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Function of Juries & Jury Nullification | 16 May 2014

-3 Examples of Jurors Regretting Guilty Verdicts

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Jury BoxIn the last couple of weeks we have seen jurors express shock about relevant information withheld from them and regret over their verdicts in the cases of Cecily McMillan and Troy Ellis. Often such regrets result from pertinent information being withheld from the jury, or from a frustrated member of the jury compromising or throwing up their hands altogether in frustration that they could not convince those who disagreed also to vote Not Guilty.

Here are three more cases in which jurors seriously regretted the injustices they unwittingly contributed to through their Guilty votes. They illustrate some of the tricks in the legal system that are used to tilt the playing field in favor of prosecution. If you server on a jury, keep in mind that the filtered view of things that you see may not be the full story.

1. Richard Paey, severely disabled pain patient, convicted of drug trafficking
After an automobile accident and a subsequent botched surgery left him in constant, extreme, debilitating pain, Richard Paey, like many chronic pain patients, had difficulty legally obtaining the necessary amount of pain medication to allow him to lead a decent life. Because of the hostile prosecutorial environment associated with prescribing high doses, many physicians are loathe to prescribe the high levels of medication that patients like Paey need. Tipped off by a pharmacist about the volume of medication Paey, a paraplegic suffering with multiple sclerosis, was seeking, the Pasco County Sheriff’s Office arrested him. Even though the prosecutor openly admits that he had no evidence that Paey ever sold or gave away a single pill to any other person, he was charged with and convicted of drug trafficking, triggering a mandatory minimum 25-year prison sentence.

Prison doctors supplied Paey with painkillers deemed necessary for his own pain management in excess of what he was accused of having for so-called trafficking purposes. Not only was he imprisoned, but he was further isolated in solitary confinement for more than 30 days. Paey was finally given a full pardon by then Florida governor Charlie Crist in September of 2007, after serving nearly four years in prison.

According to the St. Petersburg Times,

…the one juror who thought Paey was not guilty voted for conviction, a decision he now regrets.

“It’s my fault,” said juror Dwayne Hillis, a 42-year-old landscaper from Hudson. “Basically I should have stuck it out.”

Other jurors also had qualms about the situation, coming to their verdict after being misled about the punishment at stake:

Against the judge’s instructions, the jurors discussed the possibility of a 25-year sentence for Paey, Hillis said. Many were uneasy with the punishment. But the jury foreman said Paey would get probation, Hillis added.

The jurors didn’t know the judge had no choice.

But in the jury room on March 4, the verdict came down to a compromise. Deliberations had lasted close to 10 p.m. and everyone wanted to go home, Hillis said.

With assurances from the foreman that Paey would do no time in prison, Hillis compromised.

“I said ‘Guilty. Put it on the (verdict). I hope you all can live with yourselves,'” Hillis recalled. “I just hate myself for what I did.”

 

2. Vernon Hershberger, farmer, convicted of breaking a hold order on perishable goods
Wisconsin dairy farmer Vernon Hershberger was charged with four completely victimless misdemeanors related to distribution of raw milk to those who voluntarily sought it out by joining a private buying club that he runs to provide them with the kind of milk they want. Three of the misdemeanors were alleged licensing violations for operating retail, dairy, and processing facilities without licenses. The fourth was for violating a hold order that resulted from the three alleged licensing violations.

In a curious turn of events, jurors acquitted Hershberger of all three charges related to licensing violations, yet they somehow managed to convict him of the one charge that would only make sense if he were found guilty of the other three. Reports from the trial indicated that the judge kept a very tight rein on what the jury was permitted to hear, with the jury being escorted out of the courtroom more than once.

After the trial, jurors learned that they convicted Hershberger due to pertinent information purposely being redacted from the hold order they were allowed to see:

Hershberger was charged with four counts: three counts of not having appropriate licenses, and one count of violating a holding order. The jurors voted to acquit Hershberger of the licensing charges, but since Hershberger admitted during the trial to violating the holding order (which was issued to prevent him from distributing, or even moving, his products) they convicted him on the count. What they didn’t know was that the reason for issuing the holding order was because of Hershberger’s failure to have retail and dairy permits the DATCP said were required — the very charges they acquitted him of.

The members of the Hershberger jury were only allowed by the judge to see a redacted version of the hold order issued to Hershberger during a search of his farm and store by state agriculture and public health authorities on June 2, 2010; blotted out were the causes for the hold order.

If they had been able to see the whole document, some members of the jury believe they would have acquitted on all four counts.

Juror Michelle Bollfrass-Hoppe and two other jurors were so troubled by their verdicts that they wrote letters to the judge afterward requesting leniency for Hershberger. Bollfrass-Hoppe’s letter read in part:

“In my opinion, our jury instructions required us to find Mr. Hershberger guilty of violating a food holding order because we were directed to determine whether a holding order had been issued and whether it had been violated—two events that Mr. Hershberger admitted to during his testimony. I believe that our three not guilty verdicts support the fact that the Wisconsin Department of Agriculture, Trade and Consumer Protection should never have issued a food holding order to Mr. Hershberger.”

In addition to the evidence having been purposely tampered with by the judge, jurors’ willingness to compromise also led to their regretted verdict:

As most juries do, the jurors of the Hershberger trial compromised. [Jury foreman] Freitag wanted to acquit on all counts; Robb Porubsky, a plant manager at a metal fabric company, was holding out for conviction on a charge that would penalize Hershberger for not having a retail license. Eventually Porubsky was persuaded to abandon his position for conviction on the retail license charge (“Hershberger was in a gray area,” Porubsky decided) in exchange for Freitag giving up his lone vote for acquittal on the hold order. Everyone was at peace, until they got home and began reading in articles about the reasons the hold order had been issued to Hershberger.

Jurors were so upset by having been misled into their Guilty verdict that four jurors and also an alternate all attended Hershberger’s sentencing hearing in his support. Several have also spoken publicly in their community of their anger at how the trial had been rigged.

 

3. Branch Davidian survivors of the siege at Waco, convicted of voluntary manslaughter and weapons violations
In the spring of 1993, and in the wake of several damaging reports about the agency in the news, federal agents from the Bureau of Alcohol, Tobacco, and Firearms (BATF) apparently staged a publicity stunt under the guise of law enforcement. Rather than simply serving an arrest warrant for their leader, David Koresh, peacefully on one of his many regular outings away from the property, they attacked the Mount Carmel Center, home of a group known as the Branch Davidians living in Waco, Texas. The ATF’s attempt to raid the center quickly turned deadly, kicking off a 51-day standoff that would end when the FBI finally launched a deadly assault on the center. 76 Branch Davidians would perish, include 23 children, some shot to death, others killed by falling debris as the structures collapsed, and others suffocated or were burned to death in the massive fire.

Eleven of the Branch Davidian survivors would be tried in court on various charges, with most of them being convicted on charges from voluntary manslaughter to weapons violations. In a stunning defeat for the government, all eleven were acquitted of the most serious charges of murder and conspiracy to commit murder, and three were acquitted of all charges against them. Convicted defendants who did not cooperate with the government were sentenced anywhere from 5 years in prison for the lightest sentence to 40 years in prison for those sentenced most harshly.

After the trial, jury forewoman Sarah Bain spoke publicly against the conviction of Ruth Riddle, which she said was a mistake, and against the harsh sentences the other defendants received, saying that the jury never intended such harsh punishments for them. She wrote in a scathing letter to the U.S. Senate Judiciary committee, in which she spent significant time discussing the crimes of federal law enforcement agents who were never tried or disciplined:

…there are right now five Branch Davidians who in Junes of this year were sentenced to 40 years in prison plus fines and restitution, and three others who were sentenced to 20, 15, and 5 years in prison plus fines and restitution. The jury never believed there was a conspiracy on the part of these defendants to murder federal agents. Yet most of them were sentenced for the crime of “using or carrying a firearm” as part of “a conspiracy”. That is in direct opposition to the jury’s intention. And to compound all the other injustices, Judge Walter Smith, who presided over the trial and passed the sentences, determined that the firearms that were used during this non-existent conspiracy were illegal, “enhanced weapons”. The jury was never asked to determine anything about “enhanced weapons”: not whether they existed before the raid and not whether any of the defendants used or carried such weapons. Yet on this one charge, sentences of 30 years were handed down.

Since the trial, I have been told about many other disturbing matters that should have been presented to the jury. Not only do these matters deserve detailed investigation independent of the BATF’s Treasury Department and the FBI’s Justice Department; but why these matters were concealed from a jury who took an oath to base the verdicts only on the testimony heard in court is a paramount matter.

I implore you not only to seek answers to the many questions raised, but also to provide redress as warranted.

 

We sometimes get calls in the FIJA office from people who regret their Guilty verdicts and want to know what they can do to rectify it. Such mistakes bother jurors years, even decades, after they participated in an injustice against someone in judgment of whom they sat. Legally speaking, they have very little influence anymore once they’ve delivered a Guilty verdict. As McMillan’s jurors are doing, they are essentially reduced to pleading for mercy on the defendant’s behalf, and judges are free to ignore them at that point. All jurors should be aware of the gamesmanship that goes on the legal system, designed not to ensure justice but to encourage convictions. It is our job as jurors to be skeptical of conclusions to which we are led by prosecutors and judges with a vested interest in Guilty verdicts, and to stand as a bulwark against their abuses, including by conscientiously acquitting through the use of jury nullification when required for a just verdict.

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