In Ch­esco, jus­tice, and ju­ror, is blind

The Phoenix - - FRONT PAGE - By Michael P. Rel­la­han mrel­la­han@21st-cen­tu­ry­media.com

WEST CH­ESTER » It has long been said that jus­tice is blind. But can the blind de­liver jus­tice?

That ques­tion was asked last week in Com­mon Pleas Court, where a jury hear­ing a Ch­ester County man’s driv­ing un­der the in­flu­ence case, in­cluded a blind man — a rare, if not en­tirely sin­gu­lar — oc­ca­sion in courts not only here but across the na­tion.

The an­swer? Well, if you were the de­fen­dant, Clay­ton Ay­ers III of Wallace, the an­swer would likely be a re­sound­ing yes.

The jury of six men and six women found Ay­ers not guilty of DUI and re­lated charges af­ter about 4½ hours of de­lib­er­a­tions on Aug. 29. Ay­ers con­tended that al­though he had been drink­ing the night in ques­tion, he had not been driv­ing — even though po­lice stated that they found him seated be­hind the wheel of a Toy­ota Camry in the drive­way of his home on Fairview Road. He had been there only mo­men­tar­ily, he tes­ti­fied, as his wife tried to get him to drive her to the hos­pi­tal for an emer­gency.

Those in­volved in the trial — the judge, and both the pros­e­cu­tor and de­fense at­tor­ney — said they had not be­fore seen a jury panel that in­cluded a blind per­son, nor had they heard of it oc­cur­ring in the county.

Joseph P. Green Jr., the West Ch­ester de­fense at­tor­ney who rep­re­sented Ay­ers, said that in the 38 years he has been prac­tic­ing law he had never had a blind ju­ror serve on one of his tri­als across the re­gion, nor had he seen a blind per­son called as a prospec­tive ju­ror. But he said that in the end, he wel­comed the man’s pres­ence be­cause it taught him some­thing about the way to present a case at trial and the im­por­tance of the jury sys­tem.

“I think we all learned some­thing,” Green said Aug. 30 in an in­ter­view. “I learned about ac­com­mo­dat­ing dif­fer­ent kinds of peo­ple in my pre­sen­ta­tion.”

The mat­ter is not a small is­sue in the na­tional blind com­mu­nity. In­stances of the sight­less be­ing dis­missed from jury ser­vice are con­sid­ered an af­front to their dig­nity and their sense of cit­i­zen­ship, said a spokesman-of-sorts for the Amer­i­can blind.

“We have long con­tended that blind peo­ple should be al­lowed to serve on ju­ries,” said Gary Wun­der, the ed­i­tor of the Bal­ti­more, Md., based Braille Mon­i­tor, a monthly mag­a­zine pub­lished by the Na­tional Fed­er­a­tion of the Blind. “The dif­fi­culty is that

“Blind peo­ple are af­forded ac­com­mo­da­tions by the com­mu­nity in their lives and we want to be re­spon­si­ble for giv­ing back. We are will­ing to con­trib­ute. We want to be good cit­i­zens.”

— Gary Wun­der, ed­i­tor of the Bal­ti­more, Md., based Braille Mon­i­tor, a monthly mag­a­zine pub­lished by the Na­tional Fed­er­a­tion of the Blind.

any­body can re­ject peo­ple for jury ser­vice, whether we like it or not.” Prose­cu­tors will con­tend that they have ev­i­dence of a crime — a bloody pho­to­graph, a map of the crime scene — “and they want peo­ple to see it.” There are also is­sues of es­tab­lish­ing a wit­ness’s cred­i­bil­ity through visual clues. But that doesn’t mean that the ev­i­dence can­not be pre­sented in a way to make it un­der­stand­able to the blind, he said.

“It re­ally is a topic of con­cern,” Wun­der said in an in­ter­view from his home in Columbia, Md. Blind peo­ple are af­forded ac­com­mo­da­tions

by the com­mu­nity in their lives, he said, “and we want to be re­spon­si­ble for giv­ing back. We are will­ing to con­trib­ute. We want to be good cit­i­zens.”

Judge Pa­trick Car­mody, who over­saw Ay­ers’ three­day long trial, said that dur­ing rou­tine ju­ror ques­tions in the se­lec­tion process, the man — a West Ch­ester res­i­dent who was ac­com­pa­nied by his ser­vice guide dog, a Gold re­triever named Dante — was asked whether he could per­form the tasks of a ju­ror. (The man could not be reached for com­ment.)

The ju­ror, “said he felt com­fort­able serv­ing, but it de­pended on the case and the na­ture of the ev­i­dence,” Car­mody said in an e-mail. “He had once been on a jury panel be­fore but was not se­lected.

We have had many ju­rors with hear­ing prob­lems in the past and we said that if any ju­ror had trou­ble hear­ing through the trial to let us know. One of the ju­rors wore a hear­ing aid.

Nei­ther at­tor­ney chal­lenged the ju­ror for cause, nor did they use one of their five peremp­tory chal­lenges, in which they are not re­quired to state a rea­son for ex­cus­ing the ju­ror from the panel. “This was a lit­tle sur­pris­ing, given the ex­ten­sive num­ber of visual ex­hibits — pho­to­graphs, com­puter over­lay maps in­di­cat­ing where cell phone calls were made from, that both sides had, es­pe­cially the Com­mon­wealth,” the judge said.

As­sis­tant Dis­trict At­tor­ney Bon­nie Cox-Shaw de­clined to com­ment on the

trial or the ju­ror’s par­tic­i­pa­tion, say­ing it would not be proper. She did say, how­ever, that the man was “very at­ten­tive.”

Green said that he had con­sid­ered us­ing a chal­lenge to re­move the ju­ror dur­ing se­lec­tion, but dis­missed it.

“The first thing I thought was that it was re­ally coura­geous of him to be there,” Green said. Blind peo­ple don’t usu­ally get in a court­room, he spec­u­lated, ei­ther be­cause they are dis­missed be­cause of their dis­abil­ity or asked to be ex­cused them­selves due to it.

“Then I asked whether he was the kind of per­son I wanted on my trial, and I paid at­ten­tion to how he an­swered ques­tions and how he acted when he was

lis­ten­ing to peo­ple speak,” Green said. “Was he a dis­in­ter­ested lis­tener, or was he an ac­tive lis­tener. He was a very ac­tive lis­tener. I thought he would be a fair ju­ror, and that he could do it. Then I thought about whether I could do it” — tai­lor his pre­sen­ta­tion of the case to the man’s spe­cial cir­cum­stances.

Green, in his open­ing statements, of­ten tells pan­els that he un­der­stands that peo­ple learn things in dif­fer­ent ways. Sone use visual clues, some ver­bal. Green said af­ter the trial that he in­creased the way he used de­tailed word­ing in his ques­tions to make plain for the sight­less man what was be­fore the panel. “I worked hard to be more de­scrip­tive,” he said. “Ev­ery sec­ond, I saw that he was pay­ing at­ten­tion.”

Dur­ing the trial, the ju­ror was seated in the first seat, even though he was tech­ni­cally Ju­ror No. 10, next to Dante, who was re­mark­ably well be­haved dur­ing the trial, of­ten sleep­ing, ac­cord­ing to Car­mody. It was not out of line to move

him, the judge said, “since in the past we have had ju­rors who used wheel­chairs so we have made ac­com­mo­da­tions for them, sit­ting them not in the bolted down ju­rors but making room for them.”

Af­ter the jury reached its ver­dict, Car­mody spoke to them, thank­ing all of them for their ser­vice.

“To me, jury ser­vice is one of the du­ties of cit­i­zen­ship, like vot­ing, that dis­tin­guishes Amer­ica from so many other coun­tries,” he said. “I told each of the ju­rors how proud I was of them.”

Wun­der said that he was not en­tirely sur­prised that the man had even­tu­ally been in­cluded on the jury and served it well.

“I think that peo­ple can change their minds about peo­ple who are blind,” he said. “I think that peo­ple get the idea that we have the abil­ity to be con­vinced by sound ar­gu­ment, just like ev­ery­one else.”

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