A guest commentator on Jack Ford’s TruTV “In Session” commented that jurors are very observant and notice everything that goes on in the courtroom. She was referring to the fake Clark Rockefeller’s “shifty” eyes. It struck me that she was right—but with an amendment: “Jurors can’t see anything that goes on in the courtroom while they’re in the jury room.”

At the same moment, in the trial of NJ State Trooper Robert Higbee the jury has asked to have the trooper’s testimony read back to them. Jean Casarez reports that when the jury went home on Friday and returned this morning, they didn’t seem very happy. If anyone doubts the stress induced by jury deliberations, I recommend they look to the Higbee jury.

My point? Juries aren’t provided with all the information the judge and attorneys have. When they enter the jury box in the courtroom, they realize that, so they watch what’s going on in hopes of picking up some additional “clues” to the situation. If the Rockefeller jury seems hyper-alert, that’s why. They’ve picked up “cues” and “clues” that there’s something important they aren’t being told. In the Higbee trial, the jury has undoubtedly picked up cues and clues that the judge thinks the defendant is guilty, but not all the jurors are convinced by the judge. (The jury is divided—the question is what’s the split.)

These gaps in a jury’s knowledge are, in my opinion, counter-productive as concerns unanimous verdicts and appropriate verdicts. I’m not a lawyer, but I do understand that some evidence may be prejudicial and ought not to be presented in court. And some evidence is simply false or at best flawed—and ought not to be presented in court. But when evidence is withheld from the jury, both sides had better try to make a coherent narrative around the gaps, or the jury will have to fill in the blanks for themselves.

How do I know this? Consider this aspect of the trial in which I participated as a juror:

Voir dire and the opening statements took place on a Wednesday afternoon. The defendant was assisted by a Spanish translator (another issue worth exploring sometime). The next morning, the jury sat in the deliberation room until after lunch. During that time, we could hear a man’s voice shouting from a nearby room. Many of my fellow jurors thought it came from our courtroom (I thought it came from elsewhere, but my sense of direction as to sounds is poor—echoes confuse me). When we finally entered the jury box, the judge told us that “The defendant has chosen not to be present in court for the remainder of the trial.”

I suppose a lawyer would have known at once that meant the defendant had skipped town. I didn’t, and neither did any other juror. We only found out after we delivered our verdict. However, the empty defendant’s chair was a very big gap in the trial. Every juror tried to figure out why the defendant wasn’t there. We all assumed he was being held in jail, and no one could figure out why any sane person would prefer jail to the courtroom. For myself, I thought it had something to do with the translator: she had been distracting on the first day; I thought the defense attorney might have recommended that the defense not subject us to this again. The absence ultimately had an impact on how I thought about the English-language confession the defendant had signed.

Jurors are human beings with human brains. The human brain is a pattern-matching machine. When confronted with random inputs, our brains try to make sense of them. Jurors arrange the evidence and everything they see or don’t see in court into a comprehensible pattern.

Predictions?

In the Clark Rockefeller case, I suspect the jurors are trying to fill in a very important gap: the gap between the high quality of the defense and the picture of the defendant being painted by the prosecution. What I mean is that the jurors know it’s a high-profile trial because of the Rockefeller name and media coverage; but the defendant himself is a nobody with no visible means of support, and the trial seems excessive, especially if the essence of his crime (other than misrepresenting himself to the woman he married) is the kidnapping of his daughter contrary to a divorce and custody decree.

In the Trooper Higbee case, I suspect the jurors are trying to make sense of the complex data related to the last 6 seconds of the wreck. The defense failed to adequately explain a 1-second acceleration, and the prosecution failed to adequately explain why a state trooper would consciously choose to defy a stop sign. Unfortunately, I think the judge inserted a gap into the case by refusing to admit evidence about the relative danger of the intersection—and did so in front of the jury several times—thus leaving the jurors to decide for themselves. What might they decide? That the defense was blowing smoke every time it tried to introduce that evidence.

Either one or both of these juries may end in deadlock. Apparently hung juries are rare, around 6%. A valuable study of hung juries has been conducted by the National Center for State Courts, “Why Do Hung Juries Hang? ” The NCSC concludes, “Quantity of evidence and length of trial did not appear to affect the likelihood of a hung jury. However, the quality of the evidence was a very important factor.”