Some Jurors in Sensational Cases Want to Be Media Stars

 Without mentioning names, the foreperson in a grand jury probe is being criticized by some pundits for giving interviews on national media about the experience.  Without discussing deliberations or naming those who may be indicted, this is apparently not illegal.  But is it a good idea?  Example:  naming witnesses.  Generally at the state level (my experience in Minnesota) what took place during the grand jury's investigation is required to be confidential.  It is demeaning to the sanctity of the grand jury process for any grand juror to be hinting at what may result as to indictments.  It also raises the specter of jurors revealing juror misconduct which may put an entire trial at risk of a mistrial or verdict being annulled.  We have seen it in the past: the petit jury reaches a verdict and within days some or all appear on the major networks for interviews.  Many jurors do not want to serve, while others desperately want to serve and have their 15 minutes of fame (as foreseen by Andy Warhol.)

According to Barbara McQuade, law school professor and former federal prosecutor, Georgia state law concerning grand juror disclosures is "somewhat more lax" than Rule 6(e) of the Federal Rules of Criminal Procedure.  (See her excellent opinion piece on MSNBC website, 2-23-23)

Update: The presiding judge has made comments that he is concerned ("problematic") about the juror's press tour but it is not illegal so long as she, and other jurors, avoid discussing the jury's deliberations.  This grand jury cannot issue indictments.

Jurors Don't Forfeit Constitutional Rights at Courtroom Door

 I have written before that jurors accused of misconduct do not forfeit their constitutional rights at the courtroom door.  Some stories in past have made no mention of court-appointed counsel for a juror prior to judge questioning them about alleged violations of the court's instructions as to social media and outside research during the trial.  The juror should be advised on their 5th amendment right against self-incrimination.  Judges cannot will-nilly seize a juror's electronic device and conduct a forensic examination, nor can they allow lawyers in the case to do so.  The best route always is to pause, act cautiously, and refer the matter to law enforcement, even if a brief adjournment of the trial is necessary.  Also consult the attorney assigned to the judicial branch.

Discharging a Juror During Deliberations Is a Delicate Matter

 The purpose of voir dire is not to select the best jury but rather to uncover jurors that may be unwilling or unable to perform their duties, ie. "problem" jurors.  However, they may, unfortunately, not be discovered until deliberations.  Only then may a juror be discovered to be unwilling to deliberate impartially and follow the court's instructions.  This is a delicate inquiry by the court as the judge may not "interfere with the integrity of deliberations, which could result in a mistrial."  Under the Federal Rules the court must find "good cause", however it is not defined.

In U.S. v. Kemp, 500 F.3d 257 (3d Cir. 2007) on 2 separate occasions the judge interviewed each juror individually.  The case provides a good illustration of the types of questions that may be appropriate so as not to interfere with the integrity of deliberations:

1.  Are you personally experiencing any problems with how deliberations are proceeding without telling us anything about the votes as to guilt or innocence? If yes, describe the problem.

2. Are all of the jurors discussing the evidence or lack of evidence?

3.  Are all of the jurors following the court's instruction on the law?

4.  Are any jurors refusing to deliberate?

5.  Is there a juror who is refusing to discuss the evidence or lack of evidence?

6.  Is there a juror who is refusing to follow the instructions on the law?

In Kemp the Third Circuit held that courts may only excuse a juror when there is "no reasonable possibility that the allegations of misconduct stem from the juror's views of the evidence." (at p. 304)

(Drawn from "Excusing Jurors During Deliberations: Determining 'Good Cause' by Tracey E. Timlin, ABA copyright 2019)

Stranger Than Fiction: Dr in Rape Trial Disguises Himself to Tamper With Jury

 I learned from almost 20 years as a judge every day something crazy could happen that I'd never seen before.  I came across a 2017 news article describing how in 2016 a NY doctor, while a jury was deliberating charges that he raped a patient, disguised himself and "entered a private jury room and taped falsified jury instructions to the tables and doors." (The Patch, Port Washington NY).  Video footage shows him entering the courthouse dressed in a leather jacket and baseball cap, but leaving shortly thereafter in a suit and using a walker.  He was sentenced to 1-3 years in prison for third degree burglary and first degree attempted jury tampering. (Article also in NY Post)