Deliberations

Will The Economic Downturn Make Juries Less Diverse?

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

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

Just trying to help

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

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

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

What's worse, they were leftovers

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

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

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

Funny you should mention economic factors

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

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

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

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Notes:

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

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

Values And Voir Dire

Most trial lawyers hope their jurors will be alert, attentive, honest, and fair.  Some lawyers, though, need more:  they need jurors who can be noble.  Defense lawyers in death cases come first to mind, but many other lawyers can succeed only if jurors can rise above defensiveness and retribution, and somehow keep themselves open to difficult arguments.

Can you help jurors do this?  A new study, building on prior work, hints that it's possible. 

How to tell a smoker to quit

The researchers -- Jennifer Crocker and Yu Niiya from the University of Michigan and Dominik Mischkowski from the University of Konstanz -- found that when subjects spent a short time reflecting on their values, they not only felt more positive emotions, but also were more open and less defensive in response to challenging arguments.  Their paper, "Why Does Writing about Important Values Reduce Defensiveness?," is in the new issue of Psychological Science, and there's a good press release here.  (At least for now, the whole paper is on line free here, but I think that must be a mistake on the journal's part.  I found it by searching the title, but if you go in by the "front door," it's subscribers only.)

The press release describes the study this way:

In the first study, the researchers asked participants to rank six values -- social life, religion/morality, science, business, arts, and government. One group later wrote for 10 minutes about why their most important value was important to them, while the control group wrote for 10 minutes about how their least important value might be important to others. Afterwards, they rated how much writing the essay made them feel love, empathy or other emotions.

In the second study, participants were smokers and nonsmokers. Like the first study, participants wrote about an important or unimportant value. This time, however, they next read a fake article claiming that smoking increases the risk of abdominal aortic aneurysms, a bulge in the main artery of the heart, and the quality of the research described in the article.

The results for both studies were very strong. In both studies, those who wrote about an important value felt more loving and connected after writing the essays than those who wrote about an unimportant value. And specifically in the second study, writing about an important value made smokers less defensive -- they were more accepting of the article’s claim that smoking harms health if they wrote about an important value instead of an unimportant value.

In real life?

It's not clear whether this might be of any practical help at trial.  You can certainly ask jurors to tell you about their most important values, and jurors who do this might respond with positive feelings and openness -- if you haven't embarrassed them with such a personal question in open court.  How long the reaction might last, though, and whether you are someone who can ask the question with honesty yourself, are questions not covered in the study.  It seems certain that if you're being manipulative, it won't work. 

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Note:  If you're interested in more in this area, look at George Lakoff's newest book, The Political Mind:  Why You Can't Understand 21st-Century Politics With An 18th-Century Brain.  You'll learn among other things that each of us is "biconceptual" -- liberal and conservative, uptight and relaxed, prejudiced and open, at the same time.  The most skilled political marketers, Lakoff argues, can "activate" the best or worst in us by invoking particular images and themes.

(Image by Anne Norman at http://www.flickr.com/photos/29278394@N00/2586753767/; license details there.  Anne Norman's blog is subversive suburban.)

Respect

There are two juror stories in the legal blogs today, each illuminating in a different way the level of respect we give to jurors.   

"We listened, we thought, we argued, we went on"

First is the story of the juror who asked for respect after the trial was over.  He wrote to a federal judge, frustrated because the group's hard work seemed pointless when the defendant's sentence was based on alleged crimes the jury either rejected or never heard about.  (Sentencing Law and Policy discussed the story here, and Simple Justice and Legal Blog Watch both picked it up.)  The juror's letter describes the American jury at its best, the ideal we all hope for:

[W]e spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements.  We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail.  If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time. 

It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves.  We, the jury, all took our charge seriously.  We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy.  We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on.

I am not a shrew

The other story tells of jurors who got very little respect indeed.  It comes via Legal Profession Blog, which picked up this article about Friday's censure of a Kansas judge for yelling at jurors in voir dire.  Legal Profession's post title, "Anybody Else Want To Mess With Me?", is a direct quote from Judge Rebecca Pilshaw, daring jurors in a murder trial to say anything that might sound like they wanted to get out of jury duty.

The Kansas story sounded so bad that you had to wonder whether sanctioning the judge was enough.  What happened to the defendant, whose name was Dewey Gaither?  The 2007 opinion deciding his appeal is here:  He was convicted, of murder and other crimes committed in the course of two nasty drug robberies. 

The facts of the case were bad, and it's not clear from the supreme court's opinion that Gaither raised any meaningful defense.  But the opinion is still striking for its recitation -- much longer than the summary in the judicial censure opinion -- of what Gaither's jury went through in voir dire.

"Answer me yes or no."

It started when a juror said she wouldn't believe police witnesses.  Judge Pilshaw dismissed her -- and ordered her to sit through the trial anyway, as punishment:

"THE COURT: No one's asking the life history and the things that bring you to this place, but that's not what you started out saying, ma'am. What you started saying is, because someone has a uniform on, you will dislike them automatically, and you're going to discount their testimony; is that what you're saying?

"PROSPECTIVE JUROR [L]: When I got my driver's license –

"THE COURT: Answer me yes or no.

"PROSPECTIVE JUROR [L]: Yes. I have to really go and think about that a whole lot. I can't just take their word.

"THE COURT: I'm going to excuse you from your jury service, ma'am, but I'm going to require you to sit through this entire trial, so you can get an objective view of how people – of how people do testify. I think that you have – I think there is perhaps some validity to what you have to say, but I think that you – you need an opportunity to be exposed more to our law enforcement personnel, and I think that because this trial will have so many that will be testifying, I want you to – I'm ordering you to sit through this entire trial. It will be considered part of your jury service, and you will be paid at the rate of a jury member. You'll need to take your card back down.

. . . .

"PROSPECTIVE JUROR [L]: Okay.

"THE COURT: If you fail to appear on any day of the trial, that will be considered contempt of court, because this is a direct order."

Hitting the roof

"Anybody else want to mess with me?" she said then, and I don't imagine anyone did, but the next juror still said her religious beliefs made it uncomfortable for her to judge anyone, and also that she believed anyone on trial must be guilty of something.  Judge Pilshaw pointed out accurately that the two "beliefs" weren't consistent, and gave a necessary instruction that Gaither was presumed innocent -- but her words sounded more like a threat than anything else:

"I think what you're saying – you're contradicting yourself about what you're saying, and we have had Jehovah's witnesses that do sit on juries. I believe it's your personal feelings that you simply don't want to do it, not because it's a long trial, but I believe you don't want to do it. I've got quite a few people that don't want to do it either. But you have said the magic words, so you are released from your jury service. And I feel sorry for the next person that ends up going, because I am going to hit the roof, I think.

. . . .

"[Prospective Juror D] made a comment which is completely wrong. Just because Mr. Gaither is here does not mean he must be guilty of something. That is the antithesis, the opposite of what our judicial system is about.

"Mr. Gaither sits before each and every one of you right now, and he is innocent until there has been evidence sufficient to what I will instruct the jury on to prove him guilty, and that's beyond a reasonable doubt. . . . Nobody here has heard one piece of evidence about anything, and despite what [Prospective Juror D] said in her misguided beliefs about not judging people, that was absolutely wrong. He sits here an innocent man until evidence has been presented – until and if evidence has been presented sufficient to prove that he's guilty. Does everyone here understand that? If you do not understand that, raise your hand right now. I am vehemently serious about that."

Me?  I was just scratching my ear . . .

Shortly after, the prosecutor turned to another juror who had raised his hand on the police witnesses question.  That juror said he'd now changed his mind and had nothing to report.

Judge Pilshaw started apologizing about then ("I'm really not that bad. I am really not that bad at all, and I want – and you all took an oath, and you must be honest in your answers"), and kept apologizing the next day.  After a long explanation trying to set things right, she told the jurors:

"So if I have misled any of you into thinking that I am some angry shrew up here, I am not. I really and truly am not, and if any of you believe for one single minute that you are not free to say what is true in answer to the lawyer's questions, please raise your hand right now, and I will let you go. That is a promise to you. If you feel too intimidated to answer the lawyers' questions honestly, raise your hand right now, and you've just got a free pass out of here, and I won't berate you. I won't be mad. I will be mad only at myself for having caused this environment that you would feel that way, so this is your opportunity. Anybody want to leave?"

Two people took her up on the offer and were excused.

Affirmed.

None of this was enough to convince the Kansas Supreme Court that Gaither should be tried by a new jury that hadn't been harangued into service.  The court cited two prior Kansas convictions it had overturned because judges had made improper remarks, but said they didn't apply, because in those cases, "the misconduct polluted the entire trial."  The court said that Judge Pilshaw, by contrast,

regained control over her temper, emotions, conduct, and utterances after the first day of the voir dire. She apologized to the jury venire and offered to excuse anyone who felt intimidated. The judge's sincerity was evident when two prospective jurors accepted her offer and were excused without further questions. We believe the judge's apology and offer to excuse prospective jurors purged the taint of the misconduct.

Every trial judge needs to let jurors know that defendants are presumed innocent, and that attitudes manufactured to get out of jury duty aren't okay.  But surely Gaither and his lawyers didn't get the voir dire they should have, much less the deeply committed jury described in that other juror's letter to the judge.  An apology is a good thing, but more than a year after the Gaither opinion, a taint remains.

(Photo by Nathan Siemers at http://www.flickr.com/photos/nosha/2459245450/; license details there.)

The Secret Message In Every Bumper Sticker

I love the bumper sticker question in voir dire.  I've met lawyers and seen journalists who are surprised by it, or think it's intrusive, but when you think about it, it's a no-brainer.  If a juror holds an attitude so strongly that she'll paste it onto her car, you want to know what that attitude is.

New research suggests you should be interested in something else, too.  It isn't simply what jurors' bumper stickers say, it's whether jurors have bumper stickers at all.   Writing in the June issue of the Journal of Applied Social Psychology, Colorado State University researchers suggest that people with bumper stickers are more likely to be aggressive and angry people, or at least aggressive and angry drivers. 

Visualize THIS.

I haven't found a free version of the paper on line, but the Washington Post picked up the story (thanks to the Situationist for flagging this) and describes the research this way:

[Lead author William] Szlemko and his colleagues at Fort Collins found that people who personalize their cars acknowledge that they are aggressive drivers, but usually do not realize that they are reporting much higher levels of aggression than people whose cars do not have visible markers on their vehicles.

Drivers who do not personalize their cars get angry, too, Szlemko and his colleagues concluded in a paper they recently published in the Journal of Applied Social Psychology, but they don't act out their anger. They fume, mentally call the other driver a jerk, and move on.

"The more markers a car has, the more aggressively the person tends to drive when provoked," Szlemko said. "Just the presence of territory markers predicts the tendency to be an aggressive driver."

The amazing thing is that the aggression didn't change with the sticker's message.  Drivers who chose peaceful messages like "Visualize World Peace" were just as obnoxious on the road as those who slapped "My Kid Beat Up Your Honor Student" on their bumpers.

My car, my street, my interstate highway

Those two drivers would call themselves each other's opposites, but they have an important trait in common:  a strong and confused sense of territoriality.  The Post article continues:

The key to the phenomenon apparently lies in the idea of territoriality. Drivers with road rage tend to think of public streets and highways as "my street" and "my lane" -- in other words, they think they "own the road."

* * *

Drivers who individualize their cars using bumper stickers, window decals and personalized license plates, the researchers hypothesized, see their cars in the same way as they see their homes and bedrooms -- as deeply personal space, or primary territory. . . ."If you are in a vehicle that you identify as a primary territory, you would defend that against other people whom you perceive as being disrespectful of your space," Bell added. "What you ignore is that you are on a public roadway -- you lose sight of the fact you are in a public area and you don't own the road."

Issues of anger, territoriality, and boundaries are critical in all kinds of trials.  If they're critical in yours, think a little longer before you keep -- or strike -- that nice lady with the "Coexist" bumper sticker.

(Photo by Hadi-helvetIQ at http://www.flickr.com/photos/23081931@N02/2490169298/; license details there.)

Twittering Voir Dire

There's a new kind of journalism coming from a Kansas courtroom this week.

It's not just a live blog; those have been around for awhile.  When I started this blog last February in the middle of the Scooter Libby perjury trial, one of the best jury resources was the live blog of that trial at firedoglake.com.  After that came wonderful live blogs from the Daphne Wright murder trial in South Dakota and the James Seale Ku Klux Klan murder trial in Mississippi.

It's not easy to live-blog a trial, but the best live blogs are better than being there, immediate without the boring.  By necessity, though, they're not truly "live."  The blogger needs to collect enough information for a post, and so posts go up every few hours, or even at the end of the day. 

Twitter journalism

Enter Ron Sylvester, a reporter for the Wichita Eagle and its online version, Kansas.com.  Sylvester is reporting a murder trial in a series of 140-character Twitter posts.

Twitter, you may remember, is the leading "microblog" site, with millions of people answering the question "What are you doing?" all day and night in "tweets" of 140 characters or fewer.  There's a lot of silly tweeting going on at Twitter, but more and more, serious professionals are having professional conversations.  I've been checking in there for the last month or so, happily "following" the thoughts of Kevin O'Keefe (Real Lawyers Have Blogs), Grant Griffiths (Home Office Warrior), Susan Cartier Liebel (Build A Solo Practice), Carolyn Elefant (My Shingle and Legal Blog Watch), Gideon (a public defender), Rush Nigut (Rush on Business), Brett Trout (Cyber Law), and Nicole Black (Sui Generis and Women Lawyers - Back on Track), among others. 

My corner of Twitter has mostly been cheerful small talk and link sharing, but suddenly this week it's news.  Kevin O'Keefe wrote today about Twitter's role in letting the world know about today's earthquake in China.  Less drastically, but central to my blog's topic, Ron Sylvester is reporting jury selection with a fresh and direct style you don't often see, except on Twitter. 

"You could see lawyers tensing up"

Today was Day Two of what will be at least a three day voir dire.  To take just a few examples from today, Sylvester is noting:

• Practicalities.  "One juror excused for not being able to look at crime photos. You could see lawyers tensing up, expecting others to see that as a way out."
• Lessons.  "Even if you're against the death penalty, if you say you can consider it, you can qualify to sit on the jury."
• Ironies.  "When I left, a woman was dismissed because she couldn't consider the death penalty. I return: a man is excused for not considering life."
• Light moments.  "On[e] juror forgot to turn off his cell phone. Ring tone: "Carry on My Wayward Son," by Kansas (1976)."

At his blog Technolo-J ("getting in touch with journalism's technical side"), Sylvester wrote on Saturday about the decision to cover the trial this way, and what he's learning.  I'd argue with him on only one point:

And it’s only the first week.  The intense and exciting part – the real evidence of the trial - is yet to begin.

Of course we know that jury selection is the exciting part.  Thanks to Ron Sylvester for covering it so well. 

_________________

Note:  After a few false starts, I'm finding Twitter to be a good forum to say things that are off-topic or too short for this blog, and to communicate with an interesting and growing group of people there.  My Twitter page is here, as good a place as any to start if you'd care to join in.

(Photo by J. Samuel B. at http://www.flickr.com/photos/lobsterstew/220109812/; license details there.)

Commitment Issues

Is the Fifth Circuit trying to change the way prosecutors talk to jurors?

A few weeks ago I shocked the world -- okay, surprised a few people -- by pointing out United States v. Gracia, in which the Fifth Circuit reversed a drug conviction, finding that the prosecutor had improperly "vouched" for the credibility of federal agents who testified.  I thought, and some commenters (even defense lawyers) agreed, that what the Fifth Circuit had called vouching in Gracia was actually fairly routine argument. 

"Please raise your hand"

Last week the Fifth Circuit decided United States v. Fambro, and came close to reversing another conviction, this time because it didn't like the prosecutor's voir dire questions.  As in Gracia, when you look at what the prosecutor actually said, you might find the questions familiar:

Let’s say that law enforcement finds a box of grenades and they’re trying to determine whether I possessed those grenades. My first question, would it be important to you whether the grenades were found in my house or not? Would that be an important factor, do you think, in determining whether I possessed the grenades? How many think it would be important? If you do, please raise your hand.

Let me add another piece of evidence onto it. Let’s say the grenades are found in my house and that they are found in a box, and with the grenades in the box are some adult T-shirts that happen to fit my size, that are the size of shirt I wear. Do you think that would be important in determining whether I possessed the grenades or not? Okay. If you do think it’s important, please raise your hand.

Let me add one more twist to our little fact scenario. Let’s say that during an interview with law enforcement, I’m talking with the officer and I say, yes, the grenades were bought in Arizona. I was there and I brought them back to Lubbock. How many people think that would be important? Okay. Is there anyone here who thinks it wouldn’t be important?

If you had heard all of that and you were asked to decide, did [I] possess the grenades found in [my] house, how many people think I did possess those grenades? How many people think that I did not possess those grenades?

Can't I wait for the evidence?

These are called "commitment questions," and lawyers use them often, at least in my part of the world.  Frankly I don't know why they're so common.  I think they confuse jurors at best, and much more commonly really irritate them.  I've seen jurors resist one question after another like this, shifting uncomfortably while they tried to explain they'd really prefer to hear all the evidence, until they were finally beaten into saying that yes, this or that factor would be important. 

The Fifth Circuit doesn't like these questions either, and cites other courts to the same effect (I'm omitting the citations here):

A defendant’s right to due process under the Fifth Amendment requires an impartial jury at least to the same extent required by the Sixth Amendment. As the Eighth Circuit has explained, “although there are no constitutional provisions directly addressing the use of hypothetical questions during voir dire, there may be circumstances where a party’s manner of conducting voir dire renders a jury [non-]impartial and thereby triggers a Sixth Amendment violation.” We have stated that a voir dire question that “in effect asked the jury how it would weigh evidence it had not heard” would “not be a proper line of inquiry.” A majority of states appear to prohibit hypothetical questions to prospective jurors on voir dire to determine how they would decide fact issues in a case. 

Conviction affirmed

Fambro's counsel didn't object to the commitment questions, though, so the Fifth Circuit needed plain error to reverse, and didn't find it:

Nevertheless, we are unaware of any decision by the Supreme Court or any federal appellate court that has reversed a district court because it allowed commitment questions on voir dire in violation of the due process clause or the Sixth Amendment. Moreover, there was considerable evidence from which the jury could reasonably conclude that Fambro possessed the firearm. We therefore cannot say that the error, if any, was plain.

If your opponent starts asking commitment questions in voir dire, you have a valid objection.  With luck, you'll also have a jury panel that's tired of being badgered.  That's a good start.

(Photo by Ed Schipul at http://www.flickr.com/photos/eschipul/2371505523/; license details there.  Schipul's blog, not photography but PR and marketing, is Brand To Be Determined.)

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

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

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

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

[Juror] Eaton:  The judge.

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

[Juror] Eaton:  Your mother.

"Not a jury bias issue"

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

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

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

Mothers and wives

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

Next time . . .

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

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

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

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

[Juror] Eaton:  I know nothing about it.

Tody’s attorney also addressed Eaton:

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

[Juror] Eaton:  No.

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

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

Ready For Anything

In voir dire you need to be ready for anything, and anybody. 

I botched this in my first voir dire, a practice one in law school.  "What do you do?" I cheerily asked a mock juror.  "I'm a garbage collector," he cheerily replied.

The great Irving Younger was our trial advocacy teacher at Cornell, and he'd told us to ask open-ended questions to get jurors talking.  I froze.  What could I ask a garbage collector?  Would he think I was mocking his job?  Would I embarrass him?  Or worse, would he be laughing at me?  Hopelessly entangled in overthinking this moment, I moved on to the next person, and learned nothing at all about my garbage collector. 

"Summoned for jury duty in my old male name"

I thought of that guy when my "jury duty" search picked up this inquiry at one of the forums at Susan's Place Transgender Resources, "a support resource for the transgender community":

I have been summoned for jury duty in my old male name. The last two times I was not required to go. I am to check the county web site on the Friday before to see if I am still required to go. It is ironic as I have to report to the courthouse where I plan to file for my name change as soon as I can put together enough cash for the filing fee. Another irony is that my Driver's license and other photo ID is now in my new name. The only way I have to prove that I am the person in the summons is a letter from my therapist stating my transgender status. I hope that should I have to go to jury duty that they will be discreet about it. I plan to go up to the official and immediately explain my situation. I will go in female mode as I have no male ID now. I did not see this coming!!!!

It's a pretty good guess that the lawyers who'll be doing that voir dire didn't see it coming either.  They're at their desks right now, going over the list of potential jurors, trying to figure out what they can from names, ages, neighborhoods, and occupations.  (Every Sunday night I get a surge in searches for sample voir dire questions.)  They think they're ready for Daniel or Thomas or whatever their list says that juror's name is.  But they're not.

You need to be ready for what you're not ready for.  The juror who tells you she has seventeen cats, the juror who tells you his child was killed, the juror who isn't a man after all -- you can't botch these moments.   Your compassion, your awareness, your intelligence, and your character will be judged on how you handle the next thirty seconds.  You need to be at the very least, as the transgender juror hopes, discreet.  Warm, engaged, and unfazed would be better.

Not about you

The more you've done in life, the easier this is.  The lawyers who are most adept at voir dire are the ones who excel at conversation with strangers generally, and those are so often the ones who had a lot of different jobs before they became lawyers.  But it's learnable -- take it from someone who's spent 27 years in the same job, longer in the same marriage, and almost as long in the same house.  You just need to forget about yourself for a second and think about the person you're talking to.  "We all thank you for the work you do," is what I should have said to the garbage man.  "You've been through challenges that few of us can imagine," you might say to the transgender juror.  "Tell me about your life now."

(Photo by Liz Henry at http://www.flickr.com/photos/lizhenry/204197241/; license details there.)

A Narrow, Broad Opinion In Snyder

Back when Snyder v. Lousiana was argued, I wondered whether the opinion might be Justice Breyer's chance "to reconsider Batson's test and the peremptory challenge system as a whole," as he has put it.  The Court decided Snyder today (the opinion is here, thanks to ScotusBlog), and far from reconsidering tests and systems, Snyder is one of the most conscientiously narrow decisions you'll ever read. 

The result is striking, though, even if the reasoning is not.  In an opinion written by one of its most conservative members, the Supreme Court has reversed a state court death penalty conviction, in a case with almost unreadably horrible facts, because it didn't accept the prosecutor's asserted justification for striking a single black juror. 

O.J. Who?

Snyder was the case where the prosecutor struck every African-American in the venire, four successfully for cause and five with peremptory strikes.  He then argued to an all-white jury that the case was reminiscent of the O.J. Simpson prosecution.  The briefs before the Court raised issues of interconnectedness:  whether and to what degree each strike should be considered in light of the others, and whether the O.J. Simpson reference intensified the alleged Batson error. 

The Court's opinion doesn't get to any of this; indeed, unless I missed it, the word "Simpson" isn't used in either the majority or the dissenting opinion.  Instead, Justice Alito's opinion considers a single juror, a college student whom the prosecutor had claimed looked "nervous" and might miss some time at his student teaching job.  Justice Alito said the trial judge made no finding as to whether the juror was nervous, and so deserved no deference; and the student teaching conflict didn't hold up either on its own or in comparison to white jurors who served on the jury in spite of similar conflicts.  Thus Justice Alito found no need to consider the reasons asserted for striking another juror, no need to consider whether the purported reasons for the two strikes shed light on each other, and no need to even mention O.J. Simpson.  Only Justice Thomas and Justice Scalia dissented.

The opinion reads straightforwardly, as though Batson analysis always goes like this.  It doesn't, although this opinion may help.  Batson cases in the courts of appeals often seem like a steady stream of acceptance of purportedly neutral reasons for strikes, reasons that sometimes don't even sound neutral.  Against that background, the Snyder opinion feels like real change.

Race matters

Of course there's a bigger issue here -- one that, as sentencing guru Doug Berman points out, is particularly powerful in light of Barack Obama's brave and candid race speech yesterday.  Can I just say it?  What the Snyder prosecutor did was ugly, but racist lawyers aren't the only ones who strike black -- or white -- jurors.  Responsible lawyers think about race when they're making peremptory strikes.  They think about it because, as Senator Obama and many others have explained, a juror's race is an enormous factor in shaping her experiences and her attitudes, just as my race shaped mine and your race shaped yours.  It isn't the only thing that shaped us, but no one can say it doesn't matter.

Even Batson itself doesn't claim race is irrelevant.  Batson instead is based on a different and bigger principle, that striking jurors based on race deprives not only defendants but also those jurors of a fair, nondiscriminatory jury system.  This tension, between the ideal of nondiscrimination and the reality of race in shaping jurors' attitudes, has made lower courts struggle with Batson ever since it was decided.  Snyder may help them struggle more bravely, but they'll still struggle.

_________________

Discussion of Snyder elsewhere so far (I'll try to update this list): 

• ScotusBlog
• Sentencing Law & Policy
• Court-O-Rama
• How Appealing
• TalkLeft

(Photo by Photocapy at http://www.flickr.com/photos/photocapy/301093262/; license details there.)

When Voir Dire Is About Politics

Federal judge Amy St. Eve of the Northern District of Illinois may be setting a record for total pages of jury questionnaires used by a single judge.  She presided over Conrad Black's trial that began a year ago this week, and approved the 45-page questionnaire used there.  Now she is hearing the trial of Tony Rezko, best known as a Barack Obama fundraiser but on trial for political corruption unrelated to Obama. 

True or false:  It's not what you know, but whom you know.

The questionnaire in Rezko's case was released recently.  It's 33 pages, and if you've been building a questionnaire collection (or keeping an eye on mine), there won't be too much in it to surprise you.  In fact, you may find it comforting to know that the lawyers in these high-budget trials choose jurors on the same information that you do.  There's an nice series on politics, though, addressing a difficult topic in a neutral and sensitive tone.  In addition to questions about whether jurors themselves have raised funds or volunteered politically, there are attitude questions like these:

• "Do you think that people get ahead financially or professionally based on whom they know?"
• "Do you think it is common for people to benefit financially from political connections or friendships?"
• "Some people believe it is improper for a company to hire people with social or political connections to government officials to get business.  Do you agree?"

The local press is covering the Rezko trial exhaustively.  The Tribune is collecting stories here, and the Sun-Times has an all-Rezko blog.

(Photo by Korean Resource Center at http://www.flickr.com/photos/krcla/362137815/; license details there.)