The furor over one juror

By ED McMANUS

It was an especially brutal case of child abuse. Two-year-old Jasmine Ferguson had been severely beaten and placed in scalding hot water. When paramedics were called to the home of her grandmother, they found the child nearly comatose. She died two days later, and the grandmother, 38-year-old Miriam Watt of south suburban Harvey, was charged with murder.

The state sought the death penalty and, as is customary, questioned prospective jurors about their feelings on capital punishment. Eventually, 12 jurors who said they weren't opposed to it were selected, and on December 15, they found Watt guilty.

But then the state's plan went awry. When the jury began considering whether to declare Watt eligible for a death sentence — a procedure which precedes the deliberation on whether to actually sentence a defendant to death — one juror resisted. The jury foreman told the judge that the man refused to declare Watt eligible "because of his disbelief in the death penalty."

What happened? We don't really know. Perhaps the man deliberately lied during jury selection. But what would someone's motivation be to do that? Maybe he just changed his mind.

And what can (or should) be done about it? As in many aspects of our criminal justice system, it depends on your point of view.

The prosecutors were outraged, and Robert Clifford, head of the sixth district of the Cook County state's attorney's office, said his office might prosecute the man for perjury. This statement provoked even more outrage from defense lawyers, who denounced Clifford. But no one ultimately did anything to the juror. He was never interviewed by the judge or the attorneys, so we don't know what he said in the jury room other than what the other jurors said he said.

(The judge subsequently sentenced Watt to life in prison without parole.) The prosecutors felt double-crossed: "He sabotaged the system," said Assistant State's Atty. Henry Simmons.

"It's so frustrating," said another assistant state's attorney, Celeste Stewart. "The guy lied to us."

"It's not fair that a member of a jury can misrepresent himself and go unpunished," said Clifford. He said it would be possible to hold a hearing on whether the man was in contempt of court or to prosecute him for perjury. Clifford turned the matter over to his superiors, who took no action.

But the defense lawyers were still mad at Clifford. A group of 10 lawyers, led by Cook County Public Defender Randolph N. Stone, issued a statement, which said in part:

"Clifford should be reminded that in a democracy, the voice of dissent is not sabotage, but a necessary and valuable part of the 'system.' Clifford's statements constitute not only a blatant threat to punish a juror for depriving the state's attorney's office of a death verdict, but an insidious attempt to intimidate future jurors with the specter of prosecution for disagreement with the government. Such threats and intimidation have no place in our criminal justice system.

"Jury deliberations are sacrosanct. No juror ever need justify his or her vote in

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a criminal case. The dissenting juror in the Watt case, for whatever reason, concluded that the defendant should not be sentenced to death. Perhaps the juror felt lingering doubt about Watt's guilt, since the evidence against her was completely circumstantial. Perhaps the juror felt the evidence did not warrant the death penalty. Perhaps the juror chose to extend mercy to Watt. Any of these reasons is completely legitimate and above questioning or criticism.

"Moreover, even if the juror in the Watt case simply refused to consider the death penalty, there was no 'perjury' involved. The decision to sentence a fellow human being to death is unlike any other. A potential juror being questioned before a trial may sincerely believe that he could, under the proper circumstances, sentence someone to death. Yet that same juror, after hearing the evidence and considering the sentence in deliberations, may find himself unable to do so. Such a good faith realization by a juror is no crime.

"Our jury system will cease to work if jurors are forced to worry that they may be punished for their decisions."

Clifford and Stewart stressed that their anger over the juror's action was magnified by the fact that it occurred while the jury was deciding whether Watt was eligible for a death sentence — not whether she should be sentenced to death. Under Illinois law, people can be sentenced to death only if they fit within certain categories — in this case, according to prosecutors, because it was a "brutal and heinous" murder of a child.

As a matter of fact, one member of the jury, interviewed by the Chicago Tribune, said the other jurors, although they wanted to declare Watt eligible, "were not going to vote for death."

The courts have held that a juror is guilty of misconduct if he falsely misrepresents his interest or situation during jury selection. But, as the defense lawyers pointed out, we don't know if that was the case here. Clifford had a point when he said during an interview, "What if the shoe was on the other foot? What if those lawyers lad been assured that a juror wasn't hostile to them, and then he turned out to be?" So it seems to come down to who's side you're on.

Ed McManus is an assistant editor for the Chicago Tribune.

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