This paper examines aspects of the conversational work through which a jury in the Milwaukee County Court, State of Wisconsin (United States) constructs and displays an acquittal in a criminal trial. The conversation is worthy of study for a number of reasons. First, recorded data from jury deliberations is scarce; conversation analysis of these materials breaks new ground. Second, the details surrounding the trial are notable and lead one to see the conversation through which the acquittal was accomplished as particularly interesting. Specifically, the defense and the prosecution agreed about the guilt of the accused on the counts in question. Yet, the jury produced a "not guilty" verdict. In effect, in the face of an "open and shut" case, the jury argued themselves, and each other, into a unanimous acquittal. Analysis of the talk both illuminates the operation of everyday conversational procedures and underscores their importance in civic communication.
The Case of Leroy Reed
As a news story, the Leroy Reed affair could provide a lurid headline: Ex-Con Arrested For Weapons Violation; the circumstances of the matter are much more mundane. As a human- interest story, the fact that the district attorney's office was even interested in prosecuting Leroy Reed, a seemingly gentle 42 year-old African American with limited mental ability, appears to speak volumes as to faults in the U.S. criminal justice system. Here, Reed, who had nine years earlier served time in prison but who had a clean record since, was arrested while "hanging around" the county courthouse. When the officer asked for identification, Mr. Reed produced the bill of sale from a handgun purchase. After it was learned that he had a criminal record, Mr. Reed was asked to retrieve the weapon from home. Reed brought the gun to the police station, turned it in, and was immediately arrested for possession of a firearm. From the human-interest perspective, mentally challenged Leroy Reed is overly-easy fodder for a legal system unable to effectively deal with drugs, murder, and mayhem but all to eager to convict a naive and relatively helpless misfit.
Leroy Reed's trial did not come to national prominence merely as the result of local news coverage. Significant portions of the jury deliberations in the 1985 Reed trial were video taped
as part of a documentary featured on the April 8, 1986 Public Broadcasting System Frontline program (rebroadcast, January 24, 1995).1 Never before had jury deliberations in a U.S. criminal case been recorded and nationally broadcast. As television documenting a segment of the United States' jury system, the program lends itself to a variety of interpretations.
Both sides in the case agreed on the three issues at hand (that Leroy was a felon, that he owned a firearm, and that he was a felon in illegal possession of a firearm), so the jury's acquittal raises questions as to how the "innocent" verdict was reached. Although a very limited amount of discourse from the trial was broadcast, a few aspects were presented. For example, the prosecution presented evidence in support of the stipulated facts, and then proposed that the jury must apply the law to Mr. Reed as they would to any other citizen, regardless of race, color, or other extenuating circumstances. The defense countered that Mr. Reed, although technically guilty of the three aspects of the law, should be acquitted on general grounds related to his limited mental capacity, his gentle nature (that he was not a real threat to society), the "unfair" circumstances of his arrest (his self-incrimination via naivete both with respect to showing the receipt and for retrieving the gun), and the jury's potential ability to ignore the law in special cases. The defense put Mr. Reed on the stand, thereby illustrating his limited mental capabilities and his generally soft-spoken nature.
Analytical Perspectives
An interpretation based on argumentation and rhetorical theories might integrate the elements of the argument (claims, data, warrants, rebuttals, qualifiers) presented by the advocates with the elements of argumentation utilized by jurors.2 This approach is inappropriate given the Frontline materials, as only fragmentary trial data is presented. A related approach, focusing on jury deliberations and taking argumentation and rhetorical perspectives, would examine jury members' uses of claims, data, warrants, and the like, in the arguments they made with each other over the verdict. Although the analysis might lend insight as to some aspects of communicative interaction toward the outcome at hand, a full-blown "Toulmin-style" analysis would ignore the very nature of the interactional work accomplished during deliberations. Similarly, although a fantasy theme analysis would identify symbolic meanings on which jurors with initially differing perspectives eventually "converged," rhetorical criticism tends to ignore important conversational details.3
Conversation analysis enables close textual readings of the particular talk with which jurors construct and display their decisions. Unfortunately, broadcast television's form places limitations on conversation analysis. The materials have been edited extensively, so this analysis will make few claims concerning issues surrounding turn exchanges and sequentiality. At times, camera positioning and microphone selection/placement is such that speakers can neither be identified nor understood. Some turn relevance places are filled with multiparty talk overs which cannot be clarified. Speakers for many back-channel utterances cannot be identified; in some cases, backchannel talk cannot be understood. As a result, the conversational transcription conventions used for this paper will be considerably less formal than those followed when data enable precision. Still, a number of important conversational procedures are used in jurors' arguments. Particularly, the materials document the importance of storytelling in the civic work of trial jurors. Stories are interactional achievements in multi-party conversations and serve as the primary vehicles for argument in these jury deliberations.
Bennett and Feldman (1981) note that the principal mode of communication in trial justice is everyday storytelling (pp. 4-5). They point out that trial participants transform the evidence introduced into stories about the alleged criminal activities and that the structural properties of stories make it possible for participants to evaluate and interpret the evidence in light of laws. The stories enable participants to identify the central action in the alleged crime (around which the story develops), to make empirical connections among evidential elements based on that story line, and to then interpret and evaluate those connections for internal consistency, completeness, and for their collective implications for the central action (p. 67).
Nofsinger (1991) reviews some important conversational features of storytelling (pp. 155-160). Stories are produced using routine conversational procedures and are integrated with other conversational structures. They are locally occasioned and are accomplished as the joint achievements of teller and hearer. There is preliminary set up work accomplished in a story preface or preface sequence. Stories are recipient designed in that the status of the intended recipients' knowledge effects the way the story will be told. Further, tellers have to be given extended turns for the production of the story.
Stories consist of three major subsections: preface, recounting, and closing. McLaughlin notes that story-closing sequences often feature formulations, which both mark the end of the story and which reflect the teller's point of view about the point of the story (p. 200). Formulations manage topics by negotiating the disposition of sections of talk by "characterizing states of affairs already described or negotiated (in whole or in part) in the preceding talk" (p. 156). They operate on talk to maintain, preserve, delete, and/or transform it. Some formulations have to do with the gist of the talk, others with the upshot of the talk; although formulations often occur as part of a sequence of turns, they may also stand on their own as a first pair part which does the work of a pair (pp. 156-159).
With regard to arguments in conversation, Nofsinger notes that interacts produce talk which appears "argumentative" in either of two ways (pp. 146-155). Following Pomerantz's ideas about preferences for agreement, second pair parts which do not produce preferred responses can be used and interpreted in conversational arguments. Also, participants sometimes disagree over the propositional content of sayings. Those disagreements can be over descriptions or formulations included in the interaction. McLaughlin notes that arguments are "disagreement-relevant sequences built around the expansion of a dominant" dispreferred adjacency pair. "Arguments can be directed at either the propositional or the functional content of the arguable" (p. 200).
There are numerous senses in which the talk Inside the Jury Room functions as argumentation. In a general sense, conversation itself represents a certain kind of argumentative achievement. Shotter (1993) notes that "our utterances are not . . . always acceptable to, or accepted by others. They respond to what we say or do with criticisms, with challenges to justify ourselves, and we must show how our actions `fit in with theirs. . . . Acceptable responses must be negotiated within a context of argumentation" (p. 52). The first round of juror' statements indicated disagreement, with 3 maintaining Reed's guilt, 3 affirming his innocence, 4 declaring they were undecided, and 2 making statements which cannot be read as declarations of guilt or innocence. Further, 4 jurors initially stated conviction about Reed's guilt at the same time as professing a personal motive to acquit based on exceptional circumstances. The first formal vote, taken an hour and 4 minutes into the deliberations, found 3 "guilty" and 9 "not guilty" votes. Conversation analysis describes the argumentation over juror disagreements and differing interpretations of Reed's actions which occurred during the deliberations.
Synopses of Jurors' speaking turns
JRP is the foreman. Although part of the talk through which he was selected was broadcast, his selection is not relevant to the issues at hand. Further, that data is fragmentary.
{Material in curved brackets is in some way less than clear}, BC=back channel, SIM=simultaneous, multi-party talk, F=female, M=male, TRP T-O=Turn relevance place talk over
JRP: [4-14] Let's go around the table and discuss the case and your views, then vote
{F-BC} {Uh huh}
JBC: [16-18] Haven't yet made up my mind
LT: [20-31] Technically guilty . . . he has disabilities . . . not trying to play on sympathies. . . I haven't made up my mind
KFB: [33-43] Guilty beyond a reasonable doubt . . . sympathetic view would question his intent and that's not for us to do
JRB: [45-57] Don't know; important law . . . he's a felon who purchased a firearm . . . I want to listen to others
LRS: [62-78] As citizens we don't have to say the law is absolutely right . . . the jury system makes us a judge of the law . . . some cases aren't clear . . . lots of questions we need to talk about
JJC: [80-95] Not absolutely guilty based on education level . . . his ability to know the law and to understand it are questionable . . . he might still purchase a gun . . . leaning to not guilty
MV: [97-109] The evidence shows lots of reasons for doubt . . . "they" (the police) probably had doubts too . . . if they followed the letter of the law they wouldn't have asked Leroy to bring in the gun
HA: [111-124] Technically guilty but I want to acquit . . . he wasn't fully aware of the rules of parole . . . convicting him wouldn't do any public good . . . I'm on shaky ground over this
RGB: [126-133] Guilty based on the law . . . it's a good law . . . exceptions for particular defendants are ok . . . acquittal
MMS: [135-155] 2nd grade reading level . . . wouldn't "grill" a 7 year old . . . his training is lacking . . . I'm not ready for a real decision yet
BB: [157-180] Philosophical argument: Follow the letter of the law or use our special level of consciousness (as defense said) . . . could be like computers . . . what's the nature of a jury . . . Leroy has handicaps . . . perhaps in good conscience we can't find him guilty
JRP: [182-205] Instructions were "reasonable doubt on three counts" . . . all reasoning about how jury is leaning as been speculation . . . were not supposed to speculate . . . have to use testimony . . . we can't examine Leroy's state of mind . . . jury to decide verdict not to be presiding judge
[narration break]
KFB: [210-228] Too much sympathy for the man . . . we're not here to do that . . . he's not violent nor was there violent intent here . . . swayed by a magazine article . . .has slight mental problem. . . could be triggered off--that's why there is a law
LRS: [230-248] This isn't sympathy. . . I am not a computer and will not accept everything I'm told just because I'm told it is true. . . I'm a thinking human. . . more for us than to just say yes
JRP: [250-254] What if he had shot and killed some innocent bystander
JRB: [261-262] That's speculation which you asked us not to use
{SIM} [264-264] {We're not}{let's not get into speculation}{oh yeh right}
JRP: [271-273] I did . . . but you are using speculation to influence your decision
JRB: [275-275] Ok I want to speak to that
JRP: [277-282] I too think that we should stick to the facts--that's why I brought it up
JRB: [284-317] I too want to go by the facts to be a good juror. . . the law says you have to know you have a gun and I'm having trouble with the word know . . . he's like a little lost boy seeing the world through a tiny pinhole a frozen snapshot at a time . . . He has to know he had a gun and his syntax is telling me I'm having trouble with the word gun and I'm really having trouble with the word to know
JRP: [319-329] But if he knew enough to buy a weapon at a sporting goods store and to answer the questions put to him by the police I believe he knew he had it
{F} [331-331] Yeh
JJC: [343-364] I'd like to expound a bit on your idea of him knowing he had a gun . . . he may have known that but did he know we was a felon . . . He may not have know what a felon is . . . what if we could go back in time though it might be speculation and ask him "Mr. Reed, are you a felon" He might come back saying "What's a felon, a bird or a law"
BB: [368-381] Those of us who want to follow the letter of the law and still find that he didn't in the full sense of the word know he was a felon and didn't in the full sense know he possessed a firearm . . . he showed a lot of confusion on the stand
RGB: [383-383] {Most . . . to decide here}
HA: [385-386] Yeh right along might as well
KFB: [388-391] We're getting too much into the psychology of it. . . we're not qualified
{SIM} [392-392] {One person here is} [BB has been identified as a school psychologist]
KFB: [393-401] Then you should decide. . . we shouldn't judge what he was thinking
BB: [403-409] Even psychologists would debate the issue. . . we're talking about what level of knowledge he had
KFB: [411-414] If the hang up is the word know he knew he had to register it that he had to have a permit
BB: {BC} {hum hum}
{M}: [416-416] Get a permit
KFB: [418-424] Saying he knew enough about some things but didn't know he had a gun is splitting up the nose on it
JRP: [426-434] Our job isn't deciding on his intent or his understanding. . . you are experts in your respective fields but that's not our job
LRS: [436-454] We have more capabilities than merely adding up 1-2-3. . . jurors play a role in deciding justice. . . we do more than follow the judge's instructions blindly. . . you can call it speculating but our purpose is beyond just saying whether he met the criteria
JRP: [456-465] Let's vote and argue from there
[1 hour, 4 minutes. 3 "guilty," 9 "not guilty"]
HA: [469-473] I'm on shaky ground and will go with the majority
JBC: [475-486] Is he a threat a danger to society . . . If so why did the detective instruct him to retrieve the gun transporting it on a public bus
JRP: [488-489] That puzzled me too
KFB: [491-492] Whether he's a danger to anyone isn't the question
JRB: [494-523] Having trouble with that larger frame and starting to ask bigger questions. . . where is justice is justice being served . . . why was this case brought
{SIM BC F uh huh} . . . let's not divorce the two. . . I can imagine this man wanting to be
{SIM BC F I agree with you}
productive and thinking he could be a detective . . . wanting to meet the qualifications one of which is gun ownership. . . the whole thing is encircled by the magazine article so gun is something being imposed by a piece of fiction
JRP: [525-528] I understand a little. . . was gun a picture on that page or something that you physically used
{F}: [530-530] Yeh hum hum
JRP: [532-532] To fire a round
KFB: [534-537] But the book didn't tell him to go to the particular store. . . he knew right where to go
LRS: [540-541) He may have had to look for all we know
KFB: [542-543] That's what I've said he knew what to do
JRP: [549-550] There might be just a picture association between
{?} [552-552] Uhm hum
JRP: [554-555] At this point there might have been a picture association between a picture in the newspaper or whatever he looked up
BB: [556-556] Uh hum
JRB: [557-562] My recollection is two things. . . by the way I'd like to get rid of that Global Detective course
{SIM} [564-564] {laughter}
JRB: [566-584] It's pathetic. . . the course gave warnings but said that you have to get your requirements done one of which was a gun . . .He goes to the antique gun because it looks cool and neat
HA: [587-587] Sharp
JRB: [593-596] Sharp I mean imagine flashing this to the girls
{SIM} [597-597] {laughter}
KFB: [598-598] That's not Leroy
JRB: [602-608] Ok that's more me than Leroy. . . but it corroborates the notion that he's purchasing a visual image not what you and I are going to do with a gun
KFB: [610-619] He knew enough to go from the course/newspaper to the store he knew how to get one
JRP: [620-621] {Or to go to the police house}
HA: [623-629] I don't think he knew he was breaking the law because he could have bought it off the street but instead went to a store
MV: [631-644] I want to address the second point did he know that he was a felon with the possession of a gun . . . I have huge reasonable doubt that he knew he was a felon he was too cooperative
JRP: [646-657] That he was a felon is agreed to by all parties. . . they aren't arguing whether he knew it or not. . . they agreed to that so we have to argue the first two points
MV [659-661] It's the collective we the people that has to be considered along with the letter of the law
[second vote: 11 "not guilty" 1 "guilty"]
BB: [668-669] One person still votes guilty
KFB: [671-686] We're getting too far into his psychological state. . . most of us aren't qualified for that. . . we're picking apart his words. . . I could put an orange thing here and you'd tell me it was a red/yellow mixture. . . we're guessing at what he didn't know at what he was thinking
{TRP T-O}
JRP: [688-719] I've changed my mind and want to explain that . . . I came in saying yes to all three counts but see now that the first two depend on how you define them. . . maybe it says he had to know he possessed a firearm he might know he possessed a piece of his course. . . maybe he was just following directions with no relationship between a gun and bang bang. . . he's watched a lot of tv and seen detectives with guns there. . . he's going to be a citizen a detective so without knowing about the consequences. . . did he purchase an item of his course or a gun . . .That's why I've changed my mind
RGB: [721-725] Your guilty decision is important and complete in your mind . . .Share more of it with us
KFB: [727-737] I don't have the training and education to be able to understand the human mind like you do. . . it sounds cold and simplistic to look at three reasons and say yes they met these. . . this whole case seems like it doesn't belong here first off
{TRP T-O}
LRS: [739-744] Do you think there is ever a case where you could make an exception
KFB: [746-746] Sure
LRS: [748-762] Leroy brought his gun in when asked so I don't think he understood that he was a felon or the significance of the gun. . . He brought it in when told. . . I won't convict him for his good intentions. . . if exceptions can be made this case has to be one
{TRP T-O}
KFB: [764-781] On one hand you're saying that maybe he didn't maybe realize that he owned a gun but on the other you're saying he knew enough to take the course that he wanted a badge that he knew to go to the sheriff''s department for a permit to register the gun but that he didn't know he was owning a gun . . .you're taking the things that favor your argument to say he knew this but when it's something you disagree with you say that he couldn't logic this or that . . . It's not up to us to determine what his mind is working on
JRB: [784-830] It's a good law which I take seriously. . . also my civic duty. . . but the DA is wasting my time with this case. . . it's mickey mouse. . . we could talk about justice but how about talking about the message we send to the DA. . . I'm afraid my female students are afraid people are being beaten and raped and the DA gives us this. . . Leroy gives them the whole case. . . maybe this is a hungry young DA thinking this case is an easy kill
{SIM} {laughs and backchannels throughout}
KFB: [832-841] You're saying it shouldn't have been brought. . . we can all agree to that
{SIM} [842-842] {That's right} {I agree with that} {Yep, I believe that's right}
JRB: [843-847] I don't want to send a positive message to the DA over this
RGB: [851-863] Leroy has been punished enough. . . now he knows not to do it again
KFB: [865-872] Can Leroy comprehend what you've done for him . . . what will he take from it
{?}: [874-875] That justice can be had
{?}: [877-878] Can you find doubt that these criteria apply
KFB: [880-894] That he knew he possessed a firearm no doubt there. . . you say he was just following instructions but that makes him out as pretty stupid like a dog. . . but he could take a bus and do things on his own
JRB: [899-921] Though he is 42 he has the mind of a 7 year old and we've just watch him be put through a ringer . . . I'm thinking this is Kafka and still I'm supposed to applaud the DA
BB: [925-931] A lot of consensus here over grotesque-ness/unreasonableness you agree too
KFB: [933-933] Shouldn't be here
BB: [935-938] You're troubled by how concrete this law is
KFB: [941-952] I look at it very basic . . . I would not hold out . . . I'll vote with you but won't feel right about it
JRB: [954-955] Is there something we could talk about
HA: [959-960] We can vote right now
{?}: [962-962] We're not ready
HA: [964-965] Oh you want to make him feel better. . . ok fine I'll wait
KFB: [967-973] I probably look at it too basic 1-2-3 I just don't feel there is reasonable doubt but I will feel good if Leroy gets help
RGB: [975-990] I was down last night. . . is there some way out of finding him guilty . . . I couldn't live with finding him guilty but not guilty I can believe in juries then
JRP: [992-993] I say let's take a vote
MV: [995-1004] How do you feel . . . I don't feel good about your voting against your will going through life feeling bad
LT: [1006-1016] Was he able to understand to keep these two things and link them together at the time of purchase that he was a convicted felon and that he was not supposed to own a firearm . . . did he have the mental capacity to understand that
KFB: [1018-1022] I think he knows he was a felon and that he bought a firearm the possibility of the two together is the weakest point for me
LT: [1024-1025] I think everyone is having a bit of a problem with that
JRP: [1027-1029] Let's not beat a dead horse let's vote
Unanimous verdict to acquit.
Argument Issues
Many of the issues used during deliberations were introduced during the jurors' first round of statements; statements occasioned by the foreman's suggestion that jurors "just go round the table discuss the case and hear views and ah after everybody's said their piece ah we can take a vote." Each juror indicated their initial verdict disposition; all but one (JBC) provided explanations of, and accounts for, their leanings. In addition to disagreements based on differing initial verdict predispositions, the following issues were raised. Issues presented in the first round provided material for, and set the tone of, further discussion.
Since first-round issues were presented in monologic turns, they lack turn exchange interactivity. Still, many of the speaking turns, and issues raised therein, engage participants in arguments by serving to introduce materials presented in the trial into the jury conversation and by marking issues as problematic. For example, after first speaker (JBC) declares verdict-uncertainty without account, LT and KFB's first turns initiate a number of issues.
LT: [20-31] ok I feel that the defendant is guilty ahm on all three accusations technically but I guess I feel that we should also take into consideration the fact that he does have a reading disability as well as maybe some other disabilities I'm not trying to play on your sympathies or anything but it is something that I have to consider and right now I haven't whether I should name the defendant guilty or innocent
Note, especially, the internal licensing downgrade with which LT marks the mention of Reed's disabilities: "I'm not trying to play on your sympathies or anything but." The move marks discussion of this feature as problematic, a marking which KFB confirms by talking about it in the turn which follows:
KFB: [33-43] ah I feel that the plaintiff the city has found him ah guilty beyond a reasonable doubt to the three points that we are to discuss ah the sympathetic point of view would be what his intent was or what he did not intend to do and that's not for us to reason over ours are the three main points which we have to find beyond a reasonable doubt and I feel that we did
KFB produces a dispreferred second assessment of considering Reed's disabilities: "ah the sympathetic point of view would be what his intent was or what he did not intend to do and that's not for us to reason over." While LT and KFB agree that the defendant is "guilty," they disagree as to the sense in which guilt has been established. LT notes that Reed is "technically guilty," KFB says that "the city has found him guilty beyond a reasonable doubt to the three points that we are to discuss." LT further displays his position by noting that "ours are the three main points which we have to find beyond a reasonable doubt and I feel that we did." Goodwin and Goodwin (1990) have noted that "one feature of oppositional exchanges . . . is . . . the way in which the talk of the moment constitutes those who are present to it (i.e., how what is said in a given turn can make relevant particular social identities)" (p. 85). Here we see KFB taking on the personae of the prosecution by maintaining that "we" (the jury) established the case beyond reasonable doubt via the trial discourse.
As will be shown later, KFB is the last juror to change his vote to "not guilty" and is, by far, the most strident supporter of a guilty ballot. However, some of the turns in which he presents material which is important to his side of the argument are mitigated by his mode of presentation. For example, in his first turn, KFB includes a two-sided argument ("ah the sympathetic point of view would be what his intent was or what he did not intend to do and that's not for us to reason over"). This construction finds KFB presenting propositions both in favor and against his position.
To summarize the issues raised in these two early turns:
1) Is Reed guilty or innocent?
2) Can the jury acquit a guilty man?
3) Are there differences between "technically guilty" and "guilty beyond a reasonable doubt?
4) Can the jury consider Reed's disabilities?
5) Is considering Reed's disabilities negative because it's sympathetic?
6) What's the role of the jury?
7) Who are we (what are our relevant social identities)?
8) What was Leroy's intent?
Three speakers later, JJC raises the ninth key issue in the discussion:
JJC: [80-95] I would be really hard pressed to say that he was absolutely guilty ah in light of all the information that I know all that ev evidence has been turned in uhm his education level n his ability to even know the law ah they might have even told him that he if someone would have said ah anyone who's a convicted felon cannot own a firearm he still might not even understood that and still went ahead and purchased the firearm not even understanding it so I would have to ah lean more towards him not being guilty for those reasons
Although LT raised the issue (#4) of Reed's disabilities, earlier, JJC specifies a knowledge component for considerations of Reed's competence ("education level n his ability to even know").
9) What is the level of Reed's knowledge and what can he understand? Is he responsible if he broke the law due to not understanding it?
In the next turn, MV presents issue ten:
MV: [97-109] I think that the evidence that the state presented to me was ah they were they were really showing me that there's a lot of reason for doubt here that they probably had doubts themselves because this was a convicted felon and they knew he was a convicted felon ah I don't think if they are living to the letter of the law that he had any right to ask this man to go home and bring in this weapon and on those two judgments alone ahm I would not convict him
Throughout deliberations, jurors criticize the actions of the police and the legal system with regard to Reed's treatment.
10) Why did the police ask Mr. Reed to carry in the gun himself ?
Issue eleven enters in the next turn (HA):
HA: [111-118] technically the man is guilty guilty as sin but I wanna acquit Leroy because I don't think he was fully aware of the rules of pa parole and secondarily I don't think convicting him of this charge this violation of law would do the general public any good . . .
The question of the general public good is not expanded in future discussion, though a related element (whether Reed is violent or a threat) becomes issue thirteen.
11) Whether convicting Reed is in the public interest
The final new element raised in juror's opening statements appears in the turn taken by the foreman. The foreman had started the round by calling on others; 188-205 is his initial personal statement about the case. His utterance ranges across many of the issues raised in the other turns; he produces numerous formulations and assessments of materials presented by others.
JRP: [188-205] our instructions were to decide whether beyond a reasonable doubt is he guilty of this crime I think those three elements have been met that yes he is guilty of this crime all the reasoning that I've heard around the table for ah each person's decision as to how they're leaning has been speculation which we were all instructed not to use speculation we have to use the testimony and we can't use ah what we think his mental ability is or what we think he understood or what he didn't understand or what he we think we he knows and what he doesn't know we can't use that we have to use what was brought out the statements that were made in the courtroom and were allowed I think the scope of a jury is to decide guilt and innocence not to be the presiding judge and ah so I think ah I have to follow the the letter of the law
The new element introduced by JRP is issue twelve:
12) Whether jurors' ideas have been speculation and whether speculation can be used.
Before examining juror deliberations over some of these issues, it must be noted that seven additional issues were added over the course of the discussions, bringing the total number of issues raised to nineteen.
KFB raises the next new issue in the first turn after the foreman has summarized the initial round of turns. As was the case in his first turn, KFB packages his turn using two sided materials. KFB presents ideas on both sides of the question of the degree to which jurors should consider Mr. Reed's nature with regard to violence as well as both sides of whether or not the jury is showing too much sympathy.
KFB: [216-221] I just don't I think there's entirely too much sympathy for the man which is what very hard to rule out but we're not here to be sympathetic to him for what what may or may have happened its the three points of the law Mr. Reed to me is not a violent person and I'm sure he did not buy this gun with the intent of doing anything violent with it he was swayed by a magazine article that some person who has a slight ah I don't want to call it a mental disorder but a slight problem that he has could read another article and if he has a gun at his house that could trigger him off into who knows what that's why the law is there why felons cannot own guns
This turn introduces issue thirteen:
13) Whether Mr. Reed is a violent person or a threat to society
Interestingly, in this turn, KFB introduces two other issues which are key in the arguments of jurors who advocate a "not guilty" verdict. In the first, KFB mentions the magazine article in which Mr. Reed discovered the opportunity to become a detective.
KFB: [219-224] he was swayed by a magazine article that some person who has a slight ah I don't want to call it a mental disorder but a slight problem that he has could read another article
Once again, KFB has introduced an element into the discussion which mitigates his position. The degree to which Mr. Reed was acting on suggestions made by the media becomes a key issue in the deliberations.
14) Influence of media portrayals over Mr. Reed's behavior
In the second issue here, KFB attempts to substantiate his position that the jurors are not qualified to consider aspects of Reeds cognitive abilities. KFB's utterance is stymied by the presence, on the jury, of a trained psychologist.
KFB: [388-391] I think we're getting getting too much into psychology of him and none of us here are trained for that
{SIM T-O and laughter)
KFB: [393-401] we're getting too much into the psychology aspect of this a what what oh yeh oh then you're the one that should be leading all a this because who are we then to judge that he was thinking this and was thinking that and he didn't know this and he didn't know that you should be the expert
Issue fifteen weakens KFB's position. In subsequent references to jury qualifications on the matter of psychological analysis and inferences, speakers modify their comments in respect of the fact that one of the jurors is trained in psychology. This prevents the claim that the jury should not consider issues of Reed's cognitive state from being unequivocal throughout the rest of the deliberations.
15) Is the jury qualified to consider Reed's psychology?
Four turns after the issue of the jury's competence in psychology is opened, LRS specifies a broad issue to which later utterances are tied.
LRS: [436-454] but I think we have more capabilities than to say 1 2 3 these were on the very simple cut and dried he's guilty I don't think that we as jurors that is necessarily our role we are here to do more than that and I'm trying to decide in my own mind has justice been done here I don't care what the law says has justice been done and in my mind I'm still trying to decide that and that's my basic point that's when we're here to do its not to just say the law says this the judge says that but I don't think that's what he means and you can say I'm speculating but I think there's a purpose for us beyond just saying well he met the criteria or not.
LRS relates the issue of whether justice has been done to the issue raised earlier (issue eight) as to the nature and role of the jury. This question is a thematic element in U.S. trial discourse and is an issue to which a number of later turns are tied.
16) Has justice been done?
Issue fourteen, the influence of media portrayals over Mr. Reed's behavior, is closely associated with three other issues which are introduced by JRB in a key narrative.
JRB: [494-523] I've having a lot of trouble with that larger frame too I'm starting to ask some of these bigger questions about where is justice who is being served even why was this case brought ok I'm gonna having a lotta trouble with that but in a sense e ah let's not let's not divorce the two I mean I can see this man who is in in some part of his mind he's thinking I wanna be useful I wanna be productive I wannta have a social role I wannta be a contributing person I wannta do the right thing damn it I wanna be somebody and all of a sudden detective and that becomes something that I am a detective I can be somebody ok so what does he do he sets out you know what are the conditions or qualifications or requirements for becoming a detective low and behold one of ems having a gun so in this particular case gun means qualification for becoming detective and the whole thing is encircled by magazine article so gun is something that is being imposed by a piece of fiction or an article and you know
The issues raised by JRB in this turn play important roles in the course of the deliberations. First, JRB raises the issue of why the case has been brought. He also opens discussion of the degree to which Mr. Reed's actions can be attributed to good faith efforts to make a positive contribution to society. From the perspective of this position, since Mr. Reed's behavior was well-intentioned, the case should not have been brought. Third, JRB explains Mr. Reed's behavior in light of instructions (for becoming a detective) Reed received from an advertisement. Later, this analysis will return to the delivery mode for JRB's narrative as a crucial argument element. The three issues raised in this narrative were:
17) Influence of "the Detective Course" over Mr. Reed's action
18) That the case should not have been brought
19) That Leroy was making a good faith effort to contribute to society
Analysis of Issue Argumentation
Analysis in this paper will focus on turns indicating effective culmination of argumentation as starting points for examination of the elements which brought jurors predisposed toward "guilty" to "not guilty" votes.
First Vote Change
The first vote change cannot be accounted for by conversation analysis. In his opening statement, HA had declared that:
HA: [111-124] technically the man is guilty guilty as sin but I wanna acquit Leroy because I don't think he was fully aware of the rules of pa parole and secondarily I don't think convicting him of this charge this violation of law would do the general public any good but I feel that I'm shaky on this ground and this is I've been on this is my fourth jury I've been on and I'm willing to go th with the majority in this instance because I feel I'm on shaky legal ground that's all
This juror did not take another primary speaking turn until after the initial vote tally was announced, at which time he declared:
HA: [469-473] like I said I feel I'm on shaky ground here and I'm I'm willing to go with the majority because I'm not I'm strong on my stance so I this is the one time I need help
The lone African American male on the jury, HA gives no justification for his change of vote. He does not sit at the table with the jury during deliberations; just after his initial statement he got up and spent the rest of the discussion pacing around the perimeter of the room or kneeling (on one knee) at the side of the table (to speak or hear). He gives the impression of cordiality throughout; his behavior is not hostile. Nevertheless, he seldom enters into active discussion via primary turns (though his voice can sometimes be heard in back channel talk overs). His offer to "go with the majority" immediately after the announcement of the first vote, coupled with direct admissions by the other two voters of their "guilty" ballots, shows HA to be the third negative vote, and the first to change. However, there is no indication as to which (if any) content aspect(s) of the discussion led to his change
Second Vote Change
JRP makes various arguments for a "guilty" ballot throughout the first half of the discussion. However, after JRB's extended narrative (494-523], JRP declares that
JRP: [525-528] I can understand a little bit now what you're saying was gun a picture on that page or was gun something that you physically used
{F-BC}[530-530] {yeh}
[532--532] to fire a round
KFB: [534-538] but the book didn't tell him to go to Spears on 7102 West Capitol Drive and buy one he knew right where to go he right what he was looking for
{SIM TRP T-O}
LRS: [539-540] no he didn't he had to look at the paper and for all we know he had see a picture in the paper too
[542-542] {SIM TRP T-O}{F T-O} {uh hum}
KFB: [543-548] well that's what I'm saying he knew what to do
{SIM TRP T-O}
JRP: [549-555] there might be just a picture association
{F-BC}[552-552] {uh hum}
JRP: [549-555] wait a minute wait a minute between a picture in the newspaper or whatever he looked up stairs
BB-BC {uh hum}
at this point there might just be a picture association between a picture in the newspaper or phone book or whatever that he looked up stairs
After another hour's worth of discussion, directly after the second ballot indicated that only one "guilty" vote remained, and after that person (KFB) reiterated some of the reasons for his stance, JRP explains his change of vote. His account enables connections between his initial declarations (525-555) and material previously presented, thereby illustrating some story telling functions within argumentation in juries.
JRP: [688-719] now I changed my mind I ah I have something to say I came into this room saying the same thing yes the three points were met ah on face value and he's guilty and now those first two points you could ah ah define them you know ah it says that he had ta know that he possessed a gun he might a knew he possessed a piece of his course ah and and when you brought that up and it made me think and maybe he just was simply following instructions had no ah relationship like you or I or anybody else does in this room between a gun and bang bang ah you know ah ah I'm sure at his age he's watched plenty of tv being ah ah whatever you see detective movies on on shows on tv and every detective has a gun his detective book he's now going to be a detective I'm going to be a stand-up citizen and be a detective and the course says something about a gun he's going to do everything he can to do it right and and did he really know what he was doing or or the consequences did he know that that ah you know ah a gun was purchased or did he purchase an item of his course ah so that's my reason for changing my mind
JRP's utterance at 525-528 ("I can understand a little bit now what you're saying was gun a picture on that page or was gun something that you physically used gun as picture or gun as something used as weapon") is particularly interesting. The saying follows JRB's extended narrative. However, at no time in the deliberations had JRB said that Reed might have been responding to "gun" as though it was merely a picture. Earlier, at 304-317 JRB had said that:
"his language suggests to me someone who's going through life looking at ah reality through a black screen and there's this tiny little pinhole and all he can see through this tiny little pinhole is like a frozen frame a snapshot and he looks at one thing and then he looks at another thing and then he looks at another thing and this is what his syntax is telling me now he has to know he has a gun and I'm having with the word gun and I'm really having trouble with that word to know."
This turn tied Reed's ability to know and speak to a sort of visual image (a "tiny little pinhole is like a frozen frame a snapshot"). Later, in his narrative at 494-523, JRP extends ideas of how Reed's mind works by taking on his personae via first-person narration: "In some part of his mind he's thinking I wanna be useful I wanna be productive I wannta have a social role I wannta be a contributing person I wannta do the right thing damn it I wanna be somebody and all of a sudden detective and that becomes something that I am a detective I can be somebody." JRB ends the extended narrative by claiming that "the whole thing is encircled by magazine article so gun is something that is being imposed by a piece of fiction or an article and you know." JRP's turn at 525 modifies these elements to produce two key aspects; (1) an indication that he is beginning to change his mind ("I can understand a little bit now what you're saying was a gun a picture on the page or"), and (2) a new way to think about the way that Reed thinks by using a visual metaphor ("was gun a picture on that page or was gun something that you physically used to fire a round").
Although no claim for causality is being made here, two theoretical points of interest can be related. First, as noted earlier, Goodwin and Goodwin indicate that the process of conversants constructing their identities during argumentative conversation is an important feature. In his extended narrative, JRB takes on the first-person and, in story form, walks the jury through the scene (ostensibly) as Leroy Reed experienced it ("I wanna be useful I wanna be productive I wanna have a social role"). This mode of delivery holds the potential for encouraging the jurors to identify with Reed. A related idea is offered by Postman (1985) in his discussion of the (new) epistemology of the current age. Postman contends that the dominance of television media has changed the way that Americans (especially in the United States) make decisions about truth and knowledge. He focuses on how decisions are made about political candidates, noting that in image-advertising-dominated politics, the character of voters is more at issue than is the character of candidates. In other words, decisions about credibility are no longer about that which candidates have actually done (the "self-interest" we used to have in what the candidates would produce for us), rather, decisions are based on the appeal the candidate's image has for us (the "self-image" we have for who we wish we could be). This dramatic shift in epistemology is directly tied to the dominance of visual media. It is notable then, and perhaps symptomatic, that JRP's utterance shifts the attributed ground of Reed's cognitive function from print (JRB's "encircled by magazine article . . . a piece of fiction") to graphics ("gun a picture on that page"). JRP emulates the shift to first person in his later explanation for his change of position (709-711: "I'm going to be a stand-up citizen and be a detective"). In a sense, then, these jurors argued in much the same way as Postman's citizens pick candidates. Their decisions may reflect how they think of themselves, rather than what they actually know about the actions of others, and those self-images are intimately tied to a visually mediated sense of reality.
Third Vote Change
As previously indicated, KFB was the last hold out for, and the strongest advocate in favor of, a "guilty" ballot. KFB advocated the following positions:
That the state upheld the case against Reed, on all three counts, beyond a reasonable doubt.
That Reed's disabilities should not set aside application of the law.
That Reed's intent (or lack thereof) should not set aside application of the law.
That juror were showing Reed too much sympathy.
Although Mr. Reed was not violent, he might be triggered off and should therefore be punished to discourage further infractions
That the jury is getting too much into "psychology" (discussions of Reed's cognitive function)
That Reed knew what he needed to know in order to get the gun; therefore, the jury shouldn't try to say that he didn't know what he was doing.
That Reed was not as vulnerable and incompetent as the jurors were making him out to be.
That the jurors were twisting arguments, and the facts, in order to support their views.
That he agreed that the case should not have been brought.
That Reed would not derive any deep "meaning" from a "not guilty" verdict.
That Reed knew he possessed a fire arm and that he knew he was a felon.
That he would change his vote to go with the majority, but only under pressure to do so.
KFB did not change his vote until the end of the deliberations. However, twelve turns before the end of deliberations, KFB declared a willingness to change his ballot, citing majority pressure as a motivating factor.
KFB: [941-952] I look at it very basic and I would I will not hold out to hold up eleven people that are very strong in their feelings I would I will change and vote along with you to make it a unanimous vote but I will never feel right about it I feel it was ah pushed by the jury on ah psychological and ah other feelings that I do not agree with but I will go along with the ah unanimous verdict
KFB cast the lone "guilty" vote in the second ballot. Thereafter, although few of the turns were addressed to him, all of the discourse (except his) presented justifications in favor of a "not guilty" ballot. From 688-940 (except materials contained in the 10 turns taken by KFB), jurors argued with KFB toward his change of ballot. In effect, none of the arguments was successful, as KFB declared that he had not changed his mind on the facts; rather, that he was simply giving in to pressure for conformity exerted by the other jurists.
As previously mentioned, although KFB's adherence to his position is long-standing and adamant, the way he packaged his discourse left room for ambiguous interpretations. Previous analysis indicated two turns in which KFB presented two sides of issues despite the fact that he was strongly advocating a single interpretation. He repeated that packaging at 727-737.
KFB: [727-737] I I can't I don't have the education and the training to put myself into your class as far as being able to understand the human mind and how it works and what people think and I don't think that's why we're here it sounds very cold and simplistic to look at three reasons and say yes they met this this and this ahm the whole case seems like it doesn't belong here first off
Note that KFB uses self-deprecation (here and at a couple of other points during the deliberations) as a way to license his disagreement with other jurors using "psychological" factors when interpreting Reed's actions. His disagreement is a dispreferred response; the self-deprecation, usually a dispreferred assessment form, buffers the negative outcome of the disagreement. He further deprecates his response by labeling it "cold and simplistic," and then adds the "other side" of the issue: That the case "doesn't belong here first off." In short, although KFB consistently advocates a "guilty" ballot, KFB packages his utterances in shapes that may have been less than effective largely due to their equivocal presentation of both sides of the issues.
Jurors attempted to gain KFB's agreement at a number of points. Jurors reiterated the claim that the case should not be at trial; each time eliciting KFB's agreement. At one point, LRS used a narrative pre-sequence as a way to involve KFB:
LRS: [739-744] Could I just ask maybe just one very brief question do you think there is an ever a case where there could be an exception made do you think there is ever a case where exceptions can be made
KFB: [746-746] sure
LRS: [748-762 this man in all good will brought this gun in gave it to the police you know they asked him to he did it I don't think he understood that he was a felon I don't think he understood the significance of a gun he didn't understand so many things but when somebody told him this is wrong please bring this in he did it right away I don't think that there are grounds to convict this man on for his good intentions [and hey] there's gotta be exceptions somewhere and I deep inside believe there's some exception in this case
Although KFB agreed with the general principal of the potential for exceptions, he did not agree that the Reed case merited an exception. Instead, he responded that the claim that Reed didn't know he owned a gun didn't square with the fact that he knew enough to take the mail-order course and to follow its procedures. However, at the end of the deliberations, LT was able to draw KFB into a minimal agreement, one in which KFB (ostensibly) displayed some "doubt" about Reed's guilt.
LT: [1006-1016] do you think that he was that he was able to understand that he was a keep these two that he was able to keep these two thoughts and link em together at the same time when we bought the firearm that he was a convicted felon and that he was not supposed to own a firearm you think he was able you think he had the mental capacity to understand the ramifications of that
KFB: [1018-1022] I think he knows that he was felon and I think he knew that he bought the firearm the possibility of the two together would be the weakest point for me
LT: [1024-1025] Ok I think everyone is having a bit of a problem with that
JRP: [1027-1029] let's say we take a vote on it rather than beat a dead horse here
After KFB's declaration that he was changing his vote only to go along with the majority, some on the jury expressed concern over KFB's feelings. HA noted that "you all wanna make him feel better." In 1006-1016, LT is able to produce a construction of the issues to which KFB can issue modest agreement, mostly in form. Note that LT presents three elements: That at the time he made the purchase (1) Reed knew he was a felon, (2) knew that he was not supposed to own a gun, and (3) that he could bring (1) and (2) together to guide his actions. KFB agrees with (1) and (2) and notes that the third issue "would be the weakest point for me." KFB does not say that he either agrees or disagrees with that third element. LT picks up on that minimal agreement, commenting that "everyong is having a bit of a problem with that." In all, KFB has now agreed that the case should not have been brought, that there can be exceptional cases in which the law should not be applied, and that there is at least one point in the issues which is, for him, weak. The equivocation in 1018-1022 serves as minimal agreement to (as the phrase goes) a shadow of a doubt, and is seized on by JRP as a signal to call for what would become the final ballot.
Conclusion
In Fall, 1992, Harvey Sacks noted that "a thing that's interesting about storytelling, then, is the way in which the telling of stories is done for persons located to be distinctively ripe for them, and done on occasions that they're powerfully revelant to. It's as though the stories in people's heads are more or less constantly alert for the occasions for which they are distinctly apt"
(pp. 468-469). Jurors deliberating Leroy Reed's fate brought a number of narratives to bear on the circumstances, in just their own way. Arguments in favor of a "not guilty" verdict did not take the form of reasoning via "claim--support--reasoning--warrant--conclusion" structures. Instead, jurors, particularly JRB and JJC, constructed narratives which contained formulations establishing the intrepretation that Mr. Reed was not responsible for his actions due to his diminished mental capabilities.
The narrative discourse did not directly call for basing the "not guilty" ballot on Reed's mental condition. Instead, the stories constructed and enacted a glimpse of the world as it might look to Mr. Reed. And although KFB and, initially, JRP presented forceful arguments that a number of Reeds' actions displayed competence, their positions were not upheld. Interestingly, KFB's principal discourse mode emulated the traditional reason-giving formula ("claim--support--reasoning--warrant--conclusion"). For example:
KFB: [746-781] you're saying that he didn't maybe realize that that he owned a gun well you're saying he knew enough that he was going to take the course he knew enough he wanted a badge he knew enough this and he knew enough that and he knew to go to the sherrif's department he knew enough to get the permit he knew enough to register you know but alls he didn't know enough that he was owning a gun you're taking things that favor you to say that he knew this but when it's something that you disagree with oh he didn't know that and he really couldn't logic this and he couldn't logic that and I don't it's up to us to determine what his mind is working on
KFB: [880-894] that he knew that he knew he possessed a firearm I don't find doubt in that I think with all the things that Leroy has done he knew you say that he was following instructions that's making him look I don't know how yeh I don't wanna call him stupid but it makes him look like a dog Leroy do this Leroy do that Leroy you don't know anything and I don't think Leroy was like that Leroy knew enough to take a bus here he could do this he could do that many things on his own that he did not have to be told what to do
KFB constructs arguments by joining evidence (that Mr. Reed knew how to do many things associated with the case) to claims (that Mr. Reed is capable enough to be held responsible for his actions) via warrants (that if Mr. Reed could do the things he did, he must understand the process well enough to be held responsible for his actions). However, KFB does not produce credible stories with which other jurors can participate, identify, and empathize.
In short, it may have been that the facts of this case disabled the functionality of traditional argument forms. Jurors were faced with a dilemma. The prosecution and defense had agreed to the facts; on the face of it, Mr. Reed was guilty as charged. However, jurors wanted to find Mr. Reed "not guilty" due to his obvious mental deficiencies. Traditional argument from claims through facts to conclusions would render a "guilty" verdict. And so instead of using traditional quasi-logical argument forms, jurors used conversation to tell stories which could achieve their communicative goals. Recall HA's initial statement: "Technically the man is guilty guilty as sin but I wanna acquit Leroy because I don't think he was fully aware of the rules of pa parole." The jury in the case of Leroy Reed used conversational storytelling as communicative modality for convincing each other that a "not guilty" verdict was appropriate because Mr. Reed did not know, "in the full sense," that he was a felon and did not know that he had a gun.
Notes
1Produced and Written by Steven Herzberg and Alan Levin; directed and edited by Marc Levin.
2See S. E. Toulmin (1969). The uses of argument. Cambridge UP.
3See E. G. Bormann (1985). The force of fantasy: Restoring the American Dream. SIU Press
References
Bennett, W. L. and M. S. Feldman (1981). Reconstructing reality in the courtroom: Justice and judgment in American culture. New Brunswick: Rutgers UP.
Goodwin, C. and Goodwin, M. H. (1990). Interstitial argument. In A. D. Grimshaw (Ed.) Conflict talk: Sociolinguistic investigations of arguments in conversations. New York: Cambridge UP.
McLaughlin, M. L. (1984). Conversation: How talk is organized. Beverly Hills, CA: Sage.
Nofsinger, R. E. (1991). Everyday conversation. Newbury Park, CA: Sage.
Postman, N. (1985). Amusing ourselves to death: Public discourse in the age of show business. NY: Penguin Press.
Sacks, H. (1992). Lectures on Conversation, Volume II. Gail Jefferson (Ed.). Oxford, UK: Blackwell.
Shotter, J. (1993). Conversational realities: Constructing life through language. Thousand Oaks,
CA: Sage.