Judge Kirwan starts off by apologizing about the parking situation. Apparently there is a grand jury being impanelled today.
Mr G and one other prospective juror who was disturbed about the BAC are sent home right away, "for cause." The woman whose daughter is a deputy DA is sent home. Both lawyers and the judge stress how important it is for us to be completely candid, to look "deep in our hearts" for any reason we might be biased. "That's the only way the system can work." Both lawyers tell us they want a fair trial, for their client and for their opponent's client.
Alternate jurors are brought up from the galley and, after some long and tedious questioning, two more are knocked out: an old lady who answers every question with "I believe in law enforcement. My son was a police officer for 25 years" and a man with a thick Vietnamese accent who keeps talking about how he himself never drinks too much at parties and how he has never gotten into any trouble.
Finally, the jury and two alternates are impanelled. We're sworn in, and given little blue badges. Judge Kirwan gives us some preliminary instructions.
Judge Kirwan looks a little like Christopher Reeve, but blond. (Some of the other jurors suspect he's wearing a Superman costume under his robes). He's younger than I thought a judge would be, but composed, professional, and really really nice. He spends a lot of time thanking us for serving as jurors, explains the mechanics of getting reimbursed for parking. He explains that periodically he and the lawyers will need to confer out of earshot, and those would be a good opportunities for us to get up and take a stretch break.
He tells us the two lawyers are experienced professionals--they won't waste our time. We're fortunate that this will be a short trial--"only" five days. We should feel free to take notes, but we have to leave the notebook in the courtroom. We must stay away from the scene of the accident, we must not do any research into the case, we can't do any experiments, we must not consult any materials--not even a dictionary. We all have to see and hear the same thing. And we can't discuss the case with anyone--not family, not even with our priests or with our shrinks.
Opening statements
Kent's opening statements give us Mr Burr's life story in excruciating detail--where he was born (he's about 60 now), where he went to high school, when he was married (the Burrs have been together some forty years now). They show his education (community college, MBA from an online school) and employment history (lots of random things--started a printing company, sold real estate, most recent job was training to be a window sales consultant at Loews).
Burr and wife seem to be thriving in the (upscale) neighborhood they have settled in--giving walking tours of Los Gatos, frequently volunteering time at the Villa Mahora (the local museum), taking long hikes, going bird watching. He went on a 4000 mile motorcycle ride looping through Sturgis, South Dakota.
All until the day he was hit from behind and thrown into the air by Mr Poe's van at a stop light on a warm Sunday afternoon at 1pm, June 6, 2008.
Burr fractured 4 vertebra and 3 bones in his rib cage. We're shown a photo of the van--most of the left front corner of the body is sheared off. In a close-up shot, we can see that half of the motorcycle's tailpipe has been is buried inside the van's metal bumper, like a toothpick going into a marshmallow. And we see a shot of the inside of the car--strewn with empty beer bottles, mini-vodka bottles, and 3/4 full bottle of gin. It's unbelievable.
The plaintiff wants recovery of future earnings, and his wife is asking for compensation for "lack of consortium". They want damages for pain and suffering--they can no longer hike or do many of their other favorite activities. They also want punitive damages.
Biegler, in its opening statement, doesn't deny any of this. Poe had a problem, he was drunk, it was all his fault. He should pay. But how much? Biegler shows us a letter where Burr sought treatment at the Bay Area Pain and Wellness Center--a full year before the accident. Instead of a vigorous member of the community, Biegler shows us letters from doctors which show the pre-accident Burr suffering from chronic back pain, depressed, and isolated. He shows a report from the center which quotes Burr as saying he is lonely and "rarely leaves his cave." Instead of being happily married, the report says that Burr and his wife have been divorced for 7 years.
Why should the plaintiff pay for problems Burr already had?
What's more, Burr lied--under oath--about his medical problems, claiming that he had no medical problems at all before he was hit.
Instead of Poe's reprehensible behavior, the defense is trying to make the trial about Burr's health and credibility.
"As for the matter of punitive damages, let me just say this: Mr Poe has already plead 'no contest' to two felony counts of DUI and injuring someone while DUI in criminal court."
Doctor K
The first witness is Dr K, who is an optometrist who specializes in vision problems which have a neurological cause. He's part of NORA: the Neuro-Optometric Rehabilitation Association. He sees a lot of autistic children, brain injury victims, etc. Most of us haven't heard of this speciality, so Dr K has brought in a slender book which apparently is a standard reference in the field.
He goes through a catalog of the various vision related problems that Burr is now suffering as a result of the brain injury: his midline has shifted several degrees, causing him to misjudge doors and run into walls, his vision seems to come and go randomly, objects shift before him, sometimes he can and can't focus on things. Kent asks the question we're all thinking: Couldn't he be faking? No, many of these results are involuntary, such as the focus of the retina changing. These types of problems can only be attributed to post-traumatic brain injury.
Biegler doesn't bother to contest any of these findings. Instead, he goes straight for Dr K's credibility--actually he attacks the credibility of the entire profession. First, a tactical move--he approaches Dr. K and removes all his notes and his book, which seems to disorient him.
Is there any certification to becoming a NORA specialist? (There is not).
Are there are any other books besides this one you've brought in on the subject? (There are, but Dr K can't think of them right now).
How about peer reviewed journals and articles? (Dr K says, sure, check the website).
And then Biegler's final question, meant to imply that Dr K is little more than a snake oil salesman: How exactly does one become a NORA specialist? Dr K pauses to think about the question, but doesn't lose his temper. It's not clear to me whether Dr K is incredibly disciplined, or just oblivious to the implied insult. He answers the question plainly and thoroughly: you become a specialist by getting more and more referrals until all you do is work in that specialty.
Harold Poe
In the afternoon, Kent calls Poe to the stand. Poe could be William H Macy's younger brother--40ish, thin, pale, with a shock of reddish blond hair.
First Kent covers the obvious.
"You know sir, from your work in the DA's office, about the dangers of DUI?"
"Yes."
"And you knew the kind of danger that you were putting yourself and others in by getting into a vehicle with a .27 BAC--more than three times the legal limit in the state of California?"
"Well, yes, I know now." Poe is neither contrite nor defensive. He seems to show no emotion at all. "I know now that it was a terrible decision. And I must have known then. Honestly, I don't know what my state of mind was then. I--I must have lost all sense of judgement at that time. It was insane."
Poe was a model deputy DA until he started drinking, specializing in "custody counseling" for minors, and then moved to prosecuting financial fraud. He started drinking shortly after his wife and kids left him. He was drunk pretty much every night and every weekend.
"How many drinks did you have in order to get to a .27 BAC?"
"Well, my understanding is that each drink is about .02, and you burn off .02 per hour, so I'm guessing it must have been 13, maybe 15 drinks."
"You're not sure."
"I'm not sure, because I didn't drink a 'drink'. I was just pouring alcohol into my system. I would drink 6, 8 ounces at time."
"How? How would you do that?"
"I would just pour it into a glass or drink it straight out of the bottle."
"Didn't that irritate your liver?"
"Well...yes. I was sick, all the time. But no, I didn't--it didn't bother me enough to stop me from drinking."
"To get to a 0.27--isn't it true that a lot of that alcohol must have been from the night before?"
"Yes, I think so, I think I was still drunk from the previous night."
"Do you remember hitting my client in your vehicle?"
"No. I don't remember seeing Mr Burr at all. All I can remember is a scream--maybe I was screaming or maybe it was someone else."
"Do you remember seeing my client fly into the air?"
"No, no, I don't remember that."
"You had a chance to review your deposition recently--is there anything in it that is inaccurate?"
"No, I don't think so."
Kent then plays a video of the deposition of Poe.
"In this video, you claim that you were on your way to San Francisco--to visit your girlfriend--and you had gone about a mile and a half when you hit Mr Burr."
"That's correct."
"When in fact, you had just returned from seeing your girlfriend, isn't that correct?"
"Um, yes, that's right. I drove up to South San Francisco to see her, but she wasn't home. I was there for maybe ten minutes, and then turned around and went home."
"Why did you lie during your deposition?"
Biegler speaks up, "Objection--argumentative." The objection is sustained.
"I'll rephrase. How do you explain what you said during the deposition?"
"I--I don't know. I did say that I was coming from San Jose, but I can't explain it. I don't understand. I don't know why I said that."
"So you woke up, drunk, had some more drinks, drove up fifty miles to South San Francisco to see your girlfriend, parked your car--presumably you locked it--walked up to her door, rang the doorbell, waited, and then drove back fifty miles to San Jose, and you were drunk the entire time."
"That's correct."
After Poe was arrested, the police took all the bottles and cans of alcohol found in the front seat of Poe's car, and set them up on a table. I've never seen these drinks before--for example there are a lot of cans of a beer called "Steel Reserve." Now that I'm free to use wikipedia, I can tell you that "Its primary claim to fame is its unusually high alcohol content (8.1% ABV) and low price."
"These empty bottles of beer--you must have been drinking them in the car that morning."
"Yes, probably. That was something that I did."
"Did you stop at a liquor store between San Francisco and San Jose?"
"Maybe. I don't remember."
"You notice the police report says one of the cans of Steel Reserve was cold. This was on a hot summer afternoon. How do you explain that?"
"I guess I must have bought it on the way back. I don't know how else it would have gotten in there."
"And, when you drank them in the car, did you try to keep the can hidden under the dash while you were drinking?" Kent mimes holding the steering wheel with his left hand and taking a drink with his right.
"I don't know if I did that. Maybe--maybe I wanted to get caught, maybe I didn't care. I don't remember."
Throughout Poe's testimony, he's calm and analytical. He has no reaction. It's as if he's talking about someone else. I have to admit I don't know who Poe is either. The person described in the testimony is a monster. But I don't see a monster when I look at Poe in the courtroom. I see nothing.
