Deliberations

What Is It About An Underdog?

Given the presence of well-known underdog stories in literature, mythology, and sport, it might seem intuitively obvious that most people sympathize with and support such figures. But why should we be drawn to the Davids, Texans at the Alamo, Greeks at Thermopylae, or Rocky Balboas of the world?

That's the question posed by the University of South Florida's Joseph A. Vandello, Nadav P. Goldschmied and David A. R. Richards in their paper "The Appeal of the Underdog," in the December issue of Personal and Social Psychology Bulletin.  (Because I'm so slow in posting this, the whole article is free on line; download it here.) 

Hustle, effort, heart, and wanting to win

The four experiments described in the paper are fun, and the results predictable:

• When students were told which countries had the most Olympic medals and asked which teams they'd back in various pairings, they rooted for the teams with fewer medals. 
• When students were shown a map of Israel dwarfing the the Palestinian territories, they expressed support for the Palestinians -- but when they were shown a map of Middle Eastern countries dwarfing Israel, they expressed support for Israel.
• Students watching a taped basketball game not only rooted for whichever team they had been told was the underdog, but attributed more "hustle, effort, heart, and wanting to win" to that team.
• Students told that a team was likely to lose and that it had a lot less money than the other team, they rooted for that team.  But when they were told a team was likely to lose and that it had a lot more money than the other team, they didn't much care who won.

Why we do it

So why do we root for the underdog?  The fourth experiment gives a big clue to one of the reasons:  because we want to help compensate for undeserved inequality.  If one contestant is outmatched for reasons that aren't his fault, that's unfair, and our sense of justice reaches out to fix it. 

We might also root for underdogs just because we enjoy drama: 

An alternative, or additional, motivation for supporting underdogs might derive less from abstract moral concerns about fairness and more from self-interested,   rational calculations of one’s own emotions. Because underdog success is by definition unexpected, this may increase the excitement of rooting for an underdog.

And for almost every little guy who wins, there's a big guy who loses, and that makes us happy too:

Rather than being strongly supportive of underdogs, might people instead root against dominant entities (this would be consistent with the sentiment, “my favorite team is whoever is playing the Yankees”)?

Working with it

Many trials can be framed as an underdog against a big dog, and this dynamic is often critical.  Civil personal injury lawyers often use the narrative brilliantly; although defense lawyers in those trials can sometimes turn it around if they show that the plaintiff somehow has earned his "weaker" position.   On the other hand, even though a criminal defendant is usually a heavy underdog, criminal defense lawyers (except Jon Katz) are less successful in using the "underdog" narrative -- often, again, because the government convinces the jury the defendant's life of crime is what put him in the underdog spot.

Let this paper challenge you to think more subtly about the underdog dynamic than you might have before.  Who is the underdog in your next trial?  Is it fair or unfair that she's in that position, and why?  Take a few steps back -- is there a sheer entertainment value in watching how the weaker side might conquer?  How does that affect your client?  Is there a "big dog" that jurors might enjoy taking down, no matter how much the underdog deserves to lose?  What is it that makes that party so easy to root against?  Are you that party?

(Photo -- get it?  Under dog? -- by Dan Bennett at http://www.flickr.com/photos/soggydan/481674998/; license details here.)

The Grim Power Of Grim Evidence

Criminal and personal injury defense lawyers, pencils ready.  Next time you ask a judge to keep gory pictures and other disturbing material out of evidence, cite David Bright.  "Jurors presented with gruesome evidence, such as descriptions or images of torture and mutilation, are up to five times more likely to convict a defendant than jurors not privy to such evidence," a recent press release about his work says.

The research in question isn't brand new; Mr. Bright's most recent papers are from 2006 and 2004.  But he recently presented a seminar on his work in his native Australia (you can listen to the audio and see a syllabus here) -- and the University of New South Wales, where he is a Ph.D. candidate, used the occasion to issue the press release recapping his recent work.  Be glad they did.  With his colleague Jane Goodman-Delahunty, Mr. Bright has spent the last five years exploring the effect of gruesome evidence on juries.

Pictures or no pictures

The research Mr. Bright describes in his 2006 paper -- "Gruesome Evidence and Emotion: Anger, Blame, and Jury Decision-making," in volume 30 of Law and Human Behavior -- is a straight-up comparison.  Just over 100 subjects were assigned to read a summary of the murder trial.  The facts were the same in each summary, but the researchers varied the amount of detail in the description of the victim's wounds.  In addition, some subjects got photographs of the victim's wounds with their summaries, some got "neutral" pictures of the crime scene, and some got no pictures at all.

The photographs had a huge influence.  Only 8.8% of the mock jurors who didn't see pictures voted to convict the defendant, compared to 38.2% of those who saw neutral pictures and 41.2% of those who saw gory pictures.  The level of verbal detail, on the other hand, seemed to have no effect.  Why did the photographs make such a difference?  Another finding suggests the answer:  the jurors who saw gruesome pictures "reported higher levels of anger directed at the defendant" than the others.

Changing the facts

The 2004 study ("The Influence of Gruesome Verbal Evidence on Mock Juror Verdicts," in volume 11 of Psychiatry, Psychology and Law) focused solely on verbal evidence, but it is less striking because the researchers varied the underlying facts.  In the case file they used, a husband was accused of killing his wife -- but some subjects read a summary where the victim was tortured (and her mutilation was described in detail), while others read a summary where the victim was stabbed once in the chest. 

Those who read the torture summary were more likely to convict, but it might not have been the gore that did it.  I'm no expert, but it would seem that jurors might be more willing to believe that a random attacker was guilty of a stabbing, and that an enraged husband was more likely than a stranger to have committed the torture in the gruesome version.  The paper doesn't attempt to rule out this possibility. 

Protecting trials, protecting jurors

Both papers recap other research in the field.  The 2006 paper also suggests another reason courts should consider excluding lurid pictures:  the impact on the jurors themselves.  Bright's mock jurors reported significant levels of disgust, sadness, and fear when they had to see gruesome pictures.  The researchers called these intense reactions "unexpected," but real courtrooms see them often.  The same week Bright's press release came out, an Australian juror vomited after hours of medical evidence including photographs of horrific injuries inflicted on a little girl.

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Notes:

1. Both Corrections Sentencing and EvidenceProf Blog got to this story faster than I did; but California forensic psychologist Karen Franklin saw it first, because she saw it in the Sydney Morning Herald.
2. I dreaded having to find a picture for this.

(Photo by Sara Petagna at http://www.flickr.com/photos/apesara/1542716302/; license details there.)

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 Overrated Prior Inconsistent Statement

One theme of this blog is that lawyers don't think like jurors.  A new study gives an example:  lawyers' unfounded love of what we call the "prior inconsistent statement."  If today on the witness stand Mr. Smith says he was in Montreal on the day of the critical meeting, but in his deposition he said he was here in Milwaukee, it's enough to make a lawyer puff with glee. 

The Holy Grail

The prior inconsistent statement is the Holy Grail of witness impeachment, the gold nugget lawyers search for.  We spent hours back in trial advocacy class learning how to use it well.  First you tie down the in-court statement until it looks like Gulliver tethered by Lilliputian ropes, with no chance of escape.  ("You're sure?  You're really sure?  No chance of mistake?")  Then you spend some time on the gravity and certainty of the deposition.  ("You were under oath?  Just like today?  You had a chance to correct your answers?  And you didn't?")  Then you slap out the inconsistency and try to keep yourself from bellowing out something like "WERE YOU LYING THEN OR ARE YOU LYING NOW?" 

Finally, you ask the judge to give the jury a "falsus in uno" instruction, one of the few bits of Latin lawyers still know:  falsus in uno, falsus in omnibus, or if the jurors think a witness told one lie, they can choose to disregard her entire testimony.  The instruction isn't given often, but a prior inconsistent statement helps convince the judge it's justified.  If you get one, you make it the centerpiece of your whole closing argument.

To jurors, it's not that simple

But are jurors really going to throw out a witness's testimony because of one inconsistency, or even one lie?  Think about it.  Do you have a co-worker who has lied to you but with whom you still manage to work well?  A family member who has lied to you whom you still love?  Perhaps you yourself might have told a lie once, long ago?  For most of us, the idea of falsus in uno is too simple to be useful in real life.

Jurors are often forgiving and practical when a witness lies.  That's the conclusion of an empirical study by Jones Day lawyer Richard Stuhan, and trial consultants Melissa Gomez and Daniel Wolfe of TrialGraphix, Inc, collecting data from over 800 mock jurors in "over a dozen states."  Stuhan, Gomez, and Wolfe authored an extensive post about their study (and its limitations) at the Drug and Device Law blog, and plan to publish it in full in the April 2007 edition of DRI's For the Defense magazine.  (Update:  the full text of the For The Defense article is at Jones Day's web site.)

Highlights from the post, which should be read in full:

• "[J]urors go into a trial with a generally positive attitude toward witnesses."
• A majority of jurors do tend to believe an inconsistency reveals a lie rather than a mistake, but . . .
• "Only 20% of the jurors said that an inconsistency would lead them to disregard everything the witness said."
• Jurors were receptive to the idea that an inconsistency was caused by stress rather than dishonesty.
• Jurors vary widely in the way they interpret prior inconsistent statements.

The Power Of Priming

It's hard to tell whether the psychological studies on "priming" are more inspiring or scary.  Over and over, researchers show that one person can alter another's behavior by planting suggestions.  The subjects don't know the suggestions affected them; in fact, they don't know they were affected at all. 

Malcolm Gladwell collects some striking examples in his book Blink: 

• In one experiment, Yale's John Bargh gave subjects seemingly random word puzzles, with no apparent point or thread.  Some of the puzzles containing a subtle preponderence of "old" words:  Florida, gray, wrinkle, lonely, bingo.  Walking down the hallway to leave after the exercise, the subjects who had the "old" words walked more slowly.
• The same paper describes an experiment in which, when they finished the word puzzles, subjects were asked to find "the experimenter" to get their next task.  The experimenter was always involved in an interminable conversation with someone else.  Subjects whose word puzzles had scattered words invoking rudeness -- bold, rude, bother, disturb, intrude -- had no trouble interrupting.  But a huge majority of subjects whose puzzles were full of "polite" words -- respect, considerate, appreciate, patiently, courteous -- never interrupted the experimenter's conversation at all. 
• Dutch researchers asked some subjects told to think in detail about becoming a professor, and others to think about soccer hooligans.  In subsequent tests with Trivial Pursuit questions, the ones who imagined professorships got significantly more questions right.
• In another study, Professors Claude Steele and Joshua Aronson gave questions from the GRE exam to black college students.  All the students filled out pretest questionnaires, identical except that some questionnaires required the students to identify their race and some did not.  The students who had to say they were black got half as many questions right on the test as those who did not.  (The links to both of the last two studies are to abstracts, but if you search the titles, you can find them attached to university course syllabi.)   

Priming with questions

A study released last week expands the research on the priming power of another seemingly innocuous tool:  the simple question.  Researchers Gavin Fitzsimons, Joseph Nunes, and Patti Williams already knew that questions have power.  Prior studies have shown that if you ask people about something they feel positively about, they'll do more of it, and if you ask them about something they feel negatively about, they'll do less of it. 

But what, the researchers wondered, about the things we feel ambivalent about?  Take vice.  We know it's bad, but we also think it's fun.  Would questioning "prime" vice, and if so which way? 

Ask about vice, and you get vice

The wrong way, in this study.  It turns out that when college students were asked how often they thought they might skip class, they skipped more.  How often will you drink or watch TV instead of studying?  Whatever the answer, those who heard the question drank and watched TV more, and studied less. 

The researchers acknowledged that the phrasing of the question may have been more important than the fact of it:

[W]e ask[ed] how likely respondents are to engage in the vice behavior, in effect framing the vice behavior as something that will be done . . . . Perhaps another way of framing the question (e.g., How likely are you to avoid the behavior?) might make the negative component of the attitude more accessible and thus be more likely to drive behavior.

Priming at trial

Does any of this matter at trial?  It might matter a lot.  You have two chances to ask your jurors questions:  voir dire, for direct questions, and closing argument, for rhetorical ones.  If you want to give a holdout the strength to stand firm, or you need the jurors to compare the patent claims one by one to your client's product, it can't hurt to help them picture themselves doing that, and to ask them whether they can.

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Source note:

The "questions" paper is "License to Sin: The Liberating Role of Reporting Expectations," in the upcoming Journal of Consumer Research.  The press release is here and the full paper is here. 

(Photo by Karen Stannard at http://www.flickr.com/photos/ridinfast/257994376/; license details there.)

How To Expose A Lie

Yesterday we learned that in deciding whether a witness is lying or not, the considered judgment of an ordinary juror is roughly as accurate as a coin flip.  Today's post is more cheerful:  jurors will do a lot better with your help. 

In academic deception studies, subjects must decide by themselves whether they're listening to a lie.  Jurors, by contrast, have you.  Your task in assisting them will be difficult and often tedious, but it's simple and easy to remember:  fight lies with facts.  That means:

1.  Facts, not decibels.  Don't shout.  Don't roll your eyes, scowl, or make any of the other faces that feel so satisfyingly theatrical.  Anger is not contagious.  If you doubt it, think of the last time you watched someone shouting in anger, and ask whether any of that rubbed off on you.  Take the energy you want to put into yelling, and devote it instead to gathering and lining up the facts that will expose the lie.

2.  Treat your own facts with care.  If you're planning to call someone a liar, guard your own credibility like a fragile treasure.  Don't stretch it, scratch it, bruise it, or chip it, and don't let it out of your sight.  The same goes for your client's credibility, of course.

3.  Find the facts that show motive.  The jury needs to understand exactly what will change in the witness's life if her lie is believed, and what will change if it is not.  Remember that jurors have no context; it may be obvious to you why the witness is lying, but you'll assist the jurors if you lay the motive out in detail, fact by fact. 

4.  Find the facts that show character.  This one is obvious, but again it takes time:  if you have prior lies, admissible "bad acts," or other facts that show this is the kind of witness who would lie to a jury, you bring them out in detail.

5.  Find the facts that expose the mistake.  Most important, dig out your logic training.  By definition, a lying witness always has some facts wrong, and you need to find them.  To do that, you need to pretend you're Columbo, and identify the witness's factual mistake. 

It's remarkably difficult to put in words what exactly is wrong with a witness's story.  We'd be better at it if we'd taken, or remembered, more logic classes in school.  One of the best refresher courses right now is Robert Musante's seminar, "The 25 Credibility Arguments for Deposition & Trial," part of his "Take A KILLER! Deposition" series.  His "25 credibility arguments" are listed in the course schedule on his web site, and they're a great checklist of the most common fallacies we find when we deconstruct a typical courtroom lie.  Ask the factual questions that expose and dramatize the fallacy, and you've given the jurors the words they'll need to reject the lie.

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Resource note:  Robert Musante bills his seminars as "the four BEST cross-examination seminars . . . EVER!" and I'm not sure he's far off.  They're very similar, but I've still found repeated trips worthwhile.  On the first day you absorb his message:  great cross-examination is grounded in strong depositions and investigation, not courtroom theatrics.  On later trips you can take some notes on the very good presentation style you're watching, and you might save a whole seminar just to watch his over-the-top PowerPoint presentation, a masterpiece of the medium.

(Photo by Timothy Vogel at http://www.flickr.com/photos/vogelium/333456488/; license details there.)

Know When To Hold 'Em

There's a jury flurry in the federal courts.  Last week the D.C. Circuit held that prosecutors can strike blind jurors.  This week the Supreme Court heard argument on jurors who doubt the death penalty.  Yesterday in a case called U.S. v. Murphy, the Ninth Circuit explored the thin line -- if there is a line at all -- between stipulating to an eleven-person jury, which you can do under Rule 23 of the Rules of Criminal Procedure, and stipulating to a non-unanimous jury, which Rule 31 says you can't.  The case features an Instant Decision Moment, a television-worthy dramatic climax, and an odd result.

Three jury notes

Murphy was tried for fraud in a government contract.  The jury sent out three notes.  The first one read:

“We have a dissenting point of view with one juror that will have no possible position change and requests no evidence or willing to participate.”

The judge told them to follow the instructions; eventually they sent out a second note asking to hear some testimony again.  Then they wanted to deliberate some more, and eventually they sent a third note:

“A juror is not willing to deliberate[,] not open to any additional information[,] her opinion is firm and says it will not change. We are working on it = Please give us direction.”

(The note was "in the less than perfect form common in such notes," the Ninth Circuit explains.) 

The defense did what?

I bet you expected Murphy's lawyer to cheer:  hung jury, mistrial, call it a win!  But the trial must have gone well, because instead (and here's the Instant Decision Moment), the defense stipulated to send the holdout juror home and continue with eleven jurors.  In the next half hour, two things happened:  the remaining eleven jurors reached a unanimous verdict, and the dismissed holdout insisted on giving the judge a note of her own.

It was a moment out of Celebrity Poker, but with more at stake.  If the eleven were on Murphy's side, he was a genius to dismiss the twelfth.  If they weren't, he wasn't.  His cards, the three jury notes, were on the table. 

The judge was holding the handwritten stipulation, the holdout's note, and the verdict.  She put the holdout's note down first.  The juror said:

“After listening to the full . . . [testimony,] and after listening to the transcript and given the instructions we have received, I can’t find the defendant guilty beyond a reasonable doubt. If I were to change my vote, it wouldn’t be what my conscience is telling me is right. At worst this is negligence. I’m not convinced, based on all available information, the defendant is guilty beyond a reasonable doubt. That is not reasonable to me.”

Damn.

When cases turn on odd details

The Ninth Circuit held Murphy to his bet, finding the guilty verdict was the unanimous vote of eleven jurors, not the divided vote of twelve. 

It's the kind of decision that's hard to explain to your friends and family, since the conviction ends up turning entirely on the irrelevant fact of where the holdout was at the time of the verdict.  Either way, eleven jurors voted without her, with the defendant's consent.  But if the trial judge had accepted the vote without dismissing the holdout first, the Ninth Circuit would have reversed.  Since she was sent home, the conviction stands.  Or, as Shaun Martin at California Appellate Report said more neatly, you can "accomplish under Rule 23 what you're expressly prohibited from accomplishing under Rule 31."

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Political note: 

The Murphy opinion had a dissenter, Eighth Circuit Senior Judge John R. Gibson, sitting by designation.  (Judge Gibson argued that while Rule 23 says you can stipulate to eleven jurors, it doesn't say you can stipulate to dismiss a particular individual.)  Robert Loblaw at eNotes explains that the split bucks both courts' reputations and shows how the Ninth Circuit is changing:

A Ninth Circuit panel divides 2-1 in a criminal case.  The dissenter is sitting by designation from the Eighth Circuit. If you’re like me, you’re probably thinking that the majority voted in favor of the defendant. But we’d all be wrong. Take seven new Dubya appointees, join them with a small posse of Reagan and Bush Senior appointees, add in a couple of moderate Clintonites, and you’ve got a Court that is steadily reversing its long-standing reputation as a champion of civil liberties.

(Photo by Kevin Labianco at http://www.flickr.com/photos/kevinl8888/119712943/; license details there.)

Juror Dismissed. Quick, Now What?

A feature of every jury trial is the Instant Decision Moment.  These are always stressful, and particularly so when they hit while the jury is out.  During the trial itself, you're making decisions all the time, bouncing and changing direction like a tennis player as new shots come at you.  When the jury goes out to deliberate, you head to the sidelines and put a towel over your head:  done. 

But you're not done, of course.  The jury comes back in with a question or a problem, and you need to react.  Right now.

The art curator goes home

As the Libby-trial-following world knows, prosecutor Patrick Fitzgerald and defense lawyer Ted Wells had an Instant Decision Moment yesterday morning.  A juror -- the art museum curator, the one who didn't wear a Valentine T-shirt -- told the judge that she had "sought information that led her to material about the case over the weekend," says the Washington Post, and so she was dismissed.  The Post says "Fitzgerald appeared disturbed by the development, while Libby and several defense attorneys wore broad smiles at the news of the woman's removal."

Now what?  Eleven jurors are left.  They've been deliberating as a group for more than two days.  Do we put an alternate in to fill the group back out to twelve, or do we let them continue as is?  Counsel?

Liveblogger Jane Hamsher takes over the story, paraphrasing the exchange.  Exactly an hour after court first convened to hear the art curator's communication, it was time to make the call.  One speech from each lawyer, a ruling, and it was over: 

[Judge] Walton:  One juror has now been dismissed based upon the knowledge of her part that she did have information based on this case.  It wasn't intentional, but what she had exposure to disqualifies her from further deliberations of this case, so I need to know what counsel's position is as to how to proceed.

Wells:  It is the position of defense that jury deliberation should continue with a jury of 11 and that at this juncture an alternate should not be put onto the jury, because as we understand it if a new juror is appointed they must start deliberations all over again which is something in our opinion would be prejudicial to Mr. Libby.  That would be a jury of 11.  If we have a situation that for some reason another juror is lost, it is such that we would be left down to 10 and we believe your honor would have the ability to appoint the alternates in, so we're not on the "cliff of a mistrial."  Don't want to throw away 2 1/2 days of deliberations when these jurors are obviously making their way through the charges, and would be highly unfair to Mr. Libby.

Fitz:  The gov't would prefer 12 jurors.  If you're going to replace jurors anew that it's preferable to do it after 2 1/2 days of deliberation.  We think there is a preference for 12 jurors and we think there is a risk that if someone gets ill we get into dangerous territory of 11 jurors.

Walton:  Don't think there is any reason to believe this jury was irresponsible -- info from juror did not taint the others.  They have deliberated for 2 1/2 days, don't want to throw away that work.  If something does unforseeably happen to another juror then we s[t]ill have the option of recalling the alternates.  I did tell them before they left they should continue to not let themselves be exposed to this case from outside sources.  So rather than throw away the 2 1/2 days devoted to this effort, I will allow them to continue their deliberations.

Making the call

Why did the prosecution want to add a juror and the defense not?  Andy McCarthy at the National Review explained why it seemed backward:

Defense lawyers virtually always move for a mistrial when a juror has to be stricken during deliberations.  Reason is obvious:  Jury must be unanimous to convict, and it's tougher for the prosecutor to convince 12 people than 11.

A look through the blogs and news reports, and a little empathy, can help us list at least some of the questions that were swirling in both lawyers' minds in the Instant Decision Moment:

• Do we like the on-deck alternate?  Observers seemed to agree she seemed hostile to Libby.  The National Review's David Schuster described her crossed arms, clenched jaw, and rolled eyes (any one of those would do) when Wells was talking, and said she "relaxed and smiled" in Fitzgerald's rebuttal.
• What's going on with the original eleven?  Thanks to her Valentine's T-shirt boycott, we know the dismissed juror was not, shall we say, in sync with the rest of the group.  It seems very possible she was holding up their progress toward a verdict, but what verdict?  Were they the easy-going, forgiving group that Slate's observer imagined then?  Or is Eric Turkewitz of New York Personal Injury Blog right in wondering whether, "since stubborn jurors are generally good for the defense, [her departure] would be bad for Libby"?
• A new juror means more time deliberating:  who is helped by that?  Firedoglake's Jane Hamsher agreed with a commenter who said it helped Fitzgerald:  "He WANTS them to take their time, because the more they go through the evid[]ence, the less the memory defense holds water."
• What if we lose more jurors?  Surely the alternates are more likely to see a newspaper each day the others deliberate without them.  If one of the eleven gets sick and the alternates have become tainted, we're in mistrial territory, as Andy McCarthy in the National Review points out.
• What does my client think?  What comfort level does he need to have with this decision?
• What about pure numbers?  Twelve is  one more person to convince than eleven.
• What does my opponent want?  If it's the same thing I'm asking for, am I missing something?

Many questions, no clear answers, and minutes to make up your mind:  that's the Instant Decision Moment.  Meanwhile the power went out around 3:00 in parts of the courthouse, and a lawyer on Libby's defense team missed the whole show because she delivered a baby on Friday.  Wow. 

(Photo by Yoshihide Nomura at http://www.flickr.com/photos/yoshimov/67782955/)