Last month, the same week that jurors were deliberating the California murder case of Scott Peterson, a mistrial was declared in Greeley when a jury declared itself deadlocked during deliberations in the double-murder trial of Alan Bergerud, accused of killing his former girlfriend an acquaintance. It was a stunning blow to the prosecution, which was seeking the death penalty. Now, three jurors say they were conned by a fellow juror. They say they deliberated for three days before taking a vote. When they took their initial vote, it was 11-1 for guilty. The dissenting juror allegedly admitted doing research on the Internet and discussing the case with others. To top it off, they say, the juror, Glen Kaufman, had sons of his own in trouble with the law:
The man told them one of his sons will be tried for attempted murder and first-degree assault for allegedly injuring his girlfriend, the jurors said. The other is on a most-wanted list in connection with a drug case, they said.
The Weld County Sheriff's Office is investigating . This shouldn't take a rocket scientist to solve. During jury selection, both sides and the Judge had the opportunity to ask questions. Jurors say Hoffman told them he disclosed his sons' circumstances to the prosecution. A reading of the transcript should reveal all. While having sons in trouble with the law doesn't make one ineligible for jury duty, lying about it would be a problem. Michael Radelet, C.U. Sociologoy Chair and death penalty expert says:
... he's astonished that the prosecution would not have done background checks on the jurors for such a high-profile death penalty case. "It sounds to me like there may very well be juror misconduct, but even more glaring is the prosecutorial incompetence to let a person like that on a jury without doing a background check," Radelet said. "Any prosecutor that would let a person like that on a jury is just incompetent. That type of error should never occur; that type of sloppiness should never occur."
DA Al Dominguez disagrees, asserting that his office does not have the resources to conduct background checks of final jurors. That seems a little disingenuous when his office had the resources to prosecute a death case. A death penalty trial is far more expensive than a regular murder trial. Dominguez and the defense each could have excused 14 jurors for no reason. Neither he nor the defense used up all their challenges. So these jurors were acceptable to both. Dominguez now claims,
"You usually don't get a true picture of what these people are like," he said.
That's baloney. A skilled trial lawyer knows how to question a juror, elicit their opinions and get a sense of their credibility, biases and motives for serving on the jury by asking them open-ended questions on a variety of subjects. If the topic is a sensitive one, it can be done behind closed doors. In addition, each potential juror in the Bergerud case filled out a questionnaire answering 90 questions. This is not to say that a juror can't lie their way onto a jury -- there are stealth jurors out there -- but it's certainly not a crapshoot. It was Dominguez's job to get a "true picture" of those who would sit in judgment of Bergerud. If he wasn't up to the task, he should have engaged a jury consultant. Some draw comparisions between the Scott Peterson case and Bergerud's case and argue Judge Lowenbach should have dismissed Hoffman and appointed an alternate to continue the deliberations. That would have been the fastest route to a reversal. You can't dismiss a juror because he disagrees with the majority. The dismissed jurors in the Scott Peterson case reportedly were not let go because they disagreed with finding guilt.
Such a juror swap could cause an instant appeal of a guilty verdict because the person dismissed would have been the one person holding out for a verdict of not guilty. An appellate court would most likely overturn the verdict and send the case back to the court for another trial.
It sounds to me like the prosecution got outsmarted by the defense. Bergerud's top-notch Denver lawyer, Joseph Saint-Veltri, got Dominguez to agree not to give the jury the option of deciding whether Bergerud was guilty of a lesser crime than first degree murder. Had the jury had lesser options, jurors now say, Hoffman might not have held out for acquittal.
The jury had been told they could only find Bergerud guilty or not guilty of the first-degree charges. There were no lesser possibilities -- that had been agreed upon by attorneys on both sides. There was no chance, for instance, of finding Bergerud guilty of second-degree murder. The three jurors interviewed all said if more options were available, they would have had a verdict because Hoffman's problem was with the first-degree nature of the charges.
Dominguez may have gotten over confident of a murder one conviction and not wanted to risk losing the death penalty if the jury came back with murder two. That was a miscalculation on his part. But it also means the system worked. At least for Bergerud. Bergerud will face a second trial. As to Hoffman, if it turned out he lied during jury selection, he could face a second degree misdemeanor charge. If he violated the Court's orders during deliberations, he could face contempt charges. The jury system did not fail. At most, it took a detour. So let's not hear more cries for legislative bills to end the requirement of unanimous juries.