NEWS ANALYSIS : The Unusual Case of Denny Juror ‘Failing to Deliberate’

In 20 years of analyzing and screening juries, Oakland trial consultant Beth Bonora’s firm has interviewed thousands of jurors: jurors who snored through trials, who refused to talk during deliberations, who were so angry that they split into groups and met in separate rooms. There was even one murder trial in which a juror threatened to kill another out of frustration. In the vast majority of cases, the offending juror was not removed from the panel.

In all her years, however, Bonora has never heard of another case like that of Juror 373 in the Reginald O. Denny beating case.

Never, she says, has she encountered a trial in which a juror was dismissed during deliberations for lack of ability, incompetence, lack of common sense, or whatever Judge John W. Ouderkirk meant when he discharged Juror 373 on Monday for “failing to deliberate as the law defines it.”

Ouderkirk’s decision to remove the juror was a departure from the traditional tolerance that judges have had for the behavior of jurors. The decision was all the more confusing because Ouderkirk sealed the transcripts of closed hearings on which his decision was based. On Wednesday, the judge said he would release the transcripts today.

The removal of Juror 373 is one of many quirks in the attempted murder trial of Henry Keith Watson and Damian Monroe Williams, accused of beating Denny and others on the first day of last year’s riots. Five jurors have been excused since the trial started, but none of them have left under circumstances as controversial or strange as Juror 373.

Through the years, the courts have given extraordinary leeway to the way jurors interact in an effort to preserve the sanctity of their deliberations.

In fact, legal scholars say, diversity of opinion and ability is a cornerstone of the jury system, in which anger, frustration, belligerence and worse are accepted parts of the process of trying to discern the truth by grappling with conflicting views.

“There is enormous tolerance for idiosyncratic behavior because we don’t want to exclude the one angry man,” said USC Law Professor Erwin Chemerinsky. “The system is based on the idea that 12 people each get to decide the case based on their own perceptions.”

Added trial consultant Bonora, president of the National Jury Project/West: “People come from such diverse backgrounds with such a wide range of abilities. That’s supposed to be part of the jury system. It’s one of the reasons the jury system works.”

Chemerinsky cautioned that the rarity of Ouderkirk’s decision does not mean it was unjustified.

The law states that jurors can be removed for misconduct, illness and “other good cause” that makes them unable to perform their duties. Trial consultants and attorneys say that jurors are regularly removed for such gross infractions as drinking, lying, deciding a case before hearing all the evidence and talking about the case outside of court.

But outside of cases involving misconduct or illness, the standards of “good cause” are vague.

The case of Juror 373 has been particularly murky because the hearings on her dismissal were closed and no one outside of the court knows the reasons except that, in Ouderkirk’s words, she was somehow “failing to deliberate.” The facts may become clearer today when Ouderkirk--responding to a request by several news media organizations, including The Times--is expected to release the transcripts of all closed courtroom hearings.

The controversy began when the other jurors on the panel wrote to the judge that Juror 373 could not “comprehend anything that we’ve been trying to accomplish.”

“We have tried patiently to talk and work with her, all to no avail!” they said. “It is unanimous and we feel she shouldn’t continue in the deliberations. This has nothing to do with her views on issue or her personality. She doesn’t use common sense . . . just when we’ve made progress and final decisions, she is (totally) oblivious to what we’ve discussed and decided.”

Because of the closed nature of the hearing, the role the panel’s note played in the judge’s decision has been impossible to determine.

To illustrate the wide latitude granted jurors during deliberations, Bonora gave the example of a recent civil suit in which a juror was allowed to remain on a jury despite his refusal to participate in discussions about punitive damages.

“He said, ‘I’m not going to be part of this,’ and he just sat there,” she said. “It’s not unusual at all to have jurors just sit back and let the other jurors do it all.”

Belligerence in the jury room is almost a non-issue as far as the courts are concerned.

During deliberations earlier this year in a chemical exposure lawsuit brought by Lockheed workers, jurors yelled racial epithets at each other and at one point had to restrain a juror from striking another, one juror told reporters. No juror was taken off the panel.

Incompetence has been a far more ambiguous issue for the courts to decide.

So far, there apparently has been only one case in California reviewed by the state Court of Appeal involving the disqualification of a juror based on his “inability to recall or reason properly.”

Just as in the Denny beating trial, the controversy began with a complaint from the jury foreman during deliberations in a Los Angeles County armed robbery case.

“Basically, we have had a member of the jury who has been, it is difficult to put, uncooperative, argumentative, doesn’t appear to the other 11 jurors to be reasonable or using good abilities to reason,” the foreman wrote. “He seems to argue every point that we bring up.”

The 11 jurors were so frustrated that at one point an elderly female juror told the much younger holdout: “I’m going to come over there and punch you right in the mouth.”

According to court documents, one of the main sticking points was the juror’s unfathomable preoccupation with the lack of BBs in a gun that was identified as the one used in the robbery.

In a rambling statement to the judge, the juror explained that he could not understand why police investigators “lost the BBs, when if Eddie (the robbery victim) heard the BBs, and he stated he did not under testimony, and that statement came from . . . apparently somebody at the scene because Eddie would have heard the BBs, had there been any in that gun, because BB guns make noise when they are moved.”

The judge and the other jurors had no idea why the BBs had anything to do with the case.

The juror was soon dismissed by the judge, who decided the juror was incapable of understanding the case.

The Court of Appeal, in an unpublished 1991 decision, agreed with the judge. But in dissent, Justice Earl Johnson Jr. wrote: “It is no accident this is the first case in California where a juror’s disqualification has been justified on his inability to recall or reason properly. We embark on a dangerous quest when we seek to dismiss a juror on grounds his memory is not perfect or his reasoning ability below average.”

“The majority has rendered an opinion which, I fear, would justify removal of each of the ‘twelve angry men’ in the play and movie of the same name at some time or another during those fictitious deliberations with the possible exception of Henry Fonda,” Johnson wrote, referring to the famed drama about a holdout juror. “ ‘Trial by jury is an inviolate right and shall be secured to all,’ ” he wrote, quoting the California Constitution. “It is clearly a right which must be vigorously protected.”

There are probably far more conflicts in the jury room than are reported because of the weeding-out process that takes place before a trial begins, the secrecy of jury deliberations and the close bond that often forms between jurors, experts say.

Ron Beaton, director of jury consulting for Forensic Technologies International, a trial consulting firm, added that jurors themselves are loathe to complain about one of their own.

Just as the courts are accommodating to diverse behavior and perceptions, jurors also tend to adapt to each others’ differences, Beaton said. It is all part of the culture of conflict and compromise that infuses the jury room.

Because jurors are isolated through a trial, they begin to band together, he said. “It’s like getting thrown on a desert island with someone who is your polar opposite. You start growing together,” he said.

Even in the polarizing atmosphere of deliberations, there is a strong tendency to accommodate the views of others, he said. “Juries become like small families. They don’t have anyone else to rely on but themselves. Reporting someone is like disinheriting somebody in your family.”

But Beaton added that the notoriety of the Denny beating case has probably heightened tensions among jurors and sharpened conflicts that might have been resolved in other cases.

“You have to expect emotional casualties in a case like this,” he said.