The quick news is, Judge Pastor did not make a decision today because one juror did not make it to court due to an unavoidable emergency. Consequently the juror could not be interviewed. That juror, Juror #1 has been ordered back to court at 8:30 am, Monday October 5th.
I arrive on the 9th floor and see that Dr. Carroll Adams has rearranged some appointments and made it to court early to find out what's going to happen with the Brown jury today. Dr. Adams told me that in all the time he's spent in Pastor's courtroom, he didn't think he's ever seen Judge Pastor look as upset as he did yesterday, once this latest note from the jury came to light.
Dr. Adams and I talk about the Polanski case and the latest drama about the retired DDA David Wells who is now admitting he stretched the truth so to speak, to the HBO documentary film producers. Dr. Adams reminds me that when he spoke on camera in that documentary, he wasn't under oath. I mention the statements Polanski made in an interview several years ago, where he defends his actions of raping a 13-year-old girl by stating something to the effect of, everyone wants a young girl. Jurors want a young girl. Judges want a young girl. Again, Dr. Adams reminds me that Polanski wasn't under oath when he made those statements.
Harris and the woman working as the defense clerk arrive and go into 107. Patty is sitting at the very end of the hall. She's dressed a bit more casual today than what I've seen in the weeks I attended the trial. As Dr. Adams and I chat, DDA Hum and Deputy Leslie arrive. Sarah, her husband and a friend are here. Soon after, Denise Nix from the Daily Breeze arrives. After pounding on the door, DDA Hum and Leslie get admitted to 107.
The proceedings started before 8:30 am, but the courtroom is not opened to the public before that time. So as Carroll and I enter, I hear Harris in the middle of making an argument. Mavis is the court reporter up. There are several other attorneys in the courtroom, waiting to have their pretrial discussions put on the record.
PH: (It's) ...very clear there is misconduct.... [...] Appears to be the way it was phrased, they (the juror) consulted a dictionary but did not bring it (up? further?)
Judge Pastor then states he agrees with both counsel that they don't know the facts and they need to speak to the jury foreman. Judge Pastor also wanted to add that they received the note at around 10:30 am and after that the jury was excused.
JP: That has some meaning here as far as any (likelihood) [...] like Mr. Harris said, of infiltration [...] of the virus [...] and any other....
Judge Pastor asks Ms. Benson to get Juror #7, the foreman and direct him to his seat.
The juror is brought in and Judge Pastor starts to question him. The juror gives a bit of background on the malice discussion. I believe he states that one juror (unknown) asked if the group could use a dictionary definition for the word "malice." Juror #9 (the former alternate #2), states that if people would like I have the dictionary definition.
Some jurors were interested; some were not. The foreman then states that Juror #12 said no, we're really not supposed to use that. Then Juror #5 asked if they could at least submit it as a question to the court.
Judge Pastor clarifies some points with the foreman. He asks if it was Juror #5, but it's clarified that it was Juror #9 who voided this point, "If people would like I have looked up the dictionary definition."
JP: He looked it up on the Internet and printed it and some how it came up that is was the Columbia Dictionary?
J#7: He did have a copy. [...] He proposed passing it around.
(I'm not sure if the foreman states this or Judge Pastor asks: "But number 12 objected."
It's clarified that a piece of paper was brought into the jury room, and he (#9) said, "Here it is."
It was a few minutes later that people cleared it up. (A few minutes later that Juror #12 objected.)
JP: Was the info from the form read, disclosed by Juror #9?
JP: Was any definition of malice...
Juror #12 objected. The foreman decided to write a note when another (juror inquired).
The foreman states he did not see what Juror #9 did with the paper.
It's 8:43 am. The foreman is excused and Pastor asks to see counsel at sidebar.
There is a lengthy sidebar and Judge Pastor then asks Ms. Benson to get Juror #9.
Juror #9 is brought in. Judge Pastor starts off by saying something to the effect, "I'm advised a dictionary (was used?) yesterday morning, in part..... [...] Did you volunteer.
J#9: One of the jurors asked for the definition. [...] Wednesday, ... sometime, there was a mention.
Under extensive questioning, Judge Pastor asked the juror what he did and it was finally clarified that Thursday morning before court, Juror #9 accessed the Internet. He used a search engine. "I have AOL." He went to the AOL home page and typed in the word malice. He printed it out and gave it to Juror #7. He gave Juror #7 a piece of paper. Juror #9 states that, that morning he was in a rush and didn't read it.
J#9: I glanced at it. I didn't really read it. [...] We just talked about malice. [...] Juror #7 read the paper out loud. [...] Juror #6 asked about it. [...] The paper was passed to Juror #6. [...] Juror #12 opposed it right off the bat.
JP: Juror #7 read it out lout to...
J#9: Yes he did.
(Juror #9 has the paper on him and it's brought out and handed to the court I believe at this time.)
Juror #9 then clarifies that some of the information is highlighted but he didn't do it. Juror #6 did that.
Juror #9 is then asked to go into the jury room while the court and counsel go over the paper that was brought into deliberations. Terri Keith from City News Service arrives. At 8:55 am, Cameron Brown's parent arrive and the sidebar is still going on.
The stories between Juror #7 the foreman and Juror #9 are different. Dr. Adams reminds me that the jurors take an oath. They are sworn in. Everything they say in court is under oath. So either a juror is lying or their memories of events are different. I overhear at the sidebar they are trying to get a color copy of the piece of paper, since the highlighting is causing a problem with copying the document.
Pat Harris brings up a point and wants the Judge to ask Juror #9 another question so he is brought out again.
JP: In looking again at the copy, the page number says "one of two."
The Judge asks if there was another page. The juror states that he thinks it was blank. He states that this was the only page he brought in.
Judge Pastor then confronts the juror about his actions and the juror states he'd like to explain himself.
JP: Do you recall my jury instructions and specifically stating (not to use the Internet or access a dictionary)?
(I remember much earlier in the trial that this was the juror that Judge Pastor mentioned in open court that they were having trouble staying awake.)
J#9: Honestly, your honor, I don't remember. [...] I apologize to the court.
Judge Pastor then asks the juror, "Candidly, would you be able to disregard anything you read or heard, especially about (malice?) [...] not reading the dictionary?
J#9: When it was read out loud, it was read so softly....
The juror is excused and Judge Pastor says, "Mr. Hum? Some thoughts?"
CH: I think we are going to have to inquire (of the other jurors). [...] It would seem there's a possibility that some have heard. [...] I don't see anything around it.
Harris agrees and he wants to add that when Judge Pastor questions them, I believe he asks that the jurors are questioned, they can be told that's an incorrect definition. Pastor states he doesn't have a problem with that, "If it gets to that point."
Judge Pastor then works with attorneys from another case to go over scheduling for the next hearing while Ms. Benson is instructed to grab another juror. They are going to be polled individually and questioned. Judge Pastor informs counsel that they will pick juror numbers randomly. "That's how we do it so nobody has any rhyme or reason to it."
Judge Pastor asks Ms. Benson to get Juror #5. He then addresses the court and states that Juror #1 will not be here for several hours. I believe it's at this point he states that it's an emergency and a safety transportation issue.
Juror #5 is brought in and Judge Pastor starts to question him.
J#5: There was some slight mention. They were confused about the definition.
I believe Judge Pastor asks if someone objected.
J#5: Yeah, I think somebody did say that.
He's asked what juror number it was, and Juror #5 doesn't remember. Juror #5 states he did read the paper and that it was passed around. He states that the jurors were talking about it.
Judge Pastor then asks the Juror a serious question. "If the court directs you in the strongest terms to disregard this extra information, can you follow my instruction?"
J#5: What ever you say, I'll follow.
What happens next is kind of confusing, since Judge Pastor wants to make it clear what is being said and what is understood. The Juror then says, "I never saw it," with a smile on his face. The Judge appears to be confused for a moment, asks him again, the juror states the same thing, "I never saw it," and then I think Judge Pastor gets it.
JP: Don't go all Soprano on me.
The juror explains that he was trying to make a joke. Judge Pastor clarifies that when the record is read (back) that (innuendo) won't be understood.
Harris asks for a sidebar and afterwords, Judge Pastor asks the juror one more question.
JP: Did you suggest to any of the other jurors that we should perhaps bring it to the attention of the court?
That's it and he's excused.
Juror #6 is called into court. This is the black woman who injured her foot weeks earlier. Judge Pastor politely asks her how her foot is doing and I believe she replies, "Much better."
Juror #6 identifies it as Juror #9 who brought the paper into the jury room.
JP: What did he say?
J#6: He said he looked up the word malice and pass it around. [...] Juror #7 read it out loud.
JP: Did someone object?
She has trouble remembering which number.
J#6: I think it was number eleven.
JP: Are you sure?
J#6: I'm not sure.
JP: If the court directs you to disregard completely what you read [...] can you do it?
J#6: Yes sir. [...] Yes I can.
Juror #10 is brought in. This is a tall Asian man with a heavy accent.
Judge Pastor starts in with describing what he understands happened inside the jury room but the juror obviously isn't understanding the question at first. He thinks Juror #7 brought the paper into the jury room. He states that he did read the paper.
JP: Did #7 read it out loud?
The juror is not sure; he's vague about that.
Judge Pastor then asks him if he orders him to disregard anything he may have read from the paper, and tell you to disregard anything... [...] Do you think you can do that?
J#10: Yes sir.
JP: I'm ordering you to do that.
He's excused and Juror #2 is brought in. This appears to be a middle ages, very slender, tall black man with glasses.
Judge Pastor begins his questioning. The juror thinks that Juror #9 brought the paper in. He states the paper never got to him but it was passed around.
JP: Was it read out loud?
J#2: Yes. [...] I'm not sure.
JP: Did you hear the reading of it?
J#2: Yes, your honor.
JP: Did another juror ask for it to be stopped?
J#2: There was a question about submitting the question to you, about it's meaning.
JP: Who was that?
The juror states he can't remember. He states that he didn't read the paper but he did hear it.
Judge Pastor then goes on to ask the juror in strong language that if he directs him to disregard everything he heard and/or read, could he do that. He orders him not to consider (what was brought into the deliberations). The juror agrees that he can.
The juror is excused and Juror #11 is brought in. This is another Asian man.
The juror states he doesn't remember who brought in the paper. He can't remember if it was male or female. He states that he read the paper. It was passed around. He also states that the foreman read it out loud. The juror states that he thinks it was Juror #6 who said that it should be brought to the judge's attention.
Judge then asks him if he can disregard what he might have read/heard.
JP: Can you do that?
Juror #3 is called in. This is an Asian looking woman. Her face is quite round. She now has a cast on her left arm that she is holding up and Judge Pastor asks her several questions about how her arm is feeling. Judge Pastor asks her which juror brought in the paper. I miss whether or not she knew.
J#3: It started off with the foreman so I didn't hear.
She states that she didn't read the paper and she doesn't believe she heard the paper read.
J#3: I don't believe so.
She states that she knows someone read it but she, "...turned it off, because she knew from other instructions they received, the material given to them...." that she was not to consider anything that didn't come from the court. She tells the court that she can disregard the information because she already tuned it out.
She's excused and Juror #12 is brought in.
Juror #12 states that Juror #9 brought in the paper. He states that, "Yes, the paper was passed around. [...] I didn't want to read it."
JP: Did you suggest that this be brought to my attention?
J#12: No. I objected. I said we weren't supposed to use it. [...] #7 read it out loud.
The juror states he recognizes the instructions and he will be able to follow the judge's orders.
The upset juror from a few days ago, an older black man with a barrel chest, Juror #4 is called in. He comes in and sits in Juror #5's chair.
JP: Hi Juror #5.
The juror gets up and moves to his chair, #4. I believe he states that he doesn't know who brought it in.
J#4: We all looked at it. [...]I read it. [...] I looked at it. [...] It was the consensus that one person read it and that was #7.
At first he doesn't remember the number of which juror didn't want the jury to use it. After questions by Pastor, he describes the juror as the young oriental man.
The judge asks him the same closing question in stern terms if directed, can he disregard what he read in the paper. He states that he can. The judge so directs him.
J#4: Yes sir.
The last juror called is Juror #8. The juror is asked if someone brought in some paper to the jury room.
J#8: I think it was #7. I'm not sure.
JP: Was the paper passed around?
J#8: Yes, I think so.
The juror states he didn't read the paper but he heard it read.
JP: ...Another juror asked that it be brought to the attention of the court?
J#8: Yes, but I don't recall (the number of the juror).
Judge Pastor asks this juror if he can disregard the information he heard and follow his instructions. He says that he can.
The juror is excused and Judge Pastor and the counsel agree that they need to recall Juror #7, the foreperson.
Juror #7 is called in and he is instructed to sit in the back row. All during the hearing outside the jury's presence, Judge Pastor is aware of the time, his other trial that was being held up and how long this is dragging on. After a few jurors were called, he asked Ms. Benson to have them lined up outside to speed things up. Having the juror just step inside 107 and sit in the plastic chairs against the back wall near the door was in Judge Pastor's words, "...to save a few steps..." to the jury box.
JP: At some time did you actually read out loud (the piece of paper)?
J#7: No. [...] It was first brought in...
He explains something that I miss about it being brought in and then contradicts himself by saying, "[...] What happened was.... [...] I might have read the first few lines...."
The juror is excused and Judge Pastor explains that they still have Juror #1 to interview. They will come back Monday morning to finish with Juror #1. Judge Pastor asks counsel if it's okay to inform the jury what's going on with Juror #1. I believe Ms. Benson chimes in and states that they already know. Two of the alternates are here, but Alternate #4 is at work. Judge Pastor states he's going to request that the jury get here on Monday at 8:45 am.
The jury is brought in and Judge Pastor painstakingly explains the instructions to them again.
JP: I've been ordering you, every chance I got, ordering you [...] giving you instructions not to [?] the case. He gives them the detailed instruction again. " [...] Not to perform experiments. Not to consult references, site resources, legal definition. [...] Don't access the Internet, Facebook, MySpace, Twitter, etc. [...] You must only follow the legal instruction I give you. [...] Have we heard this before?
Jury in unison: Yes, your honor.
JP: Are we clear?
Jury in unison: Yes, your honor.
The jury is told when to report back and then they are released until Monday. Judge Pastor tells the courtroom that Juror #1 will be here at 8:30 am on Monday.
JP: (If anyone has...) any particular legal citations let me know and we'll go from there.
That's it; until Monday.
I chat with Carroll about his thoughts on what Judge Pastor might do. He's seen Judge Pastor in action through many trials but he's not sure what the remedy is. During the proceeding, I noticed that Katie and Lisa had shown up. As I was leaving I stopped by the third row to say hello to them. They said they were staying because they had started to follow the current case before Judge Pastor. I ask them what they thought. Katie said that they were here yesterday when this all happened and that Judge Pastor mentioned while on the bench that this type of stuff, of bringing in dictionary definitions happens quite often.
We won't know what he decides until Monday. At this point I don't think that anyone wants a mistrial. Certainly the state doesn't because they're broke. I doubt Brown does, because a retrial might take at least a year or more to get back on the calendar and Judge Pastor may retire before that would happen.
I certainly think this is an appellate issue the defense can bring up if Brown is convicted. However, I don't think it is a serious error that would cause irreversible prejudicial harm to the defense. We'll just have to wait and see what happens on Monday.
Denise Nix from The Daily Breeze wrote an excellent synopsis of what happened in court as well as detailing malice and the legal definition.
(I don't know this for a fact but I think that Denise Nix knows the old fashioned "shorthand" which is why she is able to take such articulate notes.)