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Drama! Controversy! Juror Misconduct!

By swd

Our murder trial ended unexpectedly today. More on that in a minute.

Jury selection finished up yesterday morning, and we executed our strikes. Here, peremptory strikes are silent -- a piece of paper is passed back and forth between the parties and they either accept or reject the veniremen. When the clerk called the names of those selected, I had to suppress a giggle when I heard one of the jurors mutter, "shit."

The Chief Assistant gave a good opening, laying the groundwork for closing arguments, without giving too much away. I actually crossed two witnesses, a little nervous because the Chief Assistant is one of the Bosses. And, she's really, really good. We were chatting last week, and she laughingly told me that she has tried 100 murder cases. That's just murder cases.

When I wasn't listening to the evidence yesterday, sharing thoughts on the evidence with the Boss, or fine-tuning the areas I wanted to cover in cross, I was desparately trying to console our client. He cried horribly yesterday after opening statement. He began to cry when the State played a videotape that was taken inside the house where the death occurred. He cried when the State published the hospital photos of the decedent. A person, a cynical person, would say that he was crying because of guilt. I truly believe that he was grieving, two years later, and grieving deeply.

Although we stayed late, we did manage to get through five, unimportant witnessess yesterday afternoon, which was good progress. They were the responding officer, two officers who executed search warrants, the emergeny room nurse, and the EMT who first arrived at the house. The Judge was pleased with where the case stood and was talking about more reasonable hours for the rest of the trial.

After the other jurors left, a lone juror came forward and shared that another juror was expressing her opinions about the case. After being pressed by the Judge, the juror said that she had told them, "he's guilty, he's guilty, I'm telling y'all he's guilty." That's after five witnesses who were largely peripheral to the case.

This morning, the Judge had a hearing and individually asked the jurors if they had heard anyone express opinions about the case. 7 of the 14 said that they had. Oh, but wait! That same blabbermouth-juror also happened to recognize the mother of the decedent this morning, and had a little chat with her in the courthouse hallway. The mother, who is a witness, told the juror that she was there because "my ex-boyfriend killed my son." Did blabbermouth keep this to herself? Of course not! She shared that too! Another 7 of the 14 had heard her say that she knew the witness, with varying degrees of intimacy with the full facts about why the juror knew the witness. So, we had a total of 10 tainted jurors. (Most had heard her on both topics.)

Despite the fact that there is caselaw directly on point in this State, the Judge ruled that merely expressing an opinion about the ultimate issue is not juror misconduct. Hey -- who cares about structural error? However, because the State acquiesced in our motion with regard to the extra-judicial conduct, the Judge granted the motion on that ground. So, we were back in the office by 11:00, trying to figure out how we had landed in space court.

In all seriousness, but for the courage and integrity of one lone juror, we never would have known that one of our jury members was flagrantly violating the Judge's instructions not to (1) talk about the case or (2) form an opinion, until the evidence was concluded. That is scary as hell.

Full post as published by A Public Defender's Journal on June 13, 2007 (boomark / email).