Musings of such a juror have been floated for many year, mostly from those who believe in jury nullification. They would pretend to be normies, perfectly ordinary folks who could, and would, be fair to all, to get on a jury. And then, boom, blow up deliberations with their activist belief in whatever purpose they served. Anti-cop? Anti-racism? Anti-government? And who could stop them? There they would be, having snuck past the gatekeeper by feigning fairness during voir dire and occupying the jury room.
What a glorious revolution it would be! After all, who can challenge the decision of a jury to acquit the guilty in defiance of bad laws, dishonest cops, an oppressive system? And of course it would never be used wrongly, as an affirmative bludgeon to assure the conviction of people hated, or crime reviled, lest someone despised walk free?
One, possibly two, jurors in the Ghislaine Maxwell conviction seized their 15 minutes of fame by telling the media of their experience with childhood sexual abuse. Whether it was true, or what impact it had, remains to be seen. But did they conceal it when completing their jury questionaire before being questioned?
The form included questions on a range of topics, including whether prospective jurors or members of their families had experienced sexual abuse. The prospective jurors’ responses remain under seal.
The juror who was interviewed by the other news outlets told Reuters he “flew through” the initial questionnaire and did not recall being asked about his personal experiences with sexual abuse. He said he would have answered such questions honestly, Reuters reported.
He and the second juror both made it to the next round of jury selection, appearing in court in November. There, in a process known as voir dire, Judge Nathan, drawing on their questionnaire answers, asked them several follow-up questions. Neither was asked in that setting whether they had been sexually abused, nor did they say that they had been.
At this point, there is scant information about what information was provided in the questionaires, making it premature and speculative to argue that it was accurate or sufficient. But if the question was asked before voir dire, then it’s understandable that it wouldn’t be raised again. Asked and answered.
It takes no special magic to lie during voir dire. And it’s often not exactly a lie, as answers rely on the question asked, and the relative importance of an incident in one’s life may not become clear until testimony or argument triggers a connection that brings it to the front of one’s mind. Then again, a thing like childhood sexual abuse, in a case about the trafficking in the sexual abuse of young women, would seem a bit too obvious to rationalize away as the sort of thing that slipped one’s mind.
And it obviously didn’t slip the jurors’ minds when it came time to deliberate. Or when it came time for their close-up, Mr. DeMille.
What these jurors may have been thinking, if anything, remains to be seen, but what these revelations have done is undermine a very serious case, a very serious process, and put into jeopardy the very conviction they might have sought. If they lied, if they concealed from the court and parties cause for their being stricken from the jury, if they used their personal experience not as an ordinary part of jury deliberations but a claim of secret knowledge and expertise that brought extraneous facts into the jury room that were not in evidence at trial, can the verdict be credited as valid?
They weren’t witnesses in the case. They weren’t vetted as experts whose opinions on the subject were subject to testing and challenge. They were jurors whose only job was to decide whether the evidence was sufficient to sustain the prosecution’s burden of proof beyond a reasonable doubt. Even if this falls short of the legal requirements of intentional lies and actual bias to challenge the verdict, it taints the verdict as the product of impropriety that, at best, skirted the “technical” requirements for challenging juror bias.
The law is highly protective of jurors and deliberations to prevent lawyers from going after them following a conviction to seek some crack of impropriety in deliberations to exploit. But when the jurors, themselves, do post-trial interviews asserting impropriety, it’s not the defense lawyers’ fault and there is no reason to shield jurors from their own admissions.
There has long been a misguided expectation that the goal of voir dire is to “beat” the system by empaneling a sympathetic jury. Sure, what lawyer wouldn’t want that? But the reality is that the best we can hope for is a jury that isn’t biased against the defendant. Two nasty secrets lurk behind the jury box. Most jurors are fundamentally antagonistic to crime, no matter how much they want to believe they are empathetic toward the defendant. And most jurors believe police witnesses, no matter how much they hate them in a societal sense.
Those who delude themselves by denying these realities and believe that if only people cared less about the fairness of the process and more about breaking down the carceral system from the inside, the legal system could be turned on its head. What such simplistic approaches ignore is that the same attacks on the system to favor the defense will similarly make it vulnerable to activist jurors bent on convicting the hated no matter what.
If being fair and impartial is for fools too clueless to game voir dire so they can seized the opportunity to do their special brand of justice in the jury room, then it will cut both ways. It may let a guilty defendant walk free because of his race or because it’s not a hated offense at this moment in time. It may convict a defendant against whom the evidence fell short because she’s hated and the crime with which she’s accused is intolerable at this moment in time. And the activist juror who manages to pull this off will believe himself a hero if he can keep his mouth shut rather than take to the media to proclaim his bias and service to the cause.
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The mob has decided that she is guilty, so as Hillary Clinton said, “ What difference – at this point, what difference does it make?”
Assuming the two jurors didn’t check the box on the form inquiring about sexual abuse, it isn’t the defense lawyers’ fault. Nor does it appear to be the prosecution’s fault, and to their credit, form what I’ve read the prosecutors have been proactive in requesting the court to make an inquiry into whether a new trial may be needed.
In Florida, where I presided over jury trials for years, jurors have an absolute right to decline to talk about their work on a jury unless a court finds cause to inquire, but jurors are allowed, as in the Maxwell case, to talk about the experience if they want to. Our standard jury instructions advise the jurors, after the verdict is returned, that some may ask about the jury’s deliberations out of a desire to find fault with the verdict.
When I first read of the Maxwell jury situation, I wondered why these jurors were so stupid as to go public with what they must have known was wrong. But SHG, I think you’ve got it. Apparently they wanted to claim “credit” for what they did, even though it likely means the verdict will be overturned as a result.
That part of it might actually be a positive. If they hadn’t felt the need to claim the hero points, nobody would ever have known what they did.
Activist judges, activist prosecutors, and now, activist jurors. It was to be expected in light of the activist precept that the special cause (whatever it may be) must always be advanced at all costs. If lying on a questionnaire is the ante to a seat on the jury, where they can try to make sure their vision of “justice” is done, of course they are going to lie on the questionnaire. This will end up being just another factor that adds to the randomness of the criminal justice system.
I’ve had a couple of opportunities to be an activist juror and flunked out both times:
First time was when I was in the jury pool for a death penalty case; when I was being questioned by the prosecutor, I calmly stated my unequivocal opposition to the death penalty, and the judge jumped in, snapping at me, calling my truthfulness into question, but grudgingly granted the prosecutor’s motion to dismiss me for cause. The defendant ended up being sentenced to death, although I don’t know if he was eventually executed or not.
Second, I was in the jury pool for – I kid you not – a misdemeanor assault case; one guy claimed another threatened him with a knife, the accused said no way. Before calling the first twelve suckers up to the jury chairs, the judge went around the room and has us all answer the question, “does the lack of any other witnesses pose any problems for you in this case?” When it was my turn, I said that the accuser would need to be significantly more convincing for me to find for conviction beyond a reasonable doubt; the judge made no comment. During the jury questioning, I got called up, and before my butt even hit the chair, the prosecutor intoned, “The prosecution thanks and excuses juror number nine,” and I was done, my chance to subvert “justice” ruined by a too-hasty truthful statement in jury selection…I have no idea and less interest in how that one turned out.
If the vocal juror had disclosed his sexual abuse, he probably would have been questioned about it more extensively or removed peremptorily. It is a fair bet this juror did not disclose it in voir dire. The urgent response of the prosecution and the defense’s partially redacted letter suggest something afoot about the otherwise confidential juror questionnaire.
During his videotaped interview, the reporter asked the juror if he had disclosed his sexual abuse history during jury selection and he confidently answered “No. They don’t ask your sexual history. They didn’t ask it in the questionnaire.” When the reporter points out that question 48 of the questionnaire did ask that question, he hesitates and furrows his brow and just says “interesting.” Then he claims he really does not remember answering the question but insists he would have answered honestly if asked. He tries to be casual about it, even though he admits he feels the blood rushing to his face.
The fact that the juror later claims that he does not remember the question, that he “would” have answered honestly, and that he “flew through” the questionnaire suggests he is trying to give himself an excuse for not disclosing his abuse. He has now retained counsel. If he did not in fact answer the question truthfully, will he just claim it was inadvertent because he “flew through” reading it? Or can he plead the Fifth?
When he gave the interview, he asked the paper to only refer to him by a partial name. But he still permitted the paper to take photographs of him and videotape the interview. If he allowed all that, what good did he think it would do to partially conceal his name? He never suspected some people would recognize him and blab his full name to the press? Or that people would use facial recognition software to identify him? Well, now they have identified him and his workplace. He appears to have scrubbed his social media, but not sure if he did that before or after his interview hit the fan.
This juror tried to cast himself as the hero of deliberations and bask in some sympathetic praise. He failed to land that role. Now he has been cast for a different part in this melodrama. And now that he realizes the different role the press intends for him to play, he is not so eager to show his face anymore and tries to hide it behind a family size Cheez-It box.
Or can he plead the Fifth?
First IANAL and it’s not uncommon for me to be wrong here, but here is my take.
Since his admission is a matter of public record I doubt the fifth would do any good here. They would just play the interview. I understand that perjury proceedings are relatively rare but if the prosecutor decides to move on that it seems this guy is pretty much screwed. His only defense would be not fully reading and answering the questions and I’m not sure what that would get him.
“Since his admission is a matter of public record I doubt the fifth would do any good here.”
That’s what I thought too. However, I’ve seen instances in which people plead the Fifth even though it seems way too late to do them any good and they’re just shutting the barn door long after the horse has bolted.
If silence is no longer an option and his press interviews will be used against him, I guess the juror’s best option is to craft the most “innocent” sounding explanation for his failure to disclose. Not fully reading the questionnaire sounds plausible enough, because lots of people have short attention spans and don’t fully read documents. When errant jurors are caught doing something they were explicitly forbidden from doing by the court (doing their own research, looking up press coverage, bringing outside material into deliberations, etc.), they usually plead ignorance or incomprehension of the rules.
The only other out I can think of is perhaps the juror might recant his media statements and say “All the stuff I told the press is bullshit. I’m not a sexual abuse survivor and I didn’t persuade the other jurors and so I didn’t commit perjury when I answered ‘no’ on the questionnaire.” Then again, could the court question the other jurors about what this guy said in deliberations? In which case they would either say “Yeah, this guy said he was an abuse survivor and he convinced us to believe the victims” or “No, this guy’s full of shit. He never said anything about being a rape survivor and he didn’t convince us of anything.”
As a retired criminal defense attorney, of over 40 years and having tried over 170 jury trials, my goal, on long jury trials, was to find at least two jurors to agree with my arguments. One to hang the jury and one to keep them company! (this was a quote from Ms. Gigi Gordon and well know attorney in the L.A. area)
And now the juror in question has requested to see his completed questionnaire and transcript of the voir dire. Maybe that’s a red flag? Or maybe he’s sticking by his story that he totally doesn’t remember what he said during jury selection?