Posted by Eugene Volokh:
More on Vote-Changing To Free Jurors from a Long Trial:
http://volokh.com/archives/archive_2009_03_15-2009_03_21.shtml#1237313026
My colleague Steve Yeazell, an expert on civil procedure (and a
historian of civil procedure), writes this apropos the [1]"Lawyer
Disbarred for Switching Vote as a Juror Solely in Order To Return To
His Busy Law Practice" post:
I am ... a little dubious about the less-noted part of the case --
the trial court�s order of a new trial on the basis of Fahy�s
affidavit. I don�t know the specific California law on this
question, but the trend in the US has been to insulate juries from
most internal scrutiny -- scrutiny, that is, that asks about why
the jury came to the verdict it did, so long as, seen from outside,
it�s rationally defensible, as this one clearly was.
In a leading case, written by Learned Hand, the Second Circuit
affirmed a defense verdict reached under the following
circumstances: deadlocked 7-5 for the defense, the jury learned
that one of its members� sons had just been killed in WWII. They
agreed that the minority would vote with the majority so the member
could go home to grieve, thereby producing a unanimous verdict.
Held: no grounds for a new trial. Jorgenson v. York Ice Machinery
Corp., 160 F.2d 432 (2d Cir. 1947): �Not only ought we not upset
the judge�s discretion in refusing to grant a new trial for such a
reason; but, had he granted the motion ... we should not have
sustained it.�
Yes, the Fahy verdict is distinguishable, but not by a lot. And,
even if the judge should not have granted a new trial, that doesn�t
speak to the disbarment order: it may be that for a lawyer-juror to
rank his personal interests this high is a special problem. (And
this was not Fahy�s first brush with bar discipline.) But as you
imply in your blog: one bets a lot of jurors throw in the towel
after a week of deliberation and decide that the majority must be
right. Is that really a terrible thing? The standard �dynamite�
charge to deadlock jurors in fact encourages them to think about
whether their fellow jurors maybe have it right.
References
1. http://volokh.com/posts/1236811645.shtml
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