I start jury selection in a criminal case next week and I am worried. My client is a former New Haven homicide detective accused of stealing money intended for confidential informants in ongoing murder investigations. We are prepared to defend against those allegations. What I worry about is whether the jury will follow the law.
A piece in this week's New York Times fanned my anxiety into full-blown paranoia. After eight weeks of trial, United States District Judge William J. Zloch declared a mistrial in criminal case when he discovered that jurors had been doing research on the case on the Internet. Apparently, jurors across this great land of ours have trouble keeping their fingers off the keyboard: Google searchs, messages on Facebook, and Twittering are disrputing trials everywhere.
My client has pleaded not guilty and has demanded a right to a jury trial. As I say to juries, the government has made a mistake here, and we need your help in sorting it out. As we have awaited trial, cases my client investigated have been called to trial. I have refused to permit my client to testify in these cases. He has asserted his Fifth Amendment right to remain silent in each of these cases, and that has been reported in the press. It is, after all, big news when a cop refuses to testify about an investigation because it might tend to incriminate him.
As luck would have it, several trials are taking place in New Haven in the next couple of weeks. My client is a defendant in one. A man accused of murder is a defendant in another. And, you guessed it, my client was the lead investigator in the murder case. I have already been approached by the prosecutor in the murder case about my client's intention. The answer is simple: He will not testify. I suspect that will once again make the front page of the local paper.
When a witness pleads the Fifth Amendment in a criminal case it is typically done outside the presence of the jury. The reason for this is that a person's assertion of the right to remain silent must not, as a matter of law, be used against them in a criminal case. (The rules are different on the civil side.) We worry that jurors will get this wrong. Pop culture supports this concern: Folks "take the Fifth" in all sorts of colloquial settings.
Will jurors in my client's case read the newspaper next week or the following week and see that my client is refusing to testify in a murder case? I am willing to bet on it. And I am willing to bet that one or more of them will also Google his name. I will never have a chance to challenge the perceptions jurors form from this material. A fair trial is at risk
This conduct violates the law. Jurors are instructed not to do their own research on a case. They are told not to discuss it, even among themselves, until the case ends and they are told to deliberate. The law operates under a presumption that a properly instructed jury understands the law. That is more like something we assume, and we all know what assuming something makes of 'u" and "me."
I wonder whether it is time to renew the practice of sequestering jurors during trial. Isolate them in a hotel room without Internet connections. Deprive them of cell phones. Keep them safe not just from the influence of others, but from the almost irresistable impulse we electronically addicted sorts have to instant information.
Impractical you say? Too expensive? Too great an imposition on a juror's life? I am not buying these lines. A criminal trial pits the state against an individual fighting for his freedom. Trial is a public operating room where the state plays surgeon in an effort to excise a source of disease from the body politic. We have too many pathogens in the operating room just now; too many sources of opportunistic infection.
Sequestration would not only be a good way of assuring the integrity of the trial process, it would also most likely save the state money in the end. The practice would force the state to be more selective in deciding when and if to charge and try a criminal case. Right now there is little economic incentive for prosecutors to be wise: Their costs are fixed, the prisons are always open, and lawmakers belch out crimes year by year. Making trial more costly might deter lawmakers from criminalizing everything.
I'm worried about next week. The state's evidence is only part of what I fear. Even more dreadful is the silent speculation of jurors about facts I will never get to confront and explain.