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Juror Journalism on the Rise

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BY DUNCAN OSBORNE | As attorneys questioned prospective jurors in the Jeromie Cancel murder trial, one admitted to searching Google for information on the case during a break. Then a second said she had done the same thing.

Michael Alperstein, Cancel’s attorney, told the panel that they could not research the case if they were selected. He turned to the nearly 100 people in a Manhattan courtroom and asked, “Is there anybody out there who wants to write a book about their experience as a juror?”

Only a reporter at the rear of the courtroom who covered an earlier Alperstein trial got the joke.

In a celebrity and Internet age, defendants’ 12 peers may speak out

In 2000, Alperstein represented Eric Carolina, who was charged with the 1998 murder of Fitzroy Green, a gay man. He won an acquittal after arguing that Carolina was defending himself from a sexual assault when he stabbed Green 25 times.

D. Graham Burnett, a history professor at Princeton University, was the foreman on that jury. He wrote “A Trial by Jury,” a 2002 book, that described the trial. His portrait of the judge, the attorneys, the jurors, and the proceedings was not flattering.

Such “juror journalism,” or jurors writing books or selling information about trials, has been the subject of at least 20 law review articles since 1993. While commenters feel it might diminish the credibility of the courts or damage the fairness of trials, none has shown evidence of that. Though rare, juror journalism mostly happens in high profile cases.

While those called for jury duty try to appear interested in doing their civic duty, many are reluctant to serve and try to avoid being picked. The two who Googled the case likely did so in the hopes of getting booted from the panel. A few jurors may have an agenda that is not easily discovered during voir dire, the pre-trial process of screening potential jury members.

“A Trial by Jury” won both critical praise and some reviews that were less kind. The book reveals jurors who were frustrated by the time it took to empanel a jury. New York juries were sequestered when those deliberations occurred. The jury considered the power of the government that had separated them from their families. Burnett told them that “true justice, final justice, absolute justice, belongs to God.”

Burnett, who declined to comment for this story, was quoting comments made earlier in deliberations by two other jurors.

Before announcing the acquittal, they wrote in a note to the judge, “We the jury wish it to be known to the open court that we feel most strongly that the strict application of the law to the facts established by the evidence in this case does not lead to a truly just verdict.”

The Carolina case is not the only recent gay case that produced an example of “juror journalism.”

Eric Zaccar, the jury foreman in the 2007 trial of Anthony Fortunato, has since written a screenplay that presents the now 24-year-old Fortunato as a sympathetic character. In the screenplay, the foreman, named Eric, is the narrator and a heroic figure who is battling for justice for Fortunato.

Fortunato was tried with John Fox, now 23, in the 2006 hate crime killing of Michael Sandy, a 29-year-old gay man. The two had separate juries. Fortunato was convicted on a manslaughter charge, and Fox was convicted on manslaughter and robbery charges.

Zaccar, a playwright, could accurately be characterized as a participant in the modern celebrity culture. One of his websites, starrplay.com, is littered with photos of him posed with celebrities and famous actors. Zaccar was interviewed by the Associated Press in 1987 when he attended the trial of New York City subway shooter Bernhard Goetz and in 1998 when Big Apple cabbies went on strike. He has appeared on Howard Stern’s radio show.

Zaccar was the subject of a 1991 New York Times profile when he was employed part time at a city housing agency and authored a play that skewered that agency as ineffective and wasteful. He wrote the script at work.

“Mr. Zaccar wrote the play on the city’s time, using the city’s computers,” the Times wrote. “He printed it on the city’s printers and ran off 40 copies on the city’s copiers.”

At the 2007 trial, the Fox jury delivered a verdict first, and as four reporters waited outside of Brooklyn Supreme Court to catch Fox jurors for comment, Zaccar happened to walk by. A Times reporter began to approach him only to be told by other reporters “Wrong jury, wrong jury.” Zaccar describes that scene in “Without Hate,” his screenplay.

When the Fortunato jury delivered its verdict, reporters did not have to look for Zaccar. He came to the spot where he saw them earlier and announced his regret over the verdict.

“I’m never going to feel good about this,” Zaccar said then. “Not one person on that jury believed that it was a hate crime.”

Zaccar quickly renounced his vote for a guilty verdict and wrote Jill Konviser, the judge in the case, saying, “I never, at any time, believed, stated, or wanted to vote that Anthony Fortunato was guilty of manslaughter two, much less a hate crime.”

Following the trial, Zaccar had ongoing email communication with Gay City News that was occasionally angry on both sides. His film is scheduled to begin production in 2011.

There is no evidence that juror journalists damage the courts other than showing legal sausage being made.

“[T]he American jury is an institution whose importance is well-known but whose operations are little understood,” Sarah N. Conde wrote in a 2006 article in the Georgetown Journal of Legal Ethics. “These books have the ability to shed light on juror deliberations... If damage has been done, it is to the appearance of justice... Ultimately, in the absence of evidence showing particular damage to a defendant, juries should be encouraged to speak — whether to reveal wrongdoing in the court, explain what goes on in the jury room, or simply to tell the story that comes so naturally from the rhythm of a trial.”

Updated 5:17 pm, July 20, 2018
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