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Jewish World Review April 1, 2004 / 11 Nissan, 5764

Jonathan Turley

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One angry Tyco juror does not make twelve angry men | The now-famous Juror No. 4 in the Tyco case in New York has made headlines for her steadfast refusal to convict on any count, bringing to mind the inspirational character of Henry Fonda in "Twelve Angry Men" — a lone citizen standing firm against 11 often-hostile jurors with only logic and principle on his side. The holdout juror is nothing short of an American icon.

In the end, however, the Tyco juror is more likely to challenge than uphold this romantic image: Her antics reveal the real vulnerability of the jury system to the will and whim of a single juror.

Suddenly, a single juror deliberating in a case of alleged corporate corruption has become the object of public debate. Her character and her willingness to yield after press pummeling is water-cooler fodder. She has been labeled "Ms. Mistrial" and a "batty blueblood" by the New York Post. The New York Times told the world that the concierge where she lives says that she tips badly and didn't give a Christmas bonus.

All of this is the inverse of "Twelve Angry Men," in which jurors were defined only by their jury numbers. It is not until the final scene that we actually learn the name of Juror 8 (Davis), played by Fonda, or that of his ally, Juror 9 (McCardle). They then disappear into the streets — rejoining society as individuals. The film captured the ideal of service; the yielding of one's personal bias and interests and even identity to achieve a higher good.

That Tyco Juror No. 4 can no longer uphold the ideal of anonymous service is hardly her fault. However, in other ways, No. 4 has proved on her own to be half the measure of No. 8. She has shown the same courage to hold out, but she appears to share few of the Fonda character's other traits. He scrupulously sought dialogue among his fellow jurors and avoided dogmatic opposition. In the Tyco case, one alternate juror has complained that No. 4 was overtly biased toward the defense from the start, nodding in approval of defense arguments and arguing with her fellow jurors during the trial. Other jurors complained that she refused to even discuss guilt. It is hard to imagine the Fonda character giving either side the OK sign during the trial — but that's what Juror No. 4 is alleged to have signaled to the defense at one point.

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The fact is that in the nearly 8,000 instances of hung juries each year in this country, single holdouts are often not inspired but irrational; not catalysts of justice but obstacles to it. In a Texas case, murderer Marcus Cotton was spared by a single holdout juror in his first trial despite overwhelming evidence that he killed a young Texas prosecutor, Gil Epstein. Cotton was fingered by his accomplice and other witnesses, including a security guard who saw Cotton shoot Epstein in the parking lot of a Jewish Community Center in 1996. Cotton confessed to the killing to a friend. Yet a single juror refused to even consider his guilt. According to the other jurors, he was insulting, swore in deliberations and insisted that Jews were rich enough to fund CrimeStoppers to solve crimes. It took a second jury less than an hour to convict Cotton.

If the heroic ideal in "Twelve Angry Men" often fails to exactly match typical holdout jurors, the movie did succeed in capturing other elements of the type. Classic holdouts tend to be not so much self-obsessed as extremely self-confident. They are often professionals or entrepreneurs, sole business owners.

The Fonda character fitted this mold; he was a self-assured architect. Juror Number 4 in the Tyco trial is similar: She is a retired lawyer and former schoolteacher. In one recent grand larceny case in New York City, a jury deadlocked 11-1: The holdout was Wall Street Journal reporter Danielle Reed. Reed also possessed the same confidence that allowed her to withstand what she described as intense pressures to conform.

The fact that Juror No. 4 was an attorney raises some serious concerns about her approach to the deliberations. In some states, lawyers are wisely barred from service on juries. The reason is obvious. A lawyer on a jury can unduly influence the other members of the panel. Conversely, when a jury is not impressed with the conclusions of a lawyer in its midst, there is a high risk of confrontation and obstruction.

New York once banned lawyers but did away with such occupational exemptions in 1995. This case may prove the folly of that reform.

It is, of course, possible that Juror No. 4 will prove to be a modern Fonda character, a heroic figure brought to life, but I doubt it. Ultimately, she may prove more like Juror No. 10 (the Ed Begley character) in "Twelve Angry Men," not just thoroughly boorish but hopelessly biased.

What is clear is that a mistrial should have been declared when the jury impasse became a public controversy over the role of a single identified juror. Rather than the triumph of the American jury system found in "Twelve Angry Men," the Tyco trial shows its ultimate trivialization.

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JWR contributorJonathan Turley is a professor of law at George Washington Law School and a criminal defense attorney. Click here to visit his website. Comment by clicking here.

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© 2003, Jonathan Turley