It was indeed a sad commentary on something when San Francisco lawyer Francis T. Fahy’s vote mysteriously switched from plaintiff to defendant, thus ending the deadlock that prevented his return to his law practice. The California Supreme Court decided unanimously that the commentary was about Fahy, and stripped him of his license.
Certainly, his lack of fortitude to stand firm with his belief, to honor his oath as juror, and to tell the trial judge the truth (and not “disrespect the court”) don’t serve him well. Fahy was an embarrassment. But let’s not forget that juror’s switching votes to end a hung jury that kept them from other things is hardly a unusual issue. Any lawyer who has sat while his jury remained out for days, four, five, six days, knows that deadlock is only as strong as the pull on the holdout juror.
The Allen charge is carefully crafted to suggest that it’s not intended to coerce the holdout juror into agreeing with the majority and giving up their firmly held belief. But no one believes in their heart that it works that way. It’s just more legal gobbledygook to a juror with pressing affairs to address.
Now that juror reform commands that previously exempt folks must be part of the venire like regular people, no longer cloaked in that special treatment that annoyed so many and made jury duty seem unfair, we added a new dimension to the problem. You see, when a mother of young children is called for duty and selected to sit, her mind is on the needs of her babies who have no one to greet them at the door, fix them a healthy snack, help with their homework and kiss their knee when they fall. Is anyone so myopic to believe that the trial is more important to a mother of young children than the welfare of your kids?
While jurors can make arrangements for someone else to stand in their place for a while, time begins to take its toll. First the time is lost to selection process. Then more time is lost to the trial. Finally, time is lost to deliberations. That time is the worst, since after a day or two there is nothing that hasn’t be said. Repeating positions over and over, to people who have heard it again and again, strikes no one as a particularly good use of time. And the children are sitting at home, essentially motherless. While they can live without mom for a few days, and while mom may be willing to sacrifice for a worthy cause, all of this is drained by the fourth day of deliberations. It’s too long. The sacrifice is too great. There is no longer purpose to the sacrifice, and the kids really need their mother back.
But if the mom switches her vote to end the deliberations, return to her children and put everyone out of their misery, there is no penalty. A lawyer can be disbarred. A mom can’t be dis-mommed.
Had Fahy been a physician, would he have lost his license? What if he was a priest, would he have been defrocked?
Inside the jury room, Fahy was not a lawyer, but a juror. Indeed, the jury is told that his opinion is no more worthy than anyone else’s, and clearly they agreed with that assessment as his opinion carried no weight with the others whatsoever. Not much of a recommendation, frankly, as a lawyer hold out who cannot persuade others to see his point of view doesn’t sound like much of a lawyer. But since he was there solely as a juror, why would his license to practice law come into play at all? Punish him for his misconduct if you must, but in the role he was playing, juror.
It struck me as silly pandering when it became fashionable to end the jury duty exemption for lawyers. I don’t want one on my jury. No one I know wants a lawyer on theirs. Lawyers are distinguishable when it comes to jury duty from everyone else. Courts are about law, and lawyers are, well, lawyers. Nothing deeper than that, and that seems to me to be enough. Reformers tend to overlook the obvious sometimes.
Having decided to ignore common sense and put lawyers on juries anyway, however, shouldn’t give rise to another potential means of pulling the plug on a bad juror cum lawyer. It seems quite likely that Francis Fahy had some collateral issues, as a lawyer, that informed the court that he might not be the best of the profession, and might give rise to some sense that his disbarment was neither a great loss to the profession nor a decision to lose sleep over.
Fine, if he’s a bad lawyer, disbar away. But not because he was a bad juror. That’s not a risk one takes when compelled to sit as a trial juror.
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Yes, but he also lied to the judge about an affidavit and had a prior suspension from practice.
So is it really just about changing a vote?
I don’t think he lied about an affidavit, but rather was found to have lied to the judge after an inquiry, commenced when the foreman sent a note to the judge that “some jurors” have changed their vote just to end deliberations, about the reason for his switching. Still, this derives from his jury service, not his practice of law. It may also suffer from mixed motives, that he switched to end deliberations since the rest of the jury wouldn’t switch, leaving him to believe that it was more likely that he was wrong (and should be the one to flip) than the others.
As for his prior suspension, that may add to the penalty calculus, but has nothing to do with being subject to attorney discipline for his conduct as juror.
Well, if this was a non-lawyer, s/he would likely be hit with a perjury charge for the same conduct.
Which would mean that, if the lawyer was treated like a non-lawyer, he would have ended up in front of the disciplinary committee anyway. And at that time they would have also considered his prior suspension.
Same result, no?
Likely hit with perjury? When pigs fly. Chances are better that he would win the lottery, three times in a row.
Well, whatever he did in front of the judge — and you and I are limited here by press reports — was enough to piss him off big time. Judges hate being lied to. So regardless of whether it is perjury or contempt, he no doubt would have done something to a non-lawyer.
I wouldn’t assume that at all. The most likely scenario, by far, is that because Fahy was a lawyer, he was an easy target for the judge’s ire and with a wave of his hand was susceptible to the consequences. Had he been anything but a lawyer, it wouldn’t have happened. Judges get pissed of all the time. Have you ever heard of a physician losing his license because he pissed off a judge? Neither have I.
he was an easy target for the judge’s ire and with a wave of his hand was susceptible to the consequences.
Well, that would explain a trial judge decision and maybe even their State Bar Court.
But the Supreme Court upheld that decision by 6-0.
With no dissent, I have to assume that the facts of his conduct with respect to lying to the court were pretty egregious.
That must be it. It couldn’t be that Fahy wasn’t much of a lawyer to begin with, had some past history, was wholly unsympathetic and not worthy of a reversal of the trial judge. No appellate court would be that pragmatic.
These days, I hear about horrific events, strange behaviors, new versions of old crimes, and I see–voir dire. Go figure.
This lawyer’s disbarment is great voir dire, testing a juror’s deliberation values in advance (perhaps), but planting the seeds of what you might not want to happen. Voir dire: “A lawyer recently lost his license after serving as a juror, when he admitted he switched his vote just to get back to the office. What do you think?” Followed by “Who feels differently?”
Same with the Harvard professor arrested breaking into his own home, the kids excluded from the swimming club, performance enhancement drugs in sports, texting while driving, parents starving children who are locked in closets . . . the headlines are full of provocative voir dire.
“And how do you feel about that, juror number 7?”
“I would never do that, Mr. Law-Talking Guy. Never, I swear it.”
sigh.
Well, I join in your Sigh and raise you a Whatever Shrug, together with a Moan.
However, we’ve put the issue openly on the table. When facts are bad [like the other side has Evidence] and a hung jury would suffice [like a whole lot of the time], some jurors will appoint themselves monitors. [Obviously, any juror can and will privately change their vote for any reason.]
I don’t want them to promise not to do it. I want them to think about what to say if they suspect it: “If you think someone might be getting pressured to changed their vote for the wrong reason, even if it’s not you, what would you say?” and the challenge, “Wouldn’t it be easier, though, just to go along?”
As a bonus, jurors actually listen to voir dire about deliberations–it interests them. And most love a fight and thinking about the rules for fighting. Just say’n.
An officer of the Court, lying to the Court ought to bring a penalty, especially claiming that someone committed the crime of forgery. Changing his vote for whatever reason should only provide the background for the disbarment, not one of the allegations or findings.
Forgery?
That must be it. It couldn’t be that Fahy wasn’t much of a lawyer to begin with, had some past history, was wholly unsympathetic and not worthy of a reversal of the trial judge. No appellate court would be that pragmatic.
Sure that could be one possibility. But you and I only read news accounts and didn’t actually see the evidence presented or even read a cold transcript.
I just don’t think a panel of judges would disbar a lawyer without something particularly compelling. That doesn’t mean it couldn’t happen, it just doesn’t seem like the most likely scenario to me.
That’s because your an intelligent, thoughtful, well-intended human being who would never believe that courts would take the expedient route rather than the principled route. I salute you.
I’d make a lousy curmudgeon.