I quickly shot out, 'I recommend we take a quick poll to see where we stand.'
A woman interjected, 'No, let's wait. I don't feel comfortable doing that so early.' I had hoped popular sentiment would lead us to decide this thing quickly, but underestimated the apparent sympathies among some of the jurors. I decided it best to let others speak. They were wanting to speak, so I let them speak.
Whoa. Is it the latest John Grisham? Scott Turow?
No, it's Juror No. 8, blogging the California burglary trial of Donald McNeely in 2006. He blogged at such length and with such gusto that he sent McNeely's conviction -- to which, by his account, he guided the jury with powerful insight and skill -- to the California Court of Appeals, where it was vacated this week.
[F]or the next hour-and-a-half, the jury in the People v. Donald the Duck slowly congealed into a rational, investigative body of folks who ultimately realized that stealing was wrong, and that we ought to act responsibly. All, that is, except for Brad, the confident, muscular skinhead character with a carefully shaven goatee sitting directly at the head of the table, to my right. This cocky young fellow I had unease about since seeing him lope down the hallway on day one. He had stared at me for just a second or two too long when he first saw me, expecting some sort of acknowledgment to his presence from another white guy.
Trouble ahead.
It wasn't just that Juror No. 8's blog cast him as the Chuck Norris of this jury. The blog posts started in mid-trial, not after the verdict -- and they revealed that No. 8 had lied in voir dire, claiming he was his office's "project manager" and omitting the more accurate term "lawyer." ("More neutral than lawyer, don't ya think?" he crowed in the blog.) "This is a situation where a manipulative person, who unbeknownst to other jurors and the trial court was also a practicing attorney, deliberately maneuvered himself into the position of foreperson and potentially hastened the jurors to a verdict," said the troubled Court of Appeals.
At this point, the deliberations took a turn for the unexpected. The stiff man to my right, Brad, Mr. Tough Guy, blurted out, 'I can't believe you people. You're spineless! Can't you see this guy did it?! I know about justice, man, I have a friend in jail for attempted murder. Until you lose something yourself, you never know! I know, man! Come on!' His voice rose as he got excited that he finally had the attention of everyone in the room . . . . "
Gil spoke up. 'Who are you calling spineless?' Brad continued unrepentant. 'I mean, this is wrong. We got to put this guy away. Why do you think we're here? You don't know, man! I know! Unbelievable that we're gonna let this guy walk! Not me! '
The lying part was easy for the Court of Appeals. When you intentionally mislead the court and lawyers about something they would fairly want to know, the court explained, there's a presumption of prejudice. To let the verdict stand, the trial court should have not only reviewed Juror No. 8's writings, but also talked to him, and any other juror willing to talk. (It's all about the Ask.)
The court struggled a little more with No. 8's leadership role, let's call it, in the deliberations.
I decided to shut him up. 'We're all bringing experiences to the table, and I'm making the count now. This is not a perfect process. Don't let the perfect be the enemy of the good.' Suddenly my wisdom bell was ringing like a church bell at a wedding. I said rather sternly, 'Give me a "guilty" or "not guilty," no commentary[.]' Around the room, I polled everyone individually. Each voted guilty on count five. I signed the jury forms then asked Bonnie, closest to the door, to buzz [t]he bailiff.
It was too much for the Court of Appeals. "Assuming Juror No. 8 was reasonably accurate in his recitation of what went on in the jury room," the court said (and I'll pause here to let the reader consider that assumption), the possibility of pressure, coercion, or a compromise verdict was too strong. The trial judge was ordered to bring back Juror No. 8 and his colleagues, and question them about "the integrity of the deliberative process," "the overt events and circumstances of the proceedings in the jury room," and presumably whether anyone else heard No. 8's wisdom bell. The court said:
An inquiry into these matters would not violate [California] Evidence Code section 1150, subdivision (a) because it would not require investigation into the subjective reasoning processes of the individual jurors.
That's where we'll pick up with the exciting sequel tomorrow. Okay, less exciting, because it will talk about things like how this opinion would have been different under bthe federal rules -- and how, entertaining as it is, No. 8's blog isn't really the issue.
__________
Notes:
- Kevin O'Keefe at Real Lawyers Have Blogs was one of the first to pick up this story, as he is early to pick up just about anything that occurs near the corner of Law and Blog.
- I looked for No. 8's blog posts and couldn't find them; I'm guessing they've been taken down. The Court of Appeals opinion excerpt, though, goes on for pages.
- Later in this three-part series: "Blogging Jurors: The Good."
- Far more seriously, thanks to Clay S. Conrad of jurygeek for his comment yesterday on activist jurors. That post began when a white supremacist wrote to me saying white jurors should use what the writer called "jury nullification" to acquit white defendants accused of harming African-Americans and immigrants. Conrad argues that such verdicts often aren't jury nullification at all.
(Photo by Kreg Steppe at http://www.flickr.com/photos/spyndle/485472993/; license details there.)
