When You’re Ahead, Shut Up

From Anne Reed, jury “thought leader” extraordinaire and voodoo high priestess, comes a story of such abject stupidity that it can’t go unnoticed.  From the Whidbey News Times (yes, that Whidbey),


A run-of-the-mill trial turned into something unusual Monday morning. Sylvester rushed to court at about 11 a.m. after the 12-member jury reported that they had reached a verdict. She was crying and visibly shaking as she waited for the jury to file in with their decision.

Finally, Judge Alan Hancock read the verdict: “not guilty.” Sylvester and her supporters in the audience cried tears of joy, but the relief was short lived.

Hancock polled the jury, as Sylvester’s attorney Charles Hamilton had requested. The confusion started immediately when the first juror said she did not agree with the verdict.

In the ordinary course of affairs, the defense lawyer will request that the judge poll the jury following the verdict.  That’s because, in the ordinary course of affairs, the verdict is guilty.  By polling the jury, with your eyes firmly fixed on those of each juror, staring intently and transmitting your telepathic message to speak out, tell the court that you don’t agree with the verdict, let the world know that the verdict is wrong, you give the defendant one final chance to break free of the conviction.  No, it doesn’t work very often, but hope springs eternal.

But here, the verdict was “not guilty.”  That’s “not guilty,” as in case closed, defense wins, everybody gets to go home and celebrate.  Not . . . frigging . . . guilty.

Dear Mr. Hamilton, were you not listening?  Was someone distracting you at the very moment the forewoman uttered the word “not”?  Did you suffer a sudden brain fart, fearful of missing your one chance to get the jury to change its mind, and make the knee-jerk request to poll the jury.  What were you thinking?

I’ve got to believe that Hamilton realized the error of his request within seconds.  Even as the judge inquired, Hamilton thought to himself, “oh my God, what have I done?”  I must believe this because the alternative, that he knew full well that he had achieved an acquittal and nonetheless sought to have the jury polled is, in the scheme of being a trial lawyer, the stupidest thing one could do.  No folks, it doesn’t get any dumber than this.

Lest I point out the obvious without closure, after the forewoman admitted her discomfort with the verdict, the jury went back to deliberations and ultimately convicted the defendant of the lowest count.  Yes, Hamilton seized defeat from the jaws of victory.

Afterward, Charles Hamilton had this to say:


“The jury consistently have misunderstood the necessity of a unanimous verdict,” Hamilton said in court, clearly frustrated.
It appears that stupidity reached epidemic proportions in that courtroom.  Hamilton didn’t publicly admit that his client was convicted because her lawyer was a bonehead, He should have.

16 comments on “When You’re Ahead, Shut Up

  1. John Kindley

    Here in Indiana, or at least in St. Joseph County, the judge will ask the lawyers whether they want the jury polled BEFORE the verdict is read. I’m wondering if that’s how they did things in this case, and the defense attorney didn’t think to change his mind after the “not guilty” verdict was read, rather than that he actually asked to have the jury polled after the verdict was read. Here, a typical defense attorney response to the judge’s question is to request that the jury be polled only if the verdict is guilty.

  2. SHG

    One might hope that some smart, independent lawyer in St. Joseph County, Indiana, would figure out that the correct answer to the question, do you want the jury polled, before the verdict is read is: “I couldn’t possibly tell you yet, Your Honor, since I don’t know what the verdict is.  But thank you for asking.”

  3. John Kindley

    Do you think your proposed response is better than what I said was a typical response here from the defense attorney, namely, to ask that the jury be polled only if the verdict is guilty? Howso? I’m learning here.

  4. SHG

    Effectively, probably not, but I’m perpetually troubled by local practices that are facially improper.  The gist of my way of responding is to say to the judge, I will not allow myself to be asked to make a decision until there is a decision to be made.  It reminds me of the judge who, prior to the initial instructions to the jury, asks defense counsel for the names of his witnesses.  I always inform the judge that I have no witnesses, and could not possibly have witnesses, since there is no case against the defendant as yet and no reason to even consider calling a witness until such time as there’s a case to defend.

  5. SHG

    An excellent question. It occurred to me, but without research I don’t know the answer.  Once the magic words are spoken, can they be unspoken?  There’s a huge difference between the word guilty, since double jeopardy doesn’t preclude a change to not guilty, but should preclude the opposite. 

    Anybody know the answer?

  6. John Kindley

    Very interesting point with respect to witnesses. There is indeed here locally an expectation per the local rules that the defense disclose, to the prosecution, witnesses it expects to call at trial. I’ll have to look at that a little closer prior to my next trial.

  7. SHG

    There’s quite a bit wrong wrapped up in this fairly common practice.  Sounds like something I ought to post about.

  8. Turk

    I have to assume that the verdict isn’t the verdict until the jury is polled and discharged. At least that is the law in civil cases here in New York.

    In May the NY Court of Appeals tossed a verdict due to a failure to poll the jury despite a request.

    I wrote about it here and the decision has some pretty impressive language that I have to assume would carry over to criminal cases.

  9. SHG

    Well, the language of Lippman’s decision certainly appears to cover the situation, including criminal cases. 

  10. Turk

    I agree that this likely covers it. But there was also a dissent, and I leave it to the crim law crowd do see if there is any wiggle room to differentiate civil from crim juries in this regard.

  11. SHG

    I don’t see anything in Smith’s dissent that changes the calculus for a criminal case, and it seems that Lippmann’s language, about a  verdict not being “perfected” until the poll is done, would suggest that the incantation of “not guilty” doesn’t carry the full force of its meaning until perfected, the poll concluded.

    But that’s not to say that the court couldn’t, or wouldn’t, distinguish between the finality of the words “not guilty” in a criminal case specifically because of the constitutional prohibition against double jeopardy.  It doesn’t seem to say so, but there is a valid argument to be made to distinguish civil from criminal verdicts.  Very interesting stuff, Turk.  Thanks.

  12. Jeff Gamso

    Not quite identical, but close. US v. Love, 597 F.2d 81 (6th Cir. 1979). Jury came back, said not guilty, judge decided on his own to poll the jury and one juror said he thought Love was guilty. Retrial on that count affirmed over double jeopardy objection.

  13. Anne Reed

    1. Great post. 2. “Thought leader” — thank you. 3. “Voodoo high priestess” — for heaven’s sake, Scott, somebody might Google me someday and you know you’ll come up first. Honestly. 4. Great post.

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