Yesterday when the jury was comming back from a break, one particular female Juror made eye contact with the D.A. and then produced a huge smile. However, I could not see the D.A.'s face from my angle but from her body language, she reacted to it! I don't know what influence the female juror had on her piers. However, throughout this hearing, it appears that the D.A. is out to get me (yes I know, every defendants war cry). Nevertheless, I am truly concerned. As I see it, this case was going slightly in my favor. Now I am completly in fear. I am not saying "they planned this" or anything. I am sure it was coincidental, but coincidental or not, I wouldn't be smiling in this venue at my freind as if I were up to something. Can I have the juror dismissed? they just started dliberations.
Thank you mr. Guyette. I will tell my attorney immediatly. However, if that fails, what is a waiver and how do I produce or submit one? ~ Thank you as well Ms. McCall. Your answer is greatly appreciated and I will write the letter personally and leave my attorney out of the matter
You need to raise your concerns immediately to the trial judge through your attorney.
If the judge feels there is cause to inquire, he can do so, and if need be, replace the juror with an alternate.
Failure to do so now when there may be a remedy may result in a waiver.
The experience you are having in your present criminal case is, remarkably enough, fairly common. And it's not too hard to trace the origins and see that every jury trial is potentially colored by these kinds of dynamics. Remember the voir dire process at the beginning of the trial, where each side's attorney had the opportunity to question the jurors? What is really going on in those mini-conversations with individual jurors is a concerted and surprisingly overt effort by each attorney to "connect" with each juror -- to make the jurors individually like the lawyer, to trust, believe and feel a special and personal bond. The hope is that all of that "connectedness" accrued in voir dire will evolve into "sponsorship" during deliberations -- that is that the jurors with whom the attorney was able to establish an emotional connection during voir dire will take up the position of the attorney and act as advocates of the attorney's position to the other jurors during jury deliberations.
All lawyers do it in every jury trial and it works, to one extent or another, in almost every case. No surprise then that sometimes some of those warm personal connected feelings are evident during the actual taking of evidence.
So, what can be done? Very little unless and until a certain unmistakable "tipping point" is reached. Every former prosecutor I know can tell you stories about the weird experience of making final argument to a jury panel while one or several jurors are nodding their heads up and down in agreement with each point argued. But I have never seen a judge willing to address the "gestures" issue (except with witnesses as they testify -- a separate issue). Judges seem to believe that the many admonitions given during the trial and jury instruction are adequate "correction", but that they must not embarrass the juror or wade into the squishy issue of interpreting the head-nodding or other "body language."
While most judges will do nothing about smiles, head-nodding, scowls, etc., almost all judges will go into sudden power mode if there is a verbal exchange. Words -- even if not answered by the person to whom directed -- will ignite the courts' concern, probably by acting as a concrete event which can be measured against existing standards of acceptability. I have seen courts enraged by an attorney saying "good morning" if the juror and the lawyer are entering the courtroom by the same door at exactly the same moment. Ditto "excuse me" as one steps aside for the other in the same setting.
So, it is all very odd and little understood and not well-managed and you are not wrong for intuitively feeling concerned at what you have observed in your own trial. If nothing more beyond what you have written occurred here -- particularly if no WORDS passed between the two -- then there is little use in asking the judge to dismiss that juror. The request would be denied. If the DA/juror interaction progressed to words, or anything really overt (passing of notes or such), by all means make a good record, a demand for replacement of the juror, or move for a mistrial.
You may take heart that what you have noticed has been noticed by the other jurors as well, and they will likely resist her sponsorship of the DA during their deliberations.
You can strike a blow for defendants yet to come by a factual recitation and rebuke in a letter from your attorney to the prosecutor's managing Deputy, setting forth the obvious inappropriateness of the prosecutor's acquiescence, and criticizing both the courtroom prosecutor and the Office of the District Attorney for this lack of professionalism. I guarantee that such letter will cause concern and will result in an uncomfortable meeting with management for your prosecutor. However, your attorney will not want to do this because s/he needs a continuing good relationship with the prosecutor's office.
Good luck. Our justice system is a wonder, a marvel, but a vastly imperfect one.
