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Saturday, November 14, 2015

Injustice: When Sleeping Jurors Cost You Your Liberty

Trials are always a risk. Somewhat with a judge without a jury, in what is called a "bench trial." But much more with our "peers" -- that is, juries.

Juries make decisions as to guilt or innocence, and in some civil trials they determine not only whether someone is liable for a damage, but also the amount of liability and the defendant's share of liability (what in negligence cases is called "contributory negligence.")

There is, however, little to no quality control on jurors.

There is the jury selection process and a certain number of challenges you can use to strike (remove) potential jurors in the jury pool.  

But once selected, you're at the mercy of the selected jurors and you can only hope that juror misconduct is noticed, brought before the judge's attention and acted upon by that judge. 

This high-profile New York City corruption case has drawn reporters who are noticing some jurors sleeping and doodling.

Now, many of these cases are in fact boring from minute to minute. I sat in on part of one riveting criminal case for a time, and while there were brief and very interesting revelations, there were other parts that were excruciatingly boring.  Judges who are bright recognize this, and rarely hold a jury in the courtroom for longer than an hour at a time. (Another reason: bathroom breaks.)

I remember that particular trial, because there were enough interesting exchanges that the attentive reporter sitting next to me and I conferred and said to each other, essentially, "there's no way this guy gets convicted."  (Postscript: You know where this is going. The defendants got convicted and sentenced to eleven and five years, respectively. The reporter friend and I still wonder, years later, what trial the jury was watching.)

Now, there is one "check" on juror misconduct. A judge can always nullify (or put aside) a jury verdict of guilty (but note, not the reverse; if twelve Sleeping Beauties find you not guilty, then you're not guilty, no matter if you have two blood-stained hands, a smoking gun and a videotaped confession). 

As for the Sheldon Silver trial, once you put aside the salacious corruption details and the class envy which is being exploited, there are many other factors that would worry someone who is in fact innocent, or his lawyer. (Author's note: The Silver trial involves very serious allegations and what seems to be very formidable evidence. Nothing here should be read or implied to be defending Silver or criticizing the decision to prosecute him, and is based merely on press reports.)

The nature of any defendant today -- you're a business owner, you're a rich guy, you're a lawyer or, never mind the trial, just throw away the key, you're an elected public official -- means jurors who survive the voir dire (juror weeding out selection process) are often quite judgmental starting the trial, or fairly ignorant and ill-informed people. 

And those judgments can often mean an entirely innocent person enters the courtroom guilty on arrival.

The best advice? Stay out of trouble. Anything else becomes a crapshoot with increasingly difficult odds, and the odds are against you.

Eric Dixon is a New York investigative lawyer. 



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