"Wait, I think that was a juror," said my colleague during our cell phone conversation outside the courtroom while his trial broke for lunch. "I have to stop talking about the case."
We had been speaking about the testimony of his client, who had taken the stand that morning. He began to walk away from the jurors exiting the courtroom. "In fact, I'll take the stairs instead of the elevator."
Though probably nothing like the jury tampering (search) depicted in the film "Runaway Jury" (search) has ever taken place, this doesn't mean that juror contact, and jury tampering, doesn't happen. It's more common than most people think, and it happens for some unexpected reasons.
Most lawyers are incredibly scrupulous when it comes to contact with members of the juries hearing their cases, not only because jury contact is one of the worst ethical infractions a lawyer can commit, but because almost any contact between a lawyer and a juror hearing his case can result in a mistrial and selection of a new jury. That can takes days or weeks, consume thousands of client dollars, and almost always strain an attorney-client relationship that is already tense because the parties have arrived at trial in the first place.
Prosecutors have been known to have long, detailed conversations about their trials with fellow prosecutors while on an elevator, allegedly not knowing that a juror was standing with them. Is the contact intentional? Ethics mandate that the conversation be reported to the court, but the court is generally able to decide if the contact prevents the juror from objectively deliberating the evidence in the case.
Sometimes there is no question that juror contact is intentional, and people sympathetic to a litigant frequently attempt to contact jurors. Earlier this month in New York County, a woman and her boyfriend accused of bilking Sept. 11 charities out of $78,000.00 were also accused of orchestrating an elaborate attempt at swaying the jury. Before the criminal case against the defendants, Evelyn Wellens (search) and Matthew Weissman (search) (a lawyer who is no doubt facing discipline right now), went to the to the jury, someone -- Wellens and Weissman deny it was either one of them -- placed seven notes around the courthouse, including in men's and women's bathrooms used by jurors.
The notes said, "Evelyn Wellens is innocent." The judge assigned to the case determined that the notes, two of which were found by jurors prior to deliberation, did not affect the jury's guilty verdict. Wellens had been released pending sentencing, but after learning of the notes, the judge had Wellens arrested and jailed. The judge reportedly said, "Her conduct this morning in this courtroom, distributing that letter, is unprecedented in my lengthy experience." Now the New York County District Attorney's Office is considering bringing jury tampering charges against Wellens.
While innocent sporadic jury contact is part of any justice system, jury tampering is a crime, usually a felony. This statute is an example: A person is guilty of jury tampering when, with intent to influence a juror's vote, opinion, decision or other action in a case, he communicates or attempts to communicate, directly or indirectly, with a juror other than as a part of the proceedings in the trial of the case.
Jurors themselves are not immune from a charge of jury tampering, and anyone who has served on a jury and listened to the judge's admonition to not discuss the facts of the case prior to being sent out to deliberate knows this. One of the more widely reported cases of a juror charged with jury tampering was that of Laura Kriho (search), who in 1996 counseled fellow jurors to reject a narcotics law used to prosecute the defendant whose case they would eventually deliberate. While Kriho necessarily mentioned some of the case facts of the case while talking to fellow jurors, the jury tampering charges against her were eventually dismissed. She succeeded in convincing a court that her goal was to have the jury cast off an unjust law.
Some litigants, especially criminal defendants, pose an enhanced risk of juror contact of the worst kind. That is why, for trials of the most dangerous criminals, there is a trend toward anonymous juries (search). In 1977, the first completely anonymous jury was sworn in in New York City for the trial drug kingpin Leroy Barnes (search). There was evidence going into the trial that Barnes or his associates would try to get to jurors, and the jury was both anonymous and sequestered for virtually the entire trial. As the U.S. inches closer to trying alleged terrorists, many believe that there will be a need for anonymous juries.
Matt Hayes began practicing immigration law shortly after graduating from Pace University School of Law in 1994, representing new immigrants in civil and criminal matters. He is the author of The New Immigration Law and Practice, to be published in October.