In 1957, Henry Fonda starred as Juror Number 8 in the courtroom film classic 12 Angry Men. I loved the drama of the jury room and the movie became a personal favorite. Five years ago, the Chicago-Kent Law School conducted a symposium in honor of the fiftieth anniversary of the film’s release. Panels of learned judges, trial lawyers and academic scholars discussed the transformative power of jury deliberations and the relevance of the film in today’s criminal justice system. Their presentations were published here. A common criticism of the film was that it is very rare that a single “Juror Number 8” can change the minds of all others and lead them from a unified “guilty” to ”not-guilty” verdict or vice-versa. A second more profound effect on our jury system is that the popular drama enhances the myth that factual innocence of the guilty is a common result of jury trials.

In his article, “Good Film, Bad Jury” Boalt Hall Law Professor Charles Weisselberg argued that while it made for great theatre, it “should not be our ideal of an American jury” and in fact “presents a veritable buffet of juror misconduct.” UCLA Law School Professor Michael Asimow, points out that “the movie serves as an argument against the jury system because it is so unlikely to be replicated in any real jury room,” and questions whether factual innocence is preserved when holdout jurors are “convinced the defendant should be acquitted but because of the social pressure to give in to the emerging consensus.”

The power of persuasion in jury deliberations was evident last month when an eight member jury found Roberto Roman “not-guilty” in the murder of Millard County Deputy Josie Fox. As some of those jurors spoke to reporters, it became clear that 55 years after Fonda battled his fellow jurors; a similar scene had been played out in a Utah County jury room. A juror who revealed he was a law student and was for a finding of not-guilty began questioning and picking apart the evidence. He later told the Salt Lake Tribune that he and another juror who was a college theatre professor were” fairly instrumental" in the not-guilty verdict. Other jurors admitted that they may have made a mistake, including one juror who said that very possibly “a murderer walked.” After eight hours of deliberation, the single hold-out, Jury Forewoman Nicole Kay, asked the judge if they should continue or come back the next day. She later told reporters that "there was intense pressure for me to conform and I wish I would have stayed strong and said we weren’t ready." She wasn’t alone. Juror Cooper said that in announcing the verdict "I felt sick to my stomach, "and I had far less confidence in the process than I had going in." (All juror quotes are taken from a story by Aaron Falk in an August 25th Salt Lake Tribune article, “Román trial: Doubt takes hold.”)

The acquittal of a confessed cop-killer sent shock waves around the country. People were outraged and blamed the system. Ironically, a Utah judge was praised last year when he overturned a 1995 jury that had found Debra Brown guilty beyond a reasonable doubt of aggravated murder when he used a lesser burden to find her “factually innocent.” This time outrage was directed at me when I concluded that the judge had misapplied the required statutory test, and I appealed to the Utah Supreme Court which heard oral arguments last week. Debra Brown was the first person found “factually innocent” under a new Utah law that my office and I helped draft and pass in 2008 based on a recognition that although infrequent, mistakes can be made within our current system. Factual innocence trials are limited to cases where “newly discovered material evidence” proves the convict did not commit the crime. The Rocky Mountain Innocence Center claims the Brown case as its first victory in support of its belief that false convictions are prevalent.

In his Chicago-Kent symposium treatise, “The Myth of Factual Innocence,” Colorado District Judge Morris Hoffman stated that in his experience on the bench, “innocence projects are in some ways the modern post-conviction equivalent of 12 Angry Men. Because there are just too few [Perry Masons and] Henry Fondas in modern jury pools—or so the innocence project orthodoxy goes—vast seas of wrongfully-convicted defendants must today rely on law students and their clinical faculty advisors to do what Fonda-less juries have chronically failed, and continue to fail, to do.” Judge Hoffman uses facts and statistics to rebut the myth perpetuated by claims like that on the RMIC website that there is a “3 to 6% error rate in our criminal justice system nationwide.” He calculates an overall error rate of the system at around 0.0016%.

I share Judge Hoffman’s concern that if not challenged; myths and Hollywood depictions of factual innocence will result in a loss of confidence in our criminal justice system and the undervaluing of public defenders and jurors. I lobbied for a factual innocence law, and putting emotion aside, I took the Brown innocence finding to the Supreme Court which will determine whether that finding was correctly based on that law.