On Tuesday 19 April 1994 the Crown Court in Lewes, a town in southern England, received a letter that sparked six months of anguished Court of Appeal hearings, a retrial and much deriding of the jury system. The three-page letter, handwritten and unsigned, concerned events that had taken place four weeks earlier. Attached was a request from the man who had been found guilty of murder by the letter’s author (and eleven other jurors) that his conviction and twin life sentences be set aside, possibly forever.
Although it was never published, the letter’s content is clear from a lengthy article published in News of the World that Sunday. The article began: “The murder trial jurors who used a ouija board before reaching their verdict held the séance after a bawdy booze-up, says the colleague who blew the whistle on them.”
The tabloid’s headline — “BOOZE, DIRTY JOKES AND THEN THE OUIJA BOARD” — somehow gave an entirely sex-free case a sexy angle. Apparently, between drinks at the bar and talk of séances at dinner, the jurors told some off-colour jokes. But that was the least of their alleged sins.
The rest of the article reported the sombre words of the juror, Adrian, who had penned the letter:
I just couldn’t live with myself. To me, this was a miscarriage of justice. I thought to myself, “This is someone’s life we’re dealing with.” I was astonished that these grown-up people had played this child’s game.
Jobless Adrian, a former factory hand, was the youngest member of the jury at the trial of Stephen Young. The tabloid even published a picture of him — a nondescript young man wearing a denim jacket — superimposed on an image of hands resting on a glass tumbler surrounded by pieces of paper.
According to News of the World, Adrian spent the weeks after the verdict “lying awake at night thinking about it” and “even dreaming about Harry Fuller,” the victim supposedly contacted in the séance. After a talk with his parents, he consulted the Citizens Advice Bureau, which advised him to “see a solicitor and think it over.” But he had trouble finding a solicitor who wanted to help him, with three of them telling the former juror they couldn’t assist (perhaps because English law seemed to say that such disclosures of what jurors said was illegal).
The tale might have ended there, but by then word of the alleged events in the hotel had reached at least eighteen people: the twelve jurors, Adrian’s parents, a volunteer at the Citizens Advice Bureau, and three solicitors. In the end, a fourth solicitor “agreed to listen” to him and was left “astonished and speechless.”
Adrian’s experiences with his jury were entirely as part of the group of twelve (or fourteen, including the two bailiffs at the hotel), he told News of the World. When talk of séances came up at dinner at the hotel where they were sequestered for a single night:
I was interested to hear what they said, but found it funny. Those who had done it before were laughing about it, but those who hadn’t were quite serious. We had a curfew of 11 pm and had to be in our rooms before then. I went ten minutes early because I’d had three pints and was a bit tipsy. Another woman had a headache and went to bed early. I didn’t get a good night’s sleep, because I’d drunk too much and felt a bit rough and the bed wasn’t too comfortable. One of the jury produced two pieces of paper and started talking about the previous night. I overheard, and at first I couldn’t believe it. They had secretly gone to one of their rooms and gone through with it.
While the Old Ship Hotel probably didn’t appreciate this review of its beds, Adrian had no doubt what the real problem was that night. As the News of the World’s headline emphasised, the evening had been anything but sober:
Everyone had a few to drink and we were laughing at the girls who had too much. There was a real holiday camp atmosphere. We really needed to relax because the trial had gone on so long. There were a couple of dirty jokes told and everyone was in a good mood.
He added: “What went wrong, I think, was that a few beers came into it and mouths started talking.”
It would be naive to think that the four jurors at the Old Ship were the first or last to secretly meet up in one of their rooms after lights out. Human nature suggests that the rule is that what happens in a juror’s hotel room stays in that hotel room. Indeed, one of the hotel-room jurors would later describe how the evening’s events ended when “we retired to our rooms and agreed not to relate what we’d done to anyone.” Had that vow been kept, the story would have ended there.
But it wasn’t:
I didn’t think anything else about ouija boards until the next morning, when it was raised again halfway through breakfast. The twelve of us on the jury and the two court bailiffs were sitting round a long table.
He just came out with it and said: “We’ve done a ouija board and got in contact with Harry and Nicola.” He said he and three female jurors went to one of their rooms. They’d had a few drinks and just decided to do it.
The two bailiffs either didn’t care or (as they later told the Court of Appeal) didn’t hear:
We should add that more than one juror admitted on affidavit to having had more drink than was good for them whilst in the hotel and to feeling the worse for it the next morning. Neither of the bailiffs, according to their affidavits, seemed to have been aware of that or of the fact that four jurors had got together in one room over an ouija board.
Adrian didn’t care at first either. He “was lost for words and couldn’t stop laughing — but I could see they were all taking this\seriously.”
As a formal matter, the Court of Appeal was investigating a murder conviction. But, given Adrian’s letter, it was the jurors themselves (or at least some of them) who were under investigation. Much like criminal suspects, they would be contacted at their homes and then questioned by a senior police officer about their conduct, which was alleged to be potentially criminal.
Indeed, jurors can be prosecuted for their trial behaviour. A startling example occurred in Canada a year after Young’s appeal. Participants in an eight-month Vancouver murder trial noticed a juror, Gillian Guess, “flip[ping] her hair and look[ing] seductive” towards one defendant. After the jury acquitted all of the accused, the police pursued their suspicions by tapping Guess’s phone, eventually discovering that the pair had been sleeping together throughout the trial. Guess was convicted of attempting to pervert the course of justice and both she and the defendant were sentenced to prison, in her case for eighteen months, even though no one claimed that she reached a false verdict. British Columbia’s highest court rejected her appeal:
That the appellant well knew what she was doing in carrying on an affair with an accused was not in accord with her duties as a juror is clear from the evidence. She was secretive about the matter and in discussions with her sister and friends she acknowledged that what was occurring was wrong. She observed that she felt “conflicted.” That, of course, precisely identifies the difficulty — she was in a position of impossible conflict. Would this conduct have a tendency to pervert or obstruct the course of justice? The answer to this question is obviously in the affirmative. The juror would be privy knowingly or unknowingly to information not possessed by other jurors and because of the emotional ties between her and the accused would be hampered in properly performing the impartial functions of a judicial officer.
The four hotel-room jurors were also (briefly) “secretive about the matter” and they acknowledged (among themselves) that they “had gone too far,” were “privy… to information” (of a sort) “not possessed by other jurors” and (in some cases) became “emotional.” So, a conviction for attempting to pervert the course of justice couldn’t be ruled out, had any of them been prosecuted. The upshot is that at least some of the jurors would indeed have been well-advised to refuse to participate in the investigation, which they were entitled to do, unless they were promised immunity from prosecution.
The Lord Chief Justice ruled that his court would cross this bridge if it came to it:
Our view is that if problems arise of that kind, we will have to deal with them as and when, but for the moment we propose to direct that affidavits should be obtained from all the jurors and from the two bailiffs, and there should be investigation of the matters contained in the letter of 18 April from solicitors to the Lewes Crown Court, only so far as the matters in that letter relate to how the allegation of the irregularity arose and how it was communicated.
He also postponed the question of the jurors themselves being asked to testify:
I think what we ought to do, so far as attendance of witnesses is concerned, is to see the affidavits when they are prepared. If those can be produced to the court, then the court can indicate which witnesses ought to attend the hearing, if any, with a view possibly to being called. If a witness cannot contribute anything, there is no point in having them all come. We should like to see the fruits of the inquiry on paper in affidavit form, and then decide which witnesses ought to attend.
As it happens, none of these contingencies arose. All the jurors agreed to be interviewed and none were either called as witnesses or charged as criminals.
The decision to ask all twelve jurors what they knew about events at the hotel was risky, as an Australian example shows. In 2014, Australia’s High Court told a lower court to investigate a note that was handed to a bailiff after a jury verdict. The note said: “I have been physically coerced by a fellow juror to change my plea to be aligned with the majority vote.” The High Court glibly forecast a simple investigation:
Any doubt or ambiguity as to the true meaning of the note might be resolved relatively easily by inquiry of the juror who made the note. An inquiry may reveal, either that the “physical coercion” referred to in the note was no more than robust debate, or that whatever pressure was described, it had, in truth, no real effect upon the decision of the juror who wrote the note… [I]t cannot be assumed that the inquiry would be “wide-ranging and intrusive… into the deliberations of the jury, [involving] the interrogation of all twelve members of the jury.”
The inquiry took the better part of two years. The lower court struggled first to locate the juror who wrote the note and then to convince (and ultimately compel) him to explain it. When the juror (who turned out to be the foreperson) finally spoke, he said that he was indeed assaulted by another juror to make him change his vote. In the end, all twelve jurors testified in person before the appeal court. Their accounts varied on all manner of details, from the sequence and length of deliberations, to how and when the foreperson left the discussion, the layout of the toilets where the assault was said to have occurred, and even whether the lead prosecutor was blind.
Ultimately, the appeal court found that there was no coercion, because there was little or no support for the foreperson’s claims of hostility in the jury room or any opportunity for such an assault in the toilets. “The shadow of injustice has been dispelled,” the court declared, and “the integrity of the verdict has been put beyond question.” Not all who read the jurors’ account of the chaotic deliberations would agree.
For all its many oddities, the ouija board case did not suffer this fate. The result of the Court of Appeal’s investigation was to broadly confirm what Adrian had told the News of the World. But that certainty meant the English court had to resolve an unprecedented question: whether a criminal defendant must receive a new trial if some of his jurors used a ouija board.
The English court that heard Stephen Young’s appeal concerning his jurors’ use of a ouija board while staying overnight in a hotel was not the first to assess the talking board’s utility. A quarter of a century earlier, in 1958, Connecticut’s Supreme Court considered a will that Helen Dow Peck, a wealthy widow “of literary knowledge and artistic tastes,” had made when she was seventy-one, fourteen years before her death. After providing for her debts and gifts to two servants, she bequeathed the remainder of her $158,000 estate as follows:
Third: I give, devise and bequeath to John Gale Forbes all the rest, residue and remainder of my estate, real, personal and mixed of whatsoever name and nature and wheresoever situated.
Fourth: If the said John Gale Forbes be deceased, I direct that my estate be liquidated in part or whole as my executors may determine and the sum be reinvested and the income applied toward the investigation of telepathy among the insane for their understanding and cure. This sum is to be known as The John Gale Forbes Memorial Fund.
Alas, the executor was unable to locate Forbes and it turned out that Peck had never actually met him:
In 1919, the testatrix had purchased a ouija board which she used with her husband. She told a friend sometime after 1940 that she played with this board and “John Gale Forbes resolved out of space.” Through the board he became her correspondent, and she believed him to exist although she had never seen him.
The Supreme Court upheld the trial court’s finding that “John Gale Forbes was an imaginary person who had never existed” and “that he was the product of a mental delusion, a monomania, which obsessed the testatrix prior to and in 1941 when she executed her will.” It ruled that Peck’s entire will, including the gifts to her servants and the memorial fund, was void, allowing her surviving nieces and nephews to claim the estate.
Rejecting the possibility of life after death certainly makes it much easier to rule on the effect of a will. Oddly, though, Stephen Young’s appeal could have been much more easily resolved if the court accepted that the four jurors really did speak with the ghost of one of Young’s alleged victims, Harry Fuller. Young’s counsel argued that the hotel-room séance was a “material irregularity” in three ways:
First, it was an attempt to acquire further evidence or information beyond the evidence in the case. Secondly or alternatively, [it] was in the nature of an experiment which, as indicated above, cannot be countenanced. Thirdly, on any view of what occurred, only a third of the jury was present, so that matters relevant to the case took place when the jurors were not together as a group.
If the hotel-room jurors actually did speak with the deceased, then each of these arguments would guarantee a new trial. The legal difficulty would be the same if the four jurors had uncovered non-paranormal messages from Harry, such as finding a note he wrote before his death hidden in an exhibit in the jury room.
The main problem in each instance is that Young’s lawyers would have had no opportunity to respond to the implications of such significant information. And the trial judge would not have been able to rule on the evidence’s admissibility or direct the jury on how it could be used. And, if they weren’t present, nor could the other eight jurors properly debate the worth of the new discoveries.
A good example of such difficulties arose four years after Young’s appeal. In a Bristol trial of charges that the defendant handled three stolen tyres, his defence was that he had purchased them recently. The jury sent the trial judge the following note:
One of the jurors is a tyre specialist. The code 088 on the tyre signifies that the tyre was manufactured in the eighth week of 1998. The defendant claims to have had the tyres in his house around this period — certainly very little time for the tyres to have gone through normal purchase before being acquired by the defendant. May we take this into consideration?
While the trial judge and counsel were debating how to respond to this question, the jury returned with a guilty verdict. The Court of Appeal said that the trial judge should have instantly declared a mistrial, holding:
It was not improper for a juror who was not a lawyer and who had specialist knowledge of circumstances forming the background to a particular case to draw upon that specialised knowledge in interpreting the evidence. However, that knowledge was not to be used as evidence but as a means of considering, weighing-up and assessing the evidence before the court.
The difference between using knowledge as evidence and using it to interpret is certainly a subtle one, but there is no doubt that drawing on Harry’s words from the afterlife would fall on the wrong side of this line.
Of course, the Court of Appeal was never going to find that the hotel-room jurors actually spoke to Harry, but neither did it find that they didn’t:
It seems to us that what matters is not whether the answers were truly from the deceased, but whether the jurors believed them to be so or whether they may have been influenced by the answers received during this exercise or experiment.
At first blush, the court’s holding that it didn’t matter either way whether the four jurors spoke with Harry Fuller makes sense. The question of whether an irregularity is “material” depends on what the jurors believe, not whether those beliefs are true or even rational. But, by removing the link between the jurors’ conduct and reality, the Court of Appeal’s approach significantly broadens what can count as an “irregularity,” allowing the jurors’ mere thoughts to overturn a conviction.
On the day after Young’s appeal was allowed, law lecturer Gary Slapper described the problem in a column in the Times:
But suppose the jurors in the hotel had sought advice from their god through prayer? Would such a course of action invalidate their decision? They would, after all, be consulting something non-corporeal and something other than the evidence in the case. The divine and “superstitious” oracles both rely on the faith of the juror.
Will the Court of Appeal be able to argue, when its reasons are eventually given, that consulting a god for guidance is permissible but that consulting any other non-corporeal entity is not allowed? The court could avoid such a quandary by saying that absolutely nothing must guide jurors other than the evidence given in court. That option, however, would prevent religious people from receiving divine guidance when many must often be in great need of it. This would be an awkward decision from judges with the courts’ motto Dieu et mon droit on a shield above them.
An American court (with “In God We Trust” on its wall) was required to make exactly that awkward decision six years earlier.
In 1986, Tom DeMille became the first person in Utah to be convicted of murdering a child in his care, based on evidence of the child’s extensive injuries before he was taken to a hospital emergency room. However, a juror later swore an affidavit that another juror told the rest that she had prayed about the case. Specifically:
that while the defendant’s attorney was giving his closing argument, she prayed, “that if said attorney made eye contact with her she would know he was telling the truth, but if he did not she would know he was not telling the truth about the defendant; that he did not make eye contact with her, so she knew said attorney was not telling the truth” concerning the defendant… Said juror… was one of the leaders, during the deliberations by the jury, of the faction seeking a speedy and early determination of guilt of the defendant.
In 1988, a majority of Utah’s Supreme Court dismissed DeMille’s appeal. They held that upholding the defendant’s complaint would amount to “implicitly… holding that it is improper for a juror to rely upon prayer, or supposed responses to prayer, during deliberations,” something they said would breach Utah’s constitutional right to freedom of conscience. Only one judge would have ordered an inquiry on the ground that:
if jurors were to agree that a verdict would be based on a “divine sign,” a ouija board answer, or some fortuitous event, such a verdict, in my judgment, would constitute a denial of due process and the right to trial by jury… The majority fails to draw a critical distinction between the legitimacy of jurors’ seeking divine assistance in accurately and dispassionately weighing the evidence and the illegitimacy of jurors’ abdicating their sworn duty to decide the case on the evidence and instead relying on some supposedly divine sign.
The difficult questions raised by such cases are not limited to spiritual matters. The problem in DeMille’s case (though not the constitutional angle) would also have arisen if the juror had come up with her theory about the defence counsel’s eye contact by reading a book on pop psychology (or, for that matter, recalling a parent’s advice, or a movie scene, or a university lecture, or her own specialist experience).
The Utah Supreme Court majority argued that personal beliefs, including irrational ones, are simply part of the jury system:
The affidavit submitted in this case does not aver facts that would disqualify any juror. At most, it suggests that one juror may have been personally influenced by her own “revelation” and that she told others of her experience as one means of persuading them to her point of view. This is certainly not an illegitimate inter-juror dynamic.
Six years later, the English Court of Appeal reached the opposite conclusion:
There is, in our view, a clear distinction between the views of one juror however strongly expressed, intended to influence others, and on the other hand revelations purporting to come from outside the jury and to be invested with some external authority however specious.
But the court did not spell out what, apart from ouija boards, could be “revelations purporting to come from outside the jury and… invested with some external authority.” Prayer? Something a juror read in a book? Or saw on TV? Or was told by a friend? Or learnt from her work?
Or simply believed for whatever reason? The closest English courts have come to examining this question was a Newcastle trial in 1998, when a juror sent the trial judge a note asking for the defendant’s date of birth, for use in determining his star sign. According to a court official, after the trial judge dismissed the juror from the panel, the juror:
stood his ground and asked why. He seemed genuinely surprised he was being removed. He had been warned by the judge, as all jurors are, to try the defendants only on the evidence put before them in court.
While the trial judge was certainly right to refuse the juror’s request for evidence that was not before the court, the juror was right to question why he was being dismissed. He surely isn’t the only juror to believe in astrology (and others will often legitimately learn the defendant’s birth date as part of the evidence). The remaining jurors acquitted the (Cancerian) defendant of violent disorder.
When dealing with people who believe in the supernatural, courts often suspect manipulation by a cynical third party. On 7 March 1930 in Buffalo, sixty-six-year-old Nancy Bowen knocked at the door of Clothilde Marchand, a woman she barely knew, and beat her to death with a hammer. She later explained that her deceased husband had spoken to her via ouija board, telling her the name of his killer and directing her to:
Go to 576 Riley Street. It’s a little house in the rear. She is short. Her hair is black with grey. It is bobbed. She has some teeth out — upper teeth. She has a police dog.
The police arrested not only Bowen but also her ouija board partner, Lila Jimerson, who was having an affair with Clothilde’s husband, Henri. After a “Trial of the Century” (one of several in the United States that decade), Bowen was imprisoned for just one year and Jimerson was acquitted completely, apparently because the public came to blame Henri Marchand, a noted sculptor (who had speedily remarried, this time to his eighteen-year-old niece) for beguiling two credulous women into disposing of his wife.
The Court of Appeal never voiced the possibility that one of the four hotel-room jurors — most obviously, foreperson Ray, the only one of the quartet to claim any prior experience using ouija boards — had used the incident to manipulate more credulous members of the panel. If there was such manipulation, its goal was not murder, but rather only a murder verdict. Of course, none of the jurors admitted convicting Young on the basis of what the ouija board said. To the contrary, the court conceded that the participants all described the incident as a “joke,” hence the prosecution’s argument:
This was, says Mr Lawson, no more than a drunken game and the court ought not to consider that it could have had any practical effect on the case. Nothing that happened, it was submitted, fell outside the scope of influences which jurors can properly bring to bear on one another.
It was the Court of Appeal’s response to that claim — a factual assertion, not a legal one — that ultimately gave Stephen Young a new trial and made his jury infamous. •
This is an edited extract from The Ouija Board Jurors: Mystery, Mischief and Misery in the Jury System, published this month by Waterside Press.