Deliberations

"Jury Management For The 21st Century," New From The NCSC

Judge Gregory Mize has contributed so much to this blog already -- but look what he's sending now.  He wrote the rest of this post, and the new site he's announcing is really impressive.  It's not just for judges, either.   Any place your judge might go for jury guidance is a place you want to go too.

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The National Center for State Courts has just published several model judicial educational curricula focusing on two important components of jury trials: jury selection and jury deliberations. This education series, entitled "Jury Management for the 21^st Century," provides courts and judicial educators with a wide variety of teaching modules that can be flexibly arranged into programs that span one hour, a half-day, or more.

The "Managing Jury Selection Effectively" curriculum contains six, 60- or 90-minute modules: (1) "Obtaining Crucial Information from Prospective Jurors," (2) "Ruling on For-Cause and Peremptory Challenges," (3) "Judge & Lawyer Collaboration during Jury Selection," (4) "Respecting Juror Privacy & More during Jury Selection," (5) "Time Management," and (6) "Promoting Judge-as-Educator during Jury Selection."

The "Helping Troubled Deliberating Juries" set of courses contains five, one-hour modules: (1) "Improving the Deliberative Process," (2) "Helping Jurors Overcome Jargon," (3) "Responding to Deliberating Juries Having Questions or Reporting an Impasse," (4) "Responding to Misconduct/Mishaps in Deliberations," and (5) "Respecting Juror Privacy & Responding to Their Stress."

Thanks to a grant from the State Justice Institute and the International Academy of Trial Lawyers Foundation, the curricula are available without cost at http://www.icmelearning.com/jtm/. There, you will see that each module provides users with not only with detailed learning activities but also accompanying PowerPoint slides and extensive reference resources such as the A.B.A. Principles for Juries & Jury Trials.

To support the curriculum, NCSC and our project partner the National Judicial College will endeavor to maintain a rolling roster of experienced jurists, empirical researchers, respected veteran trial lawyers, trial consultants, and articulate former jurors who are willing to serve as faculty for programs that utilize this curriculum. It is envisioned that these faculty members would complement faculty based in the host jurisdiction -- together constituting a talented orchestra ready to present information-rich and locally relevant programming.

In addition to the weblink shown above, a limited number of CDs containing the entire curriculum is also available through my NCSC office. I hope the judicial members [editor's note: and nonjudicial as well] of the "Deliberations" community will make good use of this educational tool.

A Good Juror Story

The news is full of "bad juror" stories.  It's not that there are so many of them; but when they do come up, they bounce all over the media.  The bored juror who went AWOL in Oregon last month hit the ABA Journal on May 20, and was still making headlines in England on Friday.  Just in the last few days we've had stories of a female juror who rekindled a relationship with the defendant's son during the trial; Al Roker in trouble for posting jury duty updates (including pictures of his fellow prospective jurors) on Twitter; and a California juror who swore she didn't talk to the defendant's sister during trial, while defense counsel says they have a tape that proves she did. 

I admit I can get sappy about juries sometimes, but somebody has to tell the much more common good stories once in awhile.  Here's one, sent to me by Milwaukee County Circuit Court Judge John DiMotto, a friend and sometimes commenter on this blog.  Judge DiMotto sent this E-mail he got from Milwaukee juror Jim Wied.  "I think he is typical of a lot of people who are called" to jury duty, Judge DiMotto told me -- "not looking forward to it but [coming] away with positive feelings."  Mr. Wied had written:

Last week I was one of the jurors in the [I've omitted the name] trial. I just wanted to say I appreciated the detailed information you provided to the jurors on the trial process . This was my first time selected for a trial and I was uncertain what to expect. All juror members expressed a similar appreciation regarding how the case was handled and your willingness to take the time to explain the seven steps involved in a trial.

I have to admit when I reported for jury duty, due to my work responsibilities, I was initially hoping not to be selected for a trial . After last week's trial I came away feeling this was a positive experience. My attitude, should I be called for jury duty again, would be a willingness to serve rather than as an interruption in my life. Your comments on the role of jurors, patience in answering questions and concern that jurors feel comfortable with their responsibilities are obviously the reasons for this change.

Thanks for making this a meaningful experience.

For lawyers and judges, the most important part of Mr. Wied's message is the active verb in the last sentence.  Lawyers and judges have the power to make jury duty meaningful or not -- by explaining what's going on, by showing our own respect for the jury system, by remembering how much context we need to provide.  Often, the difference between an engaged and involved juror and a bored and cynical one isn't the juror; it's us.  

Thanks to Mr. Wied for permission to use his words here.

(Image posted by Playingwithbrushes at http://www.flickr.com/photos/playingwithpsp/2561003841/; license details there.)

Count 'Em

Sometimes it's the most basic things that matter.  In college I was a lifeguard at a Girl Scout camp, and it turned out the most important skill wasn't saving swimmers; it was counting them.  If you started with eleven red caps, you needed eleven red caps at all points during the swimming period, and most importantly, eleven red caps when they came out. 

Likewise in trial, you can prepare the most thoughtful and probing voir dire anyone has ever done -- and it's a waste of time if nobody counts the jurors. 

Ten, eleven, twelve, . . .

It doesn't happen often, but it happened today in Houston.  When the jurors came back with their verdict -- we don't know what verdict -- in Charles Mapps' murder trial, someone realized far too late that there were thirteen people in the group.  An alternate had been allowed to deliberate.  That won't seem like a big deal to a lot of people, but the fact is Mapps wasn't tried by a jury; he was tried by a jury plus one extra person who wasn't a juror, as surely as if any other spectator had wandered into the jury room and joined the group. 

It sounds like they're blaming the bailiff for the mistake, saying the bailiff told the juror she couldn't leave until she signed some paperwork.  I don't know the details, but typically, there'd be a little more blame to go around.  Unless there's something really unusual about the courtroom, anyone could have counted those jurors, or kept an eye on that alternate to be sure she went out the right door.  The best-case scenario now for the prosecution is that Mapps' murdered girlfriend's stricken family members have to testify again. 

There are so many moving parts in a trial, and it's not easy to keep an eye on everything -- especially the things you'd never imagine could go wrong.  In the end, though, you've got to have eleven red caps.

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Have you seen trials where the basics went wrong?  TypePad has a cool new comments interface; try it out and let me know what you think.

Related posts here:

• The Stars Come Out In Voir Dire
• Juror Dismissed.  Quick, Now What?

(Photo by wilhei55 at http://www.flickr.com/photos/wilhei/109404107/; license details there.)

Principle v. Practice: A Judge's Challenge To Improve Voir Dire

What do judges talk about when they talk about voir dire?  Judge Gregory Mize is gently challenging his colleagues to make voir dire better, by comparing a new set of inspiring goals to new data documenting a less inspiring reality.

 

If there were a blog devoted entirely to Judge Mize's work to improve the jury system, that blog would have plenty to talk about.  Judge Mize guest posted here about his trip to Russia for the first-ever "juror's summit" there.  In trials in his own courtroom, he asked jurors who had been silent through voir dire to speak up --resulting in eye-opening papers I wrote about here.  ("I'm the defendant's fiancee," one juror said.)

 

Judge Mize is retired from the Superior Court of the District of Columbia. He is currently a judicial fellow at the National Center for State Courts, where he is guiding NCSC’s National Jury Program. Now, with the NCSC's respected Center for Jury Studies director Paula Hannaford-Agor, he has written another paper.  This time they're talking to judges, in the ABA's Judges' Journal , and the article is "Building A Better Voir Dire."  (You can't get into Judges' Journal unless you're in the Judicial Division of the ABA, but Judge Mize and the Journal have both kindly agreed to let me post a copy here, all rights reserved.)

 

Telling the truth

 

How do you inspire reluctant judges to improve voir dire?  With quiet candor.  First, let's be clear about the problem:  judges and lawyers have different interests.

 

The parties and their lawyers want to learn as much as possible about the attitudes and life experiences of each venire member to know who they want to keep out of the jury box. But at times, lawyers obtain so little information that jury selection becomes a hunch game.

 

The trial judge, with dozens—or hundreds—of like-kind cases on his or her docket, wants to administer justice in a timely and efficient manner so that other cases can be given prompt attention. Speed can be a top goal for some judges. Others, however, share the lawyers' thirst for juror information in order to rule intelligently on motions to strike for cause. . . .

 

These competing professional interests are seldom resolved to anyone's satisfaction.

 

But there are, these authors say, two resources that let judges compare ideals to reality, and use the gap between them to improve.  Both tools are fairly new, and Judge Mize and the NCSC had a hand in both.  

 

Principles . . .

 

The first is the ABA's American Jury Project, "an intense effort to inspire judges and lawyers to improve jury trial practices."  Judge Mize was part of it, together with Ms. Hannaford-Agor's NCSC colleague Tom Munsterman.  "After twelve months of intensive work," say Judge Mize and Ms. Hannaford-Agor, "the group, composed of trial practitioners, judges, and jury experts from across the country, produced the ABA Principles for Juries and JuryTrials."   The central tenet on the quality of voir dire is Principle 11: "Courts should ensure that the process used to empanel jurors effectively serves the goal of assembling a fair and impartial jury."

 

What does that mean?  The Principles suggest it means a lot of things.  Like jury questionnaires in regular use.  On-the-record voir dire.  "Appropriate demographic data." Simply letting lawyers ask questions, "recognizing the special knowledge that each attorney possesses regarding case-presentation strategy and the characteristics of their witnesses."  (Judge Mize and Ms. Hannaford-Agor note that "empirical research has repeatedly documented that prospective jurors tend to respond more candidly to questions posed by attorneys than those posed by judges."  In many courts, including federal court here in Wisconsin, it's almost never done.) 

 

Most important, perhaps, this goal means that judges should stop working so hard to keep possibly biased jurors on the panel:  "[Principle 11] supports a low-threshold standard for court rulings on for-cause motions by stating that '[i]n ruling on a challenge for cause,the court should evaluate the juror's demeanor and substantive responses to questions. If the court determines that there is a reasonable doubt that the juror can be fair and impartial,then the court should excuse him or her from the trial.'"

 

. . . in practice?

 

The second tool is the NCSC's massive "State-of-the-States Survey," which Judge Mize and Ms. Hannaford-Agor helped author and which I've written about here.  This national study "provided the first comprehensive snapshots of jury procedures, operations, and practices in state and local courts," they now write, and "like box scores in the sports pages, presents several undeniables." Again, they're gentle but blunt:

 

The information-promoting techniques recommended in Principle 11—use of questionnaires and individualized questioning of prospective jurors—are hardly ever employed.

 

This article isn't a lecture, it's a set of questions.  "Might the ABA's adoption of the principles provide an opportunity for judges and lawyers to begin discussing what a more mutually desirable voir dire could look like? Is there likely agreement among bench and bar in one's home jurisdiction that the 'system' would be better served if we worked together to attain greater juror candor in cases?"  Many more questions follow, and the authors conclude:  "In this matter, you are the jury, and it may be time to render some verdicts."

 

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Related posts here:

•  When Judges Lead Jurors In Voir Dire
• "Your Honor, I Move To Strike Your Mother For Cause"
• Judge Posner And The Jury Trial

 

"Building a Better Voir Dire" was published in The Judges’ Journal, Volume 47, Number 1, Winter 2008. © 2008 by the ABA, Judge Mize, and Ms. Hannaford-Agor, reproduced with their kind permission.

 

(Photo by Shadowgate at http://www.flickr.com/photos/shadowgate/1231138267/; license details there.)

How To Popularize Jury Duty In One Easy Step

Let's say you want to make as many Americans as possible use the phrase "jury duty" in a sentence on the same day.  Do you:

1.  Issue a colorful new jury duty postage stamp, with ceremony and fanfare?

2.  Introduce a bill that would exempt nursing mothers from jury duty, causing the world to wonder why they were ever required to go in the first place?

3.  Release a major poll on Americans' attitudes toward jury duty?

or

4.  Subpoena Madonna for jury duty, and time it so that she'll show up only a few hours after her Academy Awards party breaks up, looking fabulous in "dark brown velour Juicy Couture sweatsuit, sunglasses, tennis shoes and an oh-so-glam Juror badge."  (That's from breathless TMZ on the scene.)

It's #4, of course.  I'm not sure why we're so fascinated with celebrity jury duty; it must be because it's a moment when the stars' lives are a little like ours.  My feed reader includes a standing search for "jury duty," and when Madonna or Jennifer Lopez or Brad Pitt or Jimmy Johnson or even NASCAR driver Jamie McMurray go to court, I'm flooded with stories. 

Maybe there's an angle here for courts dealing with reluctant jurors.  I wonder how many celebrity jurors we would need before people lined up outside the courthouse asking to be allowed to serve.

(Photo by Philipp Naderer at http://www.flickr.com/photos/triotex/426476914/; license details there.)

Here's How To Pick Alternates . . . Next Time

A Seventh Circuit opinion today requires a quick break from Deliberations's holiday break.  United States v. Mendoza instructs trial courts in the Seventh Circuit on how to, and how not to, select alternate jurors in criminal trials. 

Alternates at random

In Mr. Mendoza's drug trial in Indiana federal court, the trial judge selected alternates in a way that will sound familiar, at least to lawyers who try civil cases:  the whole group (sixteen, in this case) heard the evidence, and then alternates were selected at random and sent home.  In Mendoza's trial, the only Hispanic juror turned out to be one of the four alternates, and Mendoza challenged this result and the whole idea of selecting alternates by drawing straws after the evidence is in.

Judge Rovner, writing for herself and Judges Kanne and Posner (both of whom have expressed strong views about jury management, see here and here), declared the random method to be error -- harmless error here, but error just the same, and not to be repeated.  The opinion starts with Federal Rule of Criminal Procedure 24(c), which provides:

(c) Alternate Jurors.

(1) In General. The court may impanel up to 6 alternate jurors to replace any jurors who are unable to perform or who are disqualified from performing their duties.

(2) Procedure.

(A) Alternate jurors must have the same qualifications and be selected and sworn in the same manner as any other juror.

(B) Alternate jurors replace jurors in the same sequence in which the alternates were selected. An alternate juror who replaces a juror has the same authority as the other jurors.

"We now request that the district court discontinue its current practice"

Since this is a holiday break post, I'll spare you analysis.  Here's how the opinion goes on from there:

We have said that Rule 24(c) contemplates selection of alternates “either by the jury-box system or by a struck-jury method in which defendants know the sequence in which members of the pool will be seated.” United States v. Patterson, 215 F.3d 776, 780 (7th Cir. 2000), vacated on other grounds, 531 U.S. 1033 (2000). Rather than seating the jury and alternates separately, the district court seated 16 tentative jurors with the intention of randomly naming four of them as alternates just prior to deliberations. There may well be benefits to selecting a jury in this manner. For example, all 16 tentative jurors may be more likely to devote their full attention to the evidence presented given the likelihood that they will not be selected as an alternate. If an alternate replaces a juror during deliberations, the collective knowledge of the newly constituted jury would be less likely to suffer.

But this is not the procedure prescribed by Rule 24, nor is this a matter entrusted to the sound discretion of the district  court. See United States v. Delgado, 350 F.3d 520, 524 (6th Cir. 2003) (noting compliance with Rule 24 is exception to district court discretion in jury selection). Rule 24 assumes alternates will be selected separately and sequentially prior to the presentation of evidence and provides for additional peremptory challenges for the parties to use specifically against potential alternates. By delaying the identification of the alternates until after the parties presented evidence, the district court erred. See Delgado, 350 F.3d at 525; United States v. Sogomonian, 247 F.3d 348, 352-53 (2d Cir. 2001); United States v. Brewer, 199 F.3d 1283, 1287 (11th Cir. 2000); United States v. Love, 134 F.3d 595, 601 (4th Cir. 1998); United States v. Olano, 62 F.3d 1180, 1190 n.3 (9th Cir. 1995). As a result, Mendoza was unable to exercise peremptory challenges specifically against alternate jurors. See Fed. R. Crim. P. 24(c)(4). Notwithstanding the logic of this practice and its vintage in the district court, we must join with our sister circuits in “encouraging strict adherence” to the rule, and we now request that the district court discontinue its current practice. Delgado, 350 F.3d at 525; Love, 134 F.3d at 601 (quoting United States v. Sivils, 960 F.2d 587, 594 (6th Cir. 1992)). 

(Photo by Luke at http://www.flickr.com/photos/lucianvenutian/1263540856/; license details there.)

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.)

Judge Posner And The Jury Trial

There's no judge quite like the Seventh Circuit's Richard Posner.  Very few judges have a Facebook fan club, for example ("Richard Posner for Philosopher King," they call themselves; Judge Alex Kozinski has a fan club there too).  Judge Posner's opinions have their own searchable database, Project Posner.  Last December he appeared for an interview and book-"signing" on Second Life.  And of course he's a blogger, co-author of the wide-ranging Becker-Posner Blog. 

He's fascinating partly because his interests are so broad, and he pursues them so far.  He's written dozens of books on what seem like dozens of topics, from the groundbreaking Economic Analysis of Law to Sex and Reason and this year's The Little Book of Plagiarism.

He's interested in jury trials, too.  Although he was never a trial judge, he has presided by designation over "15 or so" trials, and told the Chicago Tribune, "I think I've learned a lot."  Last December, the article recounts, he dismissed an entire jury panel when he decided it was likely that one juror had talked inappropriately with the others.

"Why do you want to call this witness?"

When Judge Posner discusses jury management in his appellate opinions, it's with realism and flexibility.  The last few months include two examples.  In October, Judge Posner dissented with Judges Kanne and Williams from the court's decision to deny en banc review to former Governor George Ryan and his associate, whose crazy trial went six months including a five-day hiatus while the jurors themselves were under criminal investigation.  Their joint dissent is a short handbook of jury management in long trials. 

[F]ederal trial judges (bankruptcy judges and magistrate judges as well as district judges) recognize and discharge a duty of active trial management. (So much for the umpireal analogy.) They do not defer abjectly to the lawyers’ preferences regarding length of trial, number of exhibits, wording of instructions, and so forth. They often override the strong preferences of the lawyers on both sides regarding such matters. They are not umpires when it comes to management of the trial; they are directors of the drama that we call trial by jury. (Trials are closer to theater than they are to ball games.)

Trial judges can and should control long trials by quizzing lawyers on their witness lists and documentary evidence ("Why do you want to call this witness? If you do call him, what (in general terms) will he be testifying about? What will that testimony add to your case? How lengthy would his testimony be and what would he cover that requires that length of time? Do you really need witness X to discuss topic A when you already have Y to discuss it? Can the parties agree to a stipulation in lieu of some of the evidence?"), putting time limits on trials, and holding active pretrial conferences, Judge Posner and the others went on.  And they should do it before they're asked to:

None of these powers to prevent unduly protracted trials has to lie dormant until awakened by a motion. The importance of the trial judge’s vigorous exercise of his or her powers lies in the fact that a trial of the length of the trial in this case places excessive strain on the jury system. 

Why do all this?  So that the jurors can do their job, the opinion goes on, in an unusual statement of appellate empathy for jurors:

So now imagine jurors’ mental state after six months, bearing in mind that memory loss and the psychological or cognitive problems of jurors in a super-long trial compound the first problem, the difficulty of recruiting competent jurors for protracted trials: a less intelligible trial is heard by a less capable jury. The longer the trial, moreover, the likelier jury misconduct becomes. The jurors become bored, impatient, irritated; the judge’s instruction against discussing the case before the jury retires to deliberate becomes increasingly irksome and likely to be disobeyed. 

Bench trials and jury trials

The second example was last week in Olympia Express v. Linee Aeree Italiane, which starts out as a fairly dry civil procedure case.  The airline Alitalia was owned by the Italian government when Olympia Express sued it, and so the Foreign Sovereign Immunities Act required that "the action shall be tried by the court without jury."  Four years into the lawsuit, Alitalia went private, and the trial court changed course and allowed a jury trial.  Judge Posner's opinion for the Seventh Circuit held that the statute doesn't come and go as the defendant changes hands over the course of the lawsuit, and thus because Alitalia was government-owned when the lawsuit began, it should have had a nonjury trial. 

But instead of ending the opinion there, Judge Posner went further, making sure the jury trial the trial court held was not a complete waste.  For new lawyers figuring out the real-world differences between a bench trial and a jury trial, it's a nutshell guide: 

[T]o provide further guidance on remand, we address an ambiguity in the meaning of the term “nonjury trial.” Does it mean that the trial must be conducted in the absence of a jury, or merely that the “verdict” must be rendered by the judge rather than by a jury? We think it is latter. In many trials some factual issues are to be resolved by a jury and others by a judge[.] . . . . 

Consistent with the practice in mixed trials, on remand the magistrate judge should first decide whether the development of the facts at the first trial was sufficient to enable him to make his own findings of fact and conclusions of law on both liability and damages. If so, he need not conduct a further evidentiary hearing; it would be redundant. . . . But he may instead realize that he’s forgotten some of the evidence (the trial took place more than a year ago), or that since he was not the trier of fact he did not pay as close attention to it as he would have done in a bench trial, or that in a bench trial he would have elicited additional evidence (judges are reluctant to question witnesses in jury trials for fear of confusing jurors about who is the trier of fact, but there is no similar inhibition in a bench trial). On any of these assumptions he should conduct a further evidentiary hearing.

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Note:  as often happens, Blawgletter got to the Olympia Express case well before I did.

(Image of Judge Posner's Second Life appearance at http://creativecommons.org/weblog/entry/6168)