Over at the Southern District of Florida blog (Hat tip to OK at VC ) David Markus details some interesting wardrobe choices in the Padilla trial.
Apparently on July 3rd all of the jurors showed up dressed in patriotic colors. “Row one in red. Row two in white. And row three in blue.” The jury has dressed up before— having all dressed in black (except one juror) and also having shown up with all the men dressed in blue and all the women dressed in pink.
You’ll recall that in the Grisham book/movie Runaway Jury the jurors did all kinds of crazy things from standing up in unison and reciting the pledge of allegiance to coordinating on clothing and items carried into the court room. The point of course was that the main character, Nick Easter, wanted to prove that he could control the jury.
As many readers know, jury antics are not just the stuff of movies. In the famous case Tanner v. United States the Supreme Court dealt with a jury that, according to two jurors “was on one big party.” Seven jurors drank alcohol during the noon recess, one juror sold another juror 1/4 pound of marijuna, the foreperson boozed it up three times during the trial, one juror ingested cocaine five times, another juror ingested cocaine two or three times, and three jurors smoked marijuana regularly during the trial.
Tanner claimed that he was deprived of his right to a trial by a competent jury, but his motion for a new trial was denied. His problem— the only evidence he had that there was substance abuse by jurors was the testimony of the jurors. Evidence which, according to the Court in a five-to-four vote, jurors were incompetent to give testimony about under FRE 606(b) which states:
Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occuring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudical information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.
So turning back to the Padilla case. Lets say, for the sake of argument that a juror, or a few jurors are influencing the group and convincing them to behave in a certain way. Perhaps suggesting that as a jury they need to present a unified front, maybe even suggesting that it is their obligation to stand united in a “war against terror.” We can even infer from the black outfit day, that there may have been one juror who was a hold-out, unwilling to go along with the group. It appears that juror has since changed his mind, because as of July 3rd this jury—at least publicly is presenting a unified front.
In my little hypothetical here, if Padilla were convicted and a juror later came forward and said he and other jurors were pressured into voting a certain way by other overly aggressive jurors — lest they be deemed unpatriotic or sympathizing with terrorists. Could a court hear that evidence? It seems pretty clear under Tanner and 606(b) a court could not hear such allegations. A point which the commentary to the rule bears out: “The mental operations and emotional reactions of jurors in arriving at a given result would, if allowed as a subject of inquiry, place every verdict at the mercy of jurors and invtie tampering and harassment.” Citing Grenz v. Werre, 129 N.W. 2d 681 (N.D. 1964). The Court in Tanner states “…full and frank discussion in the jury room, jurors’ willingness to return an unpopular verdict, and the community’s trust in a system that relies on the decisions of laypeople would all be undermined by a barrage of scrutiny of juror conduct…” Importantly though, that would not preclude the court though, from hearing non-juror evidence of misconduct, but if a juror was the only person who knew what was happening 606(b) precludes the court from hearing about it by preventing the juror from testifying.
However, the situation is quite different if jurors were to come forward now, or if the court were to investigate misconduct before a verdict is rendered. There are definitely some strategic considerations for Defense counsel here, a point one commenter made in the comments at the SDF Blog:
Counsel are in a very hard spot here. The prosecution has no recourse if the jury acquits inappropriately; but jeapordy has attached, so mistrials are permitted only in isolated circumstances. The defense has to weight whether to make an objection to preserve an appellate issue, knowing that a potentially favorable jury might be thrown out if the judge agrees, forcing a mistrial and new trial, or whether to ride this out.
So, could the judge declare a mistrial in Padilla? What standard would he follow? I was reminded of a piece in Slate on this topic, dating back to the Tyco trial, some excerpts:
One of the earliest articulations of the standard comes from an opinion written by the 19th-century Supreme Court Justice Joseph Story, who wrote that judges should declare a mistrial whenever “there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.”
The “manifest necessity” standard has proven amorphous. There is a plethora of circumstances that could warrant a mistrial, including procedural error; misconduct; the illness or injury of a lawyer, judge, or juror that prevents him or her from continuing; or an unexpected event, such as an outburst in the courtroom, that might unfairly influence the jury.
I don’t think we’re at the mistrial point yet, the juror conduct seems harmless but as some have commented, it could suggest that the jury is coming to conclusions and discussing the case and a judge may find that conduct to be harmful.
It will be interesting to see how this develops, feel free to continue the discussion in the comments.