The Tomato Question

“If there were a law making possession of tomatoes illegal, and I proved beyond reasonable doubt that the defendant had tomatoes, would you have any problem finding her guilty?”

This question stuck with me after serving a few hours of jury duty last month. I was not directly asked this, as I was in the larger pool of citizens who had not been called upon to take a seat in the jury box. But I heard it asked of each prospective juror and so I knew it would be important to have my response ready should I get a turn in that chair

I thought and thought.

I decided this was a shibboleth (, intended to

At some point a tomato can go bad.

divide prospects into two groups: those who would adhere to the letter of the law and those who would inject their own thoughts and reasoning into the decision-making process. What better way to identify each camp than to ask them whether they would agree to convict a defendant who was guilty of the silliest law she could conjure up?

Instant Civics lesson: the legislators, who are elected by the voters, are entrusted to craft the laws by which we govern ourselves. In the case of an arrest, the defendant can have a jury of her peers. The empaneled jury’s role is strictly to determine whether the charges against the defendant can be proven beyond a reasonable doubt. As jurors we are not being asked to decide whether we think the law that was broken is a good one. It’s a simple matter of division of labor: the elected officials write and pass laws. The jurors assess the facts of the case against the law as it stands. We must do this regardless of how we feel about the law. Right?


My mind wandered. World history and literature are chock-full of examples when people rise up against unfairness. Look no further than the American Revolution. “Taxation without representation is tyranny.”

If a barrister could prove beyond all doubt that the defendant jettisoned British tea into Boston Harbor, would I have any problem voting for a conviction?

In 1496 the citizens of Fuente Ovejuna, a small village in the Castilian part of Spain were abused by a federal magistrate. They banded together and killed him. When the authorities arrived to investigate, asking who had done it, the villagers all replied “Fuente Ovejuna.”

I flipped the question over and looked at it again. If I lived in a society where an unjust law was in force, would I willingly take part as a citizen? Or would I be willing to go off the rails in protest? We ask this of our children all the time. Take Shirley Jackson’s classic short story The Lottery . A village has an annual practice where they murder a randomly selected citizen in the belief that it ensures good weather for their crops. Everyone goes along, the husband of the woman whose name is selected for stoning.

“If there were a law making possession of tomatoes illegal, and I proved beyond reasonable doubt that the defendant had tomatoes, would you have any problem finding her guilty?”

One night I was having dinner with Allie and she shared her homework with me. Her assignment was to read Ursula LeGuin’s story, The Ones Who Walk Away from Omelas. It also posits a removed city where a strange practice ensures prosperity at the cost of one hidden citizen, a child mistreated so badly that it loses even its identity as a person, referred to only as “it”:

“ They all know it is there, all the people of Omelas. Some of them have come to see it, others are content merely to know it is there. They all know that it has to be there. Some of them understand why, and some do not, but they all understand that their happiness, the beauty of their city, the tenderness of their friendships, the health of their children, the wisdom of their scholars, the skill of their makers, even the abundance of their harvest and the kindly weathers of their skies, depend wholly on this child’s abominable misery.”

In this story, most of the citizenry has made its peace with the deal. But occasionally someone can no longer stomach it and they walk away.

Or course back in courtroom 602, the assistant DA was working the case she’d been assigned and it was her duty to get a conviction. The problem was that the case revolved around two unpopular charges: impaired driving and intoxication. It would be decided on blood alcohol readings, and the concept that if the defendant seemed impaired even without testing over the BAC threshold she was still guilty. Multiple iterations of questions came from the ADA:

  • If she was under the legal limit and still shown to be impaired, could you convict?
  • If she tested over the limit but seemed OK, could you convict?

This is where is got juicy. Asking individual jurors their experience and opinions concerning drinking and driving, they expressed a wide variation. One Chinese woman was in an accident with a drunk driver and thought anyone who drank a sip and drove was in the wrong. She was excused. A guy remembered how in the 80s when it came to driving with an open container, “everyone was doin’ it.” He was excused. Of the three who had been convicted for DUI or had a trial pending, two were excused. One was selected, for reasons I could not discern.

I don’t think the defendant had a drinking problem. Our society does. Look at any NFL game on television and what do you see in the commercials? Cars. Beer. Gas. Car insurance.  Here’s an edited list of 2012 Super Bowl Advertisers:

As soon as you have a bar or restaurant with a parking lot, you have the makings of the problem. Walk in and a friendly server asks, “What’ll you have?” or “What can I get ya?” then it’s  “Would you like another?”  “Can I bring another round here?”

As with all restaurants, alcohol is far more profitable than food, as outlined here: “We pay $25 for a bottle of booze and sell it for $100,” McDonald said. (Beer and wine have slightly lower markups.) “Many people who start out in the restaurant business end up owning bars or in real estate.”

We see ads for cars, gas, insurance and alcohol. We drive to a restaurant, park a few feet away and consume alcoholic beverages. Then it’s our friendly server telling us “OK, thanks for coming in. You drive safe now.” And you are playing CHP Lotto now. If many of us have been in this situation, would we convict someone else for the same thing? Therein lies the rub.

The defendant enjoys a jury system trial by her peers. But in cases like this, do we deviate and inject our own perspective? Do Judges do this? The thing is, the system works when jurors follow the letter of the law and allow the lawmaking to the experts. As long as the experts make good laws.

But what is a good law? I think it’s a profound question. At what point do we interpret and bend the law based on our values, or can we put them aside to fulfill our role as a juror who hears testimony and applies it to the statute as it is written? Surely if we can put aside the written law and vote solely per our value set, we have a sort of judicial anarchy. But if we only go off the written word, do we not at some point become instruments of persecution?

“If there were a law making possession of tomatoes illegal, and I proved beyond reasonable doubt that the defendant had tomatoes, would you have any problem finding her guilty?”

I thought to myself what if the ADA had replaced the word “tomatoes” with “Jews” for example? Obviously a Jew is not a tomato but still . . . in Nazi Germany it was illegal to harbor Jews. If a citizen did so, it was at the peril of his own life. Oskar Schindler was one such person who sheltered hundreds for reasons of personal profitability as well as conscience. We revere his memory and courage. I wanted to ask the ADA if she would have the same question about Jews.

I think all judges up through the Supreme Court must inject their personal values into their rulings, that’s why it’s so important who gets named. Do they read the law and decide with no feelings, or do they decide with their feelings and find law to wrap their decisions in?

Judge Vaughn Walker has famously ruled Proposition 8 to be unconstitutional. He is himself a gay man. He was asked whether this affected his decision, and he responded “If you thought a judge’s sexuality, ethnicity, national origin (or) gender would prevent the judge from handling a case, that’s a very slippery slope, I don’t think it’s relevant,” he said.

Legislators, police officers, defendants, attorneys, judge and jury: we are all human. (Some would argue this for attorneys). We create a system, a code of behavior and a process for trying those accused of breaking the laws. Between the written law, testimony and the jury deliberation, so much can go awry. It’s fraught with fallacy, vulnerability and inconsistency, so much so that I am reminded of Churchill’s pronouncement on democracy itself:

“Many forms of Government have been tried and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.”

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