I'm thinking of starting a blog category called Jurors Who Dress Alike.
Not really. But it seems like I just wrote about this, and I really didn't think it would come up again so soon. You may recall that on Valentine's Day, all but one of the Lewis Libby jurors reported for duty wearing red T-shirts with white hearts on them. Tuesday, the Southern District of Florida Blog tells us, the jurors in the Jose Padilla terrorism trial also dressed for the holiday:
Row one in red. Row two in white. And row three in blue. I'm not kidding.
It was the Padilla jury's third experiment with coordinated outfits, the Southern District post goes on. Last Friday the men all wore blue and the women all wore pink; and a week ago, all the jurors but one wore black.
Inquiring minds
Everybody wants to know what's going on. Peter Lattman at the Wall Street Journal Law Blog asks:
What’s going on here? Jurors are not supposed to talk about the case, but it’s obvious they’re chatting about their clothes. Does it show they’re unified, which could be bad news for the defense? Or should their peppiness be a concern for prosecutors, as a happy jury during a terrorism trial might not be such a good thing? Or is it at all appropriate during a criminal trial for the jury to make so many fun fashion statements?
The AIDP Blog of the International Association of Penal Law wonders that too, in a post exploring associations to everything from the film "Runaway Jury" to the jury's amazing misbehavior in Tanner v. United States:
Lets say, for the sake of argument that a juror, or a few jurors are influencing the group and convincing them to behave in a certain way. Perhaps suggesting that as a jury they need to present a unified front, maybe even suggesting that it is their obligation to stand united in a “war against terror.” . . . So, could the judge declare a mistrial in Padilla?
A short, incomplete history of dress-alike juries
I'm pretty sure there isn't a developed case law on this topic, although the way things are going, there might be soon. Ten years ago the New York Times wrote about a death penalty trial where "most of the jurors came to court dressed in blue, after having worn purple on Thursday and red on Friday." Defense counsel moved for a mistrial, saying, ''If the jury was in agreement on what color to wear, we were afraid they were surrendering their individual opinions about the case." But the judge interviewed the jurors, and when they explained that the outfits were "merely a way to release tension," the mistrial was denied. (The jury convicted the defendant, Avi Kostner, but refused to sentence him to death. He died in prison a year later.)
Last year in Massachusetts, opponents of Judge Mitchell Sikora's elevation to the appeals court listed, among their other complaints against him, his decision to let jurors wear costumes on Halloween in one trial. He explained that the jurors were "demoralized and tired," and now he sits on the appeals court. (A few other Halloween costumes, and many other unusual juror outfits, are described by the trial lawyers quoted in this piece at VerdictSearch.com.)
There might be more dress-alike cases, but in some places jurors can't wear just anything. The rules of some divisions of the U.S. District Court for the Western District of Texas are strict:
It is the policy of this Court that all male jurors wear coat and tie, and female jurors wear pantsuits or dresses.
That link is to San Antonio. In Austin, the rules say you're fine as long as you're not in "shorts, cutoffs, tank or tube tops, over-revealing clothing, sandals without socks or hose" -- or a hat. (The sandals part seems a little extreme; it's hot down there.)
So what do I do?
Okay, seriously, what does a lawyer do when a jury shows up in matching gear? A couple of thoughts:
- Smile. If they're smiling, smile, for heaven's sake. They're watching you, and you know what you think of people who don't laugh at your jokes. Be, or at least look, comfortable. In a trial as serious as Padilla's or Avi Kostner's, you have a line to walk here; the trial isn't a joke to you and it shouldn't be. But you need to find a way to react as a normal nice person would to a stranger's attempt at levity.
- Wonder. You're going to do it anyway, and it's not inappropriate to spend some time thinking about what Juror Funny Socks Day might mean. Try to focus your thinking on things you might be able to respond to. Are they bored? Can you liven things up? Are they stressed, as they might well be if the facts are gory or traumatic? Can you do anything to ease the strain? Is there a holdout? If you think she's against you, can you bring her around?
- Make your motion if you think you have one. The law is sparse, so go for it. These decisions are often about the Ask, and judges don't always get it right.
- Let it go. As I wrote the last time, at some point you have to stop wondering about the jury's clothes and get back to persuading them. Don't let their T-shirts, whatever color, pull you away from your task.
______________________
Notes:
- The questionnaire the Padilla jurors filled out is in Deliberations' sample library.
- If you run the search "Padilla jurors wearing," what you get is not dress-alike stories, but the mistrial motion filed last week because jurors saw one of Padilla's co-defendants wearing chains. The motion was denied.
- Tanner v. United States, cited above, is the case that held that jurors couldn't testify to impugn the jury's conduct no matter how bad it was. I mentioned it in another post here.
- I think the New York Times story on the Avi Kostner jury is subscription, but it's very short, and the gist of it is above.
(Photo by Andreas Hagerman at http://www.flickr.com/photos/41267663@N00/303710146/; license details there.)
