Deliberations

Supreme Court Term Just Got Less Interesting

2008-10-06T21:46:02-05:00

As the stock market and the presidential campaign get even more interesting, in an anxious and painful sort of way, at least jury watchers can pay a little less attention to the Supreme Court term. The Court refused today to decide two cases involving jury issues. From Scotusblog:

Among the more significant issues the Court turned aside, by simply denying review, were the constitutionality of convicting an individual of a crime by a non-unanimous jury verdict (Lee v. Louisiana, 07-1523), [and] the constitutionality of jurors’ using a Bible during secret deliberations on whether to sentence a convicted individual to death (Lucero v. Texas, 07-1429)[.]

Scotusblog's detailed rundown on Lee v. Louisiana is here, and and there's a briefer synopsis of Lucero v. Texas in the list here.

Still murky, still clear

The two denials leave one question as clear as ever, and the other as murky as ever. The denial in Lee means it's still constitutional under Apodaca v. Oregon for states to allow criminal convictions by less than unanimous verdicts. Mr. Lee had hoped to convince the Court's strict constructionists to return to the unanimous jury the founding fathers might have expected; others will likely keep trying.

In Lucero, a Texas jury answered questions in a way that mandated the death penalty after the foreman read this passage from Romans 13:1-6 aloud:

1Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. 2Consequently, he who rebels against the authority is rebelling against what God has instituted, and those who do so will bring judgment on themselves. 3For rulers hold no terror for those who do right, but for those who do wrong. Do you want to be free from fear of the one in authority? Then do what is right and he will commend you. 4For he is God's servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God's servant, an agent of wrath to bring punishment on the wrongdoer. 5Therefore, it is necessary to submit to the authorities, not only because of possible punishment but also because of conscience. 6This is also why you pay taxes, for the authorities are God's servants, who give their full time to governing.

The jurors all submitted affidavits saying the reading didn't change their verdict, and the trial judge denied an evidentiary hearing. The Texas Supreme Court affirmed. The Bible comes up in the jury room more often than you might think, and the Lucero denial leaves judges to handle the issue case by case.

Judges, prosecutors and criminal defense lawyers, weigh in: would a ruling in either of these cases have made a difference for you?

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Women Lawyers, Juries, -- And Stress?

2008-10-01T23:31:02-05:00

At a litigation low point many years ago, my frustrated client stammered around for awhile and finally sighed, "I can't help wondering if this would be going better if you were wearing pants." He meant if I were a man; women lawyers wore skirt suits all the time in those days. I forget my exact response, but I'm pretty sure it wasn't the one that was really in my mind, which was "Sometimes I wonder that too."

In a year when every possible facet of the Gender Issue is being played out in the nightly political headlines, we know the question is still valid. It's so loudly and omnipresently valid, in fact, that it's easy to tune it out sometimes. That must be why the article that most recently caught my attention about gender didn't have anything to do with the presidential election. It was a psychological study about gender in the workplace. Both male and female employees reported more stress -- more headaches, more fatigue, more "psychological stress" -- when they were supervised by a woman than when they were supervised by a man.

Women especially

I don't mean to be depressing. I really don't; there's plenty else to be depressed about these days. And I'll admit there's a small ray of light in the study's finding that for male employees, the stress difference disappeared when they only had one boss. But female employees were consistently more stressed when they worked for other women. Here are the overall findings, from the study's press release:

Scott Schieman and Taralyn McMullen of the University of Toronto reviewed the psychological distress levels and physical symptoms (e.g., headaches, fatigue) of workers who were managed by either two supervisors (one male, one female), one same-sex supervisor or one supervisor of a different sex.

The findings revealed that women working under a lone female supervisor reported more distress and physical symptoms than did women working for a male supervisor. Women who reported to a mixed-gender pair of supervisors indicated a higher level of distress and physical symptoms than their counterparts with one male manager.

The researchers also found that men working under a single supervisor had similar levels of distress regardless of their boss’ gender. When supervised by two managers, one male and one female, men reported lower distress levels and fewer physical symptoms than men who worked for a lone male supervisor.

Do jurors feel the same?

Is this relevant to female trial lawyers? It sure feels that way. Although some research goes the other way, there are plenty of studies suggesting that all other things equal, juries respond better to male lawyers than to women. (See the notes below for links to a few, and note well the caveat in the next paragraph.) If it's true that people literally experience stress when they take direction from -- or, by analogy, listen to arguments and cross-examination by -- a woman, well, that could explain a lot.

Of course, that doesn't mean that women lawyers are always, or even ever, at a disadvantage in the real courtroom. Most obviously, all things aren't equal in real trials. Strength of evidence is by far the strongest factor in predicting jury verdicts, and then there are all the other moving parts: the lawyer's skill, her personal qualities, the impression her opponent makes, the individual jurors, the issues in the case, and so on.

The contrast effect

In addition, a woman lawyer who performs better than jurors expected her to may actually have an advantage. The jury consultant Reiko Hasuike explained this "contrast effect" in a 2000 article in The Practical Litigator, "Credibility and Gender in the Courtroom:" "[I]f a woman advocate is seen as being more competent than expected, she will also be considered more competent than she actually is, because her perceived competence is outside of the expected range." (I don't think there's a free link to the article, but it's on Westlaw.)

With the vice-presidential debate scheduled for tomorrow, I don't think I'm the only one thinking about the contrast effect tonight.

________________

Notes:

Just for the record, we did win that trial where the client wished he'd hired a man.
Studies suggesting that attorney gender affects jurors' thinking include Nelson, The effect of attorney gender on jury perception and decision-making, 28 Law & Psychology Review 177 (2004) ("A comprehensive review of the literature and studies available indicates that, though the increasing presence of women in the legal profession has decreased the effect of an attorney's gender on his or her success, attorney gender continues to be a pervading factor in jury perception and decision-making."); McGuire & Bermant, Individual and Group Decisions in Response to a Mock Trial: A Methodological Note, 7 Journal of Applied Social Psychology 220 (2006) ("Jurors in the male defense attorney conditions were more likely to vote not guilty following deliberations than were jurors in the female defense attorney conditions."); Hahn & Clayton, The Effects of Attorney Presentation Style, Attorney Gender, and Juror Gender on Juror Decisions, 5 Law & Human Behavior 533 (1996) ("The results [of a controlled mock trial] indicated that, overall, . . . male attorneys were more successful than female attorneys")

Related posts here: When Women Judge Women; and Beauty And The Juror, Part I and Part II.

(Photo by Clare at http://www.flickr.com/photos/clarice77/2189045806/; license details there.)

Will The Economic Downturn Make Juries Less Diverse?

2008-09-25T22:13:04-05:00

A new case reminds us that in jury selection, economics and race are often the same thing.

As Thaddeus Hoffmeister reported at Juries this morning, the Sixth Circuit yesterday decided Smith v. Berguis, overturning a Michigan state court murder conviction because the court selected juries in a way that disproportionately and systematically excluded African-Americans.

Just trying to help

The selection practice in question wasn't designed to exclude black jurors. It was designed to help people. When prospective jurors in Kent County Circuit Court said that they had transportation problems, child care concerns, or the inability to take time away from work, they usually got to go home, no questions asked. If jurors gave awards to the nicest court, Kent County Circuit Court would get one.

The problem is that concerns about child care, transportation, and missing work aren't equally distributed. An expert witness in Smith explained the stark, familiar numbers:

"64 percent of African American households with children were headed by single parents, while only 19 percent of white families were headed by single parents"
"27 percent of whites are renters, while 59 percent of African Americans are renters"
"6.7 percent of whites live below the poverty line, while 31.5 percent of African Americans in Kent County live below the poverty line"

What's worse, they were leftovers

When the case got to the Sixth Circuit on habeas corpus, the court found the resulting jury insufficient:

Here, the particular jury selection process employed by Kent County made social or economic factors relevant to whether an otherwise qualified prospective juror would be excused from service; and because such social or economic factors disproportionately impact African Americans in Kent County, such factors produced systematic exclusion[.]

The problem was made worse because the Kent County Circuit Court jury pool was composed of those jurors left over after juries were chosen for the local district court from Grand Rapids, the only city in the county with a significant African-American population.

Funny you should mention economic factors

Smith's case has been inching through the state and federal courts for sixteen years. But the release of the opinion yesterday, the same day the president told us that "major sectors of America's financial system are at risk of shutting down," had a jarring timeliness.

If you want to watch exactly how the economy affects people, go watch jury selection in any courtroom on any day. You'll see panic on jurors' faces as they ask the judge to let them go home, far more than you would have seen a few years ago. It isn't just a hardship on them, or even on the court. It's changing the very composition of juries, and thus the definition of the word.

Is it important? Sam Sommers's research on decisionmaking by diverse groups says it is. And there are uglier reminders. Today the Smith v. Barguis decision was reported on a racist web site whose tag line is "White Pride World Wide." "Black Killer Wins New Trial With Black Jury," the headline said.

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Notes:

Congratulations to Michigan lawyer James Sterling Lawrence, and anyone else who helped get this issue safely from a state trial court to a federal court of appeals. Preserving an issue all the way to appellate habeas isn't easy, and this opinion describes some of the record that was skillfully made.
Jon Hyman's post today at Ohio Employer's Law Blog is interesting on this theme: "In today's difficult economy, it is certain that more employment cases will be filed. It will remain to be seen if jurors who are facing their own tough economic times will continue to be generous." (Thanks to Carolyn Elefant at Legal Blog Watch.)

(Photo by Casey Serin at http://www.flickr.com/photos/sercasey/248457195/; license details there.)

What To Read This Week

2008-09-23T21:13:51-05:00

The Jury Expert, the publication of the American Society of Trial Consultants, just issued its third edition. It is, as they say, bigger and better than ever. There are eleven different articles by leading trial consultants, all offering practical insights for practical lawyers.

The three lead articles are getting the most attention, because they deal with a challenge most of us have struggled with: preparing a narcissistic witness to testify. Each of the three authors takes the problem from a different perspective. Douglas Keene of Keene Trial Consulting is a psychologist, and teaches how to tell what kind of narcissism you're dealing with, and how to respond to it. Charlotte Morris thinks first in terms of persuasion, and approaches the problem from there. Lisa DeCaro's background is in theatre and performance, and so she starts with posture, a fundamental and often forgotten form of communication. Each article is good; together, they're really good.

And there's lots more. Edward Burkley of Oklahoma State University and his student Darshon Anderson have an article on how scientific studies on persuasion translate to real-life courtrooms. It's so clear and practical it's hard to believe they're social scientists. David Illig completes his three-part series on false assumptions in witness preparation, yours and theirs. There are articles on using technology for clear communication; venue and buffer statutes; how jurors make damages decisions; solution-focused mediation; a very cool new program at DePaul University Law School; and links to two great resources.

You can download the issue in pieces (the way I've linked to it here), or in one huge file. Most important, you can subscribe by E-mail, and you really should.

Petitions To Watch, Jury Edition

2008-09-18T20:32:59-05:00

Forget "What did we do before the Internet?" It's enough to ask, "What did we do before SCOTUSblog?"

We either pored over advance sheets or lived in ignorance, that's what. Nowadays, thanks to Akin Gump's comprehensive Supreme Court resource, you can easily know not only what the Supreme Court has recently done in your field, but also what it might do this year.

SCOTUSblog posted today a list of "Petitions To Watch," cases that have "a reasonable chance of being granted" at the Supreme Court's upcoming September 29 conference, linking to the opinion below and all the certioriari briefs. There are important jury cases on the list -- including at least one, Lee v. Louisiana, that will rightly make national news when and if the Supreme Court decides it. The jury cases are:

Docket: 07-1429
Case name: Lucero v. Texas
Issue: Whether, under the Sixth Amendment, a jury foreman may read Bible passages during deliberations to persuade holdout jurors to impose the death penalty.

Opinion below (Court of Criminal Appeals of Texas)
Petition for certiorari
Brief in opposition
Petitioner’s reply

Docket:07-1482
Case name: Quarterman v. Mines, Jr.
Issue: Whether, under the federal habeas statute, the jury instructions given at the defendant’s capital murder trial were a clear violation of Penry v. Lynaugh (1989).

Docket: 07-1523
Case name: Lee v. Louisiana
Issue: Whether the Sixth Amendment, as applied to the states through the Fourteenth Amendment, allows criminal convictions based on non-unanimous jury verdicts.

Opinion below (Court of Appeal of Louisiana, First Circuit)
Petition for certiorari
Brief in opposition
Petitioner’s reply
Brief amicus curiae of Houston Institute for Race and Justice (in support of petitioner)
Brief amicus curiae of National Association of Criminal Defense Lawyers (in support of petitioner)
Brief amicus curiae of Louisiana Association of Criminal Defense Lawyers (in support of petitioner)
Brief amicus curiae of American Bar Association (in support of petitioner)

Docket: 08-94
Case name: Pennsylvania v. Mallory, et al.
Issue: Whether a defendant convicted at a bench trial can prove ineffective assistance of counsel by demonstrating that, absent the lawyer’s actions, he would not have waived his right to a jury trial.

Opinion below (Supreme Court of Pennsylvania, Eastern District)
Petition for certiorari
Brief in opposition
Petitioner’s reply

(Photo by Carlos Úbeda at http://flickr.com/photos/clic/2097785942/; license details there.)

Questionnaire For A Tough Trial

2008-09-16T22:06:38-05:00

While we're waiting for the judge to release the jury questionnaire in O.J. Simpson's robbery trial,* here's a questionnaire for collectors. Voir dire is under way in the Arizona trial of accused serial killer Dale Hausner, and Phoenix trial consultant Dennis Elias kindly sent me the questionnaire they're using.

It's a long jury selection; it started on September 2 and it's still going. Maybe that's to be expected when you're questioning 3,000 potential jurors, looking for folks who can get through a nine-month trial and who haven't formed an opinion in the face of very heavy news coverage. (Think Washington Sniper goes west. Hausner didn't help; his own letter to a reporter is on line.)

The questionnaire is 15 pages (longer when you add the witness list), a good basic criminal questionnaire with a death penalty section that's thorough without going on forever. In several places it goes beyond the obvious, asking for example not only "Have you ever known anyone who was killed, accidentally or otherwise?" but also "Have you, a family member, or close friend ever killed anyone, accidentally or otherwise?" You want to know both.

________________

*The judge in O.J.'s trial said she would release that questionnaire after the jury was seated, but testimony started today and I can't find it. If you see a copy, please let me know.

Also on this topic:

If You Can Only Read One Jury Blog,

2008-09-11T23:27:53-05:00

It might not be this one, now that Professor Sam Sommers has a blog.

Sam Sommers teaches social psychology at Tufts. His research and writing deals with "race and social perception, judgment and decision-making, diversity and group processes, and psychological perspectives on the U.S. legal system," his blog's "About" page says. It's not exaggeration to say that his work on juries and race is mandatory for anyone interested in the topic. You could start with posts here, noting his work on Batson in practice, or on how diversity in a jury makes the whole group better at all aspects of deliberation, including honest discussions on issues of race.

At the end of June, Prof. Sommers started a blog for Psychology Today, called The Science Of Small Talk. Look at his post last week, starting with data on the racial composition of juries in Jefferson County, Louisiana, and ending with a blunt criticism of peremptory strikes as they're often used. Once you've read that, subscribe.

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Thanks to The Situationist, another really good blog, for flagging this.

(Photo by Valerie Everett at http://www.flickr.com/photos/valeriebb/290711738/; license details there.)

The City Jury And The Country Jury

2008-09-10T21:29:51-05:00

Which would you rather have: twelve jurors who lived in the closest major city to you, or twelve who came from that city's suburbs?

A new study sheds light on this question -- at least in criminal cases and perhaps civil cases with similar facts. It sheds even more light, though, on two other, related issues: how difficult it is to apply scientific analysis where juries are concerned, and how risky it is to assume you can predict a juror's verdict from her demographic description.

Are urban juries more lenient?

"Baltimore Juries Less Likely To Convict," said the headlines on this study's release the other day. The research, done for Baltimore's Abell Foundation by researcher Shawn Flower of Choice Associates, analyzed 293 jury verdicts from juries in the City of Baltimore and in nearby suburban Anne Arundel and Howard Counties. Flower found that the Baltimore juries were significantly more likely to acquit criminal defendants than their suburban counterparts were: "On average, Baltimore City juries convict defendants of one or more charges 57% of the time compared to 72% of defendants convicted in [comparison suburban] jurisdictions – a significant difference of 15% (p<.05). Similarly, Baltimore City juries are 29% less likely to find defendants guilty of the most serious offense (p<.01) than the other jurisdictions."

Does this mean that urban juries are soft on crime? You may see the study cited that way, but as Flowers explains, it's more complicated than that.

Certainly the "typical" urban and suburban jurors are different from each other in important ways, as the study explains (I've omitted citations, of which there are many):

Wealth. "Generally speaking, citizens in the three [suburban] jurisdictions tend to be more advantaged in all respects than those in Baltimore City – they are better educated, are wealthier and are more likely to own their homes."
Crime's effect on social structures. "Prospective jurors in Anne Arundel, Howard and Baltimore counties, relative to Baltimore City, are also less likely to suffer from the structural disadvantage and social disorganization which often results in higher incidence of crime, and victimization from crime."
Criminal offenders in the family, and the neighborhood. "[I]ndividuals eligible to serve on a jury in Baltimore City are more likely to have a family member, partner, and/or friend that have been involved with the criminal justice system."
Distrust of police. "Further, studies of police indicate that members of minority race and ethnic groups express 'much more negative attitudes about the police and having lower trust and confidence in institutions of social control.'"

Or are urban prosecutions weaker?

But jurors aren't the only variable when you compare urban and suburban juries. The whole court system is different, and in ways that can change results. The study sets out some of them:

Urban prosecutors handle more cases than suburban prosecutors do, so many more that that their charging decisions almost certainly are different. "According to court personnel, the number of cases processed in Baltimore City in half a day equal the number of cases processed in the other jurisdictions in a week."
Voir dire can be different, and in Baltimore it apparently is. "One informant advised that the voir dire process in Baltimore City Circuit Court is conducted primarily by the judge using formulaic questions chosen by the Defense and State’s Attorneys; it is routine, perhaps standardized. . . . In contrast, jury selection in other locales may be quite involved."
The police in a particular case may be more likely to have earned distrust. The study cites a 2006 report of a Baltimore grand jury, finding problems with police officers ranging from witness intimidation, perjury, and robbery to simple unfamiliarity with the neighborhoods they patrolled.

And can we know?

Finally, Flower recites with candor the things he couldn't test. Did suburban juries hear more eyewitness testimony? Did defendants testify more often? Were weapons involved? Were defendants unemployed, or did they have more prior convictions? And how strong was the evidence? All these variables correlate to conviction rates (Flower's source here is the wonderful article by Prof. Dan Devine and his colleagues, "Jury Decision Making: 45 Years of Empirical Research on Deliberating Groups," 7 Psychology, Public Policy & Law 622 (2001)), and none of them were contained in the computer database from which Flower drew his data.

This work raises terrific questions, then, and few answers. In that way, it's like a great deal of other jury research; the task is just very difficult. When you study real juries, you can't eliminate dozens of variables. When you use a mock trial to eliminate variables, you can't study real juries. And when a lawyer is standing in front of a single real jury box in a single real case, no research can say for sure what that tiny group of individuals will decide.

With all those flaws, though, jury research makes us better lawyers: it surprises us, it makes us wonder, it makes us think of things we wouldn't have, it makes us aware. You might have thought urban juries convicted more often. We think of crimes as more serious downtown, and defendants more "criminal," so it would make sense that suburban defendants had a better shot. If you thought that, and now you see how the opposite could be true, this study helped you.

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Back To School: Today's Psychology Reading List

2008-09-03T22:04:20-05:00

You know August is really over when the new Personality And Social Psychology Bulletin lands in the feed reader. It's the only scholarly journal I see where I regularly want to read everything, no matter how dense the writing is. (And it's dense.) Samples from the October issue, with my abstracts of the authors' abstracts:

I'm Hot, So I'd Say You're Not: The Influence of Objective Physical Attractiveness on Mate Selection, R. Matthew Montoya of the University of North Carolina: The more attractive you are, the less attractive you think other people are and the more you expect you'll get a date if you ask. We already know that beauty makes a difference in the courtroom; think about this study as you're deciding whether to strike that great-looking juror.
Bringing Automatic Stereotyping Under Control: Implementation Intentions as Efficient Means of Thought Control, Brandon D. Stewart of the University of Queensland B. Keith Payne of the University of North Carolina, Chapel Hill: Subjects who "made an intention to think specific counterstereotypical thoughts whenever they encountered a black individual" in fact did reduce not only conscious stereotyping but "automatic" stereotyping as well. Add it to a growing list of studies suggesting it might be possible to challenge jurors to find their own openness and compassion.
Insurance, Risk, and Magical Thinking, Orit E. Tykocinski of the Interdisciplinary Center, Herzliya: Deep down, we believe that buying insurance policies protects us from harm. That causation issue in your next trial may not be as simple as you think it is.
Paying for Someone Else's Mistake: The Effect of Bystander Negligence on Perpetrator Blame, Clayton R. Critcher and David A. Pizarro of Cornell University: When a bystander's negligence helps make a crime possible, we actually think that makes the criminal more culpable, not less. Criminal defense lawyers, nobody said it would be easy.
Narcissism and Social Networking Web Sites, by Laura E. Buffardi and W. Keith Campbell of the University of Georgia: Heavy users of social networking sites like Facebook are more narcissistic and more self-promoting than the rest of the world. You're asking jurors whether they're on line, aren't you?

Those are only the first five of the ten articles, so check out the issue.

Five Good Blogs To Start September

2008-09-02T21:49:19-05:00

I really recommend an August recess.

Congress does it, the whole country of France does it, and this year Deliberations tried it. I can now confirm: August -- especially in Wisconsin when the heavy rains of June are only now drying and the chill of October looms -- is no time to do any work that can honestly be called optional. Milwaukee's August means State Fair, and Irish Fest (the world's largest Irish music festival is right here), and my birthday, and Harley-Davidson's 105th anniversary party last weekend. (Motorcycles were everywhere. Everywhere.) It just didn't seem right to slog at a blog.

But it's September now, with all its backpacks and crossing guards and bulb catalogs, and I'm back to the keyboard. I thought reentry might be challenging, but luckily, Colin Samuels of Infamy or Praise chose today to tag me with a the perfect meme, thought up by Blawg Review's mysterious Ed. I'm supposed to post five links to five great blogs that are not law blogs.

Well heck, for the last month, I've been a specialist in not-law-blogging, and thus in not-law-blogs. Here are five easy favorites:

I shouldn't get to count Presentation Zen, since it's so squarely on topic for anyone who presents and persuades, but it's not a law blog, and I don't get enough chances to recommend it.
Like Ed., I read Zen Habits; I can't be reminded too often of simple life truths like those. (And it hardly bothers me at all that our blogs started almost simultaneously and now Leo is a full-time blogger with a gabazillion subscribers. He's better at it, after all.)
Dick Cavett's blog at the New York Times should be declared a national treasure.
Mark Bittman's food blog Bitten, also at the NYT, makes it hard to see why an August recess should have to end.
I've said this often, but I love the drawings Elizabeth Perry posts each day at woolgathering, and the life they let me glimpse.

Now, whom to tag? Scott Greenfield, of course -- anything that might make him lose count of how often I post. And David Giacalone, Mark Bennett, Jon Katz, and Karl Keys, because I should be reading more of what they're reading.

(Photo of the famous Wisconsin State Fair cream puffs by Anna at http://flickr.com/photos/bcmom/228732013/; license details there.)