I’ve just finished a week of jury duty, and now that it’s over, I can talk about it.  The case and proceedings are in the public record.

Jury duty is one of those things – I didn’t really want to do it because like everyone else, I’m busy.  And right now in particular, I’m a contractor, so when I’m not working, I’m not getting paid.  Furthermore, the county courthouse is over an hour from my house, each way.  But I’ve never served on a jury before and was interested in the process.

I should have known right away that I was going to get selected. My juror number was the first number required to even show up on that day.  Then once there, there was the usual snafus that happen only when I’m involved – we had to wait outside for 30 minutes to enter the building, and it was 15 degrees outside.  Once inside, we discovered the computers were down, the copiers were broken, there was problem after problem with the courthouse’s normal procedures, causing us to wait further.  Finally around 3:30 we were called into the courtroom, and of course I was called first to the jury box.

Through the counsels’ questioning of the jury, we learned that the case would be a sexual assault case and would take a minimum of 5 days.  Great I thought, I’ll get out of this given I’m pregnant (emotionally unpredictable, right?), a contractor (undue hardship on me), and in college I used to volunteer for a rape victim’s support group.  After all, no means no.  Period.  No exceptions, none whatsoever.  Turns out I was the only female on the jury that wasn’t dismissed by counsel, and one of the few people that wasn’t dismissed.  What did I say right?

In this case, we had to determine whether Larry Flippo had sexually assaulted this young woman, Dawn.  Here’s the quick background:  They meet on a phone-dating line; she lives in Denver, has 2 children under the age of 2, has no car, no money, is married but separated, and is 21 years old.  He lives in Greeley and is 30.  They spend a few weeks having phone sex.  He invites her up for a week-long “vacation” – she accepts under the pretense that it’s only as friends, since it would be the first time they met.  Given she doesn’t have a car, she has a friend drive her, her two children, and a week’s worth of clothes up to Larry’s house in Greeley.  Her friend actually recruits a cousin to do the driving since they are short on gas money.  They drop Dawn, her children, and stuff off in Greeley and head home to Denver.  Dawn has no money, has no car, doesn’t know where she is in Greeley, doesn’t know where ANYTHING is in Greeley.  This story is already fraught with bad decisions on Dawn’s part, but that doesn’t change the fact that No means No, right?

Apparently, Larry gets frisky with her right off the bat.  He grabs her ass, she moves out of the way.  He invites some friends over for dinner, and they witness him being inappropriate with her and her mildly rebuking him.  Things like rubbing her shoulders, and she scoots over out of his reach.  He tries to untie her shoes, she doesn’t let him.  He sticks his head up her skirt, she pushes him off.  His friends tell him to back off, that he’s freaking her out, and he doesn’t.  He kicks them out of the house, claiming they are interfering with his ‘relationship’.  At some point in the evening when Dawn’s 18 month old son is sitting at the table eating dinner, Larry begins to masturbate in the chair right next to him, outside of his pants, by rubbing himself.  Dawn says nothing, but does call her son to her and just averts her eyes.  If that were me, I’d run.  She remains, but does call her friend to see if she can’t return to Greeley to pick her up.

At this point in the story I should mention that Larry is mentally retarded.  He is developmentally disabled, in addition to having a frontal lobe injury from a premature birth, and has the mental capacity of a 12-13 year old.  He has been living on his own for the last 4 months for the first time in his whole life – prior to that he was living in institutions or with his mother.  I should also mention here that Larry has been married, twice, both times to women with developmental disabilities.  He’s not totally clueless about sex and relationships.  Larry has also written love letters to Dawn at this point, saying that he wants to be with her, that he loves her, he wants to hold her.  He even draws her pictures of little hearts and helicopters.  I read these letters, they aren’t the letters of a man just seeking to get some, they are from a young boy who is trying to express a feeling of love.

Anyway, the night progresses and Dawn somehow, stupidly, finds herself in Larry’s bedroom, with her daughter asleep in a car seat on the floor and her son asleep at the foot of the bed.  Larry begins to masturbate again, Dawn ignores him, not wanting to wake the children, hoping her friend will be there soon.  At some point, Larry pushes her down on to the bed and holds her arms with one hand.  He tears at her panties and bra, then proceeds to violate her.  She claims her first concern is not waking her sleeping children – which I buy.  What is not clear is how much protesting she did here.  It is physically impossible for him to effectively hold her down the way he was if she was struggling hard.  She admitted not using her legs to push him off.  So it’s clear she didn’t put up much of a physical fight, but how much verbal protesting did she do?  I’m still not clear.

So here’s my question to you.  If there are 2 backpacks on the ground and you take one without permission, is that stealing?  Yes, right?  But what happens if you thought the backpack was yours?  Then no, it was a simple mistake, right?  My point here is the law is very clear on intention – your mental state.  If you intend to steal the backpack, then it’s stealing.  If you accidentally took it, its not stealing.  Same with sexual assault in Colorado’s eyes.  Sexual assault in Colorado (18-3-402) is a crime when:

Any actor who knowingly:

• causes submission
• by means of consequence
• against a persons will

So what this means is that Larry had to be aware that he was doing something against her will, that he was causing her to submit, by means of consequence (threats, intimidation, fear, whatever).  Given his diminished mental capabilities, how aware was he?  Given he had a couple of weeks of phone sex with her, given she lead him to believe she might have sex with him, given his love letters to her, given her lack of effective communication and struggle, given he has the mental capacity of a 12 year old – did he knowingly cause her to submit?

The law also states that the jury has to be unanimous on its decision.  And that we are to find him not guilty unless we are sure, beyond a reasonable doubt, that he is guilty.

It took us, the jury 7 hours of deliberation, up to about 7:30pm on Friday night.  It’s not clear how long we would have stayed there had we not come to a decision.  For most of the deliberation, the jury was split 10/2 guilty/not guilty.  I was one of the 2.  Its not that I thought he was innocent.  I just had reasonable doubt that he knew what he was doing.  The guy is mentally retarded.  And he has a frontal lobe injury, making it difficult for him to process messages, especially in a heightened state.  I’m not saying a guy like this should be allowed to walk the streets if he can’t process a “NO” when he hears one.  I’m just saying I had a small doubt that he was deliberately forcing himself on her.

I ended up voting guilty.  Why did I vote guilty when I had reasonable doubt?  There is one thing in my head that didn’t add up.  Larry is ‘highly suggestible’ given his mental disability.  He confessed to the rape to the police, but in a way that suggested he was being ‘agreeable’.  He answered yes to almost every question he was asked.  He apologized for things.  I think he was just being agreeable as he knew he was in trouble.  Just like a child would.  But if he was so agreeable, and Dawn was saying NO all night long, and Larry thought he loved her, then one would think he would be extra-agreeable to Dawn.  He would want to do everything he could to please her, including heeding her sparce “NO’s”.  But since he clearly ignored every clue thrown at him, it lends me to believe he knew what he was doing.

The sick part is that either vote is yukky.  Larry now goes to prison.  And I don’t think the mentally retarded belong in prison.  But not-guilty would allow him to walk the streets – which I also don’t think is the right option for him.  If he can’t understand a basic NO, he shouldn’t be able to operate unsupervised in society.  I can only hope that the courts give him an appropriate sentencing.

This case was not as cut and dry as one would think a sexual assault case might be.  We had a retarded man’s life in our hands.  I can only hope we did the right thing…