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Blagojevich Trial Puts Dynamics of a Jury Back in View

August 18, 2010 at 1:56 PM EDT
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Former Illinois Gov. Rod Blagojevich was found guilty on one of 24 charges Tuesday, but the jury was just one vote shy of convicting him on some of the more serious charges. Jim Lehrer talks to law professor Valerie Hans, co-author of the book, "American Juries: The Verdict," about the dynamics of a jury's deliberations.
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JIM LEHRER: Now: the ways and means of juries reaching a verdict.

Case in point, the Blagojevich jury came one vote shy of convicting him on some of the more serious charges. Some of the jurors talked about their two-week deliberation, and Blagojevich talked about them.

ROD BLAGOJEVICH (D), Former Illinois Governor: But I want to thank the men and women of this jury for what they came…

JIM LEHRER: A defiant Rod Blagojevich spoke in the lobby of Chicago’s federal courthouse yesterday. He had been convicted on just one count of lying to the FBI, with no verdict on 23 other counts. The former Illinois governor commended the jury that heard the case.

ROD BLAGOJEVICH: This jury just — just showed you that, notwithstanding the fact that the government threw everything but the kitchen sink at me, that, on every count except for one and every charge except for one, they could not prove that I did anything wrong, that I did break — that I did break any laws, except for one nebulous charge from five years ago.

JIM LEHRER: But this jury, as it turned out, very nearly convicted Blagojevich on many, if not all, of the counts. They included charges that he tried to sell the U.S. Senate seat vacated when Barack Obama won the White House. One unidentified woman on the jury held out on that charge and the other 23 counts.

On ABC television this morning, another juror, Erik Sarnello, said the holdout wouldn’t be convinced otherwise.

ERIK SARNELLO, juror: I think we all came to realize that there were just major, just fundamental different ideas and views on what we were seeing in the evidence. She wanted to see that clear-cut evidence, which we knew just wasn’t there for her. So, to me, it was kind of obvious where we were going to end up.

JIM LEHRER: Jury foreman James Matsumoto said, the two weeks of deliberations were a frustrating exercise, but he said the arguments were never angry.

JAMES MATSUMOTO, jury foreman: To give credit to the entire jury, there — there wasn’t any animosity. There wasn’t any yelling or name-calling. They were very professional. They were very thoughtful.

JIM LEHRER: The prosecutor, U.S. Attorney Patrick Fitzgerald, had said the charges against Blagojevich would make Abraham Lincoln roll over in his grave. Yesterday, he quickly pledged to retry the case, and even praised the jury.

PATRICK FITZGERALD, U.S. attorney, Northern District of Illinois: And one of the hallmarks of our legal system is that we require guilt to be determined by a jury, and that jurors have to make unanimous findings whether or not a case has been proved, whether to convict or to acquit.

And I think that we just need to step back and recognize how important jury service is and how much we owe a debt of gratitude to those jurors. And that’s it.

ROD BLAGOJEVICH: We will have more to say later. Right now, we have got to get Annie to camp.

JIM LEHRER: By this morning, the normally-talkative Blagojevich had no further comment on the outcome or the holdout juror.

QUESTION: What did you think about there being one holdout?

JIM LEHRER: The former governor now prepares for a hearing next week to set the date for a retrial.

And to Valerie Hans, professor of law at Cornell University Law School, co-author of the book “American Juries: The Verdict.”

Professor Hans, welcome.

First…

VALERIE HANS, law professor, Cornell University Law School: It’s great to be here.

JIM LEHRER: Well, thank you.

First, do you agree with U.S. Attorney Fitzgerald, that, no matter the verdict, those jurors deserve to be credited with a debt that they paid?

VALERIE HANS: Well, I do have very high regard for the jury system. I have studied it for many decades. And what I see again and again in research and even in challenging cases like this one is groups of citizens who come together and try to do their best. Sometimes, they disagree. It’s rare, but they do.

JIM LEHRER: Well, let’s go through some of the basics here. As a matter of fact, how — what percentage of the adult American population actually has a jury experience?

VALERIE HANS: Well, about a quarter right now.

It’s much more than it used to be. It used to be that jury service was very rarely engaged in by the broad range of people in the population. But states and the federal government have worked really hard over the last several decades to try to make juries more representative. And even though they’re not perfectly a reflection of our community, they’re certainly a lot more representative than they used to be.

JIM LEHRER: Are — are their deliberations usually — as the Blagojevich jury foreman said, are their deliberations usually as without animosity and professional and as thoughtful as he said these particular jurors were?

VALERIE HANS: Well, I have heard some great jury stories…

(LAUGHTER)

VALERIE HANS: … of shouting, excitement. But, for the most part, I think the foreman describes the typical jury, of people who, in a way, through deliberation, become, you know, better than they usually are. They are thoughtful. They look at the evidence. They engage with each other. And, in fact, juries are an unusual type of entity. I mean, there’s no other place, really, where we’re forced to be in a room, locked behind a door, with people who we usually wouldn’t be encountering in regular daily life.

So, it’s an unusual institution, but, for the most part, it seems to work well.

JIM LEHRER: How unusual are hung juries along the lines of the Blagojevich jury?

VALERIE HANS: Yes. Well, they’re very rare. I think the wonderful movie “12 Angry Men” has given people the idea that — that hung juries are — are really common. But that’s more just of art than life. About — in the federal cases, like the ones in this — in this court, about 2 percent to 3 percent hang.

In state court cases, the rate is a little bit higher, between 5 percent and 6 percent. So, in federal cases it’s rare for a jury to hang. Usually, the jury comes together, knows about its mission, has a sense of duty that they have the responsibility of the community to decide the case as best they can, and they forge ahead. And, sometimes, they agree to disagree, as happened in this case.

JIM LEHRER: Is there a natural momentum that, once they close the door and the 12 jurors sit down, a natural momentum to do everything they possibly can to reach a unanimous verdict?

VALERIE HANS: Yes, actually, we who study juries are identifying a couple of different approaches that juries typically take. One is the so-called evidence-driven jury. They sit down, they select a foreman or a forewoman, and they just discuss all the evidence generally. And, as part of this general discussion of evidence, preferences start to emerge. But people aren’t forced to take a stand early on. Those cases are much more likely to result in verdicts.

In the so-called verdict-driven deliberation, people sit down, take a vote right away, and then start asking each other to justify their opinions and decisions. And what we have found in research is that those kinds of verdict-driven juries are more likely to hang in the end. It may be that it’s hard, once you have expressed your opinion, to change your mind later on.

JIM LEHRER: Is — is there — they’re — they don’t give you a little guidebook, most judges, and whatever, to say, OK, take the first system or go to the second system, at least the juries I have been in. It’s up to the people. They close the door and figure it out. And, sometimes, it goes the first way and, sometimes, it goes the second way.

Is there a preference that people give?

VALERIE HANS: Well, exactly.

I mean, I guess it’s a testament to human ingenuity that jurors do manage to get there without specific guidance. But that’s actually one of the things people in the research and practitioner fields have talked about is whether or not we should have guidebooks for jurors to help them along the way.

I guess, if I had to pick one, I would say, try to discuss the evidence, and see, as you proceed through the evidence, if preferences, strong preferences, one way or the other emerge.

JIM LEHRER: Now, my reading of the news stories — you correct me if I am wrong — was that, in the Blagojevich jury, they did do the evidence route, correct? They started talking about the evidence before they took some votes, right?

VALERIE HANS: Yes. Yes. That — well, I guess we don’t know.

JIM LEHRER: We don’t know. Right.

VALERIE HANS: But that’s what it seems to me.

So, it wasn’t so much interpersonal dynamics that seemed to really make it difficult for this jury, but instead one of the other things we have found is a major problem in hung juries, which is the evidence itself. It’s ambiguous to some people. It’s evidence that is capable of being interpreted multiple ways — that seems to have happened here — and also evidence that, to the jurors at least, is very complicated and complex.

So, if the prosecution is going to try for — is going to engage in a retrial, I think one of the big lessons of this hung jury is to try to simplify the case the next time around.

JIM LEHRER: How rare is it for a hung jury to be hung 11-1, in other words, for one holdout to — to decide it, the way this happened?

VALERIE HANS: Well, actually, you know, I’m amazed, because most of the stories do talk about the one holdout.

I heard the foreman, though, say something that reinforced what I have learned from research, which is, when you have one holdout at the end, it’s usually the sign of more significant dissent earlier. And he talked about some of the counts having much closer verdict splits, like 7-5 and 9-3.

And even though the final vote is 11-1, I think that is really significant, that there was more disagreement initially, number one, because that suggests that more than one individual had some problems with some of the evidence on some of the counts.

But, number two, there’s a — the kind of psychological phenomenon. It’s easier to hold out at the very end if you had some support along the way.

JIM LEHRER: I got you. All right, Professor Hans, thank you very much.

VALERIE HANS: Thank you.