Dem 51
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GOP 49
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I, The Jury, Part VIII: In the Jury Room

As we note above, we move today into reader accounts that speak to the dynamics inside the jury room:

R.H. in Corning, NY, writes: I served on a jury a few months ago on a DUI/DWI case. In my opinion, the voir dire process was less than thorough. The prosecuting attorney should never have let me (a research scientist) anywhere near this jury. On a daily basis, I follow industry standards to test glass durability. In this case, the state trooper did not follow national standards when performing the roadside sobriety tests. We were able to see some of the testing (and his multiple errors) on body camera.

I think the defendant was likely guilty, but had to vote not guilty due to the lack of rigor during the roadside testing. On the other hand, fully 50% of the jury voted not guilty because "I've seen drunk people before, and he just didn't look that drunk to me." My faith in the jury system took a hit that day when we ended as a hung jury.

R.B. in Brooklyn, NY, writes: I was on a hung jury 30 years ago in New York (Manhattan), and my sense of how differences of opinion stacked up among the jurors is probably still relevant. The crime was a cocaine sale, for which another defendant had already been found guilty in a separate case. Our defendant was alleged to have directed the deal (while keeping his hands clean by leaving it to the other guy to exchange drugs for money), but he claimed to have been an innocent bystander who merely provided directions to someone who asked him where to get drugs nearby—not itself a crime. The defendant was a dark-skinned Latino man in his 20s (native New Yorker, from his accent) who worked as a building superintendent in the neighborhood, and he claimed to have just spoken to the buyer briefly while on his way to get cigarettes nearby. He'd been fingered by an undercover cop as participating in the deal, but the truth of that was unclear. One issue was where, physically, the arrest took place: The arresting officer didn't testify, but another policeman from the team (in what was actually secondhand testimony) reported that it happened on the street corner (14th and 3rd, now rather less seedy), where the seller was presumably awaiting customers, whereas the defendant said he was grabbed inside the nearby convenience store while buying his cigarettes. The undercover cop had moved on by that point, and the storekeeper didn't testify; afterward a defense lawyer told us he'd confirmed the defendant's statement but wouldn't testify because of immigration issues.

So to my mind we had: (1) an undercover cop viewing the situation and fitting the participants into an idea he had of what was likely to be happening—maybe rightly, maybe not; (2) another police officer giving hearsay testimony; (3) the arresting officer not appearing, for unclear reasons; and (4) no other eyewitnesses but the defendant to either his discussion with the buyer OR the arrest (the location of which seemed crucial). With all that, I was simply not convinced of the defendant's guilt beyond a reasonable doubt, and I could believe that he might know who sold drugs there and not have a moral objection to telling a passerby—but some jurors found that unbelievable. That and the arrest location were our main sticking points during deliberations, and we clearly split on whether we believed the defendant's story, and especially the plausibility of his telling someone where to get drugs if he wasn't in cahoots with the dealer, along three very clear measures: younger to older, darker to lighter skinned, and female vs. male. (We were roughly half and half on all three measures; I'm a white woman and was then in my mid-20s). Although I could only guess at this, there were also almost certainly splits on political lines, which the gender division may have reflected. We also had similar splits over the undercover cop's theory of the defendant's actions (the undercover, incidentally, was also a young, mixed-race man)—older, white, and male jurors tended to believe it and younger, darker-skinned, and female jurors were skeptical.

For my part, I believed the undercover cop thought he saw the defendant participating in a crime, but I wasn't convinced his take was accurate; and I could easily imagine the defendant's possible mindset (maybe "I'm going to answer this question so I can get away from the fool who asked it out in public.") Most importantly, I didn't think the prosecution had proved their case and felt they'd done a sloppy job of trying. Seven other jurors of the 12 had more or less the same opinions, and 5 believed the defendant was guilty. (From a couple of the male jurors, I got a strong whiff of "You're just soft-headed women who refuse to believe the worst of anyone.") We deliberated for almost 12 hours, minus lunch and dinner breaks, and ultimately, the second time we reported being unable to reach a verdict, the judge dismissed us without one. I don't know if the case was retried but doubt it.

S.L. in Glendora, CA, writes: I haven't served on a jury, but my father served twice, leaving him with very little respect for the jury system. I sincerely hope that his experiences don't give us any insight into what may happen in Donald Trump's trial. In both cases, the defendant was clearly guilty, yet there were jurors who balked at conviction.

In one trial, the defendant had been caught by the police redhanded taking a television out of a day care center. There had been another young man also removing things, but he was faster and had gotten away. The defendant's story was that he didn't know he was stealing anything. The other guy had told him that the daycare wanted some things moved and asked him to help. It hadn't occurred to him that there was anything suspicious about moving the stuff in the middle of the night. A couple members of the jury thought he should be acquitted because it wasn't fair that he was being punished while his partner in crime had gotten off scot free. It was just a shame that he just couldn't remember who the other guy was. My father was jury foreman, and he said he just refused to let anyone leave until they all agreed to vote guilty.

In the other trial, a man got very drunk and took a large kitchen knife next door and robbed his neighbors, who knew exactly who he was and had no trouble identifying him. He had then staggered out into the street where he dropped the knife and much of the cash on his way home. The police recovered the rest of the cash and returned it to the neighbors. Despite the overwhelming evidence, one woman on the jury wanted to acquit. Her argument was that since the neighbors had gotten their money back, it was no harm, no foul. What was the problem, anyway? My father said he picked up the knife and walked toward her asking if that made her feel threatened. She voted guilty.

There is no guarantee that there will be someone like my father on Donald Trump's jury.

S.B. in Granby, MA, writes: Many years ago, I served on a jury for a rape trial. The trial was held in a small city (fewer than 30,000 people). But three of us on the jury were from the same small town (fewer than 6,500 people) and two of the three from that town even worked in the same place. So I have a lot of doubt about the randomness of jury pool selection.

I don't remember much about the voir dire process or how we selected a foreman. I do remember that after 2½ hours, and a long afternoon of debate, it came down to 11 of us voting for not guilty and one hold out who voted guilty. Now to be clear, most of us felt that there was a very likely chance that the rape really did occur, but we had been charged appropriately by the judge to weigh the evidence and decide if the case had been proved beyond a reasonable doubt, and quite frankly, the poor girl had the most pathetic lawyers imaginable. They simply didn't do the job of providing sufficient proof. They wasted a lot of time paging through their notes and occasionally asking a useless question. The one holdout on the jury just kept insisting that he believed the defendant had done it. The rest of us eventually wore him down, but none of us felt good about it. The judge talked to us after the trial was over and sympathized with our feeling, but told us we had made the only decision that could reasonably be made. Even she insinuated that the lawyers for the girl had been pretty bad.

So based on that one experience and then reading the other juror stories so far, I am worried. Florida is way too Trumpy for my peace of mind. The one thing that I pin my hopes on is that by all (intelligent) accounts, Jack Smith is no dummy, nor is this his first ride on the merry-go-round. I have to believe that he has already anticipated everything that could go wrong and has his plans mapped out for each possible situation.

V.H. in Lexington, MA, writes: I was on a jury shortly before COVID hit. It was a medical malpractice case. The wife was suing the anaesthesiologist and a physician's assistant after her husband died following surgery on his spine. The witnesses were all doctors, and gave highly technical testimony about the procedure and post-operative care. We the jury were following along as best as we could, and trying to digest all the conflicting testimony. As we weren't allowed to discuss the case until the very end, I spent a lot of time worrying about how I was going to convince the other jurors that the plaintiff's case didn't make any sense, and was mostly centered on appealing to our sympathy about the terrible outcome. I was particularly worried, as the anaesthesiologist was clearly a Chinese immigrant, and the plaintiff's lawyer also seemed to be subtly appealing to our racism while making his case.

After around ten doctors testified, we finally got a chance to discuss it. It turned out that all the jurors were thinking along exactly the same lines I was. The most articulate among us was an unemployed landscaper who expertly poked holes in the plaintiff's case. We spent around an hour and a half reviewing the case, mostly as a formality, and then basically cleared the defendants of all charges. I needn't have worried. Very smart jury, and my confidence in the legal system was much enhanced.

Some of these accounts don't align with what we wrote above about replacing rogue jurors. There are two primary reasons for that: (1) replacing rogue jurors is something many judges are loath to do, and, more importantly, (2) the rules governing state courts are often quite different from the ones governing federal courts.

More on this subject next week. (Z)

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