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Motion for New Trial After Sequestered Jurors Allegedly Had Sex:
From the St. Louis Post-Dispatch:
  Eight years ago, a juror in a capital murder trial notified the judge that two other jurors had sex while sequestered — and that two sheriff's deputies guarding them had sex too.
  Now the man convicted of second-degree murder in that case is demanding a new trial on a claim that his lawyers did not do enough to persuade the judge that the escapades tainted the verdict.
  The issue is back before St. Louis Circuit Judge Julian Bush, who presided over the 2000 trial of Roberto Dunn, now 34, who was convicted of killing his girlfriend's mother.
  In August 2000, about two weeks after the conviction, Bush got a letter from a juror making the accusations. "Sexual liberties by deputy sheriffs were rampant also," the letter read.
. . .
  In her letter, [the juror] accused two jurors of having sex with each other during two evenings at a hotel where the panel stayed. She said jurors believed the two sheriff's deputies assigned to the case were having sex with each other while on duty at the hotel.
  "Acts of sex and insubordination were scandalous and unspeakable …" Thompson wrote. She testified in the recent hearing that she heard sexual noises coming from the next hotel room.
  As long as the jurors weren't discussing the case with each other, I would think this is okay.
Dan Hamilton:
Being sequestered is boring. What else do they have to do. And what does it have to do with the trial? Wouldn't the lawyers have to show that this interfeared with the jurors ability to have an imparticial verdict? Kind of tough.
12.23.2008 11:46am
ReaderY:
You really think these jurors would take what the other has to say with no more weight than the other 10?
12.23.2008 11:49am
Cornellian (mail):
Seems like he's grasping at straws, I don't see why this would have anything to do with the validity of the verdict.
12.23.2008 11:50am
ReaderY:
This is not to say the error is structural or clearly harmful in this case (I don't know the facts), but it is error, and it's appropriate for courts to try to keep it from happening.
12.23.2008 11:51am
Cornellian (mail):
You really think these jurors would take what the other has to say with no more weight than the other 10?

Probably not, but I don't see how that's any different that giving another jurors words more attention because she's really hot, or because the other jurors are relatively rude, or for any other real-world reason that we all live with every day.
12.23.2008 11:52am
Obvious (mail):
Oh, OH, OHHH, Oh I think he's probably guilty, YESSSS!!!!
12.23.2008 11:52am
Floridan:
If the sexual activity had been disclosed prior to the verdict being arrived at, would the judge have let the jury continue to deliberate?
12.23.2008 11:53am
Anderson (mail):
Obvious beats me to it.
12.23.2008 11:53am
OrinKerr:
ReaderY asks: "You really think these jurors would take what the other has to say with no more weight than the other 10?"

ReaderY, can you cite the authority you're relying on for the view that if a juror decides (or might think) that another juror's view has more weight than others, then that is legal error?
12.23.2008 11:59am
eck:
Frankly, I think at least one of the jurors should simply have withdrawn.
12.23.2008 12:01pm
Philistine (mail):
So--is this something a judge should instruct a jury about? No sex? Or no dating among jury members during the course of the trial? How far does it go? No fratenization at all?
12.23.2008 12:02pm
Ted Frank (www):
I don't understand why the complaining juror thinks these two jurors (or the guards) took their duties lightly in a prejudicial fashion -- when she must have voted the same way herself. Or does Missouri permit non-unanimous capital murder verdicts?
12.23.2008 12:02pm
Steve:
What I'm really baffled by is how the sex between the sheriff's deputies could possibly be relevant to anything.
12.23.2008 12:03pm
Guest101:
Could someone arguing that this is a problem at all explain why? I've never heard of a judge instructing jurors, sequestered or not, to have no contact with each other outside the courtroom, so long as they're not talking about the case. And if sequestered jurors are allowed to socialize with each other I don't see why having sex is any different.
12.23.2008 12:06pm
mga (mail):
It must be something in the water in the Mississippi River. Some years ago, a public defender in St. Louis had sexual relations with her client twice during the trial of his capital murder case. When he got a death sentence, he argued that he had received ineffective assistance of counsel because of her emotional involvement in the case.
12.23.2008 12:07pm
Whadonna More:
Unless the amorous jurors are accused of dragging out deliberations to continue their assignation on the public dime, I can't imagine why the affair would be any different than the less romantic relationships that sequestered jurors often strike up.

OTOH, I eagerly await the video release of "Twelve Ten Angry Men (and a Satisfied Couple)".
12.23.2008 12:07pm
Cornellian (mail):
OTOH, I eagerly await the video release of "Twelve Ten Angry Men (and a Satisfied Couple)".

As I recall, that was an all-male jury . . .
12.23.2008 12:10pm
Guest101:
Reading this again I have to wonder how credible these allegations are. "Acts of sex and insubordination were scandalous and unspeakable"? Isn't that a little bit of an overreaction to a couple of people hooking up on jury duty? And how do two sheriff's deputies, who presumably don't have their own hotel room, even have sex on duty, and if they do, how does Ms. Thompson find out about it?
12.23.2008 12:11pm
Commentor (mail):
Ted Frank, Excellent Point!
12.23.2008 12:12pm
Matthew A:
Redefines the state motto of Missouri. All of a sudden "The Show-Me State" has a new, friendlier meaning.
12.23.2008 12:15pm
Ex-Fed (mail) (www):
It was not a hung jury, apparently.
12.23.2008 12:18pm
Matt P (mail):
I would guess that the argument in this case would be that sex constitutes a relationship that would create an incentive (not necessarily a conscious one mind you) to agree with the partner-- because agreement would make further sexual relations more probable. This is on top of the tendency for sex to intensify relationships -- after sex with someone nothing else in the relationship stays the same. Generally either you idealize the other or demonize the other. That will effect how you deliberate with the sexual partner. The mind has a way of attaching emotions to sex even if you try not to let it, and you never look at someone you've seen naked quite the same way you did before.

Don't get me wrong, I'm not against sex or for the state taking too much of an interest in what people choose to do of their own free will. In this case though if the sex took place it would be difficult to convince me that it had no effect on the deliberations.
12.23.2008 12:19pm
Redlands (mail):
Reminds me of a couple jurors who had an opposite encounter many years back in a case a colleague tried. Two guys got into a fist fight. A woman, disgusted with them, locked herself in the bathroom. If I recall correctly they eventually returned a verdict. I think a lot of trial attorneys, especially on the winning side, would adopt the "don't ask, don't tell" philosophy in dealing with juries post verdict. It is often just plain scary to learn what compelled them to decide the case as they did.
12.23.2008 12:22pm
Satisfied (mail):
Congrats Orin, you present another penetrating legal question.
12.23.2008 12:35pm
Fidelity (mail) (www):
Matt P, your idea would still hold true even if the couple wasn't having sex. Just by them being attracted to each other they would have been persuaded. I agree that sex does create a much stronger emotional bond...sometimes...but the emotional bond would have been there regardless of if it manifested into fornicating. This really is just all apart of human nature. Good for them for getting paid while doing jury duty.

Fine though, if the guy really wants a retrial, let him have it. It looks like a pretty clear cut case of a guy stabbing his girlfriend in "self defense." If it goes to trail again, he'll still be found guilty.
12.23.2008 12:36pm
D.A.:
Orin,
I realize you're a law prof and all, so it's in your DNA, but does the engineer in you really think the issue reduces to whether "[one] juror decides (or might think) that another juror's view has more weight than others"?

I'm pretty sure your hypothetical happens in every single jury trial. On the other hand, I'm pretty sure there aren't jurors having sex during every single jury trial. Could there perhaps be a difference between the two situations?

Spouses have been barred from juries since at least the early 1900s. Are spouses more like the people having sex, or those not having sex? (wait, don't answer that ;->)
12.23.2008 12:38pm
Oren:
DA, spouses have made a deep lifelong commitment to each other. These people just had a quickie. World of difference.
12.23.2008 12:45pm
Jack Black (mail):
What I'm really baffled by is how the sex between the sheriff's deputies could possibly be relevant to anything.

I would imagine that fervid copulation and fastidiously monitoring jurors is impossible simultaneously, thus rendering any claims of certainty on the part of the coitally intermeshed guards with respect to whether sequestered jurors smuggled in newspapers or other illicit sources of information about the circumstances of the trial, including the details of potentially excluded evidence or courtroom legal discussions in the absence of the jury, highly speculative at best and at worst outright mendacious.

Jurors having sex with each other, it could be fairly argued, were rather lax in their attitudes toward the criminal justice system, casting doubt on the truthfulness of their oaths and the quality of attention paid both to the proceedings and the merit of the arguments and queries of their fellow jurors during the process of deliberation. It cannot be gainsaid by any reasonable person of maturity and worldliness that sex serves to distract the idle mind.
12.23.2008 12:47pm
MJH21 (mail):
Spurious, spurious, spurious. The same argument could be made that two people who developed a close friendship during the period of sequestration would deliberate differently than people who kept their relationship strictly professional. Are courts then to evaluate how strong the bond of friendship is whenever there's an allegation that two jurors are chummy? It is a ridiculous legal argument and absent evidence that the jurors actually declined to deliberate, should be dismissed without argument.

Or we could just go to a jury system of 12 robots to avoid this happening in the future.
12.23.2008 12:48pm
kiniyakki (mail):
Were these quotes really necessary?


Rachel Smith, an assistant circuit attorney, said she will fight to uphold the conviction. "Our job is to get the record clear so the judge can make a finding on a complete picture," she said.

Smith went on to state, "and then there is the matter of considering the legal issues."

Stroup said Dunn's defense attorneys should have pressed harder for a mistrial over that, too.

But not too hard.
12.23.2008 12:52pm
Brad Ford:
Unless one thinks one juror traded his/her vote for sex, there is not a problem. Last time I tried a case, I don't recall a "don't have sex" order included in the jury instruction.
12.23.2008 1:02pm
Don de Drain:
Clearly, the Judge should have taken more prophylactic measures to protect the jury.
12.23.2008 1:04pm
GV:
Put yourself in the shoes of the defendant. If you were on trial for your life, would you want two of your jurors hooking up while deliberating? I suspect not.

I would be concerned that the jurors were paying less attention to the details of the trial itself and more attention to each other; I'd prefer the jurors minds were primarily focused on the actual trial. I'd also be concerned that these escapades, apparently widely known among the jurors, would create a really weird group dynamic that would not be conducive to a fair and thorough deliberation process.

I don't think it should be uncontroversial that, in a perfect world, we wouldn't want jurors hooking up with each other. I'm somewhat baffled by the comments that seem to indicate that there's nothing wrong with this happening. To me, the only question is, how concerned are we that this conduct deprived the defendant of a fair trial and whether we think that concern is so great as to justify a new trial? I suspect how each of us answers that question depends on our individual views of the sanctity of the criminal process and the importance of ensuring that only the guilty are convicted.
12.23.2008 1:11pm
J.McFaul (mail) (www):
"She testified in the recent hearing that she heard sexual noises coming from the next hotel room."

Objection, lacks foundation.
12.23.2008 1:12pm
Fub:
I think the jury commissioner (or equivalent office in Missouri) should file an amicus requesting a retrial, and I think the court should grant one on public policy grounds. Getting people to serve on juries is difficult. With a little publicity people would be lining up around the block to serve.

Jury duty: It's not just a duty. It's a party!
12.23.2008 1:14pm
Matt P (mail):
Good point about mere relationships being an like incentive. One could argue that close quarters and intense situations tend to lead to emotional entanglements even if sex is not involved. I would counter argue that sex, for most people, trends that way to an excessive and prejudicial extent. When you have sex with a person you are in a marked more vulnerable than you are when you are just talking with someone, most people react strongly to extreme vulnerability. Combine sex with close quarters and intense situations and I can see the argument that it might prejudice the deliberations. In this case I'm not sure it did or that it would in every case. I can however see the line of arguing being more than just grasping at straws.
12.23.2008 1:17pm
theobromophile (www):
So now the members of jury are supposed to be sequestered not just from the outside world, but from each other, too?

Stupid question: wouldn't it be worse to have a jury that, for weeks on end, hasn't gotten any (and is upset by this) deliberating a murder trial - cranky, out of sorts, lonely - rather than a happy jury? Shouldn't the argument be that the other 10 people were pissed off and jealous, and took it out on the defendant, rather than lack of partiality from the two who engaged in various relations?
12.23.2008 1:18pm
MJH21 (mail):
GV,

The issue is not whether a dedendant gets what he wants or whether he is "concerned" with the behaviour of the jurors, the issue is if the behavior of the jurors caused the trial to be constitutionally infirm. If the standard for juror misconduct is the "were they primarily focused on the actual trial 24 hours a day" standard, then everything is fair game: What movies did they watch? How long did they use the phone? Did they get enough sleep? How may times did they masturbate? Did they play video games?

Do the answers to any of these questions amount to juror misconduct? Maybe you're not a lawyer, but the standard is that actual bias existed or that circumstances compel an imputation of inherent bias to the juror as a matter of law. For sex? Why not for any of the above?

The point is that it is an incredibly slippery slope; one that cannot be policed absent locking jurors in a cell with no contact with the outside world. A defendant is entitled to a fair trial - not a perfect one.
12.23.2008 1:43pm
einhverfr (mail) (www):
GV:

I am not at all convinced it interferes with a fair trail any more than the sequestering process does. The fact is that sequestering is a necessary evil in some cases, but we shouldn't kid ourselves that sequestered juries are more likely to want to compromise their ideas in order to get back to the real world than those who aren't.

Sure, it compromises the image of impartiality, but I am not at all convinced that it compromises the substance in a case like this.
12.23.2008 1:48pm
Dave N (mail):
On the merits, this issue is asinine.

This idiot was accused of capital homicide, only convicted of second-degree murder, and now whines his attorneys were ineffective. Did it occur to this guy that perhaps he should be counting his lucky stars that his attorneys were effective in the guilt phase and not be whining now?
12.23.2008 1:49pm
TomHynes (mail):
Under Lawrence, don't two consenting adults have a right to private sexual behavior?

Can a judge tell jurors "No sex for you for the next few weeks?"
12.23.2008 1:50pm
krs:

Put yourself in the shoes of the defendant. If you were on trial for your life, would you want two of your jurors hooking up while deliberating?
Depends on how they'd vote afterward... and probably also on whether I was guilty and whether the evidence proved it.
12.23.2008 1:57pm
gasman (mail):
Is there the reasonable chance that jurors would be less favorable in their opinion of the accused if they had to adhere to the rule "no nookie until you have a verdict"?
12.23.2008 1:58pm
George Costanza:
Is that against the rules? If someone had only told me!
12.23.2008 2:05pm
Dilan Esper (mail) (www):
And of course the issue is before Judge Bush.
12.23.2008 2:11pm
GV:
MJH21, if I had made any of the arguments you attributed to me, then perhaps your post would have more force. I never claimed, nor even implied, that the defendant's "concerns" or a juror not paying attention to every detail of a trial requires a new trial.

To address the merits of your argument, with many legal issue, you could claim that there's no clear line, invoke the magical phrase "slippery slope," and then be done with the issue. Lots of legal issues requires difficult line drawing. That's the case here. If a juror did not pay attention to every detail to a trial, that alone would not deprive the defendant of a fair trial. On the other hand, if the entire jury was engaging in an orgy during every break, it would deprive the defendant of a fair trial. (I suspect if this latter scenario had actually occurred, you wouldn't have much sympathy for a slippery slope argument in response.) The question is where on the spectrum does the conduct at issue fall and where on this spectrum are we willing to say the defendant's right to a fair trial was violated. Perhaps you think the conduct at issue is very close to the juror-misses-one-detail side of the spectrum. I think, however, you'd have a hard time explaining how a juror missing a few details will have a similar effect on deliberations as two people in a small group having sex. Indeed, I have a hard time believing many of you actually believe the petty conduct you're invoking -- missing a phone call, not masturbating enough -- is actually akin to two jurors having sex. Again, this is not to say that this conduct should necessarily require a new trial, but I don't think this issue is frivolous, as others seem to think. I might be alone in this, but I can certainly see myself being incredibly distracted while serving on a jury if I were trying to get into the pants of a fellow juror. Likewise, I can also see being unduly influenced by mini-me when deciding how to vote.
12.23.2008 2:20pm
Hoosier:
Why do we care. "It's just about sex."
12.23.2008 2:24pm
Michael B (mail):
"As long as the jurors weren't discussing the case with each other, I would think this is okay."

Oh, I don't know, a conversation that only lightly touched upon the case would surely need to be viewed differently than one probing more deeply, more passionately into the subject.
12.23.2008 2:27pm
Jack Black (mail):

On the other hand, if the entire jury was engaging in an orgy during every break, it would deprive the defendant of a fair trial. (I suspect if this latter scenario had actually occurred, you wouldn't have much sympathy for a slippery slope argument in response.)



Now that's a slippery slope!
12.23.2008 2:36pm
Jack Black (mail):
And, as I noted prior to GV, I too believe that the jury might have been too distracted by sex to provide their concentration to the matters at hand. Such periodic dissipation could have frustrated social dynamics. Ours is a rock-solid position that few have handled fully or taken in deeply for consideration.
12.23.2008 2:43pm
Kenvee:
Jack Black

Jurors having sex with each other, it could be fairly argued, were rather lax in their attitudes toward the criminal justice system, casting doubt on the truthfulness of their oaths and the quality of attention paid both to the proceedings and the merit of the arguments and queries of their fellow jurors during the process of deliberation.


I don't think it IS a fair argument that they were "lax in their attitude toward the criminal justice system" just because they had sex at the hotel. There's absolutely nothing indicating they weren't paying attention during trial and participating completely in deliberations. But deliberations are over once they go back to the hotel at night, and they're not supposed to be talking about the case. I don't think anyone expects them to spend every night in deep contemplation of the legal issues. When they get back to the hotel, jurors will watch TV, read books, play board games, and chat with each other. No one accuses them of having lax attitudes or questions their oaths.
12.23.2008 2:55pm
Lib:

Put yourself in the shoes of the defendant. If you were on trial for your life, would you want two of your jurors hooking up while deliberating?

Last time I was on a trial, I think we were told that deliberations must only be done as a group with all jury members present. If this was the case in this trial, the rest of the jurors must have had a good show if these jurors were hooking up while deliberating and also following the rest of the judge's orders.

If I were a defendant, given the choice of a couple of jurors flirting with each other with the goal of "hooking up" and a couple of jurors actually "hooking up", I'd prefer the latter. In the former case, both are more likely to be trying to impress/not annoy each other in order to achieve their goal. In the latter case, the test drive was somewhere between fantastic (in which case, it will probably be repeated regardless of conflicting views on the trial) or horrible (in which case, at worst, the two people may dislike each other - but based on my experience as a juror, that happens even in ordinary circumstances).
12.23.2008 3:02pm
Ted Frank (www):
We've all heard stories of jurors meeting during trials and eventually marrying each other; presumably an even larger number have hooked up post-trial without marital vows. If we're going to posit that a sexual relationship contemporaneous with sequestration necessarily distracted jurors from their task, one would have to argue that the sexual tension of flirtation leading to post-trial sex is also problematic. Jurors are always distracted, as anyone who has heard post-trial interviews of jurors knows. I was certainly distracted when I was on a jury by the concern that I had a draft of a brief to do when I returned to the office, and the partner on the case wasn't cutting me any slack for my jury duty. If we're going to have a jury system, then we accept that each jury is going to have some degree of flakiness.
12.23.2008 3:13pm
Jack Black (mail):
No one accuses them of having lax attitudes or questions their oaths.

I just did. The argument is that they did not take their role as jurors seriously and were overly preoccupied with other matters.

There's absolutely nothing indicating they weren't paying attention during trial and participating completely in deliberations.

How about the fact that they thought it was proper to shag each other?
12.23.2008 3:21pm
Don de Drain:
I can also see that it is possible to take many different positions in dealing with this question.
12.23.2008 3:21pm
GV:
Ted, aren't you just ducking the issue with some hand waving? Obviously, we must accept some degree of "flakiness." I think everyone agrees with that. And at some point, I think everyone agrees that "flakiness" can result in an unfair trial. You seem to just be asserting that this case involved flakiness that was okay. But you've provided no argument for why that's the case. Is a post-trial hook up really the same thing as what happened here? And, as I mentioned above, a relevant fact not really discussed by many here is that apparently the entire jury knew these two were hooking up, possibly creating a very weird small group dynamic. Perhaps that's okay, but I think the point needs to at least be addressed.
12.23.2008 3:25pm
MJH21 (mail):
GV,

You did invite us to "Put yourself in the shoes of the defendant" and aks what we would "want" from our jury. You then stressed (three times) that you would be "concerned" about the dynamic of sex between jury members - absent any allegation that it impacted the way they voted in the case at all. I did address your arguments: they're just dopey.

And you do go right back to the hyper-sensitive standard that being "incredibly distracted" by the want for sex - not even sex itself - could "unduly influence" a juror's vote. That's why it's called a slippery slope: people like you immediately attempt to expand the criterion for juror misconduct from not just jurors having sex, but being distracted by the want for sex. So yes, it is a line-drawing problem but your argument only exacerbates the point that frivols arguments can and will be made unless the law raises the bar high enough that what a defendant "wants" from his jury or is "concerned" about from his jurors after they go home at night cannot be a colorable argument.

Because inhabitants of a certain mind set could scarcely find conduct that they didn't think affected a jury's deliberations, the courts have wisely chosen the "actual bias" or "circumstances [that] compel an imputation of inherent bias" standards. Consensual sex between two jurors demonstrates neither.
12.23.2008 3:36pm
Brad Ford:
Don De Drain - very funny.

Since they are sequestered, they cannot have sex with others. That leaves each other.

After thinking about it some more, I believe it would have been ineffective assistance of counsel for the defense to have insisted on a "no sex" jury instruction. In a long trial with a sequestered jury, the "no sex" rule would lead to some angry jurors.
12.23.2008 3:47pm
einhverfr (mail) (www):
GV:

How do you think being sequestered (and away from friends, family, and familiar passtimes) affects a juror's judgement?

I think at best the sex is a symptom rather than a disease. Besides, it might go the other way too....

Suppose for a moment that you are a sequestered juror in a long trial. Hence you are stuck for a long time in a hotel room and disallowed pretty much all access to the real world. Wouldn't you just be more inclined to vote "guilty" so you can go home rather than slowly debate every area where you have some reasonable doubt? Now, suppose at least you have a romantic/sexual relationship with one of the other jurors. Wouldn't you be more inclined to drag deliberations out and insist strongly on considering every point?

So you see, this can be argued both ways. In the absence of evidence to the contrary, I would have to say it would not have prejudiced the jury against the defendant. Perhaps you are aware of studies that I am not though?
12.23.2008 3:48pm
David M. Nieporent (www):
There's absolutely nothing indicating they weren't paying attention during trial and participating completely in deliberations.

How about the fact that they thought it was proper to shag each other?
Ever hear of begging the question?

Unless I missed something, they weren't having sex during the trial or deliberations. They were having sex at night. At night, not in the jury room, not in the presence of other jurors (I assume), they weren't supposed to be discussing or deliberating on the case. There's no evidence that they were ignoring the case at times when they were supposed to be focusing on it.

When I served on a jury this summer, during breaks people flirted, tried to market their MLM products to other jurors, discussed nearby gyms and exercise habits, what they did for a living, whined about how long the trial was going on, etc. We weren't sequestered, so we went home at the end of the day and did whatever we wanted. Watched television, read Volokh, caught up on the work we had missed during the day. How is that okay, but having sex shows that jurors weren't taking the trial seriously?
12.23.2008 3:51pm
einhverfr (mail) (www):
The basic thing is that people like GV believe that if sexuality is expressed in any way contrary to the restrictions of his religion, that it will lead to the end of civilization. I can just suggest to him that he be thankful he didn't live in the 1920's what with the rise of modern sexuality and the teddy bear controversy and all. This overall fear of sex is what I believe drives a lot of the fear of gay marriage.

Some of us take a very different approach.
12.23.2008 4:02pm
Oren:

In a long trial with a sequestered jury, the "no sex" rule would lead to some angry jurors.

I've been lead by popular media to believe that this is advantageous to Justice.

Jack, what do you think jurors do after hours? They sit in a hotel (if that level of sequestration is needed) and watch TV or read books or whatnot. They aren't discharging their duty even waking minute -- there's time for diversions entirely unrelated to their duty, like shagging the other jurors (for those that prefer it).
12.23.2008 4:21pm
Jack Black (mail):

They were having sex at night.



Ah, well, it matters not that the jurors were imbibing mercury and snorting oxycontin in their hotel rooms during the sequestration period, as it happened at night!
12.23.2008 4:24pm
Kenvee:

No one accuses them of having lax attitudes or questions their oaths.

I just did. The argument is that they did not take their role as jurors seriously and were overly preoccupied with other matters.


I was talking about the other jurors -- the ones reading and watching TV. You haven't explained why one activity is okay and the other is not, unless I misread your original posts and you think any activity during the entire period of sequestration other than discussing or thinking about the case is improper.


There's absolutely nothing indicating they weren't paying attention during trial and participating completely in deliberations.

How about the fact that they thought it was proper to shag each other?


As David said, that's begging the question. They weren't having sex during deliberations, it was after they retired to the hotel for the night and the entire jury is engaged in non-deliberations activity. How does their deciding to have sex instead of playing Scrabble show that they weren't paying attention during the deliberations? Note that the juror complaint was only about noises in the hotel room, not that either juror acted improperly during deliberations. If they'd been gazing lovingly into each other's eyes (or sneaking quickies in the bathroom) while everyone else was trying to deliberate, she would've included that into the letter.
12.23.2008 4:26pm
Jack Black (mail):

Note that the juror complaint was only about noises in the hotel room, not that either juror acted improperly during deliberations.



That a juror complained suggests that it may have affected the professionalism of the deliberations; certainly it disturbed another juror so much that the juror saw fit to complain. Are we truly to believe that the complaining juror cared solely about noise or is it more reasonable to believe that the juror used discretion in making a complaint about the impropriety of the other jurors' behavior?
12.23.2008 4:33pm
MJH21 (mail):
Yes Jack, consensual sex, drinking poison, and drug abuse are almost indistiguishable.

For people like Jack and GV there just aren't any arguments too flimsy to be given weight where there's a defendant to be benefitted. It is essential to their worldview to avoid the actual law - a showing actual bias or facts that compel a conclusion of bias - because the law doesn't comport with the way they "feel."

I'd be wealthy if I had a dollar for every hour I've spent responding to arguments like these that just flatly ignore the law and argue vague notions of propriety; all the while cloaked in the pursuit of justice for the defendant instead of what it really is: posturing on idealogical grounds.
12.23.2008 4:41pm
Jack Black (mail):

Yes Jack, consensual sex, drinking poison, and drug abuse are almost indistiguishable.



They all alter brain chemistry and impair judgment.
12.23.2008 4:44pm
John Herbison (mail):
Does Missouri have an evidentiary rule similar to Rule 606(b) of the Federal Rules of Evidence? F.R.E. 606(b) states:
(b) Inquiry into validity of verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.


If so, what effect would that have?

The instant proceeding appears to be an ineffective assistance of counsel claim. Assuming arguendo that the trial attorney's performance was deficient, how would the defendant's current lawyer(s) be able to show prejudice, especially in light of the conviction upon a lesser included offense?
12.23.2008 4:50pm
GV:
einhverfr, jurors are rarely kept away from their friends and family. Most jurors are allowed to go home and are asked not to talk about the case with anyone else. I don't see that as particularly disruptive. It's a small burden, especially since they can talk about whatever they would normally talk about. On the other hand, I do see problems with cases that go over an extended period of time and cause a major disruption for jurors. Perhaps there's nothing that can be done to remedy that; they're simply a necessarily evil. (As an aside, my office interviews jurors after every trial and jurors often make comments in long trials that they were ready to go home, etc.)

Also, it is worth noting that the juror who complained makes several points that would seem to indicate that these acts did affect deliberations -- deliberations that ended up in a guilty verdict: everyone on the jury seemed to know that this was happening, that she (and maybe other members of the jury) thought it was "scandalous," and that she was concerned that these jurors did not take their oaths seriously. We also have other evidence that at least some of the jurors did not take their oaths all that seriously since they were discussing witness testimony amongst each other, contrary to what they told the judge they would do. I'd be interested in hearing from other members of the jury and whether they thought it disrupted deliberations.

This apparently was a close case, as the defendant seemingly had a plausible claim of self defense and the jury did not buy the entirety of the Government's position. Given all of this, it would not bother me if the defendant received a new trial. But I'd have to know more about the case to have any sort of definitive opinion. Again, I'm really just reacting against the idea that this claim is without any merit what so ever.

And regarding your last bizarre comment about me, I'm an atheist in support of gay marriage, so perhaps you could leave your speculation about my motivations out of this?
12.23.2008 5:03pm
einhverfr (mail) (www):
Jack Black:

Ah, well, it matters not that the jurors were imbibing mercury and snorting oxycontin in their hotel rooms during the sequestration period, as it happened at night!


Imbibing mercury is perfectly legal, right? Also, do you think jurors engaging in masturbation would impact their ability to do their jobs? Seriously where do you draw the line.

However, my counterpoint is that it could be argued that jurors having sex with eachother during the sequestered time may be less inclined to take shortcuts in entering a verdict. In the absence of evidence that the jurors were prejudiced against the defendant by the action, I would suggest that it is best to not worry too much about it.
12.23.2008 5:07pm
Jack Black (mail):

In the absence of evidence that the jurors were prejudiced against the defendant by the action, I would suggest that it is best to not worry too much about it.





"Acts of sex and insubordination were scandalous and unspeakable …" Thompson wrote. She testified in the recent hearing that she heard sexual noises coming from the next hotel room.

Stroup said Thompson "was very upset" about the sexual contact. "Because of the seriousness of the case, she was concerned how lightly these other jurors took their responsibility. She was more than willing to testify on (Dunn's) behalf."

Also during the trial, a sheriff's deputy told the judge that she overheard some jurors discussing the case before deliberations started, which is improper.

The judge questioned four jurors, who admitted they had talked about several witnesses during a break, according to court documents.

12.23.2008 5:14pm
einhverfr (mail) (www):
GV:

Jurors are rarely kept away from their friends and family. Most jurors are allowed to go home and are asked not to talk about the case with anyone else.


Sequestered jurors are not allowed to go home, and are allowed only limited contact with the outside world. It is a real burden. This is a case where the jury was sequestered....


This apparently was a close case, as the defendant seemingly had a plausible claim of self defense and the jury did not buy the entirety of the Government's position.


Sure, but the act of sequestering the jury (and isolating its members) would seem to my mind to be a bigger factor in the bias than the intra-jury politics. Normal jury duty is a different matter entirely and while that too can be disruptive, it is far less so.

For example, if I was on jury duty, I could probably continue to work part time, catching up on whatever I could in the evenings. If I was isolated from the internet and put in a hotel room, that would be a much bigger hardship. Even a short sequestered trial would be a LOT more disruptive on my life than a long normal trail.
12.23.2008 5:17pm
GV:
MJH21, if you want to lecture the rest of us, perhaps you could at least do some research on the relevant legal standards in Missouri. The standard you're quoting (which I assuming is the constitutional test?) is not the only relevant test in Missouri. But perhaps you'd rather just smugly attack those who are disagreeing with you.

For those of you who are interested, I found the Missouri intermediate appellate court's decision affirming the conviction. It can be read at 21 S.W.3d 77.

And I'll have to allow someone else to get the last word, as I'm headed to the airport for a flight home for the holidays.
12.23.2008 5:24pm
einhverfr (mail) (www):
Jack Black:

I bet you cannot find ANY trial where at least some jurors admit to improper discussions, research, etc, or where a reasonable investigation couldn't turn up some evidence of misconduct. The question is not "did it affect deliberations" but rather "did it unduly prejudice the jury against the defendant." Thus far nobody has offered any evidence that this is the case.

In short what I would like to see is not some idea that it "affected deliberations" but some reason to believe that it affected deliberations in a direction which was to the detriment of the plaintiff. I believe that the mere act of sequestering the jury is more likely to have a prejudicial effect than any of these things.

Where I would hope the line would be drawn would be:

1) Was there improper conduct? If so:

2) Did it affect deliberations? If so:

3) Did it unduly prejudice the deliberations against the defendant?

The third question is the only one that matters, and I don't yet see anyone attempting to address it.
12.23.2008 5:25pm
Oren:

"Acts of sex and insubordination were scandalous and unspeakable …" Thompson wrote. She testified in the recent hearing that she heard sexual noises coming from the next hotel room.

Whereas she was sitting in her hotel room reading. What's your point?



That a juror complained suggests that it may have affected the professionalism of the deliberations; certainly it disturbed another juror so much that the juror saw fit to complain. Are we truly to believe that the complaining juror cared solely about noise or is it more reasonable to believe that the juror used discretion in making a complaint about the impropriety of the other jurors' behavior?

Professionalism is what you do during business hours -- what you do after-hours is immaterial. All told, I would say that the complaining juror is the unprofessional one because she appears unable to work with people that have different opinions on sexual matters than she does. Professionalism requires that she put her personal disagreements aside in order to discharge her duty. It's quite sad that she cannot do this.

Also, I'm quite amused by this "changes brain chemistry" argument. You are aware that the simple acts of smiling or frowning changes measurably changes brain chemistry. So do chocolate, tea, coffee, milk and turkey sandwiches. The question is whether the brain is fit to discharge its duty at the time when it is called to do so. Given that the afterglow from sex only lasts 15-30 minutes, I would say the answer is yes.
12.23.2008 5:26pm
Jack Black (mail):

In short what I would like to see is not some idea that it "affected deliberations" but some reason to believe that it affected deliberations in a direction which was to the detriment of the plaintiff.


Stroup said Thompson "was very upset" about the sexual contact. "Because of the seriousness of the case, she was concerned how lightly these other jurors took their responsibility. She was more than willing to testify on (Dunn's) behalf."


Also, I'm quite amused by this "changes brain chemistry" argument.



So much so that you ignored the tail end of that argument about impaired judgment. The point is that -- contrary to many respondents here -- one can engage in off-hours behavior that impairs your judgment while on-duty, conduct that so impairs your judgment that it affects your professionalism. We have a direct witness asserting that is the case and circumstantial evidence that was the case (the sheriff who overheard the jurors improperly discussing witness testimony before the charge.) Arguing simply that the sex occurred during the nighttime and away from the jury room won't cut it.
12.23.2008 5:34pm
einhverfr (mail) (www):
Jack Black:

Stroup said Thompson "was very upset" about the sexual contact. "Because of the seriousness of the case, she was concerned how lightly these other jurors took their responsibility. She was more than willing to testify on (Dunn's) behalf."


Where does this tell me what impact this had on deliberations? I.e. I want to know more specifically if these people were then hawkish about a 1st degree murder conviction, etc. In short you aren't showing me that there was actual harm to the defendant through this. All you are showing is that there was harm to Thompson.

Also, I wonder if one could challenge the routine sequestration of jurors in capital cases as prejudicial. I note here that the sequestration was routine, and this just strikes me as wrong. Maybe this would be a better reason for a new trial?
12.23.2008 5:40pm
einhverfr (mail) (www):
If there was no harm to the defendant then the error was harmless. If not, then that is another matter.
12.23.2008 5:42pm
Jack Black (mail):

Where does this tell me what impact this had on deliberations? I.e. I want to know more specifically if these people were then hawkish about a 1st degree murder conviction, etc. In short you aren't showing me that there was actual harm to the defendant through this.



You haven't shown that every single juror acted properly, either. What we have is a colorable argument that the jurors' improper behavior may have harmed the defendant. In reply, you say, "The misconduct doesn't seem harmful enough to me." But that, to me, sounds like a concession that the defendant has a reasonable argument that misconduct may have harmed him sufficiently, and any contention that his position is without merit has been conceded away, by you.
12.23.2008 6:02pm
Oren:

she was concerned how lightly these other jurors took their responsibility

And I can be concerned about her evening activities too. She has adduced no evidence that the juror did, in fact, take their responsibilities lightly. What they do after the trial is over for kicks is not evidence of anything aside from their personal preferences.


one can engage in off-hours behavior that impairs your judgment while on-duty, conduct that so impairs your judgment that it affects your professionalism

Of course it can impair your judgment. My argument was that, in this case, there is no reason to believe that having sex impairs you judgment more than, say, watching old movies.


You haven't shown that every single juror acted properly, either.

The burden is not on him to show such a thing.
12.23.2008 6:29pm
ReaderY:
Professor Kerr,

I think the spouse analogy is the best available. Unless you're prepared to say everybody takes sex so casually it can be assumed not to have any meaning at all, the rationale that concludes spouses shouldn't serve on the same jury (because their personal relationship might interfere with the objective resolution of disagreements) is also relevant to this situation.
12.23.2008 6:30pm
Oren:

Thompson "was very upset" about the sexual contact.

Entirely irrelevant because her being upset does not say anything about whether the jurors faithfully discharged their duties. Speak directly to the charge at hand or not at all.
12.23.2008 6:34pm
Oren:

Unless you're prepared to say everybody takes sex so casually it can be assumed not to have any meaning at all, the rationale that concludes spouses shouldn't serve on the same jury (because their personal relationship might interfere with the objective resolution of disagreements) is also relevant to this situation.

Of course it's not true for everybody but it's also not true that everyone takes sex so seriously that it implies that their personal relationship might interfere with objective deliberation. I can believe that spouses are quite likely to have the kind of relationship that does interfere but I'm having a hard time believing that of people that just met each other.
12.23.2008 6:38pm
einhverfr (mail) (www):
Jack Black:

You haven't shown that every single juror acted properly, either.


No, because I admit they acted improperly. I simply say that I am not convinced it was prejudicial. Note my three criteria:

Was there improper behavior? Yes. If so:

Did the behavior affect deliberations? Probably. If so:

Was the affect harmful to the defendant? I don't know.

How often do you think that jurors who are not sequestered discuss the matters with their spouses? How many do engage in a bit of unauthorized research? I would be willing to bet that these sorts of things occur to some extent on every trial, and the only way to avoid these is to simply avoid jury trials.
12.23.2008 7:04pm
einhverfr (mail) (www):
Jack Black:

In reply, you say, "The misconduct doesn't seem harmful enough to me." But that, to me, sounds like a concession that the defendant has a reasonable argument that misconduct may have harmed him sufficiently, and any contention that his position is without merit has been conceded away, by you.


Actually the issue at hand is whether the individual's lawyer's choice at the time not to seek a mistrial should be the basis for a new trial. In my opinion, this means that the issue should be sufficiently glaringly obvious that the attorney fundamentally screwed up in not filing such a motion.

Suppose 8 years after a similar trial, one of the jurors says "I knew the defence expert witness was lying because I went home and looked up some scientific papers via JSTOR." Do we give a new trial in this case? (by my analysis, I would think that might be appropriate.) Suppose it was the prosecutor's expert witness that the juror discredited but still managed to convict. Does this confession mean that we assume other misconduct that caused harm? Certainly it is reasonable to think so, but I cannot to my mind think of ANY case where EVERY juror in a case is going to stick precisely to the rules.

I don't think that every case of juror misconduct warrants a new trial. If we did this, rich defendants could get as many new trials as they might want!
12.23.2008 7:13pm
einhverfr (mail) (www):
Oren:

Entirely irrelevant because her being upset does not say anything about whether the jurors faithfully discharged their duties. Speak directly to the charge at hand or not at all.


To be fair, the fact that Thompson was upset about the matter could have affected her judgement. Combined with the fact that she was sequestered too, that might have made her less willing to bring up any points she had.

But whose responsibility is it not offend any of the jurors?
12.23.2008 7:17pm
NickM (mail) (www):
Imbibing mercuty and snorting oxycontin both cause long-lasting brain damage. If sex is causing you the same problem, I have 2 recommendations.
1. Quit doing erotic asphyxiation.
2. Move further away from the headboard.

As for the suggestion that having sex impairs your judgment, wanting sex impairs it even more. People with regular sex partners are not the ones hooking up with ugly strangers at bars just because it's closing time.

Also, I don't think insubordination means what that juror thinks it means. Perhaps Thompson felt it was wrong that the woman was on top.

Nick
12.23.2008 10:13pm
resh (mail):
Since the majority of defendants get f@cked anyway, I'd say the matter was little more than art imitating life.
12.23.2008 10:37pm
TerrencePhilip:
Well, Ms. Thompson sounds like a whole lot of fun.
12.24.2008 12:59am
John D (mail):
Some years ago, I was empaneled for a trial. The trial started on a Monday and concluded the following Monday.

We were not sequestered, but when court recessed on Friday, we were told that we were not to discuss the case with anyone. The judge made no reference to sex.

During that weekend, I did not discuss the case with my boyfriend (now husband), although I am reasonably certain that we did have sex.

I followed the judge's orders. Certainly I didn't do anything wrong.
12.24.2008 1:36am
Jack Black (mail):

In my opinion, this means that the issue should be sufficiently glaringly obvious that the attorney fundamentally screwed up in not filing such a motion.



The only reason that is glaringly obvious is the patent reasonableness of the argument that the rampant juror misconduct in this case may have harmed the fairness of the proceedings. You know, the argument that you have been resisting to the point of self-contradiction.
12.24.2008 4:10am
FantasiaWHT:
If there is an instruction about no sex, don't you think that would actually create more problems?

(1) Planting the idea in people's brains may actually lead to more instances of the occurrence.

(2) Boy, that's an easy way to get a "win" if you are in the minority in voting not guilty - just sleep with one of the other people voting not guilty.
12.24.2008 9:32am
gran habano:
I'd have to see video before deciding. :)
.
.

During the trial, the judge investigated sheriffs' reports of juror misconduct relating to inappropriate discussions, so this court doesn't seem to have been blind to the issue of juror misconduct.

The juror's letter to the judge seems to have been formally entered into the file, so it's hard to claim this was inappropriately left unaddressed, or stonewalled somehow.

The guy stabbed the woman in her own apartment, with multiple stab wounds inflicted. Defense claimed self defense, but based upon a first-order smell test, the 2nd degree murder conviction is not an outlying data point, and doesn't by itself drive the issue.

The letter mentions no names, only sounds allegedly heard across the wall, with no firm discussion of any effect on actual deliberations, if any. The alleged sex appears to drive the juror's letter, and nothing more.

Hard to understand how this juror could catch these wily sheriffs in on the job misconduct. Possible? Yes, but coupled with the unsubstantiated sexually related accusations re other jurors, this juror's behavior begins to approach obsession, and thus may be an outlying data point.

If we dismiss alleged juror fornication as an issue, then there's nothing concrete here to demonstrate juror misconduct.

If we believe juror fornication to be an issue, then we have to spade through one juror's claims, 8 years after the fact, because no misconduct or deficient process jumps out of this.

Jury duty is emotionally taxing. There will be a winding down process. Regrets... thing left unsaid... things said... things irresolved emotionally. I can see this letter going out immediately following a trial, but stripping away emotion... is there any there, there?
12.24.2008 10:41am
ReaderY:
Oren,

Historically, how casually people takes sex tends to be a function of how good the economy is. People need traditional relationships in bad times, they need them much less in good times.

People passed a serious of crackdown-on-sex laws in World Wsr I, they mostly ignored them in the 20s; they took them seriously in the Depression; they started ignoring them in the 50s and did so in earnest starting in the 60s and 70s; we've been living in a generation-long bubble of prosperity.

We've been hearing lots of "Greenspan arguments" (new world order, progress can't ratchet back, laissez les bon temps roller! -- just the sort of things we've heard about housing prices and whatnot.

Dare I suggest that this argument might now be a wee bit out of date? If we get a bad economy, traditional relationships will make a huge comeback, casual ones will be discouraged -- just as happened in the 1930s, and many times previously.

Moral policy, like economic policy, attempts to ameliorate the human effects of boom-and-bust cycles by reminding people in the middle of boom cycles that good times don't tend to last forever and relationships capable of weathering bad times aren't necessarily completely out of fashion or a mere curiosity. Of course most people don't listen, but small dampings can, butterfly-like, have big effects.
12.24.2008 11:13am
Oren:
My generation is not going to back to the bad old times. Not if I can help it anyway.
12.24.2008 1:38pm
markm (mail):
Perhaps allowing Mrs. Grundy on the panel was ineffective assistance of counsel?
12.24.2008 5:27pm
David M. Nieporent (www):
Jack, no matter how many times you quote the juror, you're still begging the question. And since that same juror was whining about the deputies having sex, it seems a lot more likely that she just has a problem with sex than that it affected the deliberations.
12.24.2008 6:00pm
Hoosier:
Nick M:

2. Move further away from the headboard.


Or get a padded headboard. That's my version of "safe sex."
12.24.2008 6:10pm
Hoosier:
GV:
Put yourself in the shoes of the defendant. If you were on trial for your life, would you want two of your jurors hooking up while deliberating? I suspect not.

Well I'll tell you what I definitely would not want: Twelve frustrated, horny "peers" deciding my fate.

My preference in that hypothetical situation would be to provide them all with a huge quantity of marijuana and rolling papers prior to deliberation. But I'll settle for a pair of them in the warm afterglow.
12.24.2008 6:15pm
einhverfr (mail) (www):

We were not sequestered, but when court recessed on Friday, we were told that we were not to discuss the case with anyone. The judge made no reference to sex.


Maybe you misunderstood the judges instructions not to engage in any intercourse relating to the case ;-)
12.25.2008 2:38am
Oren:

intercourse relating to the case

But intercourse not relating to the case is OK?
12.25.2008 7:36pm
Hoosier:
Does "Say my name, b**ch!" count as "discussing the case"? (IANAL)
12.26.2008 10:08am
Rae the (mail):
LMAO...since when has the validity of consenting sex have any bearings on the conviction in a MURDER case? Tainted the jury, lol? Who's to say that the forthcoming juror wasn't engaging in a little "risque" business herself?
12.27.2008 11:39pm

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