19 April 2015

Juror 17


by Leigh Lundin

Imagine you’re a juror, the lone holdout in an infamous, deadlocked capital murder case. A person’s life is at stake. While not a legal expert, you have some idea of your rights and obligations: You take the job seriously, keep an open mind, don’t discuss the trial outside the jury room, and avoid news coverage of the case. While abiding by the rules, your privacy is respected by the court, your opinion is sacrosanct, you are protected from pressure outside the jury room, and you don’t have to explain yourself.

Now imagine a lawyer not only takes umbrage at your jury vote, he takes you to task. He singles you out, violates your privacy, digs into your past, reveals your facebook page to the press, all with the intent of forcing you to change your mind or forcing you off the jury altogether.

A Deadly Mother

During the Casey Anthony trial, I followed the testimony closely, listened to courtroom arguments not permitted the jurors, looked at the evidence presented in the courtroom and saw items they did not, listened to the news reports and followed on-line discussions through the eyes of Velma and her friend Sammy.

From my technical background, I knew the computer forensics was dead wrong and my considerably dated chemistry suggested the prosecution probably erred with their chloroform hypothesis: A spectroscopic blip of element chlorine could have come from either chloroform or easily obtained pool chlorine and the latter was in the family’s shed.

It’s highly probable both the prosecution and defense got the case wrong. Once anger toward Casey is set aside, the evidence makes a convincing case Caylee wasn’t murdered at all, but drowned in the family pool and Casey, already accused of carelessness by her mother, panicked. If that’s true, even if the jury reasoned incorrectly, the panel of twelve got the outcome right.

Jodi Arias on facebook
Jodi Arias on facebook
A Deadly Lover

In contrast, I have not followed the Jodi Arias trial. Unlike the Anthony trial, it wasn’t local and no compelling mystery arose about who committed the murder. I have no reason to disbelieve the verdict, although a small but vocal number of ‘burning bed’ male and female supporters argue Arias didn’t kill out of a jealous rage, but– if she killed at all– justifiably rid the world of a pervert, pedophiliac, and domestic abuser, a theory denied by family, friends, and most importantly, other girlfriends.

Instead, another issue troubles me, that of jury intimidation, or rather intimidation toward one juror, a lone holdout, Juror 17. A backlash welled up from a number of sources: the prosecutor and his fans, death penalty supporters, bloggers sympathetic toward the victim, and the other jurors. Indeed, both the prosecutor and the other eleven asked the judge to replace one juror so they could reach a verdict.

Jurisprudence Without the Prudence

Consider that, ladies and gentlemen of the jury: a court being asked to ditch a juror to obtain a unanimous verdict, a kind of litigator do-over.

Jodi Arias on trial
Jodi Arias on trial
The state attorney argued because the woman had seen part of a TV movie about Jodi Arias and since her husband had been convicted of a felony, that she was prejudiced “with an agenda.” But the jury candidate had admitted all this at time of selection. Indeed she appeared to have been quite open.

In his frustration, the prosecutor went several steps further, singling out Juror 17 for investigation and presenting the woman’s facebook page in court because she'd 'liked' ABC News. Arguing this hinted at violating the rules, the state attorney petitioned the court to remove the juror. After the judge refused the prosecutor’s demands, an ‘unknown party’ released the woman’s name and facebook page to the press and public, and shortly after her home address and phone number. Following death threats, Phoenix police are protecting her while investigating.

The details of leaked documents suggest a source within the court system. The court clerk's office insisted it wasn’t responsible. The prosecutor also denied releasing documents and instead attempted to blame the defense (which made no sense at all) and admitted they were contemplating filing charges against the juror… once they figured out a legal angle. Such action would likely have a chilling effect upon jurors who might disagree with a prosecuting attorney in the future.

A Dire Decision

Legal scholars say the juror not only had done nothing wrong, she apparently did everything right: She answered the questionnaire and voir dire accurately, she was earnest and honest, and she refused to be intimidated. The lady said she regularly prayed about her decision and felt harassed by angry fellow jurors, furious that she couldn’t be swayed.

Legal reaction has been mixed to negative: Retroactively investigating a juror toward a stated goal of bumping her from the jury technically isn’t illegal, but violating privacy and attempting to intimidate could well be. Experts agree that in threatening her, prosecutors threaten the entire jury system.

You, the Jury

What is your opinion either generally about the Jodi Arias case or more specifically regarding going after a juror who doesn’t fall in line with a lawyer’s expectations?

12 comments:

Paul D. Marks said...

Leigh, Whether Jodi Arias is guilty or not, what the prosecutor is doing is truly scary. It subverts our whole notion of justice. And, indeed, he should prosecuted.

There was just something on, I think, Dateline, about a man who went to jail for 30 years and was found innocent. And the prosecutor, now retired, went and apologized to him. He said he just wanted to win and, at the time, that was more important than justice (my words not his).

And it seems to me there is a lot of justice lacking in courts when certain things are admitted and others aren't and ridiculous alternate theories of the crime, like in the Lacy Peterson case, where the defense lawyer said something like a band hippies in a brown van kidnapped her -- or something along those lines. I might have the details wrong.

It gets frustrating, but one feels helpless to do anything about it.

Leigh Lundin said...

Exactly, Paul. In the Casey Anthony case, the state attorney way over-reached. Likewise, the defense attorney alleged Casey's father molested the girls and then killed his granddaughter. I know he was trying to save his client's life, but sadly, some people believed that.

Peter DiChellis said...

Fascinating post, Leigh. And although the U.S. justice system is designed to protect the rights of the accused, the reality for some defendants is brutally unjust.

The legal aid organization The Innocence Project has used DNA analysis to free over 300 individuals falsely convicted and imprisoned. The organization has found that government misconduct, including by prosecutors and police, is not uncommon, though is not among the leading causes of wrongful convictions. (Eyewitness misidentification is a contributing factor in an astounding three-quarters of wrongful convictions.)

Paul’s comment (above) might refer to Michael Morton, wrongfully convicted of murdering his wife, imprisoned for 25 years, and finally exonerated with DNA evidence.

The prosecutor in that case purposely withheld evidence of Morton’s innocence from defense attorneys, misconduct so egregious it forced the prosecutor, by then a judge, to resign his position, surrender his license to practice law, and serve an all too brief jail term.

The Innocence Project’s site is filled with case studies, insights, and links. Google: innocence project. If you scroll down to “Understand the Causes” you’ll find “Government Misconduct” (which includes the Michael Morton case) as well as other sections.

Best wishes,
Peter

Elizabeth said...

I promise you that you would be appalled at what passes for a legal system in the Buffalo, New York area. I won't dignify it by calling it justice ...

Last year an admittedly drunken man was walking along a country road at night, when he was hit & killed by an SUV belonging to a local bar owner. This bar owner went drinking at another bar she didn't own & was seen to be too drunk to drive. Someone offered to drive her home but she refused & left in her own SUV.

She took her vehicle to another town for repairs. She was never arrested or questioned about the hit & run by the police or the DA. Only consolation is a DMV judge took her driver's license away. There are other equally egregious cases around here.

I was called for jury duty on a medical malpractice case once, but I knew too much medicine & was disqualified as I would not have sympathized with the plaintiff.

R.T. Lawton said...

Voir dire is the time for either attorney to dismiss a juror they don't want, but not at the point where the jurors are unable to make an unanimous decision.

Yep, eyewitnesses are unreliable if they did not previously know the subject. Twice, I've been picked out of a photo lineup in different cases and was glad I had a good alibi for that time period even if I was law enforcement. Eyewitnesses are better when they've known the subject for some time that they're identifying.

Leigh Lundin said...

Peter, I’m glad you brought up the Innocence Project, one of my favorite subjects. What many people don’t realize is that a piece of federal legislation called the AEDPA makes it extremely difficult to reverse a conviction, even in cases of actual innocence. But it gets worse.

Six years ago, Chief Justice John Roberts led the Supreme Court in a ruling that convicted prisoners do not have the right to DNA testing, even if they are willing to pay for it themselves. After another justice expressed skepticism about scientific forensics, Roberts went on to say DNA and forensic evidence “poses to our criminal justice systems and our traditional notions of finality better left to elected officials than federal judges.”

In other words, ‘finality’ is more important than justice.

More information.

Leigh Lundin said...

Elizabeth, prosecutors can seem so often driven by the desire to win at all costs, they lose their sense of justice, such as the Duke Lacrosse Team case. Others take justice very seriously, such as a new Texas prosecutor who in taking over his new duties, discovered his predecessor had used a number of dirty tricks to convict, including innocent people. He has gone out of his way to rectify as many cases as he can.

Leigh Lundin said...

I agree on both counts, RT.

The first couple of times I was an eyewitness, I didn’t do badly even though the second time I had knives at my throat. What made the difference there was the confrontation lasted several minutes… You wouldn’t believe that story.

But the third time, although I could recall many details like his height, build, baseball cap logo, and his firearm, I found I could not identify the bad guy’s face with certainty. His partner was robbing my girlfriend and I couldn’t identify much at all about him.

Is there training that helps people become better witnesses?

A Broad Abroad said...

Isn't what happened to Juror 17 a violation of the rights explained in the opening paragraph, in particular: ‘… your privacy is respected by the court…’?

What's the judge's role in all this? If those are (legally?) recognised jurors' rights, then someone should be protecting jurors when said rights are violated. In my naivety and/or ignorance I thought that would be the judge.

Leigh Lundin said...

Good question, ABA. The judge is in charge of anything that happens in court, the jury room, and any orders or instructions covering trial issues off property.

One example: Jurors were instructed to wear their juror ID badges within the bounds of the courthouse and property. During a break, people involved with the trial noticed a juror was not wearing her badge on the courthouse steps and reported her to the judge, who dismissed that juror. I hadn’t given thought to this, but at least two groups were discussing the trial within earshot of the juror and a remark could have tainted that juror.

Regarding the issue of dismissing a juror, the judge denied both a request from the jury foreman and the prosecutor. I believe she was right to do so because dismissing a juror simply because a juror’s opinion differed from her colleagues could have been grounds for appeal. In other words, the prosecution would have been stacking the deck.

I don’t know what questioning the judge might have done regarding the leaks, but all parties denied releasing the documents or the facebook page, which identified the ‘recalcitrant’ juror. Had the judge been able to identify the guilty party, I’m sure there would be hell to pay.

All in all, the judge seems to have done a good job protecting that juror’s rights. In countries with jury systems, the primary rĂ´le of the judge is to see the trial is run fairly. Only if a defendant seeks a non-jury trial will a judge render a decision, although judges have been known (rarely) to override a decision by s jury.

As for the ethics of the prosecutor’s actions in vindictively investigating the juror who was thwarting him, a number of factors may kick in, especially if someone files an ethics complaint. The prosecutor’s office has promised an investigation, which largely means investigating themselves and possibly the victim’s family. It’s also possible a federal investigation could take place. These issues will take place outside the immediate purview of the court, so a judge will not be involved.

Melodie Campbell said...

Wow. I have been educated by this post, Leigh. Have no idea if things are as dire in Canada. If so, I haven't heard of it.

Leigh Lundin said...

Melodie, Maricopa County, Arizona is noted for its special brand of insanity even within the US. For the past 200 years Mexico has shown no interest in annexing it, so we're probably stuck with it.