Are you sure?



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:


Image via. License details there.


6 thoughts on “Are you sure?

  1. Max Kennerly

    If not at the moment the verdict is delivered, then when do we draw the line? There are a million reasons why a juror would later claim doubt about their own verdict, ranging from genuine reflection, to guilt over the consequences imposed by law, to outright bribery.

    1. Gideon Post author

      When they’re still deliberating? That’s when you draw the line, in my opinion.

      (Upon further review, I meant to say that in my post; I see that I neglected to. Mea culpa.)

      1. Max Kennerly

        10-4. That’s where I’d draw it, too. I guess for me the big SNAFU here is allowing partial verdicts to be read. To me, a jury is either deliberating or they’ve rendered a verdict. Allowing a partial verdict is just an invitation for this sort of second guessing.

  2. Jersey Mark

    Maybe I sound like a bit of a conspiracy-theory nut, but with jury trial often seeming more like theatrics and showmanship between attorneys, with voir dire sometimes being more important than the trial itself, especially when there’s a confession (shouldn’t there be outreach to teach of the dangers of dispensing with Miranda warnings? The average Joe doesn’t get the legal ramifications of opening their mouth; perhaps an attorney consult should be required before interrogation…) and with regular folks unaware of how common false confessions and unreliable eyewitnesses are; juries who are swayed by emotion or by police authority or prejudice, often unconsciously, or who do their own “research” because they think that the judge is “hiding things from them”, prosecution-biased judges excluding important defense witnesses through Daubert hearings and undermining entire defenses, sometimes it seems, especially to an overzealously prosecuted and overcharged defendant who is facing plenty of jail time, that the outcome of any trial can be random at best, and that with so many vague laws out there, where one lawyer has written “Three Felonies a Day” – referring to the number of crimes he estimates the average American now unwittingly commits – a prosecutor can always find a charge to fit.

    Maybe I’m being too cynical, or I’ve been reading more and more stories of police faced with quotas fabricating arrests and searching without cause, defendants being released due to false, forced confessions; pleas of guilty because bail cannot be made, trials turned into a sham because of political pressure to (over)prosecute or a witch-hunt to make an example of whatever crime fits the ‘hot button’ crime of the day, whether it be gun-law-violation-reacting-to-the-latest-shooting one day, drunk-driving-omg-we-have-to-nail-em the next, sex-offender-think-of-the-children-hysteria the next, eyewitnesses recanting their testimony, forensic evidence contaminated over-and-over, etc.

    I think that the U.S. justice system has abandoned Blackstone’s formula of “It is better that ten guilty persons escape than that one innocent suffer,” and just views unjust and unlawful police practices and prosecution and the convictions they result in as “collateral damage.” The pendulum has swung from the Supreme Court being a protector of freedom, privacy, and defendant rights in the 1960s, to slowly but steadily pulling back on those decisions (with the exception of the 2nd Amendment) today.

    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.

    I’ve been reading a little bit about the inquisitorial system in place in civil law (as opposed to common-law) countries, for example in France, where for serious cases professional judges guide juries during deliberations. Is that a fix?

    Maybe the states should start experimenting in minor cases. I know in New Jersey (unlike Connecticut) a jury is not Constitutionally required for misdemeanors, we call them “disorderly persons offenses” but since they are “summary offenses” and carry a maximum of 180-days-imprisonment. See Lewis v. United States, 518 U.S. 322 (1996). Hence a municipal judge, politically beholden to the mayor or town council, acts as the finder-of-fact in the cases that affect most everyday citizens – this results in a >90% conviction rate and a steady revenue stream for the municipalities.

    So maybe so-called “professional judges” are not the answer. But looking at the rate of incarceration in the U.S., our system is broken, and it’s time to try some fresh ideas.

    1. Nick

      I’d much rather have random than a bunch of ex-DA judges elected on a tough on crime platform doing the judging. Heck, even the liberal judges get pretty cynical.
      In California, the defense can waive jury. It doesn’t happen with very few exceptions for a reason.

  3. Andrea Dawn

    I’ve been a PD for about 8 years and I have heard some very troubling things from jury members in a few cases. In one case, a death penalty case, an older female juror told lead counsel that the one thing she really noticed was the crease marks on the back of her pants from being laid over a hanger. The worst though is the jurors in a first-degree murder trial. A friend of mine (someone I always believed to be a strong, open-minded and intelligent woman) was the foreperson. The jury took an initial vote. 5 NG, 5 third degree reckless homicide, and 2 first degree. They discussed the case a little more and the votes were the same. Then the foreperson said that she had foster dogs to take out and care of, some other guy had a picnic, blah blah blah, and they all decided to compromise on third! Wtf?!?! 5 people wanted to acquit. It baffles me. It scares me. I don’t want to think that these things happen but they do.


Leave a Reply