Thinking Out of The Jury Box
Michael D. Goldhaber
The National Law Journal
July 19, 1999
It's "twelve angry men" with a twist: A lawyer on a murder trial jury, convinced that the defendant is innocent, helps deadlock the panel and secure a mistrial. But when the case is retried, that same attorney winds up on the defense team and helps win an acquittal.
That essentially is what happened this spring in New Orleans. Attorney Joan Canny was on the jury that heard the case of murder defendant Walter Huston. She held out for acquittal and, later, working for nothing and over prosecutors' objections, helped defend him. All the while, she continued her regular work at New Orleans' McGlinchey Stafford P.L.L.C., where she is a partner who represents union-busters more often than accused killers.
Right: Attorney Joan Canny

The murder in question happened in a high-crime area of New Orleans that one public defender calls The Devil's Triangle, south of Interstate 10, near the Desire housing project. On the evening of March 20, 1998, Terrell Simmons, 21, a reputed drug dealer, was confronted by two men on his family's front porch and shot dead.

The victim's 14-year-old sister, Ronnelle, gave the police a description of one of the men: "light brown skinned, a mouth full of golds...black and white Michael Jordan tennis shoes," an investigator's notes say. "About 5'9'', skinny, about 110 pounds....I know [him]. He came around sometimes, and he and my brother Terrell got into it last year....Something about playing dice."

A second eyewitness, 13-year-old Keith Brown, hurried to his grandmother's house after the murder and was never interviewed by the police.

Three weeks later, in another statement to the police, Ronnelle identified the gunman by name as Mr. Huston, 24, a young man from around the corner who had grown up with Mr. Simmons. Four years earlier, the victim had robbed Mr. Huston in a dispute that, by some accounts, arose over a dice game. The police arrested Mr. Houston, and the district attorney charged him with the murder.

The first trial began and ended on Dec. 18. Two lawyers joined the jury: Ms. Canny, a labor lawyer at McGlinchey, a 150-lawyer regional firm, and a maritime specialist who, coincidentally, had once worked at McGlinchey for a brief time many years earlier.

Ms. Canny's brother and sister-in-law are police captains, and being selected surprised her.

"I tend to believe the police," she says. "I thought they'd find me far too law-and-order."

But public defender Don Sauviac Jr., a large man who favors white suits, was pleased to have her. "I've had a streak of luck with lawyers on the jury," he says.

The evidence was simple.

"In the end," says Ms. Canny, "it came down to the 14-year-old girl against the 13-year-old boy."

Ronnelle Simmons, the sister, testified that the murderer was Mr. Huston. Keith Brown, the neighbor, said that it was not.

The defendant testified that he had purchased marijuana from the victim half an hour earlier but was in a car with friends at the time of the murder. He was not cross-examined, and other witnesses corroborated his alibi.

Ms. Canny prodded herself to keep her mind open, but the investigation struck her as sloppy, and when the prosecution wrapped up, she was unconvinced of the defendant's guilt. The fact that Mr. Huston testified, and was not cross-examined, deepened her doubts.

In his closing, Mr. Sauviac presented an alternative defense theory. The word on the street, he said, was that a robber named Nathaniel Holmes, alias La-La, had killed Mr. Simmons. He fit Ronnelle's first description. Mr. Holmes, in fact, was killed a few weeks after Mr. Simmons' murder, and Mr. Sauviac theorizes that revenge may have been the motive.

TO THE JURY ROOM

The jurors filed up a narrow staircase into a bare room with mismatched chairs and a broken coffeemaker.

As one of the witnesses would later tell her, Ms. Canny looked angry. She'd never imagined herself sympathizing with a murder defendant. But Mr. Huston faced a sentence of life in prison without chance of parole for second-degree murder. And although she had no objection to the prosecutors' conduct, she thought the evidence flimsy.

She thought back to what Professor Alan Dershowitz had taught in her criminal law class a decade earlier at Harvard Law School: You don't have to be pro-defendant to see that the process is deeply flawed.

Ms. Canny thought that all the jurors would feel the same. But at the first poll, the vote was six to convict, five to acquit and one undecided.

Nobody gave much weight to the girl's recollection of Jordan sneakers or gold teeth, both of which are common in the neighborhood. But several jurors found the 14-year-old girl more credible than the 13-year-old boy. Soon the vote was eight to convict, four to acquit.

In Louisiana, 10 votes are needed to convict for second-degree murder.

Ms. Canny found the deliberations disturbing. As she tells it, the foreman argued against believing the boy because he knew and distrusted the boy's father. Another woman voted for conviction because "God told her to," even though she conceded it was contrary to the evidence. A third summarily changed his mind without explaining why. A fourth argued for a compromise verdict of manslaughter, even though no theory of the case supported it.

Ms. Canny hoped to find an ally in the other lawyer-juror--but he kept voting guilty, and she thought he seemed to think it was Mr. Huston's job to prove his innocence. "He was the only one standing. He was pacing and lecturing," she says. "It was a very lawyer thing to do."

The maritime lawyer says that he knew the correct standard. He responded, on condition of anonymity, "I wasn't trying to sway anyone. If anybody was being pushy, I think it was her....She was taking it very personally. She kept mentioning Dershowitz." In his view, the jury would likely have voted to convict if Ms. Canny had not been selected.

Ms. Canny says that she mentioned Prof. Dershowitz only in a side conversation with the other lawyer. But in at least one instance, she did try to sway the other jurors with a lawyerly insight. She pointed out that Mr. Huston had not been cross-examined and told them that must mean he had no criminal record.

THE LAWYERS DOMINATE

After a while, the two lawyers were dominating the deliberations. Ms. Canny's thoughts turned to "Twelve Angry Men." "At least in 'Twelve Angry,' you had 12 angry men" deliberating, she says. Here, it was more like "two angry people making oral argument" and 10 spectators.

After about three hours, the vote was stuck at seven to convict and five to acquit, and the judge accepted a deadlock.

Mr. Sauviac, the defender, interviewed the jurors. When he phoned Ms. Canny, he found her angry about Mr. Huston's being prosecuted with what she considered a thin case. That surprised him, he says.

"I had viewed Joan as being kind of a corporate type," he says. But he realized that he could use her help. She could serve as the ultimate jury science consultant, and she could help with Ronnelle.

"I have a pit bull attitude," he explains, "and that can backfire when you cross-examine a little girl."

He recalls telling her, "Look, I need to retry this case. How'd you like to sit second chair?"

She would. She got approval from her firm and agreed to do it pro bono. When the retrial began on April 14, the ex-juror was sitting at counsel's table.

Ronnelle Simmons sauntered again to center stage, hands on her hips. Ms. Canny asked her to compare her police statements with her in-court statements.

From the start, Ronnelle was defiant.

"Would you agree that your memory would have been better the night of the murder?" Ms. Canny remembers asking.

"No," the teen-ager replied.

"Do you remember saying that the gunman had a mask on?"

"No."

Ms. Canny read snippets from all Ronnelle's prior statements into the record. "Everything changed," says Ms. Canny: whether he had a mask on, whether he had a hat on, the kind of gun, the color of the shirt, whether she saw him in the back of the yard or the front of the yard.

Most important, Ronnelle didn't name Walter in her first police statement, and she described the gunman as being about 5 feet 9 inches tall and weighing 110 pounds.

Mr. Huston stood up in court--all 6 feet 2 inches of him--and Ms. Canny asked Ronnelle to admit that her description of the gunman's size did not match Mr. Huston. Again, she would not agree.

"Joan did a helluva job with that girl," Mr. Sauviac says.

On redirect, Andre Jeanfreau, the prosecutor, asked Ronnelle to estimate how tall Ms. Canny is--apparently hoping that she would miscalculate wildly. "About 5-4," Ronnelle answered.

Ms. Canny, who is 5 feet 5 inches tall, shot a mischievous glance at Mr. Sauviac. They could smell victory.

In his closing argument Mr. Jean-freau, the prosecutor, gave the jury a spirited performance. "Forget the shoes," he said, flinging a pair of sneakers across the courtroom to acknowledge that the testimony about the sneakers was not essential to his case.

The key, he said later, was that Ronnelle "never varied one inch" in recognizing Mr. Huston as the murderer. As Ms. Canny recalls it, he also criticized her, with her superior education, for "going after that poor little girl."

It took the second jury half an hour to reach a unanimous not guilty verdict.

"If it weren't for Joan, I'd probably be serving life in jail," says Mr. Huston.

He likes the fact that attorneys can be jurors. "Lawyers can see both sides of the case," he says, "and they know the law. "

THE ETHICS ISSUE

The prosecutors viewed Ms. Canny's participation less favorably. They moved to have her recused on ethical grounds. Specifically, they argued that, in discussing her jury service with the New Orleans press, she had violated Louisiana legal ethics Rule 3.6, which bars lawyers from publicizing inadmissible information that might prejudice a trial.

First Asst. District Attorney Tim McElroy later argued, "You don't remove your cloak as officer of the court when you step into the jury box."

The trial judge and the appeals court denied that motion without comment, and the DA's view got little backing in National Law Journal interviews with several experts in legal ethics. "Under Supreme Court holdings, it's virtually impossible to prejudice a trial by pretrial publicity," says Professor Monroe Freedman, of Hofstra University School of Law. "What she did is praiseworthy."

Cornell Law School Dean Charles Wolfram agrees: "That the case was highly unusual is reason for pause. But, having paused, I don't get the point of the prosecutors' belly-ache."

Ms. Canny, in fact, wondered whether she wasn't obligated as an attorney to save an innocent man. Both she and the maritime lawyer on the panel wish there were guidelines for lawyers on juries.

But Chief Judge Harry T. Edwards, of the U.S. Court of Appeals for the District of Columbia Circuit, says that any such guidelines would be unenforceable and would provoke appeals. It's better, he says, to decide categorically whether lawyers should serve.

Judge Edwards, who knows a thing or two about enforcing rules, has also served on a jury. He was one of two lawyers seated in a drug trial a few years ago. Judge Edwards declined the foremanship, but to his chagrin, the other lawyer grabbed it.

Ms. Canny, perhaps surprisingly, would like to see lawyers exempted again. Her conclusion is that lawyers (especially male lawyers) make the worst jurors because they're trained to take and defend positions.

That the heroic lawyer-juror should take such a position might strike some as paradoxical, sort of like Henry Fonda calling in sick next time he's summoned.

"I don't know if it's paradoxical," Judge Edwards counters. "She proves the point that lawyers may have too much sway."

Tom Munsterman, head of the Center for Jury Studies, in Arlington, Va., prefers not to generalize from odd cases."When a million people a year serve on a jury, you're going to have some interesting things happen," he says.

"I see absolutely nothing unethical" about Ms. Canny's actions, says Prof. Freedman. "What I'd like to have is the movie rights to this story."

Copyright ©1999 NLP IP Company -- American Lawyer Media.



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