After a juror has been selected for a trial, he or she is asked the following question:  Do you swear or affirm that you will try the matter in dispute and give a true verdict according to the evidence?  The juror is thus sworn in and further instructed not to talk about the case with other jurors except during their deliberations.  Now comes Judith De Marco, a juror in the attenuated Astor trial which ended in October, 2009, who claims that the verdict she rendered was based on fear and intimidation by another juror, not on her honest appraisal of the evidence.  A note had been sent to Judge Bartley during the trial indicating that one juror felt threatened by another but no investigation took place.  Instead, the judge coazed the jury to try harder, and after lengthy deliberations they reached the verdict of guilty.

     Ms. De Marco is a middle-aged legal analyst for Bloomberg L.P., not a young unskilled factory worker overwhelmed by the strangeness of our legal system.  Could she have sent the judge another note confessing her ongoing fear and asking to be removed from the panel?  Was she aware that alternate jurors were available to take her place?  Did she understand at the time that the octogenarian defendant might be imprisoned if convicted?  The answer to these questions is indubitably yes - it was perfectly clear what all the consequences were yet Ms. De Marco failed to act in good conscience in accordance with the oath she took.  The question that remains is why, when a witness lies on the stand , she is subject to prosecution for perjury but when a juror lies, creating the grounds for an exensive, time-consuming retrial, there is no legal action to punish that behavior.  Why go to the bother of swearing in jurors if there’s no penalty for their failure to abide by their oath?

     One way of looking at this is that Ms. De Marco is right to come forward now, albeit belatedly, before the convicted man is sent to prison.  The other way of considering it is that Ms. De Marco has nothing to lose by confessing her improper vote and therefore, might have been swayed by the defense to assist their grounds for appeal.  One could also project a scenario of a woman who might enjoy the attention her confession will bring - page 1 of the New York Times, perhaps some magazine articles about her change of heart or a 15 minute blast of fame on the morning talk shows.  In recent years, jurors in popular trials have been interviewed on many t.v. shows and have become mini-celebrities in their own right.  This jury found itself in the pages of Vanity Fair, something the upper class Brooke Astor surely would have frowned upon.  Alternatively, she might have enjoyed knowing how much fuss was engendered by her death and how many months her name made headlines on the front page instead of the fluffier society section.  Years ago, Chief Justice Judith Kaye initiated reforms that made jury service more comfortable and user friendly.  Perhaps now it’s time to tighten some loose ends and address the need for greater accountability for jurors.  We ought to emhasize the importance of integrity during the deliberations and institute an appropriate penalty for changing one’s mind after a verdict has been rendered.

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