Even with a Judge on the Jury, the Jury can Hang

Unusual story from the Columbus Dispatch this morning about a hung jury in the trial of an Ohio motorist in the the death of cyclist--turns out that the jury that could not reach a verdict included a state court judge.  This is from reporter John Futty's account:

Judge Glaeden

"Courtroom observers were surprised when a Franklin County judge wound up as a juror in the case of a man accused of killing a bicyclist in Hilliard.  So was the judge, Carrie E. Glaeden.

'No, not at all,' she said when asked if she expected to be seated during the jury-selection process in late March. 'By and large, the thinking is you don't want someone with a legal background on a jury. You don't want someone with outside knowledge.'

But neither the prosecution nor the defense used a challenge to excuse her, and she became the first alternate for the Common Pleas jury. As the trial stretched into a second week, one of the jurors was excused because of a scheduling conflict, and Glaeden took her seat.


The jury deliberated for nearly 12 hours after hearing seven days of testimony but was unable to reach a verdict on either count against Edward Scott Miller, charged with causing the death of bicyclist Steven Barbour by driving recklessly and while impaired by alcohol.

Glaeden, a Municipal Court judge for seven years, wouldn't discuss how she voted or why jurors became deadlocked because the case is to be retried in June. But she said she declined a suggestion that she serve as forewoman and tried to blend in with the rest of the jury.  'I made a good effort, and I think I succeeded in not taking more of a role than being an equal member of the 12,' she said. 'I didn't try to assert myself. ... There were 11 other strong, independent jurors.'

Miller's attorney, D. Timothy Huey, said a major concern about judges sitting on juries is that their opinion will be seen by other jurors as carrying more weight.  'Hypothetically, you want every juror's vote to count equally,' he said.  For Miller's trial, a particularly emotional case, Huey said it made sense to include on the jury a judge who 'is able to set aside the natural sympathies that people might have toward one side or the other. A judge is better able to be a true finder of fact, rather than be swayed by emotion.'

At least two other sitting judges in Franklin County have served on juries during their time on the bench. Domestic Relations Judge James W. Mason served on a Common Pleas jury in a rape and kidnapping case in 2000. Municipal Judge H. William Pollitt Jr. sat on a Common Pleas jury in a burglary case in 2001.  In both cases, the juries acquitted the defendant.  Like Glaeden, both judges were surprised to be seated on a jury.

'I thought either the prosecution or the defense would give me the boot,' Pollitt said.

Mason said he turned down an offer to serve as foreman to avoid the perception that he 'exerted undue influence' over his fellow jurors. But he conceded that he 'gently led the jury to the right conclusion' in returning not-guilty verdicts for a man accused of raping a live-in girlfriend.

Pollitt said he also refused to serve as foreman.  'I didn't want to run the show,' he said. 'But frankly, you know the other jurors are going to defer to you. A lot of them are going to follow your lead.'  Pollitt speculated that, in most cases, the defense attorney would be more reluctant than the prosecutor to place a judge on a jury in a criminal case.

But defense attorney Lou Friscoe, whose client was acquitted by the jury that included Mason, said 'it depends on the judge and the facts.'  He said the rape case essentially was a domestic dispute about sex between two people who lived together, so he thought it made sense to include a domestic-relations judge on the jury.  As a member of the Ohio House, Mason served as chairman of the Judiciary Committee and sponsored legislation that in 1998 eliminated an automatic exemption from jury duty for public officials, including judges.

'I've practiced law as a lawyer, taught law at Capital University, made law as a legislator and enforced laws as a judge,'  Mason said. 'I had done everything but serve on a jury, and I assumed I never would.'
Glaeden said she has served as 'a jury of one' on more than 250 cases in her courtroom for minor-misdemeanor offenses or when defendants waived their right to a jury.  'When I'm a lone juror, I have to make all the decisions myself,'  she said. While serving on the Miller jury, 'it was nice to have 11 other people to confer with.'"
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A few years ago, the BSL (Blond Super Lawyer) a prominent OurState Labor and Employment (defense)counsel was seated on a high profile case involving allegations of breach of contract and counterclaims of corruption, forgery and embezzlement by the former director of the metropolitan housing authority.  We were surprised when she was not excused from this panel.  Ultimately she was selected by her fellow jurors as the foreperson.  That jury awarded hundreds of thousands of dollars on the counterclaim against the plaintiff, the former director of metropolitan housing.  Evidence and testimony offered at the trial resulted in criminal charges against the plaintiff and one of her witnesses, a fake hand-writing expert.  The hand-writing expert killed himself in the wake of his indictment.

God Bless the Jury!

In my experience, law enforcement are rarely wrong in the eyes of the Court.  This was evident to me years ago when as a very young Bad Lawyer I sat in a municipal court and watched a gentleman successfully defend himself on a traffic ticket only to have the magistrate adjudge him guilty on the "incredible" testimony of the cop.  As I've pointed out on Bad Lawyer in the past I also have known Judges independent enough to stand up to the local police, but let's be honest, there is a lot of pressure on Judges to back up local law enforcement.   So absent a pretty strong, independent-minded judge, it is always the citizen's fault if the cops choose to give a citation.

So this account from the Kokomo (Indiana) Tribune, made me smile:

Kokomo police said Addie Etherington was completely at fault when she collided with a police squad car in 2009.  A Howard County jury, however, wasn’t buying the official version.  It decided Etherington didn’t commit either of two alleged traffic citations, rejecting police testimony Etherington failed to yield and made an unsafe lane change.

The decision could end up costing the city, which has already received notice from Etherington that she may sue over the Oct. 20, 2009, incident. Etherington collided with a brand new Dodge Charger, driven by KPD Officer Adam Martin, at the intersection of Monroe and Washington streets. Police said Martin and other officers were pursuing individuals wanted on felony charges when the accident occurred.  According to witness testimony, Etherington was stopped at the intersection, ready to turn west onto Monroe, when Martin’s cruiser came up behind her and attempted to pass her on the left. Witnesses disagreed as to whether Martin was using his siren as he came up on Etherington.

She turned into the police car, witnesses said.

Howard Superior Court 3 Judge Doug Tate, who presided over the trial, said that much was evident from the damage to Martin’s right-front quarter panel and Etherington’s left-front quarter panel.  Tate said Etherington may have thought she was clear to turn when she saw another police cruiser go by on Monroe Street in front of her.  'I think if she had heard or seen the cop behind her, she would not have turned,' Tate said.  But proving 'failure to yield' required convincing the jury Etherington should have known she was required to yield. Tate said he might have ruled the same way as the jury, if the case had been handled as a bench trial.

'Given all the facts, I can’t say the jury’s decision was the wrong one,' Tate said. 'I also don’t feel the officer was in the wrong, in any way, shape or form.'
The April 16 trial was punctuated by Tate admonishing KPD Major James Calabro from the bench.

A defense attorney saw Calabro and Martin conferring in a courthouse hallway during a break, in apparent violation of a court order separating the witnesses.  'I take full responsibility for what happened. I made a mistake,' Calabro said Friday. 'I meant no disrespect to the court, to Ms. Etherington or to the lawyers involved in the case. It happened and I offer no excuse for my actions.'

The Dodge Charger sustained more than $9,000 in damage, and last year, city officials said the matter would go to litigation as to fault.  They made that statement more than a month after receiving a tort claim notice from Etherington’s attorney, Matt Golitko, blaming the city for the collision.  According to Martin’s police report, which Martin said Calabro contributed to, Etherington complained of a bruise to her face. In the tort claim notice, Golitko said Etherington suffered 'serious injuries.' Kokomo attorney Erik May defended Etherington during the jury trial.

Tate said the jury deliberated for about 15 minutes before issuing a finding of “false” on the traffic citations. 'The reality of it was that we were forced to take it to trial,' Golitko said. 'We requested it be dismissed ... but the state wanted to proceed. I don’t think it’s any lawyer’s desire to go to trial on traffic tickets.'”
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Are you hearing what the Judge is saying--I'm telling you folks, this Cop caused an accident by foolishly trying to pass a driver be going left of center, and the Judge is saying:  the officer didn't do anything wrong!  Are you kidding me.  Notice, Judge Tate says, "[I] might have ruled the same way as the jury." 

Uh, Huh, good thing Mrs. Ethertington opted for a jury trial. 

Good judges, and good cops are a community treasure--but, God bless the jury!

Philadelphia Freedom

Philly.com is reporting that Councilman Jack Kelly lost his defamation lawsuit, the jury returned a verdict late Friday for the gadfly Paul Corbett.  This interesting case, highlighted on Bad Lawyer began with coverage of a Judge A.J. Snite's remakable pique with Corbett's attorney who had the idea that perhaps the jury ought to hear the words of the Pennsylvania and U.S. Constitutions on Free Speech.  Jeff Shields, Chris Brennan and Catherine Lucey at the Philadelphia Inquirer provided comprehensive coverage of the blow by blow.  Here's hoping they are permitted to follow up with a overacrching examination of how this case got to a jury, and juror interviews. 

Let me quote something, that I heard, again, the other night from one of the few really decent courtroom dramas, Anatomy of Murder.  The defense attorneys are waiting on the jury's verdict, and Jimmy Stewart's film associate, Parnell McCarthy (played by Arthur O'Connell) quietly marvels:

"Twelve people go off into a room; twelve different minds, twelve different hearts from twelve different walks of life, twelve sets of eyes, ears, shapes and sizes. And these twelve people are asked to judge another human being as different from them as they are from each other. And in their judgment they must become of one mind--unanimous. It is one of the miracles of Man's disorganized souls that they can do it, and in most instances, do it right well. God bless juries."

Civil juries tend to consist of less than twelve, but the same sentiment applies.  God bless juries.