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Ghislaine Maxwell’s conviction can survive a juror’s disclosure, by Stephen L. Carter

Ghislaine Maxwell’s conviction can survive a juror’s disclosure, by Stephen L. Carter

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The news that a juror in Ghislaine Maxwell’s trial apparently failed to disclose that he was a victim of sexual abuse might be stunning, but as a legal matter it’s likely to blow over. Courts hesitate to delve into jury deliberations, and defendants who plead juror misconduct hardly ever win. And the reasons we draw a curtain around the jury room help preserve the myth of impartiality that attaches, even in our angry age, to the great majority of jury verdicts.

Maxwell was convicted Dec. 29 of trafficking charges. Afterward, a juror to whom the press is referring only as “Scotty David” told media outlets that he himself had been a victim of sexual abuse, and that he told his fellow jurors about the experience.

Let’s suppose Scotty David did exactly what he says he did. That doesn’t mean the verdict is tainted. As I tell my Evidence students every spring, the jury room is the ultimate black box, and the criminal justice system revolves around the rest of us not knowing too much about what happens once the bailiff shuts the door. The law is constructed to make scrutinizing the deliberations all but impossible.

Because Maxwell was tried in federal court in New York, the judge will be guided by a 2015 decision by the U.S. Court of Appeals for the 2nd Circuit. The case involved a juror in a fraud trial, who subsequent to the verdict admitted that she had intentionally concealed, among other facts, that she was a lawyer; that her law license had been suspended; and that both she and her husband had prior criminal convictions.

In overturning the conviction, the panel emphasized that the juror not only lied but did so “precisely in order to gain a place on the jury.” Her conduct was motivated by a desire to make herself “marketable” as a juror so that she might convict the defendant.

But the standard is a high one. That a would-be juror lied wasn’t enough. That she was biased wasn’t enough. The verdict was overturned because she lied and was unable to set aside the bias in deliberations.

Why isn’t a juror’s lie enough to force a new trial? Maybe because the opposite rule would leave few convictions standing. By the most cited estimate, an astonishing 25% of those in the jury pool lie either on the questionnaire or during examination in the courtroom. That figure comes from research conducted during the 1990s, but nobody imagines that we as a nation have a greater tendency toward truth today than we did then.

It also might not matter that the information Scotty David failed to disclose was relevant to the charges in the case. To take just one of the many pertinent examples, in 2011 the Alabama Supreme Court refused to disturb a murder conviction where a juror failed to disclose that her own father had been murdered.

Nor will a verdict be overturned simply because a juror brings into the room a life experience that isn’t part of the evidence. In a 2003 case involving domestic assault, for example, a Nevada court refused to find misconduct where a juror who worked as a nurse told her fellow jurors that the small bumps on the victim’s head resembled those she’d seen on women whose hair had been violently pulled.

None of these examples led to a new trial because of the import that we attach to preserving that black box. In the much-quoted words of an earlier Second Circuit decision, “The jury as we know it is supposed to reach its decisions in the mystery and security of secrecy.” One reason for the mystery, the court wrote, is to protect the jurors from retribution.

But another is to maintain the myth that verdicts are governed by impartiality and reason. We know that real jurors are human, that they enter the courtroom burdened with biases, biases and more biases. We trust them to put those biases aside. But our ideal juror remains Juror 8, played by Henry Fonda in the classic courtroom drama “Twelve Angry Men,” the soft-spoken gentle soul whose patient reason persuades the eleven who have voted for conviction to change their minds.

If only that was how juries behaved! As scholars have long pointed out, however, in real life it’s almost always the other way around: A lone holdout gives in to the pressure of peers. The effect has been seen not only in determining guilt or innocence but, in capital murder cases, deciding whether to recommend a death sentence.

But the studies also tell us that jurors defer to perceived expertise among their fellows. That’s why lawyers are often excluded from juries. It’s also why jurors seem to pay close attention when one of their own discloses a relevant life experience. In other words, if Scotty David did indeed talk about his own assault, it’s possible that his tale influenced the outcome.

Nevertheless, unless evidence turns up that Scotty David lied in order to get on the jury because he wanted to convict Maxwell, it’s not likely that the verdict will be overturned. Lies alone aren’t enough. After all, we’ve got a myth to protect.

Nevertheless, unless evidence turns up that Scotty David lied in order to get on the jury because he wanted to convict Maxwell, it’s not likely that the verdict will be overturned. Lies alone aren’t enough. After all, we’ve got a myth to protect.


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