Twelve Ambivalent Men: Washington Jury Polled After Not Guilty Verdict Only To Be Sent Back and Then Reaches Guilty Verdict

200px-12_angry_menAlansWebPic_smPatricia 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.

For the full story, click here.

126 thoughts on “Twelve Ambivalent Men: Washington Jury Polled After Not Guilty Verdict Only To Be Sent Back and Then Reaches Guilty Verdict”

  1. Byron,

    “Why is government intervention necessary when you have courts to remedy wrongs?”

    Care to reword that? Because right now you’re yelling to keep the government out of your medicare.

  2. Bryon,

    Would that not be enough reason to either regulate or to justify bank bail outs?

  3. BobEsq:

    isnt that quote, above from Locke, the reason we have or at least should have a legal system that allows individuals that have been harmed to seek redress?

    Why is government intervention necessary when you have courts to remedy wrongs? An objective legal standard, in my mind, is far better than a government regulation promulgated by who knows who for reasons that may or may not be above board. Some regulations are merely put in place to restrict entry to markets so that the establisehd entity does not have to worry about competition.

  4. BobEsq:

    “Think about what you’re saying. For example, if the water company in your town was privatized (as it is in my town) and they started charging $20 gallon for water, you wouldn’t seek redress from the government?”

    At $20/gal, I would start my own company and sell it for $15/gal.

    How much do they charge per gallon? How much are they allowed to charge per gallon? If there was free competition how much would the water cost?

  5. And Byron,

    The creation of a playing field with no rules brings us back to this quote from Locke:

    “This were to put themselves into a worse condition than the state of nature, wherein they had a liberty to defend their right against the injuries of others, and were upon equal terms of force to maintain it, whether invaded by a single man, or many in combination.”

  6. Byron: “I think, not having read much of Locke, and going by what you have posted, that the last clause presents a problem. Namely it implies majority rule.”

    Didn’t Madison & Hamilton do a dandy of a job in creating that constitution?

    Byron: “Mr. Locke seems to be for individual rights but only to a point. In my opinion he appears to not go far enough in protecting the individual against the state, mob, etc. But then this is with having read very little Locke, so he may expand on his idea somewhere else.”

    The obligation of the state, within the social compact, is to protect the rights of the individual; i.e. such rights not conveyed in the creation of the social compact. In Fed 84, Hamilton forced Madison to remind Americans that the government is simply constituted of specifically enumerated powers and that the people RETAIN all rights not specifically conveyed. The result was the 9th Amendment. Compare Fed 84 with Section 18 (“On Tyranny”) in Locke’s 2nd Treatise.

    Byron: “That is interesting, I see it the exact opposite. An individual may amass huge amounts of wealth and may have considerable power by virtue of that wealth, in that most people will kiss his ass. He could make life miserable for someone he doesn’t like but he cannot control an entire society as can government.”

    First, let’s not forget when the legal fiction of “corporate personhood” first arose — i.e. during the time of the robber barons.

    Second, one need not have read Locke to appreciate that corporations did not enter this social compact from the state of nature with any rights at all.

    Third, do you, as an individual with all the rights you claim you have, agree with the free market idea that corporations can patent food & human genetic codes? Monsanto does.

    Fourth, under a completely free market economy, you should have no problem with the treasury handing billions over to failed banks so they can gamble in the world markets leaving the taxpayers (i.e. you) holding all the debt and risk and leaving all the profits to themselves. Absolutely FREE MARKET, just not for you; right?

    Byron: “Typically an individual must provide something of value to be able to amass tremendous wealth, think Bill Gates, Andrew Carnegie or Commodore Vanderbilt. They create something from nothing and lay the ground work for entire industries to be created to serve or benefit from the initial creation. Even with this sort of power he is limited by his ability to provide a good or service and he really has no power over society as a whole other than influence through his product or service.”

    Are you telling me that Microsoft was never the ‘bad guy’ in an anti-trust suit? Seriously?

    Byron: “We don’t need protection from men/women like that,”

    Bill Gates does not equal Microsoft. A corporation can exist as an entity indefinitely as a shield for any number of ill-willed directors and officers.

    Byron: “I see government as a mill stone around the neck of wealth creation and by extension an impediment to societal improvement at large.”

    You’re arguing for a playing field with absolutely no rules. If everyone has a right to unlimited wealth creation, who’s going to stop the corporation that, in NFL terms, puts 500 players on the field and commits torts to interfere with the ventures of others?

    Byron: “Government, as do most large organizations, protect and try to expand their power. One way to do this is class envy. The government can be used to take away the sovereignty of individuals through the ballot box. The individual, no matter how powerful, cannot take away my sovereignty unless he performs an illegal act, such as kidnapping or murder.”

    Since I reserve the term ‘sovereignty’ for title issues and cession of land to and from the state or fed, unless analyzing the very beginning of sovereignty in itself, i.e. in the creation of the social compact, I’m not sure where you were going with this.

    Byron: “How does Locke protect the individual from a social compact gone awry?”

    Jefferson: “…with respect to our rights, and the acts of the British government contravening those rights, there was but one opinion on this side of the water. All American whigs thought alike on these subjects. When forced, therefore, to resort to arms for redress, an appeal to the tribunal of the world was deemed proper for our justification. This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. Neither aiming at originality of principle or sentiment, nor yet copied from any particular and previous writing, it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, &c.” (letter to Henry Lee, May 8, 1825)

    Byron: “Government regulations on wealth creation are a distortion of the social compact. If one individual is not protected then none are, no matter how wealthy.”

    Think about what you’re saying. For example, if the water company in your town was privatized (as it is in my town) and they started charging $20 gallon for water, you wouldn’t seek redress from the government?

  7. “He could make life miserable for someone he doesn’t like but he cannot control an entire society as can government.”

    Byron,
    I think this comment is overly optimistic. Perhaps a single individual cannot control the entire society, but a small group of very wealthy people with similar aims can and do control things often. In your own example Gates, Carnegie and Vanderbilt were essentially monopolists, despite their philanthropic bent. The latter two benefited extensively from the government’s need for railroads and the concessions government offered. Always be suspicious of “self made men,” since many like Ross Perot were “self made” by the largesse of lucrative government contracts and perks. This is not per se bad, but what is is that the rest of us are treated much less tenderly and certainly with much less deference.

  8. BobEsq:

    “When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.”

    I think, not having read much of Locke, and going by what you have posted, that the last clause presents a problem. Namely it implies majority rule. Mr. Locke seems to be for individual rights but only to a point. In my opinion he appears to not go far enough in protecting the individual against the state, mob, etc. But then this is with having read very little Locke, so he may expand on his idea somewhere else.

    “The problem, as I see it, with an absolute free market without any regulations imposed by society at all, is a contradiction or breach of the social compact as stated above. By allowing individuals and corporations, under the legal fiction of corporate person-hood, to amass unlimited wealth and power, i.e. without things like anti-trust laws and the like, is tantamount to giving the legislature absolute and arbitrary power over the estates of the governed.”

    That is interesting, I see it the exact opposite. An individual may amass huge amounts of wealth and may have considerable power by virtue of that wealth, in that most people will kiss his ass. He could make life miserable for someone he doesn’t like but he cannot control an entire society as can government.

    Typically an individual must provide something of value to be able to amass tremendous wealth, think Bill Gates, Andrew Carnegie or Commodore Vanderbilt. They create something from nothing and lay the ground work for entire industries to be created to serve or benefit from the initial creation. Even with this sort of power he is limited by his ability to provide a good or service and he really has no power over society as a whole other than influence through his product or service.

    We don’t need protection from men/women like that, most of them want to be left alone to provide their service or product and to amass their wealth. Society as a whole benefits from unfettered wealth creation. I see government as a mill stone around the neck of wealth creation and by extension an impediment to societal improvement at large.

    Government, as do most large organizations, protect and try to expand their power. One way to do this is class envy. The government can be used to take away the sovereignty of individuals through the ballot box. The individual, no matter how powerful, cannot take away my sovereignty unless he performs an illegal act, such as kidnapping or murder.

    How does Locke protect the individual from a social compact gone awry? Government regulations on wealth creation are a distortion of the social compact. If one individual is not protected then none are, no matter how wealthy.

  9. Fukt up.

    I say that due process sez, the defendant had the trial, the jury came back with a verdict.

    Any change in that verdict that prejudices the defendant should be thrown out.

    There are double jeopardy, res judicata, due process, and 5/6th amendment issues here breached otherwise.

  10. Byron: “What I find interesting though is that I have more in common with you, Buddha and Mike Spindell, at least as far as individual rights go, than I do with what you all call Neocons. A crazy bunch if ever there was.

    However where I diverge and greatly is in my belief in a free market as a corollary to individual freedom. I don’t see how you can have one without the other.”

    “I don’t believe you can have true liberty in a mixed economy.”

    You don’t strike me as a neocon for the simple reason that neocons are all about domination; a policy, how shall we say, at odds with individual rights. Since Mike S. has dismissed philosophy in all its forms in a previous debate with me, I’m hard pressed to agree with you that he adheres to any philosophy of civil rights; apparently his views on the topic may vary simply by virtue of what he happened to eat for breakfast that day. Buddha, on the other hand, is more than capable of expressing the architecture of his thoughts on the topic.

    The problem, as I see it, lay in attempting to reconcile The Social Compact with free market economics; a task far more easy than you’d expect so long as you review the basic tenets of the Social Compact.

    N.B. The formation of a Social Compact is the condition precedent for Free Market Economics:

    J. Locke: “MEN being, as has been said, by nature, all free, equal, and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. The only way whereby any one divests himself of his natural liberty, and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community for their comfortable, safe, and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any, that are not of it. This any number of men may do, because it injures not the freedom of the rest; they are left as they were in the liberty of the state of nature. When any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.”

    The problem, as I see it, with an absolute free market without any regulations imposed by society at all, is a contradiction or breach of the social compact as stated above. By allowing individuals and corporations, under the legal fiction of corporate personhood, to amass unlimited wealth and power, i.e. without things like anti-trust laws and the like, is tantamount to giving the legislature absolute and arbitrary power over the estates of the governed.

    “It cannot be supposed that they should intend, had they a power so to do, to give to any one, or more, an absolute arbitrary power over their persons and estates, and put a force into the magistrate’s hand to execute his unlimited will arbitrarily upon them. This were to put themselves into a worse condition than the state of nature, wherein they had a liberty to defend their right against the injuries of others, and were upon equal terms of force to maintain it, whether invaded by a single man, or many in combination.” (Locke, discussing the extent of legislative power).

    Accordingly, the existence of a social compact necessitates legislation precluding the possibility of the rise of market tyranny; otherwise the social compact becomes illusory.

    Per the topic of individual rights, that comes down to an analysis of where and when the state cannot trespass on the individual.

    Locke draws the line here: “Though the earth, and all inferior creatures, be common to all men, yet every man has a property in his own person: this NO BODY HAS ANY RIGHT TO BUT HIMSELF.”

    Keeping in mind that Locke, who Jefferson plagiarized in drafting the DOI, defined tyranny as “the exercise of power beyond right, which no body can have a right to.”

    And, I’m sure you’re guessing, where does Kant fit into all this? Simple. Kant laid out a survey, if you will, in his “Metaphysics of Morals”, of the areas that the sovereign may legislate over and that which it may not. He called them Duties of Right and Duties of Virtue. Duties of Right are duties you owe to the public and the sovereign. Duties of Virtue, on the other hand, are simply duties owed to the self. This is why claiming that parental laws are in fact tyranny.

    Per your Bernie Madoff example; lest you forget how much the SEC failed to keep him in check.

  11. These guys make it look easy!

    [youtube=http://www.youtube.com/watch?v=m_MaJDK3VNE&hl=en&fs=1&]

  12. BobEsq:

    What I find interesting though is that I have more in common with you, Buddha and Mike Spindell, at least as far as individual rights go, than I do with what you all call Neocons. A crazy bunch if ever there was. However where I diverge and greatly is in my belief in a free market as a corollary to individual freedom. I don’t see how you can have one without the other.

    Mike and I go round and round about this (I imagine he must think I am Ruprecht from “Dirty Rotten Scoundrels” to his Michael Cain) and I have spent much time thinking about regulation and free markets. The only thing I can come back to is that with all the regulation there was in place to prevent a scheme like Bernie Madoff’s, it still happened.

    The system was corrupt because of corrupt individuals within the system (the regulatory system). I believe that because markets are made up of many individuals, each with his own self interest in mind, there is a natural equilibrium and organization. And because there is no safety net (read government) people are going to be more cautious about how they spend and invest.

    I don’t believe you can have true liberty in a mixed economy. Maybe I do live in a Frank Capra movie but economic and political freedom go hand in hand. I don’t think you can be truly free without true freedom in both arenas. To me it is quite simple, I want to keep what I earn (my work, my life) and I want to buy what I want to buy (my liberty, my happiness). To me it seems elementary and guaranteed by Mr. Jefferson’s words.

    I am not talking about freedom without an objective rule of law.

  13. And Byron,

    You seem to be struggling with a re-defining of conservatism; sort of a semi-self-re-discovery.

    You may find some solace in John Dean’s “Conservatives Without Conscience” in which he lays out, how shall we say, what you probably always thought conservatism was as distinguished from what it’s been turned into by far right extremists.

  14. Byron,

    The only extent I agree with Socrates in the Meno is the extent demonstrated by C.G. Jung and the Archetypes of the Unconscious; further elaborated upon by Joseph Campbell in his works.

    Otherwise, aside from the genetic ‘inklings’ of the child as inherited by the parents, you’ve got a clean slate.

  15. BobEsq:

    “if we will believe we must search for the things we do not know; if we will refuse to believe it is not possible to find out what we do not know and that there is no point in looking.”

    You teach a child that and he understands it, you got yourself a human being capable of quite a good deal.

    I believe we are born “tabula rasa” and must learn what we know from scratch. I think Socrates is wrong about having knowledge from other dimensions. The brain is a mysterious organ and who knows how much we pick up from our surroundings without even knowing that we know it.

  16. Byron: “we definitely need to learn what is good and not good. How else did humans survive through all the generations? We would have died long ago from eating poisonous plants.”

    The line I quoted was from “Zen & The Art Of Motorcycle Maintenance” in which Pirsig paraphrases another line from “The Phaedrus.” He’s not analyzing ‘good’ in the simplistic sense, he takes the reader on a journey analyzing the split between classical and romantic thought as viewed from the concept of what he terms “quality.”

    Here’s a nice summation from Wikipedia:

    Robert Pirsig uses “arete” as a synonym for Quality in his book Zen and the Art of Motorcycle Maintenance. This includes an extensive discussion of Plato’s “Phaedrus” and the historical contrast between Dialectic and Rhetoric. “And what is good, Phaedrus, And what is not good — Need we ask anyone to tell us these things?” – Pirsig’s line plays off a line in the Platonic dialogue “The Phaedrus” which reads: “And what is well and what is badly-need we ask Lysias, or any other poet or orator, who ever wrote or will write either a political or any other work, in metre or out of metre, poet or prose writer, to teach us this? ” (Translated by Benjamin Jowett)

    Byron: “That which is good promotes life, how do we know what promotes life without having lived or been taught the good?”

    Well, if you’re fond of the texts of old dead guys, Plato (and Socrates) would say Anamnesis (the recollection of what the soul has learned in countless lives prior)

    From “The Meno”

    S=Socrates
    M=Meno

    (In media res; after showing how an ignorant slave boy can ‘recollect’ knowledge of geometry…)

    S: So the man who does not know has within himself true opinions about the things he does not know?

    M: So it appears.

    S: These opinions have so far just been stirred up, as in a dream, but if he were repeatedly asked these sorts of questions in various ways, you know that in the end his knowledge about these things would be as perfect as anyone’s.

    M: It is likely.

    S: And he will know it all without having been taught, only questioned, by finding knowledge within himself?

    M: Yes.

    S: And isn’t finding knowledge within oneself recollection?

    M: Certainly.

    S: Must he not either have at some time acquired the knowledge he now possesses, or else have always possessed it?

    M: Yes.

    S: If he always had it, he would always have known. If he acquired it, he cannot have done so in his present life. Unless someone has been teaching him some geometry? Because he will do as well with all of geometry, and all other knowledge. Has someone taught him everything? You should know, especially as he has been born and brought up in your house.

    M: But I know that no one has taught him.

    S: Yet he has these opinions, or doesn’t he?

    M: It seems undeniable, Socrates.

    86

    S: If he has not acquired them in his present life, isn’t it clear that he had them and learned them at some other time?

    M: It seems so.

    S: Then that must have been the time before he was a human being?

    M: Yes.

    S: If, then, there must exist in him – both while he is and while he is not a human being – true opinions which can be stirred up into knowledge by questioning, won’t it have to be the case that his soul had in it all this knowledge, all along? For it’s clear that throughout all time he either was or was not a human being.

    M: So it would seem.

    S: And if the truth about reality is always in our soul, the soul must be immortal. And therefore you should take heart and seek out and recollect what you do not presently know – that is, what you cannot presently remember?

    M: I think that what you say is right, Socrates, but I don’t know how.

    S: I think so too, Meno. I would not swear that my argument is right down to the last word, but I would fight to the last breath, both in word and deed, that we will be better men – brave instead of lazy – if we will believe we must search for the things we do not know; if we will refuse to believe it is not possible to find out what we do not know and that there is no point in looking.

    M: Here again, I think you are right, Socrates.

    http://homepage.mac.com/jholbo/writings/dialogues/meno/meno8.html

  17. Elaine:

    I am not a book nazi, it was only a suggestion/my opinion. I don’t like certain books but if someone wanted to ban them from being taught, I would be the first one, well maybe second, protesting.

    As a kid I loved Charlotte’s Web and to this day have a fondness for pigs (especially in regards to BBQ). But I also liked Animal Farm (the evil Wilburs) and so I am able to enjoy my BBQ guilt free.

    Your point of something old/something new has allowed me to, for many years, eat BBQ and other succulent pork products and feel no remorse. Had I only read Charlotte’s Web, I just might be a vegetarian.

  18. Byron–

    You asked: “What about children that do like to read?”

    I think all children should be able to select some of the books they read. I’m happy that for most of the years that I was an elementary teacher I was allowed to choose most of the books that I read aloud to my students. If I had been required to read only classics published before 1950, my students would have missed out on some of the finest literature written for children–including books like “Charlotte’s Web.” That didn’t preclude me from also reading books by A. A. Milne, “The Wind in the Willows,” and other children’s classics. Even children who like to read, should be encouraged to expand their literary horizons beyond a list of mandated classics that someone/some group has determined to be their required reading during their years spent in school.

    As I wrote above: How about taking more of a “something old/something new” literature approach with required books? Why do you believe that “classics”–or books written before the midpoint of the 20th century–are the only ones worth reading?

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