Phil Spector : The Judge's Unorthodox Instructions

Update: No verdict today, the jury will resume deliberations Monday.


Here's how to blow a five month trial out of a judge's desire to avoid a deadlocked jury: Let the jury deliberate a week and then change the jury instructions to add new ways the jury can find the defendant guilty. Then, suggest to the jury they change their method of deliberations.

It's hard not to be shocked by what the Judge in the Phil Spector trial did today. He went from this instruction:

...in order to convict Spector of second-degree murder the jury had to find that "the defendant must have committed an act that caused the death of Lana Clarkson." It went on to specify the act was pointing a gun at her, which resulted in the gun entering her mouth while in Spector's hand.

to this one:

Fidler told the panel that to prove Spector guilty, "the people must prove that ... the defendant committed an act with a firearm that caused the death of Lana Clarkson, such as placing a gun in her mouth or forcing her to place the gun in her mouth at which time it discharged, pointing the gun at or against her head at which time it entered her mouth and discharged, pointing the gun at her to prevent her from leaving the house, causing a struggle which resulted in the gun entering her mouth and discharging.


Then he adds:

"By using these examples I am not suggesting that any of these acts took place. These are inferences you may draw from the evidences but are not required to do so. You may reject them. These are only possibilities that you may consider," the judge said.

To top it off, he adds one more instruction:

It suggests that jurors change their method of deliberations, possibly switch the discussion leader or engage in reverse role-playing in which jurors argue opposing jurors' views.

As one expert said, ""An acquittal would be an astonishing thing at this point."

Background here.

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  • Display: Sort:
    Specter's team has to be thrilled (5.00 / 1) (#1)
    by Big Tent Democrat on Fri Sep 21, 2007 at 02:34:22 PM EST

    They get a free play now.

    If he is exonerated, then that is that.

    If he is found guilty, reversal seems a sure thing.

    Jury Instructions (none / 0) (#2)
    by ksh on Fri Sep 21, 2007 at 02:49:42 PM EST
    Do criminal attorneys, defense and prosecution, submit agreed upon jury instructions and does the court conduct a closed hearing on instructions as they do in civil cases?  As bad as the revised instructions are, I can't imagine a prosecutor agreeing to the first one.

    Each side (none / 0) (#3)
    by Deconstructionist on Fri Sep 21, 2007 at 02:56:09 PM EST
      submits proposed jury instructions and then at the charge conference the judge rules oneach submitted instruction. sometimes they are refused, sometimes they are modified, sometimes they are given over objection and sometimes they are given without objection.

      I believe the prosecution did object at the intial charge conference and the judge denied the objection and gavethe instruction. Then, when the jury sent a note saying it was deadlocked, the judge changed the instruction.

      It would also be interesting to be inside the prosecutor's head now. He has to realize that this has likely created error. That HE did not try to convince the judge not to do this suggests he thought deadlock or acquittal were the only likely outcomes before the judge went off course.


    The original instruction (none / 0) (#4)
    by scribe on Fri Sep 21, 2007 at 03:07:52 PM EST
    was approved by the judge, over the prosecution's objection.  I discussed some of the coverage in this comment, over here, yesterday.

    Bluntly, the only things this judge could have done which would have been more egregious would have been to (a) direct a verdict of guilty or (b) sit down in the jury room to deliberate with the jurors.  As it is, the judge has pretty much taken over the jury.

    I can't tell you how many times I've seen this - a judge thinks the past X weeks of work trying this particular case will be "wasted" because the jury will hang, so the judge gives instructions which almost guarantee a short, sharp reversal on appeal or otherwise messes with deliberations.  

    Or in a civil case (where a unanimous verdict is not necessarily required) there will be alternate jurors who don't get to participate, and the judge wants everyone to have nice, warm fuzzy memories of their jury service and to accomplish that puts the alternates into the jury room, thereby messing with the fractions for winning - and giving the civil defendant (i.e., insurance company) a huge advantage.

    Or the courtroom clerk isn't sworn properly and then spends time trying to pick up the attractive representative from the defendant corporation and talking crap about "some people will sue anyone" where the jury can hear.

    They should all read, clip, post and keep this:

    Notice to all judiciary personnel:  
    "The courtroom system is a pretty sound one, guys, and it's been made by hundreds of years of trial and error.  That's where the Rules come from.  Your ad hoc, improvisational monkeying around with it to try to make it work "better" will have results about as good as letting your three-year-old fix the TV:  it won't work anymore, the house might burn down, and someone might needlessly wind up in the hospital.  So, follow the rules."

    and, yes, (none / 0) (#5)
    by scribe on Fri Sep 21, 2007 at 03:09:23 PM EST
    when the three-year-old tries to fix the TV, hairdos like Mr. Spector's result, too.

    As in a civil case, if the parties agree on (none / 0) (#6)
    by oculus on Fri Sep 21, 2007 at 04:00:21 PM EST
    certain jury instructions, those are given; but each party may also submit instructions which have not been agreed upon; then the judge decides whether to give the instruction or not.  

    Can the jury (none / 0) (#7)
    by Saul on Fri Sep 21, 2007 at 04:51:33 PM EST
    question the judge if this is legal.  Can they ask the judge by what precedance can you change the instructions after we have ruled on your inital instructions and now you don't like our outcome of our vote.   What happens if they are still deadlock after the second set of instructions.  Can the judge come back and change the instructions again.  I sorry but the way I understood it was once you give me the instructions and I have  heard all the testimony during the trial  once I go into that jury room and vote I am GOD and no one has the authority to try to convince me of how I voted even if its a hung jury.  Especially the judge.  To me giving these instructions again is on borderline jury tampering as far as I am concerned.  

    The jury foreperson may submit a written question (none / 0) (#8)
    by oculus on Fri Sep 21, 2007 at 04:59:19 PM EST
    to the bailiff.  The judge isn't required to answer the question though.

    While the jury may ask the judge any (none / 0) (#9)
    by scribe on Fri Sep 21, 2007 at 05:17:27 PM EST
    question they might want, the judge doesn't have to answer it.

    This is one of those questions which the judge would answer by saying "this concerns a matter in which I can't give you an answer.  Resume deliberating."

    Or words to that effect.


    Another LA celebrity jury nullification (none / 0) (#10)
    by bx58 on Fri Sep 21, 2007 at 06:33:05 PM EST
    How long before we see a rack on page 3 of our tabloids? Only time will tell.

    Here's an interesting quote from (none / 0) (#11)
    by oculus on Fri Sep 21, 2007 at 06:59:43 PM EST
    an earlier LA Times article on the trial:

    "I certainly think there is the specter of coercion" by the judge, said USC criminal law professor Jean Rosenbluth, who has followed the case closely.

    Rosenbluth mused about the effect of televising the trial.

    At one point on Thursday, Fidler said he was not sure whether the public understood what was going on.

    "This judge is always very careful and very deliberative," Rosenbluth said. "I wonder, since it is being televised, if that is causing him to think more than he normally would about everything and second-guess himself. Superior Court judges are very busy. Here, there seems to be a lot of hand-wringing going on."

     [Emphasis added.]