Deliberations

And Now, The Rest Of The Judge's-Mother-On-The-Jury Story

About a year ago I wrote a post about a Wisconsin court of appeals opinion affirming a small-town trial judge who refused to strike his own mother from the jury for cause.  The post was fun to write, and I remember it fondly because other than my Blawg Review post, it's the only post here that Above The Law ever linked to, so I got all kinds of visitors from it.

To be honest, the opinion itself -- like many unpublished opinions -- wasn't all that interesting.  But today the Wisconsin Supreme Court reversed it, and that opinion is a good read.

There are three opinions, actually.  The three concurring justices (in two opinions) wanted simply to correct the trial judge's mistaken belief that there was not "any legal basis for excusing" his mom, without binding future judges to rule one way or the other on their own mothers if the occasion arises.  The three majority justices¹ went much further, holding that a judge's-mother-juror is always unconstitutional:

[W]e conclude that the defendant was deprived of his right under the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution to be tried by an impartial jury and accordingly reverse the conviction and order a new trial.  A presiding judge's mother serving as a juror is a special circumstance so fraught with the possibility of bias that we must find objective bias regardless of the particular juror's assurances of impartiality.

Together, the opinions are a thought-provoking illustration of two viewpoints on the trial judge's task in jury selection.  If you live in Wisconsin, they're also a little handbook, since they're the most current synopsis of the "objective bias" and "subjective bias" framework Wisconsin courts use to analyze jury selection issues.

Your move

There's a strategy component to the case that's interesting too.  After Judge Eaton (that was his name) denied the motion to strike his mom, defense counsel decided not to use a peremptory strike on her, and left her on the jury.  Under current Wisconsin law, that was the only way to preserve the issue on appeal.  The case that says so is State v. Lindell, which sets out the chess game clearly:  "If the circuit court erroneously fails to exclude a prospective juror who should be struck for cause, the defendant may take his or her chances and refuse to exercise a peremptory challenge, wait until the jury renders its verdict, appeal if he or she does not like the result, and then receive a new trial."  The prosecutor is a player too:

Anticipating the defendant's possible strategy, the State has three courses of action: (1) It can join the defendant in urging the court to remove a juror for cause; (2) it can exercise one of its own limited peremptory strikes to remove a juror who should have been struck for cause; or (3) it can do nothing and risk a new trial if an appellate court finds that a biased juror sat on the jury. 

That quote is from Lindell.  The Supreme Court's opinion today is State v. Tody.

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¹ If you're counting, you got six justices, all concurring in the result but split on the precedent they wanted to create.  That's because one of the seven justices didn't participate.  I'm not enough of an appellate guru to figure out why the majority opinion is a majority opinion under those circumstances, but it sure sounds like one.  If you know, please comment below.

 

"Your Honor, I Move To Strike Your Mother For Cause"

Ashland, Wisconsin, is not a big place.  Yes, it's "nestled along the shoreline of magnificent Lake Superior," as its Chamber of Commerce says, and yes, it's "a beautiful, close-knit community with an excellent variety of lodging, dining, recreation and attraction options."  But with 8,795 people, it's fair also to call it little. 

One of those people is Ashland County Circuit Court Judge Robert Eaton.  Another one is his mom.  And since he's the only judge up there, it was almost inevitable that someday a court reporter would take down this exchange in voir dire:

[Court]:  Any of you have relatives employed in a law enforcement related capacity?   Ms. Eaton, do you have a relative employed in the law enforcement related capacity?

[Juror] Eaton:  The judge.

[Court]:  I like – I like to consider myself part of law enforcement or I may be disowned.  You are related to me how?

[Juror] Eaton:  Your mother.

"Not a jury bias issue"

It was a case about a stolen Jeep, and Mrs. Eaton stayed on the jury, which reached a guilty verdict.  The reason I know all this is that the case went to the Court of Appeals.  The unpublished (and thus unprecedential) opinion is State v. Tody, released on Tuesday by the appellate court we call District III. 

Let's face it:  there are few towns of any size in all of District III, a huge swath of northern Wisconsin containing a lot more trees than people.  If those counties started disqualifying jurors who know the judge, or even jurors who changed his diapers, they could deplete the jury pool pretty fast.  That may be why the court of appeals had so little trouble upholding Judge Eaton's decision to let his mother stay.  "[A] juror’s relationship to the judge is not, by itself, a jury bias issue.  Unlike a State’s witness, a judge is not associated with either party.  No bias is implicit from a relationship to a neutral party." 

As for Mrs. Eaton herself, her voir dire answers were perfect.  "Eaton did not say she had a 'favorable view of law enforcement,' or that she was 'pro-law-enforcement' or 'pro-prosecution.'  [The defense had argued these were reasons she should have been dismissed.]  From the available facts, we cannot conclude that a reasonable juror in Eaton’s position could not act impartially."

Mothers and wives

Cases where a juror was close to the judge come up from time to time, more often with spouses than with parents.  There's the cute feature story of the judge's wife who cheerfully accepted her peremptory strike in Topeka.  There's a please-let-it-be-apocryphal tale of Judge Irving Younger (I get to mention him twice in a week!) flirting from the bench with his juror wife (and later my property professor) Judith Younger.   (Surely he didn't really ask, "Is there any woman on the panel who'd like to go home and sleep with me tonight?")  And there's the harrowing story of New Jersey judge Andrew Smithson, who left his wife on a panel as a nondeliberating alternate.  The defendant appealed, lost, and then filed a misconduct complaint.  Judge Smithson wasn't punished, but a committee considering the complaint did find that Mrs. Smithson's presence on the jury "created an appearance of impropriety."

Next time . . .

Two things stand out in the Tody opinion as lessons for next time, both pretty basic.  First, you need to be ready to lay the groundwork for cause strikes with good voir dire questions, regardless of how surprised you are to find yourself questioning the judge's mother while the judge looks on.  It looks like the entire voir dire questioning of Mrs. Eaton for both sides amounted to this:

[District Attorney]:  Mrs. Eaton, I know you’re the judge’s mother, do you feel comfortable sitting on a trial where he’s the judge but he’s not party in the case?

[Juror] Eaton:  I don’t think it makes any difference.

[District Attorney]:  Doesn’t make any difference one way or the other to you?  You have no opinion about the defendant’s guilt or innocence?

[Juror] Eaton:  I know nothing about it.

Tody’s attorney also addressed Eaton:

[Tody’s Attorney]:  Do you feel you could be a fair and impartial juror?  Would you have to explain to His Honor Judge Eaton, let’s say you voted for a verdict of not guilty, would you feel you would have to explain or justify why you voted that way?

[Juror] Eaton:  No.

Second, Tody used his peremptory strikes on jurors who were not Mrs. Eaton.  I don't know who those jurors were, and I might have made the same calls if I'd been there.  But it's worth pointing out that of all the people who are likely to be strong leaders on a jury -- lawyers, journalists, sitting legislators -- the most influential of all might be the one person on earth who gives orders to the judge.  If you're going to leave the judge's mother on the jury, you'd better like her a whole lot.

(Photo of the Ashland Marina on Lake Superior from the city's web site,  http://www.coawi.org/node/361)

Let's All Move To Florida

Forgive me a "pointer" post on my way out of town; Robert Kelley's excellent Florida Jury Selection Blog reports on a new Florida case that ought to make the rest of us look at the bar admission rules there.  His post begins:

The Fourth District Court of Appeal reversed a breach of contract case for failure to excuse a Juror Green for cause who said she  had a “bad taste” from having been sued in the past which would “probably” cause her to view the case with prejudice one way or another.

My bags are packed anyway; maybe I'll change my flight and head south.  Either way, this blog will be back on Wednesday.

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Gratitude note:  Thanks to Blawg Review's anonymous Ed. for listing this as a blog judges might want to read (some already do, and they give me wonderful feedback), and to Evan Schaeffer at Illinois Trial Practice Weblog for sending his many (many!) readers here.  Evan had a great post yesterday on talking to juries about complex subjects.

(Photo by ieatstars at http://www.flickr.com/photos/ieatstars/267411515/; license details there.)

It's Broke, But Don't Fix It: The Ryan Appeal

When do jury deliberations become so horribly flawed that a guilty verdict cannot stand?  If you're in the Seventh Circuit and the trial was long and important, the answer may be never.   

The Seventh Circuit today rejected the appeal of former Illinois governor George Ryan and his aide Lawrence Warner, who were convicted of improperly steering state contracts for their own benefit.  The first sentence really says it all:  "This appeal comes to us after an investigation that lasted for years and a jury trial that lasted more than six months." 

"Totally astounding"

In lines that have been repeatedly quoted already today, the majority said the trial "may not have been picture-perfect" and the dissenting judge, Judge Michael Kanne, called that "a whopping understatement by any measure."  Judge Kanne spent three pages setting out in bullet points what went wrong in this trial.  "Some of the factors would be unremarkable in a routine criminal case," he said, "and other factors are totally astounding in any case."  I've italicized some of the more astounding items:

• "In a case that was tried over a six month period, the jurors entered and exited the courthouse every day past scores of television and still cameras and reporters.
• "The jurors used public elevators and brushed elbows with anyone who happened to be in them.
• "Although the court’s intent was not to make the jurors’ names public, that effort was compromised when the jurors’ names were used in the in-court voir dire.
• "When jury deliberations were ready to commence in the most high profile case in Chicago in recent memory, there was no thought of sequestering the jury.
• "During the initial eight days of deliberations an apparent holdout juror was purportedly threatened by other jurors with a charge of bribery.
• "Legal research gained by a juror from the internet was – contrary to the court’s instruction – brought into the jury room in an effort to persuade the recalcitrant juror to change her position.
• "A reporter for the Chicago Tribune advised the district court during jury deliberations that the newspaper’s   search had disclosed major inconsistencies between answers in a jury questionnaire and public records. Based on the information provided by the Chicago Tribune, the district judge, in concurrence with all parties, requested the U.S. Attorney’s Office to conduct a background check on all jurors.
• "Jury deliberations were halted following the Chicago Tribune disclosure and the hiatus continued during the investigation of the jurors by the U.S. Attorney’s Office.
• "During the five-day hiatus in jury deliberations, the exposé by the Chicago Tribune was published revealing that, indeed, false answers had been given on a jury questionnaire and that the sitting jurors were now under investigation.
• "Amidst questions raised by the district judge concerning the necessity of advising the jurors of their constitutional rights and their right to counsel, the individual examination of six sitting and three alternate jurors was begun.
• "Through the judge’s examination it was determined that a majority of jurors had provided false answers under oath and could face criminal prosecution. Many jurors who were interrogated told the district judge that they were scared, intimidated or sorry for what had occurred.
• "During the course of the interrogations, the jurors were granted immunity from prosecution by the U.S. Attorney.  Some jurors later hired lawyers in order to represent their own independent interests arising from their participation in the trial.
• "Two jurors who provided untruthful answers were excused from further service while others so situated were retained.
• "Before the hiatus in deliberation, jurors informed the court that they were having a conflict and yet after the interrogations the judge dismissed one of the jurors in the conflict without determining whether she was a holdout juror.
• "Alternate jurors were seated, but not in the order required by Rule 24.
• "After eight days of deliberation by the original jury, and five days in hiatus, a reconstituted jury deliberated for ten days and returned the verdicts in this case."

Amazing as that litany is, it doesn't fully capture the yelling and, apparently, pushing and shoving that went on in these deliberations.  The majority explained that the apparent holdout juror, whose name was Ezell, sent out one note saying "that other jurors were calling her derogatory names and shouting profanities."  Then the others sent a note asking that Ezell be removed "because she was refusing to engage in meaningful discourse and was behaving in a physically aggressive manner."

It's about time

Between the two opinions, there are 74 pages to read here, with each side discussing dozens of flaws in the management of the jury, whether they were harmless error, and whether they had been adequately raised on appeal.  The majority might have saved both sides some paper if it had pared its opinion to something like "We're not retrying a case that riveted the entire state of Illinois for six months no matter what anybody says."  Then Judge Kanne -- who, as a Volokh Conspiracy commenter pointed out, is a Reagan appointee not known in these parts as a friend of criminal defendants -- might have been able to limit his opinion to its candid conclusion:

In the final analysis, this case was inexorably driven to a defective conclusion by the natural human desire to bring an end to the massive expenditure of time and resources occasioned by this trial – to the detriment of the defendants. Given the breadth and depth of both structural and nonstructural errors, I have no doubt that if this case had been a six-day trial, rather than a six-month trial, a mistrial would have been swiftly declared. It should have been here.

A consensus builder

Whether you like the result or not, it's worth jotting down the cite for this case, which is actually captioned U.S. v. Warner.  For one thing, the sheer number and variety of the jury glitches make it a one-opinion encyclopedia of case law on this subject.  I'll save the opinion for another reason too.  Someday I'll want to quote Judge Kanne's thoughtful words on an issue appellate courts seldom mention:  the mess that results when judges refuse to judge.

At oral argument before this court, Prosecutor Collins stated that “Judge Pallmeyer is a consensus builder.” . . .  This insightful comment is the key to understanding the non-structural juror errors. Consensus building can help in finding common ground in disputes. It can also help to expose decision makers to alternative points of view. But consensus building can have negative consequences as this case demonstrates.

Consensus building by the district judge allowed a continual round robin of discussions between the attorneys and the court especially during the critical period of March 27th and 28th when the parties and the court were addressing the juror related issues. Transcripts from this period reveal a very conscientious but irresolute judge who is willing to contribute her views and concerns to the conversation involving contested issues, but is reluctant to provide firm rulings that end the court’s consideration of those issues. The record from this period is full of conversations but lacks definitive rulings.  Consensus building does not always lead to the resolution of difficult issues.

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Note on other sources:  this case was all over the Web today.  There is particularly thoughtful discussion at White Collar Crime Prof Blog (two posts, here and here); Robert Loblaw's Decision of the Day (again); and Volokh Conspiracy. 

(Photo by ecparker at http://www.flickr.com/photos/ecparker/458330140/; license details there.)

That Which Should Not Be Said

This week brought two cases where jurors heard something they shouldn't have heard -- once from a potential juror, and once in a rollicking closing argument exchange between counsel.  Read them and you're left wondering if there's any meaningful way to respond to mouthy jurors and lawyers. 

"I used to be a lawyer with the EEOC"

The lawyer case is DeCorte v. Jordan, an employment discrimination case decided by the Fifth Circuit on Wednesday.  In closing argument, both lawyers decided to supplement the evidence with their personal knowledge and experience.  They were talking about how the EEOC found that the plaintiffs had probable cause to sue (you need this finding before you're allowed to bring a discrimination case), and what that finding did or didn't mean about the strength of the plaintiffs' case. 

Plaintiffs' counsel started the exchange, telling the jury, “The EEOC doesn’t find cause that often.”  Defense counsel responded that the finding was no big deal and indeed, the jury could infer the EEOC wasn't all that impressed with the case, since the EEOC only authorized the plaintiffs to sue but didn't sue the defendant itself:

[The EEOC] litigate[s] all the time [and] ... could have brought this case themselves. There are lawyers at the Justice Department who do just that. If the EEOC felt strongly about this case, where were they when it came time to litigate it?

No way, plaintiffs' counsel struck back in rebuttal:

Let’s talk about the EEOC determinations. Counsel misrepresented. The EEOC does not  file lawsuits in regard to public entities. The Justice Department in Washington does that with regard to public entities. I used to be a lawyer with the EEOC. And I’m going to tell you this. The facts of the EEOC charges are these. [A Plaintiff] went to the EEOC on a Friday afternoon, filed her charge, and they dismissed it Tuesday without doing any investigation. Reopened it and investigated it for a year. And found cause. Counsel didn’t tell you that.

Separately, plaintiffs' counsel offered some expert testimony in closing that hadn't quite come out in trial:

Remember. Let me tell you this: It doesn’t take a Ph.D. in industrial psychology to figure out those numbers. And that’s what Dr. McDaniel told me the first day I talked to him. Do you know what else? Do you know what Dr. Kenny told them? You didn’t hear it, but let me tell you what he told them. I can’t touch the firing decisions. That’s why this has got to be a hiring case.

None of this was in evidence, and the Fifth Circuit found it all "obviously improper."  But it was all harmless: "a back-and-forth between opposing viewpoints," "of limited duration," that "certainly did not impact the integrity of the judicial process" or affect the defendant's "substantial rights."

"I have found him to be completely truthful."

The juror case is Reynolds v. Bagley, decided by the Sixth Circuit yesterday and featured in Robert Loblaw's excellent Decision of the Day.  In this death-penalty murder case, the jury panel included a police officer who, it's fair to conclude, knew he had no chance to be a juror, and decided to do all he could to help the prosecution while he had the floor. 

Defense counsel moved to strike the policeman early on, and the trial judge denied the motion.  So he was questioned while the rest of the panel listened, and his answers revealed a hardworking advocate.  Could he objectively evaluate the testimony of a police officer witness whom he knew?  “I have always found him to be completely truthful.”  Was it a problem that he had worked with the prosecutor before?  The officer "stated that he could remain objective — but prior to doing so noted how 'efficient' the prosecutor was, and how the prosecutor demanded a lot from police officers before 'moving forward' with a prosecution."  Finally he was dismissed.

Defense counsel didn't move to strike the panel, which made things difficult on appeal, but it's hard to believe the court would have reversed a gory murder conviction on this ground no matter how well the issue was preserved:

Although Vanhyning’s statements could theoretically have biased ultimatelyseated jurors in favor of the prosecution and its witnesses, Reynolds has failed to show that there was any actual bias, especially given the trial judge’s subsequent curative instruction that jurors would have to decide the case for themselves. Nor is this a case in which the jury venire appears to have been predisposed to convict Reynolds, so that Vanhyning’s comments might have only heightened their predisposition, the trial judge’s curative instructions notwithstanding. Thus while we can conceive of a hypothetical in which a single veniremember’s comments, prior to his dismissal, might irreparably prejudice the remaining veniremembers against the defendant, the instant case does not approach that hypothetical.

(Citations are omitted from that excerpt.)

You can't catch me

I don't argue much with these courts' refusal to reverse in these cases.  It probably doesn't make sense to try a whole case over again when something like this happens.  But we ought to be left with a real dissatisfaction over cases like this.  In both cases, the two lawyers and the policeman juror, testifying rampantly with no one on the stand, had to know they were breaking the rules.  They also knew they were likely to get away with it -- and they did. 

(Photo by Robert Paul Young at http://www.flickr.com/photos/robertpaulyoung/148905239/; license details there.)

Dear Deliberations

It's fun to watch the searches that find this blog.  People are usually looking for a phrase; yesterday brought visitors looking for  "sample voir dire questions criminal," "juror profile false advertising," and "Curious George stickers."  The best ones, though, ask whole questions, and I get to feel like an advice columnist.  Dear Deliberations, they write,

Q.  How do they pick jurors?

A.  Very carefully, my mom would say.  (She loved jokes like that.) 

Okay, really.  If you're asking what lawyers think about when they're choosing jurors, it's a complicated question, and most of what I write here is part of a search for the answer.  I suspect, though, that you're asking about logistics, what jury selection looks like to an observer.  For this, as for dozens of other jury questions, the National Center for State Courts has compiled a great set of answers.  On its State Links page for "Jury Selection," the NCSC has links to state courts' jury handbooks, for most of the fifty states and and a whole bunch of individual counties.  Most of the handbooks explain what voir dire is, the kinds of questions jurors can expect, and how the process of jury challenges works.

Q.  What are the questions asked for voir dire in a mock jury?

A.  Actually we hardly ask any true "voir dire" questions in a mock trial, in the sense that a juror might be removed from the panel based on the answers.  It's important that mock jurors be completely unconnected with the parties, the witnesses, the lawyers, and the case, so we ask thoroughly about those possible ties.  Depending on who is conducting the mock trial and what its goal is, the mock panel might exclude particular groups -- newspaper reporters come to mind -- and of course we try to get a demographic balance.  Other than that, if a mock juror is able to serve and qualified to be an actual juror,  we usually take the group we get, and always learn from it.

Q.  Six or twelve jurors better for wrongful death cases?

A.  You're not the only one to ask.  This question has been researched extensively.  Much of the work is collected in Prof. Neil Vidmar's article, "The Performance Of The American Civil Jury:  An Empirical Perspective," published in 1998 in the Arizona Law Review and on line at Duke's web site.  Some of the findings:

• "[R]esults suggest that smaller juries will, on average, produce larger awards."
• Small juries' verdicts are more "variable or dispersed."
• Large juries "will contain more members of minority groups, deliberate longer, and possibly recall trial testimony more accurately."
• "[L]arge juries are somewhat less likely to reach unanimous agreement on the verdict."
• "Social scientists, who have commented on the issue, appear unanimous in their opinions that larger juries are superior to smaller juries with respect to determinations of liability, guilt, and damages."

Q.  Do all state verdicts have to be unanimous?

A.  No.  It depends on the state, and on whether the trial is for a civil lawsuit, a felony, or a misdemeanor.  If you know those things, you can find the answer in the U.S. Department of Justice's massive State Court Organization report, a 7 MB monster that takes forever to download.  Once you get it, you'll have 47 charts covering everything from how much continuing education your state's judges need to what rights you lose when you're convicted of a felony in your state -- and, in Table 41, what verdicts need to be unanimous where.

Q.  Disqualification for jury duty in Texas?

A:  Hoping to get out of it, are you?  Back we go to the DOJ's State Court Organization report, this time to Tables 39 and 40.  In Texas, the chart says you're off the hook if you're an officer or an employee of the Senate, house of representatives, or any department commission, board, office, or other agency in the legislative branch of state government; if you're on active duty in the military; or if you're a student, a parent needing to care for children younger than 10, or a primary caretaker of an invalid person. 

Note:  I'm just reading the chart.  Get court permission before you decide not to show up.

Q.  How long jury deliberation process?

A.  Ah, the how-much-longer question.  Search no more; I got a wonderful note not long ago from Wisconsin Court of Appeals Judge Daniel Anderson, who shared with me the definitive answer.  He's an appellate judge now, he says, but back in the day,

I did enough jury trials to develop a guiding principle.  If a jury is out for more than 12 hours it will vote for the plaintiff, except in those cases where it votes for the defendant.

Q.  Do you believe that the jurors sometimes discuss impermissible issues in deliberations?

A.  No.  I believe that they almost always do. 

Mock jurors talk about things they're not supposed to all the time, and the Arizona Jury Project revealed that real jurors do too.  Profs. Neil Vidmar and Shari Diamond collected the evidence in their article "Jury Room Ruminations on Forbidden Topics," at 87 Va. L. Rev. 1857 (2001) and at Duke's web site.  Of the 40 civil juries whose deliberations were taped for the project, 34 talked about insurance and 33 talked about attorney fees, two classic off-limits topics.  Vidmar and Diamond caution that the juries were still highly functional:

[F]orbidden considerations were but a small part of the juries' focus of attention.  Even in cases in which juries discussed forbidden topics, they spent only a small portion of their time on these topics.  . .. [T]he juries invested most of their time and effort in actively sorting out competing claims and arriving at a plausible interpretation of the evidence presented at trial and in struggling to understand and apply the court's instructions on the law.

But do they talk about off-limits issues?  Almost without fail.

Sincerely,

Deliberations

(Photo by zoghal at http://www.flickr.com/photos/zoghal/350801206/; license details there.)

The Peremptory Strike As Broom And Dustpan

There was a time when courts treated the peremptory strike like fans treat a football star.  These days it's more like the guy who sweeps up the stadium after the game. 

Yesterday's Dorsey v. Quarterman, a habeas opinion from the Fifth Circuit flagged on the Decision of the Day blog, is an example.  At Dorsey's Texas death penalty trial, his lawyer moved to strike four potential jurors for cause because of their views on the death penalty.  One juror "initially indicated a bias in favor of the death penalty, saying that he would automatically assess the death penalty after a verdict of guilty," but after the trial court explained the law, he agreed that he could follow it.  The other three jurors said they would not consider Dorsey's youth as a mitigating factor in sentencing.

The Fifth Circuit denied the required "certificate of appeal" on this issue, listing familiar reasons:  the trial judge was in the best position to judge the first juror's sincerity, and the decision on the other three jurors had not been raised on direct appeal.  And there was another reason.  Dorsey's lawyer had used his peremptory strikes to remove these jurors from the panel -- so, essentially, no harm done:

In addition, Dorsey used peremptory challenges to remove the four venire persons from the jury. Accordingly, even if the court erred in denying his challenges for cause, there was no constitutional violation because the jurors were removed from the jury by his use of peremptory challenges and he has not alleged that the jury that sat in his capital murder trial was not impartial. Ross v. Oklahoma, 487 U.S. 81, 88 (1988). 

It's true:  1988's Ross v. Oklahoma does hold that there is "nothing arbitrary or irrational" about "the requirement that the defendant must use those challenges to cure erroneous refusals by the trial court to excuse jurors for cause."  The requirement simply "subordinates the absolute freedom to use a peremptory challenge as one wishes to the goal of empaneling an impartial jury," the Ross court said.

When peremptory strikes ruled the Earth

It wasn't always this way.   In Swain v. Alabama in 1965, the Supreme Court lauded the peremptory challenge, tracing its historic roots back to something called the Ordinance for Inquests in 1305.  The court explained: 

The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed for them, and not otherwise. In this way the peremptory satisfies the rule that "to perform its high function in the best way, 'justice must satisfy the appearance of justice.'"

The problem with that deference to peremptory strikes, though, is apparent in Swain's holding:  it's the case that said it was fine for prosecutors to strike black jurors, and it was overruled in Batson v. Kentucky.  The Batson court said nice things about the peremptory challenge, but demoted it all the same:

While we recognize, of course, that the peremptory challenge occupies an important position in our trial procedures, we do not agree that our decision today will undermine the contribution the challenge generally makes to the administration of justice.

How's it going?

From the moment of the Batson opinion itself, some were predicting that the balance it struck would not work.  Justice Marshall, concurring, was ready to get rid of peremptory strikes altogether:  "The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system."  In 2005's Miller-El v. Dretke, Justice Breyer's concurrence repeated that call:  "I believe it necessary to reconsider Batson's test and the peremptory challenge system as a whole."

Looking at how Batson plays out today, it's easy to understand the temptation of a baby-and-bathwater solution to the interwoven problems of biased challenges and biased jurors.  The race-neutral justifications Batson requires for peremptory strikes are often themselves racially charged.  We're heading inevitably for a line of cases asking whether different ethnic backgrounds, religion, disability, and sexual orientation are acceptable grounds for peremptory strikes.  Defense lawyers like Scott Greenfield agree that prosecutors shouldn't be allowed racial strikes but wonder why, with so much of the system aligned against them, defendants can't do it.  And then a case like Dorsey reminds us that we're supposed to use peremptory strikes to correct judges' errors and doom clients' appeals. 

Not too soon for many jurors

If peremptory strikes do disappear altogether, it will be good news to many jurors, who often can't understand why lawyers get to pick and choose at all.  I got a note recently from a reader that echoes many juror blogs I've seen:

A jury of peers? No way. If an engineer or a tech company is being sued, no engineer will be chosen for the jury. If a doctor is being sued, no health care professional will ever see the inside of that jury room. If a person knows anything about or understands the issues being litigated, they are automatically considered 'tainted' and unsuitable for a jury. . . I understand excluding potential jurors who personally know the parties, or who have any other clear conflict. But to exclude someone who followed the story in the media? Where does that compute? . . . When jurors are picked at random, and questioned only about their conflicts with the case at hand[, I will] answer a summons with pleasure.

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State law note:  Some states still place more value on the peremptory challenge.  Robert Kelley's Florida Jury Selection Blog recently detailed this aspect of Florida's May opinion in Kopsho v. State.

(Photo by J. Samuel B. at http://www.flickr.com/photos/lobsterstew/109196638/; license details there.)

Jurors Who Read Blogs

One of Mark Stein's terrific missives from the Conrad Black closing arguments in Chicago this week was this:

One lady juror appears to be reading. A book? The paper? Her bus ticket? This blog?

If it's the last, hi there, the pink really suits you, free for a drink at lunchtime?

He was kidding, but it's not absolutely impossible.  We've talked about jurors who write blogs; recent stories from New Jersey and California remind us that jurors also read them. 

Blogs about jurors reading blogs about jurors . . .

In New Jersey, lawyers for murder defendant Melanie McGuire failed to convince the trial judge that she should get a new trial because the case was so heavily covered, in blogs as well as traditional media.  The news stories suggest that the jurors were deeply aware of the coverage, but the trial judge said he was satisfied they weren't tainted.  Kevin O'Keefe at Real Lawyers Have Blogs pointed to a good local pre-hearing article, and there's a shorter post-hearing article linking to some of the trial blogs in question.   

In California, the trial in question started in April and is still going on.  It's a criminal fraud trial over the collapse of Peregrine Systems, a software developer; three executives and the company's (former) Arthur Andersen accountant face charges.  Local lawyer Robert Grimes is posting detailed daily reports on the trial at his web site -- having been "hired to write the blog," says the San Diego Union Tribune, by a law firm that is involved in civil litigation over the Peregrine mess.  (First I've heard of lawyers anonymously hiring trial bloggers.  That raises interesting issues.)

Jurors reporting jurors who read blogs . . .

The Peregrine prosecutors, and apparently some other jurors, were concerned about Juror No. 7 already.  Back in June (I'm getting all this from the Union Tribune article), jurors sent out a note which prompted the judge to ask No. 7 if he had read about the case on the Internet; he said he'd looked to see if there was media coverage, but didn't read any.  On Tuesday another note came out, saying No. 7 had called the case "B.S." and a waste of time.  Questioned again by the judge, No. 7 admitted he had read Grimes's blog, and he was gone. 

"The move could represent a setback for defense lawyers," said the Union Tribune, "as the juror often nodded and smiled during their cross-examination of witnesses called by prosecutors."  But there may have been a symmetry in the ruling.  Defense lawyers got a ruling preventing five witnesses from testifying -- because they had read Grimes's blog.

Ask.  Instruct.  Remind.  Repeat.

The moral is, as it so often is, ask and ask, instruct and instruct.  Remember especially that many jurors can get to blogs -- and the rest of the Internet -- from the jury room itself, not just from home.  Remind them that news means all news. 

Defense counsel, let them hear it from you too.  You don't want your juror advocate to be sent home because he thought reading blogs would be a great way to stick it to the government.

Juror Disqualification: The Role Of The Ask

The last few days have turned into a juror disqualification series.  Friday listed some issues that might disqualify jurors; Monday talked about ways to prepare for those moments; and Tuesday looked at Monday's death-doubting-juror decision in Uttecht v. Brown. 

There's another point that pulls it all together, a critical factor -- maybe the critical factor -- in juror disqualification.  Over and over, cases seem to turn not on what the juror actually said or did, but instead on how extensively the trial judge questions, or allows questioning of, the juror and the rest of the panel.  To borrow a phrase from fundraising circles, it's all about The Ask.

The Ask in Uttecht v. Brown

Karl Keys at Capital Defense Weekly points out that the Uttecht v. Brown opinion relies heavily on the quality of the trial judge's voir dire:

Justice Kennedy need not have set out number of days in voir dire, appended the jury selection, mentioned the use of questionaires, or even that the jury panel was told repeatedly that life meant life without parole; none of those facts were necessary for the Court to reach its decision. Those details, however, are important if you are trying to send a message to those courts where such procedural safeguards are not taken. The processes Brown received at his trial were substantially more than you get in 80-90% of capital trials nationally. Justice Kennedy’s chambers reviews those same cases and he knows Brown received more process than almost all the hundreds of men the Court has sent to their deaths.

The import of the opinion then, at least in my mind, is the blueprint it sets out for what voir dire should look like.

Guess the reversals

Whether or not Uttecht v. Brown will end up limited to strong voir dire performances by trial courts, it's not the only recent case to turn on the quality of the trial court's questioning.  It's hard to rank the last several weeks' cases by how egregious the juror's conduct was.  Try it:  which of these trial court decisions do you think would stand up on appeal?

1. In a death-penalty case, to the question whether anyone had a problem with the idea of the defendant not testifying, one juror responded, "I do.  I think he should have to.  I know the law is not that way, but I think so."  Defense counsel asked whether the juror could set aside those thoughts, and he responded, "I don't know."  The trial court refused to dismiss the juror.
2. A trial judge dismissed a juror after she recognized the defendant and "although she was unsure, she had some recollection that he was fired for an incident involving a gun."  She had said she could be fair and wouldn't tell the others.
3. A juror complained that the defendant was "eyeballing" him.  Noting that the jury had been “repeatedly admonished not to make up its mind about any issue,” the trial judge left him on the jury.
4. In a death-penalty case, a white juror told African-American co-workers -- at his workplace, away from the other jurors -- that he was “going to the hardware store to buy rope to hang this man with.”  The defendant was African-American.  Questioned later by the trial judge, the juror insisted he was only saying what he thought his co-workers expected him to say, and he had not really made up his mind.  The trial judge left him on the jury but made him an alternate, so he did not deliberate.
5. In a death penalty case, the trial court refused to strike for cause ten jurors who remembered seeing publicity, including one who "related that she knew others who felt he was probably guilty and that she felt the same," one who said "that most of the people in the community at that time believed" the defendant was guilty, one who "was not sure if she could remove all information from her mind during the trial and deliberations," and one, the eventual foreman, who said in voir dire "that he wanted evidence from Appellant to prove his innocence."

And the answer is . . .

Only one of these cases affirmed the trial judge, and it's the one with the most egregious facts.  It's Case No. 5, where the ten tainted jurors remained (and nine deliberated.)  The opinion is Foley v. Parker, decided by the Sixth Circuit on May 17.  Granted, it's the only federal habeas case on the list, but the turning point in the opinion is The Ask:  "[T]he trial court conducted a thorough voir dire and was satisfied from the responses of the ten challenged jurors that they could set aside what they had heard about the case and decide it based upon the evidence presented in court."

Each of the other cases is different from the rest, of course -- different facts, jurisdictions, procedural postures, legal standards, and appellate judges.  What they all have in common, though, is that the trial court didn't ask enough:

1. Case No. 1 is Kopsho v. State, a death-penalty direct appeal in Florida decided May 24.  "Neither the State nor the trial court attempted to rehabilitate Mullinax after this exchange with defense counsel" in which Mullinax said he thought the defendant should testify.
2. Case No. 2, where the juror recognized the defendant, is People v. Dukes, decided by New York's highest court on May 1 and discussed in this blog here.  In Dukes the trial judge asked the juror what she remembered, and then reflexively dismissed her even though defense counsel objected.  The Court of Appeals reversed, saying the trial judge should have inquired whether she could still be impartial.
3. Case No. 3, the eyeballing case, is U.S. v. Simtob, a direct appeal decided by the Ninth Circuit on May 11 and a favorite of this blog.  (I know I keep bringing up Simtob, but it keeps being relevant.)  The Ninth Circuit sent the case back to the trial court to "determine whether the perceived threat impaired that or any other juror’s ability to act fairly and impartially," since the trial judge didn't do that the first time.
4. Case No. 4, where the juror talked about lynching, is State v. Loftin, decided yesterday by the New Jersey Supreme Court on postconviction review, not direct appeal.  (The case is discussed here at Capital Defense Weekly.)  The trial judge should have dismissed the juror immediately because his comments were so heavy with racism, the court said -- but more than that, the trial judge should have questioned the other jurors: 

[T]he trial court had to voir dire the jury and satisfy itself either that Juror No. 4 did not express predetermined or biased views to other jurors or that if he did, the jurors were not influenced by those views. Therefore, the trial court first should have dismissed Juror No. 4 and then voir dired the jury. In cases in which a jury has been potentially exposed to external influences that could undermine jury impartiality, our courts have not hesitated to make inquiry of the jurors to ensure that they have not been fatally tainted.

The lesson is easy here.  If you're a judge, ask and ask and ask.  If you're trial counsel, be ready, and object precisely.

(Photo by Jilligan86 at http://www.flickr.com/photos/gillian_m/448800043/; license details there.)

The Unsure Death Penalty Juror Goes Home

Who gets to sit on a death penalty jury?  You'll need sturdy walking shoes to research the question.  We started here, in Witherspoon v. Illinois in 1968:

A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror. But a jury from which all such men have been excluded cannot perform the task demanded of it.

And we ended up here, in Uttecht v. Brown yesterday:

Juror Z's assurances that he would consider imposing  the death penalty and would follow the law . . . did not require the trial court to deny the State's  motion to excuse Juror Z.

That's quite a journey.

No objection, but to what?

This blog is about what trial lawyers need to know next time, so I can leave most of the policy analysis to more capable others, a few of whom are listed in the note below.  That's good news for me, because on a policy level (I humbly submit) this opinion only highlights the Court's jurisprudential death penalty mess, but a post on the take-home lesson is easy to write.  The lesson is:  Object clearly. 

The Court summarized the moment of Juror Z's dismissal as follows:

Counsel, any challenge to this particular juror?

MR. MATTHEWS: I would, your Honor, not on the term beyond a shadow of a doubt, I think he would certainly stick with the reasonable doubt standard. But I think he is very confused about the statements where he said that if a person can't kill again, in other words, he's locked up for the rest of his life, he said, basically, he could vote for the death penalty if it was proved beyond a shadow of. And I am certainly going to concede that he means beyond a reasonable doubt. And if a person kills and will kill again. And I think he has some real problems with that. He said he hadn't really thought about it. And I don't think at this period of time he's had an opportunity to think about it, and I don't think he said anything that overcame this idea of he must kill again before he imposed the death penalty or be in a position to kill again. So, that is my only challenge.

MR. MULLIGAN: We have no objection.

THE COURT: Counsel, the request of the prosecutor's office, we will go ahead and excuse [Juror Z].

What did "no objection" mean?  Was defense counsel "thank[ing] his lucky stars when the prosecutor bumped Z," one of several interpretations Justice Kennedy considered?  Or was he instead saying he had "no objection" to Z remaining on the jury, as Justice Stevens supposed in dissent? 

There are paragraphs of discussion in the opinion about what the precise legal impact of that "no objection" should be, and Justice Breyer's entire dissent is based on it.  Defense counsel didn't have to object to preserve the error, but the Court had to struggle with how to weigh an affirmative "no objection," if indeed that's what was meant. 

But that's for the policy bloggers.  For us, there's only one point:  object clearly.  It isn't easy; we've all been shocked to see how what seemed like a plain oral statement took on a dozen different meanings in the transcript.  But it's worth striving for.

Beyond habeas?

Two other points.  First, when I wrote about the Uttecht oral argument in April, I warned that the opinion might not offer much guidance on how trial courts should handle unsure death penalty jurors, because the analysis might end in the maze of federal habeas corpus requirements.  Reading the opinion now, I think I may have been wrong.  At the beginning and end of his Uttecht opinion, Justice Kennedy does recite that federal courts defer to state trial courts on habeas.  But like many a trial lawyer's supposed "theme," the idea never really connects to the argument itself.  When he gets to the point, Justice Kennedy chooses words that say "we agree," not "we defer":

From our own review of the state trial court's ruling, we conclude the trial court acted well within its discretion in granting the State's motion to excuse Juror Z.

What's next?

Finally, what will death penalty juries look like, at least until the next time the Court changes course?  Justice Stevens predicts:

the perverse result of its opinion is that a juror who is clearly willing to impose the death penalty, but considers the severity of that decision carefully enough to recognize that there are certain circumstances under which it is not appropriate (e.g., that it would only be appropriate in "severe situations"), is "substantially impaired." It is difficult to imagine, under such a standard, a juror who would not be considered so impaired, unless he delivered only perfectly unequivocal answers during the unfamiliar and often confusing legal process of voir  dire and was willing to state without hesitation that he would be able to vote for a death sentence under any imaginable circumstance.

A panel of jurors like that would look a lot like the one that convicted Mr. Witherspoon in Illinois so long ago.

__________________

Notes:

Some of the discussion elsewhere: 

1. Capital Defense Weekly is more optimistic than Justice Stevens: "Although some want to see larger trends at play here, I don’t." The post concludes, "The import of the opinion then, at least in my mind, is the blueprint it sets out for what voir dire should look like. It may also well be the template of what the Court will expect from here forward."  More on that here tomorrow. 
2. Blawgletter notes the emotional opening of both this opinion and the Carhart partial abortion case:  "The law aspires to decide cases through logic.  Stirring up passions seems an odd way to promote public confidence in the system." 
3. SCOTUSblog's analysis is here. 
4. How Appealing has a round-up of news stories here.

I've omitted record cites in the opinion excerpts in this post.

(Photo by Jim Crossley at http://www.flickr.com/photos/raindog/436176848/; license details there.)