Deliberations

The Dangers of “Sending a Message” Through Damage Awards

Colleen and Robert Middleton suffered an unspeakable tragedy.  In 1998, their 8 year old son (Robbie) was allegedly set on fire by a sexual predator named Donald W. Collins.  While he survived the initial attack, Robbie Middleton died 13 years later of cancer that originated from the skin grafts utilized to treat his burns.

The criminal case inexplicably disintegrated (read more about it here) , so the Middletons sued Mr. Collins for wrongful death.  After seeing videotaped testimony from the now deceased Robbie, a very emotionally charged jury found in favor of the plaintiff.  However, they decided to “send a message” by awarding a very, very large award.  $150,000,000,000.00.  That is $150 billion if you lost track of the zeros. 

It is easy to feel deep sympathy for the Middletons, but this jury award has potential ramifications that reverberate beyond a convicted child molester’s bank account.  Massive jury awards create big news.  Unfortunately, people often don’t read the details and only see the headline: “Parents awarded $150 billion seek justice for son,” “Texas parents hope $150 billion award prompts change,” and “Jury awards record $150 billion to family of burned boy.”    

The Middleton’s jury was not the first to do this, but it does make prior examples seem downright reasonable in comparison.  In 2009, a Florida jury awarded $330 million to the mother of a child that was killed by a drunk driver.    Across the country, there are many examples of criminals losing civil suits (especially involving the deaths of children) and being told to pay hundreds of millions of dollars.  Sadly, everyone knows that these are debts that will never be repaid. 

These huge damage awards offer eye-catching headlines and vindication, but little else.  In fact, the headlines rarely give the impression that this was a symbolic award that will never be paid (see above).  Instead, they tend to stoke the ire of those who believe that artificial damage caps should be legislated.

The law carries the unenviable burden of applying monetary value to life, pain and suffering.  Juries tasked with this face an agonizing calculus.  Huge awards that have no root in reality don’t help, they only serve to cloud waters that are already murky.

Blogger: Matt McCusker

 

Legalese After-Math: When Jurors Forget to Carry the One

The Indiana Court of Appeals recently ruled that a plaintiff was not entitled to several hundred thousand dollars that the jury allegedly thought it was awarding (but didn’t).  According to a juror’s affidavit, the group became confused during the deliberation process and accidentally lowered the dollar figure.  In addition to being bewildered by the jury instructions and verdict form questions, the jury had to request multiplication help from the judge in open court.  As a result, they actually awarded $128,172, instead of the $464,472 that was claimed to be the intended award. 

Some might view this as another opportunity to slam the intelligence of juries or make a wisecrack about those who are not smart enough to get off jury duty.  After all, who could possibly misunderstand something as simple as a verdict form?

However, those of us non-attorneys who actually see verdict forms might have a different response.  Jury instructions and verdict forms are written by experts in law that are fluent in legalese.  Often, attorneys will battle over small wording changes that are vital to the legal arguments, but far above a typical juror’s head. 

This is not to suggest that the jurors are stupid.  I’m sure that a juror who works in nuclear science or car mechanics would be able to write instructions that would easily perplex the average attorney.  The issue is experience, not intelligence.

Much like speaking a second language, it is easy to take the meanings of words and phrases for granted.  Litigators can attest that even something as simple as the burden of proof can often be confused by jurors. 

There are no statistics that accurately convey how frequently juries come to verdicts based on misunderstandings of the verdict form or instructions, but anecdotal mock trial evidence would suggest a much higher rate than anyone would be comfortable with.  The question is: What can be done to help?

The answer is to start working on the verdict form early.  As this article points out, attorneys often focus on the jury selection with great intensity and leave the verdict form as a loose end to be tied.  Great thought must be put into the verdict form, but this is not strictly about legal strategy.  It is also about simplicity.

Much like speaking to a Spanish 101 student, time and explanation are vital.  Try to use as many basic words as possible.  When big words are required, be sure to explain the meanings with little words that the student already knows.  Most importantly, don’t add complexity where it is unnecessary.  The result will only be frustration and eventual exhaustion.

Gracias.

Blogger: Matt McCusker

 

Legal Codes, Moral Codes & Nuclear Codes: Casey Anthony's Radioactive Fallout

(Blogger’s Note: I am reticent to write a blog about the same subject two weeks in a row.  However, an event like the Casey Anthony acquittal is an extraordinary occurrence.  It has garnered a sustained media frenzy that can only be likened to lowering an elephant into a piranha tank.  Moreover, rarely have we seen an episode that seemingly shakes the American public’s faith in the jury system.  As a result, I am centering on Ms. Anthony’s case again in this blog.  Next week: YouTube’s most popular furry animal video.)

Watching cable news, the closest comparison to this trial (by consensus) is the acquittal of O.J. Simpson.  However, imagine explaining this analogy to a man who had been trapped on a desert island for the last 10 years (let’s call him Mr. Robinson).  Mr. Robinson clearly remembers the O.J. trial.  It was the public downfall of an American hero.  A Hall of Fame football star who was building an acting career was accused of a gruesome double-murder in the middle of one of Los Angeles’s wealthiest neighborhoods.  Complete with an on-air Ford Bronco chase and an all-star legal team, this trial (and acquittal) was hard for anyone to forget.

“Tell me about Casey Anthony!” Mr. Robinson asks you with great anticipation.  “She must be a celebrity who did something really bad to merit ‘O.J. level’ attention.”  Then (almost embarrassedly so), you must explain to Mr. Robinson that Casey Anthony was simply an unemployed woman living part-time with her parents who was accused of killing her young child in a middle-class Orlando suburb and not reporting it for a month.  She was not famous and in the terrible annals of child murders, this was not a remarkable cause of death. “Oh.” Mr. Robinson replies quizzically. You add enthusiastically, “There were photos of her dancing in a night club!” Mr. Robinson thinks for a moment and then adds, “Times have certainly changed since I have been away.”  You have no retort.

On the afternoon of July 5, 2011 a metaphorical nuclear bomb exploded in the State of Florida.  Hyperbole, you say?  Probably.  However, it’s difficult to describe the massive reaction to such an unexpected verdict in the Anthony case.  The vitriolic fallout from the public that has arisen from this verdict has been something that caused massive damage to the public’s faith in the justice system and will likely linger for years.

In fact, it could be argued that the greatest victim of the Casey Anthony trial (obviously second to Caylee Anthony) has been the reputation of the American jury system.  Public outrage (fueled by a litany of former-prosecutor TV talking heads) has declared jurors too stupid to be trusted with important decisions.  Debates have raged on the need for more judiciary discretion or “professional jurors.”  If mental deficiency was not the cause, many media experts have suggested that the dreaded “CSI Effect” blinded the jurors (see here for my blog obliterating the CSI Effect).  Without doubt, the sales of pitchforks and torches have skyrocketed this July.

It is here that we come to a crossroads between our legal code and one’s moral code.  The legal code is a set of rules that we live by.  The legal code says that the prosecution must prove its case beyond a reasonable doubt, and Casey Anthony has no requirement to even put up a defense.  One’s moral code says that any mother who doesn’t report a missing child is lacking and likely guilty of wrongdoing.  One’s moral code may wish to punish aberrant behavior (like nightclub dancing) or perpetual lying and assume that these are symptoms of murder.

History has shown us the hazards of blending one’s morality with a justice system. Examples include:  feudalism (land owner morality), monarchy (the king's morality), the inquisition (the church’s morality), fascism (the dictator's morality) and McCarthyism (the witch hunter’s or lynch mob's morality).  

Our system is not perfect, but we tie a blindfold around Justice’s eyes for a reason.  It helps us to find a result determined by law, not morality.  In fact, a rising number of countries are actually turning to the jury system in criminal matters because of rampant judicial corruption.  Hopefully, one murder trial in Florida will not be enough for others to rethink a system that the rest of the world is learning from.

Blogger: Matt McCusker

 

THE FUTURE OF TRIAL CONSULTING: Deep Thoughts After the 2010 ASTC Conference

 As I fly home to Seattle from the American Society of Trial Consultants (ASTC) conference in Minneapolis; I am left with two nagging questions:

1)      How can I shamelessly promote the 30^th Annual ASTC Conference next year in Seattle between June 9^th and 12^th, 2011?

2)     What can be prognosticated as to the future of the Trial Consulting profession?

Obviously, I quickly answered the first quandary.  (Shameless promotion accomplished!). 

However, the second left me pondering to come up with a few guesses…

John Grisham will write a bestseller called ‘The Consultants’

Set in the Windy City, it’s a story that centers on an all-female trial consulting firm (a la Charlie’s Angels) with the protagonists living a secret double-life.  By day, they work huge corporate cases and hobnob around the world with the beautiful people.  However, by night, they secretly devote their powers to innocent plaintiffs and death penalty defendants.  It will become a NYT bestseller and make it on to Oprah’s night stand.

Reality TV Trial Consultants will take center stage

Forget a jury, which television judge and timeslot would best fit your case?  These specialized consultants will help you choose: Judge Judy, Judge Joe Brown, Judge Mathis or Judge Reinhold?  With the right decision, you could find yourself some fortune and fame (or at least your old futon and five minutes you can TiVo.)

John Grisham’s book ‘The Consultants’ is turned into less appealing movie

Like most Grisham books-turned-movies, it is disappointing.  Rather than preserving the brilliant character-development and nuanced plot twists, the movie is heavy handed and makes terrible casting choices (Lindsey Lohan, Tara Reid and Paris Hilton play The Consultants).  As a result, the film goes straight to video.

Okay, most kidding aside, here are a few real predictions (or at least hopes)…

Trial consulting for cases without trials

The best national assessment of civil case outcomes (state and federal) was performed in 2005 by the USDOJ Bureau of Justice Statistics.  The most cited result from that study was the value "3%" (or conversely, 97%).  Only 3% of cases filed were actually decided by trial.   In other words, you have a better chance of randomly selecting a One-Eyed Jack out of a deck of cards than having your case settled by a jury.

I predict that litigation consultants will continue the rocketing trend toward offering affordable services designed for cases that settle.  This includes assistance like: witness prep for depositions; case narrative and presentation strategy; video/PowerPoint/demonstrative production for ADR; negotiation tactics; preliminary case testing with small focus groups; and much more.

We will educate our jurors 

Jurors have far more communication ability and knowledge than ever before.  While the media tends to focus on jurors who Tweet, a more important issue is jurors who Google.  Generally speaking, rules are most effectual when they are explained.  Saying “Don’t blog or Google” is not nearly as successful a proposition as saying “Here is why we are asking you not to blog or Google…”  I predict that the courts will realize this and teach jurors rather than simply making unenforceable threats of punishment.

Further, I foresee the courts being more liberal with their allowance of juror questions to avoid confusion.  I have seen some “jury instructions” that would make constitutional scholars take pause.  It is unfair to expect simple English-language speakers to understand legalese without the help of a translator or dictionary.

We will get to know our jurors

My last post lauded the merits of extending voir dire and pointed to research studies (especially Judge Mize's study) that demonstrate this necessity.  As time goes on, I hope that this message gets carried further and is heeded widely.  I predict that more and more judges will continue to sacrifice the time required for a solid voir dire in the interest of seating the most impartial jury.

I believe there are some who would prefer our juries were composed of legal robots that simply interpret “the facts and law” before printing out a verdict.  This would be great, except that most cases present very different understandings of “the facts and law” which must be interpreted and weighed by people on the jury.  Given that “human nature” is required to fairly weigh “the facts and law”, it is that “human nature” that we must explore with more extensive voir dire and questionnaires.

(In my prediction, these legal robots would then get self-awareness and try to take over the world.  We would toil under the foot of our "logical overlords" until The Consultants organized a resistance to save us.  But I’ve said too much.)

Blogger: Matt McCusker

 

NO BASIS FOR BIASES: How Demographics Fool Even the Best Lawyers

 Let’s face it, we all stereotype.  We all make assumptions about others based on visual information alone.  These could be conjectures about grey hair, obesity, a tight skirt, or a body piercing; but people continually make visual judgments of others founded only on personal biases and prior experiences.  Think of the last time you were forced to stand in line (the DMV, the bank, the post office, etc.).  Did you notice the people around you?  What did you think of them?  What basis did you have?

While I do not endorse the practice of stereotyping, I accept it as an evolved part of the human condition.  Without these assumptions, the world would be a chaotic place where every new person would be an outright enigma (and even a potential threat).  Stereotyping provides order and a sense of security, even if it is often highly inaccurate.

Stereotypic predictions about individuals on looks alone come with three major downfalls:

1.       Making assumptions about individuals based on broad demographic stereotypes is simply not a reliable method.  Studies and analyses (Debunking Stereotypes, Objective Reality, Fourteenth Amendment) have shown that trying to apply large group characteristics (gender, race, age, hair color) to specific questions about an individual (Are they intelligent? Are they dangerous? Are they likely to convict?) is a generally ineffective technique.  Typically, the larger the group, the more flawed the assumption. 

For example, it is popular for some people make stereotypic assumptions about the automobile driving ability of particular demographic groups.  Let’s take a hard look at the stereotypes.  Which group reference do you think would likely be a good predictor for spotting an unsafe driver?

 

• Asian drivers (racial stereotype, approximately 4.5 billion people);
• Women drivers (gender stereotype, approximately 3.5 billion people);
• Drivers who have received speeding tickets (very common experience, certainly  in the tens of millions);
• Drivers who have rear-ended another vehicle  (less common experience, no data available); or
• Drivers who self-report on a questionnaire that they tend to speed and/or engage in “risky behavior” on the road (small group that is limited by how many are asked).

Notice that the smaller and more focused the pool, the more comfortable we feel in our assumption?  

2.      It’s easy to be right when one never knows the correct answer.  For the most part, none of us are typically able to test our stereotyping hypotheses.  These broad generalizations are only maintained for those people who we never get to know (the stranger in the DMV line will always remain a stranger).  Those who we actually meet (strangers who become new friends or acquaintances) will give us more individual information, thus making the stereotype unnecessary.  For everyone else (strangers who remain strangers), we simply get to move on with our lives assuming that we were right (which reinforces the stereotype).

3.      In several key areas of our society, we are specifically prohibited from depending on particular stereotypes (race, gender, age, sexual orientation, etc.) to make particular decisions (housing, employment, education, peremptory challenges, etc.).  This is generally because we have found that faulty decision making based on inaccurate stereotypes can have drastic consequences.

Recently, there has been a fervent discussion about the removal of peremptory challenges from the jury selection process.  The primary reason for this outcry is the belief that despite the Batson v. Kentucky ruling, attorneys depend too heavily on racially-based stereotyping when utilizing strikes (which this research suggests is likely).  As a result, some assert that minority criminal defendants are being placed at a disadvantage at trial, violating their 6^th Amendment right.  .

Banning peremptory challenges would remove racial prejudice through the restriction of information, rather than the promotion of openness and honesty.  While it’s true that this solution would limit race-based strikes, it would also come at the cost of increasing many other types of juror bias.  Without the presence of peremptory challenges, the courts would likely perform even less voir dire than the limited amount we see today.  By further reducing potential jurors’ ability to speak during voir dire, we would see even more serious cause and bias issues influencing our jury deliberations and verdicts (as the Mize study demonstrated).

Rather than denying the existence of stereotyping or asking people to continually suppress a basic human instinct, there is a better way to help reduce demographic profiling in forbidden areas.  The simple answer is to increase the time for voir dire and utilize jury questionnaires.  The minimal cost associated with these processes will exponentially increase the amount of information provided by individual jurors.  As we have seen, the best weapon against stereotyping is simply allowing a person to talk about their opinions and life experiences (something many of us are happy to do).

Blogger: Matt McCusker

What THE CSI INFECTION Teaches Us About ASS-U-ME(ing) Juror Biases

 We’ve all heard about the CSI Effect, but what about the CSI Infection?  A recent paper out of Loyola University explores how the widespread fear of a very debatable CSI Effect in America’s courtrooms has set off a series of chain reactions that Ms. Lawson has dubbed a CSI Infection.  If you wander around your office ready to make cheesy puns before removing your sunglasses or you have The Who’s “Won’t Get Fooled Again” set as your ringtone; then you may not want to click this link.  It is a review of empirical studies on the CSI Effect that generally suggest it does not exist (or at least it cannot be demonstrated).  However, if you need to cling to your guns and DNA testing, only read the anecdotal reports/media stories in the review and keep your rose-colored David Caruso Ray Bans on.

(Blogger’s Note: I have facilitated a focus group on a project exploring the “CSI Effect Phenomenon” and remain thoroughly unconvinced of its existence.)

As Felix Unger says, when you ASSUME, you make an ASS out of U and ME.  Oftentimes, attorneys will let their assumptions about a large group of people (i.e. the jury pool) dominate their expectations of an individual’s behavior (i.e. the juror).  This is faulty logic, as it tries to make comparisons between apples and rhinoceroses. (I believe oranges are too close to apples and actually would make a better comparison). 

The CSI Infection is rooted in a mass assumption (without much support) by many in the legal community that most jurors are too dumb and/or emotional to truly realize that a crime drama is not real life.  It has left many attorneys believing that TV has indeed rotted juors brains and made them too “soft-in-the-head” to effectively determine levels of proof or hear a case fairly.  Honestly, is this likely?

Or, is the following scenario more likely?

1.       Prosecutors choose which cases to take on.  So, the attorneys are already weeding out many cases that have the weakest evidence (physical or otherwise).

2.      The accused know if they did the crime and get to see the evidence against them.  So, when the evidence is strong, criminals will often take a plea arrangement to avoid a harsh judge sentencing.

3.      This leaves a collection of trials under the following circumstances:

a.      The person didn’t do the crime (suggesting there should not be much strong physical evidence);

b.      The person did the crime but sees weak evidence (suggesting they have a shot at an acquittal or dismissal).

c.       The person did the crime and sees strong evidence, but decides to roll the dice anyway (explaining our high conviction rate).

This same rationale can be applied to many civil cases and settlements.  Replace the word “prosecutor” with “plaintiff’s attorney” and “plea arrangement” with “settlement.”

While it is easy to blame the jurors, sometimes a weak case is just a weak case.  Sometimes an attorney’s presentation of the evidence is poor and the jurors just “don’t get it.”  Sometimes a jury is not very bright and gets it wrong.  However, rarely (if ever) does the popularity of a crime-based television show create a substantial influence on a verdict.  Unless, of course, the trial actually involves the TV show, actors or network.  Then you might say it would be a case of the CBS Effect (cue The Who, put on sunglasses, cut to show opening credits).

(Blogger’s Note: I apologize for that last line.  I’m not as good at cheesy puns as one might ass-u-me.)

Blogger: Matt McCusker 

What do Homer Simpson, Fonzie, MacGyver, and Batman have in common?: THE MIND OF A HOLDOUT JUROR

 I begin this post not with Henry Fonda (12 Angry Men), but with a few lesser-known (yet still famous) references to holdout jurors.

Some will remember that Homer Simpson was a holdout juror who argued a man’s innocence in the name of a free hotel room, free food, and free HBO. He noted, “Marge, it was horrible. Everyone was against me in that jury room. But I stood by the courage of my convictions and I prevailed… And that's why we had Chinese food for lunch.”

Both Fonzie (Happy Days) and MacGyver (MacGyver) also held out in the name of justice for the innocent.  Fonzie utilized his knowledge of motorcycles during the deliberation to prove a man not guilty (actually “Not Guiltyamundo”), while MacGyver … well …  pulled a MacGyver.

Despite being sequestered, MacGyver used two soda cans and a coin to distract the guard and sneak out of his hotel room.  He then conducted his own investigation of the crime scene, eventually nabbing the real attacker. (Before you think Hollywood is unrealistic, the judge did admonish MacGyver for these crazy antics… but then thanked him for finding the truth.)

However, my favorite holdout juror comes from the comedy 3rd Rock from the Sun. Putting a nice twist on the 12 Angry Men plot, Dick tries to defend a very obviously guilty man and sway the jury to set him free.  Here is an example of his case theory: “Well, Foster SAID he didn't do it.  Are you calling him ... AND his attorney ... LIARS?"

If you recall, I began this blog series on hung juries and holdouts, talking about the 20% of French faux-reality show contestants who refused to shock a man (actually an actor) into unconsciousness.  I was curious to know what type of people stand up to the group and refuse to comply with the wishes of a badgering game show host and vocal studio audience. 

While this is by no means an exhaustive list, and choices depend greatly on the case at hand, here are a few things to look for when thinking about jurors who are aversive to compromise or don’t play well with others:

1)      Watch the Talkers:  A study on interaction rates amongst members of split juries showed that the smaller the size of the minority faction, the more they talked.  It is easy to sit quietly when supporting the majority in a deliberation.  The holdouts are often required to argue and explain why they won’t go along with the group.  During voir dire, make a note of the people who like to talk.

2)     Strong Houses Rest on Solid Foundations:  Frequently, those who indicate “very strong” opinions about issues of ethics and morals are likely to be unwilling to shift to a position that would be in contradiction with these beliefs.  Those schooled in cognitive dissonance know that often, the stronger the belief, the more extreme the need to stay in line with it (even if it means wild theories with little support).

3)     Agree to Disagree:  There are some people who just like to argue.  They will often place the thrill of debate in front of the search for justice.  Anecdotally, I offer a few potential giveaways for these conflict-magnetic individuals during voir dire:

a.      Debating with attorneys or other jurors during Q&A;

b.      Whispering jokes in the back of the courtroom;

c.       Angrily staring at you with the “evil eye”; and

d.      Giving curt answers that are obviously intended to send you a message.

4)     Step One - Read Instructions:  A study by the American Bar Foundation showed that juries were twice as likely to hang if they began their deliberations focused on votes instead of evidence.  While this is usually out of attorneys’ control, asking judges to give jurors guidance about evidence-based deliberations could go a long way towards finding unanimous verdicts.

*A Caveat:  Those who have read the first two parts of the series already know that research suggests that holdouts are born from a split group that has different interpretations of the strength of the evidence and testimony.  The holdouts seldom begin the deliberation as 11 against 1 , but arrive there after a string of minority defections to the majority.

I end this post as it began, with another reference to a famous holdout juror.  Believe it or not, Bruce Wayne served on the jury of a man whom he captured as Batman.  In this scenario, (possibly due to the lack of evidence associated with “arrest by superhero”) Bruce had to convince the jury that the man was actually GUILTY!  Before you complain about juror deception, you should know that during voir dire, the Caped Crusader openly admitted in court that he would be a poor  juror because he was, in fact, Batman.  As would be expected, everyone laughed but him, the holdout. 

Blogger: Matt McCusker

(BTW, feel free to post comments with other famous juror holdouts.)

 

“CAN’T WE ALL JUST GET ALONG?”: How Juries Get Hung

 When creating the story of a hero, three things are generally needed:

1)      A righteous cause that we can get behind;

2)     An individual who is facing seemingly insurmountable odds; and

3)     A hard-fought struggle, that may or may not end with success.

This formula is imbedded in the human consciousness and can be traced back to the times of Homer and Plato.  Once you start looking for it, a familiar story structure begins to appear everywhere (from Spartacus to Serpico to Twelve Angry Men).  It’s no wonder that when we think of a hung jury, many of us assume that there was one person who heroically refused to abandon their convictions and submit to the will of the collective.  (This is an especially common caricature in death penalty cases with hung juries.)

Certainly, a brief review of the media reports about deliberation deadlocks supports this gut feeling.  While not always portrayed as heroes, the jury holdouts are often painted as victims of the group.  Some examples include:

    One Juror Between Terrorist and Death

Holdout Jurors Can Put Legal System to the Test

Save the Holdout Juror from the Internet

However, jury research suggests that “a Holdout” is often less of “a Lone Hero” and more of “a Captain going down with the ship.”  I cited the National Center for State Courts project in Part One of this series because it is a fantastic resource on hung juries.  While it’s true that the project depended on an amalgam of sporadic studies over the last 50 years, its research corroborates the suggestion that hung juries often begin with a split group that is whittled down to one or two holdouts. 

Kalven and Zeisel (The American Jury) performed extensive research on splits during their historic work in 1960s and 70s. They discovered that hung juries typically give much weaker ratings to the “power of the evidence” and the “clarity of the law” than unanimous juries.  When calculating rating strength, the jurors’ scores were set to a baseline of comparison with ratings provided by the judges and attorneys involved the case.  In other words, juries were more likely to be hung when they started out unsure and when there was one person in the group who refused to move off of their initial (often weak) position.

Additionally, hung juries are more common in deliberations that begin with a “verdict-driven” approach as opposed to an “evidence-driven” approach (see Inside the Jury).  It is important to note that if individuals avoid locking into a position early, the group is more likely to find consensus.  I find it a sobering thought that something as simple as instructing jurors not to start off with a verdict polling could have such dramatic effects on group cohesion.

Not surprisingly, the story of “the Holdout” becomes less compelling when it is framed as one stubborn goat who can’t concede to a verdict that everyone else has agreed on.  With apologies to all you “rebels” out there, research shows that a group of people is often better at decision-making than an individual.  Blinder and Morgan demonstrated this in Are Two Heads Better Than One?  For every Einstein or Copernicus out there who is ready to prove us wrong and shift our paradigm, there are a thousand crazies who are adamant that aluminum foil is the best defense against mind control. (Everyone knows this is an urban legend, anything less than a titanium alloy is useless.)

The research suggests that holdouts typically thrive in confusion.  However, these obstinate individuals are made far less powerful when a case presentation is able to arm more rational jurors with the themes necessary for a fruitful deliberation.   

In the next installment, I will examine the mind of the holdout and methods of spotting them.

Blogger: Matt McCusker

PART 1: HOW THE FRENCH’S SHOCKING BEHAVIOR RELATES TO JURY DYNAMICS

Wisconsin, Where Juries Matter

I often find myself writing about cases where jury trials were messed up, from badly to horribly, and appellate courts forgave -- or didn't see -- the problem. 

"This case must be retried on facts"

There's been a run of exceptions lately, though, right in Deliberations's backyard.  In the last several weeks, different Wisconsin appellate panels have looked at trials where criminal juries saw or heard something they shouldn't have.  In each case, the courts reversed the convictions with striking firmness and clarity.  Examples:

State v. Stanley on December 12, a drunk driving case where the deliberating jury asked whether it was still "operating" if the defendant got into a car when the motor was already running.  Quoting a prior case, State v. Proegler, the trial court told them that "operation" meant “either when a defendant starts the motor and/or leaves it running.”  The court of appeals said that facts mattered, and that Mr. Proegler in the prior case had admittedly driven to the place where police found him.  Stanley's case was different:  "We do not read the statute or the Proegler case to include as operators passengers who slide into the driver’s seat of a running vehicle and fall asleep."

State v. Champlain on December 5, where the defendant had to sit through trial -- and write notes to his lawyer -- wearing a visible "armband taser device."  The court held that it was not only ineffective assistance for his lawyer not to object, but that the trial court should have determined whether the armband was necessary even without an objection. 

State v. Cooper on December 4, where the state used a "show-up" identification that should have been suppressed under the Wisconsin Supreme Court's 2005 State v. Dubose case.  Dubose was decided after Cooper's trial judge had ruled that the identification would be admitted, but before Cooper's trial.  The court of appeals held that Cooper's counsel was ineffective for not asking for reconsideration of that ruling after Dubose came down, and that anyway the trial court should have granted postconviction motions based on Dubose. 

State v. Burton on October 31, where a police "gang expert" testified for the state.  The court of appeals was mad: 

The expert's testimony insinuated, without any basis, that Burton was a part of the gang culture, if not actually a member of a gang. It recast the case as being about gang retaliation or gang culture, anathema to the reasonable citizen, when there was no evidence that the shootings were gang crimes. Not only that, the testimony also purported to explain away the inconsistencies of witnesses simply because gangs infested the neighborhood in which the witnesses lived. If this had any probative value, which we doubt, it was far outweighed by prejudice. Ascribing the purported motivations or truth-telling tendencies of an entire neighborhood to one of its residents is not an acceptable form of impeachment. This case must be retried based on facts, rather than insinuation or stereotyping.

Another court in another state -- or here, on another day -- might have steered these cases toward a finding of harmless error, waiver, or some other way to salvage the trial, citing the burden on society when trials have to be done twice.  There's a place for those arguments sometimes, but they're overused.  I can personally report that life is going on as usual in Wisconsin even though these trials will be repeated.  And a different burden on society -- the one we bear when nobody cares what juries see and hear -- is lifted.

(Photo of a Wisconsin field after this week's snows by Cathy Stanley-Ericksen at http://www.flickr.com/photos/madcitycat/2110974734/; license details there.)

How Do You Say Fifth Amendment?

A single word can make a big difference, especially when the word is the main noun in a critical jury instruction.  This week Mark Bennett began and Jamie Spencer continued a conversation about the pattern instruction Texas judges give when a defendant does not testify.  The Texas instruction is: 

You are instructed that our law provides that the failure of the defendant to testify shall not be taken as a circumstance against him, and during your deliberations you must not allude to, comment on, or discuss the failure of the defendant to testify in this cause, nor will you refer to or discuss any matter not before you in evidence. 

Mark says, what failure?  "How is it even conceivable that we should allow a court, when talking to jurors, to describe a defendant's election not to testify -- the exercise of one of the rights that we, as defenders, hold sacred -- as a 'failure'?"  Jamie asks what other states do:  "Any of you out of staters have better jury instructions for this?"  The comments to Mark's post offer variations used in a few other states.

"The absolute constitutional right not to testify."

Wisconsin's pattern instruction is more neutral than the one in Texas.  It says:

A defendant in a criminal case has the absolute constitutional right not to testify.

The defendant's decision not to testify must not be considered by you in any way and must not influence your verdict in any manner.

The Seventh Circuit's pattern, 3.01, is similar:

The [A] defendant has an absolute right not to testify. The fact that the [a] defendant did not testify should not be considered by you in any way in arriving at your verdict.

You'd like to see something in there about why the right is in the Constitution and why we hold it sacred, but of course defense lawyers are free to argue that. 

Does it make a difference, that little word "failure"?  I don't know of specific research.  But if the human mind is so susceptible to vocabulary that simply hearing words like Florida, gray, wrinkle, lonely, and bingo can make us suddenly feel so old that we walk more slowly than normal, you can't rule it out. 

(Photo by Näystin at http://flickr.com/photos/naystin/513110523/; license details there.)

The Details Of Unanimity: Classroom And Courtroom

Does your jury have to be unanimous?  It sounds like an simple question if you know what kind of case it is, in what court.  But it isn't simple.  A University of Michigan scholar and the New Jersey Supreme Court are among the latest to tackle what unanimity really means.

Is it A, B, or C?

The trick is, unanimous about what?  What if jurors agree, for example, that a crime was committed, but not on how it was done?  Michigan's Peter Westen and Boalt Hall law student Eric Ow lay out one version of the problem in logic terms in their new paper, "Reaching Agreement On When Jurors Must Agree," in the spring 2007 issue of the New Criminal Law Review and on SSRN here:

[I]t often arises under statutes that make it an offense to commit one or another of various acts, say, acts A, B, and/or C, thereby leading to evidence at trial that a defendant committed one act or another or even all of them. Depending upon how jurors assess the evidence, it can happen that one-third of the jurors find that the defendant committed act A and not either B or C, that one-third finds that he committed act B and not either A or C, and that one-third finds that he committed act C and not either A or B. The constitutional question is whether the Fifth, Sixth and/or Fourteenth Amendments permit a defendant to be found guilty when, although every juror agrees that he used one of the various means, and although every juror may have a view as to which means he used, a majority of jurors do not agree upon which means it was.

The Supreme Court has struggled (in Schad v. Arizona and Richardson v. United States) to articulate a rule for unanimity in these situations, Westen and Ow explain.  In fact, they argue, the problem is easier than the Court makes it look.    If you shift your attention from broad rules to the facts of the case, they contend -- in constitutional terms, from the right to trial by jury to the reasonable doubt standard -- the problem sorts itself out:

[T]he issue of juror concurrence is about the integrity of juror judgments in the aggregate.  The issue arises whenever juror judgments of guilt in the aggregate leave a reasonable doubt as to whether a defendant did in fact do what a statute prohibits. Aggregate juror judgments of guilt leave a reasonable doubt as to whether a defendant did in fact do what a statute prohibits whenever:

1. there is evidence at trial of two or more alternative ways in which the defendant might in fact have done what a statute prohibits, say, factual alternative A and factual alternative B;
2. the jurors, for all that is known, may have divided fifty-fifty on whether the defendant did A or whether he did B, thereby leaving each juror with a counterpart juror who denies the truth of the factual finding (whether it is A or B) on which the first juror rests his judgment; and
3. each juror is convinced that, if his counterpart is correct in denying that the defendant employed the means that the juror believed the defendant used, then the defendant did not commit the offense at all.

The paper is elegantly written and full of fact scenarios with names like "Rare Map" and "John Hancock's Watch" that make the logic much easier to follow and make the whole thing read like a game of "Clue."

Unanimity in reverse:  how many jurors must agree on mitigating factors?

Yesterday in a case called State v. Jimenez, the New Jersey Supreme Court tackled the flip side of this problem:  not how the jurors must agree to convict a defendant, but how they must agree not to sentence him to death. 

After the U.S. Supreme Court ruled in 2001 that states could not execute the mentally retarded, state courts had to figure out how to change their rules to make it so.  In an earlier appeal of Mr. Jimenez's case, New Jersey held that mental retardation was something the defendant had to prove, not something the prosecution had to disprove. 

But prove to how many jurors' satisfaction?  The earlier case didn't say, so the case went up again.  The answer, said the court yesterday, flows from the U.S. Supreme Court's Mills v. Maryland holding that jurors don't have to agree on mitigating factors in death cases.  (If they did, you could end up with jurors who all agreed the defendant should not die, but he would die anyway because they disagreed on why he shouldn't.)  Mental retardation is a "conclusive mitigating factor," the New Jersey court said, meaning it's enough by itself to bar execution.  So if even one juror is satisfied the defendant is mentally retarded, that's enough to save his life.

_________________

Organizational note:  I'm starting a "death penalty" category for past and future posts on that topic.  I hope it's helpful.

(Photo by Kirsty Andrews at http://www.flickr.com/photos/sleep_guitarist/292992375/; license details there)

State Jury Trials: Your Questions Answered

The National Center For State Courts, the people who bring you the spirited weekly newsletter Jur-E Bulletin, were already making vast quantities of solid information about trials and juries available on the Internet -- so the generosity of their latest project isn't surprising. 

The “State-of-the-States Survey of Jury Improvement Efforts," summarized in a press release last week, "is the most comprehensive study of jury policies, operations and practices ever conducted."  The 84-page paper synthesizes three separate efforts: 

• "Documenting jury improvement efforts and the legal infrastructure for jury operations and practices on statewide basis for all 50 states and the District of Columbia;
• "Surveying 1,396 state trial courts about the terms and conditions of jury service in those localities; and 
• "Compiling trial reports submitted by judges and lawyers describing the practices employed in nearly 12,000 jury trials conducted in state and federal courts between 2002 and 2006."

One aspect of the study, its comparison of how long voir dire takes in each of the 50 states, was widely picked up in the press -- especially in the slowest state, Connecticut.  There, individual sequestered voir dire is a constitutional mandate, and so the process takes a median 16 hours, four times as long as runner-up California.  (South Carolina gets it done in half an hour.) 

You've got questions . . .

You can do far more with this study, though, than settle your next bar bet on the land speed record for voir dire.  Any time you are approaching trial in a new jurisdiction, and any time you want to suggest that a judge consider changing a familiar jury practice, this is the place to start. 

Which courts let jurors take notes?  Which ones give them notepads so they can?  (You'd think those questions would have the same answer, but they don't.)  Where do jurors get to ask questions?  Where do lawyers get information about jurors ahead of time?  Which courts give jurors copies of the written instructions?  Which ones read them the instructions before closing?  Which jury practices appear to affect deliberation time? 

If you have a question about local jury practices, it is almost certainly answered here.

(Photo by Tom at http://www.flickr.com/photos/tom1231/254465359/; license details there.)

Give Me Clarity Or Give Me Death

Researchers know that jurors display "high confusion" when they try to read death penalty instructions, and that attempts to write the instructions more clearly don't help. 

If you've ever wondered why juries find death penalty instructions so hard, the Supreme Court's three death penalty opinions yesterday should set you straight.  (SCOTUSblog has links to all three opinions here, and analysis here.)  It turns out the Supreme Court has no idea what the law is either.

It's clear

The main opinion is Abdul-Kabir v. Quarterman.  Justice Stevens's majority opinion reviews the Court's prior cases and concludes that they impose a clear rule.  Under that rule, Justice Stevens says, a Texas trial court was clearly required to instruct the jurors that they could consider mitigating factors before deciding on a death sentence, and the Fifth Circuit was clearly required to overturn the sentence on that ground.   

It's unclear

The opinion that's being quoted everywhere, though, is Chief Justice Roberts's dissent.  He argues that the law isn't clear, it's a mess -- in fact, a "dog's breakfast":

We give ourselves far too much credit in claiming that our sharply divided, ebbing and flowing decisions in this area gave rise to "clearly established" federal law. If the law were indeed clearly established by our decisions "as of the time of the relevant state-court decision," Williams v. Taylor, 529 U. S. 362, 412 (2000), it should not take the Court more than a dozen pages of close analysis of plurality, concurring, and even dissenting opinions to explain what that "clearly established" law was. Ante, at 10-24. When the state courts considered these cases, our precedents did not provide them with "clearly established" law, but instead a dog's breakfast of divided, conflicting, and ever-changing analyses. That is how the Justices on this Court viewed the matter, as they shifted from being in the majority, plurality, concurrence, or dissent from case to case, repeatedly lamenting the failure of their colleagues to follow a consistent path.

Commentators are chiming in to vote on who's right:  the law is clear here, a disaster there.  Meanwhile, two things are resonating with me.  First, it's a lot to ask twelve jurors to unanimously apply death penalty law when nine Supreme Court justices cannot.  But we knew that. 

More troubling is what the Chief Justice's dissent comes down to.  The Court's jurisprudence is a mess, he tells us . . . and so the defendant should die.  I'm not sure I'd give that analysis to my dog.

(Photo by James and Lori at http://www.flickr.com/photos/jnl/48331634/; license details there.)

The Shocking Case Of The Jurors Who Compromised

The jurors found zero dollars in lost sales or lost good will, but they decided to award attorney fees.  To calculate attorney fees, they each estimated what they thought the plaintiffs had spent based on their own experience, and they averaged the number to reach a verdict of $19,250,000. 

So sayeth the three jurors who filed affidavits after last month's big verdict for Procter & Gamble against Amway distributors who spread a rumor that P&G's logo was a satanic symbol. 

The affidavits are attached to the defendants' brief asking for an "immediate inquiry into possible jury misconduct."  The jurors shouldn't have awarded attorney fees, the defendants argue, and they shouldn't have averaged their individual damage figures -- an impermissible "quotient verdict" -- for any purpose.  Law.com picked up the story, including the defendants' allegation (unsupported by the affidavits so far as I can tell) that the jurors had counted the lawyers at counsel table in calculating fees. 

Since it came out, I've heard skilled lawyers talking about the case as an example of the jury system gone wrong.  To me it's a better example of how thoroughly lawyers forget how our brains used to work before we were lawyers.

Quotient verdicts happen

If you've seen ten mock juries deliberate, I bet you've seen some form of a quotient or compromise verdict.  Why do they do it?  Why wouldn't they? 

Think about it.  Outside the courtroom, we use "quotient verdicts" every day.  When you split the difference with the used car salesman to reach a price, you've averaged your two positions to get a fair result -- a quotient verdict.  Every "split the difference" settlement agreement is a quotient verdict.  When your kid wants to stay up 20 more minutes, you start at five, and you end up at twelve and a half, you've reached a quotient verdict.  We've been taught since childhood that finding a midpoint among different positions is a fair and honorable way to reach agreement.

When the Procter & Gamble jurors got to court, nobody told them the rules had changed.  The jury instructions contain the following familiar (to us) substantive information on how to reach a verdict:

The verdict must represent the collective judgment of the jury.  In order to return a verdict, it is necessary that each juror agree to it.  Your verdict must be unanimous.

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment.  Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors.  In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous.  But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors for the mere purpose of returning a unanimous verdict.

You and I read that instruction as prohibiting averaging, majority votes, and so on.  But it doesn't say that.  A smart, honest juror could easily decide that a time-honored consensus tool like averaging is a fair way to get unanimous agreement "without violence to individual judgment."

Attorney fees are "out of pocket costs," aren't they?

The same is true with attorney fees as damages.  Trial lawyers know how many clients, even sophisticated business clients, think there must be a rule that the winning party in a trial gets its fees paid.  Why wouldn't jurors believe that too?  The Procter & Gamble jurors got two instructions telling them how to calculate damages, of which the entire substantive portion is:

Damages means the amount of money which will reasonably and fairly compensate Procter & Gamble for any losses you find were caused by the Defendants' false message.  You should consider the following:

1. The loss of Procter & Gamble's goodwill, including injury to its general business reputation:
2. The lost profits that Procter & Gamble would have earned if the Defendants had not sent the false message.  Lost profits are determined by estimating the amount of product sales that were lost and subtracting the amount of money that would have been spent making and selling the product;
3. The expenses of attempting to prevent customers from being deceived;
4. The cost of advertising or communications to consumers to correct confusion caused by the false representations;
5. The amount of its out-of-pocket expenses incurred to correct the Defendants’ false statements; and
6. Any other factors that bear on Procter & Gamble’s actual damages.

* * * *

Any damages you award must have a reasonable basis in the evidence.  In determining damages, the difficulty or uncertainty in ascertaining or measuring the precise amount of any damages does not preclude recovery, and the jury should use its best judgment in determining the amount of such damages, if any, based upon the evidence.  You may not, however, determine damages by speculation or conjecture.

That doesn't say they can't award attorney fees; in fact, it specifically tells them to award the "out-of-pocket expenses incurred to correct the Defendants’ false statements."  And as for relying on their own experience to gauge hourly rates, the instructions said:

You are to consider only the evidence in the case.  But in your consideration of the evidence you are not limited to what you see and hear as the witnesses testify.  You are permitted to draw, from the facts you find have been proved, such reasonable inferences as seem justified in light of your experience.

Inferences are deductions or conclusions which reason and common sense lead the jury to draw from facts which have been established by the evidence in the case.

Take it to the street

If you don't believe me, try it yourself.  Read those instructions, without emphasis, to any ten smart nonlawyers.  Tell them P&G didn't prove lost sales, but that the defendants did spread the rumor, and P&G had been litigating this case for more than a decade in its claimed effort to set the record straight.  Give your jurors copies of the instructions, and if they have questions, tell them they need to look at the instructions again.  (If you want to add extra realism, wait a couple of hours before you tell them.)  I'm guessing you'll find at least three who think they can award attorney fees, rely on their own experience to do it, and average their views on what a fair award should be.

There was a curse in the Utah Procter/Amway case, and it wasn't satanic; it was the Curse of Knowledge.  To lawyers and judges, it's obvious that attorney fees aren't usually part of damages, that jurors' own experiences with attorney charges aren't evidence, and that jurors aren't supposed to average verdicts.  It's so obvious that we forget to tell the jury.

____________

Related notes:

1. In 1997 the New York Times ran a good history of the P&G/Amway satanic rumor saga, two decades old even then.  It's subscription only.
2. For an overview of the legal landscape faced by the defendants in this motion, a New York University Law Review note by Benjamin Huebner is a great start.  In a nutshell, Federal Rule of Evidence 606 restricts the use of juror affidavits to challenge verdicts except as to "(1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form."  In 1987, the Supreme Court held in Tanner v. United States that a predecessor rule kept juror affidavits out when they merely impugned juror conduct, even when that conduct extended to the outright bacchanalia described in the affidavits in that case.   

(Photo by Stephanie D. at http://www.flickr.com/photos/strph/127760644/; license details there.)

 

Philip Morris and Practical Problem-Solving

I talked yesterday about jurors and numeracy, and a little on Monday about jurors and literacy.  Today, I had intended to fill out the list and look at problem-solving skills.  What I didn't know was that the Supreme Court would choose yesterday to give jurors a new problem to solve.

The 2003 study I've been discussing this week, by the Organisation for Economic Co-Operation and Development, measured not only literacy and numeracy, but also problem-solving ability.  The researchers didn't ask the problem-solving questions in the United States, but they asked them in five other countries that scored both above and below the U.S. on the other measures.  From almost a quarter of adults in Norway to two thirds in Italy, large proportions of adults in all five countries could make no more than "simple inferences, based on limited information stemming from a familiar context."

That statistic was still in my mind when I read Philip Morris USA v. Williams, issued yesterday.  Philip Morris creates a new rule:  juries may not use punitive damages to punish defendants for harm they have caused to persons who are not parties in the case.  Juries may, however, consider evidence of harm to third parties in deciding whether the defendant's conduct was reprehensible enough to deserve higher punitive damages.  When I start using that many italics, I know I'm not being clear, so here are the Court's words:

Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible . . . Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties. 

The Oregon Supreme Court had struggled with this distinction, saying, "It is unclear to us how a jury could 'consider' harm to others, yet withhold that consideration from the punishment calculus."  Indeed, said the Supreme Court yesterday, that point

raises a practical problem.  How can we know whether a jury, in taking account of harm caused others under the rubric of reprehensibility, also seeks to punish the defendant for having caused injury to others?  Our answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring.  In particular, we believe that where the risk of that misunderstanding is a significant one -- because, for instance, of the sort of evidence that was introduced at trial orthe kinds of argument the plaintiff made to the jury -- a court, upon request, must protect against that risk.

Yes, it's a practical problem.  The list of American adults who are going to have trouble drawing the line between reprehensibility and direct punishment begins with Justice Stevens, who I'm guessing would have scored fairly high in the OECD problem-solving study.  He wrote in dissent:

This nuance eludes me.  When a jury increases a punitive damages award because injuries to third parties enhanced the reprehensibility of the defendant's conduct, the jury is by definition punishing the defendant -- directly -- for third-party harm.

The list goes on to include the Oregon Supreme Court majority.  Many jurors will miss the distinction as well.  Whatever your take on Philip Morris as constitutional analysis, explaining its rule to jurors will take all the problem-solving skills you have.