Doreen Giuliano was prepared to do anything to help her son, John Giuca. And she did, according to the New York Times, Going so far as to create a false persona, with dyed hair and a buff body, so that she could go undercover to investigate juror misconduct and free her innocent son.
In an interview with Vanity Fair, she described how she befriended a juror from the trial, cooking for him, smoking “weed” with him, and ultimately getting juror Jason Allo to spill his guts about how he was dishonest during jury selection and should never have been on the panel. All the time, Giuliano recorded the interaction.
While Lloyd Epstein, Giuca’s lawyer, may yet have his hands full using Doreen’s recording, she is nonetheless hailed as a hero for going above and beyond to do everything in her power to free her son from 25 years in prison for a crime she says he didn’t commit.
Gideon posts about this story approvingly. How could anyone disapprove of the idea of exposing impropriety? You can’t. I can’t.
But that doesn’t mean that there isn’t a serious dilemma lurking beneath the surface of this story, and it’s the problem that gives rise to the difficulties in taking evidence such as this, put together at great personal effort and possible risk by Mom Doreen, and using it in court later.
The lifespan of a juror runs from voir dire to verdict. After the verdict, the judge thanks the jury warmly for performing this civic duty and sends them on their way. In rare instances, jurors may do television interviews afterward, but that’s entirely their choice. They otherwise return to their work, their home, their lives, with the trial being nothing more than a memory.
But what if jurors were stalked after the trial, by mothers or brothers or baby mamas. What about fellow gang members or conspirators? What if the stalkers weren’t inclined to ingratiate themselves, which takes time and effort, but rather the threaten or worse? Maybe just buy a post hoc juror’s “admission” of wrongdoing? Maybe a combination, for those who prefer a “fist in the velvet glove” tactic?
What makes Doreen Giuliano a hero is that in her son’s case, proof of guilt was quite poor and the target of her undercover operation ultimately admitted his wrongdoing. Her choice was vindicated by the outcome. But outcomes are risky business, and what if he hadn’t done anything wrong? Then we are left with a potentially psychopathic stalker who obsessively went after an innocent juror in her son’s case. The story in the Times would have been very different, likely ending with a picture of Doreen doing the perp walk instead of a glam “after” shot.
It would be irresponsible to argue that, in the name of policy, Doreen Giuliano should happily sacrifice her son and leave the wrongful verdict alone. As a mother, if not a human being, she has as vested an interest as one can get in achieving justice for her son, and doing whatever it takes to get there. She did, and the fact that she gained evidence of wrongdoing on Allo’s part does vindicate her decision.
But the next mother, brother, baby mama may not. They may latch on to a regular person who told no lie to remain on a jury, who did no wrong and simply believed in the verdict rendered. What happens to this person when they find out that they have been the victim of stalking by the family of the defendant? What becomes of the jury system when potential jurors consider that this is a possibility, and that they don’t want to put themselves or their families at risk of becoming the target of a defendant’s loved ones?
While some may suggest that it may be an influence in jurors favoring a not guilty verdict, just to be sure that no one comes after them later, this is not the experience that trials lawyers have in the well as jurors come forward to express their feelings on being selected. When they fear post-trial consequences, they ask to be released. They don’t want to be there, and their fear of the defendant colors their vision of the trial. They start with the presumption that the defendant is a danger, and it’s reflected later in their verdict. In other words, potentially good jurors will be lost to the pool out of fear.
Even if jurors were to lean more favorably toward a not guilty verdict out of fear, this bodes poorly for society. There’s a reason why we have laws to prevent dangerous people from doing as they please, and we want them convicted and taken off the street to protect others, including our families. We, criminal defense lawyers, want to be protected from violence, just like anyone else. We aren’t nuts, or at least we shouldn’t be.
So our praise of Doreen Giuliano’s tenacity has to be tempered by the potentially disastrous impact of others deciding that this is how hero’s do things. when the court considers what to do with her recordings, and whether they should result in Giuca’s freedom, he will most assuredly consider the impact of rewarding Doreen’s conduct on future mothers and jurors, and encouraging others to go undercover (or worse) to stalk trial jurors. While Giuliano has no reason to put the policy issues ahead of justice for her son, the judge does.
Whether the judge will be able to find a way to tiptoe down the middle of this line between policy and injustice has yet to be seen, but the story itself will serve to encourage others to be a hero like Doreen Giuliano. The jury is still out on whether this will be a good thing.
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I disagree completely with the following: “While Giuliano has no reason to put the policy issues ahead of justice for her son, the judge does.” Since when does a judge owe a duty to “policy”? His first and foremost duty is to do justice in the particular case before him. Letting any other consideration skew his decision is tantamount to sacrificing an individual’s freedoms, in some cases his very life, for some general amorphous “societal good.” And that, as we all know, is the hallmark of totatlitarianism.
You are correct that there might be negative ramifications. But it is the duty of Congress, or that of the NY legisltature, to consider those policy considerations. They certainly can mull the pros and cons of amending the laws that govern the issue of mingling with or stalking jurors (we’re talking, of course after the case is over), and they can decide to prohibit such actions or some extreme variation of these actions, if there is statistical eveidence that this might turn into an unwanted epidemic.
But, a judge should never let those issues get in the way of pursuing justice.
But Sam, that is the caselaw. The rationale for not allowing post-trial admissions of wrongdoing by jurors to upset a verdict is the policy of stability of verdicts and to protect jurors from harrassment after they complete their service. That’s why the judge will, and should, consider these policy factors in reaching a decision. I can’t imagine any decision that does not, in some respect, involve a policy consideration. It’s the heart of all law, both statutory and caselaw.
Bear in mind, by the way, that the fact that Allo lied to get on the jury doesn’t make the defendant innocent. It just makes Allo a liar. There were still 11 other jurors.
I was thinking what you said in the last line of that the whole time I was reading this.
Also, in CA it is a crime to surreptitiously record a private conversation without the other person’s permission. No similar NY statute?
No, the recording is fine here. Even on a telephone, as long as one party consents, recording is fine.
Of course it doesn’t make him innocent, and neither does the judge have to decide that issue. He only has to decide whether to grant a new trial, right? The major issue will be, as you pointed out, whether Allo’s lying has tainted the verdict to the extent it merits throwing out the verdict. And I’m sure you will agree that courts have been too cautious in this respect, by and large preferring the “stability of verdict” argument to the demands of justice and truth and preventing wrongful conviction. I’m more worried about other cases, about the Troy Davises of our system, who languish in prison (or worse yet, are executed) despite nagging doubts, only because the system refuses to grant new trials because of the “stability of verdicts” mantra. In this particular case, I agree that it’s a close call whether the lying to get on the jury is enough to taint the verdict enough to get post-conviction relief. I would have to read more case law on this issue.
From what I understand about the case, the evidence was very thin, and he continued to protest his innocence throughout. It may be sufficient to give Lloyd Epstein, who’s an excellent lawyer, enough ammo to argue that this one tainted juror (who certainly denied the defendant to a fair and impartial juror) swayed the others enough to push the verdict to guilty. But this is always a tough argument to make.
On the other side, this isn’t Troy Davis either, where the witnesses recanted and a capital case. In that case, the argument against Davis is that procedure policy trumps actual innocence. It’s a different magnitude of error. In Giuca’s case, the wrong (one tainted juror) is not in the same league as Davis. Whether the evidence against him was otherwise so weak as to make this enough to topple the verdict, I can’t say.
Like you, I always hope that the innocent defendant will prevail over all odds, all policies and all procedures. If Lloyd can find a “conceptual ledge” so that the policy can remain intact to protect jurors, while this case can be distinguished and the conviction reversed, he’ll have a far better chance of winning.
While I sympathize with the mother, I worry about jurors of the future. I’ve been running into a lot of anonymous juries lately, and I don’t like it. This type of shenanigan will just add fuel to the fire. It seems she went to 2 other male jurors first and was unable to get anywhere before finding Alio. It also seems she got help getting phone numbers of other jurors. It does sound like Alio was unqualified to sit on the case, and that the other jurors should be interviewed to see if he said anything based on his own (inadmissible) knowledge that convinced them to convict. That said, if the son gets a new trial, I wonder if those jurors are going to be a little concerned about what might happen to them if they don’t acquit. It seems she will stop at nothing (and does that reflect well on her son?)
With two weeks of testimony and only two hours to come back with a verdict, that told me they didn’t go over the evidence presented to them. I was in search for the truth and only the truth. If the corruption wasn’t there then I would have to had moved on. My son John and your sons and daughters all deserve a fair trial. I bet you didn’t know Allo also considered John to Be ” A tall skinny Jewish kid with glasses” I quote accurately, and he proceeded to say “I hate Jews” So before you become Judges. Gather all the evidence. Justice for all, not just for some!
Doreen, I seriously doubt that Lloyd would want you posting comments about your son’s case on the internet. What I write, or others think, is irrelevant to the decision to vacate the conviction, and your comments aren’t as helpful to your cause as you may think. None of us have a clue whether your son is innocent or guilty, and if he is innocent we hope that your efforts will result in his freedom. You should focus your efforts there, and don’t worry about what commentators say.
And just so it’s clear, we are all pulling for every innocent defendant wrongfully convicted to be freed. You don’t need to convince anyone here of the concept of a fair trial.
I am in awe of this mother’s courage. Relatives of a wrongfully convicted person (and I am one, also) tear themselves up trying to figure out what they can do to help. While my own thoughts run more to “how can I go to law school?” I can totally understand how Ms. Giuliano was able to use her determination in an unexpectedly creative way.
Mr. Greenfield says in his post, “How could anyone disapprove of the idea of exposing impropriety? You can’t. I can’t.” But so many people *DO*! Just look at the comments in the Star-Ledger article“
The average person knows nothing about the unreliability of eyewitness testimony, or the machinations of snitches, or how to resist the pressure to cave in to pressure from other jurors. They just believe the media hype of “Law and Order” and think that nothing ever goes astray.
I say kudos to trying to get to the truth. I really hope there is another trial. And I hope that mother sells her story for enough money to get the best attorney in the world.