In the process of a trial, one of the most important phases is jury selection.
The opposing parties and the judge have likely invested significant time in preparing the case to be heard by a jury. There are often multiple pre-trial hearings to decide what witnesses will be allowed to testify and what evidence the jurors can consider in coming to a true and just verdict. Once selected for jury duty, jurors take an oath in this regard as well.
Without jurors, the legal system would not work. It is an indispensable and honorable civic duty that should not be avoided. In a criminal case in Circuit Court, twelve jurors, plus an alternate or two, are chosen to render a verdict, which must be unanimous. Juries can send notes to the judge if they have a question or are having difficulty reaching a decision. What is in a jury note can often be an indicator of which way the jury is leaning.
While the vast majority of juries reach verdicts, a jury is considered “hung” when the members of the jury cannot reach a unanimous decision. At that point, a judge may deliver an instruction to the jury ordering them to return to their deliberations and to do their level best to reach a verdict. This is known as an “Allen Charge.”
I have had one hung jury in my career. That was a case where an elderly, war veteran cab driver picked up three young males in Charleston. At some point, one of the young men, who sat in the rear of the cab, became angry at the cab driver and shot him in the back of the head with a large caliber handgun. That shot killed the cab driver and the young men fled. None of the three would implicate any of the others and the case came down to circumstantial evidence and the murder weapon being found at a defendant’s family member’s house.
Jury deliberations lasted several days and ended in a hung jury. For that particular jury, we had not proved “beyond a reasonable doubt” to each and every member of the jury that our defendant had pulled the trigger. That defendant later pled to a reduced murder charge and was sentenced to prison. After that term of court, one of the jurors approached me months later at a baseball game and told me everyone wanted to convict but there was one determined holdout who actually laid on the jury room floor in protest. That’s the way it goes sometimes. It was because of that case that cabs in Charleston now have video cameras. Watch the 1957 movie “12 Angry Men,” starring Henry Fonda. It is a fascinating cinematic representation of the inner workings of a jury.
This time of year makes me think of another interesting case.
Sometimes as a prosecutor, it is either try the case or dismiss it if the parties cannot reach a plea agreement. If it came to that and I was convinced the person was guilty, I usually just tried it rather than throw a case away.
This particular defendant was a female who had a long history of shoplifting. She had been in and out of jail with multiple convictions for shoplifting. She was indicted (felony third or subsequent offense shoplifting) for stealing a cell phone charger at K-Mart. She was caught on video surveillance and confessed to the crime. She also had the charger in her possession when apprehended.
However, we could not reach a plea agreement. With West Virginia Supreme Court case law, the defendant could stipulate to her prior convictions and the jury would not hear anything about her past. That is in order to not prejudice a defendant in the present matter, as in, “well, she did it before, she must have done it this time.”
The trial date was Dec. 23, which I called “Christmas Eve, Eve.” Upon election to the bench, the judge had inherited a 1,000-case backlog and was not fond of continuing or delaying cases, for any reason. Thus, we plodded on. The video surveillance and confession were played for the jury. We all expected a quick verdict.
At the conclusion of that trial, I learned a new phrase, “jury nullification,” which is when a jury ignores the applicable law and proven facts and simply does what they want to do. Verdict: NOT GUILTY.
Merry Christmas and Happy Holidays to everyone.
If you have a question or comment, feel free to e-mail me at giggenbachlaw@gmail.com.
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