The news is full of reports today about the hung jury in the Blagojevich trial — they found the governor guilty of a single count of lying to federal agents something like five years ago, and hung 11-1 in favor of conviction on the remaining counts. All kinds of pontificators are pontificating about why this happened. Scott Turow, for example, says it’s because corporations have too much freedom to contribute to political campaigns, so bribery becomes perceived as the norm.
That’s a bit of a stretch. It’s hardly likely that the jurors were considering such things as the corrupting consequences of the extension of First Amendment protections to corporate campaign contributions. Like most commentors, Turow seems to be slapping his own politics on top of a more prosaic observation — that to some, the governor’s actions just don’t seem criminal. This observation, without all the other nonsense attached to it, was actually quite astute. According to the jury foreman, the holdout appears to have thought Blagojevich’s actions were “just talk,” and nothing criminal.
From what we’ve seen in the newspapers, that’s not an insane perspective here. It sure reads as if Blagojevich was just thinking out loud sometimes, or bouncing stupid ideas off people that never got carried out. And the forman says the other jurors respected the holdout’s right to her position here. It doesn’t seem like an unprincipled, irrational vote.
But other reports highlight a different take on the holdout’s position. Another juror is on record saying that the holdout wanted more clear-cut evidence, tantamount to a videotape of a murder, before she’d ever have convicted. And if, as is likely, the holdout was Jo Ann Chiakulas, then she had already made up her mind weeks beforehand that the governor was innocent.
Both takes ring true to us, and are not mutually exclusive. It seems probable that the holdout had decided weeks ago, after the close of the prosecution’s case, that the government hadn’t given her that whatever-it-is she would have needed to vote to convict. Jurors vote to acquit all the time, in even the most solid rock-crusher cases, and the most common reason given is that “there just wasn’t enough evidence,” or they “needed more.”
Jurors can never articulate what “more” they would have needed. That’s because this is humanspeak for “you could never have convinced me to convict.” It’s a rationalization of a gut feeling.
It can happen for all kinds of reasons — perhaps the criminal statute is seen as unjust, perhaps the defendant is sympathetic, perhaps the juror just doesn’t want to see another young black man go to prison, perhaps the alleged conduct is just not seen as criminal regardless of the law. All of these are forms of jury nullification.
When a juror says “there wasn’t enough,” in a seemingly strong case, that’s code for jury nullification.
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As we wrote last year, this seems to be happening more and more lately. There has been a massive rise in the number of hung juries in recent years, leading some to call for majority-vote verdicts instead of requiring unanimity. That’s not the solution. The solution is to realize why you get holdouts, and try to adapt your jury selection accordingly. The burden falls to the prosecutors to try to keep them off — especially in stronger cases where the defense might actively desire a holdout (as we once heard Brendan Sullivan say, “the government needs all twelve… I only need one”). That’s not always true though — once when we were a young prosecutor we won a case because of a holdout for conviction (who everyone else thought we were nuts not to have excluded) who wound up doing a 12 Angry Men in reverse and convincing the other 11 to convict over several days of deliberations.
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So what does this mean for the inevitable retrial? Does it signify that Blagojevich is probably going to get convicted the second time around, because the odds of another holdout are slim to none? Should he cut his losses and take a plea, hoping for more lenity than he’d get after a second trial? Not at all.
Each jury is separate and unique, just like a coin toss. Just because the last toss of the coin was heads, that doesn’t change the 50-50 odds of the next toss. You never know what you’re going to get with a jury. We have zero faith in jury consultants and those who think they can pick ‘em — all jury prognostication is bunk. You never know what you got until it’s all over. You can try to keep out the most obvious potential difficult personalities, you can try to identify those who are likely to nullify, but you can never tell with most people. People are just too complex. Apart from the most obvious, you’ll never know, and only a fool believes he can.
So the odds of success next time around are just as good as they were this time around. Presumably, both sides are going to try to make their cases better, but who knows how well they can?
Who knows, maybe next time it’ll be 11-1 to acquit? Anything can happen.