Patricia Sylvester may have learned the ultimate lesson of “never ask a question in trial that you do not know the answer to.” Sylvester, 49, was overjoyed when a jury came back with a “not guilty” to vehicular assault in Island County Superior Court in Washington. While she cried with joy, Judge Alan Hancock polled the jury only to have one woman say that she didn’t agree with the “not guilty” verdict. He sent the jury back to voted again. By the time they had returned, they had convicted Sylvester.
I have serious reservations about this process since this “second bite at the apple” could have been influenced by the reaction in the courtroom and the defendant’s reaction. Sylvester was charged after an accident in 2008 that left a man with a collapsed lung and three fractured ribs. She was driving a 1996 Acura when she braked to avoid a car and lost control of her car. He hit a Subaru driven by Michael Nichols.
The jury still found her not guilty of the offense of committing vehicular assault while intoxicated.
There are some reports indicating that the holdout juror was consistent in her voting and that the jury misunderstood a jury instruction regarding the necessity of a unanimous decision. I am not sure how “unanimous” is ambiguous but they believed that every vote was not needed for a not guilty verdict.
In their defense, they had sent questions about the unanimous verdict requirement, but obviously remained confused.
Jurors said that, when the judge sent them back, they looked more seriously at the evidence and found guilty.
It is hardly comforting that they took the time to look more seriously at the evidence after the verdict was announced. The defendant’s reaction and that of the courtroom could have influenced their response. It is true that a judge will often tell a divided jury to continue their deliberations. However, this is a materially different matter when the jury has been called to publicly identify their votes in open court. It seems to me that the earlier divided vote was an accurate tally and, if the court was not going to accept the not guilty verdict (which is understandable), a mistrial would be in order.
This case shows why lawyers need to ask for a polling of the jury if a court does not do so automatically — when you are on the losing side. However, in this case, Sylvester’s attorney reportedly asked for the polling. I am not sure why you would want to poll a not guilty jury. The attorney may have suspected a division and wanted to put the matter to rest for appeal. Yet, it was a gamble for the same reason that cost the client dearly.
It is not malpractice to do so. Such matters are treated as matters of discretionary tactics.
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is it a declining intelligence or a declining educational system that is not preparing people properly?
I doubt we are anymore or less intelligent than any time previously. The only difference is that we don’t read enough books by old dead white guys, or old dead Asian guys or old dead black guys or old dead Arab guys.
We are having to learn the mistakes of 5,000 years of recorded history all over again.
i.e. Plato, Confucius, Booker T. Washington & WEB Dubois, Abu Bakr Ahmad Ibn Wahshiyah & Omar Kiam, et. al.
I cherry picked the Arab scholar, Abu Bakr, from the web, he apparently translated the Rosetta Stone hundreds of years before Champollion.
Mike,
I’d say you could separate money from power, but not wealth from power.
Money’s just a tool to make it so that everyone’s life doesn’t resemble those stupid episodes of sit-coms where the character spends all day running around exchanging favors for favors so that he can borrow _______.
Wealth is what gives you power over somebody.
Gyges,
Can you really separate money from power, or vice versa?
Mespo: “We may indeed have to rethink the jury system given the declining average intelligence of our fellow citizens.”
I’m aware that the rules of evidence were created because juries are inherently stupid, but what rules keep this stupidity in check?
http://www.salon.com/news/opinion/glenn_greenwald/2009/10/22/grayson/index.html
Mike,
I would think that the relatively short history of the “New Age” movement would be another more recent example (of course you have to substitute “money” for “power,” but in practice, the one’s a good way of getting the other).
Mespo,
I agree with the idea that there appears to be a woeful lack of intelligence generally, as compared to perhaps 30 years ago. My sense though is that what we’re speaking of is ignorance as opposed to stupidity. To me people are less stupid today, but more ignorant and that is a process that has been devolving over thousands of years. Reluctantly, I also must agree with you that religion has played a major role in this. However, where we might differ, (but who’s to know the truth?)is that I think all religions have been more or less usurped in the name of power.Certainly Constantine’s hostile takeover of Christianity is a great example of this.
People of 2,500 years ago let’s say, even the illiterate dealt in metaphor and real rhetoric. The Greeks understood that the tales of Olympus were not about actual beings, as the Jews understood that the almost sacrifice of Isaac was a metaphor showing human sacrifice (common practice of the time, see “The Golden Bough,” etc.)was not needed. In my estimation the rise of the Nation State and its’ concomitant political exigencies, made moving away from metaphor and into taking religion as “history,” was in reality a needed accoutrement of the elite and the State.
However, that is a digression from the case at hand and the puzzlement of how do we even conceptualize what would be a fair criminal justice system? I haven’t got a clue.
Elaine M.,
As mespo stated and I agree with him or he agrees with me I am not sure which. Most attorney’s need to learned when to shut up when they have won. As i have stated above, I would not feel this same way if the Prosecution had asked that it was polled.
This reminds me of a case that I was not part of but followed and it made it to the Sct and it was as follows:
A defendant was being tried for Murder. After a lengthy trial and 6 days of jury deliberations the finally reached a verdict. The prosecutor, defendant’s attorney and judge agreed that the jury charge would only include Murder and a lesser included Offense. Hence, 2 possible results on 2 separate jury verdict forms. Jury Verdict 2 was read first and it was Not Guilty. The Judge in disgust immediately discharged the Jury. The Defendant was released off of the hold he was basically freed and all was happy, until, the bailiff cleaning out the jury box discovered a folded piece of paper and looked at it. He ran it to the Judge and the Judge called the sheriff and demanded that the Defendant be brought back to court. The prosecutor and defendant were then called and given a request that they could not refuse to return to the Judges chambers.
The all came back, they learned that the Jury had convicted of Count 1, murder. The Defendant was then sentenced to life imprisonment. Of course the Defendant’s attorney vehemently opposed this as error in the trial proceeding and violated the rule against double jeopardy. The judge was not swayed by the Defendants attorneys protest.
Of course now the Defendant Appeals as a matter of right. The CoA agrees with the trial court (No Surprise) the surprise came when the Sct disagreed and stated that it was indeed Double Jeopardy Attached and ordered the Defendant released and that the Judge had acted as the 13 juror.
mespo–
I think the average IQ score of present-day political pundits and other folks in the mainstream media is down about 30 points. I guess they know whereof they speak.
Mike S:
We may indeed have to rethink the jury system given the declining average intelligence of our fellow citizens. I have heard it said by political pundits that our current Congress is about 20 points light per legislator on their IQ when compared to the Congresses in the 1960-70’s. If that be the case, can the populace be far behind. I see some bizarre verdicts and believe them to spring directly from agendas and crazy beliefs based upon anything but evidence at trial. In fact,one of the reasons I am such a foe of organized religion is that I see its insidious reliance on myth and irrational beliefs creeping into the jury system. I once had a very religious juror (she read her Bible at breaks) tell me after a particularly meager wrongful death verdict that she “couldn’t do anything for the dead, but she could do something for the living.” Sounds almost Biblical doesn’t it:
” For the living know that they shall die: but the dead know not any thing, neither have they any more a reward; for the memory of them is forgotten. Also their love, and their hatred, and their envy, is now perished; neither have they any more a portion for ever in any thing that is done under the sun.”
(Ecclesiastes 9:5,6)
I totally agree with Mike Spindell. It seems like the average American jury hears “beyond a reasonable doubt” and thinks “beyond the shadow of a doubt.” I do blame some of this on true crime shows and “law” shows (all of which I watch and love, by the way) where the defense attorney accuses the prosecution of having “only” circumstantial evidence and if there’s no eyewitness or DNA they can’t convict. Well OF COURSE its circumstantial evidence! But if its an overwhelming preponderence of circumstantial evidence… GUILTY.
Sounds like Sylvester’s counsel could have been a good fit on the team of lawyers who prosecuted the O.J. Simpson trial. Here…try these gloves on, why don’t you.
A guilty pleasure my wife and I share is watching crime reality shows, such as “48 hours Mystery.” (Okay out there stop your chuckling, I never pretended to be an intellectual) I expose myself on this because at least 50% of these shows describe cases where the evidence presented at trial in murder cases, does not meet what I would call the standard of “beyond a reasonable doubt.” There clearly seems a proclivity of juries to put great trust in the “where there’s smoke, there’s fire” maxim and give more credence to the prosecution’s assertions.
As a non-lawyer I think I have more than an average understanding of the jury process, including its’ rationale.
I agree with the system, however, I can’t escape the feeling that it is seriously flawed, but have no suggestions to replace it. In this instance, the jury seems to have been acting in a more than reckless manner and may well have been affected by the scene in court and/or by their own personal needs to get this thing over. The defense lawyers polling is
indeed a further puzzle. I would have wanted to get myself and my client out of court ASAP as soon as the verdict was announced. Then too we can postulate that the Judge was somewhat derelict in properly instructing the jury.
In any event, our legal system which can have such immense effect on people’s lives, certain is deeply flawed and is supportable only by the dearth of satisfactory alternatives.
Not to disagree with JT, but I think the fundamental rule of trial lawyering (that I see violated all the time) is not Lincoln’s proscription about the cross-examination question with the unknown answer, but the rather inelegant one: “When you are clearly winning, shut up!”
Here’s a new one for you Prof Turley
http://news.yahoo.com/s/ap/us_trouble_in_taos
TAOS, N.M. – Larry Whitten marched into this northern New Mexico town in late July on a mission: resurrect a failing hotel.
The tough-talking former Marine immediately laid down some new rules. Among them, he forbade the Hispanic workers at the run-down, Southwestern adobe-style hotel from speaking Spanish in his presence (he thought they’d be talking about him), and ordered some to Anglicize their names.
No more Martin (Mahr-TEEN). It was plain-old Martin. No more Marcos. Now it would be Mark.
Professor,
“It is not malpractice to do so. Such matters are treated as matters of discretionary tactics.”
While I agree that “Trial Tactics” are not generally revueable and should generally not be grounds for disciplinary action. In this case, BUT FOR his request his client was found NOT GUILTY by 12 people. If the Prosecution had asked for the same polling, I would not feel this way.
I think that this attorney was exercising less than prudent practices for an attorney with the ordinary skill in this area. HE HAD WON the case, I think it calls into question his fundamental understanding of trial work and when to shut the ______ up.
maybe they thought unanimous meant that they wouldn’t have to give their names…
This is why I think that polling a Jury after a Not Guilty Verdict is a bad ideal. Especially when the Defendant’s attorney requests such.
[Judge] Hancock polled the jury, as Sylvester’s attorney Charles Hamilton had requested. The confusion started immediately when the first juror said she did not agree with the verdict.
Does this amount to malpractice?
Ay:
I added to the blog to address your point. Thanks.
Maybe they were terrified by the instruction about a “hung jury” … at any rate this jury was one bulb short of a chandelier …
How often does this happen (that the Judge polls the jury unbidden by either attorney)? And would this particular defendant have grounds for an appeal based on the Judge’s actions?
How does that go? When God was giving out brains some people ran under shelter because they thought he said rain.