September 14, 2015 Top Story

When Following One's Convictions Means Failing to Convict

Is it a problem when jurors introduce their own theories into a case?

Katerina E. Milenkovski

A court has declared a mistrial in the high-profile case against Pedro Hernandez, the man accused of kidnapping and murdering six-year old Etan Patz in 1979. After the jury was released, several jurors complained that the sole juror who had voted to acquit had introduced his own theories of the case into the deliberations. Observers say attorneys should acknowledge the potential for a juror holdout in any jury trial and prepare the case accordingly.

After a four-month trial and 18 days of deliberations, the jury deadlocked 11 to 1 and could not convict Hernandez, despite his 2012 confession to the crimes. The confession, which came after New York police detectives interrogated Hernandez for hours—without a lawyer—was not recorded. Hernandez's defense claimed the confession was extremely questionable because of his mental health issues, which include schizophrenia.

The holdout juror acknowledged he was skeptical of the police handling of the interview that led to the confession and also that he believed expert testimony that Hernandez was susceptible to making a false confession. Ultimately, he found the evidence too circumstantial and he didn’t feel that the prosecution had proven the case beyond a reasonable doubt.

Experience Shows Juror’s Actions Were Not Uncommon

“I can tell you based on my experience that jurors do introduce their own theories into deliberation on a regular basis,” says Darryl A. Goldberg, Chicago, IL, chair of the Trial/Evidence Subcommittee of the ABA Section of Litigation’s Criminal Litigation Committee. “I can think of three separate cases that I’ve had where jurors have done exactly that. It’s common, and sometimes it can be a blessing and other times, it can be a curse,” adds Goldberg.

One case in particular sticks out in Goldberg’s mind. “It was a drug case involving a highly sophisticated undercover unit with access to very sophisticated surveillance equipment.” According to Goldberg, the detectives had used this equipment to record a couple of alleged drug deals but failed to do so on the one deal with which his client was actually charged. According to the police, a hand-to-hand drug exchange happened right in front them. Coincidentally, the deal also took place right in front of a gas station surveillance camera.

A key part of Goldberg’s defense strategy was to try to discredit the police investigation by noting that not only did they not use their own fancy surveillance equipment to record the drug deal, they didn’t even try to recover the gas station surveillance camera video tape that would have shown what happened. The jurors, however, apparently didn’t think that was important. Outside the courthouse, a juror casually mentioned to Goldberg that “in my neighborhood, everyone knows those security cameras never work.”

Thus, while neither side had introduced any evidence about whether the gas station security camera was working or not, in the juror’s experience, there was an assumption that those security cameras didn’t work, and therefore the failure of the police to review that video was excusable. “We were trying to discredit the cops for not attempting to obtain the video evidence, but the juror was saying it wouldn’t have mattered whether police had tried to introduce that evidence or not. The jurors introduced their own theory into the deliberations,” says Goldberg.

How Our Jury System Is Supposed to Work

“I don’t know that the single holdout in this case brought his theory to the jury room. He appeared to have voted his conscience based on the evidence presented and how, based on his background, he understood the evidence,” says Kele Onyejekwe, St. Thomas, USVI, chair of the Immigration Crimes Subcommittee of the Section’s Criminal Litigation Committee.

Onyejekwe doesn’t believe that jurors introducing their own theories into deliberations is a common problem. “I do not think it is a problem at all in general. During voir dire, litigators weed out biased jurors as much as possible. Jurors take an oath and may be prosecuted for disregarding that oath. Each juror should vote their conscience,” she observes.

“Holdouts may serve our system of justice well because, as Justice Harlan famously noted in the Winship case, the requirement of proof beyond a reasonable doubt in a criminal case is bottomed on a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free. In other words, it should not be easy to convict a person of murder. As much as possible, we should get it right,” according to Onyejekwe.

Can This Be Prevented?

How can attorneys prevent jurors from bringing their own theories into the deliberation room and potentially causing a mistrial? “I don’t think you can prevent this,” Onyejekwe explains. “Jurors are people with life experience and will use that experience as a guide in anything they do.” “We should not forget that experienced criminal defense lawyers aim to win it all and, failing that, to win just one juror for a mistrial,” adds Onyejekwe.

“It goes without saying, as you prepare your case for trial, you should give great thought to the various ways anyone can look at evidence and think of all the possibilities,” advises Goldberg. “If you have the budget and time, a mock jury or focus group might give you a perspective you never thought of. The more you run your case by friends or lay people, the more likely you are to come across some issues you hadn’t thought about,” he adds.

Katerina E. Milenkovski is an associate editor for Litigation News.

Keywords: mistrial, jury, criminal, deliberations

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