Agreeing to Disagree to Agree

A recent case from Columbia County, New York has gotten alot of attention lately. It seems a jury in a robbery case had reported that it had reached a verdict of guilty. Then the defense lawyer, Robert W. Linville, requested that the jury be polled. Juror No. 2 said "not guilty."

So much for the "unanimous" verdict. So what could County Judge Paul Czajka do, but send the jury back for further deliberations?

Several hours, and one jury request for a readback of portions of the record and a definition of reasonable doubt later, and the jury finally reached a verdict - 12-0 for acquittal. This time, the State had the jury polled, and it remained unanimous.

Besides the importance of polling a "unanimous" jury, what can this bizarre turn of events teach us?

First, the jury was unsure what was meant by "proof beyond a reasonable doubt." This isn't unusual. As I have pointed out before, reasonable doubt instructions are inherently contradictory, in that they simultaneously posit that the burden is on the State, while defining not the quantum of proof needed to convict, but the quantum of doubt needed to acquit. Empirical testing demonstrates that juries impose a higher burden when given "clear and convincing evidence" than when given "reasonable doubt" instructions. We focus too much on the doubt, ignoring The Great (proof) Beyond.

So this jury started off, most likely, imposing the burden primarily on the accused. Add to that the fact that jury compromise is, according to Harry Kalven & Hans Zeisel's landmark work The American Jury, pervasive. It is not at all unlikely that the jury in this case misunderstood the burden of proof, and compromised on a verdict without first adequately discussing the evidence. A first vote (based on this ambiguous reasonable doubt standard) leaned towards guilty, and the minority jurors agreed to go along with the majority.

When polled, a minority juror admitted that it was a compromise verdict - "Guilty" did not reflect her judgment. After discussing the case, with further explanations of the standard of proof, and the jurors came to understand that the minority, not the majority, was correct.

This may not be correct as to what occurred - it is certainly speculative. But we do know, from a recent Arizona study of 50 real jury trials and their deliberations, that dissenting jurors are often given short shrift. This study, from civil cases in which juries do not have to be unanimous, may not correlate directly to criminal cases (save in Oregon and Louisiana, states in which criminal juries need not be unanimous) but it may logically indicate that majority jurors may not be very patient with dissenting jurors who refuse to compromise.

As important as the unanimous verdict rule is, it means nothing if dissenting jurors are willing to compromise away their conscientious judgment merely in order to prematurely terminate deliberations. An anti-compromise jury instruction should be routine in criminal cases, warning jurors that if they cannot truly agree, they must vote their own individual judgment regardless of the result. Judges tend to be hostile to such instructions (jury compromise means faster verdicts, thereby maximizing judicial time on the golf course.)

But however you look at it, jury compromise is always jury misconduct. Considering that most cases do end in convictions, compromise is usually jury misconduct of the most harmful type -- resulting in the conviction of a person without the prosecution first convincing each and every juror, beyond a reasonable doubt, as to the guilt of the accused. Considering that jury compromise is "pervasive," it is impossible to know how many people rotting away in American prisons were only found guilty as the fruit of jury misconduct.

I am unable to consider this as an abstraction. While I do believe that jurors have the lawful prerogative to nullify if they believe a conviction would be unjust, I do not believe they ever have the lawful prerogative to compromise in order to reach a pseudo-unanimous verdict. While judges have vociferously lambasted jury nullification, they have covertly embraced jury compromise.

Apparently, such compromise nearly led to the conviction of a man who was later acquitted, in Columbia County, New York. At least he is not imprisoned due to jury misconduct. But, as all involved agreed, his case was the exception. It demonstrates, more clearly than anything else, why we must endeavor to change the rule.