Crime, Jury Duty, Trials

Criminally Yours: Etan Patz, The Boy On The Milk Carton

When it comes down to it, no matter how hard or soft the evidence, the jury does what it wants, and if there's a ground swell of support for one side over the other, then that's the opinion that usually prevails.

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After several months of trial including expert witnesses, a video-taped confession, an admission by another man that he, in fact, committed the crime, and the complex issue about what role the defendant’s mental health played in the alleged confession, the Etan Patz case is finally over. Well, at least this round.

Following 18 days of claustrophobic deliberation in a room the size of an alcove with 10-foot ceilings and no windows, the judge declared a mistrial. The jury hung. The breakdown of the jury vote astonished me. How could this case not be the quintessential example of “reasonable doubt”? Instead, the vote was 11-to-1 for conviction.

When I first heard about the case — a 33-year old murder with no corpus delicti and no corroborating evidence outside of statements allegedly made by the defendant who, by all accounts, suffered a serious mental illness — I thought, there’d be no way this could end in a conviction.

High-profile cases like this always play with the jurors’ sense of wanting to right a wrong. And this wrong was so severe — the disappearance of a 7-year-old in his own neighborhood — that anyone over 50 still remembers the media attention it drew: billboards, missing-child photos on the sides of milk cartoons (the first of their kind), and a new national awareness that children were no longer safe from strangers even a stone’s throw from their homes.

The almost-conviction is a testament to the work of the prosecutor in selecting the right jury — a jury that would be predisposed to hear their arguments better than the defendant’s.

When it comes down to it, no matter how hard or soft the evidence, the jury does what it wants, and if there’s a ground swell of support for one side over the other, then that’s the opinion that usually prevails. It takes a very confident juror to withstand the pressure, especially after a trial and deliberation this long, to stick to his guns.

Picking a jury is an art, not a science. It’s one of the hardest things to teach in trial work because it relies on intuition more than technique. No matter how smoothly you conduct voir dire or how funny or charming your delivery (this counts, but doesn’t rule the day), it’s tough to know how a juror will vote based just on his name, occupation, neighborhood, and interests. First, you’ve got to get them to open up and share. (And this is usually forced to be done within a deadline of 10 to 15 minutes.) Many start off being pissed for having been called in the first place. Others are just bored to death. Some are intimidated by the process and reluctant to reveal themselves in open court. Most are plain scared of whatever guy happens to be sitting in the defendant’s chair, even before they’ve heard the charges.

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So you look for tells, like in a poker game. Did Juror 1 laugh at your joke? Does Number 6 sit with his arms folded over his chest and his legs tightly wound? Did Number 11 wear jeans to court or a suit and tie? Does Number 18 watch CSI, but read the Post? It’s all a crap shoot, and intuition becomes your best, although still uncertain, friend.

I used to pick jurors on the basis of which Manhattan neighborhood they lived in. The Upper West Side, Harlem, Greenwich Village, and Lower East Side were generally good. I’d stay away from the Financial District, Murray Hill, and Upper East Side, to name just a few.

Lately, I’ve found this formulation no longer applies since New York neighborhoods are changing faster than you can say gentrification. With the flight of most of the working class, unless they are the “supers” living in the building, it’s getting tough to find people who actually grew up in New York and aren’t recent transplants from say, Houston, Connecticut, or California. Many work in the financial district and never met a cop they didn’t like. People of color (i.e., black people) are so hard to find, the idea of a “jury of your peers” when at least 90 percent of the time your client is black, is pure fiction.

The jurors defense counsel generally find helpful for them — social workers, teachers, nurses, artists, thinkers — have fled Manhattan for the more reasonable shores of Brooklyn, Hoboken, Queens, and the Bronx. I’ve picked my best juries in summer because the college students are home and, at least if they’re interested enough to pay attention, know the severity of drug-law sentencing and the de minimis value of less than a gram of cocaine.

I’m not complaining. It’s better to pick a jury in Manhattan then say, Queens or Staten Island. (The best boroughs are Brooklyn and the Bronx.) I’m just still trying to figure out how it all works.

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How do you pick the best jury for your case? You don’t. It really is a crap shoot. Aside from winks and nods thrown your way by some jurors (who you want), or guys who used to work as court officers (who you don’t want), the black and white of it is none too clear, and rarely, if ever, do you get a chance to see how the jurors duked it out when the mistrial is called.

In Etan Patz, the veil was pulled aside. Following the verdict, some jurors stayed behind in the courtroom to field questions about how their deliberations went. What was the initial breakdown? What evidence was relied on? How did that 11-to-1 vote come about?

This info is crucial both for the defense and prosecution and, I believe, it gives the jurors themselves a chance to vent. They need some closure, too, after having sat there silently for several months then hashed it out for weeks after.

To my surprise, in spite of what I saw as the lack of evidence and implicit reasonable doubt, the overwhelming swing of the jury from the get-go was toward guilt. They reheard evidence; used their notes; charted out issues like in a shareholders meeting — but instead of seeing the lack of evidence as reasonable doubt, they read the evidence as leading to guilty. Except for one guy. He didn’t think the evidence added up and he wouldn’t be swayed.

To that guy I saw, bravo. His opinion wasn’t based on a whim or fantasy or a misunderstanding of the law. It was based on a firmly held belief, following weeks of debate, that the evidence left a gap. For him the reasonable doubt was the unreliability of the confession because of Hernandez’s mental health and the way the police conducted the interrogation. It was also the lack of corroboration.

The “Allen” charge, one of the strongest in the law, tells juries that even though they’ve sent out one impasse note, they have to go back and keep trying. The judge reads them that “the attorneys picked you specific jurors and that there’s no reason to belief that the representation of this case again would be to a jury that is any more intelligent, reasonable, hardworking, or fair.”

When a second impasse note comes, the judge reads an even fuller “Allen” charge, and then sends them back again reminding them to “make every effort consistent with your conscience and the evidence to harmonize your views with those of the other jurors.”

Those are tough instructions to withstand.

I’m convinced this case was a close one, even though the vote was 11-to-1 for conviction. The People say they are uncertain, at present, whether they will seek to retry the case. (Generally there’s no limit on how many times they can retry a case, although most prosecutors stop at three.) But there’s no guarantee that if they do try it again, they’ll get that extra vote for conviction.

In fact, the reverse could happen.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band and dancing flamenco. She can be reached at tonimessinalw@gmail.com or tonimessinalaw.com.

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