At the trial of Isidro Samuel Reyes in 1995, Juror No. 12 went through two days of worrisome indecision. He truly believed the defendant was not guilty, but the weekend was approaching, and he was the only holdout.
What was juror Shakeed Fareed to do? At lunchtime on a Thursday afternoon he went to his car, ate some lunch and thought the matter over. Then he flipped a coin. Heads, Reyes was guilty. Tails, Reyes was not guilty. The quarter came up heads. He thought, better go for two out of three. He flipped again. Heads again. That did it. He returned to the jury room and voted "guilty." The judge gave Reyes seven years in prison for possession of cocaine base for sale.
What about it, you curbstone constitutional lawyers? Was Reyes entitled to a new trial because the verdict was reached by chance, rather than by informed deliberation? The California Court of Appeal affirmed the conviction:
"While the method used by (the juror) may be disturbing, and is indeed unorthodox, it does not constitute a chance verdict or one determined by lot. Were we to examine his reasons for voting, we would be probing the mental processes of this one juror, something which we are prohibited from doing."
Reyes has taken the case to the Supreme Court, where it is pending on his petition for review. If there is any Supreme Court precedent precisely on point, counsel has failed to state it. In any event, because the cloudy facts make this a hard case, I doubt that the high court will hear it. Hard cases make for bad law.
The criminal charge dates from July 16, 1994, when Reyes was in a housing project in Culver City. When he saw a police officer approaching, Reyes threw three plastic bags onto the roof of a building. The bags contained cocaine. One trial resulted in a hung jury. A second trial began on Nov. 1, 1995. The 12-member jury began its deliberations on Nov. 7 and returned its guilty verdict about 3 p.m. on Nov. 9.
Three months went by, and the juror's conscience got the better of him. On a motion for a new trial, he 'fessed up.
Q: Why did you flip the coin a second time?
A: I flipped a second time because I was not satisfied with a guilty. My whole thing was I never thought he was guilty to begin with.
Q: So when you flipped it a second time, what happened?
A: It came out heads again, meaning he was guilty due to the coin.
Q: Did you stop there?
A: Yes, I did.
In denying Reyes' motion for a new trial, the judge ruled that as a general proposition, a juror's subjective mental processes are out-of-bounds. There are exceptions to this rule. One exception is that juries are not permitted to decide a case by chance or by lot. If the jury as a whole had agreed in advance to the juror's coin-flipping jurisprudence, it would have been a different matter. On the final Thursday afternoon the other 11 jurors had no way of knowing why Fareed had changed his vote at last.
California's penal code permits a new trial "when the verdict has been decided by lot, or by means other than a fair expression on the part of all the jurors." Moreover, the code specifically permits the testimony of one juror to be used as evidence to prove the verdict was reached "by a resort to the determination of chance."
To justify a retrial, said the Court of Appeal, a tainted verdict must result from a jury's agreement in advance. "A verdict by chance or lot does not refer to the mental processes of one juror, in isolation from his or her fellow jurors. If the jury panel uses some tool, such as a coin, the roll of a dice or a mathematical formula, to assist it in reaching a conclusion, but there was no antecedent agreement to use that result as the verdict, there is no impropriety."
I am of two minds. All the Constitution requires in a criminal case is a "speedy and public trial by an impartial jury." It certainly is not unknown — or even unusual — for holdout jurors to change their votes for personal reasons that have nothing to do with the evidence. My inclination would be to give defendant Reyes a third trial, but I don't know. Suppose there had been no flip of a coin. Suppose juror Fareed had yielded simply because he was tired and wanted to go home?
Universal Press Syndicate