There is a long and sordid history of jury nullification based on race, where a white jury would acquit a white person for killing a black person despite the law and evidence. It was an outrageous disgrace, and yet this flagrant racism happened. After the murder trial of Dayonte Resiles, the fear has been raised that it’s back, only in reverse.
Police said Resiles broke into the home to commit a burglary, and when he found Su inside, he tied her up and stabbed her to death. His DNA was found on a knife and inside the home.
Su was stabbed 12 times. After six days of deliberations, the jury announced it had reached a verdict, manslaughter. After the verdict was announced, the jury was polled. That’s when everything blew up.
“The whole time I’m staring at the judge and at the clerk, and we’re locking eyes, and I’m looking at each one of them,” said the juror. “They’re just waiting for my verdict of either ‘yes, I agree’ or ‘no,’ and I just couldn’t, and that’s why I said no.”
The foreperson asserted that manslaughter was not her verdict, but a compromise verdict with which she disagreed. That, alone, wouldn’t be the biggest deal in the world, even though it’s extremely rare for a juror to disavow a verdict upon polling. But here, the foreperson alleged that the reason for the verdict was the race of the defendant.
But they couldn’t agree on a murder charge, according to the jury forewoman, because three members refused to sign off on a verdict that would send a young Black man to prison for the rest of his life. For a short time, the nine who wanted a first-degree murder conviction were willing to budge. A manslaughter conviction would send Resiles to prison for 15 years, not for life. All 12 jurors signed off on manslaughter late Tuesday.
But that, according to the forewoman, would not have been justice. Not for her. Not for the defendant. Not for the victim. “What have I done?” she thought.
Juries are instructed that their role is to determine whether the defendant is guilty of the crime charged beyond a reasonable doubt, and they are not to consider possible sentence, which is the province of the court. Whether anyone can do so, can put out of their minds the fact that someone will end up imprisoned for perhaps the rest of their life, is another matter.
Whether the jury shouldn’t consider the ramifications of their finding is similarly a subject of extreme dispute that might significantly influence their willingness to gloss over gaps in the evidence, make facile assumptions and convict not because the prosecution met its burden, but because they feel that the defendant is most likely guilty. In a very real sense, jury nullification happens constantly, but not to the defendant’s advantage.
But what really happened here? The foreperson made clear that the three recalcitrant jurors rejected murder for one reason and only one reason, that the defendant was black. After her disavowal of the verdict, the judge sent the jurors back to deliberate more. It did not go well.
The forewoman in the recent trial described herself as a mixed-race Puerto Rican, a 36-year-old wife and mother in a blended family of five children, ranging in age from 3 to 17. When two Black jurors accused her of not caring about the race of the defendant, she said she was tempted to show pictures of her dark-skinned mother and brother.
“You can’t call me a racist except in ignorance,” she said. “If it was my brother who was accused and the same set of facts was presented, I could have voted guilty of first-degree murder … That’s what the evidence showed. It’s not a racial thing. It’s a crime. He is the killer. I don’t care what race he is.”
But other members of the diverse jury did, she said. And once the narrative set in that she “did not care” about sending a Black man to prison for life, it was impossible to reset it, she said.
When this went public, it raised the nightmare scenario of racial juror activism, the fear that in the current climate, jurors would refuse to convict a black person for murder not because he wasn’t guilty but because of race. However, there may be much more to the story than the foreperson’s claim that the compromise verdict was grounded solely in race.
I am married to one of the jurors. There is a lot of missing information in the 2-minute newscasts and 20-second sound bites that we all hear in the media. The prosecution didn’t come close to getting a 1st degree murder conviction, let alone a death sentence. And it is a misrepresentation that one of the jurors said they would never put a young Black man in jail for the rest of his life. That simply wasn’t said in that type of context. Race had nothing to do with it.
There’s a plausible narrative that more than one person was involved in this crime, and if you go back to the news stories in 2014 you will see that investigators were searching for more than one suspect. The jurors agreed that the victim was murdered, they agreed Resiles was at the scene and therefore they agreed he is guilty of murder. But not 1st degree. Resiles DNA was at the scene, but it was NOT on the murder weapon. There was no evidence Resiles entered the property armed and the two knives found at the scene were both owned by the son, including the murder weapon. There was nothing of noted value taken from the home. This is a highly secure, upper class gated community and yet there were no camera images of anyone coming or going from the home. There’s more detail that I will not divulge, but there were enough gaps in the narrative & evidence provided by the prosecution to support the notion of reasonably doubt.
Bottom line is there is almost always more to the story than what we hear in the media. These jurors were all dedicated and did the best they could to reach an appropriate level of justice based on the complexity of the law (the jury instructions were more than 30 pages long).
This, from an anon commenter to the news story, may be accurate or a wholesale fabrication. And to be fair, the foreperson’s assertion that the three who refused to consider murder based on the race of the defendant may as well be inaccurate, even if that’s what she sincerely believes to be the case.
Jury deliberations are secret so they can freely discuss, argue and debate the merits of the case. And experience is that jurors take their responsibility very seriously and try their best to render a fair verdict. But the foreperson’s assertion raises the specter that activist jurors are tainting the integrity of the verdict.
Even if she’s wrong, this suggestion will give rise to concerns that will impact voir dire, the makeup of the jury, and worst of all, demands for investigations and intrusion into the jury deliberations. There is much to criticize about our jury system, but the potential that jurors are refusing to render verdicts unencumbered by ideological concerns can make the system, and efforts to improve the system, worse. We need to able to trust the integrity of verdicts or trials become a charade and there can be no trusted finality to the jury’s verdict. That would be a disaster.
I feel like that song could apply to every one of Scott’s posts
Is it really a bad thing for there to be more scrutiny of jury deliberations? Assuming the foreperson’s report is accurate, this raises a similar concern as in Pena-Rodriguez v. Colorado, the main difference being that this case resulted in a hung jury rather than a conviction. As you point out, jury nullification is actually pretty common, and I would be surprised if the main form of it, conviction when reasonable doubt remains, was common knowledge outside of the defense bar. Is there not potential for positive developments if the public at large, or at least the media, is more willing to scrutinize deliberations?
Can you imagine the post trial maneuvering if deliberations were fair game to upset a verdict? A sweet little payment to an avaricious juror would be all it takes. Or for the less greedy, it might only require the adoration of 1000 people on twitter. Would this be a positive development?
No, but a payment to an avaricious juror is already available if you’re ethically compromised enough to do it, and jurors can be swayed in deliberations by social media as it is. Deliberations are fair game to upset a verdict on narrow grounds now, per Pena-Rodriguez. All I’m saying is that if we examine juror deliberations, we well might find that it is more common than we thought for jurors to reach a conclusion on grounds that we shouldn’t support. Race is one possibility, fear of the defendant overriding their duty to convict only when convinced beyond a reasonable doubt is another. Whatever the reason, it seems like something worth knowing. Scott’s right that we need to be able to trust jury verdicts, but if there’s something regularly occurring that should make us lose trust in those verdicts, we can’t fix the problem if we don’t look into jury deliberations.
If my opinion of what happened were based purely on the outcome, I’d be pretty happy. I’m gonna disregard the anon commenter’s version of events and assume the jury concluded Resiles was guilty of murder in the first degree, but nullified him down to manslaughter. According to the relevant Florida statutes, that means he trades a capital felony (death or LWOP) for a felony in the second degree (max 15 years, and he automatically gets the max if he’s a “prison releasee reoffender”). Cool. I happen to think 15 years is a pretty decent sentence for murder, though I get that’s a minority opinion among Americans.
But. If the jury got there because of Resiles’ race, it made a serious mistake, conflating the general (the plight of Black Americans) with the specific (the need to see justice done in Resiles’ case). Each defendant’s case is unique, and each defendant, irrespective of his skin color, should be able to trust that his jury will render an appropriate verdict based on the relevant facts and law. Should juries consider sentence length as relevant? Yes, I think so, as I’ve argued in the past. But a disproportionate sentence doesn’t become more or less so because the defendant’s skin contains more or less melanin. Juries that trade particularity for sweeping pop-political racial assumptions aren’t going to serve the criminal-justice system, or CJ reformers, well.
That’s a lot of words to say you’re cool with jury nullification if it’s done for the “right reasons”. You gloss over the fact that they can’t follow the rules on their worksheets if they are considering sentence at all. If they can’t follow simple rules on a worksheet, why should their verdicts be trusted at all? Why do you think they’d follow your rule to consider sentences?
I try to be more respectful to you than my norm because other people here seem to know you, but you don’t answer my questions. They are sincere. You don’t owe a stranger anything of course, but I’d appreciate a response on the jury nullification bit you keep going on and on about. Everything you say about it here horrifies me, which is why I’m interested in your opinion. If you’ve written about it, where?
I don’t remember you asking me questions about jury nullification before, but I’ll take your word for it and apologize for not getting back to you. And you don’t need to be respectful to me on account of others, I’m just another commenter.
To be clear, I am cool with jury nullification as long as it’s done for the right reasons. That said, I don’t dismiss the prospect of juries nullifying “in the wrong direction,” and posts like these raise the specter of juries nullifying in the right direction but for the wrong reasons, a possibility I may not have taken seriously enough in the past.
I don’t remember having written a blog post on juries before, but I helped my former boss at Cato, Clark Neily, write a law-review article that sums my position up pretty well.
[Ed. Note: While this violates the no links rule, David gets greater latitude than others because I love him and because I’m confident no one will read Clark’s article anyway.]
Why do I get the sense that you included that [Ed. Note] just to get people to look at the lew review article? You almost had me, until I remembered that panel you did with Neily a few years back and I remembered how little he grasped about crim law.
Not today, Satan. At least not me. I can’t speak for PK, but who can?
Sometimes I can. If the article represents how DML thinks of the issue I can look past who wrote it despite witnessing some things that displeased me from the author, I think.
It’s behind a paywall so this version of PK retracts my statement. I did read the free page though.
It was exaggeration that you never respond to me. I have trouble breaking character.
I know I’ve expressed my terror to you before because I think you’re opening Pandora’s Box but worse because you know what’s in there already or you don’t know what’s in there but should know it could be bad. I don’t know what’s worse and I’m scared of juries going off script.
Thanks for the response. You’re no regular commenter with the love and special dispensation for the link from the Host. It’s obvious you’re special. Own it.
Juror A: Well, I don’t think he killed her intentionally, but it was certainly reckless.
Juror B: Well sure, but if we only convict this piece of shit for manslaughter, he gets 15 years. You want this guy coming to your daughter’s house.
Juror A: Good point. This guy should never see the light of day.
All Jurors: Murder!
Remember, most of America thinks sentences aren’t harsh enough. Give them the room and they may well take advantage of their flexibility as jurors, just not in the way reformer want.
Yup. Nullification is a double-edged sword. At least in Resile’s case, it may have been swung at the right target.
Well, special rights for black people has been a focus of at least some elements of the BLM “movement.” Also, commentators such as Elie Mystal have openly called for race-based jury nullification in cases where black defendants are charged. It is not shocking to see the notion surfacing with the deliberations of an actual jury. This is their one, small blow against the “systemic racism” that is in the media every day.
One news report said that the knife with Resiles’ DNA was not the murder weapon, but a different report said it was the murder weapon. Only his DNA plus the DNA of the victim and her husband were identified, according to another news report. The person who last handled an object does not necessarily leave the most DNA, according to a 2013 review article coauthored by a defense witness, Allan Jamieson. Dr. Jamieson also raised the possibility of contamination, but I don’t know his reasons. Given that the defendant’s DNA was found in at least three samples, any putative contamination event would have to explain all of them. As far as I can tell, either the defendant or someone else might have handled the murder weapon.
Overall, I agree about being concerned/mindful re the posibility of jury nullification, but here comes the but, this seems more to me that the forewoman was butthurt she didn’t get her way on the top charge. Apparently, it was heading 9 to 3 her way at one point then went the other way? The 3 had to convince 8 other people besides her. Instead of sticking to her guns, she made a public stink in court afterwards and futher blamed the failure to convict on her preferred charge on the “narrative” created by the 3 who “won” the argument . Meh.
I always thought the purpose of polling the jury was to confirm that the verdict had been reached unanimously and that each juror had in fact voted and agreed to the announced verdict and to make sure that no jurors had misunderstood what verdict was going to be reached. I know there have been cases in which juries announce a verdict but it turns out somebody checked the wrong spot on the verdict form or the verdict is not unanimous because the jurors misunderstood the instructions and think a verdict only takes a majority or that lack of agreement means some verdict by default.
When a juror says it is “not her verdict,” I figured that meant something like”that’s not my verdict because that’s not the count I thought I agreed to in deliberations” or “that’s not my verdict the other jurors never persuaded me to change my vote.” From the way the forewoman described her experience, it sounded like she knowingly agreed to manslaughter as the compromise verdict and they completed and signed the verdict forms accordingly and submitted them to the court, but then the forewoman regretted agreeing to manslaughter after the fact and so subsequently disavowed the verdict when she was polled. So if a juror knowingly agrees to a verdict but then regrets it shortly afterward and denies the verdict when polled, that is enough to totally nullify the verdict? Even if the juror admits having previously agreed to the compromise count?
“Juries are instructed that their role is to determine whether the defendant is guilty of the crime charged beyond a reasonable doubt, and they are not to consider possible sentence”
This is interesting because as a fairly new lawyer, I have seen during voir dire in Virginia prospective jurors asked if they would have a problem convicting a defendant if the charge opened the defendant up to life in prison or even the death penalty. It makes me wonder why, if the punishment is not the purview of the jury, then why would disqualifying a juror based on his/her stance on a punishment would be permissible?