Deliberations

Here's How To Pick Alternates . . . Next Time

A Seventh Circuit opinion today requires a quick break from Deliberations's holiday break.  United States v. Mendoza instructs trial courts in the Seventh Circuit on how to, and how not to, select alternate jurors in criminal trials. 

Alternates at random

In Mr. Mendoza's drug trial in Indiana federal court, the trial judge selected alternates in a way that will sound familiar, at least to lawyers who try civil cases:  the whole group (sixteen, in this case) heard the evidence, and then alternates were selected at random and sent home.  In Mendoza's trial, the only Hispanic juror turned out to be one of the four alternates, and Mendoza challenged this result and the whole idea of selecting alternates by drawing straws after the evidence is in.

Judge Rovner, writing for herself and Judges Kanne and Posner (both of whom have expressed strong views about jury management, see here and here), declared the random method to be error -- harmless error here, but error just the same, and not to be repeated.  The opinion starts with Federal Rule of Criminal Procedure 24(c), which provides:

(c) Alternate Jurors.

(1) In General. The court may impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.

(2) Procedure.

(A) Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.

(B) Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.

"We now request that the district court discontinue its current practice"

Since this is a holiday break post, I'll spare you analysis.  Here's how the opinion goes on from there:

We have said that Rule 24(c) contemplates selection of alternates “either by the jury-box system or by a struck-jury method in which defendants know the sequence in which members of the pool will be seated.” United States v. Patterson, 215 F.3d 776, 780 (7th Cir. 2000), vacated on other grounds, 531 U.S. 1033 (2000). Rather than seating the jury and alternates separately, the district court seated 16 tentative jurors with the intention of randomly naming four of them as alternates just prior to deliberations. There may well be benefits to selecting a jury in this manner. For example, all 16 tentative jurors may be more likely to devote their full attention to the evidence presented given the likelihood that they will not be selected as an alternate. If an alternate replaces a juror during deliberations, the collective knowledge of the newly constituted jury would be less likely to suffer.

But this is not the procedure prescribed by Rule 24, nor is this a matter entrusted to the sound discretion of the district  court. See United States v. Delgado, 350 F.3d 520, 524 (6th Cir. 2003) (noting compliance with Rule 24 is exception to district court discretion in jury selection). Rule 24 assumes alternates will be selected separately and sequentially prior to the presentation of evidence and provides for additional peremptory challenges for the parties to use specifically against potential alternates. By delaying the identification of the alternates until after the parties presented evidence, the district court erred. See Delgado, 350 F.3d at 525; United States v. Sogomonian, 247 F.3d 348, 352-53 (2d Cir. 2001); United States v. Brewer, 199 F.3d 1283, 1287 (11th Cir. 2000); United States v. Love, 134 F.3d 595, 601 (4th Cir. 1998); United States v. Olano, 62 F.3d 1180, 1190 n.3 (9th Cir. 1995). As a result, Mendoza was unable to exercise peremptory challenges specifically against alternate jurors. See Fed. R. Crim. P. 24(c)(4). Notwithstanding the logic of this practice and its vintage in the district court, we must join with our sister circuits in “encouraging strict adherence” to the rule, and we now request that the district court discontinue its current practice. Delgado, 350 F.3d at 525; Love, 134 F.3d at 601 (quoting United States v. Sivils, 960 F.2d 587, 594 (6th Cir. 1992)). 

(Photo by Luke at http://www.flickr.com/photos/lucianvenutian/1263540856/; license details there.)

Deliberations On Holiday

I'm taking a blogging vacation for the next two weeks, the better to focus on family and friends as the year ends.  It's an even better time to take a break than I thought it would be:  Corrections Sentencing is doing my blogging for me, reporting an amazing story of jurors who found evidence in the jury room that the police and lawyers for both sides had missed.

I may do a pointer post here and there, and I'll keep flagging "In The News" stories.  (You can subscribe to those, but it's a separate subscription from blog posts.  The feed for "In The News" is here.) 

Happy holidays, and see you in January.

(Photo by Justin Russell at http://www.flickr.com/photos/nightthree/308307526/; license details there.)

Wisconsin, Where Juries Matter

I often find myself writing about cases where jury trials were messed up, from badly to horribly, and appellate courts forgave -- or didn't see -- the problem. 

"This case must be retried on facts"

There's been a run of exceptions lately, though, right in Deliberations's backyard.  In the last several weeks, different Wisconsin appellate panels have looked at trials where criminal juries saw or heard something they shouldn't have.  In each case, the courts reversed the convictions with striking firmness and clarity.  Examples:

State v. Stanley on December 12, a drunk driving case where the deliberating jury asked whether it was still "operating" if the defendant got into a car when the motor was already running.  Quoting a prior case, State v. Proegler, the trial court told them that "operation" meant “either when a defendant starts the motor and/or leaves it running.”  The court of appeals said that facts mattered, and that Mr. Proegler in the prior case had admittedly driven to the place where police found him.  Stanley's case was different:  "We do not read the statute or the Proegler case to include as operators passengers who slide into the driver’s seat of a running vehicle and fall asleep."

State v. Champlain on December 5, where the defendant had to sit through trial -- and write notes to his lawyer -- wearing a visible "armband taser device."  The court held that it was not only ineffective assistance for his lawyer not to object, but that the trial court should have determined whether the armband was necessary even without an objection. 

State v. Cooper on December 4, where the state used a "show-up" identification that should have been suppressed under the Wisconsin Supreme Court's 2005 State v. Dubose case.  Dubose was decided after Cooper's trial judge had ruled that the identification would be admitted, but before Cooper's trial.  The court of appeals held that Cooper's counsel was ineffective for not asking for reconsideration of that ruling after Dubose came down, and that anyway the trial court should have granted postconviction motions based on Dubose. 

State v. Burton on October 31, where a police "gang expert" testified for the state.  The court of appeals was mad: 

The expert's testimony insinuated, without any basis, that Burton was a part of the gang culture, if not actually a member of a gang. It recast the case as being about gang retaliation or gang culture, anathema to the reasonable citizen, when there was no evidence that the shootings were gang crimes. Not only that, the testimony also purported to explain away the inconsistencies of witnesses simply because gangs infested the neighborhood in which the witnesses lived. If this had any probative value, which we doubt, it was far outweighed by prejudice. Ascribing the purported motivations or truth-telling tendencies of an entire neighborhood to one of its residents is not an acceptable form of impeachment. This case must be retried based on facts, rather than insinuation or stereotyping.

Another court in another state -- or here, on another day -- might have steered these cases toward a finding of harmless error, waiver, or some other way to salvage the trial, citing the burden on society when trials have to be done twice.  There's a place for those arguments sometimes, but they're overused.  I can personally report that life is going on as usual in Wisconsin even though these trials will be repeated.  And a different burden on society -- the one we bear when nobody cares what juries see and hear -- is lifted.

(Photo of a Wisconsin field after this week's snows by Cathy Stanley-Ericksen at http://www.flickr.com/photos/madcitycat/2110974734/; license details there.)

How Do You Say Fifth Amendment?

A single word can make a big difference, especially when the word is the main noun in a critical jury instruction.  This week Mark Bennett began and Jamie Spencer continued a conversation about the pattern instruction Texas judges give when a defendant does not testify.  The Texas instruction is: 

You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify in this cause, nor will you refer to or discuss any matter not before you in evidence. 

Mark says, what failure?  "How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant's election not to testify -- the exercise of one of the rights that we, as defenders, hold sacred -- as a 'failure'?"  Jamie asks what other states do:  "Any of you out of staters have better jury instructions for this?"  The comments to Mark's post offer variations used in a few other states.

"The absolute constitutional right not to testify."

Wisconsin's pattern instruction is more neutral than the one in Texas.  It says:

A defendant in a criminal case has the absolute constitutional right not to testify.

The defendant's decision not to testify must not be considered by you in any way and must not influence your verdict in any manner.

The Seventh Circuit's pattern, 3.01, is similar:

The [A] defendant has an absolute right not to testify. The fact that the [a] defendant did not testify should not be considered by you in any way in arriving at your verdict.

You'd like to see something in there about why the right is in the Constitution and why we hold it sacred, but of course defense lawyers are free to argue that. 

Does it make a difference, that little word "failure"?  I don't know of specific research.  But if the human mind is so susceptible to vocabulary that simply hearing words like Florida, gray, wrinkle, lonely, and bingo can make us suddenly feel so old that we walk more slowly than normal, you can't rule it out. 

(Photo by Näystin at http://flickr.com/photos/naystin/513110523/; license details there.)

New Case, Old Law: The Seventh Amendment In The Ninth Circuit

Scholars love the Seventh Amendment, but for practicing lawyers, it doesn't come around much.  It's not often that a federal court of appeals gets to decide a good old-fashioned -- and I mean old-fashioned -- Seventh Amendment issue.  What exactly are the rules on when you get a jury trial and when you don't?  Today in Hale v. U.S. Trustee, the Ninth Circuit reviewed this rarely explored area, and got to rely on a 1908 Supreme Court case. 

"The judicial tyranny  that flows from the chambers of a biased Judge"

Big issues sometimes come up in small ways.  What was at stake in Hale was a $250 legal fee.  It was charged by Thomas Hale, an Idaho lawyer who provided "prepetition" services to debtors filing bankruptcy.  The opinion says that Mr. Hale prepared an bankruptcy petition for two debtors, but did not sign it or appear in the case.  The clients testified they did not understand they were appearing pro se and would need to be in court for important hearings; and the petition itself contained mistakes.  The bankruptcy judge found Mr. Hale's conduct unethical and his fee unreasonable, and ordered him to give the fee back. 

In addition to arguing that the bankruptcy judge was unfair ("This is not the first time that I have attempted to  protect the debtors and myself from the judicial tyranny  that flows from the chambers of a biased Judge"), Mr. Hale argued that the Seventh Amendment gave him a right to a jury trial on the issue of the reasonableness of his fee.

"The right of trial by jury shall be preserved"

In case you haven't looked at the Seventh Amendment lately, let's start there:

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.

Like so much of the rest of the Constitution, it's about line-drawing.  The clear cases are clear:  a negligence lawsuit is a "suit at common law," a request for an injunction isn't.  But where is the line between them, and on which side falls a a bankruptcy court's challenge to a lawyer's fee? 

The old 18th-century law courts test

The Hale court tells us that in Granfinanciera, S.A. v. Nordberg in 1989, the Supreme Court held that “[t]he Seventh Amendment protects a litigant’s right to a jury trial only if a cause of action is legal in nature and it involves a matter of ‘private right.’ ”  Granfinanciera set out a three-part test of this standard.  The first test is historical:  "First, we compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity."  The Granfinanciera court explained:

Although the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, the Seventh Amendment also applies to actions brought to enforce statutory rights that are analogous to common-law causes of action ordinarily decided in English law courts in the late 18th century[.]

The second test is the more mundane, and familiar, distinction between law and equity:  "“Second, we examine the remedy sought and determine whether it is legal or equitable in nature."  And the third test addresses that issue of public and private rights:  “If a claim that is legal in nature asserts a ‘public right,’ . . . then the Seventh Amendment does not entitle the parties to a jury trial if Congress assigns its adjudication to an administrative agency or specialized court of equity. . . .  A case asserts a public right if it “arise[s] between the Government and persons subject to its authority in connection with the performance of the constitutional functions of the executive or legislative departments,” . . . or involves “a seemingly private right” created by Congress “that is so closely integrated into a public regulatory scheme as to be a matter appropriate for agency resolution with limited involvement by the Article III judiciary.”

Good in 1908, good today

A court starting from scratch here might have a long opinion coming, but the Hale court found that the Supreme Court had decided this issue already.  In re Wood, a 1908 Supreme Court case, held that bankruptcy judges could assess the reasonableness of fees without a jury back when the Bankruptcy Act of 1898 governed bankruptcy courts.  The Ninth Circuit held:

The Supreme Court has not overruled Wood. In addition, Wood is consistent with, and reaffirmed by, Granfinanciera. Determining the reasonableness of a debtor’s attorney fees is not analogous to a common-law cause of action ordinarily decided in English law courts in the late 18th century; instead, it is closely integrated into the public regulatory scheme of bankruptcy law that Congress created. We hold that Wood remains binding precedent and forecloses Hale’s argument that the Seventh Amendment includes a right to a jury trial on the reasonableness of attorney fees in bankruptcy proceedings.

(Photo by Tom 7 at http://www.flickr.com/photos/brighterorange/58793871/; license details there.)

Judge Posner And The Jury Trial

There's no judge quite like the Seventh Circuit's Richard Posner.  Very few judges have a Facebook fan club, for example ("Richard Posner for Philosopher King," they call themselves; Judge Alex Kozinski has a fan club there too).  Judge Posner's opinions have their own searchable database, Project Posner.  Last December he appeared for an interview and book-"signing" on Second Life.  And of course he's a blogger, co-author of the wide-ranging Becker-Posner Blog. 

He's fascinating partly because his interests are so broad, and he pursues them so far.  He's written dozens of books on what seem like dozens of topics, from the groundbreaking Economic Analysis of Law to Sex and Reason and this year's The Little Book of Plagiarism.

He's interested in jury trials, too.  Although he was never a trial judge, he has presided by designation over "15 or so" trials, and told the Chicago Tribune, "I think I've learned a lot."  Last December, the article recounts, he dismissed an entire jury panel when he decided it was likely that one juror had talked inappropriately with the others.

"Why do you want to call this witness?"

When Judge Posner discusses jury management in his appellate opinions, it's with realism and flexibility.  The last few months include two examples.  In October, Judge Posner dissented with Judges Kanne and Williams from the court's decision to deny en banc review to former Governor George Ryan and his associate, whose crazy trial went six months including a five-day hiatus while the jurors themselves were under criminal investigation.  Their joint dissent is a short handbook of jury management in long trials. 

[F]ederal trial judges (bankruptcy judges and magistrate judges as well as district judges) recognize and discharge a duty of active trial management. (So much for the umpireal analogy.) They do not defer abjectly to the lawyers’ preferences regarding length of trial, number of exhibits, wording of instructions, and so forth. They often override the strong preferences of the lawyers on both sides regarding such matters. They are not umpires when it comes to management of the trial; they are directors of the drama that we call trial by jury. (Trials are closer to theater than they are to ball games.)

Trial judges can and should control long trials by quizzing lawyers on their witness lists and documentary evidence ("Why do you want to call this witness? If you do call him, what (in general terms) will he be testifying about? What will that testimony add to your case? How lengthy would his testimony be and what would he cover that requires that length of time? Do you really need witness X to discuss topic A when you already have Y to discuss it? Can the parties agree to a stipulation in lieu of some of the evidence?"), putting time limits on trials, and holding active pretrial conferences, Judge Posner and the others went on.  And they should do it before they're asked to:

None of these powers to prevent unduly protracted trials has to lie dormant until awakened by a motion. The importance of the trial judge’s vigorous exercise of his or her powers lies in the fact that a trial of the length of the trial in this case places excessive strain on the jury system. 

Why do all this?  So that the jurors can do their job, the opinion goes on, in an unusual statement of appellate empathy for jurors:

So now imagine jurors’ mental state after six months, bearing in mind that memory loss and the psychological or cognitive problems of jurors in a super-long trial compound the first problem, the difficulty of recruiting competent jurors for protracted trials: a less intelligible trial is heard by a less capable jury. The longer the trial, moreover, the likelier jury misconduct becomes. The jurors become bored, impatient, irritated; the judge’s instruction against discussing the case before the jury retires to deliberate becomes increasingly irksome and likely to be disobeyed. 

Bench trials and jury trials

The second example was last week in Olympia Express v. Linee Aeree Italiane, which starts out as a fairly dry civil procedure case.  The airline Alitalia was owned by the Italian government when Olympia Express sued it, and so the Foreign Sovereign Immunities Act required that "the action shall be tried by the court without jury."  Four years into the lawsuit, Alitalia went private, and the trial court changed course and allowed a jury trial.  Judge Posner's opinion for the Seventh Circuit held that the statute doesn't come and go as the defendant changes hands over the course of the lawsuit, and thus because Alitalia was government-owned when the lawsuit began, it should have had a nonjury trial. 

But instead of ending the opinion there, Judge Posner went further, making sure the jury trial the trial court held was not a complete waste.  For new lawyers figuring out the real-world differences between a bench trial and a jury trial, it's a nutshell guide: 

[T]o provide further guidance on remand, we address an ambiguity in the meaning of the term “nonjury trial.” Does it mean that the trial must be conducted in the absence of a jury, or merely that the “verdict” must be rendered by the judge rather than by a jury? We think it is latter. In many trials some factual issues are to be resolved by a jury and others by a judge[.] . . . . 

Consistent with the practice in mixed trials, on remand the magistrate judge should first decide whether the development of the facts at the first trial was sufficient to enable him to make his own findings of fact and conclusions of law on both liability and damages. If so, he need not conduct a further evidentiary hearing; it would be redundant. . . . But he may instead realize that he’s forgotten some of the evidence (the trial took place more than a year ago), or that since he was not the trier of fact he did not pay as close attention to it as he would have done in a bench trial, or that in a bench trial he would have elicited additional evidence (judges are reluctant to question witnesses in jury trials for fear of confusing jurors about who is the trier of fact, but there is no similar inhibition in a bench trial). On any of these assumptions he should conduct a further evidentiary hearing.

___________

Note:  as often happens, Blawgletter got to the Olympia Express case well before I did.

(Image of Judge Posner's Second Life appearance at http://creativecommons.org/weblog/entry/6168)

Challenging The Peremptory Challenge: Snyder v. Louisiana

The Supreme Court is hearing argument today on Snyder v. Louisiana, another case where a prosecutor struck all the black jurors in a death penalty trial.  Batson v. Kentucky says the prosecutor needed racially neutral reasons for rejecting these jurors, and the Court will decide whether the purported reasons are good enough, especially after the prosecutor invoked the O.J. Simpson case in closing argument after having promised he would not do so. 

There's a larger question looming, though:  whether peremptory strikes will survive at all.  "I believe it necessary to reconsider Batson's test and the peremptory challenge system as a whole," said Justice Breyer in his 2005 Miller-El v. Dretke concurrence.  In Rice v. Collins in January 2006 he concurred again, repeating that sentence, this time joined by Justice Souter.  It seems unlikely that three more justices have come to this view in the almost-two years since Rice, but the issue isn't going away.

"The most famous murder case, and all of you have heard about it"

Whatever you think of peremptory challenges in general, the Snyder case makes them look pretty bad.  Scotuswiki's terrific essay on the case explains what happened:

After Snyder had been charged with murder, the prosecutor, before the trial began, made a number of public comments comparing the case to the O.J. Simpson case, in which the former pro athlete was charged with murdering his wife and a friend of hers; Simpson was acquitted. Snyder’s defense lawyer filed a motion to bar such comparisons in future comments by the prosecutor, and was turned down, but the prosecutor said he would not mention the Simpson case during the trial itself – a vow he reportedly broke.

In the jury selection process, there were nine blacks in a pool of 85 eligible potential jurors. The state removed four for stated causes, and the remaining five by peremptory challenge – with the defense objecting to some of those strikes on Batson grounds. One of the results: an all-white jury.

The O.J. Simpson case was not mentioned by the prosecutor during the guilt phase. In closing argument during the death-sentencing phase, the prosecutor said this case “made me think of something. Made me think of another case, the most famous murder case in the last, in probably recorded history, that all of you are aware of... " At that point, the defense objected, unsuccessfully. The prosecutor went on: “The most famous murder case, and all of you have heard about it, happened in California, very, very, very similar to this case. The perpetrator in that case claimed that he was going to kill himself as he drove in a Ford Bronco and kept the police off of him, and you know what, he got away with it.” The jury returned with a sentence of death.

Use it well or lose it

This isn't just about criminal trials of black defendants, though.  If trial lawyers ever do lose the right to strike jurors without giving a reason, the stereotypes and errors that make up a lot of the "common wisdom" about jury selection may have to share the blame with prosecutorial racism.  Justice Breyer collected citations in his Miller-El concurrence:

[T]he use of race- and gender-based stereotypes in the jury-selection process seems better organized and more systematized than ever before. See, e.g., Post, A Loaded Box of Stereotypes: Despite 'Batson,' Race, Gender Play Big Roles in Jury Selection., Nat. L. J., Apr. 25, 2005, pp. 1, 18 (discussing common reliance on race and gender in jury selection). For example, one jury-selection guide counsels attorneys to perform a "demographic analysis" that assigns numerical points to characteristics such as age, occupation, and marital status--in addition to race as well as gender. See V. Starr & A. McCormick, Jury Selection 193-200 (3d ed. 2001). Thus, in a hypothetical dispute between a white landlord and an African-American tenant, the authors suggest awarding two points to an African-American venire member while subtracting one point from her white counterpart. Id., at 197-199.

For example, a bar journal article counsels lawyers to "rate" potential jurors "demographically (age, gender, marital status, etc.) and mark who would be under stereotypical circumstances [their] natural enemies and allies." Drake, The Art of Litigating: Deselecting Jurors Like the Pros, 34 Md. Bar J. 18, 22 (Mar.-Apr. 2001) (emphasis in original).

For example, materials from a legal convention, while noting that "nationality" is less important than "once was thought," and emphasizing that "the answers a prospective juror gives to questions are much more valuable," still point out that "[s]tereotypically" those of "Italian, French, and Spanish" origin "are thought to be pro-plaintiff as well as other minorities, such as Mexican and Jewish[;] [p]ersons of German, Scandinavian, Swedish, Finnish, Dutch, Nordic, British, Scottish, Oriental, and Russian origin are thought to be better for the defense"; African-Americans "have always been considered good for the plaintiff," and "[m]ore politically conservative minorities will be more likely to lean toward defendants." Blue, Mirroring, Proxemics, Nonverbal Communication and Other Psychological Tools, Advocacy Track--Psychology of Trial, Association of Trial Lawyers of America Annual Convention Reference Materials, 1 Ann. 2001 ATLA-CLE 153, available at WESTLAW, ATLA-CLE database (June 8, 2005).

For example, a trial consulting firm advertises a new jury-selection technology: "Whether you are trying a civil case or a criminal case, SmartJURY™ has likely determined the exact demographics (age, race, gender, education, occupation, marital status, number of children, religion, and income) of the type of jurors you should select and the type you should strike." SmartJURY Product Information, http://www.cts-america.com/smartjury_pi.asp (as visited June 8, 2005, and available in Clerk of Court's case file).

"Only weakly and inconsistently related"

"The 'scientific' use of peremptory challenges," Justice Breyer concluded, "may also contribute to public cynicism about the fairness of the jury system and its role in American government." 

It may and often does, and the sad part is that broad demographic stereotyping of jurors is almost always factually mistaken.  Despite half a century of assiduous research into juror demographics, "juror demographic characteristics have been only weakly and inconsistently related to juror verdict preferences," say Dennis Devine and the other authors of "Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups," a comprehensive literature review in the March 2000 issue of Psychology, Public Policy, and Law.  The sole exception is the simple fact at issue in Batson and Snyder:  "jury demographic factors interact with defendant characteristics to produce a bias in favor of defendants who are similar to the jury in some salient respect."  Jurors' experiences and attitudes are highly relevant to trial lawyers, but tossing jurors into demographic categories alone sheds little light on those.

______________

Notes: 

1. Among the best resources on Snyder v. Louisiana are Scotuswiki, an amazing new resource; the amicus brief for the Constitution Project at Wilmer Hale's web site; the ABA's preview; the Los Angeles Times article pointed to in Sentencing Law and Policy Blog; yesterday's USA Today article; and How Appealing's link to the Christian Science Monitor.  More certainly will be said. 
2. Prior discussion on the peremptory strike on this blog is, or is linked to, here.

Updates:

1. ScotusBlog recap of oral arguments.
2. Transcript of oral arguments, also via ScotusBlog.

(Photo by dbking at http://www.flickr.com/photos/bootbearwdc/20109566/; license details there.)

A Holdout Juror Relents, And Then Repents

Here's a rare variation on a very common story.  A holdout juror in Florida felt so bad about giving up and joining a guilty verdict that she paid the defendant's fine:

Patricia Klugherz reluctantly voted with other jurors to convict Joyce Buffaloe of making a false 911 call during a late night traffic stop, then she stuck around the courtroom for the sentencing.

The more Klugherz thought about it, the more she felt the police officers were out of line when responding to a black woman who questioned their behavior. And she concluded that Buffaloe called 911 to get help, not to annoy those officers -- as other jurors concluded.

So, the jury's 73-year-old forewoman did something almost unheard of. She gave $220 to the woman she just convicted, enough to cover the fine and court costs.

"She seemed very sincere, she was shaking her head, 'I'm so sorry this happened to you,' " Buffaloe said. "This is the craziest thing."

The gesture left Buffaloe confused but grateful, and Klugherz feeling a little better about a case in which she feels she caved in to other jurors and convicted a woman who did not deserve it.

"It made me feel very guilty that I did it," said Klugherz. "I will always feel like I made a mistake."

The story, in southwest Florida's Herald Tribune, continues here.  Ms. Buffaloe called 911 after officers who pulled her over "cursed at her and pointed their stun gun at her, all while her 8-year-old son was in the back seat."  The officers pulled her from her car and took her to jail; the story doesn't say what happened to the little boy.

How to help a holdout

Holdout jurors give up and give in all the time, as we've discussed.  They sometimes try to make amends by contacting the judge or one of the lawyers, but you don't often -- maybe don't ever -- see them taking the defendant's punishment.  But then few criminal trials end in fines, and even the most repentent juror can't go to prison in the defendant's place.

Advice on this topic is the same as ever:  if you think you may need holdout jurors, teach them how to hold out -- during the trial, not after.  Let them know how important it is, and how hard it is, to stick patiently to their decisions when other jurors, and the promise of going home, press in.  Help them rehearse in their minds how they'll do it, if they need to. 

(Photo by Jean-Etienne Poirrier at http://www.flickr.com/photos/jepoirrier/2043734850/; license details there.)