In the Jury Box (Gwen Moritz Editor’s Note)

I once was seated in the dentist’s chair flipping from channel to channel on the TV mounted high on the wall to distract me from what was about to happen in my mouth when I discovered “Marathon Man” on one of the classic movie channels. Yes, it was the scene in which sadistic dentist Laurence Olivier was torturing Dustin Hoffman by drilling into his tooth.

In the same sort of bizarre coincidence, a couple of weeks ago I was called for jury duty for the first time in my life only to find myself being subjected to especially close voir dire in a defamation case filed against the Arkansas Democrat-Gazette. Pulaski County Circuit Judge Tim Fox was not willing to strike me after I said I believed I could be impartial, and I believe I could have been. On the one hand, the Democrat-Gazette is my competitor; on the other hand, no one on that jury panel would be more familiar with media law or better able to understand how a news story is crafted.

One side or the other — I’m not sure which — struck me from the jury, which was just as well because Fox dismissed the case after the plaintiff, Dr. Lee Charles Nayles, presented insufficient evidence of defamation. The jury never even got to deliberate.

Serving on a jury remains on my bucket list, although I think I might have a better chance of being selected for a criminal jury than for the civil cases that are all Fox hears in the 6th Division. But if I had been in the Garland County jury pool for the case of Circuit Judge Wade Naramore, I probably would have said that I didn’t think I would be a good juror because I was already 100 percent sure that Naramore’s forgetting that his son was in his car seat was not a criminal act.

I don’t want to dwell too much on the Naramore case, but the social media reaction to the boy’s death, the misdemeanor charge of negligent homicide and the judge’s ultimate acquittal laid bare for me an overwhelming ignorance of basic legal concepts. “Man on the street” interviews in Hot Springs suggested that many people believed that someone who was not a high-powered judge would have been arrested on the spot when that is demonstrably not true. Even a decade ago, when the phenomenon of hot-car deaths was not as well understood as it has become, fewer than half of responsible parties were charged with crimes. (I have not been able to find newer data.)

But instead of taking the opportunity to educate the public on the nature of these tragic accidents and on the typical response by the judicial system, special prosecutor Scott Ellington charged Naramore with a crime. The woman who served as jury foreman told KARK-TV that Naramore’s position as judge seemed to work against him. “I think that if anything there was such an effort to not give him special treatment that it was maybe skewed the other way,” she said.

Intent matters in criminal law, even if the person being investigated is Hillary Clinton. Intent is why drunk driving is a crime even if the driver miraculously avoids causing a wreck, while unimpaired drivers can cause accidents — even fatal accidents — and not be charged with crimes. It’s why a landlord’s failure to install smoke detectors is a crime, but the person who causes the apartment fire by accidentally leaving a pan on the hot stove is not a criminal. The driver who causes an accident or the forgetful cook can certainly face civil liability, but it seemed to me that remarkably few people who commented with vast confidence on the Naramore case even understood that one can be responsible when something goes wrong without being a criminal.

And even making an unintentional mistake may not rise to the level of civil punishment. The Democrat-Gazette printed a factual error about Dr. Nayles, but his case was dismissed. The Gawker website knowingly and deliberately published a private video of Hulk Hogan in an (ahem) intimate setting, and it was hit with a civil judgment that was essentially a death sentence for the business. Intent can matter even in civil law.

It seems to me that the American public is as woefully ignorant on the difference between criminal and civil law as it is on personal finance. Even those of us who aren’t attorneys need to understand the basics of the legal system just as those of us who aren’t financial professionals need to understand the basics of home economics. Since any of us may someday need an impartial jury — civil or criminal — filling that educational void should be a priority.

Gwen Moritz is editor of Arkansas Business. Email her at GMoritz@ABPG.com.