We're always asking jurors to tell us what deliberations were like, and often their stories are inspiring. In these accounts, jurors from all walks of life work together with respect and sincerity to reach the best verdict they can, bringing life to that shining gem of American justice, the jury system. Research confirms that these highly functional jury groups are not rare (we've talked about one example, a Seattle survey of actual jurors), and I see the same kind of effort and good will in mock juries regularly.
"Shut the . . . up!"
And then you get a news story like this, from the Philadelphia Inquirer this week:
Jury deliberations in the rape trial of Jeffrey Marsalis were cut short yesterday after angry shouting erupted among jurors. At one point, one of the jurors yelled, "Shut the . . . up!", according to court staff.
A sheriff's deputy and court staff had to go in to break up the fray. (Yesterday the jury came back with a split verdict.)
Those stories come up more often than jury fans like me would like to think. Last month the Eighth Circuit had a case called U.S. v. Eizember, where one juror started telling the others that Mr. Eizember had been prosecuted before and "was going to fry anyway." But it was all right, the court said, in part because most of the other jurors couldn't hear these comments. How could they, over the din?
Some of the jurors said that they had tried to drown out what the offending juror was saying and stop him from talking. One juror said that once the offending juror began talking "everybody was screaming, so there was a lot of confusion."
Verdicts in the jungle
In these chaotic jury rooms, outcomes can change. It's likely, for example, that some holdout jurors become more entrenched when deliberations become angry and dysfunctional. More likely to come up on appeal are the cases where the pressure makes the holdouts give up.
Just yesterday, two appellate courts decided cases where holdout jurors reluctantly went along with the group. In one of them, an Eighth Circuit habeas case called Pederson v. Fabian, the tenor of jury deliberations wasn't described, but it's easy to imagine that the holdout juror felt pressure when she said (in the prosecution's post-case questionnaire) that "I know a person is supposed to be innocent until proven guilty, but in reality it didn’t work that way," and that she had disbelieved the accusing witnesses and believed the defendant.
In the other case, State v. Wery here in Wisconsin, the holdout juror "had been the lone holdout during deliberations and had taken 'a lot of heat' from the other jurors, but she had ultimately agreed to join the other jurors in the guilty verdict," according to the jury's foreman. Both verdicts were affirmed, even though in Wery the juror changed her mind while the trial was still in progress, in the sentencing phase.
Helping juries function
What will happen to your case if the jury can't function, and what can you do about it? A couple of ideas:
- Watch them. You won't always know if there's a storm coming, but you might. Are they laughing and joking in the hall, or are they forming little cliques? Are two of them straining their backs to lean away from each other in their assigned chairs? Do all but one of them wear matching shirts on Valentine's Day? The one who argued with everything both lawyers said in voir dire is likely to argue with his fellow jurors too, and the one who said his prior connection with the law was after a bar fight might have a temper.
- Teach them. If you need consensus and unanimity, use your closing to offer the group tools to get there. A couple of simple web searches will produce many lists of such tools and techniques. Some that are particularly relevant to juries are to agree ahead of time on the "ground rules" for the conversation (no one interrupts, everyone will work patiently to understand other points of view); to set time limits for a couple of people to hash out an issue while the rest listen; to keep referring to the group's goals (here, the instructions and special verdict); and to use time lines and poster lists to make the process more concrete and less interpersonal.
- Coach them. On the other hand, if you know you may need a holdout to hold out no matter what, you can use part of your closing to challenge jurors to rise to the kind of resolute conviction that holding out requires, while patiently defusing the chaotic atmosphere that can make holding out more difficult.
(Photo by Fabio Venni at http://www.flickr.com/photos/fabiovenni/67877557/; license details there.)
