Michael Hawkins, contributor to/author of Spontaneous Arising tells the story of his jury service in a Federal Drug case. It’s clear from the title of his post (Pure Democracy and the Moral Bankruptcy of the War On Drugs) that the federal prosecutors missed a golden opportunity to use a preemptory strike on him, but this case doesn’t turn on the juror’s individual views about decriminalization, or any other political views.

Instead, it turns out that the Government has a really weak case against the defendant. 

Sure, they trot out the usual suspects: mostly co-defendants who had plead already, discussing the various intricacies of their multiple prior inconsistent statements, and of course, the officers and investigators from the Task Force, who, according to our fearless juror, placed the defendant’s vehicle but not the defendant at the scene of some important meeting during the conspiracy.

For me, here’s where it gets really interesting.

The judge allowed the jurors to submit questions to the lawyers, and then more directly after that. The juror submitted these questions:

Officer McNiven and Sgt. Goldberger have gone into great detail around the surveillance of December 8, 2004. Was the defendant at any time positively identified as either a passenger or the driver of the blue Honda Passport?

If not, how did the authorities determine that the defendant was present on that day?

The response:

Goldberger, the lead investigator, was still on the stand, and to his credit, he tried his best to keep up the charade.

He spent two full minutes explaining how it was dark, how his men did not want to blow their cover by going into the liquor store, how the investigation was just getting started… then he wanted to read the question for himself. The judge handed it to him, and he held it for probably 30 seconds before answering the second half.

"Well," he said, "we never got a positive ID on the defendant, but we did see three men get out of the car at the trailer park — two Hispanic, one white. The Hispanic men matched the height and build of the defendant."

At that very moment, just into day three, you could see the wind go out of the prosecution’s sails. The entire jury had moved up to the edge of its chairs in anticipation of Goldberger’s answer, and I watched the jury slide back into its chairs, shaking its heads and clicking its pens.

I can’t be sure, but from what several of the jurors told me later, that’s the precise moment when everyone made up their mind: not guilty, not guilty, not guilty, not guilty, not guilty (five charges: 1) possession of cocaine; 2) possession of methamphetamine; 3) distribution of cocaine; 4) distribution of methamphetamine; 5) conspiracy to distribute both cocaine and methamphetamine).

Obviously, I think it’s laudable that the jury reached the correct decision in this case. And Michael justifies the title of the post with some good comments about the War on Drugs in general at the end of his post.

But…there are things about this that drive me batty, namely: the jurors posing questions that get asked of the witnesses.

My feeling is that the jury should have reached the Not guilty verdict without asking the question in the first place. The fact that the question had not been adequately addressed by the State, either in direct or cross examination of witnesses means that there was already no evidence tying the presence of the defendant to the vehicle, and to whatever was going on.

That, in and of itself, means that the State has failed to prove their case.

Now, in this particular case, it took a thoughtful juror asking the question, and the rest of the jury hearing the (non)answer of the witness, to make it perfectly clear that the Government’s case was so weak.

As a side note, I see this sort of thing more often coming from judges in pretrial litigation, or for instance, in an ALR license revocation hearing arising out of a criminal DWI charge.

Judges very often will ask the witness, usually a police officer, a question, and invariably it cuts right to the heart of whatever is missing in the State’s case (whether it’s the County Attorney, District Attorney, DPS, whoever is representing the State in the hearing).

If I stretch my brain, I could probably remember some hearings where the question asked by the judge, as opposed to ones asked by the litigants involved, helped the defense. But I’d conservatively estimate that 9 out of 10 times, the answer helps the State. The most common example would be in a pretrial motion to suppress, where the Defense has established that there was no prior warrant for an arrest, and the ‘reasonable suspicion to detain’ is fuzzy at best.  Suddenly the judge asks the police officer for more detail about the stop, and then it appears.

Again, I see this is a scenario where the State has failed to meet their burden, and if the prosecutor doesn’t fix it by themselves on direct or cross, the win should go to the defense.

Can any criminal defense lawyers out there think of realistic juror questions that could be asked that aren’t some variation of: I have a doubt about (fill-in-the-blank element of the offense)…could you clear that part up for me?

Or, can anyone reasonably argue against the proposition that in the jury experience described above that the jurors should have come to Not Guilty verdict based on the lack of evidence in the first place? 

[HatTip: Drug WarRant]