We, The Jury, Are Confused

Among the many great fictions of the legal system is that juries follow instructions.  In fairness, it can work to either side’s advantage, based on the circumstances.  An inadvertent instruction can serve as the basis for reversal, even though no one on the jury could possibly have had a clue what the judge was talking about.  The very notion that a jury can follow all that legal mumbo jumbo has always been absurd, but lacking an alternative way to tell the jury what the law is, we persist in the fiction.

But every once in a while, a jury returns with a verdict that shows just how ridiculous the whole concept can be, and that happened in Stamford, Connecticut manslaughter trial of Robert Bell:

During the trial, Bell testified that his 47-year-old wife, who had a history of emotional problems, was in an agitated state and advancing toward him waving 6-inch boning knife when he shot and killed her in the kitchen of their Hilltop Drive home.

The couple’s daughter, Elizabeth, 18, backed up her father’s version of the events in her testimony.

The prosecution contended that there were alternatives to Bell killing his wife. The case went to the jury, where issues quickly arose.

Before jurors began deliberating, the judge summoned jury forewoman Bayer, to the courtroom after receiving a note from the jury foreman Tuesday morning.

In the note, Bayer said an unidentified juror, had made a statement prior to the break indicating she would refuse to deliberate “unless she gets her outcome,” and “said (she) doesn’t care what she has to do to get it.”

The judge, Robin Pavia, “defused the potential crisis.”

[S]he reminded them deliberations were a “group process” requiring “everyone to participate and be respectful of each other’s opinions.”

After all, when a judge tells you to “participate” and “be respectful,” that changes everything.  And after two more hours, the verdict was in:

Just after 12:35 p.m. Tuesday, jury forewoman Jody Bayer announced they had found the 64-year-old defendant guilty of first-degree manslaughter for killing Svetlana Bell at their New Fairfield home.

Guilty! But then came the poll.

While jurors were being individually polled, one asked a question about the process of delivering a verdict in a case where the killing itself was never in dispute and the defense was based on a claim of self-defense. It soon became clear that the jurors were uncertain if they had made a mistake.

It seems that the jury never quite got the idea of how they were to render a verdict where the defense was self-defense. They were under the impression that they had to first find the defendant guilty of manslaughter, and only afterward, find him not guilty based on self defense.

They returned 10 minutes later, about an hour after their guilty finding, and pronounced Bell not guilty.  The question asked by a juror during the polling

made it apparent they were still confused by the judge’s instructions that they first had to determine whether the prosecution had proved all elements of the alleged crime beyond a reasonable doubt before deciding on the self-defense claim.

While this could all be chalked up to “all’s well that ends well,” provided one doesn’t consider the effect of the single word verdict on the defendant’s heart, had defense counsel, John Gulash, not asked for the jury to be polled, or had the juror who was bold enough to ask a question in the midst of polling, not done so, the verdict of guilty would have stood.

Perhaps the jurors would have milled about in the hallway afterward, wondering why nobody asked them for their second verdict, or perhaps they would have gone home assuming that the judge knew what she was doing. Who knows what might have happened?  But there is no doubt whatsoever that the initial verdict of guilty could very easily have been the only verdict, despite the verdict the jury thought it was rendering.

As a practical matter, there is never an excuse for a defense lawyer not to request that a jury be polled following a guilty verdict. It can’t get any guiltier, and there is always the outside chance that a juror will crack, have second thoughts or admit they were pressured into their verdict. It happens. Rarely, but it happens.

Yet this wasn’t a polling to unearth a soft spot in the verdict, but a fundamental flaw in the jury’s grasp of how to return a not guilty verdict.  There is no suggestion that the judge’s instructions were flawed, or failed to comport with the pattern jury instructions that all judges deliver. They just didn’t get it.  And bear in mind, this is Stamford, Connecticut, where wealthy people with fine educations sit. And they still didn’t get it.

The notion that judges can verbalize insufferably obtuse legal mumbo jumbo, and that jurors can process them in what is certainly a foreign language to normal folks, might be deemed one of the more absurd concepts of the legal system, but for the fact that people get convicted based on them.  This jury couldn’t figure out the mechanics of how to return a verdict based on the court’s instructions, and yet they sat in judgment of man charged with manslaughter based upon these instructions.

And still people argue that it’s the greatest system ever created, provided one squints and ignores the inconvenient fictions like jury instructions.

H/T Gary Hochman

22 thoughts on “We, The Jury, Are Confused

  1. william doriss

    Before I read this, let me just say, “Stanford” is in Caulifornia somewhere. StaMford is in Con-Necticut, my home state. Stamford is also one of my “home” towns. Been there, done that. We sought political asylum on Cape Cod. Ha. So far, so good.

  2. Bruce Coulson

    We have professional attorneys, district attorneys, judges, bailiffs… in fact, most of the people in a courtroom are professionals in their field (or at least are presumed to be) except for those alledged to be involved or witnesses to the events… and the jury, which is comprised of well-meaning people who have little to no encounters with the legal system prior to their selection.

    And yet, the idea of a ‘professional jury’; a system where a potential juror has received training in the law; is considered anathaema to many, including many of those professionals.

    The current system is hardly perfect; and yet it seems to be the system many want to keep unchanged, warts and all.

    1. SHG Post author

      You indulge a logical fallacy of false alternatives. Just because A is bad does not mean B is better. That the system resists change is true, and likely for the best in some respects as many people suffer the same terribly mistaken logical fallacy as you, and we would end up trading one bad practice for another.

  3. Alex Stalker

    I once spoke with a juror after a guilty verdict in my case who told me that “[the jury] wasn’t sure if my client committed the crime or not, but guessed that he probably did, so they voted to convict.” It’s kind of amazing how easily 12 people can completely ignore everything you tell them regarding reasonable doubt because “you are just arguing for your client.” It’s moments like those that really make you want to scream.

    Ever since then, I’ve assumed the jury has the understanding of a 10 year old when trying to explain what instructions mean. Not that it necessarily helps.

    1. Drew

      You’re just arguing for your client? What? And the prosecutor isn’t “just arguing for” the government? I’m continually amazed at how pervasive this thought process is. Defense attorneys = hired guns, paid to say anything necessary. Prosecutors = dispassionate upholders of The Law.

  4. Charlesmorrison

    This story is nothing short of terrifying. It’s one thing for jurors to not comprehend the written jury instructions in total. That certainly isn’t anything surprising. But, you know both the state and the defense had to hammer on the critical issue, the only contested issue-did he prove up self defense? Perhaps confusing verdict forms and not so much the actual instructions are to blame? To much writing in between the blank spots?

    As far as the larger, systemic problem you speak of, maybe if judges would do more than tersely write back “you have all the law you need, follow the instructions” and take more interest in whether juries comprehend what they are supposed to decide, we’d have slightly less confused juries running around.

    1. SHG Post author

      One problem that has proven thus far insurmountable is that the pattern instructions are so replete with jargon and meaningless phrases that it’s nearly indecipherable. Lawyers are used to the language, so it too often rolls off our back without realizing how little concrete meaning there is in most of the instructions.

      But efforts to reform them invariably prove to be a disaster as well, as each side fights for whatever subtlety gives it the edge. So we end up with the new but similarly indecipherable gibberish. And nobody, but nobody, has ever come up with a viable instruction on the most basic charge, beyond a reasonable doubt. They all suck.

      1. Charlesmorrison

        Your point re: BRD is most poignant, considering how fundamental that is to our system. Perhaps less is more when it comes to the BRD instruction? Are there too many qualifiers on both sides of the divide such that it’s more difficult to understand above and beyond: if you have some doubt, and it’s reasonable, the state failed to meet its burden? The existing instructions do undoubtedly suck (I’ll even suppose in every jurisdiction). But short of providing almost no explanation at all, what is a plausible, more attractive alternative way to explain such an alien concept to jurors?

        1. SHG Post author

          So if BRD need only include a doubt that is reasonable, do you have to give a reason for it? What if you can’t articulate a reason, does that make it unreasonable? It’s never easy, and whether simple or complex, it has to be capable of being communicated clearly to every person on that jury, no matter what.

          It’s not easy. I was on a committee some years ago to create a new instruction for BRD. We couldn’t do it.

          1. Charlesmorrison

            Your last sentence speaks loudest. If you, and presumably other similarly situated (qualified?) folks couldn’t articulate a standard, then perhaps the concept is undefinable, period. So the more we try to define it, the more we confuse jurors?

            1. SHG Post author

              I have no answer. The objective is to make a charge that’s accurate and comprehensible at a 5th grade language level. I’m unaware of that ever having been accomplished.

          2. william doriss

            As a student of philosophy, may I suggest that RD is an amorphous concept, perhaps a veritable oxymoron–and deliberately so. One man’s Reasonable Doubt is another man’s snout, shall we say? In which case, the judge is permitted to tip her hand and tell the jury more or less (exactly?) which results she wants the jury to return to the courtroom. If not thru words, then thru “body language” and demeanor. Come to think, perhaps that is why the judge’s body is covered completely with a black robe: to reduce the introduction of body language into the process. It is still a Kabuki dance where all the players get paid, except the Defendant. Either that or officious “sausage making” of the highest order.

      2. noah

        Terrifying is the word. I could not imagine. So is this a reason to start explaining the verdict sheet in closing? I sort of thought that when defense lawyers held up the verdict sheet it was useless theatrics, but, considering this story, maybe not.

        1. SHG Post author

          The problem there is while it might be necessary (provided the judge doesn’t cut you off at the knees for doing her job), it rarely comes off well. It seems like theatrics and juries tend to find the lawyer condescending and pompous. Of course, the alternative is they screw it up.

  5. PaulaMarie Susi

    That’s one of the reasons we always poll the jury after a verdict has been rendered, whether or not counsel makes the request.

    1. SHG Post author

      Some judges (and their staff) are more concerned about such things than others. And still, it’s inexcusable for counsel not to make the request.

  6. Mad Jack

    Look. The average man, which is what sits in the jury box, is not all that bright. In point of fact, the average man is doing good to find his way home every night. You think I’m just blowing smoke; I’m not. Watch prime time TV sitcoms, listen to the TV news and watch the commercials. Ask yourself just who it is that watches this crap and what their level of education must be. That woman who takes Oprah and Jerry Springer seriously is sitting in the jury box, right next to the man who believes Law and Order is based on real life, but they can’t say that because they’ll get sued. Hey, gimme anudder cole one, huh?

    Not one of you can stand in front of the jury box, point to the defendant and say, “This guy thinks this no good fish wife killed her husband, and that’s against the law. This other guy thinks she killed (kilt?) him, but the old man was beating her so it’s okay she shot him. You guys decide if it’s okay or not.” Because at the end of the day, that’s really what the jury is deciding. Instead, you have to talk about logical fallacies, hearsay, objections and all that other stuff. Nobody can get to the point.

    Now me, I’d find her not guilty and send her home. Hey, he shouldn’t have laid a hand on her, right? So she had to reload a time or two – so what?

  7. Donald

    This kind of stuff drives me insane. Between the people who are too dim to comprehend what’s going on, the sheltered idiots that harbor illusions about police and prosecutors being in any way shape or form trustworthy, and the boneheaded white people that just love to go along with whatever the “authorities” tell them, it’s no wonder justice is a dead concept in the united states.

  8. bacchys

    The jury system is the worst way to determine guilt or innocence…except for every other way we’ve come up with so far.

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