Objection! (7 page)

E X H I B I T B :

C A N ’ T W E A L L J U S T G E T A L O N G ?

When taking the jury oath, jurors assume the duty to deliberate with each other in a wholehearted attempt to render a verdict that speaks the truth. During the same head-spinning month that Chappell Hartridge monopolized the small screen, another courtroom meltdown was occurring in the Tyco case. The trial was thrown into chaos when Juror Number 4 was reported to have given the “AOK” sign to the defense team of CEO Dennis Kozlowski and codefendant Mark Swartz while leaving the courtroom. Claims flew that Juror Number 4 was neither impartial, as required by law, nor willing to deliberate—or, for that matter, even able get along with her fellow jurors.

In an astonishing breach of journalistic ethics, the
New York Post
and the
Wall Street Journal
revealed the juror’s name. Robbed of her anonymity, seventy-nine-year-old Ruth Jordan went public with her story on
60 Minutes II
and denied she made such a gesture. But the ge-nie was out of the bottle. She fell under siege by the media and told the judge she had received a threatening letter as a result of being identified. The judge in the case rightly declared a mistrial. The truth is, even if the jury had come back with a verdict in a timely fashion, there would have been a reversal on appeal because of an alleged threat to 4 2

N A N C Y G R A C E

the juror. Whether the letter Jordan received was truly threatening is beside the point. The fact that Juror Number 4 perceived it to be so was all that mattered. A coerced jury verdict will not stand.

What disturbs me about this is that it’s unearthed yet another way for defense attorneys to get a mistrial or a reversal. In the Tyco trial, the decision to declare a mistrial was a sound one, though we’re left with some tough questions. How are defense attorneys now going to try to twist and turn the evidence of what a juror said or did in order to get a new trial? Every twitch of a nose, every wink or nod, will open up allegations of juror impartiality. How long will the appeals process be now that there’s a whole new universe—inhabited by the sneaky juror—for the defense to explore? I refer to the defense as the instigator in these situations simply because, in order for there to be an appeal, there must first be a conviction. If the state loses a case, it rarely has grounds for appeal, making this an avenue almost exclusively tailored for the defense. Taxpayers, brace yourselves for a new round of appeals based on grounds like the Juror Number 4 allegations that will make it all the way up to the U.S. Supreme Court. Here’s another news flash: You’ll be paying for the ticket, first class.

E X H I B I T C :

T H E S T E A L T H J U R O R

People who lie in order to make it onto the jury in a high-profile trial have come to be known in the legal community as “stealth jurors.”

They have an agenda—which usually involves delivering their own brand of vigilante justice or profiting from their time in the jury box. If jurors are actually guilty as charged of having these ulterior motives, they become dangerous spoilers for a true verdict.

Scott Peterson’s defense team claimed they spotted such a juror in a retired secretary and take credit for saving the jury. Juror Number 29308 was polite during questioning by the state, insisting she could definitely be fair and impartial. But then, defense attorney Mark Geragos abandoned his usually charming demeanor and went on the attack, O B J E C T I O N !

4 3

grilling her over a senior-citizen bus trip she took to Reno, Nevada.

“Did you tell people on that trip that you passed the test to get on the jury and Scott Peterson is ‘going to get what is due to him’?” Geragos asked. The juror, a volunteer at a senior-citizen center, acknowledged the bus trip but denied talking about the Peterson case. Trial judge Al Delucchi ultimately booted her off the jury.

A short time afterward, Geragos told the judge he’d received a tip that another female juror, a thirty-three-year-old student, had boasted during an online session in a “spirituality” chatroom that she had lied on the questionnaire to get on the jury. When confronted by Geragos about these allegations, she denied them, but she, too, got the judicial boot.

These developments have incredibly far-reaching implications. The more Geragos could trump up the motives of allegedly dishonest jurors, the more likely his accusations become the basis for a venue change or an appeal. A new trial could conservatively cost the state millions, as it took months to get through the sixteen hundred jurors vetted for the trial. The bottom line is that these particular “stealth jurors” may be gone, but the damage has been done, and the system pays for it.

In general, the defense seems to believe the only acceptable juror is an uninformed juror, a juror who never reads the paper, listens to the radio, or watches television. Practically no one escapes hearing the facts reported on high-profile cases. I think people can and must have an opinion—we’re human beings, not turnips. When I prosecuted cases, I wanted jurors who could listen to the evidence and, based on what they heard in the courtroom, reach a fair and impartial decision. The truth, as I see it, is that they are not hard to find.

Most prospective jurors might have commented on what they’ve heard to friends or family. That’s not unusual. What would be unusual is for someone to live in our news-saturated society and
not
hear about cases. But now, as a result of the developments in these three cases, innocent comments can be held against a juror. In the past, jurors have been “rehabilitated” by attorneys’ getting them to admit in court that, 4 4

N A N C Y G R A C E

yes, they have heard about the case but will keep an open mind and listen to both sides before rendering a verdict. Up until now, jurors have been taken at their word on their solemn oath. People like Hartridge have given us pause to think about whether that’s actually happening.

The doubts they engender undermine the integrity of the jury and the system.

In court, I was always concerned about what the jurors thought. I had the habit of watching them like a hawk throughout the trial, for any clues in their faces. Now I find I’m even more worried about who exactly the jurors are—just who is sitting in the jury box? What effect will their foibles have on a true verdict? The events in the Stewart, Tyco, and Peterson trials are just the tip of the iceberg. It’s impossible to know how far this will go. If a juror says at the end of a trial, “We knew he did it, and we weren’t gonna let him get away with it,” would that be grounds for a new trial? For throwing out a case?

I use that example because I distinctly remember a middle-aged male juror coming up to me after one especially hard-fought trial. I was standing at the curb waiting for the light to change when I felt a hand on my shoulder. When I turned around, I immediately recognized the man in a windbreaker standing before me from the jury box. He spoke these words: “Miss D.A., we knew he did it, and we weren’t going to let him get away with it.” My heart warmed, and I thanked him for rendering a true verdict and shook his hand. When the light turned green, we parted there and I never saw him again. In retrospect, I would have been struck to the core with fear if somehow the defense would claim

“stealth juror!” Thankfully, that didn’t happen, and justice was served.

It’s largely because of the strange events in these three headline-grabbing cases that I believe we will see an increasing number of defense attorneys attacking the individuals on the jury—legitimately or not—for statements they may have made. In the Peterson trial example, ultimately the word of a tipster was taken over that of a juror. I still believe that most jurors are like most of us, people who sing in the choir or work around the corner at the local bank or deli—just ordi-O B J E C T I O N !

4 5

nary people with no hidden agenda. Most of them don’t even want to be there but attend out of a sense of duty to our justice system. Very rarely are you going to find somebody dying to get on jury service, anxious to be away from home or work. That’s why Hartridge and others like him are so upsetting, because they give the system a bad name, leaving in their wake the impression that juror misconduct happens all the time.

“ J U R O R N U M B E R 5 ”

Unless you’ve lived under
a rock for the last year, you know exactly who Juror Number 5 is and what he meant to the case of
State v. Scott
Peterson
. On June 23, 2004, the now-infamous Juror Number 5 was booted from the Scott Peterson jury and the world got a rare peek into one of the twelve minds in the Peterson jury box. When the press revealed Justin Falconer to be Juror Number 5, he became an overnight sensation. He was everywhere—on all the network morning shows,
Larry King Live,
Court TV, and on syndicated radio. Falconer told the world he believed that Peterson, on trial for the murders of his wife and unborn son, was innocent and that the state had failed to prove its case just weeks into the trial.

I unwittingly became part of the story. Falconer got the boot after video in the courthouse lobby showed him speaking directly to a witness in the case, Laci Peterson’s brother, Brent Rocha. The judge, a seasoned trial veteran with plenty of death-penalty trials under his belt, summoned Falconer to his chambers to make sure no inappropriate discussions had taken place regarding the facts of the case. Prior to the exchange with Rocha, though, Falconer had become a point of interest to journalists and legal pundits alike for his seeming familiarity in court with Scott Peterson and his attorney, Mark Geragos. Allegedly, upon entering the courtroom each morning and when returning from breaks, Falconer would give encouraging smiles to the defense table as 4 6

N A N C Y G R A C E

he walked by. Talk about nonverbal communication! If I had been the prosecutor, I would have been beside myself!

In any event, during the conversation with Judge Delucchi, it turns out that Falconer gave him an earful—including the fact that his (Falconer’s) girlfriend was a frequent Court TV watcher and was so furious with the “Court TV lady” (me) that she wanted to “kick the crap” out of me. That apparently caused Delucchi to perk up his ears and put two and two together. However innocently, Falconer’s girlfriend had been relaying tidbits of coverage about the Peterson trial to her boyfriend—a Peterson juror.

In the days leading up to the Falconer revelation, I had complained bitterly on air about the familiarity shown between Falconer and the defense camp and I made no secret of it. Of course, Geragos was furious after Falconer’s dismissal and suggested that the media had somehow arranged the entire incident in order to pressure the judge to dismiss a pro-defense juror. Geragos even filed a motion for mistrial over the whole thing and called it an “outrage.” What is an outrage is that Laci and Conner were murdered and dumped in the bay—but that’s a whole other story.

I didn’t like much of what Falconer had to say about the state’s case or his take on it, including his insistence at the early stages of trial that the state had failed. In my mind, the evidence against Peterson was overwhelming. But here’s the reality: I don’t have to like it. Whether or not you agree with Falconer’s assessment of the case, in his mind the state had failed. As a prosecutor, you never get a second chance in court, but Falconer gave the state that chance. Even though his medicine tasted bad going down, he opened their eyes to the perceived holes in their case. The state’s duty is to convince the jury beyond a reasonable doubt, and whether Falconer was right or wrong, the state’s duty was to convince him as well. I was shocked by his revelations, but I know I learned a lot about a juror’s thinking, seeing the case through his eyes.

In the end, Delucchi denied the motion, and the case went on. The O B J E C T I O N !

4 7

reality is that Falconer did wind up being incredibly pro-defense, even stating point-blank, “There’s no way you could possibly convict him.” I know that because I interviewed him on air myself. Since that time, he has visited me at the Court TV truck when I was in Redwood City covering the case. One time he even brought his girlfriend—and guess what? She didn’t kick the crap out of me.

S T A R G A Z I N G

Jurors throughout history have
been swayed by their own prejudices, their likes and dislikes, their instinctive perceptions of a defendant, of the prosecutor, or even of a particular witness. People might not have had a voracious news media to deal with over two hundred years ago when the jury system was first created, but many of the same societal problems existed then as exist now. They have simply grown to twenty-first-century proportions.

In today’s high-profile trials, the “public” now encompasses not only the whole country but the entire world. Information is communicated instantly around the globe via satellite. Our global village has a huge appetite for and an endless curiosity about celebrities, an appetite that can be satisfied any time, day or night, simply by clicking on the television. Every aspect of these revered stars’ lives is available to us 24/7, including where they have their hair highlighted, what car they drive, where they shop, even where and with whom they had dinner the night before.

The “starstruck juror” is nothing new, and celebrity trials certainly aren’t a new phenomenon either. As long as there has been a jury system, every village and city has always had its own “celebrities”—the wealthiest person in town, the mayor’s wife, the high-school quarterback, the homecoming queen. There have always been those people, who for whatever reason (largely because we think these individuals have “perfect” lives) fascinate other people. Prosecutors have always 4 8

N A N C Y G R A C E