Post-verdict Correction for Racial Animus in the Jury Room: Can it be done?

The McCowen Case in Massachusetts

Earlier this month, the Supreme Judicial Court of Massachusetts unanimously rejected the appeal of Christopeher McCowen, who was convicted of murdering Christa Worthington on Cape Cod. The major grounds for McCowen's appeal was that jurors revealed, after the trial was over, that the deliberations had been peppered by racially insensitive remarks and hurt feelings over perceived racial animus.

While the Federal Rules of Evidence, and most state counterparts, preclude jurors testifying about their deliberations after the fact, Massachusetts has an exception carved out for alleged racial prejudice. McCowen's appeal was allowed under this exception. Ultimately, the Supreme Judicial Court found arguments that racial animus affected the final verdict unpersuasive. New Chief Justice, Roderick Ireland, wrote in his concurrence that he wished the trial judge had conducted a more thorough voir dire of the jurors before making his initial ruling.

Ireland's opinion suggests some optimism that a post-verdict investigation of jury deliberations can be a successful method of reducing the influence of racial prejudice in the criminal justice system. This view is shared by Colin Miller, a professor at The John Marshall Law School, who wrote a piece, entitled Without Bias: How Attorneys Can Use The Right to Present a Defense to Allow for Jury Impeachment Regarding Juror Racial, Religious, or Other Bias for The Jury Expert, in March of this year.

I was one of the commenters on Miller's article for The Jury Expert. I am not so sanguine about the efficacy of post-verdict juror interviews, as a tool of reducing the influence of racial animus among jurors. I reproduce my response below. Comments are, of course, welcome.

The Hollow Promise of Post-Verdict Juror Testimony: Circumventing FRE 606(b) won't overcome racial prejudice

I have read with great interest Professor Miller's article, outlining an argument in favor of loosening the restriction on juror testimony to impeach criminal verdicts, where racial prejudice is alleged. I must say that I am not entirely persuaded that his approach can circumvent the logic of FRE 606(b). Of particular concern is a recognition that any effort at post-conviction relief begins a completely new phase of the judicial process, with new procedures, presumptions and burdens of proof. As such, one cannot easily analogize from forms of trial testimony to juror post-verdict testimony. That is, the jurors are most assuredly not testifying at the defendant's trial. Secondly, I seem to place a higher value on the interests being protected by 606(b) - namely the rights of jurors to deliberate free from state intervention or recrimination - than does Professor Miller.

Even were one able to loosen the bonds of 606(b), I am concerned that holding more post-verdict hearings, complete with juror testimony, wouldn't accomplish very much. This is a very blunt, unwieldy instrument for correcting the ills of racial animus. I outline below why I believe this to be so.

The 606(b) Exception Exception - The Massachusetts Rule

Reading the language of FRE 606(b) (and the state counterparts, which generally include the same language), there does not appear to be any room for impeaching a verdict based on racial animus infecting jury deliberations. Clearly, such animus falls squarely within the "mental processes" language and any jury discussion of racial issues falls under the "deliberations" prohibition.

Many impediments to impartial deliberations that would seem to be much more "extraneous" or "outside" have been interpreted to fall under the prohibitions of FRE 606(b). Verdicts have been allowed to stand despite the extreme depression, schizophrenia and mental retardation of jurors. The most famous case testing 606(b), Tanner v. U.S. (1978), involved a jury that got drunk and took cocaine together during deliberations. If cocaine and mental retardation don't qualify as "extraneous" influences, it is hard to think how racism might.

I was very surprised then to hear that a Massachusetts trial judge was conducting a hearing to investigate the verdict in the case of Christopher McCowen. McCowen, a black sanitation worker, had been convicted of murdering Christa Worthington, a white woman who lived on his route. A few days later, three jurors contacted the defense attorney to report racially charged irregularities in the deliberations.

I discovered that the Massachusetts Supreme Judicial Court has carved out a specific exception to 606(b) when racial animus is alleged. Although evidence that a juror made ethnically or racially prejudiced remarks during deliberations is not evidence of an "extraneous matter," the Supreme Judicial Court has held that a judge has authority to inquire into such matters because the existence of such remarks may deprive a defendant of the right to be tried by an impartial jury. Commonwealth v. Laguer (1991).

So, Mr. McCowen got his hearing (Commonwealth v. McCowen, Barstable Superior Ct., April 4, 2008). All the jurors were interviewed. A few racially insensitive remarks were recalled, as were several apologies. In the end, Judge Gary Nickerson was not convinced that racial animus infected the deliberations, something the defendant had the burden of proving by a preponderance of the evidence. So, even in a state with the most liberal standard available for reinvestigating a verdict due to racial prejudice, admitted instances of racially insensitive remarks were insufficient to bring the defendant relief.

So, you secured a hearing - now what?

I would strongly advise against relying too heavily on 606(b) exceptions to overcome racial bias in the jury room. There are just too many things working against you. First of all, while some states like Massachusetts have carved out "racial animus" exceptions to the prohibition against juror testimony on matters relating to deliberations, not many of those exceptions were enthusiastically embraced by the state Supreme Courts. A state's official position on this topic could change tomorrow.

Second, all the exception gets you is a hearing (provided you've got solid affidavits from some jurors). Convincing a judge that the verdict was the result of racial prejudice is going to be a bear. The main reason for this, of course, is that the very same jurors complaining about the verdict voted for the verdict themselves (except in Oregon and Louisiana, where criminal verdicts need not be unanimous).

Imagine that you were an African American juror, sitting on a case with racial overtones. One or two of your fellow jurors start uttering remarks that are racially insensitive, maybe even inflammatory. Will that make you more likely to vote guilty? I don't think so. So, the first question any sensible judge will have for a juror who alleges that a verdict was tainted by racial animus is, "Then, why did you vote for it?"

The most likely scenario, leading to a juror contacting a defense attorney and complaining about the racial tension in the jury room, is that the juror experiences regret about the verdict for some reason. That is, after the fact, she comes to wish that she had voted differently. Most likely, she reads about the case in the newspaper, or hears about it on television, and learns some things that did not come out at trial.

The exceptions to 606(b) are not intended, however, to circumvent the other rules of evidence. Judges know this and no good judge will allow juror regret to impeach a verdict. As the judge in the McCowen appeal wrote, "The oft-expressed second thoughts of a conscientious juror do not necessitate a new trial."

Consider the final paragraph in the opinion denying McCowen's motion for a new trial:

"One final observation is in order. For over thirty years, this author has witnessed the delivery of verdicts in serious criminal cases. Watching jurors being polled has shown in many instances, a trembling hand, a tear trickling down, or the word "Guilty" getting caught in a juror's throat. The polling of the jury in this case was extraordinary. After eight days of deliberations, not one juror trembled, or shed a tear or choked on his or her words. Unfettered unanimity was obvious from the conduct of the jurors as well as from the words they spoke as they were individually polled."

Avoiding racial prejudice in the jury room

While Professor Miller spends the bulk of his article articulating his attack on FRE 606(b), he ends with a list of sensible suggestions for minimizing the likelihood that racial animus will contaminate a jury's deliberations.

Remember that 606(b) only applies after the verdict has been rendered. If you wait until then to try to rectify problems with your jury, the horse has already left the proverbial barn. The key is to be vigilant with respect to racial issues throughout the entire trial process.

By all means, follow Professor Miller's advice with respect to jury selection, but I would pay particular attention to his admonition to request a jury instruction regarding the reporting of juror misconduct. While it might not be prudent to mention racial prejudice explicitly, it is critical that the jurors are made aware that the judge is available to help with any issues that come up during the trial and deliberations. The judge should let each juror know that she should immediately come forward if she is at all concerned that she, or any other juror, has seen, heard or done anything that she believes might not be appropriate.

With any luck, you will have a judge who can couch such an instruction in a non-threatening way. In order to avoid reactance on the part of jurors, they must perceive this admonition as a genuine offer to help them work through any issues that might emerge.

Such an instruction can be critical because the prohibition against voir dire for the jurors does not apply until after a verdict is rendered. So, if jurors come forward during any point of the trial or deliberations, a proper investigation into possible racial prejudice can be conducted.

The Dissenters Dilemma: Holdout jurors face hostility and threats

One holdout's harrowing tale

JoAnn Chiakulas was a juror on the trial of former Illinois Governor Rod Blagojevich, charged with many counts of corruption, stemming, in part, from his alleged attempt to sell President Obama's former Senate seat for cash and political considerations. In the end, the jury hung with respect to 24 of 25 counts, finding him guilty only of lying to federal agents.

Despite an apparent agreement among the jurors to simply return home after the trial, eschewing interviews with the press, Ms. Chiakulas found herself "outed" as the holdout juror almost immediately. Forewarned that her house had been surrounded by press, she sought refuge at her daughters house and tried to ignore the incessant ringing of her cell phone. In an interview with Ira Glass on PRI's This American Life, she discusses at length the reasoning behind her position on Blagojevich's guilt, as well as the environment of hostility to which she was subjected by the other jurors. The interview is fascinating and well worth a listen.

Interpretation, Intensity and Isolation

According to Ms. Chiakulas, she was not the only juror to have doubts about whether the state had made its case against Blagojevich. Since no money or favors ever changed hands, all of the evidence against the Governor was circumstantial and open to interpretation. Among the open questions,

What exactly was he asking for?

Was this kind of posturing and horse-trading common among politicians?

Given how emotional and irrational the Governor seemed to be, was he just "talking trash?" 

Again, according to Ms. Chiakulas, the vast majority of the jury had decided by the end of the trial that Blagojevich was guilty of pretty much everything he had been charged with, making deliberations a mere formality. In addition, the jurors discussed openly the pressure they felt from the public to punish Blagojevich for his transgressions. It was, then, through this "fait accompli" lens that most of the jurors viewed Ms. Chiakulas' reluctance to convict.

While the jurors were apparently cordial enough at the beginning, things turned sour when it became clear that Ms. Chiakulas wasn't going to "come around." Pretty soon, she felt as if she were under siege. Pleasant conversation turned to insults and accusations. Her rationality and emotional soundness were questioned, as were her motives. Some of the jurors sent a note to the judge, asking that she be removed from the jury, on the grounds that she wasn't deliberating in "good faith."

When chiding, challenging and pleading failed to change her mind, certain jurors turned to intimidation in order to change her vote. Ms. Chiakulas tells one rather haunting story of a juror who had been sitting at another part of the table for several days. Finally fed up with Ms. Chiakulas' recalcitrance, this juror moved to directly opposite her and spent hours intently glaring directly at her.

Most holdouts buckle

Regardless of whether you agree with the way in which Ms. Chiakulas interpreted the evidence in this case, you have to applaud her resolve under such withering scrutiny. She was the target of intense hostility and bullying, without any way to escape, and she stuck to her guns. Most of us would not hold up so well.

Don't flatter yourself in thinking that you would hold out under such attacks. The data say otherwise. As I reported in a Jury Box Blog posting last year, Nicole Waters and Valerie Hans, as part of the National Center for State Courts project on hung juries, gave out post-trial surveys to almost 4000 jurors across 4 states and got back completed forms from almost 3500. This covered 367 trials. Among the questions they asked was: "If it were entirely up to you as a one-person jury, what would your verdict have been in this case?" It is important to appreciate that all of these verdicts were unanimous, in that all the jurors officially voted for it. Therefore, each "conforming dissenter" (Authors' term) is someone who voted for a verdict she thought was wrong.

The numbers were staggering. Clearly Ms. Chiakulas is pretty unique in refusing to cave in to majority pressure. Here is how I summarized the study's findings in that earlier post:

Remember that estimates of hung jury rates range around 7%. These are the cases with a dissenter who refused to conform. In the Waters and Hans study, 38% of juries contained at least one juror who disagreed with the general outcome of the case but voted for it anyway (conviction or acquittal). This is the most conservative measure of dissent. Juries are often faced with multiple charges against the defendant or a choice among lesser-included-offenses. So, it is possible that a defendant can be convicted, but not of the charge that a juror thought was most appropriate. Taking this into account, 54% of juries contained at least one juror who disagreed with the jury's verdict on at least one charge. That is, more than half of the juries contained at least one juror who voted insincerely. Nearly half of the juries (46%) contained at least one juror who disagreed with the verdict for the most serious charge facing the defendant.

So, when deliberations in criminal cases fail to generate unanimous consensus, the last holdout is more than five times more likely to give up and vote with the majority than to hang the jury. Given the sort of behavior Ms. Chiakulas describes, can we really be surprised by this statistic?

The Solution? Unanimity has to go.

It is important to realize that the majority jurors in the Blagojevich case weren't "wrong." Neither was Ms. Chiakulas. With so much discretion in the hands of a jury, from interpreting the credibility of witnesses, to balancing the relative importance of competing evidence, to resolving "mens rea" issues, reasonable people can -- and do -- disagree. Even when twelve disparate people do succeed in agreeing about who did what to whom when, there is always the thorny issue of "reasonable doubt", a term without a definition. Each juror is free to impose her own threshold. We know from experimental research that there is huge variation in how certain people need to be in a defendant's guilt to vote for conviction.

So, the problem is not that the jurors in the Blagojevich trial could not all agree. The problem is that the criminal justice system forces them all to vote the same way to deliver a verdict. The usual rationale for this requirement is that it instills confidence in the correctness of the verdict. But, as the Waters and Hans study clearly shows,

The "unanimity" of criminal verdicts is an illusion!

Legal scholars are trumpeting something that does not exist. Criminal verdicts are just as likely to be the result of bullying, intimidation, compromise, fear and just plain exhaustion as real unanimous consensus. In difficult cases, where reasonable people can disagree about the correct verdict, real unanimous consensus seems almost completely absent, with verdicts always dependent on some jurors voting against their true beliefs.

Here is what we do know about a system that requires a unanimous verdict.

1. There is a huge premium placed on jury selection, to avoid the possibility that "ouliers" will end up on the jury. This is critical because such outliers are most likely to reach different conclusions than their peers, endangering unanimous consensus. This is really the only argument propping up the morally, ethically and legally bankrupt practice of peremptory challenges.
2. The extensive use of peremptory challenges, along with judicial sensitivity to jurors who might be "biased," results in juries that fail miserably in any effort to reflect a fair cross-section of the community from which they are drawn. Essentially, anyone with strong views on topics relevant to the case at hand will be dismissed. This has a detrimental impact on the completeness and inclusivity of jury deliberations.
3. Jurors who reach conclusions that differ from the majority of other jurors come to be seen as obstructionist. Their views are resented because they interfere with the delivery of a verdict. Many jurors who find themselves in the minority choose to remain silent for fear of the reactions their opinions might engender.
4. Jurors in the majority are placed in the unenviable position of being asked to convert any dissenters by whatever means possible. The judiciary has declared that it does want to know how the jury verdict sausage is made. As such, juries are simply told to do whatever it takes to return a unanimous verdict. Even jurors who don't really want to resort to bullying and cajoling may feel forced to do so in order to satisfy the Court.
5. Lots and lots of jurors in criminal case in the United States are lying to us. When asked by a judge, "So say you all?," the foreman replies, "So say we all." And it's all a big lie that everyone knows about but no one is willing to expose. Why should we endorse a system that forces jurors to take an oath to vote sincerely and then imposes a voting requirement that begs them to violate that very oath?
6. England abandoned unanimity for jury trials in 1968. Did you hear about the riots? That's because there weren't any. Oregon and Louisiana have used non-unanimous verdicts in criminal cases for centuries. No riots there either. In Australia, the states that still have unanimity are under pressure from the public to move away from unanimity.

The solution is to move away from unanimity to a more reasonable voting system for criminal trials. For instance, we could require 8 guilty votes for a conviction. Absent that number, the defendant is acquitted. This would, of course, also eliminate the wasteful spending associated with retrials following hung juries. I do believe that that concern that a majority will simply vote for a conviction and refuse to listen to dissent is a real one. There are two possible solutions to this concern. First, one could impose a minimum deliberation time (which would presumably increase with the seriousness of the offense). Alternatively, one could impose a unanimity requirement for the decision to stop deliberating. So, if the jurors are not unanimous as to the correct verdict, but they are unanimous in thinking that further discussion will not be productive, they can vote to end deliberations and render a verdict.