A writer who attended the Nia Glassie murder trial imagines the thoughts - and prejudices - of a jury
My debut novel, Dice, about the trial of four teenage boys who made up a sex game based on the throw of a dice, was born in 2008 when I was sitting in Courtroom One of Rotorua’s High Court - and watching the trial of those charged over the death of Nia Glassie.
Nia had been subjected to horrific child abuse. During the trial, there was a moment when Nia’s mum made a statement in a police interview that to me was pretty much an admission of manslaughter. I looked immediately at the jury expecting to see recognition of this and instead saw that one juror didn’t appear to be paying attention. I was shocked. A bit appalled. The defendants and our justice system were relying on these jurors.
The trial moved on, but from then I became fascinated by the jury. Jury secrecy in New Zealand means we don’t have access to what goes on in the jury room. In court we can hear the evidence, the arguments of the lawyers and the summing up of the judge but when it comes to the discussions of the jury there’s a gap of information. A space.
I imagined what it must have been like for the jurors in the Nia Glassie murder trial trying to understand the complicated laws involved in a multi-party, multi-charge manslaughter and murder case. They had put their lives on hold for four weeks. I empathised with their burden that at the end of this process they would have to decide with a group of strangers about the guilt or innocence of these five young people who themselves appeared to have been subjected to trauma and family dysfunction. And I knew that the jurors must be struggling with the traumatic graphic evidence of a child spun on a washing line, put in a clothes dryer, and used to practise wrestling moves by grown men, especially for the jurors who, like me, went home each day and held their own children or grandchildren and felt the fragility and vulnerability of their bodies. So by the time the jury delivered their verdicts I believed they were pretty remarkable people doing an incredibly difficult job.
By one of those moments of serendipity, I told my ex-colleagues, Professor Yvette Tinsely (THW) and Dr Warren Young about watching that trial and my empathy with the jurors, just as they were setting up the Trans-Tasman Jury Study – a joint project with Victoria University of Wellington, Monash University and the Swinburne University of Technology. They asked me to train up and be the Rotorua interviewer. I was very aware of the privilege of this opportunity to interview the judge while the jury deliberated and then as many of the jurors as were willing in the days after each trial.
I then assisted the principal researchers by undertaking the first level of analysis for all 45 New Zealand jury trials. It was fascinating to be given access, through the juror transcripts, to how a diverse cross-section of society had coped with the court process and deliberation. The characteristics of juries and the way they had reached their decisions varied; at times, so too did the experience of jurors on the same jury. This was perhaps most evident in the sexual violence cases, which it was clear many jurors were finding particularly difficult.
In the UK, New Zealand and Australia, researchers have been concerned for some time over jurors use of rape myths (or to put it another way, culturally-embedded misconceptions and assumptions about sexual violence) when making decisions. In these countries, research which involves real jurors talking about their decision-making in real cases has been incredibly limited. Professor Tinsley, Dr Young and I, took the opportunity to investigate this issue by undertaking a secondary analysis of the 18 New Zealand sexual violence cases in the study. We examined 121 juror interview transcripts in the context of full court transcripts and published our findings. What we found was that some real jurors were drawing on prejudicial beliefs and while it is difficult to know the exact impact on verdicts, this was, at times, leading to illegitimate reasoning.
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There's no doubt that sex offence cases have particular characteristics which make them difficult for jurors. They have to talk about highly personal matters with strangers. Coined the CSI Effect, jurors often expect forensic evidence, but if a complainant delays reporting or is in an ongoing relationship with the alleged offender, this evidence may not exist. Even if there is DNA evidence proving sexual activity that was initially denied by the defendant, the defence may then neutralise it by claiming the encounter was consensual. Often there are no other witnesses and because of the nature of the genital area there may be no injuries. All of which makes these cases highly reliant on the complainant’s testimony, especially because defendants will often exercise their right to silence, being, of course, innocent until proven guilty.
These characteristics may make it more common for juries in sex offence cases to be in the difficult position of believing the complainant, but not being satisfied that the charge has been proven beyond a reasonable doubt. It's a situation which one juror described as “gut-wrenching”. They said, “I don’t think we served that girl justice ... A lot of us believed the story …. We knew it happened, but we couldn’t prove it. So, this guy walks away.”
A common misconception about sexual violence is the belief that a real victim would immediately report a sexual assault. For example, a juror in a child sexual abuse case said, "When you’re a little girl you don’t get interfered with and not go to your mummy. They never said anything to their mum. It’s all vengeance."
In fact, it is relatively common for victims of sexual assaults to delay reporting; in only three of these cases did the complainants immediately report to police. This has been so well accepted legally that for some time now judges have been able to warn jurors that there may be ‘good reasons’ for a complainant’s delay. Despite this, some jurors placed undue weight on delay. One juror stated, "If she had laid the complaint the next day or day after, I would have said guilty."
Another way that jurors judged the credibility of complainants was by expectations that if they were raped there would be evidence of physical violence and injuries, of complainants fighting back, trying to escape and, as one juror put it, providing, "A consistent message of non-consent – screaming and repeated reiterations of ‘no I don’t want this." In reality the idea that all victims respond by either fight or flight has been rejected by science. Some victims freeze or disassociate. Yet in 11 of the 18 cases jurors stated that the extent of complainants’ resistance affected their or others’ assessment of their credibility.
These expectations also tied in to jurors’ preconceptions that rapists would be evil, violent, predators who were repeat offenders, as opposed to the defendant who was a "family man", "a businessman" or who came from a good background: "When his mother came on the stand a lot of [the jurors] were convinced he was innocent . 'Oh, isn't she lovely? He comes from a really nice family.'" On the other hand, some jurors made explicitly prejudicial comments about complainants’ clothing, work, lifestyle or behaviour leading up to the incident which suggested the victims were partly to blame for any offending. For example, "I think both parties were at fault in some ways – they were drugged and pissed and in some very bad head spaces.… We decided in the jury room that we just wanted to take them and bang their bloody heads together."
In some cases, jurors used intoxication in another prejudiced way – by minimising an intoxicated defendant’s actions and suggesting what occurred was not rape but a ‘drunken mistake’ – "he was a young guy that drank too much and he slipped up." This was particularly evident in two cases where the complainant was allegedly asleep or unconscious at the time of penetration. In one, six of the interviewed jurors minimised the defendant’s actions describing him as having "taken advantage" or "overstepped the mark".
One juror said, "We all agreed that he didn’t have any malice or ill thoughts to do the crime; it was just a stupid mistake at the end of the day."
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My novel Dice is completely fictional, but it is informed by jury research. I invented the specific facts of the case in Dice, because after the police were criticised over the Roastbusters case in Auckland (it took 10 years for any of those men to be charged) I had started to wonder what would happen if another case like that occurred and was prosecuted – how would a jury respond?
In the novel, I wanted to take the reader into that usually inaccessible space of the jury room and, even further, into the heads of twelve fictional diverse members of the jury. I wanted to portray how their attitudes and life experiences affected their decision-making, and the differing impacts of the trial on their lives.
I’d noticed that when I was explaining the jury study to real jurors, some jurors’ eyes would slip away from mine – they didn’t want to be interviewed. I was aware of this gap in the data. Had these jurors just had enough of thinking about the trial? Or did they feel alienated by the process? Traumatised? So in writing Dice I tried to imagine myself into that negative space; I wanted to evoke the voices of those jurors too.
I personally believe there is a real risk that jurors’ prejudicial beliefs are undermining justice in some sexual violence jury trials. I hope that Dice makes readers consider the gaps between the truth and the legal truth.
Dice by Claire Baylis (Allen & Unwin, $36.99) is available in bookstores nationwide.
