This One Could Go to 11

Live from the Ted Stevens Trial, Day 23

Washington, D.C.--

The trial is shut down for the day after a hearing this morning to discuss the missing juror (# 4), and it’s not clear when jury deliberations will resume.

Why the Missing Juror Left

Judge Emmet Sullivan told the assembled lawyers that he had spoken twice with that juror, with both telephone conversations apparently happening last night following the after-hours hearing.

The juror has told the same story both times, once to the judge alone and once in a follow-up conversation which also included one attorney from each side.

Juror # 4’s father has died, and she was scheduled to leave early this morning to attend funeral services in California. (The judge noted that last night he had incorrectly stated that Texas was the juror’s destination.)

Picking Among the Options

Based on these facts, the judge and the lawyers discuss what course to take. The judge identifies three options:

1. Recess the trial today (and perhaps Monday), while checking in with the missing juror on a Sunday afternoon telephone call to see if the juror would be ready and able to come back and allow deliberations to resume Monday (or Tuesday at the latest).

2. Replace Juror # 4 with Alternate # 1 (who was Juror # 11 on the original 16-member panel before being put on alternate--stand-by--status when the judge cut the jury down to 12 before deliberations started on Wednesday).

3. Dismissing Juror #4 and going with 11 jurors.

The defense wants to go with Plan # 1 (punt and wait and see), and the judge is clearly leaning toward it. The prosecution prefers Plan # 2 (bring in new juror). Judge Sullivan notes that both sides agree that Plan # 3 (cut the jury down to 11) is acceptable.

Judge Sullivan discusses the pros and cons of each option. The judge is bothered by the built-in inefficiency of bringing in a new juror because of the need to start deliberations all over again.

The judge also expresses concern about going down to 11 jurors because if another juror is lost, there would be “major problems.” Referring to yesterday’s request by 11 jurors that the court remove Juror # 9 for unacceptable behavior in the jury room, Judge Sullivan notes delicately that the history of the deliberations in this case suggests the potential of losing two jurors.

The talk of “major problems” in losing two of the original 12 jurors is that it creates the possibility of going to a 10-member jury if for some reason the judge couldn't find enough available untainted alternates to keep the jury at least 11-strong. The law offers strong support for an 11-member jury--with or without the consent of both sides--but puts a jury of 10 or fewer on substantially shakier ground.

Implementing the Choice

The judge decides that Plan # 1 is the best option, and announces that there will be a telephone call to the missing juror on Sunday at 5 p.m. to assess her ability and attitude regarding her jury service. That phone call will have the judge and one lawyer from each side calling that juror on her cell phone, and will be followed by a hearing at 6 p.m. Sunday to put on the record what was learned. The judge suggests strongly that deliberations might resume Monday or Tuesday, but if Juror #9 can’t get back until Wednesday—or if there’s any uncertainty about her return as of the Sunday phone call—then the judge will replace the missing juror with Alternate # 1.

Judge Sullivan then calls in the other 11 jurors to tell them that they get a day off. He also tells them to give court staff telephone numbers where they can be reached on Sunday evening. The judge notes the absence of Juror # 4, and tells the other jurors not to try to contact her.

The judge then calls in Alternate # 1, a white woman who works in information technology, appears to be under 35, and took a lot of notes during the trial. He asks her a number of questions to make sure that she had remained untainted during her time on standby status, and satisfies himself that she would be acceptable. The judge tells Alternate # 1 that she needs to be ready to take a phone call on Sunday evening telling her whether to show up for deliberations on the jury.

The Various Views of the Jurors, the Public, and the Lawyers on the Twists and Turns

The Anchorage Daily News noted in its reporting that while the jurors have always appeared to welcome any time off, for the first time this morning they look unhappy with the judge telling them to knock it off without doing any deliberations at all today. As one observer put it, how would you feel if you made a lot of effort to get to work in the morning and your boss immediately told you to turn around and go home?

Jurors might also feel dissed as well as jacked around. The judge’s failure to disclose the sudden family emergency of Juror # 4 as the reason for the forced delay might make the other jurors speculate as to the reason for her absence, or even wonder if somehow the conflict inside the jury room had led the judge or the lawyers to give them a bad job evaluation that required a suspension. Good working conditions are particularly important if you’re not paid well—if not reimbursed by their employer for jury service, each juror on this trial gets $40 a day.

The public and the lawyers involved have wildly different perspectives on the twists and turns in jury deliberations. The public will probably be very interested in the jury issues. In a trial that has featured matters as boring as timekeeping records and plumbing bills and as exotic as blue-eyed huskies and a Pakistan pipeline, the last three days have been about anger and death, subjects everybody can relate to. As one observer suggested, the issues involving jury deliberations have the same kind of human interest appeal you might see in People magazine or on daytime television.

The attorneys in this trial, however, have a much more strategic view of who sits on the jury. For them, this is like a game of go or chess as played on a small boat in stormy waters: You’ve got to watch your opponent’s moves and plan yours out ahead as far as possible, but you’ve also got to deal with the pieces slipping due to forces beyond the control of you or the other player.

The defense team, for example, seems to have more than one reason for liking the idea of going to 11 jurors instead of adding an alternate. It appears that the defense doesn’t want the judge to seat Alternate # 1 out of fears that she would be pro-prosecution. In addition, the turbulent history of deliberations so far suggests that going to 11 jurors maximizes the chances of going to 10, which would create a much better point on appeal if Sen. Stevens were to be convicted.