Peterson Jurors Speak: Like many Volokh readers, I have not been following the Peterson trial very closely, if for no other reason than that I lack all confidence in the competence of California prosecutors to competently handle high-publicity murder trials. But listening to comments of the three jurors now being interviewed live by the networks, my faith in the jury trial system for criminal cases is reinforced. They are intelligent, careful, clear, conscientious and emotionally moved by their experience. Initially, I winced when I saw that the jurors were being interviewed. When I was a prosecutor, I always went to speak with jurors in the jury room afterwards, mainly to express my appreciation. I never asked them the sorts of questions these jurors were being asked. But I am glad I overcame my reluctance, and watched them soberly and thoughtfully respond to questions.

Update:This from a reader whose office put him under contraints in speaking with jurors after trials that were unknown in my office:

I share your faith in the jury system, having had the privilege of conducting a fair number of jury trials myself. Your post made me think of an issue I've thought about off and on for some time now. When I was a prosecutor in the [withheld] DA's Office (not too long ago - I'm in private practice with a firm in Washington D.C. now) we were discouraged from speaking to "convicting" juries for appellate reasons - mainly, the fear that we would hear something impugning the integrity of the process that we'd be duty-bound to report. While I understood and adhered to the unwritten rule, I often thought to myself that defense attorneys were not bound by such restrictions, and thus wouldn't it be better to be present (without actively participating) during such questioning to prevent the creation (accidental or otherwise) of an appellate issue? Or would it be better practice to do as the judge I clerked for did - mandate that he be present during any "debriefing"? Just curious about your thoughts on the matter.

I must confess that I love the entire jury trial experience, which may color my view. I always spoke with alternates, which carried it's own - mainly psychological - risks (they seemed to lean towards the opposite verdict that was ultimately reached, partial or otherwise, which to me demonstrates the power of deliberation). We were also discouraged from speaking with "acquitting" and "hanging" juries because the knowledge gained might be outweighed by the frustration the exercise would engender. The one time I had to deal with that agony was one of the most painfully educational experiences I've ever had. I was only there for 4 years, so I know I would have had to endure that unpleasant experience many more times had I stayed longer.

Perhaps the principal reason I always went to talk with jurors in the jury room after their verdict--which I had entirely forgotten when I posted--was to protect them from potentially inculpatory questions they might be asked by disappointed defense attorneys trying to lay the groundwork for an appeal. I tended not to ask them any questions, but to answer theirs and provide them with other information that confirmed their verdict, thereby personally reassuring them that their decision was well-founded. Also, they seemed to enjoy meeting counsel.

On one occasion, the day after a rape trial ended, I received phone calls from several former jurors informing me that the convicted defendant's cousin was out in the parking lot writing down license plate numbers and pointing at them as they drove home. They knew who he was because he had testified as an alibi witness for his cousin. This was the same person who (before he testified) I had asked the judge to summon into chambers so he could be identified on the record because of his attempt in the elevator to intimidate me and the victim during the trial. So when the jurors complained, having asked them to do their duty and convict the defendant, I felt obligated to have the cousin arrested, charged and prosecuted for improper communication with a juror, which because it was so unusual was not so easy to accomplish. But that is another story.

All the Power of the State: In closing argument, criminal defense lawyers like to contend that "with all the power of the State at its disposal" why did the prosecutor not produce this or that item of evidence? Well ordinary state court prosecutors (not attached to some special unit) have very little investigative power at their disposal. Our own "investigators" are no Andy Sipowicz's and, once the case is filed, the Chicago Police Department investigators, who do not work for the County, have no obligation to do anything for the prosecutor--though many do so out of a sense of duty to the case and camaraderie with prosecutors they respect.

This is illustrated by the story, to which I alluded yesterday, concerning the difficult process of bringing charges against the cousin of a rape defendant who had tried to intimidate the jurors in the case. I wrote:

I felt obligated to have the cousin arrested, charged and prosecuted for improper communication with a juror, which because it was so unusual was not so easy to accomplish. But that is another story.

To which one reader responded:

I would say: "Tell it! It sounds like a fascinating story." It's hard for us lay folk to find interesting stories that look into the system like this one would, and like your latest post did. So by all means - write it!

OK, you twisted my arm, but it might not be as interesting as you thought.

I first went to my supervisors who would have to approve any felony charges being brought for intimidating a juror. They decided (unsurprisingly) that writing down plate numbers and pointing after the trial was over was not a compelling case for a felony. I searched the statute books and found the misdemeanor crime of "Communicating with a Juror," the elements of which seemed to fit the facts and misdemeanors did not require a supervisor's approval to bring. (I am relating this from memory so the title of the statute could be off.) I then had to find a judge before whom I could swear out a complaint and ask that a warrant be issued. There was no obvious court to go for such a charge, but I found a judge in the building (the Criminal Courts Building at 26th and California) who was willing to do both.

All this was the easy part.

The hard part was getting the guy arrested. You would think that an arrest warrant would be enough, but you would be wrong. There are many thousands of outstanding warrants and, unless there is some compelling reason, the police are not out looking for any of the persons who are supposed to be arrested. Most arrest warrants are served only when someone is arrested in the act for some other crime, or stopped for a traffic violation.

There are (or at least were in those days) "warrant officers" in every police district, so I called several times to get them to execute the warrant. But no luck, and no surprise. Warrant officers were not famous for the diligence with which they performed their duties. After a few days, I called the District Commander and offered (this is the awkward part of the story) a week's worth of "time due" slips to anyone who would arrest this guy. (Time due slips were intended to compensate officers for time spent in court with time off the job.) Within 24 hours, he was in custody.

I then needed to go to the courthouse in another part of the city where the charges were pending to ensure that the case would not slip between the cracks. Rookie prosecutors in misdemeanor courts might not know enough to take the matter seriously. In addition to being arrested and having to come to court, the guy had to hire a lawyer. After a few appearances, I assisted in plea bargaining the case to a form of probation known as "supervision." If he got in no other trouble over the period of supervision, his criminal arrest could be "expunged" or removed from his record--a process for which he would have to again pay a lawyer. (Of course, the whole process was burdensome for me as well, as it was over-and-above my duties to develop my felony case files and try cases in the court to which I was assigned.)

Eventually, I talked to the guy and he confirmed my original instinct: he was just an ---hole. But my point was made. He had come into "my house" (the criminal court house) and disrespected me (as they now say), the victim, and the jurors. He needed to be taught that this was not kosher. Eventually, he was pretty contrite about the whole thing. Most importantly, I had backed up the jurors who had asked for my help. Notice from the original story that I had taken no action when the guy had tried to intimidate ME besides having him identified in case he became more of a threat that I thought he was. But when the jurors asked for my assistance, I felt bound to support them as they had done their duty as jurors as I had asked them to do in my closing argument.