They are fairly standard jury selection questions: Do you know any of the defendants? Do you know the defendant’s wife? Have you, a close relative or friend been the victim of, witness to or charged with a crime in the last 10 years?
Jovanda Blackson, a prospective juror in the Superior Court of the District of Columbia, answered no to each of those questions during voir dire last year, ensuring her place on the panel that would decide the fate of two men charged with murder.
Trouble is, Blackson did know one of the defendants. She did know his wife. And, while this mother of three had no criminal record, a couple of her relatives—including her brother—did.
Unfortunately, the judge and prosecutors didn’t know that until after Blackson succeeded in hanging the jury, prompting a mistrial for both defendants. Only later, thanks to a tip from a jailhouse informant, were suspicions from her fellow jurors confirmed and the truth emerged.
Blackson had known the defendant from grade school. When she appeared for jury duty, prosecutors say, Blackson recognized him, winked to let him know she would take care of him, and later conspired with his wife to either convince her fellow jurors to acquit or hold out for a mistrial.
Blackson is serving 61⁄2 years behind bars after pleading guilty in May to conspiracy, contempt and obstruction of justice. The man she attempted to help, Lamiek K. Fortson, and his co defendant, Harry Ellis, are serving time too, having been retried and convicted, and an obstruction offense was added to Fortson’s record. Fortson’s wife, Erica Williams, was given a 74 month suspended sentence, five years of supervised release, 500 hours of community service and a $250 fine.
Jury experts are quick to argue that rogue jurors like Blackson, or stealth jurors who report for jury duty harboring an agenda, are a rarity. Their actions make headlines, but account for a minority of problems with jury trials.
Assistant U.S. Attorney Jennifer M. Anderson wonders, however, just how rare these rogue jurors are. Anderson, deputy chief of homicide who handled the Blackson prosecution, says that her office often—maybe too often—encounters lone holdouts who force mistrials.
Suspicious that rogue jurors are impaneled more frequently than anyone wants to admit, Anderson has long pushed to receive more detail about the jurors selected for service.
“We get virtually no information” about jurors, Anderson says about the current system, which provides only cursory details such as names, ages and the type of work they do. Use of addresses was abandoned years ago for security reasons.
Also, as in most jurisdictions throughout the country, neither her office nor the courts conduct background checks.
“It’s really a guessing game,” Anderson says.
Los Angeles based jury consultant Philip K. Anthony blames dated voir dire procedures for complicating this most serious of guessing games. Anthony says stealth jurors are a real problem, not just in high profile trials. He says his research indicates that between 15 percent and 18 percent of potential jurors who are summoned for service have a biased mindset and actively seek out jury service as a way to comment on or influence a trial. Take a discrimination case tried in the U.S. District Court for the Northern District of Illinois in late July: A prospective juror revealed she knew and liked the defendant, the mayor of the Chicago suburb of Bolingbrook, but the judge deemed her qualified to hear the case. The plaintiff’s lawyers used a peremptory strike to keep her off the jury.
But the prospective juror later revealed her overt bias in an e-mail she sent to the mayor. In the message, which the defense disclosed to the court, the juror wrote, “I wished I could have done more for the village of Bolingbrook and for you during the jury selection process. While I tried to be objective and to say that I would be a fair juror, obviously I knew as well as the prosecutor that I could not be impartial.”
She concluded with this offer: “If you think it would be helpful to your case for me to testify on your behalf or to give a statement of … my personal knowledge of your belief system and practice, I would be glad to do so.” Filinovich v. Claar, No. 04 CV 7198. In this case, the plaintiff’s lawyers did not succeed at trial, but they did recognize that the juror could be biased. Indeed, says Anne Skove at the National Center for State Courts, “there are many checks” embedded in the jury trial system.
In addition to jurors having to go through basic qualifications to serve, there is voir dire, strikes for cause and the option of peremptory challenges. And if all of those fail, the judge can declare a mistrial.
But critics say that voir dire as it is currently structured does very little to root out bias and impanel jurors who are truly neutral.
“The voir dire process, for the most part, is stuck in the 19th century,” Anthony says, adding that the few innovations, particularly questionnaires and individual voir dire, aren’t used enough. “There’s no point in time where someone has an opportunity to be totally honest” before being selected for jury duty, he says.
Yet there are opportunities, at the point of summons and during voir dire, for jurors to reveal bias or conflicts. So why is it so difficult to get jurors to tell the truth, the whole truth and nothing but the truth?
Those who have spent time examining the jury selection process and speaking to jurors point out what should be obvious: Jury duty is intimidating. Just showing up to a courthouse can get hearts racing. Being honest, especially when jurors are faced with revealing personal information in open court, can be difficult.
“There’s this whole fear factor involved that I think is underappreciated by people who work in the court system on a day to day basis,” says Fort Lauderdale criminal defense lawyer Bill Gelin, who tried unsuccessfully to overturn or mitigate a four month contempt of court sentence slapped on a client who failed to disclose past arrests on his jury questionnaire.
In late July, Florida’s 4th District Court of Appeal upheld the 2005 sentence imposed on then 19 year old Stacey Forbes, though it characterized the punishment as “harsh under the circumstances.” Forbes v. Florida, No. 4D05 1554. (The case sparked a fury in Fort Lauderdale that resulted in an investigation of the judge, who now stands accused of failing to reveal complaints against her on her judicial application.)
There were no allegations that Forbes lied to get on the jury or had ulterior motives. Forbes, who is now serving a four year prison term for burglary, told the judge the questions confused him, and he didn’t think he needed to mention past arrests on his questionnaire or in court because he had no convictions at the time.
“I don’t think he had any agenda to be on the jury,” Gelin says. “I think at the time he was 19. He’s basically illiterate. He’s scared out of his mind. He just didn’t want to admit that he was arrested.”
“Any young, new lawyer can tell you, even after law school, they’re just scared to death the first six months they’re in court,” Gelin says, adding that he’s seen hardened defendants reduced to stammering in front of a judge.
To Anthony and others, voir dire has a number of other problems. Most of the resources devoted to jury selection, for instance, involve drawing a diverse pool of qualified residents to hear cases set for trial. Judges are then left to ensure a fair and impartial jury is selected from the pool. But oftentimes, critics say, judges allow the lawyers to take over.
“There’s so much posturing going on in the courtroom,” Anthony says about cases in which lawyers submit questions for voir dire.
Iloilo Marguerite Jones would like to see peremptory challenges eliminated altogether and voir dire stripped down to the nitty gritty.
“We find jurors to be incredibly honest and very conscientious in their deliberations and also highly resentful of the disclosure process,” says Jones, who is director of the Fully Informed Jury Association, a Helena, Mont. based group that promotes juror rights and advocates for jury nullification, a controversial theory holding that jurors, for whatever reason, can decide to render a verdict contrary to what the law says when they see an injustice occurring.
“What voir dire has turned into these days is the psychological stacking of juries as much as possible,” she says.
Jones acknowledges jurors should be screened in voir dire to be sure they aren’t related to the parties, have no vested or personal interest in the case, weren’t paid or coerced to render a verdict, and are literate. Still, she recalls getting a hysterical call from a woman who was asked on a jury questionnaire whether she’d ever had an abortion. Jones says the woman was petrified that if she lied about having an abortion as a teenager, she could face perjury charges. If she told the truth, she feared her husband and family would find out.
Others have expressed fears that if they tell the court that they were once arrested for burglary, they will lose their jobs.
These are powerful incentives to lie on jury questionnaires or in open court. Tom Shields, jury commissioner of the Franklin County Municipal Court in Columbus, Ohio, says many people do come forward to reveal such details after they receive a summons. Shields sees this sometimes with the “convicted felon” questions when a felony has been expunged and the prospective juror doesn’t know how to answer the question.
“If they want to be honest, they will come in and tell us,” Shields says, adding that he believes most prospective jurors do tell. “That’s honesty at a base level, considering the record is sealed.”
But Shields offers yet another reason jurors shade the truth. Showing up for jury duty and sitting in a jury pool to wait isn’t considered service to a civic minded juror. “Being on an actual case, that is true service,” says Shields, who’s seen how jurors will sometimes skew their answers to get on a jury, any jury.
“I don’t see that as dishonesty,” he says. “I think the vast majority of people have nothing but the best intentions and the highest motivations. But they get confused in wanting to serve so much that they possibly might answer differently than they normally would.”
Just as tricky for judges are prospective jurors who answer to please. These are people who reply in the manner they think the judge wants to hear or the one that will draw the least amount of attention.
Retired D.C. Superior Court Judge Gregory E. Mize documented this in 1998 when he first began to study juror responses more closely. During that year, he conducted individual voir dire in every one of his jury trials. He often found jurors who gave what they thought was the right answer in open court, but would change that answer when asked in private.
“The real answer would come out, and it was one that they’re embarrassed by or fearful of the consequences,” says Mize, who is now working as a judicial fellow at the National Center for State Courts.
When Mize first toyed with individual voir dire, he didn’t have too many followers—until he discovered that one potential juror who chose not to speak out in open court was actually engaged to be married to the defendant.
Indeed, Mize found that when he individually questioned what he calls “UFO” or “silent jurors”—the 28 percent of the venire who didn’t respond to any open court question a surprising number revealed relevant information that often resulted in a strike for cause. In 27 of 30 trials, individual voir dire resulted in additional strikes of between one and four potential jurors per case.
Mize didn’t just pull jurors aside to question them. He called them individually into the jury deliberation room and sat them at a table, next to him, in a circle with the attorneys on the case. The setting, Mize believes, promoted candor. Mize found that those excused for cause were prospective jurors who were related to police, acknowledged extreme bias against police because of prior encounters, showed clear mental impairment when questioned individually, or had limited English proficiency.
The individual voir dire experience shaped Mize’s courtroom procedures and the direction of his work. Mize is in the data collection phase of a comprehensive study of jury trial processes and procedures. A report, The State of the States Compendium, which examines more than 11,000 responses from a survey of every court of general jurisdiction in the country, is due out this fall.
Perhaps one of the most anticipated parts of the survey involves questionnaires, which Mize asked about in detail. He wants to know who is using them and how. Ultimately, Mize would like to see the development of “pattern jury questions,” a standard set of inquiries for most courts to use. “Just as we have pattern jury instructions at the end of the trial, I think we can have pattern jury questions at the beginning of the trial,” says Mize, who helped develop the ABA’s new jury principles as a member of the American Jury Project.
Among the principles is an aspirational goal that courts ensure fair and impartial juries by using “appropriate questionnaires” that elicit information about a juror’s eligibility to serve. Courts in Dallas and in Harris County, Texas, as well as several California jurisdictions, already are developing case specific questionnaires using standard jury questions, Mize says.
Juror dishonesty on questionnaires threatened the six month long federal corruption trial of former Illinois Gov. George Ryan. Two jurors were removed from deciding the case in late March after the Chicago Tribune, in preparing to cover the eventual verdict, discovered inconsistencies between what jurors wrote on their questionnaires and what public records indicated about their past brushes with the law.
U.S. District Judge Rebecca Pallmeyer replaced those jurors with alternates, then instructed the jury panel to begin deliberating from scratch. That and other jury issues are part of the appeal filed for Ryan and a co defendant, who were convicted. Meanwhile, of the few jurors who get caught lying, even fewer are subjected to punishment. For one thing, once a juror is confronted, there often emerge a host of reasonable excuses for any inconsistencies.
“I think a lot of times an observer might look at a juror’s statement, and [decide that the juror] must have lied,” says Vanderbilt University law professor Nancy King, who has studied jury trials and juror honesty. “But the juror just misunderstood. It’s not because they want to deceive it’s because they didn’t get it.”
But even when a juror is held in contempt, judges are learning they have to be careful. In Ohio in 2004, the 1st District Court of Appeal overturned a direct criminal contempt conviction for a juror who lied on her questionnaire and during voir dire to avoid jury duty. Rachelle Thomas said she needed to take her son to a doctor’s appointment, but an anonymous source apparently reported that she had no children. When questioned by the judge, who told her there was no right to counsel, Thomas admitted she lied.
The appellate court held that a juror could not be convicted of direct criminal contempt, which is for conduct that occurs in the presence of the court, unless the juror interfered with the judicial process. Rather, the court held, the juror is entitled to an indirect contempt hearing and many of the constitutional safeguards afforded defendants at trial. In re Rachelle Thomas, No. C 030429.
Problems with jurors, especially outright lies about past arrests, convictions and court action, have led many to call for greater use of pretrial background checks.
Leading the charge is Suffolk County, Mass., District Attorney Daniel Conley, who watched the case against two reputed gang members accused of killing a 10 year old crumble after it was discovered that at least four of the jurors lied about their criminal records.
Before that case, Conley says, he hadn’t thought about conducting background checks, taking on faith that jurors reporting for duty will be honest. “We found out the hard way that’s not always the case,” Conley says. And when Conley first began having his civilian investigators run the records of jurors seated for trial, he was stunned how often he would find inconsistencies between criminal records and juror questionnaires.
“We felt that both the commonwealth and the defendant are entitled to a fair and impartial jury,” Conley says. “We were not getting it when jurors were not forthcoming.” Conley has beat the drum in favor of criminal background checks ever since, and has been conducting them in homicide and serious felony cases for the past two years. Conley reports that most judges are supportive, in that they don’t order him not to conduct the checks, which his office shares with defense counsel.
Because judges are emphasizing the checks, Conley says, he is seeing more jurors drop out before the jury is formally seated and thus “fewer and fewer people are coming up with a criminal record in contradiction of their jury questionnaire.”
Jury experts say that if background checks are to take place, the court or clerk should order them and make the results available to prosecutors, defense lawyers and the individual jurors, who could check for accuracy. But most background checks, especially those that go beyond a cursory records check, are considered work product that can be kept from opposing counsel unless a discoverable issue arises.
The Virginia Court of Appeals ruled in Salmon v. Commonwealth of Virginia, 529 S.E.2d 815 (2000), that prosecutors can conduct background checks and withhold that information from the defense. There is similar case law in Georgia.
A handful of other states (including Iowa after the 1987 state supreme court decision State v. Bessenecker, 404 N.W.2d 134) require that criminal background information collected on jurors be shared.
Still, despite the buzz about background checks and jury questionnaires, the final authority on jury selection is the judge. The late Chief Justice William H. Rehnquist made that plain in a 1982 habeas case, Smith v. Phillips, 455 U.S. 209, in which a juror failed to disclose that he had applied to work in the district attorney’s office. Rehnquist held that “due process does not require a new trial every time a juror has been placed in a potentially compromising situation. … Were that the rule, few trials would be constitutionally acceptable.”
Rehnquist concluded, “Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Gelin, the Fort Lauderdale criminal defense lawyer, says the best juries are picked by judges who don’t forget how intimidating it can be in court and who do their best to make potential jurors feel comfortable to talk openly and honestly.
Mize, the former judge working with the National Center for State Courts, recalls the practice he developed first giving prospective jurors a civics lesson about the importance of a jury trial, then asking them to think about the types of jurors they’d like to have judging their case. Mize would then administer an oath asking them to swear to tell the truth. In two out of 50 trials in a year, he got responses that amounted to whimpers. So he raised his voice: “I can’t hear you.” And always he’d get a resounding “yes.” “The emphasis on honesty was so important,” he says. “It just sets a tone.”
Molly McDonough is a legal affairs writer for the ABA Journal.
Molly McDonough is a legal affairs writer for the ABA Journal.