Jury Instruction

barajasYou’re probably aware of the curious case of David Barajas.

Two years ago, Barajas and his two young sons were pushing the family’s stricken pickup truck along the road near their Houston-area home when 20-year-old Jose Banda, definitely drunk, possibly stoned, and reportedly an avid gang-banger, ran his car into the pickup, killing Barajas’ sons.

The way prosecutors tell it, Barajas immediately retrieved a pistol from his house and shot Banda in the head. Prosecutors charged Barajas with murder. The case against him wasn’t precisely a slam-dunk, but there was some physical and lots of circumstantial evidence pointing to his guilt, and there was every reason to expect a speedy and resounding  conviction. Certainly American juries have convicted fellow citizens on far, far less.

On Aug. 27 of this year, Barajas was acquitted of the murder charge by a jury of his peers. Many people, most of them in legal professions, denounced the verdict as unjust. They said juror sympathy trumped the facts. They said a murderer is walking around free. They say the decision heralds a bloody “open-season” on those suspected of as-yet un-adjudicated crimes. Some, determined to correct what they consider a grave miscarriage of justice, even called for Barajas to be tried again on federal civil-rights charges, double jeopardy be damned.

Me? I’m of two minds.

On one hand, I don’t think people should be encouraged to take the law into their own hands, or be free to kill those who’ve wronged them as they see fit. Our judicial system, for all its faults, is a lot better than folks running around settling their beefs by deadly force, which is simply vigilantism, which is another name for anarchy.

I’m against anarchy.

On the other, I consider the Barajas verdict a signal victory for the jury system. In fact, I believe Barajas’ acquittal is an excellent example of a jury acting as the system’s designers intended. Prosecutors in the case archly castigated the jury for allowing “sympathy” to trump “facts.” It’s quite possible, even probable, they did exactly that.

And that’s quite all right.

A jury represents the one instance, codified in the Constitution and endlessly supported by precedent, when citizens are allowed – no, required – to take the law into their own hands. In the courtroom, the jury is the law.

Judge’s tend to disagree. They like to “instruct” the jury on how to do its job, tell the jurors what evidence they should and should not consider, how they should think about that evidence, how they should deliberate, and how they should arrive at their verdict. Judges like juries to toe the tight judicial line they draw for them.

Prosecutors tend to disagree. Prosecutors like jurors to accept the evidence as they provide it, and they aren’t above telling them in no uncertain terms how they “must” decide. They provide juries with check-lists detailing the “elements” of the case, and flatly state that, if each element has been proven, they have no legal recourse but to convict.

crownpin_11883largeThing is, juries have all kinds of legal recourse. Judges aren’t the kings of the courtroom, regardless of what they think. And provided individual jurors don’t take bribes, threaten other jurors, or defecate in the jury box, prosecutors have very little legal authority over jurors. In the courtroom, the jury is the law.

I’m reminded of a case I saw on TV once. An 18-year-old boy fell in love with a 13-year-old girl. They were, by all accounts, a typical teenaged couple, holding hands and mooning, all hearts and flowers, sickening, really. The girl’s mother didn’t object. She recognized that the boy and her daughter, the calendar notwithstanding, were psychologically and emotionally simpatico. The kids’ friends and adult acquaintances took it in stride, and for the same reason. Then the girl got pregnant. Nobody who knew them minded that, under state law, the union was mathematically proscribed.

The boy took a job, determined to step up and provide for his girlfriend and their coming child like a man. They faced many challenges ahead, and possibly their relationship would not survive those challenges, but they had the support of their families, the strength of young love, and they were determined to try.

juryWhen the local prosecutor got wind the affair, he charged the boy with statutory rape. If convicted, the lad was looking at a minimum two year prison hitch and a lifetime sex-offender brand. Following a short trial, the DA sent the juror off to deliberations with a very short list of elements.

1.)    Is the boy 18? No denying it.

2.)    Is the girl 13? Proven beyond a reasonable doubt.

3.)    If you answered “yes” to numbers 1 and 2, you must convict.

The jury deliberated far longer than should have been necessary, than came back with a guilty verdict. The boy was hauled away to prison, the girl shuffled back to her mother’s house to join the rolls of unwed teens living on the public purse and raising a child without a father. A reporter talked to the jurors after the trial. Said the foreman; “None of us wanted to convict him. We just didn’t have a choice.”

My head very nearly exploded.

I yelled at the TV.

“If you didn’t want to convict him, why the hell did you?”

What those jurors apparently didn’t understand, and what neither the judge, nor the prosecutor, nor even the defense attorney (being professionally invested in the primacy of the legal classes) was about to tell them, is that nobody can make a jury do anything it doesn’t want to do. In the courtroom, the jury is the law.

The function of a jury is not to simply rubber-stamp investigators’ findings and the state’s conclusions, however compelling, or to slavishly adhere to the letter of the law and avoid all contemplation of its spirit. If that were the case, in most cases there’d be no need for juries. Juries weren’t invented by accident. They exist because, despite the assurances of every prosecutor who ever lived, the state enjoys a considerable advantage in the courtroom. Juries balance the government’s power with the power of the governed, and temper dry legal principles with humanity. The jury’s job, first and foremost, is to administer justice as it is understood by the common citizen.

A responsible jury can decide whether or not the law is being applied as intended. It can decide if punishment is warranted in a given case, regardless of guilt. A jury can and should decide what outcome will best serve the community’s interests, and what verdict will best satisfy justice. There can be, after all, a distinct difference between what is legal and what is just. Alas, all too often juries merely decide a person’s fate based on carefully tailored criteria hand-fed them by people adept at using the system to advance their own careers.

In the case of the ill-fated Romeo, it’s nothing short of a tragedy that not one of a dozen solid citizens appreciated their proper role, or mustered the courage to say “Hold the phone!”

“This is not some middle-aged creep exposing himself to school children. This awkward teen romance is not what these laws were crafted to address.

“I, for one, will never vote to send this harmless sad-sack to prison and doom him to a life of constant suspicion and loathing; to deprive his girlfriend of the emotional and financial support that he is willing to provide and consign her into the unloving hands of social welfare agencies; to deprive his child of a father, an example, a loving guide and nurturing presence, and surrender it to the state’s fickle form of fatherhood.

“I see no malice in his actions, no terrible wrong done by them, and no conceivable benefit to this community by his conviction. I do see, however, any number of very great wrongs that will surely result from his imprisonment, and I simply won’t be party to it.”

Nobody said that, of course. The jury followed its orders and put the boy away, and his community’s been paying for it in ways large and small ever since.

Which brings me back to David Barajas.

I don’t know why they let him off the hook. But I’d like to think they did it because it was the right thing to do.

Barajas shouldn’t have shot Banda in the head, if that’s what he did, but if ever a man had cause to seek violent personal retribution it was David Barajas. And while he may have been denied the legal protections afforded all citizens by due process, if ever a person deserved immediate and summary justice it was Jose Banda.

I like to think the jury concluded that society lost little with Banda’s death, and that it would surely lose a great deal by the incarceration of Barajas. I like to think those jurors realized that Barajas’ case fell outside the normal definitions of criminal murder, and that the laws the prosecutor sought to apply against him were simply inadequate to address the circumstances. I like to think they decided among themselves that enough damage was done, and that neither the judge, nor the prosecutor, nor the indifferent letter of the law would compel them to add to the tragedy.

I like to think David Barajas’ jury did its job.


Can-do Attitude Launched Beverage Revolution


Beer baron’s bold bet beggars bottlers


Some people get wound up about fine wine, others go gaga for The Next Top Model. The 50 merry worthies who gathered at CoorsTek on Washington Street in Golden were excited about something far less glamorous than Carol Alt, but infinitely more valuable than the finest Chateau Margaux ever corked.

After briefly addressing the invitation-only crowd that included three generations of the Coors family, longtime Evergreen resident George Krauss officially presented a large bronze plaque to the venerable man of the hour, Bill Coors, on behalf of ASM International, The Materials Information Society. With that, CoorsTek became the 119th site to be awarded the 38,000-member society’s woefully under-appreciated ASM Historical Landmark Citation, an honor established in 1972 to recognize game-changing milestones in materials technology.

“At this site on January 22, 1959,” the plaque reads, “the first aluminum beverage can plant produced its first can, under the direction of William K. Coors, Joseph Coors and colleagues.”

aluminumcan1Beer cans? All that fuss and feathers for beer cans? You bet, and with very good reason.

“It’s exciting to see what can be done with a fairly common material,” explains Krauss, a former materials researcher at the Colorado School of Mines and one-time ASM president. “The aluminum can is ubiquitous, now, but 50 years ago Bill Coors had to fight against all odds to make it happen. Bringing the aluminum can production to fruition on a large scale was really an event, and it happened right here in Golden.”

Picking up where Krauss left off, William K. related the genesis of the Coors interest in that most old-pepsi-canversatile of metals. After World War II, he explained, glass bottles gave way to steel cans, first with awkward cone-shaped tops, and later with sturdy flat lids that required a church-key and strong wrist to breach. While serviceable and convenient, steel cans were relatively difficult and expensive to produce and worse – from a brewmaster’s perspective, anyway – tended to impose its own unwholesome nuance on the golden nectar within.

Enter Lou Bronstein, a smooth-talking, fast-living, semi-dubious Viennese aluminum broker who, in 1954, persuaded Bill to tour aluminum manufacturing plants and research facilities across Germany. Sold on the possibilities of the strong, light, corrosion-resistant metal, Coors set about trying to generate interest on the home front, but met stout resistance on many fronts, including, ironically enough, American aluminum giant Alcoa, which refused to lend its considerable weight to the venture on the grounds that aluminum beverage cans would never be cost-effective. Undeterred, Coors resolved to make the cans in-house and – 5 years and $10 million later – the seamless, 2-piece, extruded aluminum can made its public debut, a wildly profitable industry was born, and bottle manufacturers around the globe sleeping late and muttering to themselves.

secrets_ball2-1024x685“We make literally billions of these things,” Krauss says. “Soda pop, sports drinks, beer, juice – everything comes in aluminum cans. Ball Corporation has another huge aluminum can plant in Golden. They’re perfect beverage containers.”

They are that. Feather-light, tough as nails, aluminum conducts heat like nobody’s business, meaning it cools liquids faster and keeps them cold longer than other materials. Best of all, it’s 100-percent recyclable, making it both more economical to manufacturer and less burdensome to the common ecology.

the-hl-hunley-replicaJust for the record, CoorsTek is the second Colorado institution to receive ASM’s approbation. In 1977, the Climax Molybdenum Mine and Mills Complex near Leadville got the nod, joining such stellar industrial lights as the Outokumpu Flash Smelter in Helsinki-Espoo, Finland, the Forge of Fontenay in Bourgogne, France, and the world’s first attack submarine, the American civil war vessel H.L. Hunley, a modern marvel of its time that was recently resurrected from a watery grave off the coast of South Carolina.

Niceties accomplished, the assembled can-fans dug into a cake fashioned in the likeness of – what else – an aluminum Coors beer can, and then toasted William’s bold gamble with – you guessed it – aluminum cans of Coors beer. More fitting tributes can hardly be imagined.

Metal-Cans-Aluminum-Containers“Aluminum can technology was a huge step forward,” says Krauss. “It took one man with the vision to see that aluminum cans were worthwhile.”

Evergreen’s Trash, Golden’s Treasure

The next time you’re doing business in Golden, do yourself the pleasure of stopping by to see an old Evergreen friend.


Okay, maybe not “friend” so much as “brief acquaintance.” Or, possibly, “unwelcome guest,” or even “bitter enemy,” depending on how long you can hold a grudge. In any case, you’ll likely find a courtesy call to Evergreen’s one-time Dam Bridge well worth the effort.

Set out from Lions Park, a restful haven of grass and quietude across from the Golden Community Center on 10th Street. Pointing your feet west, mosey up the smooth cement path beside Clear Creek’s rushing waters until concrete gives way to dirt. You’ve just entered Jefferson County Open Space’s Grant Terry Park, some 13 acres of wild splendor at the mouth of Clear Creek Canyon.

Continuing along the broad, sun-dappled trail beneath a rustling cottonwood canopy, spare a nod and a smile for the young mother behind the stroller, the family pedaling along on their bicycles, the older couple strolling hand in hand. Though quite new, the Grant Terry Trail has already attracted a diverse and loyal clientele.

Finally, after a pleasant half mile of birdsong, butterflies and willow hedge, a soaring outline suddenly appears above the green riot, a majestic construction of weathered steel uniting Clear Creek’s stony banks. Could this noble span really be the most maligned character in Evergreen history? The one variously condemned as a “disgrace,” an “eyesore” and “insulting” by outraged Evergreen worthies?

In fact, it’s one and the same, and Golden residents Kevin and Liana Wolfe are pleased to welcome the massive castaway to their neighborhood.

“I think it looks good,” says Kevin, sitting atop his bicycle at the bridge’s northern abutment. “I’ve always liked that industrial style.”

“It’s nice to ride over,” Liana says, admiring the bridge’s rusty patina from the stylish seat of a sleek, retro-style coaster. “You get a good view of the creek from up there.”

For those Evergreen residents lucky enough to have missed all the ruckus, the Gilded City’s newest pedestrian conduit was originally intended to facilitate foot traffic between Evergreen Lake and Main Street. Alas, JCOS neglected to obtain a general public nod on the project before installing the bridge next to next to the Evergreen dam in late summer, 2004. By Christmas, vehement public criticism had run the walkway clean out of town.

For years the banished bridge languished on the Greeley compound of its creator, Big R Manufacturing, providing access from nowhere to nowhere else at a cost to the county of $600 a month. Then, last fall, it received a new lease on life.

“It worked out pretty well, really,” explains JCOS planner Dennis Faulkner. “We needed a bridge to connect Grant Terry Park on one side of the creek with Clear Creek County on the other, and that bridge was all ready to go.”

It should be noted that, at the moment, the former Dam Bridge still doesn’t really go anywhere. The wide gravel path extends less than a hundred yards into Clear Creek County before melting into the wilderness. Happily, plans are in the works that could someday transform Evergreen’s ugly duckling into Golden’s most popular swan.

“The idea is to connect Golden with the proposed Clear Creek Trail,” says Faulkner. “In concept, that trail will run up Clear Creek Canyon as far as Tunnel No. 1, and eventually tie into the Continental Divide Trail. But the bridge gets a surprising amount of traffic right now, even without a trail on the other side. Joggers, families, picnickers – you’d be amazed.”

If the backwoods viaduct doesn’t necessarily amaze the Vogelsang family, it’s definitely got their attention.

“We’ve ridden up here many times, but this is the first time we’ve been across the creek,” says Chris Vogelsang, fresh from a round trip with his wife, Beth, and their 8-year-old son, Andrew. “It’s a great bridge, and a really good addition to this community.”