A couple of decades ago, I paced the halls of the federal courthouse in Hartford for days awaiting a verdict in a police misconduct case. My client was the son of a New Haven police officer. One night, as the nightclubs were closing in New Haven, an officer struck the client in the head with his baton with enough force to permanently injure him. We sued the officer for using unreasonable force.
It wasn’t clear what was going on in the jury room. Then the jury sent a note. One of the jurors had not been entirely candid during jury selection, and had not mentioned that his father had once served as a police officer.
Jurors are asked questions before being selected to serve on a jury. The goal is to pick a panel of jurors who can be fair and impartial. The law recognizes that potential jurors come from all walks of life: not every case is right for every juror. Sometimes life’s experiences produce biases that will affect how a juror evaluates a case. All we can ask of potential jurors is honesty about potential biases.
It was abundantly clear in the Hartford case that the jury could not agree on a verdict. In federal court, as in the state courts of Connecticut, verdicts must be unanimous. (In some states, such as California, verdicts need not be unanimous.)
Jurors had been asked about whether they had relatives who had served as law enforcement officers. It was hard to believe this juror had forgotten his father’s occupation. More likely than not, we had a stealth juror on the panel — someone with an agenda other than justice.
“What should we do?” the trial judge asked.
We asked that the juror be struck from the panel. Clearly, the man had been dishonest. My client was entitled to a fair trial by an impartial jury. This juror had broken faith with the oath he had taken to answer truthfully the questions put to him.
The judge agreed. Shortly after the juror was removed from the panel, the jury returned a substantial verdict in favor of my client, breaking the days long logjam. Fortunately, in federal court, there are no alternate jurors in civil cases. Trial judges are free to sit more than the minimum number of jurors — six, and all selected jurors get to deliberate.
In this case, timing was everything. Had the jury returned a verdict, and a note then surfaced about the untruthful juror, the court would most likely have stuck its head in the sand to avoid seeing the truth. After the recent decision by the United States Supreme Court in Warger v. Shauers, decided in December of 2014, the trial court judge would have been required to ignore the truth.
In the Warger case, involving a motor vehicle accident resulting in serious injuries, the jury foreman failed to disclose that her daughter had been involved in a fatal car accident. A lawsuit against her daughter would have ruined her life, the juror later told other members of the jury during deliberations. Jurors had been asked questions during jury selection about whether they could be fair and impartial. The foreman never disclosed her daughter’s near miss with catastrophe or her views of what litigation might have done to her.
After the verdict was announced, a fellow jury member contacted a lawyer for the plaintiff — the party bringing the lawsuit — to express concern about the foreman’s conduct. The plaintiff sought a new trial, asking the trial court to consider the evidence that the foreman had violated her oath to be fair and impartial. The trial court refused to hear the evidence.
It’s not that the trial court was tone deaf to the sounds of justice. The federal code of evidence has declared inadmissible evidence about statements during deliberations in any inquiry about the validity of a verdict. Congress approved this rule.
Writing for the court, Justice Sonya Sotomayor, who promised to be a “wise Latina,” showed herself to be more concerned with judicial economy and finality of judgments than with justice. Evidence of a juror’s dishonesty, under oath, while questioned during jury selection is inadmissible when a party seeks to attack a jury verdict, she wrote in Warger.
The decision stuns me. It strikes me as akin to Justice Antonin Scalia’s glib dismissal of claims of actual innocence in death penalty litigation. In his view, we can kill folks who present evidence of their innocence if they fail to present their claims in a timely manner. The machinery of justice, apparently, must grind on, even at the expense of innocent lives.
Judges live in a world bounded by fictions. One of them states that a properly instructed jury follows the law. It is what the law calls a presumption, meaning it is something we hold to be true absent evidence to the contrary.
Most presumptions in the law are rebuttable in character. In other words, if a party has sufficient evidence to show that what we assume to be the case is not true, that presumption is overcome.
In my New Haven case years ago, the presumption that a properly instructed jury follows the law, and that a potential juror tells the truth under oath, was overcome with evidence from fellow jurors.
In the Warger case, however, the court refused to consider the evidence of juror misconduct. Why? Because a verdict had been returned, and judgment had entered. In other words, the case was closed, finished, over. The bean counters had closed a file.
There’s something revolting about a court that prizes finality more than justice. If a juror lied during jury selection, and there is competent evidence to prove it, a court refusing to hear the evidence concludes that a closed file is more important than justice: it is the triumph of the bureaucratic ethos.
I suspect that there is far more juror misconduct at trial than our tidy presumptions permit us to believe. That the courts are prepared to refuse this inconvenient truth to be used as evidence is just plain wrong.