The recent “Guilty” verdict in the criminal trial of powerful NY politician Sheldon Silver sent a lot of loud and clear messages. Many in power in Albany use their positions for personal gain. Politicians who stay too long get to feel invincible and untouchable. When the Feds come after you, you’re in trouble. But it also sent a message about one of the rights that is central to American jurisprudence; one that has been ingrained into our culture from all those cops and lawyer shows on TV – “You have the right to remain silent.” I discussed it at length in a previous blog post But the fact remains that exercising that right can make you look guilty in the eyes of jury. And it seems that this may have been a factor in the Silver case.
After the conviction on all of the corruption charges, Arleen Phillips, a juror in the Silver trial, spoke to the press. Phillips had thrown the whole courtroom into a frenzy when just hours into deliberations, she passed a note to the judge saying she wanted to be excused from the jury because she felt “disrespect” and that other jurors did not to listen to anything she had to say. But the judge kept her on and reminded all the jurors to work with each other and respect what everyone had to say. Her comment to the press afterwards was:
I wanted to hear his voice so I could determine whether or not there was any arrogance or anything showing me he was capable of being deceitful, and I didn’t see that for the longest.”
This is a natural reaction most lay people have – they want to hear the defendant explain his or her side of the story. After all, if you are not guilty, why not talk? If you remain silent, you must have something to hide. In State cases, where you get to talk directly to jurors during selection, defense lawyers must spend a good part of their time in jury selection talking about the Fifth Amendment’s right to remain silent and that the judge will instruct them not to factor in any way whether a defendant takes the stand. In Federal court, judges handle jury selection with very little input from the lawyers and while the Fifth Amendment is discussed,its hard for the judge to make the point the way good defense counsel would. Judges also tend to put a lot of weight into the reminder to jurors in the jury charge at the end of the case not to consider whether the defendant testified in his own behalf. But here the Silver juror is telling us that she wanted to hear from Silver “for the longest”to determine if he was deceitful or arrogant.
To be sure, having the defendant testify is one of the riskiest decisions in any trial. Once you put the defendant on the stand, the rest of the case is almost irrelevant. If the defendant appears deceitful or evasive on any point, he’s done for, no matter how weak the government’s case was before he took the stand. The burden of proof (a defendant’s greatest friend in a criminal trial) automatically shifts to whether the defendant proved his innocence. Silver has excellent representation and I am sure having been there myself many times, they agonized, strategized and fretted over whether to put their client on the stand.
In the end they decided to not call Silver, who likely would have faced a very thorough and serious cross-examination. Had he held up though, maybe Ms. Phillips decides he was the “humble, non-assuming” (her own words) person he appeared to be to her as she watched him in the courtroom.