Juror Misconduct: Found in their Blogs
posted by Sam Yospe
Because of the private nature of the jury room, it is unclear how often juror misconduct occurs. Except for the rare instance in which one individual juror is flagrantly out of line, it is unlikely that misconduct will surface after a verdict is reached. After all, if there is one problem juror (a racist, a manipulator, etc.) the other jurors probably won’t wait until a verdict is reached to complain to the judge.
However, as has been written about recently here and here, many jurors blog about their jury service. While accounts of deliberations in jury rooms have always been available in high profile cases (there is always at least one juror who wants to speak to the media and get his or her 15 minutes!), juror blogs give attorneys of convicted defendants a window into how the client was convicted—and more importantly, grounds upon which to appeal if any misconduct is found.
In a case discussed by Ann Reed at Deliberations , a convicted burglar appealed his conviction on the basis of juror misconduct. The source: a juror’s blog in which he referred to the defendant as “Donald the Duck” and admitted to intimidating and manipulating his fellow jurors. He wrote in his blog:
To convict, the vote must be unanimous – all twelve jurors must agree. By threatening to vote not guilty on count five, since he so strongly believed that Donald the Duck was guilty of count three, that he stole the computer, therefore how could he become in receipt of it, skinhead Brad threatened to torpedo two of the counts – three and five – in his quest for tyrannical jurisprudence.
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.”
In large part because of the blog posts, the California Court of Appeals vacated the defendant’s conviction. This decision came despite the overwhelming evidence of the defendant’s guilt, in which the Court of Appeals admitted that “the [defendant] does not challenge the sufficiency of the evidence of his convictions and thus we need not provide a detailed summary of the underlying facts of his offenses.”
Curious about how often jurors blog about their service, I did a google search and came across thousands of hits. Unsurprisingly, most of the blogs discussed the mundane. Many people blogged about the ordeal of sitting in the waiting room, the process of jury selection, and advice about how to avoid getting selected to sit on a jury(remember this?)
However, there is certainly evidence of juror misconduct hidden amongst the blogs. For example, this juror blogged this past April::
Today was the last day of jury duty. I served as foreman of the jury. By the end of the case I thoroughly disliked the defending attorney. He had abused, postured and bullied his way through the entire trial, and had treated the witnesses for the prosecution, who were solid citizens doing their jobs, with disrespect and contempt. I was concerned that his histrionics were going to affect some of the less sophisticated among the jury to the degree that it would be hard to reach a decision on matters that were more or less clear. Just prior to the closing statements I decided to see what effect I might be able to have on the outcome given the limited set of tools available to me…
Actually first and second offenses were as linked as Tweedle-Dum and Tweedle-Dee. When we went into the jury room I asked if there was anyone else in the room who liked to run meetings. I was told by three or more: “you’re the man.” I kept them to a vague approximation of Robert’s Rules of Order, paid special attention to the participation of an elderly woman of color who felt out of place among so many white men, and a quiet Hispanic man who had also been swayed by the theater of the defense. Within an hour we had a conviction on both counts, and on all of the sub clauses of the counts. At the end of it we all felt that we had done the right thing, which I think we did.
I have either rarely, or perhaps never attempted such a conscious manipulation of my presentation of self as an adult. The fact that nobody knew me was an asset.
This man had a personal dislike against the defense attorney and admits to “conscious manipulation” of his fellow jurors. The juror quoted above blogs at Livejournal and the only information he provides is his name (Robert) and his hometown (Los Angeles). Had the defense found this blog, surely there would be some basis for appeal. However, reading the blog does not give any information that allows us to ascertain what case the juror was involved with.
Of the jurors who blog, surely the vast majority don’t admit misconduct, as the juror did in the robbery case. In the rare cases in which blog entries indicate that there was potential misconduct (such as the juror who admitted to “conscious manipulaiton”), it is certainly the right and responsibility of defense attorneys to appeal the verdict. In fact, I believe that searching for blogs and internet postings of all jurors will soon be an automatic response to losing a case. It won’t be long before this practice is completely ordinary, if not a requirement of being a zealous advocate.