TruTV In Session’s broadcast of the verdict in the case of Nevada v Clermont for kidnapping provided excellent analysis of what went wrong before and during the trial. Among the most interesting facts the jury did not know during deliberations (anchor Rikki Klieman revealed) was that the prosecution offered Clermont a plea deal, which she refused.

Clermont apparently maintains to this day that she did nothing wrong; instead it was the school district that was at fault and was seriously endangering children by its lax security system. She was only trying to expose the risks by notifying the media before she returned a lost little boy to his school.

The more I hear about the situation that resulted in Clermont’s arrest for kidnapping the child, the more I’m convinced she was grossly overcharged. But it’s also obvious that what she did was wrong: no one other than the boy’s mother had a right to restrain him even an instant (let alone 2 hours) for any reason.

The Jury Spoke

The jury found Clermont guilty of conspiracy to commit kidnapping and of false imprisonment.

The first of these verdicts (possibly) resulted from the testimony of Clermont’s supposed conspirator, another school district mother named Laurinda Drake, who was previously acquitted of conspiracy. However, the jury apparently was not told about the acquittal. (This is the sort of withholding of information from a jury that I cannot understand.)

The second verdict is completely understandable (by someone who once was a juror in a situation somewhat like the one the Clermont jury faced). The jury could not find her guilty of kidnapping, because she did not commit kidnapping. Everyone with common sense can see that.

But she did restrain and use someone else’s child in the cause of furthering her point of view—she used a child for political purposes. Given a choice of acquitting her (and committing jury nullification) or convicting her of a lesser charge, that’s what they did.

Jury Rhetoric

I often write about the rhetoric lawyers use in front of a jury, but there’s also a rhetoric that jurors use to communicate with the court—and I suspect few lawyers or judges ever think about this.

In most cases, the only rhetoric a jury has available is the verdict. When lawyers don’t understand a verdict, they call it “jury nullification.” But it rarely is a nullification of the law: it is only a nullification of an inappropriate charge or indictment. The O. J. Simpson murder verdict, for example, was the jury’s way of saying they thought the cops were racist and had targeted Simpson unfairly.

In “my” case, we the jury found the defendant not guilty of kidnapping (but guilty of aggravated assault), because he did not kidnap his victim. Afterwards, the judge came into the deliberation room to find out how we could have been so stupid. One of my fellow jurors asked her, “Why didn’t you just offer him a plea deal?” She replied, “We did, but he wouldn’t take it. So kidnapping was the only way I could sentence him to thirty years.”

Is that justice? No.

Here’s what both juries were telling both judges and all the lawyers: don’t charge our fellow citizens with serious crimes unless they committed those crimes, and don’t let a criminal go free on a technicality, namely, the legalese of a criminal statute.

If the jury had found Clermont not guilty of all crimes they would have been letting her go on a technicality, namely, that the literal law of kidnapping was not committed.

Both the prosecution and the defense miscalculated. The defense made a big mistake by not accepting a plea deal—it looks like Clermont wanted to use the jury for her political purposes, too. The prosecution was absolutely wrong to over-charge her in the first place—they could have charged her with a form of child endangerment, for example, and still have achieved their objectives.