In Part 70, Judge Mader details the essential role of anonymity for potential jurors, and then explores how keeping a defendant in custody can be used as a coercive strategy by prosecutors.
You can find links to all installments of Inside the Robe here.
Protecting a juror’s privacy is vitally important to judges. At the end of every criminal case, we tell jurors, “All records concerning your personal information will be sealed until further order of the court.”
In the past, jurors were referred to by their first and last names; today they are referred to by assigned number. Attorneys are given the list of juror names as we go through jury selection, but they must return their list to the court clerk at the end of each day.
This privacy was breached in a murder trial recently, and all judges were upset. Judges, as well as lawyers, were given, as usual, a large piece of paper divided into numerous small boxes for each juror. The Post-it or “Sticky” industry loves us because we buy cartons of tiny Post-it notes that fit into each box. As we place flesh and blood jurors into the real jury box, and excuse them later, the Post-its are continuously moved into different squares. I always write the juror’s number on the top of the Post-it along with their sex and ethnicity; e.g., “FW” for “female white.” Motions challenging one side’s excusal of jurors for race or ethnic reasons can be reviewed by a judge by reading the scribbled-upon Post-its.
A gang murder trial was in progress. In the normal manner, the colleague distributed the list of potential jurors to the attorneys. The list had the jurors’ names as well as their randomly assigned juror numbers. After two days, someone noticed that the defendant also had a large juror chart on which he was writing his own Post-it notes. He was writing the jurors’ names on his chart. At the end of the day, he folded the juror chart, put it in his pocket, and returned to jail.
I felt disturbed at even hearing this story. The defense attorney behaved improperly by letting his client see the juror names. Twice a breach of security occurred when the defendant left the courtroom with jurors’ names to return to jail. The judge inquired of the attorney, “What the heck is going on?” According to the attorney, “I had no idea that my client was taking juror names back to the jail.” The defendant claimed, “I wasn’t sneaking the names out of court, but just had folded them up for safekeeping and put them in my Bible.” The judge determined that the folds in the paper were not consistent with having been placed in a small Bible.
What next? What could a defendant do with the names in the jail? A lot. Defendants in the jail have access to telephones. Juror names can be given by a defendant to someone on the outside, either a family member or fellow gang member. Each panel has enough jurors with unusual names that some jurors could be identified online. Jurors in court identify the geographic area in Los Angeles where they live such as Pasadena, Norwalk, or Koreatown, and that information could be correlated with social media to find out demographic characteristics of the juror.
More troubling, there may be a different reason these juror names were copied by the defendant. The defendant was facing life in prison. Many defendants in jail think they are cleverer than anyone else. They might think, “If only I could reach one juror and intimidate them into voting not guilty, I might be able to get a hung jury.” An intimidated juror may not report anything if they realize the defendant knows where they live.
In forty-plus years in the criminal justice system, I have never heard of a juror being contacted or intimidated. Yet that possibility always exists. I always tell jurors that their anonymity is guaranteed, and they don’t have to worry. Almost always that is true.
A major confrontation took place in court this morning harkening back to the young woman from July 26 who had a psychotic break and no prior criminal record. She had stolen cell phones from people and hit one in the head with her fist, grabbed the other cell, ran away, and was found hiding in a storm drain. Her mother, a well-dressed, middle-aged woman, was in court with her second daughter. She explained, “My daughter disappeared from home about six months ago and we were frantic. We looked everywhere for her. We finally heard about these crimes and learned that she was sent to Patton State Hospital. We love her and are relieved that she’s safe. She really needs help.” The prosecution offered to let her plead guilty to one robbery and release her to a one-year residential mental health program. Last time in court, I continued the case for her mother and attorney to find a program where she could stay until her case was resolved.
The defense attorney also needed time to persuade the DA’s office to let the defendant plead guilty to something less than the permanent felony of robbery. I spoke with the defendant in court today and she seemed rational. “I was attending junior college, taking English and math classes, and started hearing voices. I thought I was being followed and recorded.” Her mother confirmed, “Mental illness runs in our family. My brothers also experienced their first signs of schizophrenia in their late teens.” The defendant said, “The medications I’m getting stop the voices and I am feeling so much better.”
The defendant’s family had arranged for her to live for ninety days in a residential facility that was designed for mentally ill women. She would enter the facility on Monday. I released the defendant to the care of her mother and said, “Promise me you will not let your daughter out of your sight over the weekend and that you’ll deliver her Monday morning to the facility where she’ll stay until her case is resolved.” The mother agreed.
Cora went crazy. She continually interrupted me as I explained why I was releasing the young woman, even though she had also agreed to release her into a facility. Cora’s position was, “She cannot be released to a facility until she pleads guilty. And I want her to plead guilty to a robbery.” I was furious. “You already agreed that the defendant has spent enough time in custody and that she needs help. Your boss, the District Attorney, says that defendants without criminal records who are mentally ill should be treated compassionately. The defense attorney might be able to convince a supervisor in the prosecutor’s office to let her plead to something other than a robbery that will follow her for life. I’m not going to keep her in custody to coerce a plea out of her. Sorry.”
My three-week vacation begins today. I am eager for a break.