The Hunt, Chapter 12: Gag Me With a Spoon
A unanimous jury demands the right to remain silent.
Before we get into the substance and origin of the “gag order” – which really isn’t a “gag order1” – there are two principles of criminal law and trial procedure it might be useful to keep in mind.
Principle One: A criminal defendant has the constitutional right to be present, with counsel, while any evidence or testimony are presented to the jury.
Principle Two: Jurors must consider only the evidence and testimony admitted at trial while they deliberate.
Once trial ends, and the jury commences its “deliberations,” after the trial, they may not be presented with anything new. They can look at exhibits2 that were entered into evidence. They can discuss what they heard during the trial, but only with each other.
If jurors encounter anything new during their deliberations, that’s a problem. Big one. Absolutely shreds principles one and two, like cheap toilet paper. And nobody likes that. Particularly whoever does the laundry.
So what about a site visit, to a place the jurors have already been? Is that something “new,” or just a second glance at something already admitted?
Tough question. Luckily, the California Supreme Court has already answered it:
Unlike a jury's examination of an exhibit in the isolated and controlled environment of a jury deliberation room, a jury's return visit to the site of a crime — particularly the kind of extensive outdoor crime scene at issue in this case — creates a much greater risk that the jury potentially will receive new or improper evidence.
…
[E]ven with precautions in place, it simply is not possible to anticipate and exclude all potential evidentiary intrusions, be they planned or inadvertent, such as an unreported or unexpected physical change in the premises, the uninvited appearance and commentary of a neighbor or bystander, or the unauthorized performance of jury experiments or tests.
Accordingly, even if a jury's return visit to a crime scene does not inevitably or invariably result in the jury's receipt of new evidence, in view of the very substantial risk that such a return visit will lead to the jury's receipt of new evidence we believe that such a revisit to the crime scene is different in kind from a jury's examination of an exhibit during deliberations in the confines of a jury deliberation room.
People v. Garcia, 36 Cal.4th 777, 800-1 (Cal. 2005) (internal citations and quotations omitted, wtf is this a law review article, of course I’m going to make it more readable).
A visit to a crime scene is not a debate, over bad sandwiches, in a jury room. It is an environment where the jurors are likely to be exposed to something new. Something potentially inadmissible.
Or, they may – as they did in Garcia – potentially try something that jurors shouldn’t do, like conduct their own experiments. Or separate into groups and attempt lay investigation. Or they may ask questions on facts, and law, that someone may answer inadvertently.3
…
Back to Mr. Mouser. After six days of deliberation, the jurors descended into the ravine – which they hadn’t done before – took notes about what they found there, and returned, to enter a guilty verdict.
What happened during the second scene visit, then, is a critical issue on appeal. But there was no court reporter there, no defendant, no defense counsel. How was appellate counsel supposed to handle the issue of what occurred on the site visit?
By asking the jurors, of course. And he tried.
And then – remarkably – the jurors somehow united, to demand that they not have to talk to the defense. The prosecution wrote, in their motion to the court:
In recent days the People have received numerous contacts from many of the individual trial jurors. Each juror expressed his or her concern regarding continual contacts they have had from members of the defense.
[...]
The jurors state that they had repeatedly made it clear that they did not want to discuss the case involving the defendant with any member of the defense team, including: the defense attorney, the defense attorney support staff, or defense investigators. The jurors further stated that they believed that they had made their wishes known to the court at the time of the verdict…
Please see the attached letter signed by all twelve members of the jury regarding their desire to have the court order the defendant to refrain from any further attempt to contact them.
We’ve written before about statements that are true, but deceptive. Let’s dissect, shall we?
The People received numerous contacts from many of the individual trial jurors.
A skilled lawyer knows to use the most favorable true statement. “Many” isn’t most. And it isn’t all. This sentence, shaken out, means that the district attorney’s office was contacted by less than six jurors.
Each juror expressed his or her concern regarding continual contacts they have had from members of the defense.
“Each” is ambiguous here. Does it mean “each” of the “many” in the first sentence? Or is it “each” of the twelve, who eventually joined together in the single letter? If the attorney had been able to write “all twelve,” in that sentence, he really should have.
“Concern” is, likewise, a vague term, and notably mild. “Concern” isn’t “distress,” it’s not “annoyance,” its not “fear.” It isn’t even worry. If any of these had been the case, it would have been foolish not to say so. If there had been anything crass, or harassing, or distressing in the “continuous contacts,” it would have been stated in the motion.
Please see the attached letter signed by all twelve members of the jury regarding their desire to have the court order the defendant to refrain from any further attempt to contact them.
Twelve jurors – again, not a majority of whom contacted the prosecution, with their “concern” about contact from the defense – somehow all signed on to a single letter, which was presented to the prosecution.
Did the jurors form a phone chain, to write a letter to the prosecutor? When less than a majority had “concerns?” Or, upon hearing from several jurors, did the prosecutor’s office affirmatively reach out to the jurors, draft a letter, and get their signatures, and then seek out an order placing all jurors out of reach, for good?
I don’t know.
I am extremely reluctant to draw that conclusion, from the facts presented.4
Because if that was what happened, it wouldn’t have been ethical.
Rule 3.4 of the California Rules of Professional Conduct – based on the ABA Model Rules, just like the ones in my own state – provides, in pertinent part, that “a lawyer shall not: (a) unlawfully obstruct another party’s access to evidence, including a witness, or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.”
As of February 26, 2001 – when the motion for protective order was signed and filed – the District Attorney knew that the Mouser defense team had been working on the “settled statement” concerning what occurred during the jury view, pursuant to a court order entered on January 5, 2001.
The prosecution knew this wasn’t an attorney idly probing, casting about for something upon which to base an appeal. They knew that the “continuous contacts” from the “defense” weren’t an attempt to intimidate jurors or frustrate justice, but an attempt to determine facts directly relevant to an appeal.
And if the prosecution sought an order preventing the defense from contacting any of the jurors anyway, based on nothing but the “concerns” of a minority – that’d be wrong.
Dead fucking wrong.
Gross.
Fuck.
A gag order prevents people — who might want to speak — speaking about a particular topic. This was a protective order, barring specific people from contact with specific others.
But not, at least in my jurisdiction, the “chalks” or “demonstratives” which were used during trial but did not become evidence. I have no idea if this is the case in California. If I ever learn about the rules of evidence that apply in a criminal trial in California, it will be by accident.
Or advertently.
And, per the Modesto Bee, the prosecutor denied involvement in writing the letter.