Juror misconduct is becoming an increasingly prevalent issue in high profile trials, often with no consequences for the juror.  In the United States an individual accused of breaking the law, whether in federal or state court, must be afforded a fair trial.  There are myriad protections put in place to guarantee that criminal defendants are tried by a jury of their peers with all the trappings of due process which our civilized society deems appropriate.  One such protection is the right to be tried by a jury free of blatant, stated, or otherwise obvious bias.

It is naive to believe that any person could ever receive a trial free of any and all bias, that is simply not the way that human beings operate.  But our system is designed with that in mind and attempts to deal with the issue by instituting a procedural safeguard called voir dire as a jury selection process.  Rather than simply call 14 members of the community to the courthouse to sit on a jury (12 active jurors and an average of two alternates), the clerk of the court summons a significantly larger number on the grounds that some of these people will have experiences, beliefs, or moral convictions which will prevent them from being able to keep an open mind and make determinations of guilt or innocence based solely on the evidence presented at a trial.  The potential jurors are questioned in order to reveal any bias, and those who evidence some prejudice are excluded.  The answers given by potential jurors are taken as fact, and must be reliable because this is the only opportunity for the parties to learn any information which might disqualify someone.  Potential jurors who provide false sworn statements to deliberately deceive the parties and the court in an attempt to either avoid being selected, or even to ensure their selection, should be prosecuted.

It is important to note that some people may not be qualified to sit as jurors in some particular cases, but would be perfectly qualified to sit as a juror in others.  If an individual has had a formative experience, whether good or bad, in a certain aspect of their life, and a trial will focus on that particular issue, that person may have clouded judgment when it comes to that specific issue.  A person who grew up in a home where one parent was physically abusive towards the other may not be the ideal juror for a domestic violence case, but may be well suited to sit on a jury where the defendant is accused of driving while intoxicated, rendering a fair and impartial verdict.

The goal of any jury selection process is to find a number of people who are representative of the community where the trial is taking place and who can deliberate and come to a final determination based solely on the evidence, without letting their emotions or sympathies lead them down one path or another.  

Jury service is viewed by many as an inconvenience, people scheme to figure out ways to get dismissed because they either do not want the responsibility or do not want to have their lives interrupted.  But the fact is, it is an incredibly important aspect of the American criminal justice system.  Gaming that system has consequences for those accused of crimes. 

Recently, In Summation released an episode featuring the trial of Ghislaine Maxwell, the British socialite who was [effectively] tried as a proxy for Jeffrey Epstein after Epstein was found dead in his pretrial detention cell not long after being arrested on multiple charges of horrific sexual abuse perpretated on minors.

Though Maxwell’s relationship with Epstein was mysterious and murky, several of Epstein’s accusers testified that she was an integral part of their abuse.

Maxwell was found hiding out in New Hampshire while trying to avoid detection by law enforcement.  She was brought back to the Southern District of New York federal court, where ultimately she was tried and convicted of unspeakable acts against vulnerable young girls.  The podcast episode discusses the background, legal arguments, attorney strategies, and ultimate resolution of the case.

Shortly after the verdict was given, a revelation came out regarding the jury which now threatens to overturn the verdict and would mandate a whole new trial.  Let’s examine what has happened.

In high profile cases, when so many people have been exposed to what the media has reported (rightly or wrongly) about a case, it is sometimes useful for the court to send to all prospective jurors a questionnaire with questions tailored to the specific issues of the case to try to identify any biases or unshakeable views ahead of time.  These questionnaires seek to expose those jurors who have life experiences which might render them too biased to serve in the particular case going to trial.  The questionnaire sent to the potential jurors in the Maxwell case, naturally, had a section asking whether or not the individual jurors were victims of childhood sexual abuse, as that would clearly be a disqualifying experience.  It is unreasonable to ask anyone to separate such a traumatic childhood experience from their obligation to render whether such atrocities happened to others.

Enter Juror No. 50 (on questionnaires in high profile cases, jurors are typically identified by a number rather than by name to protect their privacy).  Juror No. 50 received and filled out the questionnaire.  He indicated that he had no history of sexual abuse or trauma.  On the basis of his answers he was seated on the jury.  He participated in the deliberations and was one of the 12 jurors responsible in determining that Maxwell was guilty.

After trials which are heavily covered in the media end, many news outlets will try to interview jurors to ask questions about deliberations, what was viewed as critical or important evidence, and why they ultimately reached the conclusions they did.  The Maxwell trial was ubiquitous in the media, so any juror willing to discuss the case was welcomed with open arms.

Within a week of the verdict, Juror No. 50 had given no less than three interviews where he indicated that he was a survivor of childhood sexual abuse, that he discussed this freely with the other jurors during deliberations and that he drew on that experience to try to convince other jurors to vote to convict Maxwell.  The reason that this is exceptionally problematic is that Juror No. 50 lied on his questionnaire, he explicitly stated that he had no history of sexual abuse.  Now, the pregnant question is whether he deliberately misled the judge, the prosecutors and the defense attorneys because he wanted to get on the jury and direct the verdict to guilty while knowing that if he was honest about his background he would not have been selected.

Swearing under oath to a false statement is perjury.  In this circumstance it could also be considered an obstruction of justice.  Judge Alison Nathan, who presided over the Maxwell trial, has ruled that Juror No. 50 must appear in front of her on March 8, 2022 to be questioned regarding his answers and actions post-trial.

Let’s talk now about why we should all care about this.  Why does it matter?  In short, juror misconduct goes to the very heart of the protections in our system for people accused of crimes to get fair trials.  Regardless of the evidence, the testimony, the proof put up against someone accused of a crime, that person has the absolute right to have those materials weighed by a group of people as fair and impartial as possible under the circumstances.  Juror No. 50 robbed Ghislaine Maxwell of that.  He appears to have violated a cardinal directive given by every judge in every criminal trial, the jury is expressly prohibited from using their personal experiences to shade their view of the evidence.  To be clear, jurors are encouraged to use their own life experiences to make determinations of credibility or to give weight to evidence in making their determinations about the facts of what actually happened.  However, they are not to bring in personal experiences to try to convince other jurors that the situation presented in the trial was akin to something that the juror went through and therefore that juror knows what outcome is appropriate.

Regardless of whether Juror No. 50 intended to be deceptive, it is my opinion that this is categorically unacceptable behavior that has, for too long, been condemned with words but without any real repercussions in our system.  Jurors are required to swear to the truth of their answers.  It seems fairly indisputable that any potential juror who received a questionnaire relating to a case with obvious national attention would carefully read the questions and would take care to make sure that answers were true and correct.  To claim later that the questionnaire was read in haste and that marks were haphazard and due care was not put into reading the actual questions and answers seems unlikely.  Yet I am unaware of any juror who has made material misstatements, influenced a jury, and faced any consequences.

It is past time for courts to take a stand against this type of misconduct and refer these cases for prosecution.  If an individual lies under oath in an effort to put him or herself into a position to exert undue influence over a criminal trial, there should be repercussions as these behaviors go to the very foundations of due process.  Everyone is entitled to a fair trial, and ensuring that everything possible is done to protect this sacred institution should be a priority for courts, prosecutors and defense attorneys alike.

By: Paul Townsend