They’ve already made up their minds

How many times during a trial do you try to guess what the members are thinking, and what their decision is – I would suggest we do that many times throughout a trial.  We do this because we are responding to a client’s comment about a look, a question, or the demeanor of one or more members. We do this to try and sense how our case is going for tactical reasons.  We do this because we hope to gain some “insight” on the next steps.  A pretty common reason is whether or not we feel the client needs to testify.

Of course we can never know what the members are really thinking.  During the occasional after court talk it becomes clear that what we thought the members were thinking was not what they were thinking, etc., etc., etc.

So, it’s a worthwhile effort in situational awareness to try and monitor the members.  But what happens if their thinking becomes more obvious or blatant – or possibly so.  At times, I have addressed the issue of the members having already decided the case or evidenced a bias because of a question one of them has asked.

At what point do you make an issue of the perception either with the individual member or the panel as a group?

Another area of concern is when you hear about comments made by one or more members outside the courtroom.  Perhaps something overhead in the passageway or in the head.

At what point do you make an issue of the perception either with the individual member or the panel as a group?

As with all things this is a matter of judgment.  Do you upset the members about something that is nothing, do you draw something to the attention of the members you’d rather they not focus on.  Or do you have a problem and it needs to be addressed now!

I had a case at GitMo some years ago where there was in court wrangling over a particular legal definition.  After a break we found out one of the members was looking the definition up in a legal text book.  The members deliberation was the SJA law library.  We dealt with that on the record.  This would be extraneous information.  See e.g., United States v. Lambert55 MJ 293 (C.A.A.F. 2001), about inquiry into members conduct.  Lambert is not “the” case, but it’s worth the read.  Check out, United States v. Dugan, 58 MJ 253 (C.A.A.F. 2003).

I am reminded of this piece of trialcraft by the case of United States v. Axsom, _ F.3d _ (8th Cir. Aug. 4, 2014) (No. 12-3703), brought to us by our friends at federal evidence review blog.  In that case the defense claimed that two members had come to a premature decision on guilt.Two items got the attention of the parties and the judge.

“[D]uring voir dire, “A prospective juror reported that banter between a Court Security Officer and an FBI case agent in the courtroom, while the judge and attorneys were in the jury room conducting individual voir dire, may have affected her outlook about the trial.”

o[O]n one morning during the trial, when the jurors were lining up to enter the courtroom, an alternate juror overheard one juror state: “It looks like this is going to be a long day today and tomorrow. Today may be the bulk of it.” A second juror replied, “Yeah . . . But I don’t know how much more they could say. It looks like we already know where it’s headed.”

To address the issue the judge took testimony from each of the two jurors, under oath.  While the judge concluded there were premature deliberations he declined to excuse the whole panel or either of the two jurors.  The jurors agreed not to have further discussions and also to keep an open mind.  The Eighth disagreed there were premature deliberations.  And in context of the overall trial there was no prejudicial effect on the right to a fair trial.  Essentially the evidence was insufficient on the issue.  But that doesn’t mean there would have been no meritorious issue if the evidence showed more, especially expressions of actual opinion on guilty or innocence.

So a caution for military judges as they go through the common preliminary instructions to members.  The Eighth found the trial judge’s actions effective to address the issue.  A different result maybe if the trial judge had done nothing?