Friday, April 10, 2009

Widmer Revelation: Deja Vu All Over Again

What is it with you people? What part of "don't investigate on your own" don't you understand? Why won't you listen to the judge when he gives you instructions? Did you think following his warnings was optional?

The Enquirer reports that in support of his motion for a new trial, Ryan Widmer's attorney has filed an affidavit from a juror in which that juror claims that other jurors conducted their own experiments to figure out how long it would take someone to air-dry after taking a shower. He also says a juror mentioned that there was water on the edge of the tub hours after she dried her child after a bath.

(For those of you who live under a rock or outside southwestern Ohio: last week, following a two-week trial and over twenty hours of juror deliberations, Widmer was convicted of murdering his wife by drowning her. The defense claimed that he was in another room while his wife bathed, and that she likely had a seizure while in the tub and slipped under water while unconscious.)

Jurors aren't allowed to experiment. But we also tell jurors that they don't have to leave their everyday experiences at the door to the jury room. So I'm not bothered that a juror might mention that she gave her kid a bath, and that the bathroom was still wet some hours later. That's part of your normal life experiences. We wouldn't expect a juror in a drunk-driving case to forget about his observations of drunk people in the past or forbid him from comparing those to a defendant in a police video. But intentionally experimenting to try to figure out a body's air-drying time? That seems--to me, at least--off-limits. And it might mean a do-over for Widmer.

If a court agrees that a new trial is warranted, it wouldn't be the first time a Tri-State verdict in a high-profile case was set aside because of jurors' actions. One of the most famous instances of juror experimentation took place over a quarter-century ago following the first civil trial regarding the Beverly Hills Supper Club fire. The case is included in law school texts on civil procedure. As you might recall, the plaintiffs (represented by Stan Chesley) argued that the fire was caused by aluminum wiring in the restaurant. Following testimony on this issue by the plaintiffs' expert, a juror went home and checked out his own, similar wiring. When the plaintiffs appealed their loss, the federal Sixth Circuit Court of Appeals ordered a new trial, writing:
Our decision to reverse is most regretfully made, as the length of time it has taken to reach it may suggest. The trial was generally a fair one, vigorously and effectively presented by able counsel before a skillful and experienced trial judge who cannot be faulted for the events which have occasioned the reversal. We are mindful of the trial judge's observation, earlier stated in an unpublished opinion of this court, that "[e]xperience teaches that while every additional day of trial increases the possibility of error, it correspondingly reduces the risk that any single error may have prejudicial effect upon the ultimate result." Nonetheless, the recited facts of the improper experiment and its use in the jury deliberations are too compelling and too fraught with potential for prejudice to be ignored. [Internal citation omitted.]

I don't know if what happened in the Widmer case rises to the level of what happened in the Beverly Hills trial. Maybe a body's drying time is part of one's ordinary experiences. But here's a tip: if you're on jury duty and selected for a trial, don't conduct your own experiments; decide the case based on the evidence presented in court. You'll save everyone a lot of time, money, and anxiety.

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