One of the mantras of the defense at trial is that it only takes one to hang a jury. The assumption is that the one juror, the brave, bold soul who will stand up to the others, will be on our side. This is not necessarily the case, as Matthew Ness learned in the aftermath of his defense of Jerry Chai.
A California man convicted last month of having improper sexual contact with a Seton Hill University coed wants a new trial, contending that a juror used personal knowledge as part of the deliberations.
Defense attorney Matthew Ness said his client, Jerry Chai, 27, was wrongly convicted of a misdemeanor count of indecent assault after a juror convinced other panel members to issue the guilty verdict based on information that was not part of the evidence in the case.
The underlying allegations are routine:
Chai, who was a first-year medical student at the Lake Erie College of Osteopathic Medicine at Seton Hill, testified his accuser initially was the aggressor and consented to some sexual activity and that he ultimately complied when she later asked him to stop.
At best, this would be a “he said/she said” case, which would be nearly impossible to satisfy the burden of proof in the absence of additional evidence. The consequences for a first-year med student are obviously severe.
One of the instructions given the jury is to base its decision, whatever that may be, solely on the evidence presented at trial. That includes the facts as well as any expert opinion. On the other hand, jurors are told they bring their own experiences into deliberations as well.
In evaluating the evidence and the issues presented, you should use your common sense, knowledge, and experience, just as you would in making decisions in your daily life. When I speak of “knowledge” and “experience” in this context, I mean the sort of knowledge and experience that an average person would acquire in life.
But what if a juror possesses, or believes they possess, “special” knowledge beyond that of other jurors?
If you have such a special expertise, and if it relates to some material issue in this case, it would be wrong for you to rely on that special expertise to inject into your deliberations either a fact that is not in evidence or inferable from the evidence, or an opinion that could not be drawn from the evidence by a person without that special expertise. The reason it would be wrong to do so is that you must decide this case only on the evidence presented to you in this courtroom.
At Chai’s trial, one juror stood apart from the others, and convinced the other jurors that she possessed special knowledge.
In court documents filed Tuesday, Ness said three jurors approached defense lawyers at the completion of the June trial in Westmoreland County and claimed another juror said she worked with rape victims and was able to convince the panel that the 18-year-old accuser was truthful when she testified about being sexually assaulted by Chai.
While the specifics of what this juror told the others are unknown, it would be fair to infer that she provided the litany of rhetorical explanations for evidentiary gaps and failures used to rationalize away the accuser’s testimony. No matter what testimony is proffered, there is an explanation for why it proves it’s true, all part of the “survivor must be believed” frame.
These are advocacy arguments, which would be acceptable to the extent they were presented by the lawyers on summation, and were not presented as if there was any empirical truth to them in the absence of an expert witness, duly admitted to testify under the relevant standard of expertise. In this way, one side can argue why a witness’ inability to recall details shows veracity, while the other can dispute it. Neither can claim that its view is more empirically accurate than the other. They’re just arguments.
But when a juror can claim special expertise as a product of her occupation, and present arguments with the gloss of fact based upon her special expertise, there is no way to prevent it from happening or distorting deliberations. Such a claim can poison the jury and there’s nothing that can be done to stop it.
So how did a rape counselor end up on a jury in a rape case?
The defense contends that juror was not honest during questioning from attorneys during the jury selection process, saying she worked for a mental health agency but not disclosing that she worked with rape victims, Ness said.
To call the juror dishonest is not entirely accurate. The juror revealed that she worked for a mental health agency, and there is nothing to suggest that’s untrue. The next question on voir dire should have been, “what do you do there?” Without that question, and a dishonest answer, it’s hard to blame her for being disingenuous by omission.
On the other hand, potential jurors are also asked whether there is any reason why they can’t be fair, and the failure to alert the court and counsel to the fact that she was a rape counselor who was indoctrinated in the ways of believing the victim and the myriad excuses for why failure of evidence proves guilt just as readily as good evidence.
Going forward, however, the problem raised here may well not have the “rape counselor” hook, but nonetheless be just as real. As college students are compelled to take classes that include indoctrination of the prevalent theories of sexual assault on campus, they bring with them beliefs and, perhaps, certainty that they must “believe the survivors” and that there is an inherent excuse for every evidentiary failure.
Weeding the prejudiced from the jury won’t be as simple as ascertaining their specific occupation, or even trusting them to admit their bias. They don’t see it as bias at all, but their version of truth. It may become impossible to get a jury in the future that is willing to decide the case based on the evidence presented at trial, as their experience leaves no possibility but conviction.
Many years ago, I was prosecuting a man for some misdemeanor charge in a small Midwestern county. We picked a 12-person jury. After the jury was sent out for deliberations, the judge said she wanted to see the lawyers in chambers.
There, the judge looked at me and said “Wilbur, do you remember juror number 6?”
Yes, your honor.
“You forgot to ask her whether she or any of her family had had any contact with the criminal justice system.”
Well, your honor, that was pretty stupid.
“Do you know who she is?”
Well, no.
“Her husband is on death row … for killing a police officer … with his bare hands”.
I see.
After several hours, the jury returned with a guilty verdict.
The jury foreman button-holed me afterwards in the courthouse hallway and said “Mr. Wilbur. that woman had no business being on a jury. She kept us in there for hours!”.
Almost every voir dire includes the question about whether the potential juror is, or knows, anyone in law enforcement. The assumption is that they would be inclined to believe cops. It was an epiphany to me to learn during sidebar questioning that they couldn’t be fair because they knew from their family/friend that cops lie on the stand all the time. While they tended to like cops, they knew too well they would say anything to get the conviction.
Interesting. When I asked (or remembered to ask) the question, it was with the opposite assumption: that the juror or a family member had a run-in with the law and they hated cops. In that county – again, a small Midwestern burg – there was no shortage of those people in the normal jury pool.
Having been the lone juror in a trial for an OUI misdemeanor,… let me say this about that:
First, twelve jurors for a misdemeanor? Where might that be, Hurtado-breath? Check out Hurtado, a Caulifornia case, I believe.
A funny thing happened on the way to the Forum. I was called for jury duty and served at the same time that there was a warrant for my arrest. Go figure! Being the honest, honorable citizen that I was/am, I showed up and was picked. Big Mistake, Mr. Commonwealth. You failed to ask the right questions, which I would have lied about anyway, because,…. Reasons! (Namely, your judicial system is corrupt and incompetent to the ninth degree, Amy Ducan-breath. Need I say more? Fells Acre Day Care Center fiasco, anyone?)
Secondly, “almost every voir dire includes….”, does not cut it with me. Either your stewpid judicial system works lockstep in some sort of precision formation according to established rules and procedures, or it does not? In my several experiences, the answer is a big Negative. The f*cking prosecutors and a$$hole judges do and say what they want to, irregardless,… for the simple reason that they know they can get away with their multiple, manifold misbehaviors and never, ever be held accountable. Qualified Immunity anyone? Oh puhleeze.
Finally, I have no idea what Wilbur is talking about. However, I never understood any prosecutor anyway, mealy-mouthed retards in ill-fitting suits and/or skirts. So what is the use? In limine, with-prejudice-breath. It’s a farce.
Those baaastards don’t talk the same language the rest of do. Their mumbo-jumbo jargon is deliberately designed to put as many innocent, indigent and impoverished folks in prison as possible, for as long as possible, no matter how long it takes. It’s called Prison-Industrial Complex. Make no mistake. Evidence and research show, Mr. Frank “Sicilian Restaurant” Mecini. We have the numbers! (Oh hi, Frank, sorry to see you leave the party so early in the evening.)
Which is not the same as Simple Justice!?!
Ima let you have this one, Bill (with my deletions), but this is as close as it gets without getting trashed.
What deletions? Ha. My name is not Barleycorn! Delete This?!? You left Frank in,… I’m satisfied. Have actually been warming up to Frank, as previously posted. We’re shore gonna miss him! You always have to have a foil, and I know you know what that is; cause your son fences.
SHG,
Not perfect, but perhaps helpful:
“Now that you have heard my questions and the questions of counsel, let me ask you a final yet open ended question? First I will give you the background for my question.
After every case, and after I have excused the jurors, for the last 25 plus years, I have personally thanked each juror privately in the confines of the jury room. I have always asked each jury how we might do a better job.
Long ago wise jurors suggested that I ask an open-ended question at the end of jury selection that would provide jurors an opportunity to volunteer anything they wanted. This was because the lawyers and I might have failed to ask a specific question that would have caused a juror to raise his or her hand. These wise jurors worried and wondered during the trial whether they should have volunteered something before trial and during jury selection. Thus, these wise former jurors advised me to give you an opportunity to volunteer information.
So with that background in mind, and as the last question before the lawyers select the jury, let me now ask each of you:
Is there anything that you would like to tell us that might bear upon your ability to render a fair and impartial verdict?
If so, please raise your hand and we will talk about it. Remember, if you would like to discuss this privately with the lawyers and me, just say so, and we can confer with you at the bench.”
All the best.
RGK
That’s been my experience as well, particularly in federal trials where the judge does most of the questioning. Maybe it works better in Nebraska, but I haven’t found it to be very effective. If the juror wants to conceal his bias, he just doesn’t raise his hand. If the juror doesn’t perceive his bias to be bias, he has nothing to say. It’s one of those ideas that seems great, but doesn’t do much to fix the problem as it relies on the potential juror to both recognize and admit their bias, and that may be expecting too much.
SHG,
I agree that the process depends upon prospective jurors being both candid and self-aware. Perhaps that order is too tall. I, therefore, propose the Juror Auto-Selection 1000 which picks jurors by computer using special coding and algorithms known and understood only by IT people from Dehli
All the best.
RGK
I really need to buy more Intel stock. The algorithm may suck, but I’m gonna be RICH!!!
This touches on something that bothers me. Like everyone else, my first reaction when reading the post was (1) that there was a failure by counsel to follow-up during voir dire, (2) that it’s inappropriate for me to Monday-morning quarterback a colleague (“there but for the Grace of God …”) and (3) that a potential voir-dire blunder is a nightmare that wakes me up with cold sweats even when I’m not in trial.
That said, Judge Kopf’s suggestion reminded me of how protective judges are of jurors and juries. I’ve often been in situations where the judge rushed us through voir dire by asking some boilerplate questions, gathering answers in the same spirit, and then giving counsel five minutes (or less) to ask our own questions. This always rattles me when it happens, and I know my opponents hate it too. If I’m really bothered by the rush, I object to empanelment and lodge my proposed jury questions on the record, which never endears me to the bench.
Granted, these are civil cases, and I figure the judge is just trying to control the court room and show everyone who’s the boss. I’ve usually done a lot of pretrial motion practice to limit what the jury can see or hear anyway, and I’m focused on fine-tuning jury instructions in my thinking at that juncture. I figure I can overcome any bias that someone missed, and my verdict requirements aren’t as stringent as yours are anyway. But I still worry a lot.
I’d like to think that I’d put on my big-boy pants and properly challenge a rushed voir dire for a violent felony or any other “dangerous” trial where prejudicial rushing would put a man’s life or freedom at risk. Does this sort of rush happen In your world? Or do you guys generally get enough time to examine prospective jurors?
It may be a silly point, but I still find myself wondering whether the trial judge rushed the whole process and jammed this Ness guy up. If so, does lodging written voir dire questions seem like a good way of creating a good appellate record and avoiding a later ineffective assistance claim in a case like this?
“On the other hand, potential jurors are also asked whether there is any reason why they can’t be fair. . .”
Sure, but to the rigidly dogmatic, there is never a glimmer of a thought that they might not be “fair.” They are blinded to their staggering bias by their staggering bias.
I knew I should have used smaller words. My bad.
Brilliant, McLeod, wish I’d thought of that. Progress is our most important product.