A Jurors right to be heard, preserving the integrity of the process

Cincinnati, OH- October 29, 2014— Juries are designed to give voice and power to ordinary citizens, through engagement in a democratic decision-making process.  This type of participation is the bedrock of our civil society. In order for this form of a deliberative democratic process to work, it is imperative that there are platforms for dissenting views to be expressed.  Oftentimes this platform is not possible in the confines of a jury room, because of differentials in power on a number of fronts.  Power differentials can take on many forms.  According to two white jurors who have spoken out on their experiences on the jury in the criminal trial of Judge Tracie M. Hunter, those power differentials came in the form of race and possibly even politics.

According to Defense Attorney, Clyde Bennett, black jurors attempted to decide on the case based on the facts that they heard during testimony. Alternatively, in a public statement made anonymously on the radio on October 20th, by one of the white jurors for the Hunter trial, when asked about the facts of the case, which enabled the jury to come to their decision, the juror said that the white jury members felt that “Hunters attorney did not prove that Hunter was not guilty”.

Given these statements by the juror, it is important to note that in the U.S. criminal justice system, a defendant is to be presumed innocent unless proven guilty. Additionally, the defense does not have the burden of proof.  Attorney Bennett repeatedly reminded the jury during jury selection and then again during closing arguments, that he and his client was not required to prove anything. Presiding Judge Nadel also reiterated the fact that the prosecution had the burden of proof during the course of the trial.

At the start of the Hunter trial, four potential jurors said that they’d already made up their minds about Hunter’s guilt, based on what they’d seen in the media.  Three of those jurors ended up on the final panel of jurors who were to determine Hunter’s fate.  The statements made by the anonymous juror calls into question, how much their preconceived notions played a part in determining Hunter’s guilt or innocence.  All things considered and heavily weighing this anonymous jurors statements and the reckless disregard of directives by Judge Nadel and Bennett, this calls into question concerns of redress for a juror who might have a differing opinion. In this case, the process of polling of the jury can certainly be seen as the opportunity to address the issue of redress.

Juries are supposed to promote a conception of reason over politics, whereby citizens should have the ability to participate on equal footing to determine the rightness of the application of law, after hearing and criticizing reasons.  Jury polling is necessary when the deliberation process breaks down.

The objective of a jury trial is to form a body of ones peers, which can decipher between varying ideologies to determine whether an act is criminal or not.  A forum must exist to mitigate differences in power and to provide for the protection of the minority opinion.  The drafters of the U.S. Constitution saw this right so fundamental to our rights as American citizens that the right to a jury trial was written into our constitution. The right to dissent is a right afforded to all citizens through the jury process of polling. Polling after the reading of a verdict provides a safe space for individuals to express their continual dissent without the pressure of jurors who don’t share their opinion.

This is what Attorney Bennett says happened in the Hunter trial.  The three jurors that had a dissenting opinion agreed that they would seek redress during open polling, after the verdict was read. Attorney Bennett asserts that the perception that he received surrounding black jurors explanations about why they felt a not guilty verdict was warranted in this case was predicated upon facts that they felt white jurors were not willing to consider.  Bennett further explained that black jurors felt pressured and even threatened in some respects to agree on the decisions of jurors who in their opinion wanted to convict, despite evidence that Hunter was not guilty of any of the crimes for which she was alleged to have committed.

Iris Marion Young, in her article entitled Communication and the Other: Beyond Deliberative Democracy says, that “in many formal situations the better-educated white middle-class people, often act as though they have a right to speak and that their words carry authority, whereas those of other groups often feel intimidated by the argument requirements and the formality and rules of parliamentary procedure, so they do not speak, or speak only in a way that those in charge find “disruptive”.  This dynamic often causes less privileged individuals to feel put down or frustrated. 

In the case of the two jurors that expressed disagreement in the form of affidavits in this case, they did not lack education, and decided that rather than continuing the process of heated deliberations, they would seek redress through the polling process.  However, in ignoring the rules of criminal procedure, Judge Nadel effectively eliminated their attempt at redress by not polling the jury in open court after the verdict was read. 

In the absence of any chance of agreement during jury deliberations, it would logically follow that only after the reading of the verdict aloud in open court would there seemingly be an opportune time for a juror to express their disagreement.  Prior to that point, the presiding judge has the option of sending jurors back to the deliberation room.  In situations where a juror may feel as though they aren’t being heard or even being bullied they may seek to avoid this form of badgering by agreeing to a verdict for the sake of averting the process of being continually subjected to high-pressure tactics of fellow jurors.

From public statements by the anonymous juror who served on the panel for Hunter trial, it has become obvious that the vote was divided among racial lines and that things were rather heated and confrontational in the jury room.  She admitted that she personally had a heated exchange with one of the black jurors.  Several Hunter supporters, who awaited the completion of jury deliberations in the hallway of the courthouse, say they personally witnessed a young black juror crying outside the jury room.

In an article detailing the significant problem of jury bullying, Diana Sholley, in the Inland Valley Daily Bulletin writes, “Bullies — of all ages — can be scary, intimidating, mean and down right dangerous, but there seems to be a place where it’s “OK” or at least tolerated: the jury room”. There are numerous stories reported of jury room bullying where jurors have admitted that after being bullied in the jury room, despite their difference of opinion, they voted guilty to avoid continued berating by fellow jurors. While conflict among deliberating juries is to be expected, these interactions are still unpleasant, and there is a clear line between conflict and bullying. In 2012, a federal judge in Nashville, Tennessee dismissed a jury foreman when incidents of bullying were reported.

Although jury badgering is commonplace, for two jurors to feel so passionate that they would want to come forward and even sign affidavits to say that the decision to convict was not their true decision, and that they both planned to seek redress through polling is evidentiary enough that the court erred significantly in not polling this particular jury.

Protecting the right to jury polling is fundamental to American democracy, and in ensuring that innocent people don’t go to jail based upon power differentials.  Trial by jury represents a dream of an equal society. The members of our jury could easily be arranged along vertical axes of power relative to the educated versus the uneducated, male versus female, Democrat versus Republican. As jurors, these hierarchies must be leveled. The unanimity requirement means that a single dissent can destroy a verdict. It demands that no voice be glossed over, since every juror holds a final stake in the decision. This decision marks a moment when our vertically arranged society can become – if only for a moment – horizontal. Jurors must feel safe that their opinions are going to matter. The integrity of the process must be protected for all jurors.  This is why Judge Nadel should rightfully grant a new trial based on juror dissent in the Hunter case.


Vanessa Enoch, Ph.D. Student

Union Institute & University

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