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Interviews with jurors in a recent high-profile federal trial in Boston are leading to questions about their acquittal of a Massachusetts pharmacist on murder charges.
The jurors have indicated they did not understand all the legal requirements involved, and the judge did not seek to make sure the jurors understood they had to be unanimous to deliver a verdict.
The jury convicted Barry Cadden on racketeering and fraud charges stemming from a deadly meningitis outbreak.
Even though most jurors say they wanted to find Cadden guilty of 25 murders, they submitted verdicts of "not guilty."
'If It Wasn't Unanimous, It Was Not Guilty'
Judge Richard Stearns kept the jurors' identities secret for three months until WBUR filed a motion for their release.
According to jury foreman Rick Hill, the jurors made a pact not to talk to reporters. But Hill was the first one who did.
Before Cadden's sentencing, and in the courthouse, where microphones and cameras are not allowed, Hill spoke briefly to me and to another reporter. When I asked what he understood to be his instructions, he said this: "If it wasn't unanimous, it was not guilty."
A second juror, Dong Shin, says his understanding was the same as Hill's.
Yet the standard judge's instructions to federal jurors are quite different than that.
Here is attorney and former federal prosecutor David Schumacher: "You as a jury have to collectively and unanimously find that the defendant is guilty or not guilty, and you have to be unanimous up or down, guilty or not guilty."
Hill told me: "Read the judge's instructions." Here's what the judge told them: "Remember that your verdict as to each charge must be unanimous."
Instead, the verdict form indicated that the jurors were divided by margins of nine to three, eight to four, and seven to five in favor of conviction.
Hill says he was the one who entered those numbers, along with the not guilty verdict that required all 12 to agree, which they didn't. He said he thought writing the numbers down was the norm.
The deliberations over the second degree murder charges were described as heated and divisive. Some jurors were visibly upset, others cried, and some are said to be terribly upset Cadden was acquitted of the most serious charges.
"I was really shocked when they called us back for the verdict," said Peter Poli. After sitting through 11 weeks of trial, Poli became an alternate, and a disappointed juror.
"When I heard a not guilty for murder, I just shook my head, you know," he said.
From fellow jurors, Poli got a description of brutal deliberations.
"He said it was like a battlefield out there," Poli said. "I guess we kept arguing with each other trying to get a verdict."
"We took a poll," juror Shin said. It indicated that a majority of jurors wanted to convict Cadden on 21 of 25 murder charges. In view of the division, Shin says, the jury decided "OK, not guilty."
And that was an error based on a false assumption.
'It Was Up To The Judge'
But appellate attorney and legal writer Harvey Silverglate says the jurors are not to blame. They are not professionals, after all. The man in black robes is.
"It was up to the judge," Silverglate said. "The judge is the one who messed this up, not the jurors. The jurors should not feel at all guilty. The reason you have a judge here is because this is a complicated system and some adult leadership is necessary. And that is what a judge is there to do."
But after seeing the verdict slip, which was ambiguous at best, Judge Stearns never informed the attorneys. He never sought to make sure the jurors had actually been unanimous in the face of the evidence they weren't. And he did not order them to continue their deliberations until all 12 agreed on a verdict or until they reported they were hopelessly deadlocked.
NYU law professor Stephen Gillers, an expert on the law governing trials, says the ramifications of what Stearns did in accepting the not guilty verdicts were enormous.
"Because once the judge declares that the verdict is not guilty," Gillers said, "the double jeopardy clause attaches, so that the defendant could not be retried on that count, even if as it turns out the judge's interpretation was incorrect."
Had the judge ordered the jurors to continue their deliberations, they may well have convicted Cadden on one of the murder charges. And Cadden might have gotten a sentence of life, instead of the nine years that Judge Stearns imposed on Monday.
Those who were sickened by, and the families of those who died of fungal meningitis linked to contaminated steroids manufactured by Cadden's company, were outraged.
On Monday, Stearns went out of his way to call the jury the best he'd ever had. He also went out of his way to say the prosecution had not come even close to proving the second degree murder charges. But the jurors, who are a trial's finders of facts, clearly disagreed with the judge. As jurors have now confirmed to WBUR, most wanted to convict Cadden of the murders.
But by accepting the jurors' not guilty verdicts without inquiry, the judge effectively stopped the jury from continuing deliberations that may have led to convictions.
This segment aired on June 30, 2017.
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