On interacting with the jury after trial

Trying to read the jury can be a humbling experience. 

Many years ago, during a DUI trial in D.C., I was encouraged by a young man in the front row who, listening intently, seemed to agree with everything I said.

“This is great,” I told my client.  “I think we have at least one juror in our corner.”

As it turns out, the juror I had identified was the foreman of the jury that returned with a guilty verdict on all counts.

A number of years later, the lawyer for the co-defendant in a gun and drug case handed over all responsibility for picking our jury to me.  “I have lost all faith in my ability to pick one juror or another” he told me.  “It is a crapshoot.  You can have my peremptory strikes.”   

The jury for which I was entirely responsible ended up acquitting his client (my client’s mother) and convicting mine.

***

We often find out how wrong we were about jury matters during the jury debriefing after the trial.

In that charged moment directly after the verdict has been delivered, the judge will thank the jurors for their service, release them from their burden of no communication and tell them they are free to go. 

But, the judge will tell them, the parties would love to talk with you.  Any jurors who are interested in speaking with the lawyers from both sides should remain in the jury room.

These jury debriefings are a wonderful way to learn all sorts of things.

For one thing, more as a way to satisfy our own personal curiosity, we learn more about individual jurors. 

For example, of the 12 jurors who acquitted my client of all 5 counts earlier this week, 10 remained in the jury room after the verdict to meet with us. 

There was an older woman who had caused the judge quite a bit of concern throughout the trial.  The juror seemed alternately sleepy and disinterested.  “We will have to keep an eye on her,” the judge told us during one of the breaks. 

Meeting with me and the two prosecutors after the trial, this woman was vibrant and engaged and seemed to offer some of the best feedback we received.

It was also personally gratifying to me that she used a specific phrase in discussing the case – “he didn’t want to leave his wares unattended” – that I had used in my closing argument.

More importantly, we often find out that the jury has focused on things that neither the government, nor the defense, has anticipated. 

In a trial last spring, for example, the prosecution and I spent a long time cross-examining each other’s witnesses and then arguing about how our witnesses should be believed and how the opposing party’s witnesses should be disbelieved. 

In that case, all 12 jurors had remained after the trial, and we had a long and friendly discussion of the case.  “Oh,” replied one of the jurors when we asked about the credibility of the witnesses.  “We didn’t believe any of the witnesses.  We thought they were all liars.  We spent all of our time watching one of the surveillance recordings.” 

***

I also learn things about the government’s case. 

I made a big deal during this past trial about the government’s decision to call a particular witness.  This is the “looking for white spaces in the government’s case” that I have written about before. 

Why didn’t the government call the arresting officer?  After all, she was the first officer to arrive on the scene.  It was her body worn camera that we watched. It was her voice that we listened to. 

Was it because the prosecution did not want her to confirm what my client told her in the ambulance on the way to the hospital?  Was it because they wanted to avoid any testimony about the prevalence of gun violence in this part of the city?

And why didn’t the government call the other EMT guy, the one who tended to my client?  This was the guy who can be seen tending to my client on the street and then talking with my client in the ambulance. 

The witness the government did call was hardly seen at all in the body worn camera footage.  At one point, for example, the witness testified that we could see his clipboard and forehead in one of the still shots the government introduced.

This argument during closing obviously resonated with the jury:  “Why didn’t the government call the arresting officer,” one of the jurors asked the prosecutors. 

The lead prosecutor looked resigned.  “Well,” she replied.  “That officer had a last-minute scheduling conflict.  We had to proceed without her.” 

In other words, there was nothing strategic – or diabolical, as I had insinuated – about this decision. 

***

Not all juries remain. 

And in one case, a gun trial which resulted in my client’s conviction, a lone juror stayed behind to tell me how gun violence was ruining the city.  He was very angry when he said this, and his anger was directed at me. 

But it is usually a great experience when the jurors do remain – not only as a learning tool but also for closure. 

We have just spent days, if not weeks, in each other’s presence. 

We have wondered about them, and they have wondered about us. 

Suddenly, removed from the extreme formality of the courtroom, we are sitting together in a crowded jury room.

The guard comes down.  Suddenly we are just people.  The truth comes out.