When the jury hung in the 2007 Phil Spector trial, the judge graciously told them that there was no stigma attached to a failure to reach a verdict. After all, that’s what the burden of proof is all about–the prosecution has to prove conclusively that a defendant is guilty in order for the jury to convict.
My question is: Is it true that there is no stigma attached to a hung jury?
Jurors and Juries in Fiction
I felt sure that my novel would be only one of dozens in which jurors are featured characters. Then I tried to find comparable stories and characters. After searching the DorothyL listserv, Amazon, Google, and Alibris (in that order) the following 20 novels (not counting Grisham’s) are all I could find. (I also found dozens of Martha Grimes “Richard Jury” novels, Mickey Spillane’s “I the Jury,” and a few others with “jury” in the title that had little to do with juries and trials.) Most of the novels listed here are out of print.
Then I also found a number of nonfiction books about juries, most written by judges and lawyers who really don’t know the first thing about what goes on in a jury room. Many of these books are laments about the sorry state of the American jury system or pseudo-psychology of “the jury mind.” The sole exception is the work of Dr. Susan Sunwolf. She seems to be unique among lawyers in that she understands that jurors don’t think like lawyers and vice versa.
My conclusion? Most lawyers are contemptuous of jurors. Most novels involving jurors are courtroom dramas that reflect this legal bias. Most Americans want to avoid jury duty at all cost because of this general disregard for jury service. Few novelists have ever served on a jury, and as a result few novelists want to write about jurors. More’s the pity.
Comments invited: Please comment, especially if you have read any of the books in this list. Review comments are especially welcome.
Classic: Rose, Reginald, Twelve Angry Men (novel, as well as a movie)
Most of the novels of John Grisham
Other novels (mainly mysteries and thrillers)
Arsenault, Mark, Grave Writer
Brown, Sandra, The Crush
Burnett, D. Graham, A Trial by Jury
Chester, Giraud, The Ninth Juror
Collins, Brandilyn, Dread Champion
Davis, Rankin, Hung Jury
Delinski, Barbara, Irresistible Impulse
Devane, Terry, Juror Number Eleven
Dugoni, Robert, The Jury Master
Gill, B. M., The Twelfth Juror
Glaspell, Susan, A Jury of Her Peers (short story)
Green, Geoge Dawes, The Juror
Hall, Parnell, Juror
Kliss, Kate, Trial by Journal (juvenile)
Korelitz, Jean Hanff Korelitz, A Jury of Her Peers
Lutz, John, Death by Jury
Macwhithey, Bill, The Thirteenth Juror
Martini, Steve, The Jury
Stewart, Edward, Jury Double
Van Wormer, Laura, Jury Duty
Adler, Stephen J., The Jury: Trial and Error in the American Courtroom
Friedman, Philip, Grand Jury
Erenfreund, Norbert, You’re the jury (series)
Levy, Leonard, The Palladium of Justice
Sunwolf, Susan, Jury Thinking
Wishman, Seymour, Anatomy of a Jury
How much doubt is reasonable?
As a student of the English language, I’m convinced that doubt isn’t a reasonable thing in any of its many forms.
What I mean is that doubt is nothing but a feeling. A person can doubt the existence of God or doubt that she’s going to forget her phone number in the next two hours. A person can doubt another person’s statements because of a gut feeling based on her understanding of neuro-linguistics (eye movements) or body language. That’s what jurors are asked to do all the time–look at testimony skeptically.
In my opinion, the jury instruction that the prosecution must prove its case “beyond a reasonable doubt” is silly. And I know this is a phrase that is now prescribed in all criminal trials by the U.S. Supreme Court. I’ve researched the history of this phrase extensively, and what I’ve learned can’t be boiled down to a blog post. (Maybe I’ll write an article on the topic one of these days.)
But I think that what my gorgeous librarian-sleuth, Iris Ginge, concludes in The Juror Investigates is what judges really ought to tell juries: “The prosecution is presumed to be mistaken unless and until it proves otherwise.”
In Illinois, the criminal statute (720 ILCS 5/10-1) for the crime of kidnapping reads:
(720 ILCS 5/10-1)
(from Ch. 38, par. 10-1)
Kidnapping.) (a) Kidnapping occurs when a person knowingly:
(1) And secretly confines another against his will, or
(2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will, or
(3) By deceit or enticement induces another to go from one place to another with intent secretly to confine him against his will.
(b) Confinement of a child under the age of 13 years is against his will within the meaning of this Section if such confinement is without the consent of his parent or legal guardian.
Kidnapping is a Class 2 felony.
(Source: P.A. 79-765.)
You would hardly think that a jury would have to determine what simple words like “place” mean, but they do. And they may also have to decide when “one place” becomes “another.”
For example, consider this scenario: A bank robber takes a teller hostage as the cops burst into the bank. He drags the teller into the safe. He closes the door and holds her there with a gun to her head for hours. This may be kidnapping. The teller has been dragged from one floor of the bank to another and then into a locked safe, where the cops may or may not even realize she is being concealed. Concealment is clearly part of the robber’s motive for going into the safe.
Or consider this scenario: At a frat party, a date-rapist drags a girl into a bedroom and closes and locks the door before raping his victim. For several hours, he holds her against her will. As the other guests leave the party, she struggles to get away and tries in vain to cry out for help. Concealment is clearly part of the the rapist’s motive for taking his date into the bedroom and locking the door. And secrecy is also key. Imagine the woman’s fear and frustration at being so near to but so far from help. The rapist can terrorize this person very cruelly as long as she is concealed.
In both of the above scenarios, part of the terror of the victims comes from being involuntarily concealed with the threat of ongoing or future injury.
The criminal justice system is based on the assumption that the judge will make it clear to the jury whether a victim has, under the law, been carried from one place to another. Technically, the distance from “one place to another” isn’t relevant–in most cases. Kidnapping can be proved, for example, even if the safe into which the teller is dragged is mere feet from her workstation. A judge should explain this based on case law in the jury instructions.
However, the issue of “secret concealment” isn’t really an issue for judicial interpretation, in my opinion. The statute makes it clear that kidnapping is a crime in and of itself, not an aggravating factor to every other crime of violence. Every rape and sexual assault does not involve kidnapping. Every hostage situation does not involve kidnapping: if the bank robber shielded himself from police fire by holding a teller in front of him, he is not secretly concealing the teller.
So, I am convinced that a sex offender who drags his victim off a sidewalk is not knowingly and secretly confining a person against his will.
What do you think?
So, you think you know what kidnapping is? Imagine this: A rapist grabs a person and drags him or her 20 feet away to a place that is screened from view. He holds the person there for less than 5 minutes before the victim is rescued. As a juror, would you convict this defendant of kidnapping?
For my verdict, take a look at the “Postcard-Sized Solutions” category for this little mystery.
In the spring of 2006 I was selected to serve on the jury for a kidnapping and sexual assault case in Cook County Criminal Courthouse. The experience was so distressing that I spent several months after that researching various aspects of criminal justice, including the legal definitions of the terms “kidnapping” and “reasonable doubt,” as well as the jury system in general.
The trial involved a young Hispanic man (represented by a public defender) who was accused of kidnapping and assaulting a thirteen-year-old African-American girl on Chicago�s South Side. During the trial, the facts presented were these:
One afternoon in 2005, the girl and her eleven-year-old sister ran an errand to a local store for their mother. On the way home, they were spotted by the defendant, who was driving by in a pickup truck. He quickly parked somewhere nearby and then got out of the pickup and ran after them through a viaduct. He caught the girl by the back of her collar and started to drag her up the embankment toward a flowering bush near the train track. She yelled and told her sister to run home for help while he continued to drag her.
The viaduct and embankment were located at a busy intersection. Passing motorists saw what was happening and stopped to give aid. Three men were standing across the street talking, and they immediately ran to the girl’s aid.
By the time the men caught the defendant, he had torn the girl’s clothing and fondled her. He had also bruised her neck and shoulders, not to mention terrifying her.
Bystanders waved down a passing patrol car, and the defendant was arrested.
He was taken to a detention center, where he remained until two in the morning, when an assistant state’s attorney interrogated him and took down his confession in English. The confession included a graphic description of his sexual arousal during the assault and what he intended to do to the girl. He signed the written confession. He was out on bond at the time of the trial.
On the first day of the trial, the defendant had a Spanish translator with him. Every word during voir dire and afterwards was whispered in Spanish into his ear.
The prosecution claimed that dragging the girl off the sidewalk (“where she wanted to be”) up the embankment in the direction of a bush constituted kidnapping. The defense said that was absurd. However, in his opening statement the public defender also admitted that the defendant had committed aggravated sexual assault.
The next day, after that admission, the defendant jumped bail and failed to show up in court again. The jury did not know this. The judge told us that “the defendant has chosen not to be present in the courtroom,” and all of us accepted this without question. It was a relief to us, actually, because the translator disappeared along with him: it had been maddening to listen to two audio tracks simultaneously. We did not know he was free on bail despite being an apparent pedaphile, let alone that he had skipped town, until after the verdict.
In the end, we found him not guilty of kidnapping but guilty of attempted aggravated sexual assault and aggravated assault. The judge made it clear that we had made a serious mistake by not finding him guilty of kidnapping. According to her, it would have been kidnapping even if he had moved her only an inch. The intent was irrelevant (that is, the intent to commit a violent, sexual act in some measure of secrecy, even though it all took place at a busy intersection and even though he had to be severely under the influence the whole time). The reason she wanted the kidnapping conviction was so she could sentence him to thirty years instead of fifteen for this, his first offense.
During deliberations, none of us questioned the assault charges, because the public defender had admitted the defendant was guilty. It didn;t even occur to me until later that this is why the defendant may have jumped bail. He had pled not guilty, then was sandbagged by his attorney.
I tried to raise the issue of the confession during deliberations. It struck me as unfair that the confession was extracted in the middle of the night and put into “good English” by a state’s attorney. The defendant did not have an attorney while he was being interrogated, and he may not have understood (or at least not fully) what he was signing. I was reprimanded by other jurors, who told me that the evidence of the confession was not subject to question.
The failure to convict for kidnapping was made primarily because most jurors thought the distance the girl was dragged was insignificant. I also thought that the issue of intent was important, but I couldn’t convince anyone else it was worth discussing.
After the trial, I tried to find out whether or not the man was ever apprehended. I failed. The more I thought about it, the greater the miscarriage of justice seemed. I was appalled at the public defender’s conduct and at the judge, who was clearly biased against the defendant. I became increasingly distressed the more I researched the law: the confession was probably obtained illegally; the judge probably should have declared a mistrial in the opening statements when the public defender conceded his client’s guilt against his wishes; the judge probably should have postponed the trial when the defendant skipped town; the judge appears to have badly distorted Illinois statutes in the jury instructions to make it appear that the defendant was guilty of kidnapping; the way deliberations were conducted probably would have been grounds for an appeal of the guilty verdicts.
I considered writing my congressmen. I considered writing essays for publication. And then I decided to write The Juror Investigates, a mystery novel about a juror who’s so frustrated by her trial experience that she sets out to find “the real killer.”
- Misconception No. 1: A juror takes no risks by serving.
- Misconception No. 2: Jurors have an easy job; they passively observe what goes on in a trial, then deliberate, and finally make a simple, binary decision.
- Misconception No. 3: Jurors are anonymous.
- Misconception No. 4: Jurors must be completely ignorant of the crime or the issues involved in the trial.
- Misconception No. 5: Jurors may not consider any information other than what they hear in court in coming to a decision.
- Misconception No. 6: The role of the bailiff is to monitor and �police� the jury deliberation room.
- Misconception No. 7: The defendant is tried on the charges in the indictment.
- Misconception No. 8: Jury instructions instruct the jury.
- Misconception No. 9: By the time a juror signs the form, he or she has made a decision.
- Misconception No. 10: The judge is happy, no matter what the verdict is.
- Misconception No. 11: The attorneys care what jurors think and will ask you questions about why you agreed or disagreed with them.