By Andy Metzger
STATE HOUSE NEWS SERVICE
BOSTON -- Jurors who collectively asked 281 questions during testimony in the job-rigging trial of three former probation officials have been the subject of some curiosity for the attorneys trying the case, though Judge William Young has largely avoided subjecting jurors to questioning themselves.
In a July 8 sidebar conversation, defense attorney Stellio Sinnis noted that one of the jurors, a man in the front row, was spotted in the cafeteria introducing a female guest of his to other jurors.
Sinnis raised concerns about the presence of the woman, whose relationship to the juror was unknown, saying "it indicates some sort of communication with that juror."
The sidebar conversation, which was included in a transcript, occurred during the cross-examination of former Chief Justice of Administration and Management Robert Mulligan.
"I'll be cautious about comments out of the hearing of the jury," Young responded. "He's entitled to bring someone to court."
The 12 jurors entered the fourth day of deliberations Monday seeking a verdict on charges that former Probation Commissioner John O'Brien and two former deputies, Elizabeth Tavares and William Burke III, committed fraud and other crimes by rigging the probation department's hiring system.
While Young has empowered the jury to ask questions and praised their punctuality and attention, he also regularly instructs them not to discuss the "substance" of the case outside deliberations.
Gerard Leone, a former federal prosecutor and former Middlesex district attorney, said he was aware of a juror bringing a guest to court in the high-profile Louise Woodward au pair case that he prosecuted.
"Jurors are not prohibited from informing others of the mere fact that they are a juror, so people can attend the public trial to see them/the trial, but there obviously cannot be any conversation between the juror and that person or others about the case and certainly not deliberations, per the strong directives of the Court," Leone said in an email to the News Service.
Tom Hoopes, a Boston defense attorney who has worked high-profile cases, said he has never heard of a juror bringing someone to watch a trial and it runs counter to the usual behavior of jurors.
"Usually jurors stay together and away from 'outsiders' during the course of the trial. However, there is no rule against inviting a 'friend,'" said Hoopes, who said courts are usually "loathe" to inject themselves in juror issues unless it is absolutely necessary.
During the 10 weeks of testimony, Young permitted jurors to submit questions in writing and he determined whether to query the witnesses. Hoopes said jurors in the probation cases asked an abnormally large number of questions though that may be commensurate with the complexity of the trial.
"First, Judge Young is pretty much unique in allowing this form of juror questioning. Second, 281 questions is a lot for even his courtroom. But this was a long case, a controversial case, and I would take it as a sign of intense juror engagement in the proceedings for them to collectively hit 281 questions," Hoopes wrote in an email to the News Service. "Whether that helps one side or the other is unclear at this stage."
"Although Judge Young takes a more aggressive, creative and fairly novel and unconventional approach to the area of juror questions, he is an expert trial jurist," said Leone, who said the longtime judge knows how to "handle" juror questions.
In a June 13 sidebar, Young reported an exchange he had with a juror, which may or may not have been the same man who brought someone to watch the trial with him.
The judge said he was in the rear area of the court and out of his robes when the man made a remark to him.
"He passed me and then he says, 'Judge,' and I turn around and he says, 'I would have stood up and objected to that question myself,'" Young said, according to a transcript. He said he surmised the juror was referring to a question asked by defense attorney Brad Bailey that Young had said was "repetitive," and said he admonished the juror not to talk about the case.
Young recalled, "He smiles, he doesn't seem particularly chastened, and he goes away." The previous day had featured cross examination of Francis Wall, a key prosecution witness.
Two jurors were dismissed during the trial for mostly personal reasons, leaving two alternates.
Toward the end of their fourth day of deliberations on Monday, the jury asked about an element of the racketeering charge brought by prosecutors.