Anne Reed, who doesn’t post nearly enough anymore, has a fascinating post at Deliberations coming out of the California Court of Appeals opinion in People v. Carrasco.   Like New York, California requires a unanimous jury verdict in criminal cases.  After the verdict is returned and read aloud in the courtroom, the judge will ask whether the defense (if it’s a guilty verdict) would like the jury polled.  Each juror will be asked individually whether that is his or her verdict, and each must respond.

While jurors hate this, as it takes the onus off the group and places it on them personally, they stand and affirm that the verdict is indeed theirs.  Usually.  Almost all the time.  But not in Carrasco.

The Court:  “Juror No. 2, is this your verdict?”

Juror No. 2:  [no response]

The Court (maybe looking up sharply, perhaps a little louder):  “Juror No. 2, is this your verdict?”

Juror No. 2:  [after a pause] “Yes.”  And she starts to cry.

This doesn’t happen often.  It’s never happened to me.  But it’s one of the million things for which we must prepare.  Should it happen, there’s about a half second to be prepared to deal with it, and dealing with it properly could mean the difference between prison and freedom.

Anne provides the transcript of what happened next, and it’s worth your time to read Anne’s post.  The court engaged in cross-examination of the juror, in camera, in an effort to understand why she began to cry.  Eventually, this happened:

“THE COURT: Go ahead and explain to me that — nobody will know about, the other jurors won’t know about our discussion here — but I want to know what went on in the jury room that made you come up with a guilty verdict when you’re now indicating that was not really your desire or intent.

“JUROR NO. 2: I had reasonable doubt.

But the judge didn’t stop there.  Instead, he went on to question why, despite this reasonable doubt, she voted with the majority.  As Anne points out, had inquiry stopped the moment the juror stated she had a reasonable doubt, there would be no unanimous verdict.

After further inquiry, the judge ascertained that the juror was more concerned that the offense was a felony, and the juror didn’t realize that she was convicting the defendant of a felony.  Of course, the judge pushed the juror to reach this conclusion, just as the other jurors pushed the juror to agree to a verdict of guilty.  A malleable juror is even more malleable under the scrutiny of a judge.  And you wonder how people get pushed into false confessions.

This story opens the door to one of the most troubling aspects of the jury system and our expectation that a verdict of guilty will not be reached until a unanimous jury agrees that guilt is proven beyond a reasonable doubt. 

When the juror said that she had a reasonable doubt, that should have been sufficient to undermine the verdict.  That the judge was able to rehabilitate her comes as no surprise.  Judges carry a lot of weight in a courtroom.  But the means he used to do so is what raises hackles.  The judge sought a reason.  The judge was not willing to let go until juror no. 2 explained why she had reasonable doubt.

Explaining one’s belief is the gaping hole in the criminal jury system.  While the jury is instructed that proof beyond a reasonable doubt is not proof to a mathematical certainty, they are never told exactly what it is.  Indeed, no one has even, to my knowledge, figured out what exactly it means.

But it is clear that there is one thing it does not mean.  It does not mean that a juror who does not believe that the prosecution has met its burden has to provide an articulable explanation for that belief.  A reasonable doubt does not require the expression of a reason.  A juror who does not believe that a person should be found guilty does not have to explain themselves, either to the other jurors or to the judge.  Or to anyone else, for that matter. 

The California Court of Appeals affirmed Carrasco’s conviction in a 2-1 decision.

Carrasco’s lawyer hadn’t objected to the judicial cross-examination, and he didn’t argue on appeal that the verdict wasn’t unanimous.  Instead, the argument was that the judge should have granted defense counsel’s request to contact Juror No. 2.  The appellate court upheld the trial judge 2-1, saying there was “no showing” of juror misconduct, and that defense counsel should have “proposed an additional line of inquiry” to the trial judge, even though she’d been shut down when she asked to inquire herself.

Only in the dissent do you find the words you’re looking for here:  “I think that at this point the juror had made it adequately clear that she did not intend to find the defendant guilty.”  Defense counsel didn’t need to object, said the dissenting judge; although no California case has yet dealt with the issue, “there is every indication, in my opinion, that a less than unanimous verdict is reversible error per se.”

As soon as courts look behind the reasoning of the jury, the burden of proof changes.  People may not be able to explain their beliefs adequately, and are likely to say the wrong thing to justify their feelings in a rational way.  It doesn’t matter why a juror believes that she has reasonable doubt, anymore than we can demand an explanation from jurors as to why they belief that the evidence proves guilt beyond it.  Once lawfully instructed, they can do as they please, including nullification should that be their decision.

Defense counsel in Carrasco was clearly (and admittedly) unprepared to handle what happened.  But she got to go home after the verdict, unlike Ernest Carrasco.