Today and yesterday in the Kathleen Hilton arson/murder trial jury issues have come up, as shown in CNN’s coverage. Yesterday, it was reported that the CNN soundman had engaged in a conversation with several jurors, and today the Clerk of the Court reported overhearing a conversation about the trial in a restaurant bar between a juror and two women.

In yesterday’s incident, Judge Howard Whitehead determined that the jurors had not discussed any opinions about the case. He was slightly concerned that the discussion (which referred to post-trial jury interviews and purchase of tapes of the proceedings) might suggest the jurors could be worried about the public perception of them.

In the end, the judge dismissed one juror because she did not seem to be feeling well enough to participate fully in the coming deliberations. She had been seen to nod off occasionally. He noted, though, that case law does not require a juror to be dismissed for nodding off during the proceedings. This struck me particularly, because I sat next to a juror who fell soundly asleep in the jury box and nearly fell on his face on the floor. I was shocked. I wondered if I should elbow him to wake him up. During a recess I asked the bailiff what I should have done. She told me to poke him, but I felt as if that wasn’t my responsibility and was possibly none of my business anyway.

In today’s incident, the judge referred to appellate decisions indicating the type of conversation the juror engaged in at the bar was not misconduct. Apparently, the MA appeals court once permitted a juror to post a note in an online forum with 900 members that he was ready to get it over with and find the defendant guilty. In the appeals case it was determined that “jurors are human” and some leeway must be allowed in pre-verdict statements.

I greatly admire Judge Howard Whitehead’s respectful treatment of the jury. He questions them with empathy. He trusts them to be objective. He also frequently asks questions of witnesses that I feel sure the jury must be wondering about. For example, he has expert witnesses clarify technical concepts.

What baffles me, though, is what is really considered to be juror misconduct. Judges constantly admonish jurors not to discuss the case with anyone under any circumstances until they go into deliberations. Judges also admonish jurors not to reach any conclusions until all the evidence has been presented. Why? Because a juror who has reached a conclusion by definition cannot deliberate. Yes, we’re human (an interesting fact of case law), and we decide who and what we believe at various times in a trial, but I thought a juror was supposed to be open to hearing the opinions of her fellow jurors. I thought we were supposed to withhold reaching a conclusion on guilt or innocence. It sounds as if, in MA at least, that isn’t true.