In Cosby trial, the awesome power of jurors

Stories are now trickling out from jurors in Bill Cosby's trial on three counts of aggravated indecent assault, with varying accounts of their deliberations that resulted in a mistrial.

One version has 10 of the 12 jurors ready to convict Cosby on two of three counts, but the two holdouts forced a deadlock and a mistrial.

Another version has the jurors in "true deadlock", with voting closer to 7-5 or 5-7 votes. Both could be accurate, as deliberations can feature dramatic shifts in polling over time.

In fact, these stories have one thing in common: the jury deliberations were a difficult and emotional experience. Jurors were crying and punching walls during the 52 hours they were deliberating. They were intentionally confined to a tiny room by sheriff's deputies who were concerned that people could see into the room through a window. They were packed so tight that jurors "couldn't even pace," according to one juror who spoke to ABC.

Here's a secret that the courts don't tell jurors -- I'm not even certain a lawyer is allowed to say it out loud:

An individual juror has more power than he or she could imagine.

This is one of the biggest, Wizard-of-Oz-Behind-The-Curtain secrets in the business. I'm afraid the bar and my legal colleagues will think I'm encouraging jurors to test the limits of their authority. I'm not. Jurors shouldn't stage coups. But it's scary just to acknowledge that one juror ultimately wields more power than the judge in the black robes presiding over the trial.

Jurors are unaware of of their own importance because the jury system is designed to beat them into feeling submissive and deferential. The process starts early, when prospective jurors receive stern notices in the mail ordering them to put their lives on hold and report for jury duty, with steep penalties for noncompliance.

Once they arrive, court personnel promptly start dehumanizing them with innumerable commands: Wait quietly in this big room. No cell phones. Line up here. No talking. They sit in a room for hours, then they are marched around, like boot camp -- or worse, prison -- to different rooms where they are quizzed, scrutinized, or dismissed outright.

All the while they are provided limited information, and their questions fall on deaf ears. By the time they are seated as a jury, they are suffering from full-blown Stockholm Syndrome; they endeavor only to please their captors.

In the Cosby trial, this effect was only magnified. Jurors from Allegheny County were conscripted into service hundreds of miles from home, in far-off Montgomery County. They were sequestered, which means the court, as their warden, isolated them from the outside world in a hotel for the duration of trial with their every move and contact restricted.

Deliberations in the Cosby trial were a textbook example of how tortuous jury duty can be, and how inherently oppressive the decision-making process is for a high-profile jury.

But what if the jury had rejected this treatment? What if they demanded more breaks or a better room -- one with enough room to actually stand up and pace? I've had cases in that courthouse. It's like all government buildings: there are plenty of cavernous, unoccupied rooms -- especially weekdays after 4:59 p.m., or on a Saturday morning.

The Cosby jurors deliberated until 9:00 p.m. most nights. What if they didn't want to work that late? The court needs jurors, and would likely have to grant them some of their demands. Yet it's rare for a jury to refuse to work late, make bold demands, or "organize." The Court doesn't really let them know that they have any negotiating power with respect to their lot in life.

We saw in the Cosby case that one juror has the power to deadlock a jury. Indeed, juries are so powerful that they have the inherent power even to acquit a defendant that they believe guilty beyond a reasonable doubt, if they disagree with the law itself, or simply like the defendant. So threatening is this power to the system that courts intentionally conceal it from the juries who don't know they have it.

Why is this judicial deception acceptable? Because the Supreme Court says it is. Jurors have the power -- but not the right -- to "jury nullification." The judicial solution is simply not to tell them about it. Justice apparently depends on keeping juries as ignorant as possible, at least with respect to their power. The court's approach to the Cosby case was no different than any other in this respect: never let the jurors know they are, in a way, omnipotent.

Once jurors in the Cosby case realized they had the individual power to filibuster their position on guilt, they exercised it. No amount of cajoling could change their mind, either. It's why defense attorneys often pick one juror to be their "advocate" in the jury room, make as much eye contact with that person, and hope that this "friendly" will argue the client's case to the end in the jury room. If not, maybe that juror will simply stand his or her ground and refuse to budge.

As defense attorneys are fond of saying, "it only takes one." And as Cosby's own attorney pointed out, any trial that you can walk out of with your client still presumed innocent is a good result. The question is if the prosecution goes ahead with its plan to retry Cosby and the defense gets another holdout and hung jury, what will the prosecution do then?