Two interesting cases came down out of the Appellate Court recently, both about the fairly mundane, and usually unsurprising act of polling the jury.
A jury poll is taken after the jury has read their verdict. If the defendant would like they can ask that each juror be “polled” and asked whether their verdict is a true and accurate reflection of their choice. i.e. are you sure? Are you really, really sure you want to convict this man? In Illinois, this is an absolute right of the defendant, not discretionary. Also, all parties in Illinois may ask for the jury poll.
The two recent cases, People v. Kevin Wheat and People v. Kevin Durant, are at different places in the appellate process, Wheat having been decided, Durant proceeding to the Illinois Supreme Court.
Wheat was about timing and a hasty judge. The district court judge in Wheat apparently didn’t give the defense time to ask for the jury poll to be taken. The case literally came down to a discussion of seconds, as in, how long does a significant glance take from a judge to allow you time to make up your mind. The defendant claimed they got 2 seconds before the judge moved on, the judge (and the state) disagreed. The Court decided that the judge was too flip with this decision and should have allowed the polling of the jury to go forward. As a result, the conviction was overturned, and presumably a new trial is on the way.
The Court said in Wheat, “‘The opportunity to poll jurors is basic to our legal system, which requires unanimity among jurors. The purpose of the poll of a jury is to determine whether the verdict has in fact been freely reached and remains unanimous.”
The judge in Wheat also hurt his case by saying, after the defendant moved for a new trial and noted that he didn’t get to poll the jury, that this particular judge had never seen a jury “flip” on a poll. He is right in that this would be extraordinary event, one that just doesn’t happen all that often, one that is hard to imagine could occur…and then it happened in Durant.
Contrary to the assertions of the district judge in Wheat, Durant is the exception that proves the rule. Durant is about a murder trial in which, after the jury was polled, one of the jurors declared that they did not agree with the verdict of guilty. Judge Vincent Gaughan (the R. Kelly judge) decided, without input from the defense, to send the jury back into deliberations. The next day, they delivered a unanimous guilty verdict.
Now, consider what happened. The jury said Mr. Durant was guilty, obviously with the one woman juror having second thoughts. When given the opportunity, free from the pressures and confines of the jury room to dissent, she does. Then, the judge essentially tells her to get back in there and get it right. How can she not feel enormous pressure to cave now? How can she possibly hold on to her position? That jury wants to go home, she said she agreed with them, then she flip flopped. Can you imagine the reaction when they got back in the jury room?
It is true that a judge may order a jury back into deliberations after a juror has expressed issues with their verdict. However, when a juror completely disavows their verdict, that’s a lot different than expressing some doubt, or reluctance. If a juror says, flat out, that they do not believe that this verdict reflects their actual choice, then the smart move for ALL defense lawyers is to immediately move for a mistrial. No other option should be considered.
For a defense lawyer, this would probably be a once in a lifetime occurrence. It surely isn’t taught in law school, and the poor reactions by most defense lawyers in this case is due to the absolutely flummoxing nature of the event. However, from here forward, it should be clear. Demand a mistrial, protect your record, and force both the judge and the state into a box where they have to defend a non-unanimous verdict.
For further reflection on this, check out the excellent article (quoted in the Durant case), “The Jury Poll and a Dissenting Juror: When a Juror In a Criminal Trial Disavows Their Verdict in Open Court” John Marshall Law Review, 35J. Marshall L. Rev. 45, by Karl Moltzen.