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Thursday, April 29, 2004

Column: The Jury is Out

As I write this, Jayson Williams is seeking a mistrial in his criminal case on the ground that lawyers lied to the jury; Martha Stewart says there should be mistrial of her case because one of the jurors lied to the lawyers; and the trial of two former Tyco executives has just ended in mistrial because the jurors couldn’t get along.

Trading One Ordeal For Another

Trial by jury is an ordeal, but ironically, that’s exactly what it was supposed to replace. For centuries, guilt and innocence were determined by the “ordeal,” such as the ordeal by water – if she floats, she’s a witch! Another popular method was ordeal by fire, in which the accused had to walk nine paces with a red-hot iron in both hands – this is thought to be the origin of the phrase “the whole nine yards.”

The Fourth Lateran Council of 1215 spoiled all the fun by effectively banning trial by ordeal. Suddenly, authorities all over Europe had to find an equally scientific way to determine innocence and guilt – a tall order at a time when bloodletting represented cutting-edge medicine. In England, they hit upon the novel idea of canvassing the opinions of twelve local men.

The word jury emerged in the Anglo-Norman dialect of that period, coming from the Old French word juree, and ultimately, from the Latin jurare, meaning “to swear.” Jurare, by the way, is also the root of jurat, the word you sometimes see at the end of an affidavit, or sworn statement.

Why is a juror sworn? Originally, because jurors were also witnesses who were required to testify from personal knowledge if they had it, or, more likely, to simply repeat neighborhood gossip. It wasn’t until the 16th Century that compulsory process was available to compel the testimony of witnesses at trial using the subpoena (Latin for “under penalty”); which finally allowed jurors to sit back and listen to other people talk. And talk, and talk.

Although jurors no longer testify, they still must take an oath in order to be properly impaneled (from the English “panel,” deriving from the Latin pannus, or piece of cloth). In the Martha Stewart case, the defense team is arguing that one of the jurors, Chappell Hartridge, lied in order to get on the jury – which is, of course, a big no-no for oath-takers.

Stewart’s lawyers argue that Mr. Hartridge concealed his criminal record, namely, an assault charge filed by his ex-girlfriend, Gail Outlaw. Confusingly enough, Ms. Outlaw is not herself an outlaw, although she charges that Mr. Hartridge is. In any event, Stewart’s lawyers argue that Hartridge fibbed his way on to the jury because he was eager to convict Stewart because she is rich, or a woman, or both.

The notion that jurors are often tainted by pre-existing biases is not a new one. In their 1875 operetta “Trial By Jury,” Gilbert and Sullivan lampooned the prejudices of juries. In one scene – before the trial has even begun – the entire jury shakes its fists at the defendant and sings in unison:

Monster, dread our damages.
We’re the jury!
Dread our fury!

In fact, such common spirit among jurors seems to be increasingly rare, in this country at least. According to statistics, a “hung jury” happens about 8,000 times a year in the U.S. Make that 8,001 with the Tyco trial.

Hung Juries and Hanging Judges

A hung jury is one that cannot arrive at a verdict after a reasonable period of deliberation. In the Tyco trial, the majority of jurors were reportedly set to convict former executives Dennis Koslowski and Mark Swartz of grand larceny. But one juror (Juror No. 4 , to be exact) held out for the defense.

New York Judge Michael Obus sternly directed the jury to keep deliberating. But after eleven days of deadlock, and reports of overt threats against Juror No. 4, a 79 year-old grandmother, Judge Obus finally decided to declare a mistrial, thus forcing prosecutors to start their six-month case against the defendants all over again.

A hung jury has nothing to do with a hanging judge. In fact, it’s quite the reverse, since a hung jury can’t make up its mind, while a hanging judge is thought to be a little too eager to make up his. Still, the word “hung” has lead to some bogus etymologies. One legal humorist, for example, has suggested that the hung jury was born in the Old West – where jurors who were taken in by shyster lawyers would be hanged in punishment.

The phrase does not, in fact, come from the Old West. But it is American in origin. The Oxford English Dictionary lists the first printed reference to a hung jury in Edwin Bryant’s What I Saw in California (1848-49) in which he states: “The jury . . . were what is called ‘hung’; they could not agree . . .”

Bryant’s phrasing obviously suggests that the phrase was already in common use by the late 1840’s. Indeed, there are earlier case reports with references to hung jury and variations thereof. The earliest use of the term in a law report appears in an 1821 case, Evans v. McKinsey. That case, and virtually all of the early cases referring to hung juries is from the south. So it appears that the term developed somewhere in the south during the early 19th Century.

Linguistically, the phrase seems to derive from the sense of “hung” to mean caught, suspended or delayed (“I got hung up at the office”). Oddly, although the phrase is American, we have not extended the metaphor to describe other deadlocked bodies, say, a “hung Congress.” In Britain, however, commentators have used the term hung parliament to describe the situation when the House of Commons is unable to elect a Prime Minister.

It Only Takes One

The Tyco trial is an example of why juries are so often hung. When unanimity is required – as is still the case in most jurisdictions – it only takes one “angry man” (or angry grandmother) to cause a mistrial.

The need for unanimity has been cheered as a pillar of liberty and decried as an obstruction of justice. Whatever the merits of that debate, the fact is that unanimity was not part of the original plan. Early medieval juries in England did not require unanimity – a few loud shouts of “she turned me into a newt” would suffice for a conviction.

The first recorded case where unanimity was required was in 1367, when an English court refused to accept a majority verdict of guilty. By the end of the fourteenth century, the trend towards unanimity was unstoppable. With that development no doubt came the phenomenon of deadlocked juries. A quick four centuries later, an anonymous Southern American finally came up with a name for this phenomenon: the hung jury.

Renegade Juries

A judge can nullify a jury’s verdict by declaring a mistrial, but that has nothing to do with the term jury nullification. Jury nullification happens when a jury returns a verdict of not guilty, despite their belief that the defendant committed the offense charged. The jury “nullifies” the law on which the prosecutors rely.

In America, nullification goes back to a 1735 New York case in which the colonial governor, William Crosby, brought an action against a printer, John Peter Zenger, for publishing “seditious libels” in the New York Weekly Journal. Although Zenger had clearly printed the alleged libels, the jury voted to acquit, thus nullifying the harsh sedition law of the time.

And finally, let me clear up one confusion. The term jury-rigged, meaning assembled in a makeshift manner, has nothing to do with the legal sense of the word jury. It is an 18th Century nautical term, deriving from the Latin adjutare (to aid), from which we also get the word “adjutant.” Of course, I cannot deny that shady lawyers do occasionally try to “rig” a jury with bribes. But that brings us back to where we began, with mistrials.

(This column originally appeared in the June 2004 issue of New York Law Journal Magazine).

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