We put a lot of trust in juries. We pluck every day people, with varying backgrounds and varying life experiences and education levels and skills and throw them into a courtroom where were bombard them with “evidence” and legal arguments and ask them to sift through it all and determine the “truth”, all without giving them any training or a dry run.
And then we trust in their decision, no matter how absurd or inconsistent or strange it is. And that trust – that finality – in their decision is revered, put on a pedestal and those that dare to approach it or question it are roughed up at the pointy end of a bayonet.
But sometimes things happen that made you think: do they really know what they’re doing? Are their decisions really worthy of this level of reverence? (Spoiler: the answer is yes and no.)
As I’ve said before, I’d love to know what a jury is thinking while they’re deliberating and even after they’ve deliberated. I want to have a dialogue with them, to explain why they were wrong or see what I didn’t see. But we never get that chance. We never know if the jurors went home secure in their decision, or if they had a doubt but weren’t sure if it was a reasonable doubt, because who the hell knows what that means. Given the chance, would they undo what they did?
A jury in Los Angeles seemed to want to do just that, yesterday. In an absolutely remarkable turn of events in the “Bell 6” trial (they’re city council members on trial for embezzling or some nonsense; that’s not important). They’d been charged with several counts and as best as I can understand it, the jury reached verdicts on some of those charges on Wednesday. There were some guilty verdicts and some not guilty.
Then came Thursday. And with Thursday – and the resumption of deliberations – came this note from a juror:
“Your honor after you asked us yesterday to go back into the deliberation room, I had time to think until now,” the note began.
“I have been debating in my own mind that due to the pressure and stress of the deliberation process, the jury may have given an improper verdict of guilty on the Solid Waste Authority,” the juror wrote to Superior Court Judge Kathleen Kennedy. “It is better to be certain beyond a reasonable doubt to give a verdict of guilty than send someone innocent to prosecution. If possible, I request to remain anonymous.”
That’s absolutely stunning. There are anecdotes of jurors changing their mind when they’re polled during the verdict (and there’s even this tale of a defense attorney polling a jury that acquitted and having a juror reverse their position), but for a juror to send a note to the judge saying he/she wanted to change their vote? I haven’t heard of anything like it.
But wait, there’s more:
It was not clear if the note was from a different juror than No. 7, who sent a similar note on Wednesday. Defense attorney Alex Kessel asked to find out who the juror was and demanded further inquiry. “Are we dealing with multiple jurors who believe there is possible pressure going on?” he asked.
In another note, Juror No. 10 said that she believes the jury is “getting away from your instructions” and possibly misunderstanding a law on “several levels.” Defense attorney Stanley Friedman, who represents Hernandez, said the comments raised the possibility of jury misconduct.
The defense attorneys, of course, wanted to question the jurors, but Judge Kathleen Kennedy refused the request. Because of that finality thing and the verdicts were in and recorded. She did grant, however, that “It seems all hell has broken loose in the jury deliberation room.” No prizes for understatement of the day. (See also.)
Yes, this certainly gives fertile grounds for appeal, but isn’t it just a bit damn unfair to let these verdicts stand when at least one juror has explicitly said that they are unsure that they rendered the right verdict?
Isn’t that, in essence, doubt? Yet here we have this arbitrary cut-off that since the verdict has been accepted, it’s out of the trial judge’s hands? What’s the difference between investigating now and waiting for a motion for new trial 3 months down the road? When time has passed, wouldn’t it be less shocking and troubling to the juror?
This also highlights the fact that as practicing lawyers, we need to make things as simple and clear to the jury as possible. More than that, taking a page from capital defense work, we need to arm jurors to stand their ground and make them realize that their vote is an individual vote and that they can and should remain firm and, most importantly, that hung juries are a legal verdict and an acceptable outcome in a case.
The alternative is this:
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