ADDED: Why are there photographs of the jurors? In the comments, someone says that the holdout juror "looks like a smug little prick & probably glad that he let the guy off." This is a man who held out for 18 days of deliberation. How do you expect a man who just did that to look?
Adam Sirois, juror No 11, said Hernandez's guilt had not been proven beyond reasonable doubt. During a press conference held at the conclusion of the trial, a smirking Sirois sheepishly raised his hand to indicate that he was the juror who was responsible for the mistrial.So there are photographs because the jurors gave a press conference. The photographers must have taken thousands of pictures of Sirois's face, and the newspaper editors have chosen one, one that supports the "smirking... sheepishly" characterization. If he "looks like a smug little prick" to you, that's because the editors decided to help you think that and because the man just had an 18-day experience and was the kind of person who could stand up for his beliefs in a group setting for more than 2 weeks. Most people would cave and go along to get along. These people are much more likely to have a pleasant, unremarkable face.
Sirois told reporters Pedro Hernadenz's apparent mental health issues were a major concern for him, and that he could not convict the defendant solely based on his 'very bizarre' confession, reported ABC News.
AND: Amy Davidson in The New Yorker: "The doubt in this case was not just reasonable. It was, and is, profound."
ALSO: It should be clear that the jurors chose to give that press conference. They knew they didn't have to do it. And yet, if they had not taken advantage of the opportunity to engage with the press as a group, the press would have sought them out individually.
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The juror has a right to his opinion but he looks like a smug little prick & probably glad that he let the guy off. Maybe he'll write a book or start a blog to get more attention.
A question for the trial attorneys here: Do attorneys have access to juror's previous hold-out votes or names during voir dire? Probably not because every defense attorney would want one.
It is never easy being the lone holdout, and certainly not in a case like this. It was essentially a one-witness case, the only evidence being what Hernandez said at various times, as recounted by those he spoke to. Whether to accept his statements as factual rather than fanciful, given that all agree he is seriously deranged, is impossible to evaluate without knowing the evidence in some detail.
I'd be very slow to make any judgment about wherther the lone holdout or the other 11 made the better call on that.
Chicklit: you don't have access to a juror's prior votes -- never in federal court here, and not in a criminal case in NY state court -- in both, jury selection is conducted in the presence of the court and controlled by a judge. (In civil cases in NY state court, the questioning of potential jurors is conducted outside the presence of the court, and so is more free-wheeling.)
Except in very rare circumstances where a court expects that selecting a jury will be difficult, you don't learn the names of the potential jurors until the case is called for trial, and the only information you receive about them is quite general. You usually learn whether a juror served on a case that resulted in a verdict, but courts here rarely permit questioning about what the verdict was, and I've never heard of a court permitting a question about how a juror voted. The process is quick -- picking a jury takes a few hours, and most judges push it along.
For the holdout in this case, his name is now reported, and if he were part of another venire, you might discover his record unofficially, via Google, if you had an Internet connection in the courtroom.
According to the article at the link, there were several votes where the jurors were split several times with one of the votes being 6-6 and th successive votes inching closer to unanimous verdict of guilty. It's sort of frightening that at least 5 jurors can go from not guilty to guilty.
At what point does a holdout just say, screw it, I want to go home, let this guy go to prison.
Removing family and close friends, I do not personally know twelve people I would trust to judge me fairly.
Maybe they exist.
And couldn't get out of jury duty.
I am Laslo.
Foreman to the bailiff: "Eleven hamburgers and one cheeseburger."
@chickelit: In Texas, the juror information forms vary county to county, but in most, they include a blank -- for the prospective jurors to fill out, although to my knowledge no one ever checks their accuracy -- to indicate whether each prospective juror has ever previously served on, respectively, a civil or criminal jury. Lawyers are typically permitted to ask, "Did the jury on which you served reach a verdict?" -- in a felony criminal case, that would mean a unanimous verdict, or in a civil case, a 10/2 decision. I've seen trial judges permit a follow-up question for affirmative answers in civil cases to the effect of, "And were you in the majority?" I've never seen a judge permit the further question, "Did you find ____?" [for the plaintiff, or that the defendant was guilty, etc.].
This is the sort of individual question, however, which time will not permit in most modern trial courts, even those -- like most Texas state trial courts (but not their local federal counterparts) -- which permit ride-ranging and unstructured voir dire examinations.
To respond directly to the implication of your question: Yes, lawyers are not selecting their juries, they are de-selecting particular jurors, depending on whether they're angling for a mistrial or some other particular result. Knowing that a prospective juror was a hold-out who hung a previous jury would be spectacularly pertinent information. I doubt if one jury trial lawyer in 100 these days is permitted to delve deeply enough to find that out, however.
picking a jury takes a few hours...
Not in a capital case. Not in my experience. The last trial I was in the pool of, took three days to find 12 jurors, and 1 day to find the alternates.
No sir. People spend less time in the hospital for heart surgery.
At the beginning of the article I was thinking he is probably guilty, by the end I could see how someone might have doubts.
Thank you, Richard Dolan and Beldar for your insights.
Mary Beth said...
At the beginning of the article I was thinking he is probably guilty, by the end I could see how someone might have doubts.
That stuff happens, depending on the craftiness of the author.
Tonight I picked up my wife's The New Yorker and started to read a piece about racial injustice. It was about how cops aren't really to blame for all the Trayvon and Mike Brown assaults on black males: really it's the fault of evil white PROSECUTORS who decide to let whites off and to persecute blacks instead. It was almost believable until the author got to the meat of the article: it was a case study set in Milwaukee and turned out to be a hit piece against Scott Walker.
Garage Mahal would lap it up off the floor with his tongue.
"The juror has a right to his opinion but he looks like a smug little prick & probably glad that he let the guy off. "
Why weren't the jurors given better privacy?
I assume if the camera was there, a thousand shots were taken of this man in rapid succession. I assume the newspaper editors found the frame in there that was most likely to make you think that man is a smug little prick.
That juror stood up to days of pressure. It would be better to reflect on on the more ordinary people who would not be able to stand up like that despite a similar level of conviction that the evidence was insufficient, which... don't you think it probably was?
Those other people, the jurors who would cave, who would go along and get along... I bet they look perfectly sweet, not like assholes at all.
It's like being chosen as a baker for a gay wedding, probably.
Why is it that people feel jurors are so superficial, so shallow, that they will cave to a group pressure for a guilty vote, or perhaps vote in order to go home early so they can watch the NBA playoffs, while the same posters retain to themselves some nobility that they would never stoop to such callow behavior? Posters seem to automatically assume that jurors, who sat for days or weeks of testimony, who then spent hours or days debating the minutiae of same, are buffoons with less standing to decide than the posters here?
The jurors heard more and knew more about the case than anyone here. After discussing and debating, 11 of 12 decided the defendant did it. One held out. Those odds suggest he decided less than the same evidence and more on something else, prehaps preconceived notions or some personal thing with the other jurors.
And I am confident that the jurors were offered the opportunity to leave via some back door or the equivalent, rather than face the media, in this case. I assume the names were released regardless, but sitting in a room taking questions? That's voluntary. The jurors seem to enjoy it, from what I saw.
In our criminal justice system, guilt and innocence are determined by twelve people who aren't even smart enough to get out of jury duty.
I don't understand why people say that a polled juror (in contrast to the jury as a body) makes a decision. My understanding is that I am to *listen*, and then make a factual report--to wit, whether I have reasonable doubts.
If I do, in fact, have a reasonable doubt, then there should be no pressure upon me to report falsely on that.
Rob McLean -
"...twelve people who aren't even smart enough to get out of jury duty."
Wonderful.
Civilian witnesses and cops often risk life and limb to accomplish arrests, prosecutors do their job, etc, victims look to the system for justice, and we get....you.
I would say that to the degree "smart people" are underrepresented on juries, it's because defense counsel want gullible, naive and sympathetic jurors, as opposed to, say managers or teachers used to making decisions and/or judgements.
@ Largo -
Part of your duty and responsibility as a juror is to "deliberate", to discuss and debate the question of fact before you, not to enter the delliberations with a closed mind, but to listen to the other jurors' opinions and consider them before deciding.
There's a good reason why unanimous juries are required, in most places, to convict.
This is the worst sort of case-based on the defendant's statements given to different people at different times over a period of years, no physical evidence, and a very high-profile crime.
If they'd convicted this guy, in ten years the Innocent Project would be crowing about getting it overturned.
@JCC:Civilian witnesses and cops often risk life and limb to accomplish arrests, prosecutors do their job, etc, victims look to the system for justice, and we get....you.
Well why don't we dispense with the trial phase altogether and just pass sentence on whoever was arrested and prosecuted. After all everyone worked so hard...
From the article:
So many people were so sure, for so long, that Ramos was guilty that the failure to prosecute him became an issue in the 2009 election for Manhattan District Attorney. Leslie Crocker Snyder, one of the candidates, held a press conference with Stanley Patz, Etan’s father—who had previously obtained a default wrongful-death judgment against Ramos in civil court—and she pledged that “as district attorney, I will work to insure that justice is finally served in this tragic case.”
If you'd had your way, the FIRST guy they were sure had done would be convicted of it now, and you'd never have the chance to complain that THIS guy are sure did it got a mistrial.
Incidentally. what about that wrongful-death judgment the Patzes got before against Ramos? I don't imagine there was any money, but surely they want to clear that poor man's name, now that they know for sure it was Hernandez who did it. I'm sure they're filing the paperwork right now to have that overturned...
The twelfth juror should have held out until he convinced the eleven angry jurors to vote for acquittal as done by Henry Fonda in the 1957 film 12 Angry Men or as done by
Jeff Goldblum in this week's remake of that movie classic titled
12 Angry Men Inside Amy Schumer
which turned misogyny into a courtroom drama.
@ Gabriel -
"...risk life and limb..."
This was in response to a comment to the effect - Jurors are stupid because they couldn't find a way to weasel out of jury duty, so relying on a jury verdict means trusting in stupid people. It also implied that commenter was certainly too intelligent to ever serve on a jury. So save your outrage for something on point, maybe.
And how do you know what "my way" would have been? I am suggesting that the proper "way" is to trust in the jury, who certainly have access to more information and have had that information tested by argument both by counsel and within jury deliberations. Unlike, say, you, who feel comfortable making judgements based on what? Media accounts of the trial? That's certainly a reliable narrative.
BTW, the person claiming that the defendant was guilty, for the longest time, in the most detail, to the most people? The defendant himself, beginning in the same year as the crime, when he confessed to murdering a young boy in NYC to multiple persons. His account hasn't changed in all those years, and fits the facts as known. 11 impartial jurors of his peers believed him. Why do you think your judgement is superior to theirs?
@ Gabriel -
BTW, the wrongful death suit wasn't about money. It was about the family trying to force a judicial (and public) review of the evidence against Ramos. Unfortunately for that tactic, Ramos chose not to contest the suit so there was a default judgement entered, and the family wasn't able to subpoena any government witnesses with there knowledge of the criminal investigation. It wasn't about the summary judgement to the family; rather it was about the potential for force a review of the actual evidence such as it was at that time.
So your snark is again misplaced.
"JCC said...
I would say that to the degree "smart people" are underrepresented on juries, it's because defense counsel want gullible, naive and sympathetic jurors, as opposed to, say managers or teachers used to making decisions and/or judgements."
You sure it's always defense attorneys wanting the gullible jurors?
I'd imagine there's usually one side that does -- but is it really always the prosecutors arguing the facts and defense attorneys arguing emotion?
(George Zimmerman begs to differ.)
BDNYC said...
there were several votes where the jurors were split several times with one of the votes being 6-6
I also found this interesting. The clearly wasn't a straightforward decision for the jury. In this context, criticism of the final lone holdout seems unwarranted.
I've been on juries twice - one civil case, one criminal case (intoxication manslaughter). All of us took our jury charge very seriously and did our duty.
I find that those who complain most about jury quality, do their best to avoid jury duty. I missed a Federal jury summons only because I was in the hospital. In my response to the summons, I requested not to be dismissed, but to be rescheduled at a later time.
We should not avoid a serious civic duty.
@JCC:And how do you know what "my way" would have been? I am suggesting that the proper "way" is to trust in the jury, who certainly have access to more information and have had that information tested by argument both by counsel and within jury deliberations.
I do defer to the jury, which failed to convict. That all of them have to agree in order of reach conviction has been a part of the rules for juries for a very long time.
It is perfectly correct to say that "the jury" did not believe, beyond a
reasonable doubt, that Hernandez is guilty, and it does not matter if 1 out of 12 or 12 out of 12 thought so.
11/12 means the prosecution case was not strong enough.
@JCC:BTW, the person claiming that the defendant was guilty, for the longest time, in the most detail, to the most people? The defendant himself, beginning in the same year as the crime, when he confessed to murdering a young boy in NYC to multiple persons. His account hasn't changed in all those years, and fits the facts as known.
People confess to a lot of things, it doesn't always mean they did it. Lots of convictions that have no evidence but confessions get overturned.
There's lots of ways to elicit confessions from people, especially if they are not bright or they are mentally ill or if coercion is used or if they are children, and there are people in prison now for things they confessed to that they didn't do.
I didn't review the collection of confessions, but the jury did, and they did not convict.
Whoa, whoa. This is a case that rested on one witness, who is retarded (estimated IQ 70) and a schizophrenic, brought over three decades after the crime. The original confession could not have stood up on trial, so the police grabbed this man and questioned him for seven hours before a Miranda warning. After they got him to tell the story they wanted to hear, then they gave him a Miranda warning and videotaped the result.
It's not the holdout who should be reprimanded - it's at least four or five of the others who switched their vote from not guilty to guilty.
Any human being who is willing to convict another human being of murder based on the testimony of a retarded schizophrenic after the cops have been working on him for seven hours without counsel should feel shame.
I suppose it is possible that the accused here did kill the boy. But there's really no evidence that he did.
Mentally ill people confess to crimes all the time. The police procedure in the investigation is more than questionable.
The judge sent this back too many times. Some of the jurors who were against conviction probably got the idea that they could never get out unless they flipped, and I certainly would hope that this case would have been appealed on the judge's misconduct if for no other reason.
The one holdout has my respect and gratitude for not shaming us collectively by folding and participating in a blatant miscarriage of justice.
Of course, no good deed ever goes unpunished. The others folded under judicial pressure. He did not. I hope life brings him something good to compensate him for the contempt being currently spilled on his undoubtedly innocent head.
JCC @ 9:58 -
No, Hernandez told this story about Patz a number of times, but the details were very different:
http://nypost.com/2015/02/07/second-pal-says-hernandez-confessed-to-etan-patz-murder/
There's also another version that he lost it when Patz threw something at him and strangled Patz that doesn't include the basement and seems unlikely for Patz to have done.
The confession seems to be more a product of a delusion, refined by others' skeptical reactions over time, than a guilty memory.
Ask yourself why this guy would be confessing to a church member that he stabbed Patz with a broomstick??
@ M-O-M -
So, you too are substituting your judgement - from several paragraphs of media accounts - for what the jurors heard in court, for days and weeks, heard debated by attorneys and then argued themselves over the time of deliberations. How arrogant of you.
The defendant's disordered mental state - from the same source you seem to credit so much, the media - is claimed to have originated from the time as the disappearance and simultaneous to when he confessed to multiple persons that he murdered a young boy in NYC. The police didn't make him say those things over a period of years. Arguably, his conscience did.
"The others folded..." So your judgement is they were morally bereft, unlike, say, you. You assert such a thing based on nothing more than your impressions, while the jurors had the benefit of actually hearing the prosecution and defense make their best arguments. But you would never change your mind, even if presented with a reasonable & persuasive arguement. That I could believe.
@ Gabriel -
"...the jury did..."
1 juror out of12 did. The jury was hung.
@ Michael McClain -
My point exactly.
@JCC: You weren't in court either, and everything you are learning is from the media just like everyone else.
The jury, as you point out, are the only ones who heard all the facts. And the jury did not convict.
By your own argument, the lone holdout was right to hold out. He heard everything you did not. I don't know why you think you know better than he does, when everything you know comes from the media. Etc.
Most of us are sane about most things and crazy about one or two things. The way consensus (and democracy) work is that we bow to the opinion of the majority because the will of the majority is more often correct than the opinion of the individual. Ok, there are many, many exceptions to this rule, and they are frequently made into major motion pictures. Still, it would be wise to consider the possibility that if you are in disagreement with everyone in the room, perhaps you're in the wrong.......That said, I think the lone holdout juror did the right thing. There's definitely reasonable doubt. Still, if the accused goes on to murder another child, I wouldn't count it as a triumph for the American justice system.
"The way consensus (and democracy) work is that we bow to the opinion of the majority because the will of the majority is more often correct than the opinion of the individual."
Myth. There is no proof whatsoever that majorities have any handle on truth.
They do, however, have a handle on wanting free stuff, that they are convinced someone else is paying for.
JCC - no, I am not substituting my judgement. I am saying that the lone juror's judgement is just as valid as the rest.
I do think that the judge was legally wrong when he sent them back the third time (second Allen charge). That is a legal issue, not a judgement issue. The purpose of an Allen charge is not to override a juror's conscientious decision.
First, a number of states prohibit Allen charges altogether. The SC allowed them in Allen V the United States back in the late 1800s, but that only prevails in federal courts.
But there must be a constitutional limit as to how long you can essentially hold the jurors as prisoners in order to get them to reconsider.
If there had been a conviction, the third time the jury had been sent back would have formed grounds for an appeal.
The state may not constitutionally coerce a verdict - the verbiage used by the judge may not have done that, but the refusal to accept the deadlock probably was unconstitutional here. IMO.
It's not like they started out 11-1, you know.
All of the agitation here is refusal to accept the jury's decision that they were deadlocked.
http://www3.ce9.uscourts.gov/jury-instructions/node/395
Richard Dolan - I served on a murder 2 case. Jury selection took a week. Roomfull after roomful. I was the first picked. It then took another 3 weeks for the jury to get the case. It was then 5 days of sequestration in a dirty loud room, and cheap hotel rooms (I complained to the judge about the worst - roach motel with dinner seved on a dirty plate and no hot water) we had to share with strangers. Horrible. It took so long for various reasons, but we had one hold out who didn't want to convict a black man. She gave in beforenthe weekend and felt better when we were told he had committed other murders unrelated to our case.
It is VERY hard to get out of jury duty.
I've served on several juries along with several "smug pricks" like this guy. Getting them to set aside their arrogant stupidity and actually look at the facts was a chore.
It convinced me that requiring a 12-0 jury verdict is idiotic. 10-2 should be enough to convict.
@ Gabriel -
"I don't know why you think you know better than he does..."
Do you see a post here from me that criticizes the hold out juror? What I have said is critical of those who second guess the (any of the) jurors. I said that when 11 persons hear the evidence and vote one way, and a single person hears the same evidence and votes another way, then the odds are that the single person may be voting based on some preconception or some issue within the jury itself. That's it.
BTW, if media accounts are accurate, the hold out said, among other things, that he was concerned that the cops may have coerced the most recent confession from the defendant, that he was concerned with the delay between the statement and the Miranda warning. Those are rightly issues beyond the purview of the jury and belonging solely to the judge. Once that statement was admitted, the juror could not consider the circumstances, only the veracity. A fine distinction, but one perhaps crossed by the juror, much as though he had considered the potential punishment, for instance. However, I personally think that jurors should not be interviewed post verdict (or post mistrial) for exactly this reason, that deliberations frequently may have wandered into proscribed territory. I suspect that they do often.
The defendant will probably be retried, unless he and his lawyers reach some plea deal, which may happen. The next time, it probably won't be 11-1. It will be 12-0, either way.
And, in the real world, the prosecution team is probably slapping themselves for not tossing the hold out juror during selection for something they saw and chose to ignore, which should have tipped them he was likely to go against a guilty verdict.
@ rcocean -
I think 10-2 is enough in criminal courts in 2 states, as weird as that sounds. It also works in 15 or so states in civil court.
It seems counterintuitive to me that "beyond a reasonable doubt" doesn't mean unanimous, though.
My favorite judge retired last year. He looked just like Wilford Brimley, and had an Okie cowboy perspective on things.
During jury selection, the prosecutor kept asking candidates if they had ever been "robbed" before. The judge interrupted and told the prosecutor, that if used the word "robbed" again he would fine him $1000. Then he explained to the courtroom that the defendant was accused of having committed a "burglary."
He went on to say, that if someone stuck a gun in your face, that would be a "robbery" but if a man stole your belonging at your home, while you were at work, then the legal term here was "burglary".
Which told me the prosecutor was trying to taint the jury.
Several minutes later he said "robbery" again, and the judge stopped the jury selection, fined the prosecutor $1000 (checkbook in hand), and returned us all back to the jury pool, where we waited for the next case.
So, it came to me that this judge was really concerned about a fair trial, more-so than the prosecutor and the defense attorney (who never once objected to the "robbery" line of questions).
If he "looks like a smug little prick" to you, that's because the editors decided to help you think that and because the man just had an 18-day experience and was the kind of person who could stand up for his beliefs in a group setting for more than 2 weeks.
How would you know first hand? Have you ever served on a jury for even two hours?
I also know what a disappointed trial attorney's face looks like after failing to secure trebled damages. Priceless.
Not surprised. I've had a few instances where I was the only person in the room who was right. People in general are stupid, and many go along to get along. Odds are that the "smug" guy was the intelligent one in the room who paid attention to the evidence, or lack thereof.
He's probably that guy who actually reads the Terms of Service, instead of just blindly clicking "accept" so he can download faster.
How would you know first hand? Have you ever served on a jury for even two hours?
You could serve on a jury if you wanted to, Althouse. You're not automatically dismissed because you're a law professor and thus too crafty to serve, You could do it if you wanted to--but you don't want to. You'd rather snark from afar.
@JCC
"""Part of your duty and responsibility as a juror is to "deliberate", to discuss and debate the question of fact before you, not to enter the delliberations with a closed mind, but to listen to the other jurors' opinions and consider them before [deciding [-JCC]/ observing whether you still have (reasonable) doubt, and reporting accurately on that observation [-Largo]]."""
@ Largo -
If you ever served on a jury, you would know that part of the juror's duty is to engage with the others on the panel and discuss the facts at issue, consider the opinions of the others and weigh all of the evidence BEFORE deciding the question. You are strictly charged not to decide before entering deliberations, which seems to be different from your vision of what a juror does. At the end of deliberations, and honest exchange of opinion, consideration of the evidence, then, of course, you must render your honest opinion of the weight of realtive merit of the argument. But if you enter deliberations with a closed mind and a refusal to honestly consider the opposite POV, then you fail in your sworn obligation as a juror.
@ Fen -
"Odds are that the "smug" guy was the intelligent one in the room who paid attention to the evidence, or lack thereof."
So, 12 people sit through a multi-week presentation, debate what they have seen and heard, then vote on the outcome 11-1, and your conclusion - based on what? your intuition? your sense of natural superiority?- is that the single hold out is the brains of the group. Your further conclusion is that the majority failed to pay attention, and voted as a herd just to get along with each other. All, of course, in a case that could have sent a man to prison for life, but the eleven jurors were so superficial or callous, they didn't care, or didn't notice, or something....
Do you really think that's a reasonable probability, compared to other alternatives? Or were you perhaps the hold out juror yourself? Does anyone have a photo of Fen and the juror together?
@JCC:
"""At the end of deliberations, and honest exchange of opinion, consideration of the evidence, then, of course, you must render your honest opinion of the weight of realtive merit of the argument. But if you enter deliberations with a closed mind and a refusal to honestly consider the opposite POV, then you fail in your sworn obligation as a juror. """
Sure. But what I don't understand is the claim that I am making a decision. You ask me: "is there a coin on the desk?" I look at the desk. If I see a coin I say "yes". If I see no coin I say "no". You ask me: "Is there doubt in your mind regarding such and such a charge". If there is doubt I say "yes". If there is no doubt I say "no".
I understand that this has to be *reasonable doubt*. But this would perhaps get me in trouble. This seems to me like a term of art. If the judge charged me to do something having to "reasonable doubt", I would ask the judge to define the term for me. I fear the judge might think I was yanking his chain.
@JCC (and others):
Actually, my sense is that the expression "reasonable doubt" is something that the judge would *not* define, and that the juror would be <ahem> "expected" </ahem> to know what it meant. Have you any take on this? It is a matter which has, in the past, cost me no small amount of sleep.
Reasonable doubt is sort of like the new anti-robot verification, using picture matching, for comments here.
Is stew the same as soup? No. Is pho? Yes.
Is a hamburger the same as a sliced BBQ sandwich. Yes. Is a sliced corned beef sandwich the same as a burger? No.
Reasonable doubt is that understood by an average, reasonable person. If the average has shifted to a lower rank over the past decades due to public schooling and social indoctrination and widespread illiteracy and innumeracy and ignorance of the world, tough.
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