Legal experts said such an extraordinary communication would represent a tipping point in the already troubled deliberations in the case, the moment at which the six-month trial might have gone irreparably off the rails. The moment came after frustrated notes from the jury late last week indicated that one juror had simply ceased deliberating.
Though contentious deliberations are hardly unusual and though studies suggest that some 6 percent of all jury trials end in hung juries, the conduct of the juror in the Tyco case shattered two fundamental premises of the system: at least until their deliberations are concluded, juries are meant to be faceless wholes and their work wholly secret.
“What’s so odd about it is that in the ordinary trial, jurors try so hard not to disclose to anyone what they’re thinking,” said Shari Diamond, a law professor at Northwestern and an expert on juries. “Her behavior, on the other hand, has been so confident and so public.”
Paradoxically, the more that is known about the identity and the views of the dissenting juror, the less the judge in the case, Michael J. Obus of State Supreme Court in Manhattan, can do to preserve the possibility of a verdict. That would be true, legal experts said, even if all Justice Obus had to contend with were the jury’s notes, including one that called the deliberations “irreparably compromised.” Appeals courts often reverse convictions that follow jury instructions that are directed at a single juror. Such instructions are often ruled to be unduly coercive.
In his comments to jurors on Friday urging them to calm down and keep talking, Justice Obus took pains to indicate that his words were “certainly not directed at any individual person among you.”
Later, though, he made a comment that some in the courtroom suspected was aimed at the holdout juror.
“You need to treat each other with the respect and dignity that you would expect for yourselves,” he said. “You all have life experience. Some of you are even a little older than I am.”
Justice Obus is 55. Only a few of the jurors are older. The presumed holdout is 79 and, to the surprise of many, a former lawyer herself.
The situation has been further complicated by media reports, first on the Web site of The Wall Street Journal and then in several newspapers, naming the juror. The New York Post, which named her Saturday, called her the “holdout granny.”