Hill jury notes puzzle court

A note from jurors bearing three different people’s handwriting and descriptions of a dissenting juror’s alleged behavior could lead to a mistrial against Sheriff Victor Hill, according to Judge Eleanor Ross.

Hill has pleaded not guilty to seven counts of violating pretrial detainees’ rights under color of law. Hill allegedly strapped the men into restraint chairs at the Clayton County Jail as punishment, in violation of his own written policy about the chairs’ use.

Hill’s attorneys argue that he acted to prevent any violent reaction from the men. Video in at least three cases and testimony from the alleged victims showed none of the men acted in a threatening manner before and during the intake process. One did resist arrest by going limp and forcing several officers to lift him into and out of a patrol car.

Under the policy, the men had to pose a threat to themselves, others, or property to be put into the chairs. At least three of them were forced to urinate on themselves in the chair. A 17-year-old was placed in the chair twice in one night for nearly 10 hours, even though he had complied with officers. CCSO policy states detainees are strapped in for up to four hours.

On Monday, the jury had sent out three notes and stated that they had reached a verdict on two of the seven counts against Hill, but that they were deadlocked on the other five. Ross delivered an “Allen charge,” also known as the “dynamite charge,” which is essentially an ultimatum for juries to go back and decide a case. (The Allen charge is not used in other courts but is used in federal court.) The jury later said they were deadlocked 11 to 1 on those five counts.

On Tuesday morning, one juror was excused for known back pain issues and an alternate took her place.

At 11:50 a.m., Ross said the jury had sent out a two-part note. In the first part, the foreperson wanted to ask the judge about yes or no answers, acknowledging the law, and recognizing the jury instructions. In the second part, she wrote that one juror “appears to show the beginnings of cognitive impairment.” She also wrote that the juror allegedly had stated that “the sheriff and the President are above the law,” that the juror had covered his eyes and ears during deliberations, and had refused to acknowledge others.

“Stuff that just doesn’t make sense”

Ross brought out the foreperson and quizzed her about what was happening. “Is the juror engaging in discussion with other jurors at this point?”

“Yes,” the foreperson said.

“The closed eyes and covered ears concerns me,” Ross said.

“The juror is deliberating, however, when points are being made, the juror’s response to everything starts with ‘No,'” the foreperson said. “In the discussion, when anyone else is speaking, the juror refuses to listen to anyone else’s point of view.”

“How do you know?” Ross asked.

“He cuts you off while you’re speaking….if the juror is asked to explain, the juror just goes off into stuff that just doesn’t make sense. For the past three days he has not been able to answer a yes-or-no question,” the foreperson said.

Ross said the jury had sent out a note Monday that they had agreed on verdicts for two of the seven charges. “Was the juror deliberating at that time?”

“Yes.”

“Has this changed with regard to this juror?” Ross asked.

“We have not addressed those two [charges],” the foreperson said, adding that, when the alternate juror came in and the jury started all over again, they were going through the charges in a different order.

“I’m led to believe that, if the juror reached a decision on two counts yesterday…has that kind of communication broken down today?”

“Where we were yesterday, we have not gotten to that point….Where we are today, we have not gotten anywhere with that juror.”

Ross asked whether the juror had been “engaging in discussion but not open to anybody’s point of view.” The foreperson said, “Yes.”

“Is the juror applying the law?” Ross asked.

The foreperson said “No.”

“Why?”

“Because of statements the juror made.”

“Is the juror following the court’s instructions?”

“No.”

Ross sent the foreperson back, then said she agreed with Findling that there was a fine line to consider: the juror was “still engaging but may just have his own view of things.” However, she also noted the juror’s alleged comment that “the sheriff and the President are above the law.”

Assistant U.S. Attorney Bret Hobson said, “He is ‘engaging’ in that he is talking, but he is not ‘engaging’ in that he is not listening and cutting people off. That’s not engaging in deliberations. He’s talking…he clearly said he would not follow the law or the court’s instructions especially regarding the President and the sheriff.”

Findling replied, “I’ve tried a boatload of cases worse than this….The foreperson said the juror is deliberating and this is dangerous, dangerous territory. The juror is deliberating and it is not our [job] to get on the other side of that.”

“I had to help a juror through one year,” Ross said, “but that juror stayed on the jury.”

Juror 6

Ross then called Juror 6 into the courtroom.

“You are not in trouble,” she told him. “We’re going to be talking to a couple of jurors. It’s been a couple of days now. Have you been engaging in deliberations with them?”

“Yes,” he said.

“Has there been any point at which, when you go to speak, you’ve ever been shut down?”

“No.”

“Did you understand the court’s instructions?”

“Yes.”

“Do you have a copy of those instructions?”

“Yes, and we’ve been referring to them,” he said. “If I may, I have annoyed people going to specific paragraphs…under three different passages. About intent, willful, where you’ve defined the terms—”

“Okay, I don’t want to go too far,” Ross said, “but you have referred to them.”

“And to your statement of what the law is and what we should consider your definitions.”

Ross asked, “Are you listening before you respond and express your opinions?”

“Yes, ma’am,” he said. “When I think, when a question is being put to me, and I understand that the person is certainly entitled to their opinion and so forth, but they state something in their process, something in their process that I might not agree with and they are going, ‘Give me a yes or no answer,’ I don’t live in a yes or no. I think, ‘Yes, but…’ And that annoys a number of folks. You don’t get to say ‘but.’ I’ve had people screaming at me, raising their voice, describe me as inarticulate, crazy, anything else….I appreciate the effort everyone has made in this case.”

Ross sent the jury to lunch at 12:19 p.m.

“This is becoming untenable”

Findling said, “I knew that was going to take place,” adding, “This gentleman has a belief system based on what he heard and he’s maintained his position, and the government thinks it knows where this could go and has cast aside fairness.” He asked again for a mistrial “because this is becoming untenable.”

When Ross asked for the basis of his mistrial request, Findling pointed to the two verdicts that the jury had reached on Monday. “The notes you have received are clearly inaccurate because he clearly articulated his positions,” he said. “We now have sealed verdicts. Jurors reached decisions on two counts and my client would take a mistrial on the other five counts.”

Ross replied, “Why is your position that we should go back and take a verdict they said they had reached yesterday? How do we even know that they’re in that same spot?”

“Because jeopardy attached,” Findling said, “we proceeded to trial…the jury deliberated…you saw her holding the verdict form, which is sealed and unchanged—”

“How can you say it’s unchanged?” Ross asked.

“The document is in a sealed envelope,” he replied, adding, “It’s a unique position.”

“It certainly is unique,” Ross said. “I’ve never seen anything like it as a state or federal judge.”

“Deliberations started anew with a new juror,” Hobson said. “The most concerning statement was that the sheriff and President are above the law. It would be appropriate to instruct the jury that that’s not the law.”

“I don’t know how it’s said, what is said, if it was said in jest,” Ross replied. “To pull out that one statement and recharge the jury just doesn’t sit right with me. Right now, I’m inclined to let them continue to deliberate.”

Findling said that, in May, he had a case where there was no gang charge, but a jury “deliberated for two days, fighting about gangs.” He added that, if the court were going to get into side issues with the one juror, “you’d need to do that with all 12 about stuff that has nothing to do with this trial…then we’ll have a bunch of mini-trials.”

Ross said, “It would be different if they had sent out a note asking whether the sheriff and the President are above the law.”

Tick tock

At 12:26 p.m., the court recessed for an hour’s lunch.

Reporters and a couple of people who had been watching the trial sat in the quiet courtroom all afternoon, chit-chatting and watching the clock tick. At 4 p.m., one long buzz let the court officer know the jury had something to say. Hill and his attorneys entered the courtroom. At 4:03 p.m., Hill motioned to Maj. Brandon Criss, who has been present for most of the trial, to step outside with him. At 4:05 p.m., they returned. At 4:06 p.m., the U.S. attorneys and the FBI agents on the case entered and sat down.

Ross called court back into session, saying the jurors had sent out two notes, one long and one short.

“Clinical observation”

“The long one says, ‘How do we proceed from a clinical observation? The juror does not recall a large chunk of testimony and incorrectly recalls multiple witnesses’ testimony.'”

The note went on to say the juror “smirks but does not respond” and gives examples of what the juror allegedly was doing: “‘I saw or heard X,’ then ‘I never saw or heard X.’ Difficulty combining sentences….The juror used his own notes but doesn’t believe his own notes. He is arguing against his notes. He states he is biased against inmates because they are violent.”

The second note indicated the jury had not reached any unanimous verdict today and asked to start again Wednesday morning,

Findling again moved for a mistrial “based on the jury’s inability to come to a unanimous verdict. We’re not in the business to second-guess jurors. The gentleman came out and stated his position. I am not, on behalf of Sheriff Hill, going to participate in second-guessing what appears to be this attempt to boot someone for [dissenting].” He said he was “horrified” at the prospect.

Assistant U.S. Attorney Brent Gray said, “I’ll state the obvious: the note is not saying simply that he disagrees. It’s questioning his capacity. The juror is concerned; it sounds like many jurors are.” He suggested allowing their request to come back Wednesday, which would “give us time to research.”

Ross asked both sides whether she should issue an Allen charge to the jury Wednesday.

Gray replied, “To the extent that the jury is deadlocked, they are entitled to another Allen charge.”

Hill leaned over and whispered in Findling’s ear.

Findling said he was “concerned” about the government wanting “to analyze notes without context….We’re not getting notes that [Juror 6] is talking to Satan and talking to the Lord and the Lord told him—”

“Are we suggesting we bring him out again?” Ross asked. “I’m inclined to cut them loose, do some research, possibly give them an Allen charge.”

Defense attorney Marissa Goldberg said, “Our concern now, from hearing several of these notes that do contrast with what we’ve head in the courtroom, is that there is an effort to bully or undermine this juror.”

“Do we also bring out the other three jurors whose handwriting was on the note?”

Findling replied, “At this point, other than the twelfth juror, I believe we have a hopelessly deadlocked jury and move for a mistrial. I’m not an Allen charge kind of person. It would be an Allen charge for eleven of these jurors for the second time. We would move for a mistrial and oppose a second Allen charge.”

Ross asked, “Defense, do you want to see these notes as well?” Hill and his attorneys peered at the two notes written on sheets torn from a stenographer’s pad.

“Your Honor, we are literally creeping into the jury by analyzing these notes.”

“What are we analyzing?” Ross said.

“I think that anything written by someone other than the foreperson, ‘clinical observation’—the fact that this is public is deeply disturbing,” Findling said, complaining about “other folks’ handwriting getting into ‘clinical analysis.'”

“If you think this is not concerning to me, you are mistaken,” Ross said. “You want a mistrial, which I am not going to do right now.”

“Your Honor is actually a judge who has tried a bunch of cases,” Findling replied.

“I could make a call to do what I want,” she said. “We’ve gone back and forth. I will certainly let you go on if you want to perfect the record.”

“I think I’ve stated my piece,” Findling said.

Ross granted the jury’s request to call it a day and to return at 9:15 a.m. Wednesday. “I’m inclined to give them an Allen charge at some point tomorrow, then go from there and decide whether to declare a mistrial or not. The fourth day of deliberations would go into that territory.” With that, court was in recess.

Has this ever happened before?

Earlier Tuesday, Ross told both sides that a case from the Eleventh Circuit, U.S. v. Abbell, provided some precedent for dealing with a juror who refused to follow the law during deliberations. In that case, which dealt with the Cali drug cartel’s network, cocaine dealing, and money laundering, a juror “was behaving improperly and refusing to obey the law or to obey the court’s jury instructions.”

The judge in that case told the jury it was illegal to nullify the jury (in other words, it is illegal to find someone not guilty when jurors are convinced beyond a reasonable doubt of the defendant’s guilt).

But the jury kept complaining about the one juror’s conduct.

The judge talked to each member of the jury to try and “ascertain whether the juror’s conduct warranted her dismissal.” The judge did dismiss the juror, concluding “that the juror was not applying the law to the case.”

The jury then delivered a split verdict, guilty on two counts and deadlocked on two others. The defense asked for a new trial but the judge said no and did reverse one of the guilty counts. Both the government and the defense appealed.

The Eleventh Circuit looked at the case and agreed with the district court that the juror in question “was not basing her decision on the sufficiency of the evidence,”meaning that the lower court was justified in removing her from the jury. The juror had “made comments that she did not have to follow the law and that the court’s instructions were only advisory and not binding on the jury.”

After the district court had told the jury to “apply the law and obey the court’s instructions,” the juror didn’t state outright that she wouldn’t follow the law, but “still was not engaged in deliberations, would not consider evidence nor discuss the applicable law. Some jurors were infuriated because the juror was doing her nails during jury deliberations. When the judge talked to each juror separately, “[her] own testimony on her commitment to following the law was not certain.”

The appeals court upheld the district court’s decision to boot the juror and sent the case back to reinstate convictions on all four counts against the defendants.

It also warned that, when one or two jurors are holdouts, a very strict standard for removing them has to apply: “judges must be careful not to dismiss jurors too lightly, even in the face of complaints from a majority of the jury. Federal defendants have some right (be it statutory or perhaps constitutional) to a unanimous verdict by, normally, twelve jurors. Because of the danger that a dissenting juror might be excused under the mistaken view that the juror is engaging in impermissible nullification, we must apply a tough legal standard. In these kind of circumstances, a juror should be excused only when no ‘substantial possibility’ exists that she is basing her decision on the sufficiency of the evidence. See United States v. Thomas, 116 F.3d 606, 621-22 (2d Cir. 1997); United States v. Brown, 823 F.2d 591, 596 (D.C. Cir. 1987). We mean for this standard to be basically a ‘beyond reasonable doubt’ standard.”

In addition, the Eleventh Circuit found that “whether a juror is purposely not following the law is a finding of fact that we will review for clear error.” The district judge, who is most familiar with the jury members, is “uniquely situated to make the credibility determinations that must be made in cases like this one: where a juror’s motivations and intentions are at issue.” The district judge has to weigh the “substantial possibility…that the juror is or is not basing her decision on the sufficiency of the evidence.” However, if the judge finds no “substantial possibility” that the juror based their decision on the “sufficiency of the evidence,” then the appeals court would review the case for “clear error.”

What would a mistrial mean?

A mistrial on any of the seven counts against Hill would mean that a whole new case could be brought against Hill on the specific charge or charges. A mistrial means that, for some technical reason, the defendant could not have gotten a fair trial, so the case starts all over again with a new jury. Some of those reasons include the jury not being able to reach a verdict, a serious mistake in the course of the trial, or some sort of misconduct like a juror looking for outside information about a case or jury tampering.

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What happens when a jury gets a case?

According to the U.S. Attorney’s Office “Justice 101” website:

• Following the closing arguments, the judge “charges the jury,” or informs them of the appropriate law and of what they must do to reach a verdict.
• After being charged, the jury goes into deliberation, the process of deciding whether a defendant is guilty or not guilty. During this process, no one associated with the trial can contact the jury without the judges and lawyers. If the jury has a question on the law, they must write a note to the judge, which the judge will read in court with all parties present. In federal criminal trials, the jury must reach a unanimous decision in order to convict the defendant.
• After they reach an agreement on a verdict, they notify the judge, the lawyers, and the defendant in open court. Everyone is present in court for the reading of the verdict. The United States Marshals Service is present during trial to protect the judge and prosecutors from potential harm. If the defendant is found not guilty, they are usually free to go home.