal, when they were approached by the defendant.

"Can you do me a favor?" the defendant asked the citizen, "Take this dollar into the IGA and give it to the cashier. I forgot to pay for this ice cream, and the manager wouldn't take my money, and I'm afraid if I go in there he'll arrest me for tresspassing."

The citizen with the belly full of chinese food was hesitent to get involved. He just wanted to get home, and declined the request, he related on the witness stand. But his wife insisted that he help, and he reluctantly walked the dollar into the IGA. The manager refused to take the dollar, and the kindly citizen's small attempt to help out had now become a big, time-consuming ordeal. The citizen had to wait until the police came and give them a statement. And, of course, month's later he would have to take off of work to appear as a witness. The un-accepted dollar bill became state's evidence number two.

After a few more witnesses, the prosecutor had done his job of beating the case to death and much to the relief of all of us informed the judge that he had no more witnesses. So now it was the defense's turn to present their case.

It would be impossible for me to adequately describe in words the testimony of "Mike," the defandant. This was truly a case of body language adding immensly to the communication. And yes, he talked fast, almost frentic at times. Yet he was very literate and quite intelligent. We learned that he rode his bike everywhere because his license had been revoked. We learned that he had two children for whom he had visiting rights a couple of days a week. We leaned that he used to go into the IGA several times a day for coffee and, occassionally, ice cream. And, most importantly, we learned of his version of the day's events.

With the assistance of the chalkboard drawing, Mike told of having shopped at the local department store and while on his way back, some kids drove by him while he was bicycling and threw a full beer can at him. Mike took off in pursuit, livid and intent on catching the beer-chuckers. But, alas, his bike was no match for the car and he gave up. Frustrated and angry, he ditched his bike on the side of the road and walked over to the IGA to get the infamous Fudge-O bar. After picking out the bar and heading towards the cash register, he thought he saw the car full of beer-chuckers driving through the parking lot. So he dashed out of the IGA in pursuit, Fudge-O bar in hand. But the car was not the one he thought it was, so he abandoned his pursuit. And, according to him, forgot all about not paying for the Fudge-O bar and continued on his way, heading back to his bike. That's when the store manager confronted him.

And, yes, he offered the store manager the dollar andtold him to keep the change. And yes, he asked the man with a belly full of Chinese food to take the dollar into the IGA because he was afraid that he might be arrested if he went in there himself.

And why didn't you stay and give your story to the police, he was asked. Because he had given the dollar to the stranger and he thought the issue was over, he stated. It wasn't until a couple of days later, when he was arrested, that he learned that there was even a problem.

"And besides, I hate the cops," he added, "I'm not going to tell them anything."

Mental anaylsis #6 - "I hope this guy doesn't hold grudges on jury members."

And so, after a bit more ranting on the part of the defandant, and the impassioned closing arguments of the attornies, the judge was ready to let us start deliberating. But not until he gave us careful instruction as to the letter of the law as far as theft is concerned. And that's were yet another monkey wrench was thrown into the works. It seems that intent is a big part of the determination of theft. The case that started out as apparently so black and white was now a very slushy shade of grey.

And so we deliberated. As in previous juries I've participated in, the discussions were well-reasoned and sincere. Well, except for my recommendation that we each pitch in two cents, get the judge to pitch in a penny, and use the 25 cents to pay for the Fudge-O bar and get on with our lives. And then we took a vote. And it was seven for acquital and five who thought he was guilty.

So we discusses some more. And intent and "reasonable doubt" were batted back and forth. And it was well past the lunch hour and we were getting hungry and wondered whether we should break for lunch. So we took another vote. And it was nine for aquital and three for a guilty verdict. The three "guilty" voters, all old-timers, were of the notion that if you take something without paying for it, you're a thief - forget all this "intent" mumbo jumbo.

So we discussed some more. And our stomachs rumbled. And it didn't appear that anyone was going to change their minds one way or another. And then one of the "guilties" made an offer to the other "guilties."

"We're spending an awful lot of time arguing over 25 cents, and I have a lot better things to do. If you'll change your votes, I'll change mine."

And that's how a man who admittedly went into a grocery store, took an ice cream bar, and left without paying for it was found not-guilty of theft.

Mental analysis #7 - "Couldn't we all just get along? The store manager and prosecuter who insisted on taking this case all the way to a jury should get a good wack on the knuckles with a nice, hard ruler."

And just think, if past history is any indication, I'll get to do this all over again in five years when I again become eligible for jury duty!

Copyright ©1999 by Greg Closter (closter@acadia.net)