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Howard juries known for pulling all-nighters

THE BALTIMORE SUN

Howard Circuit Judge Diane O. Leasure knew she was in for a late night when jurors in the attempted murder case began deliberating at 9:45 p.m. after a full day of testimony and closing arguments - instead of heading home. She never imagined how late.

At 6 a.m., with dawn just an hour away, the jurors, who had spent hours battling in a cramped room, finally returned their split verdict: guilty on some counts, innocent on others.

Although debating a defendant's fate into the early morning hours might seem out of the ordinary, it's no big deal in Howard County. In just the past two weeks, two county juries have deliberated until about midnight.

"What's unique here is it's a way of life as opposed to the exception to a rule," Leasure, the county's administrative circuit judge, said recently.

But though Howard judges give juries the option of staying until they're done - and jurors there tend to want to stay to finish what they've started - the practice is far from common, and some experts say it might not be wise.

The more tired jurors become, the less they will focus on weighing evidence, raising questions about whether a defendant had a fair trial, said University of Baltimore law Professor Byron L. Warnken.

"If you don't have 12 meaningful jurors, you don't have a meaningful jury," he said.

But Howard judges defend the practice, saying jurors are old enough to recognize when it's time to call it a night.

"Because they're adults and not children, we can rely on them to let us know as a group when they're too tired or need to be refreshed," Howard Circuit Judge Dennis M. Sweeney said.

But whether they will or not - or if they even realize it's an option - remains an open question.

Although one juror in a recent 12:30 a.m. case said she and her peers kept close tabs on one another, monitoring themselves to make certain everyone was still focused and progressing, jurors who stayed until 6 a.m. for the attempted murder trial acknowledged testy deliberations and wavering attention.

And a few said that, after their experience, they believe limits should be set on deliberations.

"It was ugly and it isn't a good practice, and I don't think the right decision came out of it," said juror Audrey Mihalcin, an engineer who lives in Columbia, who was on the panel that deliberated until 6 a.m. last year.

Judges in some Maryland jurisdictions say they either purposely stop at the dinner hour or can't remember having jurors who wanted to stay late. And two national jury experts say late deliberations like those in Howard are uncommon.

"On occasion, I've heard it, but it's very rare," said Tom Munsterman, director of the Center for Jury Studies in Arlington, Va. "Maybe they underestimated how quickly they got there."

Ultimately, how long a jury deliberates - whether it stays until all hours of the night or breaks at dinner - is up to the judge.

"There's nothing that tells me, at 5 p.m., I have to let a jury go or stay," said Baltimore County Circuit Judge Dana M. Levitz, who said he sends jurors home at the end of the business day because he worries they won't give a case "the attention it deserves" if they work too late.

For some jurisdictions, logistics make late nights impossible. Baltimore City has no money to buy dinner for jurors, and public transportation and safety factors make nighttime deliberations undesirable, Circuit Court Administrative Judge Ellen M. Heller said.

Different philosophies

In Baltimore and Montgomery counties, judges say there is a split in philosophy among their peers. Although some judges send their juries home by 5 or 6 p.m., others let the jury decide.

"There's no right or wrong answer to this thing. Are they just too tired? Are they the ones who should determine?" said Baltimore County Circuit Judge John F. Fader II, who has let jurors deliberate past midnight.

Those who choose to end with the business day say they have concerns about the quality of late-night deliberations.

Carroll Circuit Court Administrative Judge Raymond E. Beck Sr. said he often sends notes to deliberating juries at dinner time reminding them that jury duty is not an "endurance contest."

If the jurors believe they are close to a verdict, they might ask to stay; otherwise, he sends them home, he said.

"If the jury stays much past 10 p.m., the fatigue factor starts setting in, and the jury is degraded," he said. "I just think things start running together after a while."

Maryland's highest court noted the potential dangers of long, uninterrupted deliberations in a 1981 opinion, saying that though sequestering a jury during deliberations protects it from "contamination" from outside influences, "there are those who perceive some dangers to the integrity of a verdict."

"Protracted discussion with resulting fatigue, according to this view, may result in a verdict, but not necessarily a fair or accurate one," the judges wrote in State vs. Magwood.

But just when a jury reaches that threshold is unclear. Interviews with a juror on the panel for an assault case involving a Howard police corporal - which went to 12:30 a.m. - and with several of the jurors who deliberated until 6 a.m. in the attempted murder case last year suggest it might fall sometime after the midnight hour.

Jurors hearing the case of the corporal, who was ultimately found not guilty, were focused and periodically watched the clock to make sure everyone was still participating, said juror Teresa DeVault of Columbia, a bank vice president.

"I think you go until it's done as long as you're making progress," she said.

But, she said, a few more hours might have made decision-making more difficult. "I would guess that had we gone to, say, 3 a.m., we would have said, 'Let's come back.'"

In the jury room of the attempted-murder case, things were rocky from the start, jurors said. Jurors say a few of their peers, citing business commitments, persuaded all 12 to stay. During an initial vote on guilt or innocence, they said, one holdout said he didn't know how to vote.

As time passed, the deliberations became testy and personal. Some jurors seemed to struggle with focus. Jurors became much less willing to compromise in their beliefs.

And though one juror said she didn't know going home was an option, others said they were always aware that they could ask to leave. One said she still felt pressure to stay.

"We could have stopped, but we just felt like we were always so close," said juror Stephen Creasy, an electrical engineer from Columbia.

Howard tradition

No one knows when night deliberations became accepted practice in Howard, though some suspect it hearkens to common law, which called for juries to be kept together until they agreed on a verdict.

Courthouse workers can recall late-night deliberations for every judge at least back to the days of the late Judge James Macgill, who was appointed to the Howard Circuit Court bench in 1954 and retired in 1980.

"We used to laugh at Baltimore City judges, California judges and so forth" who would break at the end of the business day, said Anna Klemmsen, a retired court reporter who worked for three circuit judges, including Macgill. "Gosh, I was in that courthouse at 2 a.m. at times."

After hours in Howard's old, cramped circuit courthouse, the sconces cast eerie shadows in otherwise, dark, deserted hallways.

Each late-night jury requires minimal courthouse staff and overtime pay. Although the clerk, court reporter, three deputies, judge and lawyers can walk around, chat and entertain one another, the jurors are confined to a small room bare but for one large table, 12 chairs, a bathroom and a sink.

"It's like by 9 p.m., where's the candy stash, or we're searching for a TV," said Steve Merson, who worked as a courtroom clerk before becoming the county's jury commissioner in 1991. "You get to a point where everything gets blurry and you're not focusing anymore, and you're searching for the chocolate."

These days, the longest deliberations are the stuff of bone-weary legend.

Of the current five judges, Leasure's 6 a.m. jury is the latest, beating Judge Raymond J. Kane Jr.'s 5:35 a.m. verdict in the Michael Butler murder case in March 1990. Courthouse workers say retired Judge Cornelius F. Sybert Jr. took the record from Kane three weeks later when the Vincent Hamilton murder verdict came back at about 6:15 a.m.

Hamilton's lawyer, former Howard assistant public defender Richard S. Bernhardt, now an assistant attorney general, said he always believed his clients had a better shot at acquittal if the jurors didn't break once they started deliberating.

"I just assumed if they went home, they'd have time to think about things on their own," he said. "And I never found that to be helpful to a defendant."

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