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The Good Wife
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Cary's Corner Polling the Jury

Posted on Dec 11, 2011 11:00pm

­They had their chance. I faced off again against Lockhart-Gardner the past few weeks on a murder case, and under instructions from my boss, we offered them a generous plea deal -- second-degree murder rather than first degree. That's a difference between four years in prison and 20-45 years. They didn't take it. And what did they do when the jury came back with a verdict they didn't want to hear? They threw a desperate Hail Mary pass by polling the jury. The reason to poll a jury is to verify the verdict, to ensure it is completely unanimous and has been freely reached. In a criminal trial, either the prosecutor or defense attorney or even the judge can make the request. It is rarely done unless the verdict is particularly unexpected. Now for argument's sake, let's just suppose that one or more jurors did not agree on the verdict. Even if only one of the twelve jurors disagreed with the verdict, the jury would be ordered to either deliberate longer or -- and this is the worst-case scenario -- the judge could declare a mistrial. In that courtroom, there was no reason for me to raise my hand to poll the jury: I knew their client was guilty. My opponents from LG, on the other hand, made the request immediately,before the court recorded the verdict. There's a good reason for their speed. Back in 2008, right around the time I was searching for a job after law school, there was a case brought before the Illinois Appellate court, People v. Kevin Wheat, over this very issue. Fortunately for the People, Mr. Wheat had been found guilty of drug possession with intent. Unfortunately for the People, a technical mistake was made. The judge did not allow enough time to permit the defense lawyer to request a jury poll before discharging the jury. It came down to a disagreement over mere seconds. The defense attorney asked to poll the jury and the judge denied his request, having already dismissed the jury, saying it was too late. The Appellate Court found in Mr. Wheat's favor, stating "the trial court must give the defendant a reasonable opportunity to ask to poll the jury" and overturned the conviction. Kevin Wheat faced a retrial all due to a technicality. I know my opponents are on a mission to find the same kind of technical error in this case. This all could have been avoided if they had only taken our deal, rather than leave their client's fate in the jury's hands. Now their best hope is for a reversal or judgment notwithstanding the verdict. My only hope is that a guilty woman does not go free on a technicality…