The state is represented by two assistant district attorneys, both women, I’m guessing, in their 30s. One sits at the prosecutor’s table and takes notes with multi-colored pens and pencils and Post-It®Notes, while the other with small eyes, sweeping brown hair, and in a dark purple dress conducts the voir dire examination of potential jurors. In introducing herself, she mentions she is divorced and has two cats. The other ADA, she tells us, also has cats but has never been married.
At the defense table, to their right, are three men — and, again, I’m guessing on these ages — in their late 60s, early 70s and one woman in her late 40s, early 50s. She sits to the left of the defendant, a man, mid 40s, with a Lloyd Christmas haircut in a light blue button-down shirt.
The lead defense attorney tells us about himself — he is a decent cook, appreciates his wife but not nearly enough, is from a small town in Oklahoma, loves his grandchild, and would be dispensing with the French and definitely be calling it VWAR DIE-er. He has a full beard, gray, that touches his chest, and hair, also gray, combed straight back. It looks full and thick in the front but when he turns, even slightly in any direction, you can see only a few strands covering the rest of his head.
“My name is Barry Friedman, I’m a comedian and a writer, I’m married and have a daughter, a stepson, and a son who died,” I say when asked by the judge to introduce myself.
“I’m very sorry about your son,” she says.
The bearded man who sat across from me in the jury waiting room, the one who was learning Greek, is here, as well. At one point, he is asked whether he had ever been charged with a crime.
“I’m a big proponent of the Second Amendment,” he says, when it is his turn, “so when a guy who had cut me off in traffic got out of his car and approached me — I had stopped at an intersection — I pulled out my weapon, which I carry with me. I didn’t wave it at him like he said it did but I did show it. Anyway, those charges were dropped.”
The charges against the defendant include rape, rape by instrumentation, kidnapping, use of a firearm while committing a felony, assault and child endangerment.
“Who among you,” asked the ADA, “would be surprised to learn that providing DNA evidence is not required under Oklahoma law?”
No hands went up — until mine did.
Checking her seating chart, she said, “Mr. Friedman, why are you surprised by that?”
“Maybe it’s from watching too many crime shows, but it seems to me if the state has DNA, it should be required to produce it.”
“Why is that?”
“Because I imagine it would be either exculpatory or damning
“Why would that matter in this case?”
“Well, for instance, to that charge of rape by instrumentation the judge talked about. I assume if there was DNA evidence that showed both the defendant’s and victim’s DNA on that instrument, we should know that.”
“Would you be able to give a fair verdict if there wasn’t DNA evidence?”
“Absolutely. I’m just saying the DNA evidence for me would help — either way.”
“How so?”
“Say there was testimony by the victim, say there was blood evidence, say medical personal testified to the victim’s injuries, say there were eyewitnesses, say there was motive, access, etc, etc, etc — if there was DNA evidence, as well, the ceiling for deciding guilt would, for me, go from, say — I don’t know — 75 or 80 percent to 90 or 95 percent.”
“Why would it?”
“Because of the preponderance of evidence.”
She seems unhappy by that answer.
I was actually proud of it.
The defense attorney was definitely unhappy with it.
“There’s no way you can put a figure on guilt or innocence beyond a reasonable doubt. It’s not 70%, it’s not 80, it’s not 90. For some of you, like our engineer over here,” he said, pointing to a man in front of me in the jury box who had earlier mentioned he was in civil engineering, “it would be one thing. For a comedian,” he then motioned to me, “it would be something else.”
Maybe I just thought he sneered.
“Mr. Friedman, tell me your thoughts on whether two people can see the same event differently. Is one necessarily lying?”
“One might be lying, but not necessarily.”
“Give me an example.”
“From where I sit, you look like you have a full head of hair. Someone behind you, however, would see that you don’t. It doesn’t mean either of us is right; it doesn’t mean either of us is wrong — and certainly doesn’t mean one of us is lying.”
He smiles.
“That’s actually interesting. I didn’t know that about my hair — thank you for pointing it out to me.”
“Just so you all now know,” he says, turning around so the rest of the court can see.
An hour pass. The judge announces a recess.
When we return, we were directed to sit in the visitors section of the court.
“As I call your name,” the judge says, “please make your way to the jury box and sit in the seat I direct you to.”
Fourteen are chosen.
The name of the big bearded Second Amendment proponent who was learning Greek was not called.
Neither was mine.
Say what you want about America’s system of justice, this seemed like the smart move.
Barry Friedman is an essayist, political columnist, petroleum geology reporter — quit laughing — and comedian living in Tulsa, Okla. His latest book is “Jack Sh*t: Volume One: Voluptuous Bagels and other Concerns of Jack Friedman.” “Jack Sh*t, Volume 2: Wait For The Movie. It’s In Color” is scheduled for release in February 2024.. In addition, he is the author of “Road Comic,” “Funny You Should Mention It,” “Four Days and a Year Later,” “The Joke Was On Me,” and a novel, “Jacob Fishman’s Marriages.” See barrysfriedman.com and friedmanoftheplains.com.
From The Progressive Populist, November 15, 2023
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