Certain uncertainty

Paul Fletcher, BridgeTower Media Newswires

A guy named Brian Bolar was indicted for two crimes, murder and use of a firearm in commission of a murder. An Alexandria jury acquitted Bolar on the murder charge.

But the same jury said he was guilty of using a handgun in committing a murder the jury found he didn’t commit.


The Virginia Court of Appeals acknowledged the inconsistency, but noted that it didn’t really matter. They simply reviewed the question of whether there was sufficient evidence to back a guilty finding on the gun charge. Yes, they said. Affirmed, they said.

This same issue has come up at least four or five times in the past 30 years, and each time the defendant leaves the appeals court disappointed.

Simply put, an inconsistent jury won’t buy you a Get-Out-of-Jail-Free card.

Chalk it up to another instance where a wonky jury leaves the lawyers scrambling for reeds, thin and otherwise, to cling to on appeal. But claiming that there was a problem with the jury or any particular juror usually fails.

For example, what happens with an inattentive, even sleeping, juror? Not much, according to a number of cases. Maybe the fact that the juror nodded off was a commentary on the quality of the lawyering.

What if the juror isn’t sleepy, just bored? A Oklahoma lawyer back in 1972 tried to get a new trial, claiming that a juror was not paying attention, yawned during trial and repeatedly cleaned his fingernails. Didn’t work. By the way, the rest of the jury elected the guy as foreman.

Sleepy? No. Bored? No. Drunk? Bingo.

During the weekend recess of a murder trial in 1852, a deputy took  jurors to a house that served “spirits” when the deputy was out of the room. The Supreme Court of Virginia got angry over that one, and ordered a new trial.

Jurors in Brighton, England, were sequestered for weeks in 1994. They responded by getting drunk and consulting a crude hand-made Ouija board, which told them to convict the defendant. Once word of this misconduct got out, the guy got a new trial.

To get a “good” jury, (i.e., one that will find for your client and won’t leave you needing an argument on appeal), attorneys spend a lot of time on jury investigation.

Associates and paralegals end up doing a great deal of research, combing the internet or making phone calls, trying to learn as much as possible about the members of a particular panel.

Some of this not-so-scientific research pays off.  But the only certainty in trial work is uncertainty.

For all the preparation, each case always has some unforeseen wrinkle, a big surprise.

Here is an instance no one could see coming:

In Abingdon federal court, voir dire was complete and a jury had been seated.

The plaintiff’s attorney cranked up her opening statement, describing the events leading up to a particularly bad car accident.

In the middle of her presentation, one of the jurors frantically raised her hand, saying she needed to “talk to somebody!”

In a sidebar, she explained that on the very same day as the crash, she had been on the very same road, near the very same intersection and had seen one of the very same vehicles minutes before the collision. She was excused.

Not even a Ouija board could have helped the lawyers in that case.