The defense team for Ghislaine Maxwell announced its plans to appeal her recent sex-trafficking conviction after two jurors from the trial told reporters that they were sexually abused and discussed this with other jury members in deliberations.

Maxwell’s attorneys are looking into whether the jurors incorrectly filled out a questionnaire in which they were supposed to disclose this type of information — details that could have led to biased decision-making. If they did, that would be gross jury misconduct that could be grounds for a mistrial.

Jury misconduct in any shape or form is critical to whether justice is served. However, it is an often misunderstood part of the process because justice systems don’t want to scare off potential jurors from serving in future trials.

Stan Gipe and partner Matt Dolman are seasoned trial lawyers and acutely aware of how delicate the process of selecting a jury is and why jury misconduct is such a serious offense.

In this episode of the David vs. Goliath podcast, Stan and Matt discuss how emotions move juries more than facts and how this makes jury impartiality an even bigger deal. They’ll also cover some of their own courtroom experiences where questions of jury misconduct became an issue.

In this episode:

• [00:38] Matt Dolman introduces the topic of the day: Jury misconduct and the issue around the Ghislaine Maxwell verdict
• [01:32] Why juror neutrality is critical
• [03:16] Stan and Matt share their  first-hand experience of jury misconduct
• [07:09] The dilemma of being a juror
• [08:38] Stan talks about the most common jury misconduct in civil trial personal injury cases
• [11:38] Jury selection is the most important part of a case. What drives jury selection?
• [13:50] How remote trials increases the potential for juror misconduct
• [17:25] Contact Stan and Matt if you’re ready to retain the services of competent and experienced trial lawyers for a personal injury case by visiting their website dolmanlaw.com.

Transcript

Welcome to another episode of the David Vs Goliath Podcast. I’m Matt Dolman with my partner in crime Stan Gipe. Stan?

Hey, we’re glad to be here today.

And I think today we’re going to do a little bit of a discussion, aren’t we, about jury misconduct?

Yeah. That’s the first topic we’re going to discuss today is jury misconduct, and this comes to light after the Ghislaine Maxwell verdict. And I’m not sure how many viewers or listeners have paid attention to news in recent weeks that Ghislaine Maxwell, who was the madam to Jeffrey Epstein, after the verdict, two different jurors now, now there is a second juror’s come out, have been interviewed by the press and they discussed their prior sexual abuse and how it framed the deliberations in the juror room, and that is grounds for a potential mistrial and a motion is expected to be filed by Ghislaine Maxwell’s counsel in the coming days.

Presently they are looking into the actual jury questionnaire and whether those two jurors filled out the jury questionnaire properly as they were asked to disclose any prior sexual abuse, not only to themselves but to any friends, family members or colleagues. And one juror has already told the New York Times that he ran through it very quickly and may have glossed over some of the questions.

Yeah. You look at this and for those people who maybe aren’t familiar with this case, and I don’t think there’s very many people that aren’t familiar with it, this case involves sex trafficking of minors. And when someone’s tried before a juror of their peers, they’re entitled to be tried by people who are neutral on those issues

Correct.

Okay. And that’s really what the issue comes down to here. As attorneys, when we walk into the courtroom, you’ve put sometimes thousands of hours into a case, you’ve always got thousands, tens of thousands, sometimes hundreds of thousands of dollars into the case, and you’re taking it very, very seriously. Jurors on the other hand are there with the summons. Many of them don’t want to be there, many of them resent the fact that they’re there and may or may not take the obligation quite as seriously as they should.

Now, Stan Gipe is a board-certified civil trial lawyer, that basically means he’s designated by the Florida Bar as an expert in civil trial advocacy. In order to become an expert, you have to try a certain amount of cases and express competence through, I think it’s a written examination and also the affirmation of, is it two attesting judges or one?

Yeah, you got to get multiple testing judges and opposing counsel that say basically you know what you’re doing.

And I’ve tried plenty of case myself and you’re an even more experienced trial lawyer. In your experience, I mean, have you ever dealt with jury misconduct or potential juror misconduct?

We’ve dealt with juror misconduct during the questioning phase, where a juror would not listen to the judge’s instruction during questioning, poisoned a whole jury panel and a whole jury pool. We ultimately had to miss try that case because we couldn’t get another-

I understand what you mean, but what do you mean by poisoning the jury pool?

Well, what this was is we had questions about… We’re entitled to neutral people, people who come to the courtroom with no feelings one way or the other about our case. I had a particular case where one of the defense doctors had treated one of the jurors husbands. So you ask the question, does anyone one know this doctor, anyone know any of the witnesses? The juror raises her hand and the judge says, “Okay madam, well, we’d like to get your opinions outside of the hearing of the other jurors, please wait for the jurors to leave the room.” She goes, “No, we don’t need to do that. He’s a fantastic doctor, my husband loves him.”

And then suddenly, we’ve got all these other jurors sitting here saying, “The defense expert is fantastic.” And I’m going “Oh man, how do I fix this?” You really can’t, because once a cat’s out of the bag we’re kind of done and the defense expert’s going to be directly opposed to my expert so you really can’t fix it, and that poisoned the whole jury. Most of the time though what happens is, after we get a verdict we never hear from the jury again.

Correct.

It’s usually not where the New York Times or the Post aren’t interviewing my jurors, they’re not out there giving publicity. So we don’t find out a lot of times that they lied or didn’t take their forms, didn’t fill them out correctly, we just don’t find out that information.

Correct. So Stan and I, the majority of the cases we try there’s civil jury trials first of all, there’s criminal and civil, and they generally range in the area… It’s a whole gamut of personal injury matters from slip and falls to car accidents, to premises liability, negligent security. These are cases are generally not newsworthy unless there’s exceptional set of facts, correct?

Correct. Like in this case, the juror misconduct as I understand it is apparently one of these jurors actually said that they used their own experience with sexual molestation as a victim to help sway the other jurors in reaching their verdict.

Yeah. And the second juror described in the New York Times interview, “Having been sexually abused and such experience was discussed during deliberations and the revelation appeared to have shaped the jury’s discussion.”

Yeah. Well, that’s exactly what you’re trying to avoid.

And the huge issue, the controlling issue is going to be the jury questionnaire and where they disclose their prior experience of being abused or if they knew of any colleagues, friends, family members that have been abused as well.

Yeah. And when you think about it, I mean, sexual abuse is a horrible thing. It’s bad, no one’s going to say it’s good. And it’s so bad that if it happens to someone, it’s likely to leave such a resonating feeling in their head, some subconscious feelings that they feel like they need to act on, they need to right the wrong that’s been done to them. “Hey, here’s someone else who’s getting sexually molested, I’m not letting this person get away with it.”

Agreed, it’s going to create a visceral response.

And while you never want a molester, you never want anyone to get away with it, you want a fair trial because what we got to understand is before they’re convicted they’re not a sexual molester, they’re just a person.

Yeah.

Okay. You can’t assume that they’re guilty until after the fact and that’s where we have the problem.

In my experience, in 2013, we were trying a case in downtown Clearwater. For those who are not familiar, that’s an area of Florida in the Tampa Bay area. And one of the jurors during lunch hour had consumed three alcoholic beverages, and we moved immediately for a mistrial. He fell asleep too, and it wasn’t granted. And we got a verdict, but it wasn’t a verdict that we were expecting on the case. It was just still a decent verdict, but not quite what we wanted. And we thought that was a controlling factor, judge felt otherwise.

Yeah. And you got to realize when jurors get into this, you’re answering questions, you’re swearing to tell the truth. This is if you’re not honest, if you’re dishonest, if you conceal facts or misrepresent facts, I mean, that’s a crime. And rarely do people get prosecuted for it, occasionally when it’s egregious, but it’s a crime and I don’t think jurors necessarily always come in with enough sort of perception of the duty that they’ve got.

And the reason why they’re not prosecuted generally, I would assume is that the judicial system is worried about having the chilling effect of scaring individuals off of serving on jury panels.

Correct. And then the Ghislaine Maxwell case is probably a little bit of an anomaly because we do have a situation where most of our cases, Matt, and you’ll probably agree with me, we’re dealing with jurors who don’t want to get on the jury.

Correct.

We’re dealing with people who want to figure out how to get off the jury so they’re not hiding something.

Yeah. Car accidents, slip and fall, premises liability cases are not sexy.

Yes. But when you got Ghislaine Maxwell, you got people who want to be a part of the mix, people who want to be… It’s the thing to do, I mean, you get to be one of the famous jurors. So you probably have a little bit more penchant for people to be slightly dishonest, bend the facts, gloss over those questions that they think might disqualify them.

100%. What are the most common issues that you would see in terms of jury misconduct, the juror misconduct, dealt in civil trial personal injury cases?

Okay. We have the two sort of things. It’s really two ways. One is failure to disclose relevant issues on the front end just like we had right here, a failure to disclose that there was some sexual molestation. A lot of times, Matt, you know this is an issue, racial prejudices can be a big issue in America today. In all of my cases, we know that there’s prejudice out there. I’ve only ever had one juror raise a hand and say “Yeah, I’m prejudice.”

And it was almost stunning when he raised his hand and you’re like, “Yeah.” He’s like, “Yeah, I’ve got a problem with Black people. I don’t like Black people.” And it’s a good thing that regardless of how you feel about that feeling, thank goodness, he shared it with us because my client was Black and I didn’t want him on the jury. So rarely do people share those kind of facts, because it can be embarrassing to stand up in a room full of people and say-

Yeah. The stigma of other people viewing you and judging you.

Yeah. I’ve got a predispose thing, or, “Well, yeah, I was sexually molested.” People may not want to say that in a room full of people and they hide it because of embarrassment. The other thing we get is researching the case outside of the courtroom. Inevitably in the land of Google that we live in, if you’ve got a question, if something piques your curiosity, what’s the first thing you do? You Google it and you go down a rabbit hole.

No question about it.

Well, these jurors have been watching us as attorneys all day long, watching the clients all day long, the first thing they want to do when they get home is Google and find out about us. What’s their personal life like? What else did they do? All of these things, Google the scenes of the accident, see what they can find out and really investigate this stuff. That’s prohibited. The judge tells jurors, they’re not allowed to do that. But every juror knows once they get into their house, at the end of the day, the likelihood of someone catching them is really, really slim.

But if the suspicion is there, we can then investigate and dig into what they were doing in their private time. That’s the problem, it run both ways.

Yeah, exactly. We can dig into it, but the suspicion has to be there. So you have to figure out how you pick up on that, but that’s true. I mean, you go out there, people will go out there research things, find out things about clients, plaintiff or defendant. Let’s just say you’re out there and you’ve got someone who was arrested for a crime that’s totally unrelated to this incident. Well, that could really upset one of the jurors. They go out there, look at it and suddenly, they’re taking things into account.

They’re considering facts that aren’t in front of all the jurors, the conviction or the verdict, whichever kind of criminal or civil side of the law you’re on, it may not be valid. And all the work that went into getting this stuff done, all the work from the attorneys, the money, all of this stuff is for not.

There’s no question, that taints a verdict.

I mean, and really we’ve talked about this before, jury selection is probably one of the most, if not the most important part of the case.

We’re on the same page

Yeah. That those six people or seven people with an alternate that are sitting in the box and make decisions, they’re like six people driver’s license, they’re just driving up and down the road. They’re not attorneys, they’re not actuaries, they’re not adjusters, they are normal people and normal people are swayed by their emotions more than the facts.

100%, agree.

It’s not the scar on the face, it’s whether the scar’s on the face of a two-year-old girl or a 60-year-old construction worker; same injury, but it’s the emotional impact that drives verdicts. So when we’re picking out the plaintiff, when we’re dealing with auto accidents, we’re always trying to find people that we feel are more likely to be empathetic.

Which during this climate, by the way, and not getting into any political discussion, but you’re more likely to get Republicans on a jury panel who are not worried or as fearful of COVID. And that creates a much more slanted jury in favor of the defense, the insurance companies.

That’s what we’ve been thinking. Anecdotally though, when I’ve been speaking to people who’ve been trying a number of cases in this atmosphere, they’re saying they’re not necessarily seeing that. That’s your thought, “Hey, the people we want are typically liberal.” And those people are typically mass and they’re scared of COVID. So the natural thought is, “Hey, these people aren’t going to show up.”

And whether or not that’s a case, I don’t know. But it seems like the fear that we were talking about with jury verdicts going down because we’ve got really conservative people out there, whether we’ve been fortunate or lucky to avoid it or it’s just the anecdotal stories I’ve heard about, it hadn’t played out so far.

Agreed. I don’t have any anecdotal experience, this is just what I’ve heard that probably was going to happen has been projected by many of the lobbying forces for trial lawyers, including the Florida Justice Association. But I haven’t actually seen it play out.

Yeah. And then one last thing I will mention while we’re doing this is the land of Zoom, like with podcasts, what we’re doing now. Well, it’s great because we can go back, we can fix this. We don’t have to live on the fly, no one’s being sentenced to die, there’s no massive decisions being made. But when you’ve got six jurors, sometimes more than that, that have to be dialed into a case, the potential for misconduct when you’ve got them sitting on Zoom just amplifies.

Sure.

Okay. Who’s sitting over my shoulder listening to everything, whispering in my ear their thoughts on it? Suddenly you’ve got the team of jurors in the family. So it’s a whole new world with Zoom out there. I know there’s been some Zoom trials. I know the technological burden on the court system was high, because what you got to do is every juror has to hear every word at the same time. So if someone has a technical glitch, we got to back up and have everyone hear it again.

It’s a disaster. I know they’re using software to prevent other windows from opening up in a computer and from you viewing other things while the Zoom screen is open, but you can’t prevent someone from standing over the shoulder. And maybe what you might hear or see, that’s outside the control or the auspice of the rest of the jury and the judge and the lawyers involved.

Yeah. And anytime you’ve got a computer involved, there are people that are going to be smart enough to manipulate it.

Where there’s a will there’s a way.

I’m not one of those people.

Neither am I.

Yeah. I have trouble hooking up the printer, but there’s people out there creating ransomware and everything else that with the stuff they can do, I have no doubt they can hack into the jury system. And in fact, kind of anecdotally, I’m getting a little off track, there was, I want to say a trial of a kid here in Tampa and it had to do with some internet… basically an internet scam; stealings some Bitcoins from people by taking over famous people’s Instagram accounts and saying, “Hey, if you send me this money, I’ll double it and send it back.” And they took over these verified accounts. When he went to trial, it was Zoom at the hearing. Well, somebody, presumably one of his friends took over the Zoom link and started playing porn in the middle of the courthouse during the hearing.

I remember that, that was a national news story.

Yeah. So if that can happen, I mean, if you can play porn and drop it in the middle of the hearing, what can’t you do?

Yeah. That’s what makes these online trials so vulnerable. They’re open to so much more manipulation and just crude, awful behavior that you won’t see in a courtroom itself.

Well, crude and awful behavior. But think about this, Matt, if we’ve got 100 million dollar case, not in a $50,000 case but in 100 million dollar case, who’s to say that someone hasn’t invested into software that when I say, “Hey, this is what I’m showing to the juror.” Someone else is putting something else up that pops up on their side of the screen. “Hey, here’s the x-ray showing the broken bone.” And the jurors see a clean x-ray. There’s so many different ways to manipulate both the process and sort of the display of information when we go in the fully virtual world.

Stan, give us some more information about how the consumers can find us if they need to retain the services of a competent, experienced trial lawyer for a personal injury case.

Well, Matt, as you well know, we’ve got one of the largest personal injury websites in the nation.

Mm-hmm (affirmative)

Okay. If you’ve got a question, if we don’t have an answer to it, it’s because we haven’t thought of the question yet, because we basically have thrown everything on our internet website at dolmanlaw.com that people may want to know. I mean, that is one of the richest internet websites out there. We get millions of visitors, so we have a ton of information out there. So I would say the best way to reach us is go dolmanlaw.com. And Matt, that’s something you started several years ago and it’s just, it’s blown up. Matt was really-

Yeah. Now among law firms is the second most traveled personal injury law firm website in the country. So the firm is Dolman Law Accident Injury Lawyers, and you can reach us anytime at 833-55-Crash. We’re available 24/7. The phones will always get answered by at least an answering service if we’re sleeping in bed, but we’re going to get right back to you.

We pride ourselves in providing personal attention. We try to separate ourselves from the high-volume personal injury lawyers you’ll find advertising in television and radio by being accessible and again, giving that personal touch. If you need to reach us, I’m Matt Dolman, that’s Stan Gipe. This wraps up another episode of David Vs Goliath.