Fifty-year-old Ismael Nieves was on trial (for the second time) for failing to register as a sex offender, following a conviction for raping two girls in the early 1980s. The jury in the case had been deliberating for a couple of days when one juror left the jury room for a bathroom break.
He never came back.
The other jurors found him locked in the bathroom, refusing to come out because he did not want to continue deliberating. It seems that the jury was split 11-1 for conviction and the lone holdout didn't want to talk about it any more. So, he took his vote and went home -- after a fashion.
Superior Court Judge Mary-Lou Rup had no choice but to declare a mistrial. When the jury returned to the courtroom to be officially dismissed, only one juror was smiling. Guess who...
This case provides a nice example of why I think the unanimity requirement is so misguided. We know that many juries eventually split 11-1 or 10-2 (almost always in favor of conviction in criminal cases, because prosecutors only choose to try strong cases). Such a split results in one or more of the following:
1) The majority badgers the holdouts. Since the lone juror (or pair) have no chance of convincing all the other jurors to switch their votes (Henry Fonda notwithstanding), the only question is whether they will cave. This third-degree can contain everything from "Don't you want to go home and see your family?" to "Don't be such a stupid idiot!" The "deliberations" can go on a long time, but this isn't what Blackstone had in mind when extolling the virtues of the American jury. Remember that not all deliberation is good deliberation.
2) The holdouts just give in. It might take an hour, it might take a week, but most of them do. So, a juror is voting guilty even though she is not convinced beyond a reasonable doubt. The empirical studies I have examined on the subject seem to support my suspicion is many, if not most, "unanimous" criminal verdicts are not actually the result of unanimous consensus among the jurors. That is, the "legitimacy" of criminal verdicts that supposedly flows from the unanimous voice of the jury is a sham.
3) The jury compromises. Tired of trying to get the holdouts to "see reason," a deal is struck. Everyone agrees to convict the defendant of only some of the charges, or of a lesser included offense. Maybe the jury agrees to convict one codefendant but not the other. This "justice" can result in a verdict that is accepted by all the jurors, but supported by none of them. The Supreme Court has declared that compromise verdicts are contrary to the law but a necessary concession to the functioning of the criminal jury system.
4) The jury hangs. This results in possibly a deal with the defendant where he pleads guilty to a lesser charge (see compromise above) or possibly a retrial. A retrial costs everyone a lot of unnecessary time and money. Meanwhile, the defendant is usually stuck behind bars awaiting a new trial. Suppose the the defendant is subsequently convicted. While the second jury might be unanimous, it is still true that at least one juror who heard his case was not convinced of his guilt beyond a reasonable doubt. So, how legitimate is such a verdict? Again, unanimity is an illusion. Perhaps the first jury hung because it was a hard case. Maybe we should be happy that they couldn't all agree. There is no reason to believe that the jury that reached a unanimous verdict (but perhaps not real consensus) was any more representative of the population, was any more attentive to the facts, deliberated any more conscientiously or voted any more sincerely than the jury that hung. All we know about them was that they all voted the same way.
I have written at length elsewhere about my views on the unanimity requirement. See Edward P. Schwartz and Warren F. Schwartz, "And So Say Some of Us... What to do when Jurors Disagree," (9 S. Cal. Interdisc. Law Jnl. 429, 2000). I won't belabor the point here, but allow me to briefly outline a few items that few people ever consider on the subject.
1) Oregon (10-2) and Louisiana (9-3) have long had non-unanimous verdicts in criminal cases and there is no evidence that their juries get verdicts "wrong" any more often than juries in other states. There have been no riots in the streets of Portland or Baton Rouge over non-unanimous convictions. Based on a study from the 1990s, the hung jury rate in Oregon was roughly 1/30th that of California (0.5% versus 15%).
2) England, from whom we inherited the common law, adversarial trial system, did away with the unanimity requirement decades ago. No riots in London, either (except in songs by The Clash). Most of the states of Australia use some form of qualified majority now, too. All of the European countries that use some form of lay jurors require something other than unanimity for conviction (usually something between simple majority and two-thirds).
3) Eliminating unanimity would allow us to also eliminate peremptory challenges, which let lawyers strike a certain number of jurors for any reason they choose (except ostensibly for race or gender, but don't get me started on that one!). If no one juror can unilaterally veto a verdict, it won't be critical to eliminate from the jury people with extreme (but not illegitimate) views. As such, jury deliberations can be more inclusive, more complete, and more open. I sincerely believe that it is better to let a person with unpopular views sit on a jury, speak her piece and probably get outvoted than to prevent her from ever sitting on a jury at all.
Well, I have already gone on too long for a blog entry. As you can tell, this is a topic about which I have thought a lot and I deeply care about the right answer. Perhaps a post on the internet can spur the lively debate that my academic writing never did!