The Long Way To Unanimity

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The California Court of Appeals opinion in People v. Carrasco (PDF) on Friday didn't quote this part, but it's easy to imagine. The jury has just come back guilty on an attempted arson charge. A California defendant can be convicted only by a unanimous jury, so the judge polls the jurors:

The Court: "Juror No. 2, is this your verdict?"

Juror No. 2: [no response]

The Court (maybe looking up sharply, perhaps a little louder): "Juror No. 2, is this your verdict?"

Juror No. 2: [after a pause] "Yes." And she starts to cry.

Cross-examination by the Court:

Not the hearty affirmation the judge was hoping for. So he sent the other jurors out of the courtroom and, before accepting the verdict, talked things over with Juror No. 2. This part of the transcript is in the opinion, and you have to read all of it to understand just how much work it took to bring this juror into the fold:

“THE COURT: . . . [¶] Juror No. 2, you hesitated answering, and you teared up; and it appears that when you did give an answer, ‘yes,’ it was in a soft voice and you appear to be obviously emotionally distraught. [¶] Is the verdict that you rendered by saying yes to guilt as to counts 2, 3 and 4, is that your verdict? Is that your decision?

“JUROR NO. 2: No.

“THE COURT: All right. And it took Juror No. 2 some time to answer the question. [¶] Did you decide to vote the way you did because of the fact that you felt compelled because the other jurors were voting that way?

“JUROR NO. 2: Yes.

“THE COURT: Okay. So that is not your true intent to vote guilty for — I’m not going to designate which count, but your guilty verdict was because you felt compelled or pressured because the other jurors were voting that way; is that correct?

“JUROR NO. 2: (No response.)

“THE COURT: Go ahead and explain to me that — nobody will know about, the other jurors won’t know about our discussion here — but I want to know what went on in the jury room that made you come up with a guilty verdict when you’re now indicating that that was not really your desire or intent.

“JUROR NO. 2: I had reasonable doubt.

Stop there, and there's no verdict. But it didn't stop there.

“THE COURT: Okay, and in spite of the reasonable doubt, you came back with a verdict of guilty. [¶] Tell me what went on in the jury room, basically as to why you changed that reasonable doubt to a verdict of guilty.

“JUROR NO. 2: I guess, you know, when they were saying it was a felony, I wasn’t aware they were felony charges. That’s what made me start crying.

“THE COURT: Well, the question is not whether or not they are felony charges or any other charge; that’s not an issue. [¶] The issue is whether or not, based upon the evidence and everything you heard, you felt the defendant was guilty, irrespective of felony or what. [¶] The purpose of a jury is to decide the issue of guilt based upon the evidence and based upon the standard of reasonable doubt.

“JUROR NO. 2: Uh-huh.

“THE COURT: So I want to know — your vote was for guilty.

“JUROR NO. 2: Yes.

“THE COURT: And now are you having second thoughts because you gleaned that the charges are a felony?

“JUROR NO. 2: Yes.

“[PROSECUTOR]: Well, I believe she has indicated that her findings were for guilt and —

“[DEFENSE COUNSEL]: Your Honor, I have to confess I’ve never had this situation before.

“THE COURT: I don’t think any of us have had this, and I want to be satisfied. [¶] First of all, this is your own personal decision; nobody in the jury room during deliberations put any pressure on you?

“JUROR NO. 2: No.

“THE COURT: That answer is no?

“JUROR NO. 2: No.

“THE COURT: Okay, so the reason why you are now somewhat equivocating on your vote is because you believe — or you have reason to believe that the charges constitute a felony; is that right?

“JUROR NO. 2: Yes.

“THE COURT: But otherwise, based upon everything that you heard, all the evidence and the instructions the court gave you on the law, the argument of the attorneys, you were satisfied the defendant was guilty beyond a reasonable doubt? Going that far?

“JUROR NO. 2: Yes.

“[PROSECUTOR]: And that was the only thing she was asked to do. [¶] . . . [¶]

“[DEFENSE COUNSEL]: Your honor, are we allowed to inquire at all?

“THE COURT: I don’t think so at this point in time, Ms. Williams [defense counsel]. . . .

That’s something we’ll have to explore later, I think, if that should arise. [¶] But just so that I have an understanding, because this may or may not lead to something else that doesn’t per se involve you, your concern now is and your hesitation now is that the defendant may have been charged with felonies?

“JUROR NO. 2: I wasn’t aware of that. [¶] . . . [¶]

“THE COURT: Well, don’t forget when I instructed the jury, I instructed the jury that they are not to consider the issue of punishment or penalty; that issue is solely for the court, depending upon many factors, not only the nature of the crime, but various other factors.

So that’s something you’re not to be concerned with. [¶] I want to be satisfied that your vote for guilt as to count 2, the resisting arrest, if you will, or detention by Officer Macias; count 3, the same charge as to another officer; count 4, the attempted arson, if you will, that you were satisfied that based upon the evidence you heard, again, and the instructions on the law that I gave you, the arguments of the attorneys, you were satisfied that those charges have been proved beyond a reasonable doubt; is that correct?

“JUROR NO. 2: Yes.”

Really?

Was that a real "yes," even though the first one wasn't? Or was Juror No. 2 trying to say that Carrasco sounded a lot more like a mentally ill man on a self-destructive mission than like a real arsonist? (The arson incident started when Carrasco walked into a Los Angeles County sheriff's station and asked the first deputy he saw, "Do you have change, bitch?" Eventually Carrasco challenged deputies to "Go ahead, bitch, fucking shoot me," and was subdued only by at least five deputies and pepper spray. Then they found gasoline and rags in his duffel bag.)

Carrasco's lawyer hadn't objected to the judicial cross-examination, and he didn't argue on appeal that the verdict wasn't unanimous. Instead, the argument was that the judge should have granted defense counsel's request to contact Juror No. 2. The appellate court upheld the trial judge 2-1, saying there was "no showing" of juror misconduct, and that defense counsel should have "proposed an additional
line of inquiry" to the trial judge, even though she'd been shut down when she asked to inquire herself.

Only in the dissent do you find the words you're looking for here: "I think that at this point the juror had made it adequately clear that she did not intend to find the defendant guilty." Defense counsel didn't need to object, said the dissenting judge; although no California case has yet dealt with the issue, "there is every indication, in my opinion, that a less than unanimous verdict is reversible error per se."

Notes:

1. The majority opinion does offer a little help to future defense counsel in this position, in a long Footnote 4: "When Juror No. 2 then stated, 'I had reasonable doubt,' better practice might have been to send the jury back to the jury room for further deliberations."

2. Should this opinion somehow leave you in need of further convincing to poll the jury on every guilty verdict, every time, see Mark Bennett, here among lots of other places.