The first cut may be the deepest, but in this case the first failure was the worst

by Michael S. Kaplan, published on 2010/03/12 07:01 -05:00, original URI: http://blogs.msdn.com/b/michkap/archive/2010/03/12/9977329.aspx

Unless you are interested in the legal aspects of my jury service, I really must insist that you disregard this blog in its entirety or I will have no choice to hold you guilty of the crime of Contempt of Blog…

My jury service (discussed originally in How to avoid jury duty without feeling guilty or offended? and late last year in The jury may still be out on this one, Part 0 ended yesterday afternoon at around 2:30pm.

It ended in a mistrial.

I was the Jury Foreman (aka the Presiding Juror), who sent to the judge the note that the panel is hopelessly deadlocked, a note that led directly to that mistrial.

When the note was sent, we had deliberated less that two days. How could there be no hope after so short a time?

After that note was sent, I dismayed several jurors when I stated that I felt we had failed as a jury, and that I had failed as a foreman. But I believe that both are true.

To be honest, I think our failure, which was the last failure (unless you choose to count the judge’s acceptance of my note and declaring a mistrial rather than sending us back to continue deliberating), was not the worst of the many failures of the justice system that this trial personified so vividly for me.

I will [mostly] work backward to explain, after a brief description….

The case was a relatively simple one, a homeless heroin addict charged with possession, though this trial which should have been sent to the jury for deliberation within two days was not sent there until nearly four. All due to scheduling snafus and witness availability issues....

This issue not a true failure to my way of thinking, more of a “foul tip” of the respective counsel. Though the judge and her bailiff apologized to us at so many turns that it was clear that this was either truly out if the ordinary for her courtroom or she was just a wonderful actress.

The jury was sent to deliberate on three specific elements:

1. That on or about the 30th of October, 2009, the defendant possessed a controlled substance, heroin;
2. That the act occurred in the State of Washington;
3. That the aforementioned possession was not unwitting (in other words that the defendant was aware of the possession).

The first two elements had to be established by the prosecutor beyond a reasonable doubt, i.e.

This is the standard required by the prosecution in most criminal cases within an adversarial system and is the highest level of burden of persuasion. This means that the proposition being presented by the government must be proven to the extent that there is no "reasonable doubt" in the mind of a reasonable person that the defendant is guilty. There can still be a doubt, but only to the extent that it would not affect a "reasonable person's" belief that the defendant is guilty. If the doubt that is raised does affect a "reasonable person's" belief that the defendant is guilty, the jury is not satisfied beyond a "reasonable doubt".

The third element, on the other hand, had to be established by the defense attorney based on a preponderance of the evidence, i.e.

Preponderance of the evidence, also known as balance of probabilities is the standard required in most civil cases. The standard is met if the proposition is more likely to be true than not true. Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true. Lord Denning, in Miller v. Minister of Pensions, described it simply as "more probable than not."

The difference in party charged with the burden of proof is a logical extension of differentiated responsibility (the one claiming there was possession must prove it happened, and the one claiming the defendant didn’t know must prove he didn’t); the difference in the burden itself perhaps less logically derived. But instructions are instructions, and that was what was within ours.

This is not a failure to my way of thinking either, though given the jury itself, as a panel we did fail to follow the guidelines completely.

This is also not the worst failure, though.

I was chosen as foreman right away, something the defense attorney claimed she predicted but to be honest I decided I would not volunteer and only serve if asked and no one objected. I was not the first one asked but the previous candidates rejected the position themselves. Frankly after previously admitting I worked for Microsoft to no fewer than six Mac/iPhone users and fans I did not expect one of them to suggest me. But there it is.

Of the three elements:

• The first one was established by eyewitness testimony and expert witnesses from both the prosecution and the defense;
• The second one was never in doubt and was believed by everyone;
• The third one led to the mistrial.

Ironically, the two jurors who did not vote to convict did so largely on the basis that they felt the prosecution had not proven that the defendant knew he possessed the heroin, despite the fact the burden was nominally on the defense to do the proving here (every time they were queried on the specific points that swayed them they pointed out problems with the testimony/actions of a prosecution witness, and when asked to focus on whether the defense had met their burden they cited the belief that they believed the defendant didn’t know despite prior perjury convictions, a lack of corroboration of any of his claims, and substantive flaws in his testimony). They each admitted the problems in his story and the context in whic hthe story was given; we all did.

But I do not consider this to be the greatest failure, at all.

The defense attorney made a huge mistake in terms of the defense she offered. She only called two witnesses:

• An expert who basically confirmed what the prosecutor's expert told us already (who also provided us information about why there was no heroin left in the tube which the prosecution's expert did not), and
• The defendant, who admitted to being an on parole perjurer twice convicted with admitted memory problems, a heroin addict, having a non-corroborated “profession” of mobile needle exchanges that amounts itself to a non-charged parole violation (he was to not carry “drug paraphernalia” yet his one possession - the backpack -- contained little else), and several substantive holes in testimony related to state of intoxication and amount of heroin recently injected.

By offering only the testimony of the (tainted by perjury) defendant with no corroboration when the jury is instructed of a defense burden, the defense is providing a very good chance of a conviction.

In effect, she was depending in the prosecution’s mistakes (which happened earlier than hers; I’ll talk about momentarily) hanging the jury, rather than doing at least the minimal effort that might have gotten an acquittal.

But I don’t consider this to be the greatest failure, either; it may have even been her strategy.

She also nearly put three jurors to sleep with her closing arguments, but those were mostly disregarded anyway since there was little in them that was evidentiary; she reminded me of Peter Weller in the excellent movie Shakedown, where she essentially pointed out that her client was hardly Snow White and that truthfully her client could probably not be outdone in problems by all the seven dwarves with a weekend pass to Singapore....

So I don’t think that was such a huge failure, any more than the earlier ones.

The assistant district attorney called five witnesses, in a non-optimal order due to witness availability issues, a case sculpting that did impact the overall presentation:

• Two Community Corrections Officers called due the defendant’s parolee status;
• An expert who tested for and found the heroin;
• Two deputy sheriffs working on bike patrol who found the defendant apparently intoxicated or high.

The first CCO was the biggest problem for the prosecution, for many reasons:

1. She authoritatively misstated key details that she then refuted after reviewing her notes e.g. recalling a black bag with two syringes that later turned out to be eight (all other witnesses asked to review their notes due to the four-month time passage which went much better from a credibility standpoint and made her look unprepared);
2. She clearly had not reviewed her notes prior to testifying;
3. She took no pictures of evidence whose actual appearance later proved to be crucial;
4. Absent pictures, she did not record detailed descriptions about the evidence e.g. the amount of heroin in the syringe;
5. Given the initial blunder, her admitted uncertainty but belief that it was “at least 1/3 full” was treated with the greatest skepticism by the two jurors;
6. She took pictures of the evidence in his backpack two days later that did not really assist the jury;
7. She took no pictures of the small bag inside the backpack that contained 28 syringes, one of which contained the heroin in question;
8. The pictures were marked as defense exhibits but the backpack and bag (which she claimed were in a safe of hers then put into evidence) were not (they were never brought into the courtroom, in fact), and its lack was noted.

All of the above, some of which was clearly her fault on one of three occasions (mistakes on the 30th, mistakes two days later, mistakes in court) and some of which to be fair could more likely be blamed on the other CCO, the property room, and/or the assistant district attorney, was all hung on her due to the manner of her testimony. She was the scapegoat for the entire jury's doubt about the competence of the prosecution, though it ultimately only kept two jurors from voting to convict.

The second CCO added no substantive information to overcome this blot on the case, and neither did the sheriffs. Nothing truly bad from them, but not much added after the initial mistrust and concern.

But in my opinion this wasn’t the biggest mistake either (though that CCO’s testimony as a collective bundle may well serve as the second biggest mistake if I were ranking all of them).

The biggest problems came up during jury selection, during voir dire.

In that time, both counselors wasted a lot of their limited time asking questions that would not elicit useful information and not spending enough time watching the reactions of other jurors. Of the even seven peremptory challenges they each used (most of which I agreed with and just one each that I disagreed with), between two and three of the prosecution’s could have been struck for cause as could between three and four of the defense’s.

But that wasn’t the biggest mistake either.

Neither of them struck me from the jury.

This could perhaps be forgiven by the prosecution because I am the sort to see past the kinds of mistakes here even as I notice them because I am the sort of engineering kind of geek who is more interested in the correct verdict than those mistakes that are really much more the fault of everyone other than the defendant. Given the facts of the case that they both knew, I was likely going to vote to convict rather than a de facto “punishing” of the side that did the worst job based on how distracting all of that miscellania can be.

Given all that, the fact that the defense attorney was unsurprised (when we talked after the mistrial) that I was the foreman and that she was expecting it seems like a blunder too – why would one want someone who was likely to vote against you given the facts of the case (which I didn’t know but they really did, or could have if they considered the matter)? Especially if one suspects he will be wielding additional power during deliberation?

Put another way, I am a very poor Alpha Factor for her jury and a potentially good one for the prosecution, which makes me a great candidate for a peremptory challenge for the defense a potential candidate for the prosecution if they didn't want me to potentially help lead anyone that they wouldn't have otherwise gone.

But in my view that is not the biggest mistake, either.

The biggest mistake is that the two jurors should have removed from the panel (one possibly for cause but both worth a peremptory each).

Because they were guaranteed to hang any jury that was handled a case with even the smallest mistake due to a need that both of them clearly had to fit all of the pieces together, and that no one who failed to provide that could be allowed to win. This was clear in answer both of them gave during voir dire and I realized it before the jury was even impaneled, and if they knew about it, I would even have been worried about jury nullification if it was necessary to do so. And to be honest it’s almost what they did in not deciding their opinions based on the instructions we were given but on the sloppiness of the prosecution regarding facts that they nevertheless agreed with.

On the assumption that neither wanted a mistrial, leaving either of them on the panel was a fatal mistake made at the very beginning of the trial.

And this would be the biggest failure of the trial (again assuming the goal of neither attorney was a mistrial, in which case this was a masterstroke of whoever did it – how many people win a chess game on their first move?).

Now remember that IANAL (I Am Not A Lawyer). I only have 70+ years of courtroom TV drama experience (between the various shows in the Law & Order franchise, Boston Legal, The Practice, JAG, LA Law, etc.) to my credit. And that is hardly real life experience or knowledge.

Yet after this particular taste of the legal system, assuming that this case is in any way typical, I think I could have a kickass side career as a jury consultant to help pick juries. The defense attorney might even choose to hire me some day (she got most of this advice about the weaknesses of her case presented in a conversation after the trial, including picking me for the jury -- and how she was relying on the poor prosecution to deliver the mistrial)....

anon on 12 Mar 2010 9:25 AM:

Michael S. Kaplan on 12 Mar 2010 9:34 AM:

Pavel Minaev on 12 Mar 2010 10:46 AM:

Michael S. Kaplan on 12 Mar 2010 11:55 AM:

Pavel Minaev on 12 Mar 2010 1:26 PM:

Michael S. Kaplan on 13 Mar 2010 11:48 AM:

anon on 13 Mar 2010 1:58 PM:

Michael S. Kaplan on 13 Mar 2010 5:42 PM:

Pavel Minaev on 13 Mar 2010 7:55 PM:

Michael S. Kaplan on 13 Mar 2010 8:23 PM:

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