When The Jury Has Spoken, But Won't Shut Up:
How the Jackson Jurors' Book Deals Broke the Law, and How We Can Avoid Having Jurors Undermine Their Own Verdicts

By JONNA M. SPILBOR
Thursday, Sep. 01, 2005

By now, there probably isn't a single Earth-dweller who doesn't know Jackson was acquitted following the fifteen-week trial. The jury of four men and eight women rendered a collective "not guilty" verdict to each and every charge. And their verdicts rang out loud and clear across a courtroom which, at times, seemed more like a battlefield.

Several weeks have since passed, most of them quietly - appropriately so - as Jackson's across-the-board acquittal literally means this case is closed. The jury has spoken, and frankly, there is nothing left to say.

Why then, won't Jackson's jury shut up?

Less than two months after clearing Michael Jackson of all charges, jurors Ray Hultman and Eleanor Cook have come forward publicly to announce they made a mistake. In their words, they feel Jackson's jury "let a pedophile go."

Cook has reported being "bullied" into her not-guilty verdicts - all fourteen of them.

Hultman claims his conscience has gotten the better of him. At least, so says his publisher.

Whether these claims are publicity stunts, or genuine revelations, the world will never know, because, as has been the case since time in memoriam, jury deliberations are done in secret. Privately. Behind closed doors, only to be interrupted by a welcomed pizza person or bailiff.

These surprising revelations are of no legal significance whatsoever to Michael Jackson - double jeopardy prevents Jackson from being retried, no matter what any or all of the jurors say post-verdict. Yet they are significant for us all - for they are destructive to the integrity of our criminal justice system. There is something very powerfully unsettling about a jury, or rogue members thereof, undermining its own verdict.

In this column, using the Jackson case as a prime example, I will discuss how, when it comes to criminal trials - particularly in high-profile cases - a few minor modifications to the law could save future defendants from similar fates.

The stakes are high - when jurors whose verdict was "Not Guilty" start to reverse themselves in public statements, their comments degrade the sanctity of the criminal justice system, and violate the paramount right of any defendant -- the right to a fair trial. They also threaten the spirit of the double-jeopardy clause; despite his acquittals, Jackson may not be at risk in the courtroom anymore, but his guilt is being debated, once again, in the court of public opinion.

Why Jury Duty and Dollar Signs Don't Mix

To see why situations like that of the Jackson jury are happening, it's worth stepping back a bit, and looking at the character of jury duty as a whole.

Jury duty. It's the cornerstone of our criminal justice system. A girder within the framework of our Constitution. A noble commitment that nary an American citizen shall escape - save for those who have themselves been previously convicted by a unanimous group of twelve unfamiliar peers.

That is, until now.

Today - especially when it comes to celebrity trials, or those that become celebrity trials (think Scott Peterson; he was a fertilizer salesman, remember) - being selected for jury duty is almost like winning the lottery. It leads to lucrative book deals. Movie options. All-expenses- paid interviews in exciting cities. The post-trial money-making opportunities for celebrity-trial jurors abound. And it's all perfectly legal - indeed, arguably protected by the First Amendment.

But should it be? The First Amendment is involved here, but so is the Sixth - which guarantees a fair trial. Might the future prospect of payment for post-mortem, jury deliberation tell-alls cloud jurors' judgments and affect their decisions?

In high-profile criminal trials, it's not difficult to imagine an enterprising potential juror with dollar signs in his eyes, and fingers crossed, dutifully answering all the questions of voir dire as if he were channeling Mother Teresa in an effort to be chosen.

And, it isn't much of a leap from there to imagine an unscrupulous publisher who, with a wink and nod, secretly convinces a juror that his or her advance may include an extra zero should the verdict be, say, guilty. It's been said that "sex sells," but acquittals? Eh, not so much.

Jurors are the ultimate triers of fact. When we offer to pay for an account of a juror's experience in the jury box, we risk changing what the juror has to sell. Put the prospect of making a million bucks in front of a middle-class juror (which most are) and you may create a monster.

And even if eleven jurors have perfect integrity (let's not forget the admirable ten Jackson jurors who do NOT have book deals), it won't matter much if the twelfth does not. That twelfth could either hang the jury, or else hold out so strongly for conviction, that he or she batters the rest into submission.

The Case of the Michael Jackson Jurors: Why Did They Come Forward Now?

Looking at jurors Hultman and Cook, I asked myself this: Why come forward now? For that matter, why come forward at all? If they cannot change their verdict (and they can't), and therefore cannot change the outcome of the case, why speak out?

The answer, sadly, requires little imagination. Obviously, something happened in between what appeared to be an unwavering "not guilty" verdict following several days of deliberation, and August 8th, when they appeared together - on a primetime cable news show - to announce their about-face.

What was it? Did these two people happen to show up at some "Jurors Anonymous" meeting, only to learn the Step Six is admitting when you've rendered the wrong decision? Or, were they approached with the prospect of a book and movie deal which (wink, wink) just might make them a whole lot richer if there were (hint, hint) a controversy of sorts surrounding the verdict?

I can't truly know these jurors' motivations, but I can hazard a guess based on the timing of events, and the statements they've publicly made. I'm putting my money on the book and movie deal because, simply, the revelations of jurors Hultman and Cook coincide with the announcement of their individual books deals and combined television project.

Each juror will be coming out with his or her own book, and both, not surprisingly, will be published by the same publisher. Hultman's is to be entitled, "The Deliberator", while the title of Cook's tell-all is to be, "Guilty As Sin, Free As A Bird." I imagine that books entitled "Yup, Like We Said, Still Not Guilty" would be a lot less saleable.

How The Jackson Jurors Broke the Law: They Were Supposed to Wait Ninety Days

In California, Penal Code section 1122 states, in part: "After the jury has been sworn and before the people's opening address, the court shall instruct the jury...that prior to, and within 90 days of, discharge, they shall not request, accept, agree to accept, or discuss with any person receiving or accepting, any payment or benefit in consideration for supplying any information concerning the trial; and that they shall promptly report to the court any incident within their knowledge involving an attempt by any person to improperly influence any member of the jury." (Emphasis added.)

This is California's version, but most states, it turns out, have similar statutes - imposing moratoria, but not forbidding jury book and movie deals.

Looking at the calendar, it has not been 90 days since Jackson's jury was discharged. Clearly, the pair is in violation of the statute -- a statute punishable by contempt of court.

How can this violation be addressed? Jackson - or the prosecution, though I doubt it would be so inclined, since it too believed Jackson guilty - could file a motion for an "Order to Show Cause" why the jurors should not be held in contempt. Or the court could issue such an order on its own initiative (in legal parlance, "sua sponte").

But this is an unusual case: Most jurors would simply have complied with the law, and waited the ninety days. Most publishers' attorneys would have been sure to advise them to do so. And that leads to an important question: In a typical case, is a ninety-day moratorium on juror book deals enough?

In my opinion, absolutely not.

An Ounce of Prevention: Why Not Do Away with the 90-Day Clause of Penal Code §1122?

There is an easy fix. It's time to do away with statutes that allow jurors to profit from their duty. Until then, a defendant's right to a fair and impartial jury of his peers continues to be severely compromised. Forget the ninety-day limit. Let's just say no to juror book and movie deals.

Even in a society as delightfully entrepreneurial as ours, there are a few things in life that simply mustn't be for sale. For example, judges cannot take gifts, and lawyers cannot represent conflicting parties, no matter how that might negatively affect a lawyer's income stream. Nor can a lawyer publicize his client's secrets to the world - then take refuge in a claim that he was only exercising his First Amendment rights.

Similarly, never should the rights of an accused be trumped by the price tag one juror places on his or her sworn duty to be fair and impartial.

An Acquittal Should Guarantee Freedom - Not Being Tried In the Press By the Same Jurors

The conduct of Michael Jackson's jurors is downright shameful. In this country, an acquittal should guarantee one's freedom. And I don't simply mean freedom from future prosecution, I mean freedom from public ridicule, freedom from suspicion, freedom from having to be berated publicly by the same individuals who set you free.

Comedian Norm Crosby once said, "When you go into court, you are putting your fate into the hands of twelve people who weren't smart enough to get out of jury duty."

Today, with potential book-and-movie-deal paychecks that dwarf the $12 dollars-a-day and free lunch of bygone juries, I gotta ask, who's dumb now?


Jonna M. Spilbor an attorney and legal analyst on "Kendall's Court", airing Sundays on Fox News Channel's Weekend Live with Brian Wilson. She is also a frequent guest commentator on Court-TV and other television news networks, where she has covered many of the nation's high-profile criminal trials. In the courtroom, she has handled hundreds of cases as a criminal defense attorney, and also served in the San Diego City Attorney's Office, Criminal Division, and the Office of the United States Attorney in the Drug Task Force and Appellate units. In 1998, she earned certification as a Court Appointed Special Advocate with the San Diego Juvenile Court. She is a graduate of Thomas Jefferson School of Law, where she was a member of the Law Review.

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