Zimmerman: To Sequester or Not to Sequester, That is the Question

September 21, 2012

I oppose juror sequestration and recommend that it be abolished. I believe many judges, prosecutors and defense attorneys agree. I write to support my recommendation and to solicit your views regarding this important matter.

I practiced law in Seattle for 30 years. I do not recall any trial during that time where jurors were sequestered. I am not saying it did not happen, but if it did, I do not recall it.

Judges, prosecutors, defense lawyers and jurors hate the idea. So do the people who have to police the jurors by screening all information that comes to them and redacting anything about the case.

The jurors might as well be locked up in jail and they never would have agreed to serve as jurors, if they knew what it was going to be like.

I have discussed this issue with other criminal defense lawyers from other parts of the country, whom I got to know through my involvement in the National Association of Criminal Defense Lawyers, and we all agreed that sequestration is a bad idea. We knew the jurors would hate it and we feared they would take out their frustrations on our clients.

As I devoted more of my time and efforts during my career to learning forensics and representing people potentially facing the death penalty, I found myself in more complex and lengthy trials.

For example, one death penalty trial went on for 9 months. The shortest trial lasted 3 months. The strain on everyone involved in the process, including the jurors, was incalculable.

If they had been denied access to the comforts of home and hearth during that time, I would not have been surprised if some of them had cracked and assaulted their keepers or just fled the madness and disappeared.

I knew one thing for certain. I would never have tolerated being sequestered, if I were a juror. For that reason alone, I would never ask for a jury to be sequestered and would oppose a prosecution request to sequester.

At some point, we have to get smart, acknowledge human nature, and stop trying to hold back the sea. Jurors are going to watch TV, read newspapers, listen to the radio, surf the internet and discuss the case with their domestic partners and close friends.

Rather than ban those activities and set them up to commit perjury by insisting they swear not to do those things, we should educate and warn them regarding the potential dangers of outside influences and remind them daily of their solemn duty and responsibility to base their decision on the evidence introduced in court.

Jurors should be encouraged to note and inform the judge and the lawyers when outside information about the case reaches them. Segregating that information into a category labeled with the word “Ignore,” reinforced by a jury instruction ,probably is the best way to limit, if not eliminate, the problem posed by outside information influencing the jury to reach an improper verdict.

Treating jurors with honesty and respect, instead of suspicion and distrust, as though they were naughty children requiring continuous adult supervision, is the mature, honorable and decent way to go.

Disregarding inadmissible evidence is a task judges are required to perform on a regular basis. Some take that obligation seriously and some do not. Some are better at it than others.

Some judges are so corrupt that they will invent evidence to support conclusions they intend to reach, despite the evidence.

The jury system was created to address this last category of judges by preventing the Crown from depriving people of their property, liberty and lives without just cause.

Since the jury system was created, judges and lawyers have attempted to control what jurors do and how they do it. The clearest example that comes to mind is the effort to outlaw jury nullification.

Jury nullification occurs when a jury decides to disregard the law as set forth in the instructions and return a verdict of “Guilty” or “Not Guilty,” according to what it decides to be the “right” decision, regardless of the law.

Here are two examples of jury nullification that illustrate opposite extremes.

In the first case, a jury acquits a young man of failing to register for the draft during an unpopular war despite evidence that he refused to register because he was opposed to the war.

In the second case, an all White jury convicts a Black defendant of the rape-murder of a White woman and sentences him to death, despite DNA evidence that exculpates him.

The fear of jury nullification is so strong that any lawyer who mentions it is likely to be summarily held in contempt, ordered to jail and a mistrial granted.

A reasonable possibility exists that a jury will be sequestered in the Zimmerman case, assuming Judge Nelson denies Zimmerman’s motion for immunity from civil and criminal liability and the case proceeds to a jury trial. Due to Florida’s Sunshine Law, we are familiar with most of the evidence that will be admitted at the trial, as well as evidence that will be excluded.

Assume that you have been selected as a juror in the Zimmerman case.

My questions:

(1) Having been exposed to inadmissible evidence, such as W9’s accusation that Zimmerman sexually abused her multiple times during a ten-year period that began when she was 6-years-old and he was 8-years-old, do you believe you could ignore her accusation and base your individual verdict only on the evidence admitted in court?

(2) Assuming your answer is “Yes,” why do you think you could ignore it?

Now let us expand the scope of the two questions to include all of the evidence and information you know and your opinion of Zimmerman’s guilt or innocence. Have your answers changed?

(3) Do you believe it is possible for you to presume Zimmerman innocent, given what you know?

Finally,

(4) Knowing what you know, would you find him “Not Guilty,” if the prosecution fails to meet its burden of proof because it did not introduce evidence that you recall?

Aye, there’s the rub.


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