The jurors in the Baltimore murder case were deadlocked, and when they came into the courtroom to be dismissed, their body language showed the prosecutor that something was amiss with juror No. 10.
So Assistant State's Attorney Theresa Shaffer talked to the woman, as attorneys sometimes do after trials. She asked her why she hadn't wanted to convict, what the problem was.
The 23-year-old woman answered that "there wasn't enough evidence." Then she added, "When my brother pled guilty to first-degree murder ... "
Every so often, a person who shouldn't be a juror - such as someone whose relative is a convicted felon or someone whose religious beliefs prevent him or her from passing judgment on others - slips onto the panel.
Juror No. 10's failure to tell the judge about her brother's murder conviction is one of the most outrageous examples of inappropriate jury service that prosecutors and judges can recall.
There are others. One juror said she'd never believe a police officer. One juror vowed, even before testimony began, that he'd make sure the defendant was taken off the streets. And several jurors have listened to entire trials, only to say during deliberations that their religion prevents them from sitting in judgment of others.
Problem jurors are far less common than people looking for ways to avoid jury duty. But they open the door to mistrials and appeals, costing the public time and money.
"There's such a ripple effect," Shaffer said. The trial ended Wednesday, and she plans to retry the case this fall. But she worries that maybe her witnesses won't show up a second time. And a second trial in this case means less time to prepare for others.
The last thing the city's overburdened criminal justice system needs, judges and prosecutors said, are retrials that could have been avoided.
Every criminal jury trial begins with jury selection and a process called "voir dire" - a French term that means "to speak the truth."
When it's time for a criminal trial, as many as 100 prospective jurors make the walk from the jury waiting room on the second floor of the Clarence M. Mitchell Jr. Courthouse to the judge's courtroom.
There, the judge asks them a set of questions. They stand, if they want to respond, and the judge calls each person individually to the bench, where the prosecutor and defense attorney listen in.
"The presiding judge has to ask enough questions to weed out people who are biased in one way or another," said Circuit Judge John C. Themelis, who oversees jury service.
Jurors who lie or don't disclose information in voir dire can be charged with perjury. But that almost never happens, and the problem jurors just get shuffled back into the deck.
Maryland's questioning process may be what's causing the problem, said Jeffrey Frederick, director of jury research at the National Legal Research Group in Charlottesville, Va.
People may be reluctant to share embarrassing information, even just by standing up in a large group of people. And they might feel inclined to give "the right answers" instead of truthful ones when they are in front of the judge, Frederick said.
A psychologist and trial consultant for more than 30 years, Frederick suggested two alternative forms of jury selection: individualized questioning done by the lawyers instead of the judges or questionnaires instead of verbal questioning.
Group voir dire like Maryland's, he said, may save time, but it's not necessarily efficient. "Judges tend to ask questions to get on with the process," he said, "not to really find out what's going on."
Voir dire questions have been refined over time by appeals court cases and by the experiences of judges.
In 1999, the Maryland Court of Appeals ruled that a defendant has an absolute right to question jurors about racial bias, even in cases with no apparent racial dynamic.
Themelis said that many judges - himself included - inquire about racial biases in every case, just to be safe. Circuit Judge Allen L. Schwait recently overturned a murder conviction, saying he should have asked such a question.
Something that happened in Themelis' courtroom two decades ago helped shape his voir dire.
It was a fairly basic assault charge, the judge recalled, with solid victim testimony and simple evidence. Themelis was surprised when the jury was out for two days and counting. Then the jury foreman said that one woman was refusing to deliberate.
Themelis talked to the woman. She said that as a Jehovah's Witness, she was not allowed to deliberate.
"Why didn't you tell me that during voir dire?" Themelis asked.
"You never asked," was her reply.
She was right, Themelis said. From that point on, he said, he has always asked about the role of a person's religion in judging others.
He also asks a broader question that's meant to urge any potentially biased person to step forward:
"Is there any reason whatsoever that would, in any way, prevent you from reaching a fair and impartial verdict in this case based only upon the evidence?"
Still, many prosecutors said they've encountered a religious experience with at least one jury.
At a shooting trial a few years ago, the jury sent a note to Themelis saying that one woman was refusing to participate because God had told her the defendant was innocent.
"God didn't testify in this trial. Go back and deliberate," Themelis remembered saying.
The jury remained hung anyway, Assistant State's Attorney Grant McDaniel said, and the defendant later pleaded guilty.
Another jury deadlocked in a June 2005 murder case when a woman began quoting Scripture to other jurors. They sent a note to the bench: "Judge, we are still unable to reach an agreeable verdict as one of the jurors states she cannot judge the defendant because of her religious beliefs."
Another sensitive issue, particularly in Baltimore, is how jurors feel about the police. Themelis and most judges ask, "Would you give more or less weight to the testimony of a police officer?"
Assistant State's Attorney Gerard B. Volatile, a city resident, got to think inside the box when he served on a jury five years ago in a drug possession case.
One woman refused to deliberate, and it became clear that she was the only holdout among jurors who wanted to convict. When she was pressed, she said she had seen the police on the streets and didn't believe anything they said.
The forewoman chastised her, saying that she had lied to get onto the jury because she should have told the judge how she felt. The juror was rattled and eventually voted to convict, Volatile said.
Then there are the jurors with a conviction to convict.
As lawyers were seating a jury in a child sexual abuse trial this month, one man who'd been selected told a prospective juror that he would "make sure the defendant was taken off the streets," said Assistant State's Attorney Jennifer Williams.
The prospective juror told the defense attorney, and the attorney told the judge. The next day in court, the juror who had made the statement gave an unrelated reason why he couldn't continue and was dismissed. An alternate was seated and testimony began. (The defendant pleaded guilty halfway through the trial, Williams said.)
There's a cost when an inappropriate juror serves. Financially, jurors are paid $15 per day - $50 per day after the sixth day. Witnesses must sometimes take time off work to testify. Expert witnesses can be costly. Mistrials because of hung juries double those costs.
In Shaffer's case, paying 12 jurors and four alternates cost about $5,000 for their 10 days of service. And a retrial means that Shaffer will have to order a trial transcript - which she said will cost thousands of dollars.
After her conversation with juror No. 10, Shaffer reviewed the court tape of the voir dire. She wanted to see if Circuit Judge Robert Kershaw had asked whether jurors or anyone in their families had ever been convicted of or charged with a crime.
It was a standard question, and the prosecutor said the judge had asked it.
julie.bykowicz@baltsun.com