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In the Jury Box With Paul Butler

Wednesday, May 24, 2000, 3 p.m. EDT
Paul Butler
Paul Butler

Paul Butler is an expert on juries and jury behavior. He will discuss the Shane DeLeon trial, in which jurors traded barbs and nearly came to blows before reaching a verdict. Many jury members expressed frustration with the system that allowed one juror to hijack the process, saying they felt trapped by the individual into convicting on a lesser charge in the 1999 hit-and-run death of American University student Matthew Odell. See the report from today's Post.

Paul Butler is a law professor at George Washington University. A cum laude graduate of both Yale College and Harvard Law School, he clerked for U.S. District Court Judge Mary Johnson in New York, then joined the Washington firm Williams & Connolly. Following private practice, Paul Butler joined the U.S. Department of Justice, where he specialized in public corruption. He joined the George Washington law faculty in 1993 and was awarded tenure in 1997.

Paul Butler teaches and writes in criminal law and race and law. A two-time winner of the Teacher of the Year award, he also writes a monthly column for Legal Times, is a frequent commentator on CNN and National Public Radio and has written articles for publications including The Washington Post, Los Angeles Times and Dallas Morning News.

The transcript of the discussion with Paul Butler follows.

washingtonpost.com: Good afternoon. Hello and welcome to Paul Butler, an expert in jury behavior and a professor at George Washington law school.
Professor Butler, the DeLeon case has raised a lot of eyebrows for what reportedly went on in the jury room. What would have been the best resolution to the situation?

Paul Butler: Hi, it's great to be here and please accept my apologies for being tardy.

There is not a lot that can be done when judges are informed of problems after the fact. We should also be clear on what the problems were. The problem, as I see it, as that the jurors were abusive. The problem is NOT, necessarily, that there was one lone hold out, because that is part of the jury system.

Washington DC: Mr. Butler,

I was one of the jurors on the DeLeon trial. I can say to you firmly and without any doubt that justice was indeed hijacked and held hostage in this case by one individual who used thug-like tactics and threatened violence in order to derail the constitutional process. This jury reached the weak verdict it reached only because of the venomous intimidation and blind recalcitrance of this one juror, an individual who was clearly not even intellectually capable of deliberation, only of intimidation and threats. Clearly, threats of violence have no place in deliberation, yet threats of violence in the end determined the outcome of this trial, and the fate of the defendant. A sad state of affairs. My question to you is: at what point does this kind of thuggery in the jury room point to a mistrial?

Also, more broadly, how can the jury selection process better serve our city by keeping this kind of person out of the system?

A Concerned Citizen

washingtonpost.com: Please note, washingtonpost.com has no way to verify the identity of questioners.

Paul Butler: Dear Concerned Citizen,

There is considerable evidence that, in general, the jury system works very well. The fact that the DeLeon jury was front-page news is evidence that this was an unusual case. So we should be careful not to overstate the problem. I have been a prosecutor in the Superior Court and I was extraordinarily impressed with the diligence with which most jurors approached their work.

Voorheesville, New York: My name is Alison Leonard and Matt Odell was one of my best friends. I was a pallbearer at this funeral and I have followed this case every day since the accident. I have attended hearings over the summer with Kathy, Matt's mom. his sister and his other best friend. We are in awe. Yes, we glad it is finally over, but justice was not served here. Is there any way, due to the circumstances, that is verdict can be overturned? Just how often do juries reach their decisions in this manner?

Paul Butler: Dear Ms. Leonard,

I am very sorry about your loss of Matt. It is very difficult for criminal verdicts to be overturned, and near impossible for them to be overturned in favor of the prosecution. The Bill of Rights prohibits citizens from being tried for the same crime twice. Perhaps you will extract some comfort from knowing that the jurors did not totally absolve the defendant, even though the crime for which he was convicted is relatively minor. And there is still a sentencing phase. Most judges accept letters from interested parties as the most appropriate sentence.

It may make you feel a little better to know that this kind of situation, where jurors threaten each other with violence, is very very rare. Most people, including prosecutors, defense attorneys, and victims rights advocates, have confidence in our jury system.

Washington DC: I must admit that I didn't understand the rationale for trying to convict DeLeon of second-degree murder. The kid put himself in danger by skating on busy Nebraska Avenue at night, and unfortunately he was in the same travel lane as a drunk driver. DeLeon shouldn't have been drunk, but the kid shouldn't have been where he was. It's not as if DeLeon came after him with a knife.

Could you explain what the jury's options were? I understand they had a choice of negligent homicide, involuntary manslaughter, or second-degree murder. What is the difference in the charges, and what was the justification for second-degree murder?

Paul Butler: I haven't looked at the specific law in DC for a while but in general a conviction for second-degree murder requires extreme recklessness - Mr. DeLeon would have had to foreseen a risk that he would hurt someone, and acted in spite of that risk. Involuntary manslaughter and negligent homicide require that the defendant have acted unreasonably - if he acted extremely unreasonably then involuntary manslaughter would seem an appropriate conviction.

Alexandria Va: You're well known for advocating jury nullification--urging African Americans to acquit fellow blacks charged with nonviolent crimes. Won't that just lead to more jury confrontations like the one that terrified the DeLeon jurors?

Paul Butler: I have written law review articles in which I have encouraged jurors to consider nullification for certain victimless, non-violent cases. I have recommended selective nullification in certain cases in which African Americans are the victims of selective arrests and prosecutions. I don't think that nullification will lead to violent confrontations because most jurors are not violent. I think that jurors are capable of considering all their options - including their legal power to nullify - in a calm and deliberate manner. Indeed they do this every day at the Superior Court and other courthouses all over the country.

Washington, DC: I served on a jury for a personal injury trial a few years back in the District. I found myself appalled at some of the jurors' behavior. One man showed up completely wasted every morning and was absent for deliberations. One woman insisted on being foreman, even though myself and others were very much interested in taking up that responsibility. We wanted to have the jurors vote on the issue, but she was being difficult. She was totally incompetent. I understand, not on the same level, but to some degree, what the jurors in this case were struggling with. My question is, is what could the jurors in the DeLeon case have done to prevent the outcome? Could they have gone to Judge Wynn and complained without risking a mistrial? I am very upset about what happened in this case. Justice was not served.

Paul Butler: The jurors certainly could have, and they should have, complained if it was clear that any juror was not fulfilling his responsibility. If a juror is not present during deliberations, he or she should not vote - that would be grounds for a mistrial. Certainly if a juror is intoxicated he or she should be excused. The jurors in the DeLeon case should have sent a note to the judge if they thought that one juror was not conducting himself professionally. The judge then could conduct an inquiry - but he would have to be careful not to inquire into the actual substance of the deliberation since that is exclusively between the jurors themselves. But the judge can excuse any juror who is not deliberating appropriately.

herndon, va: Mr. Butler: Are there many juries where the "Twelve Angry Men" situation plays out? One strong-willed juror, for good, as in the film, or bad, just as likely, is able to swing all the other, originally dissenting jurors, to his/her point of view?

Paul Butler: There are very very few jurors like that. The social science I've read suggests that sometimes a minority of 3-4 jurors out of twelve can make a difference, but lone hold outs are usually swayed to vote with the majority, not the other way around.

Washington, DC: There have been several cases in the DC area recently involving drivers who claim they thought they hit a deer, a trash bag, anything but a person. Do you think juries will be influenced by the number of these cases and the facts of the case reported by the media?

Paul Butler: Judges instruct jurors to consider each case on its own merit. In cases in which drivers are prosecuted for hitting someone, an obvious defense is that the driver didn't know it was a person who he or she hit. I think that jurors are pretty good at seeing when this is a legitimate excuse and when it is not. Jurors are supposed to determine facts, and they are very capable, even when there are competing, opposing versions of the facts.

Bethesda MD: Mr. Butler,

You did not even attempt to answer the question posed by 'concerned citizen'.

At what point are threats and intimidation in the jury room ground for a mistrial or at a minimum dismissal of the juror in question.

I am not trying to undermine the American jury system that you are so intent on defending. I am more concerned that there were options available in this instance that were not exercised.

Paul Butler: Threats and intimidation are also grounds for dismissal of the juror in question. They might occasionally be grounds for a mistrial, if the judge believes the trial has been so corrupted that justice is not possible. But, again, based on the double jeopardy clause of the Bill of Rights, after the verdict has been rendered, there is virtually nothing the judge can do. The Bill of Rights zealously protects people from being tried for the same crime twice, even when some people believe that another trial would be more in the interests of justice.

Vienna, VA: Mr. Butler,
Can a juror be removed from a jury after deliberation has begun? If so, under what circumstances?

Paul Butler: A juror can be removed for gross misconduct - showing up to deliberations intoxicated would be classic grounds for removal. In most jurisdictions, if only one juror has been removed the jury may continue deliberations, with 11 instead of 12 jurors (the law may differ in jurisdictions that allow fewer than 12 jurors in criminal cases).

Clarksville, Maryland: Is there a statute that would provide for the prosecution of jurors in situations such as this?

Paul Butler: If any juror committed a crime, then he could certainly be prosecuted. In the District, for example, it is against the law to threaten someone with bodily harm. It would be a difficult prosecution, however, because we generally want to encourage respect for the privacy of jury deliberations. The best way to avoid this situation would have been for the jurors to communicate to the judge that there was a problem before they rendered their verdict.

Washington D.C.: When juries split, along what lines do they generally do so? I've been on several juries that split very noticeably along class lines -- rather than along racial lines, as I might have expected.

Paul Butler: It's tough to know what the grounds are when jurors split, because they usually just go home without talking to anyone about the case. It also depends a lot on the jurisdiction but jurors are a microcosm of the community, hopefully. So in communities, like the District, with some race and class stratification, it is not surprising that we see it occasionally in the jury room. What is more surprising is how often we DON'T see it - how in the jury room 12 citizens from different backgrounds come together, and in most cases can agree on a unanimous verdict.

Cleveland, OH: Last year, while still living in DC, I served on a jury for five weeks--triple homicide. The entire experience made me see that the justice system can work, at least in the case I served. There were times during our deliberation, however, of extreme emotion, discord and even outright hostility. It is hard for me to imagine 11 members of a jury changing their original position based on one juror's refusal to discuss the case. Shouldn't this have been a mistrial? In a deliberation like this, is a juror able to approach council, or the judge, to intervene?

Paul Butler: It is so important to remember that, based on what has been reported about the DeLeon case, "what went wrong" was that there were threats of violence among the jurors. It is not necessarily "wrong" when there is a lone hold out (as long as that hold out participates in deliberations). The system requires ALL jurors to agree on a verdict, and if one doesn't, based on the evidence, she should be a hold out. In that case a mistrial is declared, and if the crime is serious enough there is a re-trial (no double jeopardy problem because there has not been a verdict). And jurors should absolutely approach the JUDGE, (not the lawyers), and let him or her know what is going on.

Washington, DC: Professor Butler:

I was in your Criminal Law course (Section 14) last year. I was unable to get into your Race & Racism seminar.

Can you pull any strings?


Paul Butler: Dear Shamik,

Sorry, no! Talk to the Records Office.

Rockville, MD: Mr. Butler,

Wouldn't you agree that our jury system is a complete joke? After watching the interviews of the jurors after the DeLeon trial, I really couldn't believe the people on that jury. Half of the people they interviewed couldn't even speak English properly. How can we give these people power to decide someone's fate when it appears most of them didn't even graduate high school? I think it's time the system was completely re-vamped including paid professional jurors. Your thoughts?

Paul Butler: I think paid professional jurors are a terrible idea. Jurors are supposed to represent the community, and they are supposed to find facts - you don't need a college education or to be able to speak the Queen's English to do either of those. Technically the judge, in sentencing, decides the defendant's fate, if he is convicted.

Interestingly, in New York city, until recently professionals - lawyers, doctors, etc - were excused from jury service. Now they aren't any more and some people think that jury trials there have not been as efficient since! So two sides to that issue.

Newark, NJ: Is there any way for a judge in a case like this (or any other case, for that matter) to vacate the verdict? Generally speaking, at what point short of jury tampering could a judge move to strike a verdict and could the alleged actions of the single juror in this instance fall under the rubric (if indeed personal threats directed at the other jurors were issued)?

Paul Butler: It is extremely unlikely that this verdict will be seen as grounds for a mistrial, or to answer the next question, grounds for reversal upon appeal. The solution the law envisions for this kind of problem is a mistrial, but BEFORE the verdict, not after. When the other 11 jurors voted for conviction for negligent homicide, they implicitly sent the message that everything was okay with their deliberations. When an individual juror returns a verdict, she must think it is the appropriate verdict - otherwise she risks not following her own oath. So the judge in this case, in accepting the verdict, just took the jurors at their word.

Reston VA: Mr. Butler,

I have not served as a juror, but have heard many anecdotes from family members and friends who have served. I have a question about removing jurors. How hard is it to have a juror removed during deliberations? If the account is true about recalcitrance of one juror in the DeLeon trial, why was the judge not alerted, and something done? And why, in your opinion, would all the other jurors allow themselves to be bullied from their stands? Are jurors in general loath to deliberate a long time? What are some the reasons?

Paul Butler: I don't know if, or why, the other jurors were bullied. It is unusual in the jury context for 11 jurors to be bullied by one. I also have no idea why they didn't alert the judge - they should have. It is true that jurors don't enjoy long deliberations but the vast majority take their responsibility very seriously so they will deliberate as long s it takes. When jurors announce that they are hopelessly deadlocked, the judge usually encourages them once or twice to go back and try again. If after several additional tries, they still can't reach a verdict, then the judge declares a mistrial. If the jurors truly could not agree on a verdict, they should have kept coming back and telling the judge that.

Crozet, VA: Good afternoon, Mr. Butler,
I understand there is a move nationally to have juries agree on a verdict with a simple majority instead of unanimously. Do you think the DeLeon trial shows that this would be a beneficial move? Also, I wonder why the judge allowed such, apparently, disrespectful behavior in court. Wasn't this a case of contempt? Thanks.

Paul Butler: I understand why the DeLeon trial seems to make the case for majority verdicts. But again it's an unusual case. I believe in the Bill of Rights which suggests that it is better for guilty to be set free (or punished less) than for the innocent to be wrongly convicted. And the requirement of unanimous verdicts ( which is not a constitutional requirement) protects that value. Most judges do not tolerate disrespectful behavior, on the part of anyone, in court. But the alleged misconduct in this case appears to have occurred out of earshot of the judge.

Silver Spring: It sounds like the jurors frustrated with this lone dissident weren't aware of the options available to them--letting the judge know so s/he could conduct an inquiry. Whose fault is this ignorance?

Paul Butler: It's interesting that jury service is so important and necessary to our criminal justice system, but in general citizens have very little training for how to be good jurors. Maybe this case points up ways that we might work to better instruct jurors about how to fulfill their important responsibility. But again most lawyers and judges have a lot of confidence in the jury system - even the way it works right now.

Arlington: With so many jurors saying after the fact that the verdict really wasn't their verdict, is there any way the prosecution could seek a mistrial and retry the case? Seems to be a travesty that one juror can threaten and intimidate his colleagues into giving up that way.

Paul Butler: The jurors most important statement was in the courtroom, not outside the courtroom on TV. Inside the courtroom they said that this was their verdict, and that is what is most important as far as the law is concerned.

McLean, VA: Are you suggesting that the jurors were at fault for not bringing Teague's behavior to the judge's attention prior to rendering a verdict? Did the jurors know that they were supposed to notify the judge?

Paul Butler: I don't know what the jurors knew, but I think anytime jury deliberations reach the point of threats, it merits the judge's attention. The jurors communicated with the judge on other occasions. I don't think it is that helpful to talk about fault, because, technically, there is no legal problem with this verdict. There is a problem with the way some members of the public, and understandably the victim's family, are taking it. But to the best of my knowledge no legal problems reached the attention of the court until after the trial ended.

washingtonpost.com: Five minutes left with our guest, law professor Paul Butler.

Washington D.C.: Mr. Butler:
Based on the news reports concerning the jury deliberations and the trial, it would appear that many of the jurors felt that Judge Wynn failed to adequately maintain order during the trial. This might have influenced their decision not to report the one juror's intimidation tactics to the judge. Is there any kind of inquiry that can be made into the conduct of this trial after the fact? It seems clear that there should be some kind of investigation.

Paul Butler: The chief judge of the Superior Court can certainly make an inquiry into the way the Associate Judge has conducted a trial. Judges are responsible for maintaining order during trial - our criminal justice system depends upon them exercising this responsibility. If a judge's conduct is unethical or a complete abdication of the judicial role he or she can be disciplined or removed from the bench. But in these cases judges rarely make public comments, so we have only heard one side of the story and we should be careful about making any judgements about the judge based on our lack of information. What we do know is that no one told the judge about the problems inside the jury room.

Chicago: Have you interviewed any of the jurors?
Do you interview jurors frequently?
Without that information, isn't it difficult to
generalize on the motivations of this jury?

Paul Butler: I agree 100% that it is difficult (I would say impossible) to know the motivations of this jury. Since I have not interviewed these jurors I have answered all questions about their motives with the words "I don't know." But you may be interested in the excellent social science research by people, including Tom Musterman, who is quoted in today's Post article about the case, about jury behavior. It is quite informative on the way that many juries operate, so that we can make general, learned observations that advance our understanding of this important component of our justice system.

Somewhere, USA: Would you agree that this is a very
unusual situation-- we should learn from
it but not sensationalize it?

Paul Butler: I agree 100% - those are some of the wisest words I've heard about this case.

Washington: What can a judge do if jurors get out of line? Or is it the judge's role to stay out of the process?

Paul Butler: The judge's role is to stay out of the DELIBERATION, but not out of the process. The judge must do what he or she can to make sure the jurors are fulfilling their responsibility. Because the judge does not participate in the deliberations, she or he must rely on the jurors for information about when this is not the case. When jurors are misbehaving, they can be removed, at any point (before verdict).

Washington, DC: The question about "nullification" seems to betray a racial subtext to this discussion. Do you agree, and if so, what can we do about it?

Paul Butler: I thought the question about nullification was fair. It is interesting though that there haven't been any reports of racial stratification with this jury - more evidence that our jury system in general works very well.

Alexandria, VA: If the jurors returned a verdict that was based on personal expediency rather than the law, can the court or even the Odells hold the jurors accountable for that with legal action? I don't know which is worse, one juror threatening 11, or those 11 throwing justice to the wind to get out of a jury room.

Paul Butler: Jurors are virtually immune from suit based on their service. And again so far as we know there is no grounds for a civil lawsuit against any of the jurors. In the courtroom they affirmed that they had reached their verdict. That's what counts - not what they say on TV.

Crystal City, VA: You keep coming back to juries being a representative cross section of society. My experience is that juries are made up of retirees and/or people who didn't have anything better to do which would motivate them to try to evade serving. Those people are more influenced by daytime talk shows than by reasoned arguments. I expect a book deal is already on the table for this juror. How can you continue to claim that this is the way the system is supposed to work?

Paul Butler: Unfortunately I have time for only two more questions. This has been great and I hope we can continue this conversation another time. My belief that the system works well is based on my own experience as a defense attorney, and prosecutor, and my research as a law professor. I agree that the jury system is only strengthened by the diversity of people who are willing to serve. I think it's great that retirees and others are willing, and I wish that everyone was - including professionals. The argument that you have made against allowing certain people to sit on juries is also an argument that some people have made against certain people voting - at least not without some kind of test or education requirement. I believe in democracy, and I believe in the jury system, and again, in my experience, what happens when 12 people sit in that room is most often inspiring - it makes you proud to be an American.

McLean, VA: You stated earlier a juror can be removed for gross misconduct, and that any threats of violence should be brought to the judge's attention, but can a jury or jury foreman approach a judge with nothing more than "this juror is intractable and refuses to deliberate?" What behavior(s) other than intoxication would constitute gross negligence?

Paul Butler: If a juror refuses to deliberate at all, that would be grounds for his or her removal. But there is a difference between refusing to deliberate, and being a hold out. If the reason for the hold out is principled - it is based on the juror's honest assessment of the case - the juror should hold out. Very very rarely one hears about jurors who simply won't say a word, including stating the reason for their vote. In this case, based on the news reports, the lone juror had a reason for his vote. The other jurors happened not to agree. Each should try to persuade the other, but if they are unable to reach a decision, this should be reported to the judge. Recently we have learned of several capital cases in which defendants have been wrongly sent to the electric chair. Perhaps those cases make us see more clearly the value of lone holds, even when they sometimes reach results with which we may not agree.

Thank you all for the excellent questions. I hope that you will all continue to serve as jurors, and I appreciate your interest in this vital aspect of our citizenship.

Regards, Paul Butler

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