SAN JOSE – Six hours before the federal judge declared a mistrial in the sexual assault trial of San Jose State’s former head athletic trainer, she summoned the exasperated, deadlocked jurors back into the courtroom and urged them to continue deliberating in good faith.
Still, she said in that Thursday morning session, if your opinion is sincerely held, don’t change your mind “based solely on pressure from other jurors.”
There was pressure, alright.
The dragged-out drama behind closed doors inside the Robert F. Peckham Federal Building in downtown San Jose this past week was “extremely unusual,” a national jury expert says. Less than 3% of all federal criminal trials result in hung juries and when they deadlock, jurors are usually closely split.
In this San Jose case, however, the eight-woman, four-man jury was 11-1 in favor of guilt on one charge and 10-2 in favor on the remaining five.
That the two holdouts in the sexual assault case were both women, and all four men on the jury were convinced trainer Scott Shaw was guilty, added even more complexity and perplexity to the jury room drama.
And the rancor spilled out in 14 jury notes sent to the judge over four days.
“What do we do if four jurors believe a different specific juror is not discharging his or her duties?” read one of the notes.
“What if a juror is believing she is being forced and coerced by other jurors?” read another note. “What can that juror do?”
Eventually, in open court, the judge admonished the jury and warned them against “bullying or antagonizing” each other. But it didn’t matter. After four days, U.S. District Judge Beth Labson Freeman declared a mistrial.
“How really, incredibly frustrating,” said Valerie Hans, a Cornell University law professor who has written seven books on jury deliberations.
Like it or not, a unanimous verdict in criminal trials is a bedrock of the U.S. justice system, reaffirmed by the U.S. Supreme Court in Ramos v. Louisiana in 2020. “The unanimous jury is really iconic,” Hans said, “and the hung jury is a byproduct of it.”
So how did the San Jose State case come to this in a windowless jury room on the fifth floor of the federal courthouse, a room so small that jurors had to pull in their chairs close to the conference table for another to squeeze past? The unsatisfying outcome upended what was expected to be the final chapter in a 14-year saga over San Jose State’s mishandling of dozens of complaints about the head athletic trainer that led to more than $5 million in legal settlements and the departures of the school’s athletic director and president.
From Day 1 of deliberations, jurors said, at least 10 of the 12 jurors were convinced that Shaw had groped and fondled female athletes under their sports bras and underwear with no legitimate medical reason. They requested stacks of transcripts from testimony to persuade and cajole one particularly recalcitrant holdout: Juror No. 1.
But as Jeff Pickett, the presiding juror, told the Bay Area News Group, “I laid across train tracks” to encourage Juror No. 1 to deliberate, “to do everything within my power to see that justice is served.”
Even after what he called his last-ditch “impassioned plea” to his fellow jurors Thursday morning, she never budged.
In the very first straw poll after they entered the jury room and Pickett asked whether anyone thought Shaw was not guilty on all six counts, Juror No. 1 “shot her hand up,” Pickett recounted Friday, and said something like, “I will never change my mind.”
Juror No. 1, a 53-year-old engineer who didn’t want to be identified, didn’t see it exactly that way. “I came with an open mind,” she told the Bay Area News Group. “I feel like when I (delivered) my thoughts, the jury didn’t listen to me.”
Tension grew over four days of deliberations, with the first public sign of trouble coming Tuesday when one juror told the judge in a note that at least one other member of the jury was “unmovable.”
By Thursday morning, after the judge warned the jury about the escalating rancor, Juror No. 1 said a fellow juror questioned her mental state. That’s when she decided to zip her lips and stop deliberating.
This first experience on a jury, Juror No. 1 said, “was so horrible. I mean, for me, it’s a simple thing. Women have to stand up, right? For those eight women in this case, they stand up against Scott Shaw. I encourage them, but for me I didn’t see enough evidence in order for me to say he did it.”
Another juror, who was among those who believed Shaw was guilty, called it “a miscarriage of justice.”
It will be up to the U.S. Attorney’s Office, which brought six federal charges against Shaw, to decide whether to retry the case, and there are some indications it might. A hearing on the matter is scheduled for Monday morning in the courtroom of Freeman, who presided over the trial. With a mistrial, the case is still considered pending, and it is likely the prosecutors will discuss whether they want to retry the case or offer Shaw a plea deal.
“The big question is, do they give it another shot?” asked legal analyst Steve Clark, a South Bay criminal defense lawyer.
In the Theranos case charging Elizabeth Holmes with defrauding investors and patients about one-prick blood tests, jurors found her guilty on some counts but hung on others – and the U.S. Attorney declined to retry on those deadlocked charges.
In the Ghost Ship warehouse trial in 2019, the jury deadlocked 10-2 in favor of convicting the main tenant Derick Almena of manslaughter in the 36 deaths of the party-goers who perished in the Oakland live-in artistic work space he operated. Almena accepted a plea deal ahead of a new trial.
In the Shaw case, prosecutors might be in a good position for a new trial, Clark said.
“In a case like this, where the jurors are likely to say that you had a strong case but there was an aberration with jurors that either were not deliberating or went in very rigidly, I think that would be more inclined for them to retry the case,” he said. “It wasn’t like there was a significant flaw where you could say, ‘Every time we do this half the jurors are gonna think one way and half the jurors are gonna think the other.’”
Jury selection took a day-and-a half before the trial began. Potential jurors filled out questionnaires asking whether they had any history of sexual assault, and were quickly questioned by lawyers about whether they could be fair. Opening statements soon followed.
“This is how our democracy works,’’ said Sue Bendavid, an employment litigator in Southern California. “When you go to trial, you never really know what the outcome will be because you don’t know the background or the feelings of the people who are sitting in a box. That will definitely impact how they hear evidence or critique a witness, how they view their credibility and ultimately, what the verdict is going to look like.”
Pickett, the presiding juror, is the son and brother of criminal lawyers and works as a Silicon Valley product marketer. He volunteered to be the jury foreman and the others – including one of the dissenters – agreed. He never imagined the job would be so taxing. He was still reeling Friday.
“How am I feeling? The number one feeling is sad. Sad for the women first and foremost,” Pickett said, “and sad about how the justice system played out.”
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