After big trials, the media races to interview jurors to get a behind the closed door of the jury room. These interviews rarely reveal much of use or truth, with jurors more inclined to use the opportunity to explain themselves rather than provide meaningful insight. Still, we listen, as we want desperately to understand what the heck jurors are really thinking.
Keith Lee at an Associates Mind sent me a link yesterday to a great post at a blog called Tux Life, where a woman who served as jury foreperson in the trial of a “17-year-old black man — rather, a boy who was 16 when he committed the crime and barely looked 13 even a year later — ” charged with robbery. It’s not clear who the author is, but her account is unassuming, well-written and fascinating.
As they tell you, you’re not allowed to talk about it with anyone, not even your fellow jurors, during the trial. As they also tell you, once the trial is over you can talk about anything you want. So, here goes.
I am one of those civics nerds who does not look for every excuse not to serve on a jury. I was a political science/journalism double-major and, though I’m far away from those in my professional life at this point, I still have a passion for the processes that bring us together as communities, societies and civilizations. I won’t say I wanted to be put on a jury for a criminal case, but when the opportunity arose I certainly welcomed it.
Before delving into the process, it’s notable that she was neither a reluctant juror nor a rabid one, seeking to vindicate some underlying sense of community vengeance or libertarian rage. While there may be no truly neutral person alive, she appears to be as close to open minded as one might hope.
The defendant was one of three alleged assailants in a gunpoint robbery, The only witness was the victim. She describes her impression of the defendant:
[T]his young man, this boy who was nearly in tears as the jury was being picked, this child who dropped out of school in the ninth grade but through a job grew a fondness for cooking and was now working on his GED so he could gain early entry to a community college studying culinary arts, this poor kid who, if guilty, was likely put up to the crime by stronger boys who seemingly didn’t even give him a cut of the stolen merchandise, was facing a minimum sentence of 10 years in prison. Adult prison. At 17 years old. He couldn’t have weighed more than 140 pounds.
It’s unclear how she came to know about the minimum prison sentence, or that this slight boy would be sent to adult prison. It’s also fascinating that she assumed that he didn’t get his cut, though clearly she doesn’t know that to be the case.
The prosecution’s case, which our juror recites with some detail, is built on the purported victim’s eyewitness testimony, with some holes, most notably relating to the defendant’s hair, which the victim claims was in “twists” while the defendant’s witness, his mother, says his hair was never in twists. The defense is mistaken identification, which is particularly curious given the juror’s apparent acceptance of the fact that the defendant did, in fact, commit the crime, as evidenced by her assumption that he was denied his cut of the proceeds.
She took her responsibility seriously:
We were admonished to consider all of the facts but nothing outside of them. Don’t consider the sentence, or the age, or the race, or anything unrelated to what we heard while sitting in the juror box. Just focus on the facts that are presented. Yet, we were also told, time and again, that our Constitution is absolutely unwavering in its mission to protect the innocent, that no matter how clear-cut the evidence may seem, the burden of proof in criminal cases always, always, always falls on the prosecution. The boy sitting in that chair next to a pair of public defenders, possibly wearing borrowed clothes to look presentable in court, is innocent until he is proven guilty beyond a reasonable doubt.
Yet there’s no aspect of her description that ignores her sense of empathy, wonderful it you have a sympathetic defendant.
Then comes the deliberations.
So we deliberated on these facts. In the jury room and finally free to talk about the case, I repeated the keys to our responsibility as best and as evenly as I could. We must be sure one way or the other, I said. We must remember that the burden lies with the state, not the defense. We must review all testimony and make a determination of whose story is the truth, or at least closest to the truth. I told them that while I wanted to get out of there as soon as possible just as they did, that we owed it to the defendant, the victim, and ourselves to take it seriously.
It’s always been my experience that jurors take the responsibility seriously, though that doesn’t necessarily mean that they grasp the task, determining whether the prosecution has met its burden. Even in this description, where she expressly notes that the burden is with the state, she sees the duty as determining “whose story is the truth,” which places a shared burden on both sides.
So we voted. Five guilty, seven not guilty. Those who voted guilty said the phone records and positive ID were damning, that you couldn’t not consider that as enough to prove the defendant was there and, therefore, guilty. Those who voted not guilty, of which I was one, were just not convinced “beyond a reasonable doubt.”
So, after more reviewing and arguing, some of it heated, we voted again. Nine not guilty, three guilty. While we seemed to be getting closer to that ever-elusive unanimous decision, we were actually further from it. Of the three who voted guilty, one seemed to be slightly on the fence if only because he was willing to discuss the case further — and in fact, he later said he would change his vote. The two others were digging in and shutting themselves off. They refused to talk about it and, finally, one told me to go tell the judge we were hung because there was no way she was changing her mind.
As often happens, barely two hours into deliberations, positions were entrenched.
I asked her to share her reasons for thinking he’s guilty,.. She refused, said that she didn’t have to share her reasons, that she just knew he was guilty. In retrospect, it was unfair of me to ask her. Not everyone reaches conclusions in the same way and not everyone can articulate why they feel a certain way about something. She had made up her mind. She hadn’t done it unreasonably. She’d just done it.
While ironic, in that it’s usually the “not guilty” side who is placed in the position of providing a reason, this is a fascinating recognition, in that a “reasonable doubt” doesn’t require that a juror be capable of articulating the reason. While it was hardly unfair to ask, it was entirely within the juror’s right to refuse to respond.
And so the note went to the judge, informing that the jury was hung. This, sadly, is where the experience goes awry:
It turns out we wouldn’t get a chance to see any changes of heart. Just as I was finishing up the reading of the rules and we were getting ready to call it quits for the day, the judge stepped in to the deliberation room and informed us that a plea bargain had been reached.
The prosecution blinked and offered the defendant a juvenile disposition, which he took.
So there you have it. Unbeknownst to the 12 of us, we were playing out a script to the letter. Our inability to reach an accord…was not a failure per se but actually set in motion a chain of events that allowed all parties to get the something if not good then at least reasonable for all involved from an otherwise terrible situation.
Having heard the evidence and experienced deliberations, our juror saw the process as having worked, despite the fact that it appears, from her own description, that a young man who should have been acquitted ended up taking a plea to avoid the risk.
All I could think as I walked to my car after being excused was this: from chaos comes order…What you truly have is a proverbial sausage factory: it’s incredibly messy, nothing seems to make sense, nothing looks good or reasonable or even real, but at the end of the line there is something like justice. It doesn’t always look right. It doesn’t always feel right. It doesn’t even always taste right. But it’s at least palatable.
For all the empathy, and eventual doubt in the prosecution’s proof, she doesn’t have any qualms about the possibility that a boy will be saddled with a criminal conviction for the rest of his life, a boy who she believed was not proven guilty.
On the one hand, our jury foreperson has all the qualities one might hope for in a juror, from real empathy to a firm grasp of the seriousness of her responsibility. And yet, she readily accepted the outcome of a process that may well have convicted an innocent boy, it never having occurred to her that the defendant’s acceptance of the plea, as well as her acceptance of his guilt despite her doubt in the proof, had no inherent relation to truth or guilt, but only sausage making. That was good enough. Fascinating.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
You’re right, it’s her fault. She should have put on a ski mask, pulled out an AK-47, and spirited the boy away since, at the time the plea was reached, she was thinking not guilty, although she clearly believed the boy to be guilty in fact, just not proven guilty beyond a reasonable doubt.
Nevermind that all parties to the case agreed to this outcome; nevermind the defendant didn’t believe there was a reasonable doubt of his doubt and so took a plea. It was unfair and unjust since, maybe, just maybe, the jury could have returned not guilty if he had not plead.
This reinforces my view that strongly favors a coherent defense narrative of its own versus a let’s toss darts at the prosecution’s case, and try to deflate PBRD. People just want a story they can believe over another one. Not, we don’t have to offer a story, we don’t have one, but we’ve poked a few holes in the prosecution’s story.
Not sure I’ve personally seen the poke holes strategy ever work, for precisely the reason this juror articulated.
This case reminds me of a mistaken ID robbery case I had. My guy pulled a $20 note sticking out of a man’s shirt pocket. Pretty harsh robbery case when the force/fear element was so minimal. Cop chased him around the block but the chain of custody on him got broken, and I invented a narrative based on that. I think we got a 9-3 NG hung, and a misdemeanor plea ensued, with either no jail or light. My guy had lots of priors.
I thought that was a good result and so did he. I think the PBRD construct can work well in combination with your own defense theory, but it’s tough going left out on its own.
Of course. Nobody would ever plead guilty if they weren’t. Even so, our juror’s satisfaction with the outcome, despite her reasonable doubt, proves that all’s well that ends well. Your finger is firmly placed on the pulse of true justice.
It’s fun for me to read such accounts and juxtapose them over my area of practice. For me, the jurors are often approach me afterward to give their impressions and feedback. Some even call me several days later to offer their insight. One particular juror and I learned afterward that we are both Boy Scout leaders in the same community, and he cornered me for about an hour at a meeting to talk about our last case together. Those conversations are absolutely invaluable to me.
By the way, under the Uniform Code of Military Justice, the first vote taken above would result in an acquittal.
Yeah. It’s a shame that the absence of a unanimous jury for conviction isn’t deemed an acquittal for the un-uniformed set. It never quite squares with the whole innocent until proven guilty thing combined with double jeopardy. But then, I may be a bit biased.
Good point, Scott. My DA of jurisdiction, Mark Hurlbert, is embarking now on a third trial of a guy for kid porn found on his computer. His last trial went 9-3 for the defense, and a juror had the temerity in our small jurisdiction with only one main road (I assume the relevance of this is clear) to write a letter to the editor about the trial, where he denounced the prosecution’s case. Now the Kobe DA wants a change of venue where jurors won’t be so “divided.”
Guess mistrials are great when prosecutors can play with virtually limitless taxpayer bucks and have nothing better to do in their small jurisdictions. I’m thinking one retrial should be the limit and will try to get legislation to that effect.
Of course, zero retrials would be better, but I’m trying to be practical, having my finger so firmly on the faint pulse of justice and all.
Trial + Inability to prove guilt beyond a reasonable doubt to unanimous jury = acquittal
And they said I would never be any good at math.
It’s still such a crock of shit that a vote of 9 not guilty to 3 guilty results in a hung jury. That seems to be conclusive proof that the government has failed to meet its burden of convincing all 12 jurors of the defendant’s guilt beyond a reasonable doubt. But we just love the prosecution sooo much that they get as many bites at the apple as they want so long as it’s couched in terms of a “hung jury.”
I agree. Because back in Cali this generally resulted in a really good plea deal, it didn’t bother me that much. But now I’m in a jurisdiction where it results in retrials into infinity if our insane DA is in the mood. Where did the whole concept of retrials for a hung jury come from, versus it being deemed a failure of proof and an acquittal? I googled around for a while on it but didn’t find anything.
The acquittal would follow if we meant what we said.
If we assume the jurors are “reasonable” (which is the working assumption of the jury system), then the fact that they can’t all agree on guilt should, by itself, be adequate to show that the government failed to prove guilt beyond a reasonable doubt.
Of course, then you wouldn’t have to have a special sort of logic for double jeopardy.
This is one of those questions so basic, I guess, that is hard to find the answer for. What is provided by SCOTUS as the legal basis for this retrial ad infitum stuff being OK?
I sent this along, not just because it was an interesting read, but because I thought it was nice to see someone taking their civic duties so seriously. By the authors own account, she’s a “civics nerd,” but I find it unfortunate that having a basic understanding of how a jury functions and willingness to act as a neutral third-party for one’s fellow citizen’s is seen with such derision. It’s too bad more people don’t take the time to focus on their responsibilities as citizens – not just their rights.
Great post. However, I disagree that any juror has the right to refuse to respond when asked the basis of her opinion. In my opinion, that is contrary to the juror’s duty to deliberate. Don’t get me wrong. I hope I’m lucky enough to put a dig-in-the-heels, not-guilty juror on every jury. I just disagree that a juror has a right not to answer a fellow juror’s reasonable question.
Would you have a juror “required” to explain herself to others in order to stand firm on a vote for not guilty? They are required to listen and consider. They are not required to articulate the basis for their belief. No one, ever, can tell a juror that they are required to abandon a sincerely held belief because they are incapable of putting their reasons into words.
I do think the duty to deliberate includes an explanation of one’s position to the best of one’s ability. Once that explanation is given, the juror has the right to stand fast without harassment by jurors who disagree.
I believe you when you say that’s what you think. You made that clear in your first comment. But there is still no duty for a juror to explain, nor (in my view as opposed to yours) should there be. As stated, the inarticulate juror is just as worthy of holding on to his view as the articulate juror. The inability to express a reason does not invalidate a juror’s sincerely held belief.
Ah, now I’m repeating myself. I hate when I do that.
My turn, then. Deliberation is careful consideration of viewpoints expressed and of the evidence. It doesn’t include or require self-justification. And we’re the better for that.
I wanted to clarify the numbers on the UCMJ rules that I mentioned above.
9NG and 3G = Acquittal
5NG and 7G = Acquittal (Less than 2/3 vote for Guilt)
4NG and 8G = Guilty (Required 2/3)
As you can see, there are pros and cons both ways.
In my copious free time, I’ve continued to research why the UCMJ has such unique rules compared to our common law system (going back to our conversation a month or so ago regarding non-unanimous juries). The answer, I believe, lies in the Articles of War and Regulations we adopted from the British under General Winfield Scott (just prior to the Civil War) in an attempt to professionalize, modernize, and standardize our Army. That legacy, coupled with the desire of federal courts, to include the Supremes, to keep military criminal law separate and distinct from other law, is what allows the 2/3 to guilty rule to continue to rein supreme.
I admit I may be tainted by the standard charge we give in this circuit that imposes upon jurors a duty to discuss. I don’t know if it is the same everywhere, so I probably should not have stated my position as if it applied to all jurors in all jurisdictions. We are in agreement that all jurors are entitled to their own beliefs, regardless of how articulate they may be, which is why I said that once they take their best stab at an explanation then they should not be harassed by those who do not agree.
If you’re being serious that you’ve “never seen the poke holes” tact work, you haven’t seen much and haven’t seen this done well. It works, often.
Where I’d agree with you is that you’ve got to choose one. Either you’re going to offer a competing narrative and seek to do something akin to proving it or you’re going to poke holes and argue the state’s burden. Hybrids are generally doomed to failure.
I’d prefer our system then. I’ve hung a lot of juries with one or two. I’ve only once had a jury hang in favor of NG and I got a dismissal out of it. I’d rather the wingnut be able to force the hang, even if it means retrying a few cases I’m pretty confident I can’t lose.