How I Caused a Mistrial
After two full days of jury selection, we were all in our places this morning. Judge Michael Carter greeted us at 9:25 and introduced the prosecution and defense attorneys for their opening statements; the prosecution was very convincing, but the defense had some points, too.
The incident at stake was an argument between wife and husband on a public street in Pasadena; it became so noisy that a man in a car dealer business across the street came outdoors to watch, just for curiosity. That man was our first witness; he had watched the fight until the husband pushed the wife and she fell backward over a low wall, then he called 911. When the police arrived, they found that the woman had a cut inside her upper lip. She did not want to press charges against her husband, but once the police have seen evidence of domestic abuse, the individual’s preference does not matter: The state of California, not the wife, brought a case against the husband.
Within the first 40 minutes of the trial, there were two occasions when the judge called the attorneys into his office for a “sidebar”. It interested me to observe that the court reporter heard the backstage conversation through her headphones and recorded it the same as she recorded dialogue in the courtroom.
From my seat in the jury box, I could not usually see the surface of the table where the defendant and the attorneys sat, because they blocked my view. When the attorneys left the room, I could see the table clearly. I was startled to see the defendant lift up a sheet of paper that had been folded top to bottom, the long way, and he held the sheet so that I could easily read the words written in large upper case letters: “THREE STRIKES”. He held it the sign just at table height. From his position, the defendant could see that the clerk of the court was occupied and had his head down below the divider that surrounds his desk; the bailiff was behind the defendant and could not see what he was doing; and the reporter was busy with her typing. After a minute, the defendant put the paper down on the table and covered it with other papers.
During the second sidebar, the defendant repeated the display of his paper, and this time he even turned back and briefly looked over his shoulder at his mother, who was seated in the middle of the audience area. Again, the paper was hidden when the judge and attorneys returned.
I was disturbed. The jury in a criminal case is not allowed to know or consider what punishment will result from a guilty verdict. The jury only decides guilt or innocence, not sentencing. If the defendant was found guilty of a third crime, he would be put away for 25 years to life, but we were not allowed to know or consider that fact in our deliberations. I personally oppose the three strikes law as being inflexible, removing sentencing power from the judge, and being too harsh for many circumstances where it is applied. In this case, I think that 25 years in prison for inflicting a cut lip is harsh and extreme.
The defendant clearly wanted us to know what was at stake for him in this trial. I had very mixed feelings. In a third strike situation, I would certainly hope for a verdict of not guilty, and I did not know whether I would bend the evidence in my own mind, or weigh it differently, as a result of knowing the danger to the defendant. Also, I had to consider that by trying to influence the jury, the defendant was committing another crime, one of desperation.
At 10 a.m. I wrote a note to the judge: “During your absence from the courtroom for sidebars, the defendant has displayed a paper on which the words ‘THREE STRIKES’ are clearly visible from the position where I am sitting. Is this an impropriety? Juror #12.” At about 10:25, we were dismissed for a 15 minute break, and on the way out I handed my note to the bailiff to give to the judge.
About 10 minutes later, I was called to go into the courtroom and speak with the judge. The attorneys were present, but the defendant was not. The judge said that he had the defendant’s sign in his possession. He questioned me about how I had come to see it and what significance it had for me. People have different opinions about the three strikes law. Would it cause me to feel inclined to vote one way or the other? I said it would make me more inclined to vote “not guilty”.
After I returned to the jury room, six or eight other jurors were called in one at a time for questioning. At 11:45 we were all called into the courtroom, but not seated in the jury box, and Judge Carter told us that he was forced to declare a mistrial. He thanked us and asked us not to consider that our time had been wasted, because we had gone through the process that must be maintained for the sake of our system.
In the jury room, while we waited for our certificates of service to be typed, we were free to talk about the case for the first time. Some jury members did not know what had happened. Some said that they had never seen the defendant’s sign. One lady said she had seen it the day before. I had to wonder why no one else had reported it. Reporting may not have occurred to them, or they may have decided not to report. I still had mixed feelings as I left the courthouse and walked out into the sunshine.