How often do holdout jurors give up so they can go home? Too often. You can't fix it after it happens, so it's worth some thinking in advance.
I wrote recently about the alleged "quotient verdict" in the Procter & Gamble/Amway case in Salt Lake City. (Briefing continues there on whether the defendants get a new trial.) Last month, the Third Circuit considered another kind of compromise verdict: the "come on, let's just get out of here" kind.
The case is United States v. Lakhani, and the opinion would have been shorter if the case hadn't first been featured on NPR's This American Life. As the court explained, Helmant Lakhani "was a trader (i.e., a 'middleman') and didn’t limit himself in scope — groceries, rice, textiles, oil," and weapons, which he sold both legally and otherwise. He answered the phone once too often, and wound up negotiating to sell a missile to a government agent. To add insult to injury, it was a fake missile, filled with sand, provided to Lakhani by other government agents for the occasion.
"Aw, what the hell"
The defense was entrapment, and one juror, Juror No. 9, agreed with it. No one might ever have known that No. 9 wanted to acquit, except that This American Life interviewed the jurors. Juror No. 6 described the din as No. 9 held to her position:
The juror who felt that he was not guilty, I think, felt overwhelmed by probably a good 6, 7, 8 jurors talking loudly at the same time, that actually turned into screaming to be heard. It was probably very intimidating for her. . . . ‘Cause she [juror number nine] was the only one that thought that he was not guilty.
Then listeners heard No. 9 explain in her own words how she gave up -- not exactly so she could go home, but more so she could have a home at all:
Now this is how that happened. I just closed on a house in Virginia, and everybody [in the] juror room knew it ‘cause the court was closed down on April 25th so I could go close on the house. So when we came back, I think we started deliberating on a Wednesday, and when we got to [t]hat count and I said the man [is] not guilty, and there ain’t nobody gonna change my mind. And the jury foreman said [that] if I didn’t go along with them, I wouldn’t see the inside of my house until December. So, I said aw, what the hell. He don’t mean nuthin’ to me. The man guilty. But I know it was wrong. It wasn’t right to do that man like that. It wasn’t right. But it’s over now.
Nothing you can do
The Third Circuit had no trouble upholding the verdict. Rule 606(b) prohibits juror testimony about anything but "extraneous prejudicial information" or "outside influence," the court explained, buttressing the point by noting that the rule goes back to 1785. This jury's discussions, the court continued, were
so clearly within the rule and outside the exception as to make it difficult to give an explanation beyond stating the rule itself: “we do not permit jurors to impeach their own verdicts.”
"Though explaining a vote with the phrase 'He didn’t mean nuthin’ to me' is hardly heartening," the court continued almost gently, "human frailty sometimes happens."
Home again, and again
To judge by mock trials and "jury duty" blog feeds, this particular kind of human frailty happens regularly -- not the rule by any means, but a common exception. A search for juror bloggers who used the word "outvoted," surely the tip of any iceberg, yields stories here and here of holdout jurors giving up, just this spring. (In at least one of these, the jury was instructed that a majority verdict was sufficient, but as best I can quickly tell, the other would not have been.)
After the verdict, there is nothing you can do. The time to strengthen your client's jurors is in closing argument. When jury deliberations get loud and stuffy and late, your client needs to mean something to your Juror No. 9. What will you say to her?
(Photo by Sister72 at http://flickr.com/photo_zoom.gne?id=88844769&size=m; license details there.)
