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. Mike S:

    I am the first to say that most blue collar workers work far harder than I do. The most demanding jobs I ever had were store clerk, waiter, and bar tender. There is a reason that the lot of the working poor in every age is described as “wretched.”

  2. “The point is that why should people that work and struggle be made to pay for people that don’t want to work hard? If someone cant work hard because of mental or physical limitations, then by all means help them. But if someone spends their youth drinking and carousing and not thinking about the future, why should I have to help them?”

    This is where your thinking goes off the rails. The fact that for years conservatives have stigmatized people for being lazy drunks, in order to demonize them and thus make sssisting them seem stupid is merely bigotry. These claims were made about the original American Natives, the African slaves, the Acadians, the Scottish settlers, the Irish emigres, the italians, the Jews, the Mexicans, the Chines, etc., etc. Even the Okies, who were farmers who lost their land to drought and had worked very hard to farm it, were then characterized as lazy, irresponsible drunks.

    There truth is that the overwhelming majority of people will and do work hard given the opportunity. However, the wealthy elite needs these phony sterotypes to perpetuate themselves. The silliest part of this nonsense is that as your wealth increases your tendency for hard work decreases. However, executives who can define their conditions of work will tell you about the hard day they spent on the golf course with clients.

    You obviously have worked hard in your life and faced tremendous obstacles, but you are far too smart a person not to see beyond the stereotypes you’ve absorbed to realize the truth. Almost all people, given the opportunity will work their asses off. Any other belief is purely the propaganda of the wealthy, many of whom were to the manor born. Do you really believe that Donald Trump works hard, or was ever in a position in his life where he had to work for himself or his family?

  3. CCD:

    I think all government expenditures should be cut back to the minimum required for adequate service, a debateable amount. DOD included. But as some dead roman said ” si vis pacem, para bellum” (if you want peace prepare for war).

    The space station is a mixed bag for me. Why spend all that money up in space, why not give tax cuts to citizens. But we do seem to learn something and new technologies do arise. So it might be a good thing overall.

    As far as John Dean is concerned, I havent really read about him or read any of his works. I read a book on Watergate years ago that laid out the entire mess and Dean seemed to be a pretty big player. I think a good deal of what he is doing now might be a defensive tactic. But I will watch the link so as to be “fair and balanced”.

  4. Byron:

    Integrity or lack of it transcends every tribe, public and private.

    Bob has me hooked on John Dean, this interview led me to his books.

    He speaks for 35 minutes then takes questions for the balance.

    More squishy logic, the DOD spends in excess of 900 billion in 2009. Which in itself nearly exceeds what the rest of the world spends combined. Add in the NSA type expenditures and I doubt anyone actually knows what gets spent.

  5. Byron,

    I like your idea of the govt. making up the difference between a true living wage and actual wages. It’s a good idea. For a family of 4 to live on $35,000 isn’t enough. People in that situation, can and do go hungry and homeless. If you make that money and have even one medical problem or one problem of any kind, you can kiss it goodbye. This same goes for one person making $20,000. One mishap, which can happen to anyone, and it’s over.

    If work is the only condition upon which benefits flow then we really need to kick off those who inherited wealth from all housing, health care, food and clothing. They should be on their own just like anyone else who won’t work.

  6. BobEsq:

    just bought Kant’s Critique of Pure Reason. And already a question arises. He seems to be saying that there are 2 types of knowledge but then he says that a priori knowledge is based on a posteriori knowledge. In other words a priori is subserviant to a post. Is a priori a synthesis of a post.? Or is a priori the knowledge that supposedly follows us from other dimensions as in Socrates’s dialogue with Meno about the slave boy that could do geometry?

  7. CCD:

    thanks for the articles. Just another reason why I don’t think government regulations work.

    Government employees are no less susceptible to graft and corruption than their private sector counterparts.

    As an example of a market based regulator, look at Consumer Reports or Underwriters Laboratory or JD Powers. I am sure there is some shenanigans there as well, but for the most part when I buy something reviewed by consumer reports it is usually as good as they say.

    I even think that government regulation gives people a false sense of security and they don’t bother looking into the actual credentials of the company or individual they are buying goods or services from. Your AIG example, Bernie Madoff, Enron, the peanut butter peccadillo, the list goes on and on. If government is such a good regulator why all the problems?

  8. Jill:

    “but your ideas don’t comport with real life sometimes.”

    I used to work as a manager in a fast food restaurant in La. (the state) it was many years ago and so maybe the laws have changed somewhat. Anyway there were 2 young ladies that worked there who were on welfare. They were as hard working as anyone and I wanted them to work some extra hours, they were only working about 20 or so and I figured they could use the extra money.

    I did not know they were on welfare when I asked. They said they could not because they could only make a minimal amount of money to retain their benefits. If they made $1.00 over that amount they would lose all their benefits.

    They would have worked but they were in a bind because the government said they could not or they would lose the entire benefit. I thought that was the craziest thing I had ever heard. Why didn’t the government just make up the slack, if a family of 4 needs say $35,000/year for a roof over their heads and 3 meals per day and they can only make $15,000 then have the government give them $20,000. And as they make more money reduce the amount tendered.

    My ideas may not comport with your idea of reality but I think they are in line with what I have seen in my life. Unfortunately there are lazy people in our country or they are too stubborn to do something else. If the buggy whip industry dies in Sandusky, Ohio it might be time to move to Detroit, Michigan to go to work for that Henry Ford fellow making that new fangled Model T.

    Anyone, in this country, can make $20,000 a year unless they are mentally or physically limited.
    And no I don’t think children should work. And I also believe that anyone that needs some help getting back on their feet should have it. But cradle to grave welfare is not effective.

  9. Byron,

    You know I also like you, just as many other people do but your ideas don’t comport with real life sometimes. People are already starving in the US. You may think it is because they are lazy but this is simply not true. People can work very hard and still not make enough money to survive. Sometime do the calculation on minimum wage, add up reasonable expenses, and you will see it’s not a living wage. How hard should a baby and a six year work before they are allowed to have food, shelter and medical care? What about lazy rich people who got that way via inheritence? Why does someone who never worked a day in their life get to have food, shelter and medical care?

  10. CCD:

    I will answer your post when I return. I have a couple of stories, about this type of thing as well.

  11. Mike:

    I honestly don’t think people would starve in the streets and be destitute.

    I also understand that there needs to be some sort of social safety net for people that are in circumstances beyond their control.

    I have MD (adult onset) and use a wheelchair, my dad died when I was 7, my daughter has cystic fibrosis and it took me 10 years to get my first degree because I worked to pay for it. By the end I had 8 thousand in loans, which I paid off in about 4 years after I got out.

    The 8 thousand was about what I paid into the system in the way of taxes over the last 2 years due to a very good job that I took during a year off of school that allowed me to save enough to pay for the last 2 years. So in essence I loaned myself the money that I paid back to the federal government with interest.

    I worked my ass off doing hard physical labor, you can ask Former Federal Leo about what roughnecks do. The point is that why should people that work and struggle be made to pay for people that don’t want to work hard? If someone cant work hard because of mental or physical limitations, then by all means help them. But if someone spends their youth drinking and carousing and not thinking about the future, why should I have to help them?

  12. “I dont even want medicare or social security. I know it aint ever going to happen but one can dream.”

    As you know I respect you as a person and do believe you are a compassionate and caring human being. I also take you at your word that you’re a good employer. With those caveats let met say that sometimes in your love affair with your libertarian political viewpoint you adopt positions that are innately cruel and stupid. Notice I’m talking about your surmises and not about you personally. As is my wont though let me get personal about myself to show you the upshot of where your statement above plays out with at least one human and I am certainly among the lucky ones.

    I’ve worked since I was 16. At 18 my work became my sole support since I was orphaned. I received money from social security, won a full tuition government sponsored merit scholarship for college and yet had to work a thirty hour week going through school just to support myself and have a place to live. After school, owing thousands in student loans I took a job in what people call the Welfare Department.

    Through it I learned about poverty, deprivation and a system set up to cause failure. Not because the people I worked with were stupid and/or lazy, but because Conservatives had rigged the system to destroy family life, ensured by regulation that any family getting assistance must be and stay completely impoverished and the system supported greedy landlords who made millions from substandard housing. At the same time their children were undereducated by a school system that rather than distributing money fairly, diverted money from schools in poor areas to those in more affluent areas. Finally, the police were allowed to run rampant in the areas I worked, treating people in ways that they wouldn’t dare to on Park Avenue.

    In fifteen years out on the street of every “fearsome ghetto”
    in NYC I walked alone day and night and never a cross word was said to me, though I was white, blond haired and blue eyed. At night I would turn on the 11:00pm news and watch story after story showing people of color in violence and frightening the general public. I would go into areas alone that the police said they were afraid to go without backup. Never once an assault upon me and never once did I see crime committed.

    That work bred in me the feeling that this was to be my life’s work. I won a full tuition scholarship, via competition, to an Ivy League University for my Masters degree, it was a government scholarship and simultaneously enrolled in training as a therapist in a State licensed Training Institute. I also got married and had two kids. My career in the Agency took off as did my private psychotherapy practice. I became a recognized expert in child welfare by supervising a novel program that in a study outperformed all others of its kind using scientific measurement standards. However, during this time due to the structure I was in and because of the ethics I adhered to my salary did not rise commensurately with my responsibilities. I became a little big shot, without the concommitant financial remuneration.

    So I worked two jobs and my wife worked a difficult job as an executive in a corporation and still we had to get money from my in-laws to buy our first house. We did not live an extravagant lifestyle, but by then even with my excellant private health insurance our family medical expenses cost a lot as did raising our kids. My heart problems didn’t help, but I continued to work long hours at both my jobs.

    I rose in the Agency and became known as someone who got the job done. There was some resentment, however, because as Mayoral Administrations came and went I insisted on being ethical in my work, rather than bow to the exigencies and corruption of Mayoral politics. In any event you must factor in that the Commisioner of my billion dollar Agency, with more than 20,000 employees made about $140,000 per year in todays dollars. My Agency, staffed on a military model, would place me as a Major, or lower level Colonel at best. I never kissed ass and so I never made that much money. This was also hurt by the fact that my Executive job, with its’ long hours precluded my work as a therapist so that source of income dried up. By the way I never could afford a 401k for instance and my wifes job blew up when a new boss came in who didn’t care for women execs. She kept working at other jobs but made less.

    When I hit 55 and could retire from the Agency and go to work for not for profits. This was when my income finally began to soar, though until the end never into six figures, while living in a six figure neighborhood for its great school system. I thrived with non-profits for 6 years and we began to be able to save a little money when my heart failure hit. It was so svere that I could no longer work. It was especially ironic because the day before I 911’ed to the hospital I had interviewed for the biggest job of my career, running an established mid-level non-profit and the day after I returned from the hospital they called offering me the job which I could no longer take.

    My disability was such that I received SS Disability six months from the date of application, this was the law and actually the 6 months was an expedited timeframe and unusual, but then my prognosis was none to good. Most of our savings were used up in the six month interim until SS Disability kicked in. My wife had to quit working to take care of me and in this economy returning to work is not an option for her. So we live on my pension and on Social Security. without it I don’t know where I’d be. While my health insurance was always good since Medicare kicked it I literally am saving thousands of dollars a year that I don’t have.

    Please understand this I’m one of the lucky people who needs these government services, there are millions less fortunate than me.

    Byron, you might say to me that I should have chosen another line of work and probably I could have and made lots of money. I’m (or was at least) a handsome, tall guy, a smooth and convincing talker and I’ve got a Mensa like IQ. Damnit it though, I have literally saved 5 lives, two from diabetic shock and three from suicide. I have benefitted and helped the lives of countless others and literally worked my way into disability via long hours and severe operational pressure. Without Social Security and Medicare my life would be in poverty. I think I and millions more Americans deserve better than that and that any system of government that precludes that, is a system set up to benefit those who’ve lived lives of privilege

  13. In addition regulatory agencies could be called extra-constitutional. Or by some even unconstitutional and so outside of the limits of government power.– Byron

    AIG knew precisely how they wanted government oversight to work.
    (The bigger the firm the bigger the whore my godfather at the CBOT was fond of saying, Enron, Anderson, Drexal). National banks choose their regulators and regulators want to get picked, because banks pay them for the service of regulation. AIG, IndyMac, BankUnited and Washington Mutual all chose the Office of Thrift Supervision as their federal regulator. This information comes from an article:

    Please read this, it’s brief.

    Playing cards with friends last weekend and speaking about these facts my buddy who is a captain with United said it’s exactly the same with the toothless FAA regulators. He is in a safety officer position with the pilots union and comes across this frequently. Airlines pick who comes into their shop to perform oversight and enforcement of regs. The company controls the climate via political pressure.

    Smart whores stay successful by managing two steps ahead of government.

    Byron you might enjoy this angle, a year ago Uncle Sam could have demanded 25 percent to 30 percent of the underlying equity in the banks before agreeing to negotiate a bailout package with the weakened institutions.

  14. Gyges:

    I am talking about regulations that are not determined by court cases. Maybe I am splitting hairs. But it seems to me that a government agency making up regulations is different than precedent set in a court of law. Assuming that it was a fair trial.

    In addition regulatory agencies could be called extra-constitutional. Or by some even unconstitutional and so outside of the limits of government power.

  15. Byron,

    I’m asking you to clarify what you meant. Courts are a part of government, so the question you posed was essentially “Why should government intervention be necessary when a part of the government to remedy the situation?”

    That doesn’t really make sense.

  16. Byron: “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.”

    Gyges beat me to the punch; courts can only intervene where government has promulgated law to do so; unless you’re relying on an equitable remedy claim.

    We leave the state of nature and form the social compact to better protect our rights; not to enter an economic Thunder Dome.
    We do not leave the state of nature to enter

  17. Gyges:

    Right they are. What is your thinking for saying that?

    Courts are a little different than some government agency making up a regulation.

  18. Byron,

    Fine, then you’re calling to keep Traditional Hungarian Stew with paprika out of your Goulash.

    Courts ARE government intervention.

  19. Gyges:

    I dont even want medicare or social security. I know it aint ever going to happen but one can dream.

  20. I totally disagree with the bank bailouts and think they should have either gone under, merged or made it on their own.

    I believe that Hank Paulson bailed his rich friends out of a jam and Bush was too stupid or to pernicious to stop him.

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