The Dismissed Juror in the Peterson Case:
Why He Should Have Been Kept on the Jury

By JULIE HILDEN


julhil@aol.com
----
Wednesday, Jun. 30, 2004

On Wednesday, June 23, the judge in the Scott Peterson criminal trial removed one of the jurors, Justin Falconer, and called on an alternate to replace him. After Falconer was dismissed, the defense then moved for a mistrial, but its motion was denied.

In this column, I will argue that Falconer should not have been dismissed in the first place. Although Falconer slipped up in making what turned out to be an innocuous comment to a Peterson relative, the comment itself did not indicate bias on his part, and should have been forgivable under the circumstances.

I will also argue that since the judge insisted on dismissing Falconer, he should also have declared a mistrial. Falconer's comment was relatively harmless. Thus, it appears that he likely was dismissed based in part on the frenzy following the media's mishearing of his comment. When an outside party is, in effect, responsible for a juror's dismissal without good cause, it's time to call the trial to a halt.

The Comment by Falconer That Caused a Media Controversy

Peterson, as readers are probably well aware, is on trial for the alleged murder of his wife, Laci, and their unborn child. The reason Falconer was removed was related to the fact that he'd made a comment to Laci's brother, Brent Rocha, as they were going through courtroom security. At the time, both were being filmed by the media.

Falconer says his comment was innocuous and said jokingly : "I'm ruining the shot for the news tonight. You're not going to be on the news tonight." Presumably, Falconer was referring to the media's obligation not to show juror's faces - meaning that if Falconer was in the shot, it could not be used.

But some in the media overheard a very different comment. They claimed they had heard Falconer say ominously to Rocha, "You're going to lose tonight." As a result, a flurry of commentary ensued.

In the end, the judge ruled that nothing improper had actually occurred in the exchange. He must, therefore, have believed that Falconer's version of the event was the true one: Falconer merely made an innocuous joke. Obviously, as a juror, Falconer should not have been chatting with the relative of a victim at all. But his comment, nevertheless, seems to have been relatively harmless.

In contrast, there are many comments that would have been considered unacceptable. For example, suppose Falconer had said to Rocha, "So sorry about your sister." And suppose Rocha had said, "She deserves justice; she was such a good person and she was looking forward to being a mother, but that was robbed from her."

Plainly, that exchange would have been good reason to dismiss Falconer. His comment to Rocha arguably would have shown bias. And Rocha's comment to him might have intensified that bias - as well as constituting, in effect, outside-the-courtroom testimony only being heard by a single juror.

Why Falconer's Slip-Up Was Forgivable

But shouldn't Falconer have known not to talk to Rocha at all?

The answer is yes, but that doesn't mean that by talking to Rocha, Falconer willfully thwarted courtroom rules and proved himself an unfit juror. To the contrary, a juror's situation is (by nature) an awkward one, so it's not shocking that even a well-intentioned person could make this mistake.

After all, while many of us almost automatically make "small talk" with those around us, jurors cannot do so at all. The reason is that, except for what's presented in the courtroom, they are supposed to be insulated from any trial-related evidence. And just as bringing outside knowledge into jury deliberations is forbidden, so is chatting with other participants.

This creates an odd contrast for jurors. For while they are generally treated with elaborate courtesy by judges, bailiffs, and lawyers once they are in the courtroom (though the cattle call for jury selection, of course, is another matter), they are, in turn required to be rude during trial - forbidden from even acknowledge the other trial participants with just a "hello."

Being rude makes most people uncomfortable. Since it's natural to want to treat others as they treat us, no wonder slip-ups like Falconer's occur. And unfortunately, this kind of slip-up is probably going to occur as long as there are trials. And while it could be prevented, doing so would be prohibitively expensive.

Should Jurors Be Physically Separated? Perhaps, But It Isn't Feasible

After he was dismissed, Falconer suggested that perhaps jurors should be separated from other trial participants at the courthouse. The problem is that this is neither practical nor feasible in most modern courthouses. Creating separate elevators, lunchrooms, newsstands, bathrooms, and even hallways for jurors to proceed through would be a daunting and expensive task.

One way to do it might be to create a divided courthouse - with doors in the wall of one building, leading directly to jury boxes in the other building. Yet that kind of divided courthouse not only would be expensive to construct, but it also might undermine the idea that the jurors are truly part of the courtroom process, and that a criminal trial is a community undertaking. It seems undemocratic to separate the jurors' building from the place that hosts the trial to which they are so integral.

In the end, both for considerations of practicality and democracy, the necessary rudeness required during jury service - and the inevitable risk of slipups like Falconer's - will doubtless remain. And we should beware judging this kind of natural slip-up too harshly if it does occur.

If Falconer Was Dismissed Based On Media Attention, He Should Not Have Been

In sum, then, the slip-up, alone, was not a good reason to dismiss Falconer. While wrong, it was understandable, and again, his comment did not reveal bias. In addition, it doesn't seem be the real reason Falconer was dismissed.

So why was Falconer ultimately dismissed? Although the judge did not explain his ruling, Falconer told CNN that the judge said Falconer was being dismissed because he was a "distraction." And presumably, the reason Falconer was a distraction was the intense media focus that had rested on this particular juror.

If the media focus, and the resulting "distraction" was truly the reason for the dismissal - and again, we can't know what was in the judge's mind -- it was a bad reason indeed. The media focus was not the fault of Falconer, Scott Peterson, Rocha, or anyone else involved in the trial. And dismissing a juror and replacing him with an alternate always has a cost: Alternates, who do not believe themselves likely to ever actually be on the jury, inevitably pay less attention to the evidence than the actual jurors do.

More importantly, if media focus was the reason Falconer was dismissed, that sets a very dangerous precedent - a precedent that allows conduct by outside parties to affect the composition of a jury. It's one thing for a juror's own demonstration of bias, or bad behavior, to lead to his removal. But it's quite another for an outside party to effectively get a juror removed through no (or in this case, not very much) fault of his own.

The jury's composition should be sacrosanct from outside influences. How ironic if jurors who are asked never to read the newspapers, nevertheless get dismissed because of what is said in the media about them.

Given Falconer's Dismissal, the Mistrial Motion Should Have Been Granted

In sum, dismissing Falconer was a mistake, at least based on the information currently publicly known about the decision. Given that he did dismiss Falconer, however, the judge should have granted the mistrial motion made by defense attorney Mark Geragos.

Geragos argued to the judge that a mistrial should be granted because "[t]he media insinuated themselves in this case in a way that is unprecedented. I think it is an outrage."

Harping on the media's role in Falconer's dismissal was a smart tactic on Geragos's part.

Judges generally don't like to dismiss jurors. It illustrates a flaw in the courtroom process - even after such careful jury selection, the court still has to sometimes get rid of a juror -- and it casts a shadow on the ultimate verdict. Observers will always wonder, when a juror is dismissed, whether the original jury would have voted differently than that the reconstituted jury that includes the alternate.

For these reasons, the Peterson judge probably wasn't feeling too kindly toward the media after he'd felt compelled to dismiss Falconer. And Geragos rightly tried to cater to that feeling in his mistrial motion.

Still, in the end, the judge was not persuaded by Geragos's tactic; he let the trial continue. But that may have been a grave mistake.

If Peterson Is Convicted, It Will Result From the Media Coverage Of Falconer

After his dismissal, Falconer told the media that based on the evidence he'd heard so far from the prosecution, there was "no way I would even believe [Scott Peterson] was guilty."

The way Falconer put the point suggests he was adamant. It seems likely that not only would he have voted for acquittal, he would have been the lone holdout who hung the jury if necessary. So not only did the media, it seems, end up getting a juror dismissed, but it ended up getting a pro-acquittal juror dismissed.

Thus, in a very real sense, if Scott Peterson is convicted, he may end up having been convicted because of the media. For the media'scoverage in the case triggered the dismissal of a juror who would almost certainly have prevented conviction.

The whole courtroom process is tainted if the media (or other outsiders) can change the outcome of a trial - and if Scott Peterson is convicted now, that will almost surely have been the case. If the judge truly felt Falconer could not stay on the jury, then he should have declared a mistrial, finding - as Geragos argued - that the trial was already too media-influenced to be as fair as the Constitution requires.


Julie Hilden, a FindLaw columnist, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden's first novel, 3, was published recently. In reviewing 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website, www.juliehilden.com, includes MP3 and text downloads of the novel's first chapter.

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