In a mixed metaphor of law, Gideon at  A Public Defender picks up a piece by  David Feige of Bronx Defenders about a juror speaking out after a trial conviction.  According to the Staten Island Advance, a teenager was convicted of gang assault because at least half the jury misunderstood the court’s charge.

The newspaper story includes this bizarre paragraph:

Note-taking by jurors is at the discretion of a trial judge, and like many of his colleagues, [Judge] Collini doesn’t allow it. He asks jurors to rely on their observations of witnesses and their recollection of testimony.

It’s not strange because of its content, but because it has nothing whatsoever to do with the problem encountered by the jury.  The juror claims that they didn’t understand the judge’s instructions.  It seems that they were quite clear that they didn’t think the defendant personally stabbed the victim.

The portion of the charge that confused the jury, which was repeated by the court at their request, strikes me as being pretty straight forward. 

Justice Robert J. Collini had instructed jurors to find Cammarano, 18, guilty of gang assault only if they determined he had stabbed 14-year-old Richard Orloski. (Emphasis added)

There are many aspects of the standard jury charge that have long seemed to render the legal fiction, that jurors understand and do what they are told, a farce.  After all, if lawyers can’t agree on what the charge on “beyond a reasonable doubt” means, how should jurors be able to do so?  But this portion seems clear and straightforward.

The strange twist in the Advance story is that the error is blamed on the judge’s decision not to permit the jurors to take notes during trial.  This is the aspect that Gideon picks up on.

With so much at stake, wouldn’t the interests of justice be best served by the jury accurately remembering the testimony? Memories are faulty, so shouldn’t we aid in their recollection by at least permitting them to take notes? What is this resistance to taking notes?

That’s one way to look at it.  On the other hand, “with so much at stake,” shouldn’t the jurors be paying close attention to the testimony and demeanor of the witnesses?  If they are busy writing, they are not listening or watching the witness. 

We put 12 people on the jury because we want 12 individuals to concur before a conviction.  If one juror takes notes of a critical statement and others don’t, that witness and his notes could become dispositive in the jury room.  He becomes a “super juror” and the others defer because he has the notes.  What if his notes are inaccurate.  Not everybody takes perfect notes.  And it is highly unlikely that notes reflect verbatim testimony.  More likely, they reflect impressions of what happened, not what actually happened.

There is always an aid for imperfect recollections in a trial.  It’s called the transcript, taken by the court reporter, and can be read back to the jury at any time, and as many times, as needed.  The jury never has to guess at what was said.

There is something special about putting words to paper, memorializing them in a way that makes them more “official”.  Just like people believe whatever appears in a newspaper, no matter how wrong or silly, they believe what’s in writing for no better reason than it is.  It could be dead wrong, but if it’s in writing, you can’t argue with it.  The judges who allow note-taking instruct the jurors not to simply accept another juror’s notes as being dispositive of what happened, but we already know that instructions don’t have their intended effect.

I’m not as big a fan of jury note-taking as Gideon.  I want them listening and paying attention, not looking at their notepad scribbling away.  It’s hard enough for a juror to digest what’s happening in front of him in real time when they are paying close attention.  When their attention is diverted, I fear that they will miss too much. 

Not that this has anything at all to do with the erroneous conviction of a Staten Island teenager for gang assault.