"WORRISOME but clever" is the way one Connecticut trial lawyer described the tactic used by another in a recent case involving two counts of sexual assault and one of burglary. Michael Sherman was the ingenious defense attorney who, according to an article in the National Law Journal, is now the center of controversy in Connecticut legal circles.
Mr. Sherman was defending John McGraw at his trial on three felony charges, but the jury could not reach a verdict. A mistrial was declared when five of the six jurors favored acquittal while the sixth held out for conviction. Shortly after the trial, Mr. Sherman contacted Lisa Lord, a 21- year-old waitress who had been one of the jurors voting to acquit -- he says he ran into her in a local pizzeria -- and hired her to be a consultant at the retrial. She agreed, for a fee, to sit beside the defense counsel at the second trial and provide him with information about how the first jury reacted to witnesses, arguments and evidence. She also discussed with him the arguments made by the one juror who had voted to convict Mr. McGraw.
Was any part of this arrangement illegal or unethical? No one is quite sure because it had never been tried before, and the law is not really clear. Jurors in Connecticut take an oath of secrecy but judges differ on whether it continues after the jury has been discharged. Ethical rules allow a lawyer to ask jurors questions after a trial, but no one is quite sure whether jurors are free to respond. The state's attorney prosecuting Mr. McGraw asked the trial judge to cite Miss Lord for contempt of court for violating her oath of confidentiality, but the judge refused to do so.
Bar officials believe that the practice of hiring former jurors to be "trial consultants" should not be condoned, and Connecticut Bar Association President Ralph Elliot is taking steps to ban the practice. He points out the very real danger in giving any juror a monetary stake in bringing about a mistrial, and he believes that jurors certainly shouldn't be paid for revealing anything that took place during jury deliberations. Revisions to both the lawyers' ethics code and the Connecticut statutes are being prepared for consideration. Bar associations throughout the country might want to take similar steps before clever defense attorneys follow Mr. Sherman's example.