How can a juror decide a fate with the flip of a coin?

CHARLES J. UNGER

Picture this: It is 1995, your name is Isidro Reyes, and you have

been charged with possession of cocaine with intent to sell. You know

that if you are found not guilty, you will be a free man. However, if

you are found guilty, you will be sent to prison.

Now let us go further. The jury has been selected, the evidence

has been put forth, both sides have made their final arguments, the

jury has been instructed, they are deliberating, and then one of the

12 jurors flips a coin in order to decide whether to vote guilty or

not guilty. That’s right, he flips a coin. In a criminal jury trial,

all 12 jurors must vote guilty in order for a person to be convicted

and not guilty in order for a person to be acquitted. If the jury

vote is 11-1 or 6-6, that is what is generally referred to as a hung

jury. A hung jury often gives both sides and the judge valuable

information as to how to resolve the case; however, anything other

than a 12-0 verdict of guilty means the defendant avoids a

conviction. In this case, juror “F” as he is being referred to,

admitted that he was having a very difficult determining whether or

not Reyes was guilty or not guilty, so he decided to flip a coin --

twice -- so that he could determine which way to vote.

I find this shocking, and I hope you do too; however, the 9th U.S.

Circuit Court of Appeals voted 2-1 to sustain Reyes’ conviction.

A trial is supposed to be about the evidence. A criminal defendant

is presumed innocent. He is presumed not to be guilty of that for

which he is charged, and if the evidence proves guilt beyond a

reasonable doubt, then the appropriate vote by any and all jurors is

guilty. If the evidence does not prove guilt beyond a reasonable

doubt, then the appropriate vote by any and all jurors is not guilty.

A coin flip?

You’ve got to be kidding me. The dissenting justice on the Court

of Appeals, Justice Stephen Reinhardt stated that “The right to a

verdict based on the evidence and not a coin flip is clearly

established in law ...”

One would certainly hope so.

I guess this shouldn’t be too much of a surprise. Those of you who

have read this column in the past may well remember a conviction that

was sustained despite the fact that at least one juror was consuming

alcohol while deliberating on the case.

Justice Reinhardt concluded that Reyes was entitled to a new trial

based on a violation of his right to due process under the law. How

can that not be the case? It is my hope that the three judge panel

reconsiders its decision or alternatively, the 9th Circuit reviews

the decision as a whole. In this type of appeal, three judge panels

make the initial decision. However, the losing side can appeal to all

of the judges on the circuit to review the case rather than just the

initially appointed three.

Don’t you think that these decisions should attempt to let jurors

know what the rules are, what they can and can’t do in the future? If

jurors learn that they can come drunk to their deliberations or flip

coins if they are having a hard time deciding the issues, what kind

of message is that sending? It is important that these types of cases

be decided logically, fairly and consistently, and none of that has

happened here.

* CHARLES J. UNGER is a criminal defense attorney in the Glendale

law firm of Flanagan, Unger & Grover, and a therapist at the Foothill

Centre for Personal and Family Growth. He may be reached at (818)

244-8694 or at www.charlieunger.com.