By Paul Goldman
Editor's note: Paul Goldman is a guest columnist for DecisionVirginia.com. The views expressed below are his own and do not necessarily reflect the opinions of NBC12.
“The waiting is the hardest part” observed rocker Tom Petty in his megahit single The Waiting. According to Petty, he wanted a song with a catchy opening lick, a real grabber from the first note. And wow, did he ever get it! Yet that’s all the rocker had to start, not a single lyric. It took a good week to write the first line. The song led the charts for six weeks. Hopefully the jury in the McDonnell case is not going to keep everyone waiting six weeks for a verdict.
We are now in “hurry up and wait” mode for roughly 12 hours of deliberation and counting, according to military time. The O.J. Simpson murder trial jury took less than four hours before finding him not guilty for two bloody murders.
According to a national study cited in a news story about a high profile criminal case, the average jury in such media madness takes upwards of twice as long to reach a verdict than in a more routine case. This makes intuitive sense. “They’re going to know they’re under a lot of scrutiny. In a high profile case, everyone is more careful,” observed law professor Ted Sampsell-Jones. .
How long will the Jury Deliberate? One thing we know for sure, it will not be a case of Waiting for Godot, the most celebrated play to ever receive such little attention when first performed in a very small Paris theatre. Many consider Beckett’s play, in the so-called absurdist school tradition, among the most important literary works in the last century. I never could understand it but at least it was short. Here, the Jury can’t pull a pull a Godot and refuse to show up.
Assuming the research on high profile cases is correct, then the McDonnell jury has been predictably careful, not worrying about the media game clock. There is also research suggesting the Bob and Maureen McDonnell have a better chance to prevail with this 12 jury panel than would have been the situation with the smaller six juror makeup permitted in certain trial settings.
This finding is consistent with the so-called leadership theory regarding juries. The 12 McDonnell jurors are likely, or so goes academic research supported by trial attorney experience, to have several individuals very assertive in their efforts to shape all the opinions inside the deliberation room. These leaders have more sway in the smaller six member jury panels. We all have experienced similar group dynamics. The jury foreperson often, but far from exclusively, plays this leadership or opinion shaping role.
Logic suggests the former Governor is going to need one or two leaders in order to be exonerated on all counts, or as holdouts for a hung jury, if they can’t convince anyone else. Should the leaders be pro-prosecution, then a big time guilty verdict could be the result.
How long will the jury deliberate? Academic studies and courtroom experience point to this: jurors will very much want to reach a verdict by Friday afternoon. Otherwise they have to carry the trial into the weekend and next week. This has been a long trial. They want to get back to their real lives.
If the jury goes home Friday without a verdict, then this strongly indicates one or more jurors have not been persuaded by the majority. Does a longer, as opposed to shorter, deliberation period favor the prosecution or the defendant?
There a lot of theories on both sides. There is no consensus view, although many top trial lawyers have strong opinions. For those who believe the McDonnell’s best hope is a hung jury, longer would seem logically better.
At some point the jury is expected to send Judge Spencer a note asking for clarification or assistance in some aspect of the evidence or instructions. This could be the news today therefore.
Jury research suggests a juror will tend to make a gut decision on whether to better believe the prosecution or defense theories of the case. This seems a very live possibility here given all the testimony and exhibits. Who can truly examine and reflect upon it all?
Some suggest this might create a textbook case for the jury leadership theory given the circumstantial nature of the evidence. As Sherlock Holmes pointed out, getting someone to see such evidence from a slightly different angle can greatly change their view.