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Drinking While Jurying

What happens when juries decide to tie one on.

In Canada earlier this month, the Court of Appeal for Ontario wrote of a criminal case in which jurors staged what was described as a “small mutiny” — demanding to drink. It was a Saturday night. The jury had just endured the stress of a 14-week murder trial in which a young woman had been shot and killed. Deliberations were to begin soon.

An officer monitoring the jury cautioned that alcohol would be unwise. But after half the jurors began “acting like school children,” the officer relented and said words that were gloriously naïve and destined to be ignored, telling the jurors they “could have two drinks at most.” The drinking started in a private room off the hotel bar for two hours. “The jurors appeared jovial,” the Court of Appeal wrote. Afterward, as many as six jurors retired to a hotel room to continue socializing. Upon receiving the inevitable noise complaint, the court services officer knocked at the room’s door.

The door was finally opened, to reveal laughing jurors and whiskey. Several jurors said they wanted a couple more drinks — “that they were adults and could handle it.” This was followed by continued drinking, continued knocks at the door, and an eventual diminishment in joviality, with one juror telling the officer they just wanted to relax, “cause they’ve been stuck in that fuckin’ stinking jury room for fuckin’ hours without much relief or knowing what the fuck is going on.” A second juror told him: “I don’t give a fuck what the judge says.”

The jurors began deliberating Sunday. They had their verdict by Monday: All three defendants were convicted of first-degree murder. The Court of Appeal, asked to determine if the jurors’ drinking constituted a miscarriage of justice, decided it did not, saying there was no evidence the jury deliberated while actually drunk.

The Canadian case is just the latest in a centuries-long back-and-forth in which courts have confronted drinking while jurying, with judges forced to decide how much is too much. In 2007, a juror in New York City filled his water bottle half with vodka. A few years later a juror in Louisville pulled the same trick.

In the 1800s, states split on whether alcohol should be allowed at all, and if so, in what measure. Some states — Iowa and Texas among them — decided a single drop to a single juror’s lips nullified a verdict, requiring a new trial. Other states, including New York and Colorado, came to require evidence that jurors had imbibed so much as to “unfit them for the careful discharge of their duties.”

The examples below show just how much some jurors wish to drink, and how the courts have responded.

Alcohol: Beer (by the keg), wine, whiskey

Case: People v. Clarence Gray (Supreme Court of California, 1882)

Summary: Gray was convicted of second-degree murder after eight days of deliberations. Over those eight days, the jurors had four five-gallon kegs of beer delivered to their room. They drank 17½ of those gallons, in addition to two demijohns of wine. On top of that they passed around a flask during recess and drank wine and whiskey with their meals — “including breakfast,” one Supreme Court justice wrote. All this they did without the knowledge or permission of the trial judge, with the jurors paying for all the booze themselves.

Finding: The court threw out the conviction. By law, one justice wrote, the jury was to be provided with “suitable and sufficient food” — and “the beer, wine and whisky consumed was not suitable and sufficient food.”

Alcohol: ‘Whiskey, beer and other intoxicating liquors” … “two quart bottles of champagne, and a bottle of cocktail made from whiskey and other things” … “a brandy flask”

Case: Dolan v. The State (Supreme Court of Arkansas, 1883)

Summary: John W. Dolan was convicted of second-degree murder for shooting a man dead on Christmas. When not in court, jurors bellied up to McTague’s saloon and Mazzia’s saloon. The jurors drank with their meals — “but there was much beyond that,” one justice wrote. “Liquors were ordered from an adjoining bar. The jury visited bars in a body, and drank repeatedly, as much, one witness says, as five times in one night. They visited the theatre also, and one of them kept a brandy flask in the jury room, from which it is said others were allowed to partake.” Walter Graham, the night clerk at the jurors’ hotel, reported seeing some jurors quite drunk. To this, two other witnesses “testified that they knew the character of Walter Graham, otherwise called ‘Red,’ for truth and immorality, and that his character was decidedly bad and they would not believe him on oath.”

Finding: The court upheld Dolan’s conviction, saying there was insufficient evidence of undue alcoholic influence.

Alcohol: Beer and possibly other “intoxicating liquor”

Case: Elizabeth E. Underwood v. Old Colony Street Railway Co. (Supreme Court of Rhode Island, 1910)

Summary: In this civil case, a railway company was found negligent in the death of an 85-year-old buggy driver; the jury awarded damages of $9,500. One of the jurors, Louis S. Sisson, was drunk throughout. He slept for much of the trial. When awake, he interfered with the attention of other jurors “by whispering and talking to them and by striking and nudging them with his hands and feet.” “Sisson acted in a foolish and childish manner, throwing bits of paper at other jurors … and being absolutely inattentive to the testimony …” He swayed. He staggered. He talked “loudly and freely.” During recesses he told strangers about the case. He boasted of telling the sheriff to “go to hell” and stated he was “going to soak the railroad company.”

Finding: “We think the evidence shows clearly that Sisson was in such a state of intoxication, during a great part of the trial, as to render him unfit to serve as a juror.” The court ordered a new trial.

Alcohol: Malt syrup, fruit juices (perhaps fermented), beer, wine

Case: State of Iowa v. Harry Phillips (Supreme Court of Iowa, 1931)

Summary: In the age of Prohibition, Phillips was convicted of maintaining a liquor nuisance — namely, malt syrup, certain fruit juices, cases of beer, and kegs and a jug of wine. During deliberations, the judge allowed the seized evidence to go to the jury room as exhibits. The jury, naturally enough, set to sampling­, determined to learn, for themselves, if all these liquids were indeed alcohol. They opened the beer. They tasted the wine. And, according to the defendant, who checked in on the jury room afterward, they really dug into the malt syrup, popping the caps on at least 11 bottles.

Finding: The court upheld the conviction, finding no prejudice from the jury’s tasting party.

Alcohol/intoxicants: Mixed drinks, liters of wine, pitchers of beer, marijuana “just about every day,” lines of cocaine

Case: Tanner v. United States (United States Supreme Court, 1987)

Summary: This case may well be the benchmark for jury bacchanalia. Anthony Tanner and another defendant were convicted in federal court in Florida of conspiracy to defraud the United States. One of the jurors later said the trial was — for the jurors, anyway — “one big party.” He said:

Finding: The U.S. Supreme Court, by a 5-4 vote, refused to grant relief on this ground, ruling there was insufficient non-juror testimony to require a closer look into the claim of juror misconduct. Thurgood Marshall, in dissent, wrote that the court’s ruling denigrated “the precious right to a competent jury.”

Alcohol: “more drink than was good for them”

Case: Regina v. Young (Court of Appeal of England and Wales, 1994)

Summary: In England, four jurors in a murder case consumed “more drink than was good for them,” and then, in a hotel room, consulted a Ouija board to ask the murder victim, Harry Fuller, about the defendant Stephen Young. Who killed you? the inebriated jurors inquired, to which Fuller, through the board, responded: “Stephen Young done it.” “Vote guilty tomorrow,” the board commanded. The jurors did as told.

Finding: The Court of Appeal, Britain’s second-highest court, “concluded there was a real danger that what occurred during this misguided ouija session may have influenced some jurors.” The justices quashed the conviction.