Deliberations

Collision Course? The "Judge Not" Juror And The Supreme Court

Houston criminal defense lawyer Mark Bennett is trying to change a familiar moment in Texas voir dire:  the removal, for cause, of the "judge not" juror. 

"In almost every criminal jury selection I've seen," he explains at his blog Defending People,

there has been at least one juror who has said that she is unable, because of religious beliefs, to judge other people. Almost universally and without further inquiry, the lawyers have not allowed these people to serve as jurors. That the defense lawyers (who probably want such people on their juries) don't try very hard to keep them has always rankled me a little bit.

As Bennett explains in posts on Thursday and Friday, removing a "judge not" juror doesn't necessarily make sense:

The same juror, if questioned respectfully, would likely say that she can agree to render unto Caesar and decide whether the government has proven a violation of the law. After all, a criminal trial is not about moral guilt; it's not about who goes to heaven and who goes to hell; it's about whether the government, following all of the rules, can prove beyond a reasonable doubt that the accused violated the particular law alleged in the accusation.

This is fascinating.  It's as though Mark Bennett and his "judge not" jurors are standing on a philosophical spot where two different -- and difficult to reconcile -- Supreme Court doctrines are converging. 

Batson from one direction . . .

From one direction you have Batson v. Kentucky and J.E.B. v. Alabama ex rel. T.B., which hold that the state may not strike jurors because of their race or their sex.  The Court has not yet said whether the state can strike jurors because of their religion; in Davis v. Minnesota in 1994, the Court refused to review a Minnesota decision allowing such strikes.  But scholars like Harvard's John Mansfield (writing in the Seton Hall Law Review in 2004) believe that religion-based strikes must inevitably be banned under Batson and J.E.B.:

[H]ow can a peremptory challenge based on sex be disallowed, but a peremptory challenge based on religion allowed, without holding that the right to free exercise is less weighty than the right to be free from sex discrimination?

Lower courts seem to anticipate the same ruling (I've cited a few in the note below), and they're struggling to identify a line between religious affiliation, which they think will not be allowed as a basis for peremptory strikes, and religious activities, which they think will be okay.  As you can imagine, the line isn't what you'd call bright.

Witherspoon from the other . . .

From the other direction you have Witherspoon v. Illinois and Wainwright v. Witt (I still can't get a good free link for Witt), which together hold that when a prospective juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath," the trial court may remove that juror for cause.  Under this doctrine, people who would refuse to impose the death penalty on religious grounds are routinely removed from juries in death cases.  It's also the doctrine that allows removal of "judge not" jurors from criminal juries of all kinds.

In Lockhart v. McCree in 1986, the Supreme Court held that removing death penalty opponents under Witt did not violate the "fair cross-section rule" imposed by a different string of cases.  But the Court hasn't said anything about whether removing them might deprive the jurors themselves of their free exercise of religion, and thus violate the logic of Batson and J.E.B.  At a time when court-watchers wonder how the justices' own religious faiths are shaping the Court, the question is more interesting than ever.

. . . what happens when they meet?

So, back in Texas, imagine Mark Bennett questioning his "judge not" juror.  "My Christian faith requires me to follow the teachings of Jesus," she says, "and Jesus said 'judge not, lest ye be judged.'"  The prosecutor has been reading lower-court cases and encourages her to say this is just a religious "belief," and doesn't rise to the level of her religious "affiliation."  No, she insists, it's part of the essence of her understanding of Christianity itself, a critical way she exercises her faith, and it would make it very hard for her to pass judgment on the defendant.

If Batson requires us to leave that juror on the panel, but Witt says we should remove her, Mark's case won't be over for a long time.

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Resources:

In his Miller-El v. Dretke concurrence in 2005, Justice Breyer briefly reviewed the lower-court cases that had addressed whether Batson should extend to religion, on his way to concluding that we should get rid of peremptory strikes altogether. 

Lower-court cases with fairly extensive discussions of the Batson/religion issue include:

• U.S. v. DeJesus, 3rd Cir. 2003, drawing "distinction "between a strike motivated by religious beliefs and one motivated by religious affiliation."
• U.S. v. Stafford, 7th Cir. 1998:  "[I]t would be improper and perhaps unconstitutional to strike a juror on the basis of his being a Catholic, a Jew, a Muslim, etc.," but it would be "proper to strike him on the basis of a belief that would prevent him from basing his decision on the evidence and instructions, even if the belief had a religious backing."
• United States v. Brown, 2nd Cir. 2003: "We believe that [the principles underlying Batson and J.E.B.] apply as plainly to jury selection based solely on a venire member's religious affiliation" but the peremptory strike at issue might have been based on "participation in religious activities" rather than affiliation, so the trial judge's decision wasn't plain error.
• Highler v. State, Indiana Court of Appeals 2005:  "We hold that the use of a peremptory challenge to strike a juror because of the juror’s race, gender or religious affiliation violates the juror’s right to equal protection of the laws. The juror’s affiliation is to be distinguished from religious beliefs that prevent the juror from following the law."
• State v. Fuller, New Jersey Supreme Court 2004:  "We discern, in the absence of a definitive ruling from the United States Supreme Court, an emerging consensus to extend the equal protection analysis of Batson and J.E.B. to peremptory challenges based solely on religious affiliation and to find those challenges unconstitutional.  Challenges based on religious beliefs or religious activities, however, are generally permitted."

If you know of cases in the pipeline on this, I'd love to hear about them, and I'm guessing Mark Bennett would too.

(Photo by Floyd Nello at http://www.flickr.com/photos/89492733@N00/348107319/; license details there.)

Jury Notes From Elsewhere, April 27

Interesting things in other places recently:

1.  A surprising acquittal explained.  The headlines called it the "dungeon rape" trial.  Two 17-year-old South Carolina girls testified that Kenneth Hinson kidnapped them, bound them with duct tape, and raped them in an four-foot-high underground bunker.  From the witness stand, they described their escape -- biting through the tape, moving the concrete slab "door" to the dungeon, and running through the woods for home.  And their words weren't the only evidence:  DNA proved the sexual contact between Hinson and the girls.

So it surprised a lot of people on Monday when the jury acquitted Hinson.  Crime Scene Blog yesterday helped explain why, summarizing an extensive juror interview with a local magazine called The State.  The jurors didn't credit Hinson much, but they found too many holes in the girls' account.  “It just sickened us that the evidence did not corroborate the girls’ stories," the juror said.

2.  New posts at jury blogs.  It's great to see new posts at both Robert Kelley's Florida Jury Selection Blog ("the cure for the common voir dire") and Clay Conrad's Jurygeek, two superb jury blogs.  Jurygeek advances what Conrad rightly calls an "interesting conversation" on the difference between rights and powers when it comes to jury nullification:

The real issue, as I see it, is when the ignorance of jurors is replaced with lies. Jurors do retain the prerogative to nullify: they cannot be punished for their verdict, and a substantial number of jurors do decide not to convict on extra-legal grounds. When a trial court tells a jury that they cannot do this, then the jury is being positively lied to. It is hard to respect a legal system that depends on positively lying to jurors in order to maintain control over their verdict.

Merely because Courts have the power to lie to jurors does not mean they have the right to do so. Until the 1970's, most juries in the US were instructed that if the State proved its case, they may convict, but that if they had a reasonable doubt, they must acquit. This is sufficient to acknowledge the independence of the jurors, without raising a distractive debate about jury nullification. It is honest.

3.  The drip method of learning.  If you never seem to be able to make time to read anything long, what you need is podcasts.  With an iPod, a commute of any length, and some good podcasts, you can become surprisingly knowledgeable with delightfully little effort.  Both Mary Whisner's Trial Ad Notes and Evan Schaeffer's Illinois Trial Practice Weblog feature reviews ofthe ABA Litigation Section's podcasts for litigators, including one titled "Eight Tips For Better Voir Dire."

4.  Look her in the eye?  The great blog Cognitive Daily had a post this week called "If You Want To Persuade A Woman, Look Straight At Her," describing a study where two listeners at a time heard to a "virtual" presenter, a computerized "avatar," read a persuasive script.  The researchers varied the avatar's eye contact; sometimes he (it?) looked away from both listeners, sometimes back and forth between them the way a normal speaker would, and sometimes, through the miracle of technology, simultaneously directly at each listener the whole time.  The result, accompanied by a dramatic graph:

While men weren't persuaded significantly more in any of the conditions, there was a large increase in persuasion for women when the avatar of the presenter looked at them for the entire course of the experiment, despite the fact that this meant the presenter's gaze behavior was often socially inappropriate. 

This is fascinating, but I'm not ready to start staring at female jurors.  It's one thing when a computer face looks straight at you through a whole conversation, and probably another thing when a real person does it.

(Trend note:  If the word "avatar," used to describe a computerized person, is new to you, it's time to learn it.  Take a few minutes and visit Second Life, a virtual land where people have created almost six million "resident" avatars.  More than 28,000 of them are walking around Second Life at the moment I'm writing this -- going to virtual jobs, hanging out in virtual bars, making virtual avatar friends, and buying virtual land.  You're going to have jurors who know all about Second Life.)

5.  Breaking news and preview of next week:  "Scientists Develop New Tool To 'Freeze' Crime Scene Memories."  This story, released today at Science Daily, looks worth a post of its own:

University of Portsmouth scientists have developed a powerful new tool that 'freezes' the memory of crime scenes in the minds of witnesses.

The tool - a self-administered interview applied by witnesses at crime scenes - combats natural memory decay by using the latest research in cognitive psychology techniques. It 'freezes' images and details of crime scenes and perpetrators in the minds of witnesses, particularly small and seemingly insignificant details that provide major leads for detectives that turn out to be crucial in solving cases.

Tests at simulated crimes scenes were remarkable with witnesses using the tool recalling forensically relevant information 42 percent more accurate than other witnesses who were simply asked to 'report as much as you can remember'. The tests also revealed the witnesses using the self-administered interview (SAI) were 44 percent more correct with details about people - therefore, possible suspects - who had been involved in the event.

6.  I know I point out Eric Turkewitz's weekly "Personal Injury Law Round-Up" roughly every time I do this, but he has everything I missed, plus that cool cowboy illustration.  Against the chorus of  virulent voices on tort reform in the blogosphere, Eric is leading a remarkably sane discussion, most recently in his just-the-facts explanation of the economics of a plaintiff's medical malpractice case. 

(Photo by Ho John Lee at http://www.flickr.com/photos/hjl/101443399/; license details there.)

Give Me Clarity Or Give Me Death

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

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

It's clear

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

It's unclear

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

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

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

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

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

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.)

Is That So? Deceived About Deception

  I've been a parent for a little over a decade now, and I think I'm getting pretty good at figuring out when kids are fibbing.  Between the times I could swear she's snowing me but she's telling the truth and the times I'm buying every word and the whole thing is a scam, I'd say I'm up to 40% accuracy on a good day.

Which means I'm catching up with the general population, according to a study described last week at BPS Research Digest.  Researchers at Göteborg University gave thirty children (ages 11-13) a challenge any kid would love:  fool the grown-ups.  The kids were told to describe two experiences, one that really happened to them and one that didn't.  They had to be fast; some had two minutes to make up the story, while the rest had to do it on the spot. 

Researchers interviewed the kids, and showed the taped interviews to sixty adult undergraduates, who tried to say which stories were true and which weren't.  The grown-ups were terrible.  Overall they got 51.5% right, "not better than chance."  They might have done better, but the prepared kids dragged the average down.  Using strategies like staying calm and adding realistic details, the kids who had two minutes to work on their stories fooled the adults 53.9% of the time. 

Grown-ups too

It's not just kids.  We aren't good at knowing when adults are lying to us, either.  "It doesn’t matter if you are male or female, young or old; very few people are able reliably to detect deception," writes psychologist Richard Wiseman.

Undergraduates may have looked inept in the Göteborg kids study, but in a 2004 study, Spanish police officers were less accurate than undergraduates at detecting adult deception.  Apparently the officers' problem was their "very strong tendency to judge the statements as deceptive."  In a 2006 BPS Research Digest guest article, Emma Barrett (more on her below) reports "the usual 50-60 per cent hit rate typically found in deception studies," and notes a study where English police officers did somewhat better than that.

Would that face lie?

Why can't we spot a lie?  We're distracted and fooled by practically everything.  In a 2005 study, subjects were thrown off by a baby-faced liars (we trust them) but also liars with mature faces (we assume they're knowledgeable).  We believe speakers who are confident, so much so that in this 2005 study, subjects "rated false testimonies as significantly more believable than true statements."  And we've already talked here about the credibility boost we award to speakers who are beautiful. 

Proximity is distracting, too.  A different Göteborg study showed that when subjects were personally in the room with a speaker, they were more likely to be fooled than they were when they watched on videotape --even though they thought they were more accurate judges in person.  Even camera angle matters.  Mock jurors' assessments of whether a video confession is voluntary have been shown to vary depending on the camera's perspective. 

It comes down to this:  the jury system requires jurors to assess credibility, and like the rest of us, they're not very good at it. 

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Resources on deception:

There's a whole blog on deception, straightforwardly titled Deception Blog ("collating information about applications of psychological research on deception").  It's great.  The Richard Wiseman quote above comes from today's post.  The author, Emma Barrett, also writes the very good Psychology and Crime News blog, "a place to collate information of interest in a forensic psychological context."

(Photo by Paolo Perini at http://www.flickr.com/photos/pperinik/171198564/; license details there.)

The Nacchio Jurors Speak

When a newspaper features a juror interview after a high-profile trial, it's usually disappointing.  A typical article uses a couple of quotes from the juror, and fills the rest of the column space with a review of who was suing whom for what.

When four jurors give separate interviews, though, and the resulting articles are even reasonably comprehensive, you end up with something useful.  That's what happened after the Nacchio guilty verdict in Denver last week.  Juror David McCanless talked to the Rocky Mountain News;  Doug Stoneman talked to the Wall Street Journal; Terrell Dye gave one interview to the Denver Post, and Anna Garduno gave another.  Some of the things that stand out when you line up all four articles:

1.  Jurors need visuals so much they'll make their own.  The Lewis Libby jury hung posters on the walls, each summarizing one witness's testimony and their reactions to it.  The Nacchio jury used a time line instead: 

The walls of the jury room behind the 10th-floor courtroom were covered with a 3-foot-wide band of paper. Notes written in black, yellow and red marker snaked across the paper, the products of a timeline that traced stock trades and earnings announcements.

Words in red symbolized something the jurors felt was suspicious, yellow pointed toward innocence, black was the color of raw information.

There was a lot of red, Garduno said.

2.  Jurors don't want to believe they are crediting emotional testimony.  Nacchio's defense team had two key pieces of emotional evidence, heavily stressed in opening.  First, lead defense lawyer Herb Stern argued that Nacchio could not have received a key memo because "[h]e was in Appalachia with his now abbot of the Saint Benedictine order distributing food in hovels to underprivileged people."  Second, Stern argued that Nacchio could have cashed out and abandoned Qwest altogether, but instead he stayed in part because his son tried to commit suicide.  The abbot himself came to testify. 

The jurors said neither point affected the verdict.  "We certainly had to dismiss it," McCanless said. "At best it was ancillary."  Stoneman echoed, “Sympathy and compassion aren’t supposed to be part of the decision,” he said.  As to the Appalachian trip, Stoneman remembered a cynical point made by the prosecutors:  “It might have carried more weight if he hadn’t brought a photographer with him.”

Similarly, the jurors themselves worked to minimize their own emotion.  "I felt so bad for his wife and son, and I cried," Garduno said.  But McCanless was among those to bring emotional jurors back:  "I had just reminded a couple of other jurors that we didn't create this situation.  He did."

3.  Jurors look for clear ways to cut through complex evidence.  After weeks of trial and days of deliberations, the Nacchio verdict came down to one date.  The Garduno interview explained:

On the timeline jurors had written on the wall, one date stood out - April 24. It was the day Nacchio had told Wall Street he saw no reason to back away from double- digit growth projections. In the months preceding that day, his executives had warned him repeatedly that those numbers were unrealistic.

"I went in thinking he was innocent," Garduno said. But it was hard to escape the fact that Nacchio knew by the time he spoke in the April earnings call that Qwest was headed for trouble. Still, he sold his stock.

The verdict was based on that date, plain and simple:  the jurors found Nacchio innocent of insider trading at all times before April 24, and guilty at all times after.

4.  Being smart can hurt you.  The defense painted a picture of Joe Nacchio as a highly competent chief executive who passionately believed in his company.  His intelligence came through, and it hurt him.  From the juror interviews:

• "We felt he had months of information," Dye said. "He had people telling him that those one-time sales were drying up. We felt in good conscience it wasn't possible that he didn't know, not a man of that intelligence. The fact is those one-timers were never divulged."
• "Mr. Nacchio is a very bright man," McCanless said. "At some point he had to get it. The man did not fall off a turnip wagon and land in the Qwest boardroom. He had to know he was committing a crime. He was too smart to not conceive of that."
• "[G]iven who he is and how competent he demonstrated himself to be,”Stoneman said, he had to be aware of the alleged insider information.

5.  Trying cases is hard.  I'm one of hundreds of lawyers who were taught by Herb Stern.  He has no idea who I am, but I regularly use his lessons, and I remember them more clearly because of his passionate and compelling delivery.  I remember being amazed at how he made trying cases sound easy.  I winced, then, to read in Anna Garduno's interview:

"I think a lot of what he did was an act, but he was so fun to watch," Garduno said. He carried a tote bag labeled "Dad" and he would dig through it for evidence "for 10 minutes," she said. When he pulled out documents, his hair would be disheveled.

But she thought his opening statement and closing arguments rambled, and jurors had a hard time paying attention to them. "I had hoped for his sake that someone else would have done the closing argument, he went off in so many different directions," she said.

The Rocky Mountain Times separately wondered whether the 70-year-old Stern had lost his touch.  I wasn't there, but what strikes me instead from the reporting is that trying cases is just hard, so hard that a very skilled teacher will struggle like the rest of us in a tough case.

6.  Jurors care.  As the verdict was read, the string of pre-April "not guilty" verdicts came first, and Nacchio thought he had won.  Garduno described the moment:  "You could see Mr. Nacchio smiling and his son and wife crying, and I felt horrible because they thought he was off the hook, and that was going to change," she said.  In a moment out of "Rocky Mountain High," McCanless said he "closed his eyes, began his deep breathing exercises and 'went to my happy place.'"  Only in Denver, I guess.

(Image by Stefan Powell at http://www.flickr.com/photos/duchamp/13777559/; license details there.)

American Gallery Of Juror Art Welcomes Elizabeth Perry

What a pleasure to discover Elizabeth Perry.  "I saw a lot of this staircase and interior," she says of her jury service last year.

"In December 2004," says Elizabeth Perry, "I decided to learn to draw by sketching something every day in a small journal." The result is her beautiful blog Woolgathering, where she posts one drawing or watercolor sketch each day. 

The daily drawing is "a moment to pause and look around," she said one day recently.  That's true for the viewer too when you see each drawing in the morning, but as a group, the drawings are more than that.  They're a remarkable record of a thoughtful life, for one thing; the days bring humor, beauty, love, and on the day after the Virginia Tech shootings, grief.  And they're a remarkable proof that a fleeting moment and a timeless truth are not opposite ends of a linear continuum.  It turns out the continuum isn't a line but a circle, and Elizabeth Perry works where the two ends meet.  Her drawings have a timelessness that seems to come directly from the evanescence of the moments she has chosen.

There is much more to Elizabeth Perry's work.  There is her Museum Drawing Project:

From October 1, 2006, through June 30, 2007, I plan to visit the public spaces of the Carnegie Museum of Art and the Carnegie Museum of Natural History in Pittsburgh, every day the museums are open. I will draw something in a small sketchbook in response to my experience, and post that drawing to a new sketchblog, www.museumdrawing.com, with short written reflection or response.

There are her Pittsburgh drawings, of which this jury duty drawing is an example.  They're posted at Flickr and at a group blog called Clusterflock.  By training she is a writer, not an artist; she has written a children's book, Think Cool Thoughts, together with nonfiction and short stories.  She has other projects ranging from interactive web/video student materials to knitting ("I do make up my own patterns.")  Somewhere in the mix are a job and children, and I have no idea how she fits all this together.  She describes her work in a steady voice that seems perfectly matched to her drawings, in a short video here. 

Many thanks to Elizabeth Perry not only for allowing her drawing to be used here, but for posting her Flickr work under a Creative Commons license that lets others use it too. 

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.)

What We Are Is What We See

You can strike a small blow at senseless tragedy -- a glancing, unsatisfying, hopeless blow, but a blow -- if you can learn from it. 

The lesson I'm most aware of is how strong is our urge to interpret events in a way that fits with the world view we already had.  You can see it in the blogs -- not so much the Big Blogs with hundreds of subscribers, but the thousands of individual blogs that were full of anger and pain yesterday.  You could run a few searches at any given moment and learn what the Virginia Tech tragedy is about.

It's about . . .

It's about gun control, of course, and our "insane love affair with guns."  If Cho Seung-Hui hadn't been able to arm himself so easily, Monday would have been a normal day.  Except that it's about concealed carry laws, since any armed student could have stopped the massacre. 

It's about violence against women, since some say one of the first victims was the killer's ex-girlfriend.  And it's about the "vile, damaging misogyny" of the media coverage, like an Australian newspaper who called the supposed girlfriend "the girl who may have sparked the worst school shooting in US history." 

It's about Korea, and "the level of violence against women [there], . . . in apartment complexes where you regularly hear women being viciously beaten and screaming at night."  It's "another reason to stop letting in so many foreign students."  And it's the fear of a backlash against Asians. 

It's about bullying; is Virginia Tech another Columbine?  It's about the heroism of a 76-year-old professor who, it's said, died blocking his classroom door against the young gunman, while his students escaped out the window.  It's about the failure of mental health care, about loneliness and isolation in our culture. 

A place for the new in the landscape we know

It's natural that people "know," so quickly and so confidently, what to make of Virginia Tech.  This is what we do.  We take what life gives us, whether it's commonplace or brutally new, and we give it a place in the mental landscape we already have.  We do this quickly -- desperately quickly if that's needed -- and we work with the new fact from that familiar place.  It's a lesson for trial lawyers, if that means anything today, because jurors do it.  It's a lesson for me; I'm doing it now.

(Finiky's photograph of Virginia blossoms was posted Monday on Flickr to honor the dead at Virginia Tech.  It's at http://flickr.com/photo_zoom.gne?id=462193412&size=m, together with license details.)

The Unsure Death Penalty Juror

They'll be talking about jurors at the Supreme Court today.  The case is Uttecht v. Brown, and it may or may not give trial judges clearer rules to follow when potential jurors express doubt about the death penalty. 

A little history

The cases were clearer back when the Court first started working on this issue, probably because the facts were starker.  In 1968 in Witherspoon v. Illinois, a state trial court removed for cause every potential juror who "might hesitate to return a verdict" of death.  By the time the purge was over, half the panel was gone.  The Supreme Court called the resulting jury "a tribunal organized to return a verdict of death," and reversed the conviction with ringing words: 

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

But the Court still accepted that a juror could be so opposed to the death penalty as to no longer be impartial.  In 1985 in Wainwright v. Witt (to which for some reason I can't link), the Court set out a standard for trial courts to decide whether to strike a juror on this ground.  Under Witt, a judge may strike a juror for cause if his views “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” 

A life-or-death sigh

Like many standards that sound firm when they're formulated, this one has been slippery in practice.  A  few weeks ago the South Carolina Appellate Law Blog noted a South Carolina case where the decision to strike the juror seemed to turn on a heavy sigh.  The juror said he could impose the death penalty, but “took a very big deep [breath] and exhaled as if he were very uncertain as to whether or not he could do that." 

This was the legal context in which Cal Brown was tried for rape and murder in Washington state court in 1993.  A potential juror named Richard Dean, called Z in the Ninth Circuit opinion, was removed for cause.  The prosecutor argued that Mr. Dean "was too reluctant to impose the death penalty, and that he would only vote for death if convinced that the defendant would 'kill again.'"  The trial judge granted the motion without explanation. 

With no trial court findings, the Ninth Circuit (Judge Kozinski, for those who follow such things) looked at the voir dire transcript:

Z expressed no antipathy toward the death penalty; to the contrary, he stated that he “believe[d] in the death penalty.” In explaining his views, Z outlined a balanced and thoughtful position. For example, Z was discomfited by an earlier era in which “[i]t seemed like . . . [the death penalty] wasn’t used at all,” because he believed “there [a]re times when it would be appropriate [to impose the death penalty].” But he expressed caution that the death penalty be reserved for “severe situations”: “I don’t think it should never happen, and I don’t think it should happen 10 times a week either.” Z felt most comfortable imposing the death penalty where the defendant is “incorrigible and would reviolate if released,” and less comfortable where the defendant is found to have been “temporarily insane.” But he stated unequivocally that he could consider the death penalty as an option if told to do so.

The court noted that "during the course of his voir dire, juror Z stated six times that he could follow the law and impose the death penalty, while not once stating that he might not be able to."

Layers of questions may mean few answers

What should the trial court have done?  It's a question of life and death, but this may not be the case where we find out.  Uttecht v. Brown comes to the Supreme Court on a habeas corpus petition, not a direct appeal, so there are many layers of "can the federal courts do anything about it" before we get to "did the trial court do it right."  Those procedural issues are ably (of course) summarized at SCOTUSblog, and the ABA has the parties' Supreme Court briefs here.

______________

Update:  The Uttecht v. Brown opinion was issued June 4.  It's discussed here. 

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

I Wanna Go Home

How often do holdout jurors give up so they can go home?  Too often.  You can't fix it after it happens, so it's worth some thinking in advance.

I wrote recently about the alleged "quotient verdict" in the Procter & Gamble/Amway case in Salt Lake City.  (Briefing continues there on whether the defendants get a new trial.)    Last month, the Third Circuit considered another kind of compromise verdict:  the "come on, let's just get out of here" kind. 

The case is United States v. Lakhani, and the opinion would have been shorter if the case hadn't first been featured on NPR's This American Life.  As the court explained, Helmant Lakhani "was a trader (i.e., a 'middleman') and didn’t limit himself in scope — groceries, rice, textiles, oil," and weapons, which he sold both legally and otherwise.  He answered the phone once too often, and wound up negotiating to sell a missile to a government agent.  To add insult to injury, it was a fake missile, filled with sand, provided to Lakhani by other government agents for the occasion.

"Aw, what the hell"

The defense was entrapment, and one juror, Juror No. 9, agreed with it.  No one might ever have known that No. 9 wanted to acquit, except that This American Life interviewed the jurors.  Juror No. 6 described the din as No. 9 held to her position:

The juror who felt that he was not guilty, I think, felt overwhelmed by probably a good 6, 7, 8 jurors talking loudly at the same time, that actually turned into screaming to be heard. It was probably very intimidating for her. . . . ‘Cause she [juror number nine] was the only one that thought that he was not guilty.

Then listeners heard No. 9 explain in her own words how she gave up -- not exactly so she could go home, but more so she could have a home at all:

Now this is how that happened. I just closed on a house in Virginia, and everybody [in the] juror room knew it ‘cause the court was closed down on April 25th so I could go close on the house. So when we came back, I think we started deliberating on a Wednesday, and when we got to [t]hat count and I said the man [is] not guilty, and there ain’t nobody gonna change my mind. And the jury foreman said [that] if I didn’t go along with them, I wouldn’t see the inside of my house until December. So, I said aw, what the hell. He don’t mean nuthin’ to me. The man guilty. But I know it was wrong. It wasn’t right to do that man like that. It wasn’t right. But it’s over now.

Nothing you can do

The Third Circuit had no trouble upholding the verdict.  Rule 606(b) prohibits juror testimony about anything but "extraneous prejudicial information" or "outside influence," the court explained, buttressing the point by noting that the rule goes back to 1785.  This jury's discussions, the court continued, were

so clearly within the rule and outside the exception as to make it difficult to give an explanation beyond stating the rule itself: “we do not  permit jurors to impeach their own verdicts.”

"Though explaining a vote with the phrase 'He didn’t mean nuthin’ to me' is hardly heartening," the court continued almost gently, "human frailty sometimes happens."

Home again, and again

To judge by mock trials and "jury duty" blog feeds, this particular kind of human frailty happens regularly -- not the rule by any means, but a common exception.  A search for juror bloggers who used the word "outvoted," surely the tip of any iceberg, yields stories here and here of holdout jurors giving up, just this spring.  (In at least one of these, the jury was instructed that a majority verdict was sufficient, but as best I can quickly tell, the other would not have been.)

After the verdict, there is nothing you can do.  The time to strengthen your client's jurors is in closing argument.  When jury deliberations get loud and stuffy and late, your client needs to mean something to your Juror No. 9.  What will you say to her?

(Photo by Sister72  at http://flickr.com/photo_zoom.gne?id=88844769&size=m; license details there.)

DC Circuit Says Okay To Strike Blind Jurors

Even as the deaf community debates whether South Dakota defendant Daphne Wright should have been tried by deaf jurors (there's an example here), the Court of Appeals for the D.C. Circuit ruled today that a prosecutor could lawfully strike blind jurors because of their disability. 

The U.S. Supreme Court has ruled in Batson v. Kentucky and later cases that prosecutors couldn't use race or gender as a reason to strike jurors.  In today's opinion, the D.C. Circuit held that Supreme Court precedent didn't require it to extend the rule to disabled jurors (I've omitted citations):

The Equal Protection Clause affords a prospective juror a right not to be excluded from a particular jury on the basis of race or gender, because discrimination on these grounds strikes at the "core guarantee of equal protecton," and is rarely justifiable.  By contrast, the Supreme Court has declined to treat the disabled as a suspect class in recognition of the reality that the States may have legitimate reasons for treating differently persons whose disabilities reduce their ability to perform certain functions.

The case is United States v. Watson.

Jury Notes From Elsewhere

The week was full of interest for jury watchers and trial lawyers:

1.  Helping jurors with sad facts.  In courtrooms all over the country at any given time, jurors struggle with nightmarish evidence.  This week alone, in addition to the "typical" shootings and graft (which ought to be sad enough), jurors heard about, and saw pictures of:

• Not one but two killings where the victim was dismembered.  Tearful jurors returned a guilty verdict in the Daphne Wright trial in South Dakota, while jury selection began in the Wisconsin trial of Brendan Dassey, Steven Avery's alleged accomplice in the killing of Teresa Halbach.
• A high school senior who was gang raped and killed, and her boyfriend who was stabbed and left to die.
• A 4-year-old boy who died tortured and abused by a couple who abandoned his body behind a dirt pile.

And on and on.  In this week's Jur-E Bulletin, Anne Skove lists services some state courts offer to help jurors after the trauma of these trials, and notes a bill pending in Texas (discussed here in TIME magazine) to require and fund jury counseling.  Skove's list is "an entirely unscientific survey," but it may help you get counseling for jurors in an individual case.

2.  Phrasing "reasonable doubt."   A different TIME magazine article, "The Benefit of Doubt," discusses how different phrasing of the reasonable doubt standard in jury instructions can change the jury's understanding of their task.  "[T]he way most courts define "beyond a reasonable doubt" seems to place the burden on the defendant to show a weakness in the prosecution's arguments," says the article, and continues:

Probably the best option would be to shift the inquiry from whether the prosecution's case evokes doubt to whether it is persuasive. [Brooklyn Law professor Lawrence] Solan suggests that jurors be "firmly convinced" of guilt, a phrase that focuses on the government's task (to persuade) rather than a defendant's (to create doubt). Several states and federal circuits have adopted similar wording.

3.  Lots of good stuff.  Evan Schaeffer's Illinois Trial Practice Weblog is as usual full of resources and thoughts for trial lawyers this week:

• An essay on using body language and inflection in cross-examination. You can "ask" questions you wouldn't be allowed to ask in words, Schaeffer explains.
• A plug for using legal wikis.  If you don't know what they are, read the post and get one.  After a kind tip from Boston IP lawyer Brandy Karl (who has her own blog too), I'm using a wiki to manage planned links and posts for this site, and it has saved my life.
• Thoughts on resources to be found for both criminal and civil lawyers at the Center for Criminal Justice Advocacy's Criminal Pretrial and Trial Practice website.

4.  Memories or inspiration, depending on your year of graduation.  The anonymous new lawyer at The Imbroglio had his/her first jury trial, and tells the story: "The good thing is that I no longer have to wonder if I can get through a trial without throwing up on my shoes." 

5.  A superb live blog.  Finishing where I started, with the Daphne Wright dismemberment trial, I hope Chuck Baldwin of the Argus Leader is getting the praise he deserves for his superb trial live blog.  The trial was intensely followed -- by the deaf community (both Ms. Wright and the victim, Darlene VanderGiesen, were deaf), by the gay and black communities (Ms. Wright is both), and by a shaken South Dakota region.  Every day, through the most horrible evidence, Mr. Baldwin was their resource, bringing curiosity, sensitivity, and (when appropriate) welcome humor to his task.  Now that there are so many trial live blogs out there, it's obvious that live blogging is not easy work; they're not all good.  This was a great one.

(Photo by Ho John Lee at http://www.flickr.com/photos/hjl/101443399/; license details there.)

Watch Your Video Clips Before The Jury Does

By all accounts it's going slowly in the Conrad Black trial in Chicago, but some moments are slower than others. 

"The endless arid desert of Noncompetistan"

The Denver Qwest trial started on the same day as the Black trial, and the Qwest jurors are already deliberating.  Meanwhile in Chicago, the prosecution's case continues. 

It sounds like the government is mired in its documents.  Mark Steyn at Maclean's describes "gazing at the giant projection screen, on which was displayed yet another memorandum" in the "shimmering haze of the endless arid desert of Noncompetistan," where "whole days go by without any witness mentioning Conrad Black."  Steyn is a Lord Black partisan, but he's not the only one who's bored.  Toronto Life chimes in that even evidence about the island paradise of Bora Bora

failed to lift the trial from the legal mud in which it wallows. The trial has grown so boring that CBC radio updates simply state that Black is there because of non-compete payments and leave it at that.

Death by video clip

You have to wonder whether jurors' hearts filled with hope when the television came out.  It was only a video deposition, but at least it was TV.  Alas, the deponent's lengthy testimony was "edited down to a rollicking 12-hour director’s cut," said Steyn.  The beginning, though, had to be more painful for the government lawyers than for the jury:

It began with an off-camera government attorney asking him to look at three documents and say whether he recognized them. They totaled about 400 pages. He studied the first page carefully. He turned to the second page and studied that. He turned to the third and paid it especially close attention.

It's easy to guess what happened.  Somebody on the government's team approved the video clip based on the deposition transcript, without actually watching it.  The transcript presumably said, roughly, "Question:  do you recognize these documents?  Answer:  Yes."  But the pause -- okay, the extended silent meditation -- didn't show up on the transcript, and nobody looked at the clip itself until the jury was looking at it too.  Steyn records the agony:

Outside [the deponent's] window, the leaves were turning quicker than the ones on his desk. By about page 327, I swear I could hear cicadas in between the page lifts.

Moral of the story

Watch your clips, watch your clips, watch your clips.  In my own experience, approximately zero percent of video clips are what you thought you wanted based on the transcript alone.  At best, the clip is always two or three questions too long when you hear it in real time.  At worst, you get -- well, something like this story.

(Image by Adam B. at http://www.flickr.com/photo_zoom.gne?id=81766440&size=m; license details there.)

Juries and Doctors: Not What You Think

"Hapless juries have become the symbol of a civil justice system run amok," says University of Missouri-Columbia law professor Philip G. Peters.  In an extensive new literature review, about to be published in the Michigan Law Review, Prof. Peters tests that stereotype, evaluating empirical studies going back thirty years on jury performance in medical malpractice cases. 

Real jury decisions, Prof. Peters concludes, are far more complex than the knee-jerk plaintiff's verdicts people keep complaining about.  His main findings are summarized in the abstract (the underlining is mine):

• "First, negligence matters. Plaintiffs rarely win weak cases. They have more success in toss-up cases, and fare best in cases with strong evidence of medical negligence."
• "Second, jury verdicts are most likely to square with the opinions of experts hired to evaluate the jury's performance when the evidence of provider negligence is weak. This is the very set of cases that most worries critics of malpractice litigation. Juries agree with expert reviewers in 80 to 90 percent of these cases - a better agreement rate than physicians typically have with each other."
• "Third, jury verdicts are much more likely to deviate from the opinion of an expert reviewer when there is strong evidence of negligence. Doctors consistently win about 50 percent of the cases which experts believe the plaintiffs should win."
• "Fourth, the poor success of malpractice plaintiffs in these cases strongly suggests the presence of factors that systematically favor medical defendants in the courtroom. The most promising explanations for that advantage are the defendant's superior resources, the social standing of physicians, social norms against "profiting" from an injury, and the jury's willingness to give physicians the "benefit of the doubt" when the evidence of negligence is conflicting."

"It is time to stop relying on intuitions and anecdotes when debating jury performance," Prof. Peters concludes, as he explores the implications of his research for trial presentation and for public policy.  He's right, but his advice may not take hold very soon.  It seems more likely that we'll keep stubbornly misunderstanding juries, even as we accuse them of stubbornly misunderstanding us. 

The full text of the paper, titled simply "Doctors & Juries," can be downloaded free at SSRN.

(Photo by Striatic at http://flickr.com/photo_zoom.gne?id=229529792&size=m; license details there.)

Juries Come To Kazakhstan

If you've ever taken juries for granted or wished them abolished, it's worth a minute to think about Kazakhstan.  For the first time ever, Kazakhstan is holding jury trials. 

I didn't know anything about Kazakhstan until I looked it up.  It's the largest of the former Soviet republics in central Asia.  Russian forms its long northern border, and to the east it borders China.  It's huge, the ninth largest country in the world by area. 

Kazakhstan's legal system is hardly a showpiece.  The State Department calls its human rights record "poor," listing "abuse and mistreatment of detainees and prisoners," "unhealthy prison conditions," and "corruption in law enforcement, the judiciary, and the legal system" among its many problems.  But with the help of the U.S. Agency for International Development and the Organization for Security and Cooperation in Europe, one thing has changed:  Kazakhstan's death penalty trials have juries now. 

The more things change

How did those first jury trials go?  According to the newspaper Caravan, translated in the blog Neweurasia.net, some challenges are the same whether you've had jury trials for two weeks or two hundred years:

About one third of the candidates informed the court that they could not take part in a trial. Some referred to being swamp at work. The teachers of the state university and the schools turned out to be the busiest people. Others said they had to take care of their sick husbands or wives at home, or worried about their chickens and cows left behind. One candidate, as it turned out, did not speak Russian, a language of the trial, another had an impaired hearing. Satybaldy Nurushev, who was worried about leaving his stock room unattended, became the very first juror in the history of the country’s judiciary.

Concern and hope

Neweurasia.net's Kazakhstan author, named Leila, is thoughtful and probably right in anticipating larger problems to come, problems of race and ethnicity:

[F]rom what I read, the selection of a jury does not provide for language, gender and ethnic criteria. In the United States, there was an infamous 1992 Californian trial in the case of Rodney King, where a jury that consisted mostly of white people acquitted the police officers of excessive force on a black man. In Kazakhstan, with the recent worrying events in Malovodnoe and Tengiz, where members of different ethnicities clashed after ordinary arguments, it might become important too.

Nevertheless she is full of a remarkable hope that juries might bring competence, honesty, and trust to her country's justice system:

I really welcome this news. Jury helps people to see what the trial is like and feel they become part of justice. In Kazakhstan, where people tend to mistrust the courts, having a jury might win back their trust. The defense and the prosecution will try to be more participative and prepare well to present their arguments. It would help combat corruption: it is more more difficult to bribe 11 people than one judge.

A moment of majesty

It's easy to laugh at juries.  When the Lewis Libby jurors asked about the reasonable doubt standard, the whole Internet seemed to rise up to call them morons.  At least twice a week I see the quote attributed to Norm Crosby:  "When you go into court you are putting your fate into the hands of twelve people who weren't smart enough to get out of jury duty."  The renowned trial teacher Herb Stern used to call jurors "undershirted beer suckers," and he had to answer for it in Denver last week. 

I'm in the other camp; I'm a little bit of a jury sap.  It's a flawed system, because we're flawed people.  But every time a room full of potential jurors takes the oath before voir dire, I have to pause at the majesty -- and hope -- of that moment and what it represents.  I wish them well in Kazakhstan.

(Photo by Steve Evans at http://flickr.com/photo_zoom.gne?id=9640383&size=m; license details there.)

How To Brainstorm Voir Dire Questions: A Practice Exercise

Jury questionnaire collectors, here are three more for your file.  Trial skills teachers, here's a group practice exercise I plan to try soon; you're welcome to borrow it.

I've said before that voir dire is a thought process, not a list.  You're brainstorming.  It goes like this:

• List all the topics your trial touches on. 
• Think of all the ways you might learn how jurors approach those topics.  You can and should ask directly about the topics, but that won't elicit very much.  Instead, focus on what experiences have shaped their reactions to your topics; what experiences will make them jury leaders on your topics; and how do they show -- through bumper stickers or buying habits -- how they feel about your topics. 
• Ask jurors to tell you about all those things, and you'll have done a strong voir dire.

It sounds simple, but when you're staring at a blank sheet of paper on Sunday night, you'll wish you'd practiced.  So here are some practice materials.  All the unsealed documents in the prosecution of accused 9/11 conspirator Zacarias Moussaoui -- pleadings, orders, grim photographs, everything -- are posted in a special section of the website for the United States District Court for the Eastern District of Virginia.  The government's and defense proposed jury questionnaires, and the final version the court gave, are all there.  (June 2007 update:  awhile after I wrote this, the court took the web page down; these links are to uploaded copies.  Thanks to John Gilleland of TrialGraphix for the final version.)

Building the topics list

The Moussaoui questionnaires make a great practice exercise, whether you're alone or with a group.  Start with the topics list; write down every topic you can think of that the Moussaoui case touches on.  Your list will probably begin like this:

• September 11
• Terrorism
• Muslims and Islam
• Law enforcement
• Crime and violence
• The death penalty

And so on.  When you're finished, read the government's proposed questionnaire, the shortest of these three.  Jot down the topics covered there that you didn't think of.  You might not have thought of airplanes, the 9/11 terrorists' chosen weapon.  You might list broader topics about the Middle East.  You'll note that the government asked about human rights, and write that down.

Next, before you go on, stop and explore your own thoughts again.  What would you add to the topics list that the government didn't include?  When the list is as long as you can make it, go to the court's final questionnaire and finally to the defendant's 69-page proposed questionnaire, expanding your list each time.  Give yourself the last word:  is there a topic that nobody thought of? 

Experiences and behaviors

On to step two:  what to ask about.  This part is not instinctive, but it's easy to learn.  If you ask directly about the topics on your list, you'll get some helpful information, but it won't be enough -- and it won't be accurate, because we all believe we're more open than we are.  You need experiences and behaviors:  what has happened to shape your jurors' attitudes, and what they do that displays their attitudes. 

Start with one topic on the list, September 11 itself.  What formative September 11 experiences might these jurors have had, and what might they have done or not done that would show it?  There are people who changed their whole lives after September 11 -- quit jobs, got married, joined the military.  What will you ask? 

Interestingly, the government's Moussaoui questionnaire has almost nothing on this topic.  One question asks whether jurors had family members or close friends who were killed or injured in the attacks, and that's about all.  By the time you go through the defense and final questionnaires, though, you'll have asked yourself whether these Virginia jurors drive past the Pentagon site; whether they know anyone who is reluctant to fly after September 11; and whether they had to work overtime after the attacks.  Can you think of anything else?  Any yellow ribbons around trees in their yard?

The more people the better

This exercise will also remind you that the more people you involve in this process, the better the result will be.  The government thought of things the Moussaoui defense team didn't, and vice versa. 

(Photo by Chelseagirl at http://flickr.com/photos/chelseagirlphotos/383788580/; license details there.)

American Gallery Of Juror Art Welcomes Christine Buckton Tillman

The American Gallery of Juror Art is proud to welcome Christine Buckton Tillman.

Christine Buckton Tillman is an artist in Baltimore, and a faculty member and Exhibitions Educator at the the Park School there.  She works in sculpture, drawing, and projection. 

The drawings in Christine's on-line portfolio are fanciful, fun, and mysterious:  flowers in rich layered colors fit into the squares of graph paper, indigo watercolor universes of constellations, and loops and garlands that look like party decor.  She says her work draws on "images and objects in which I see an inner dichotomy -- objects that are at the same time happy and sad, full of joy, and utterly hollow.  These objects lose something in translation," she continues. "The phenomena of a rainbow becomes trite and cliché on the cover of a notebook."

Christine's jury-duty drawings are notebook doodles, but they have a lyrical quality that hints of her "real" work.  She says the love note on the second drawing is really from her husband.  She posted the drawings in the "Drawing:  We Do It Every Day" pool on Flickr, which contains spontaneous daily sketches from over 750 pool members. 

All rights in these drawings are reserved to Christine Buckton Tillman; thanks to her for cheerfully agreeing to let them be shown here. 

_______________

Jury-related notes from all over this week:

1. At Austin Criminal Defense Lawyer, Jamie Spencer points to his former teacher Wayne Schiess's excellent legal writing blog, Legalwriting.net, and his several recent posts on the challenge of making jury instructions clearer. 
2. You can't talk to a jury unless you've made your way through discovery, and the new federal E-discovery cases and amendments are challenging all of us.  At Civil Procedure Prof Blog, the "Thursday interview" is with Hon. Lee Rosenthal of the United States District Court for the Southern District of Texas, who is introduced as "the architect of the electronic discovery amendments to the Federal Rules of Civil Procedure," and graciously protests that she is not the only one.
3. Jennifer Lopez showed up for jury duty in Beverly Hills, looking great.  If you ever decide to keep yourself current on jury matters, be aware that when Jennifer Lopez has jury duty, it's going to seriously clog up your news feeds.
4. Charles Dickens, wonderfully, quoted on voir dire at Blawgletter:  "A good, contented, well-breakfasted juryman is a capital thing to get hold of.  Discontented or hungry jurymen, my dear sir, always find for the plaintiff."

Sleep And Moral Judgment

New research brings another reason to watch for tired jurors in voir dire.

We've talked before about how you need to be aware in voir dire not only of jurors' past experiences, but also of how they are feeling on the day of trial.  That post noted that sleepy jurors, for example, don't remember information well.  A new study suggests something more dire:  lack of sleep may impair our moral judgment.

Slower after 53 hours

The study is "The Effects of 53 Hours of Sleep Deprivation on Moral Judgment," by William Killgore and others, published in the journal Sleep (and downloadable there if you subscribe) and summarized in Medical News Today.  The researchers asked 26 people, mostly men, to make judgments about the "appropriateness" of different responses to moral dilemmas, before and after 53 hours without sleep.  (The abstract and summary don't say why not 52 hours, or 54.  Maybe the subjects threatened to kill the researchers after 53.)

Lack of sleep made these people slower to choose a response, to the point where the researchers concluded that their moral judgment was impaired.  The more emotionally wrenching the decision, the slower the response time.  People who were already strong on an "emotional intelligence" scale, the researchers noted, were less affected by lack of sleep than others.

Slower and also harsher?

Some of the language discussing this study suggests that tired subjects made decisions not only more slowly, but also differently.  In the Medical News Today summary, Dr. Killgore is said to insist that his findings "do not suggest that sleep deprivation leads to a decline in 'morality' or in the quality of moral beliefs,"  but only that it leads to slow response and to

the change in the leniency or permissiveness of response style as evidenced by the tendency to decide that particular courses of action were 'appropriate' before and after sleep loss.

This language is a little opaque, and I didn't subscribe to Sleep to read the underlying data, but it sounds like he's saying that subjects were more lenient when they were rested. 

Likewise, the paper's abstract implies that when subjects were tired, they were more willing to go along with decisions they didn't really agree with:

The effect of sleep deprivation on the willingness to agree with solutions that violate personally held moral beliefs was moderated by the level of emotional intelligence.

For trial lawyers, one striking aspect of this research is that subjects were asked to agree or disagree to a set of choices, not to come up with their own moral responses.  It's a limitation people rarely face in real life -- except when they sit on a jury.  The jury instructions, the special verdict, and the need to be unanimous all limit jurors' moral choices in a way rarely found outside the courthouse and the research lab.

Are my jurors really that sleepy?

Hardly anybody really goes 53 hours without sleep in real life, though.  So is this really an issue? 

Fatigue is.  Most of us have seen a juror nod off in court, and it's not just because we're dull.  The National Sleep Foundation does an annual "Sleep in America Poll," focusing each year on a different set of issues.  The last time they looked at the overall population was in 2002, and the results were predictably grim:

• "Overall, 74% of respondents in the 2002 study experienced at least one symptom of a sleep disorder a few nights a week or more."
• "A sizable proportion of adults (37%) report that they are so sleepy during the day that it interferes with their daily activities a few days a month or more; and 16% experience this level of daytime sleepiness a few days per week or more."
• "24% state they get less than the minimum amount of sleep they say they need."

That doesn't count fatigue caused by other factors than lack of sleep.  Last month in Cleveland, a juror was dismissed "after falling asleep and becoming lethargic during deliberations" in a murder trial.  The newspaper said he hadn't been taking medication he needed. 

(Drawing by Peyri Leigh at http://www.flickr.com/photo_zoom.gne?id=137240285&size=o; license details there.)

Taking "Through Their Eyes" Literally

For many trial lawyers, the great challenge is to step outside our own perspective and view the trial as a juror does.  Here's a suggestion for both a starter exercise and a lifelong habit:  start by taking the challenge literally.  What is the jurors' view?  From where they're sitting, what can they see?

In South Dakota last week, a trial lawyer asked that question, and a cartoonist was startled to see his cartoon marked as Exhibit A.

Jason Folkerts was a newspaper cartoonist, not a juror, the day he drew this cartoon about jury selection in the Daphne Wright murder trial in Sioux Falls, South Dakota.  (So I guess it's not strictly juror art, but I'm going to put it in the gallery anyway, if only because it's in the record.)

It's an awful trial; Ms. Wright, who is deaf, is accused of killing another woman and dismembering her with a chainsaw, because she was jealous of the woman's friendship with Ms. Wright's own girlfriend. 

Against that grim background, it must have been a welcome moment to at least some observers when the focus of the trial suddenly became Jason Folkerts's cartoon.  Apparently one of the sign language interpreters had the cartoon attached to her notebook.  Defense counsel, public defender Jeff Larson, saw the cartoon, and was concerned that jurors might have seen it too. 

Chuck Baldwin of the Argus Leader, the local paper, is doing a wonderful job liveblogging the trial.  Folkerts reprints Baldwin's telling of the story at his own blog in a post titled My Cartoon Is Exhibit A In The Daphne Wright Trial...WHAT???.  The cartoon was marked as part of a mistrial motion, which was denied.  (The judge said he was the same distance from the cartoon as the jurors and couldn't tell what it was.)

Thanks to Jason Folkerts for permission to reprint his cartoon.  If by any chance you're counting references in this blog to Tinky Winky from the Teletubbies, this cartoon is number two; the first one is here.

The Shocking Case Of The Jurors Who Compromised

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

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

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

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

Quotient verdicts happen

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

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

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

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

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

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

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

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

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

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

* * * *

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

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

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

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

Take it to the street

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

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

____________

Related notes:

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

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

 

Message And Messenger As One: The Role Of Biography

Trial lawyers get a lot of advice about how to communicate things, if you will -- how to get our themes, evidence, concepts, arguments, and conclusions across to the jury.  We also know it's important to communicate a person -- to let the jury see and understand our client as an individual.  Most lawyers treat those as two separate tasks, but maybe they're not.

Lessons from the Obama campaign

If you want to talk to someone who spends every day trying to communicate both an individual personality and a set of themes and ideas, find a political advisor.  An article by Ben Wallace-Wells in yesterday's New York Times Magazine profiles one of the leaders of the moment:  David Axelrod, chief media and political advisor to Barack Obama. 

What Axelrod brings to Obama's campaign, the article explains, is not cutting-edge political philosophy or policymaking expertise, but the ability to tell Obama's story.  He believes in biography:

Political observers tend to dismiss bio pieces as fluff. But for Axelrod they supply a coordinating presence, a basic story to wrap the campaign around. There is precision in the fluff.

Wallace-Wells explains that Axelrod deals not with the traditional political strategy issues of changing minds or getting out the vote, but with "the problem of breaking through, of sounding different and new":

Axelrod says that the way to cut through all the noise is to see campaigns as an author might, to understand that you need not just ideas but also a credible and authentic character, a distinct politics rooted in personality.  . . . “One of the reasons Bush has succeeded in two elections,” Axelrod says, “is that in his own rough-hewn way he has conveyed a sense of this is who I am, warts and all.”

Attaching each idea to a biographical moment

So far, for a trial lawyer, that's just review.  What struck me about the article was the way Axelrod uses biography not only to tell his client's story, but as the anchor, vehicle, and structure for the campaign's more abstract themes and ideas. 

Thus Axelrod "has worked through Obama’s life story again and again," Wallace-Wells says, "scouring it for usable political material."  In developing an Internet video (it's here on YouTube), Axelrod attached each concept to a moment in Obama's life.  A "lingering, distant shot of Obama walking down a sunny southern Illinois road with his long arm around an older, short white farmer" became the way to communicate the candidate's "ease with conversation, his cross-cultural capability." 

He used "a grainy, C-Span-style shot of Obama talking about homelessness on the floor of the State Senate" as the vehicle "to establish Obama’s prior political experience."  Biography and theme keep twining together, with

two full minutes on his early life — his father’s background, his mother’s, his grandfather’s, the times he moved when he was a little boy. When you finish watching the video, you don’t have a particularly good sense of Obama as a politician (you might be able to say that he’s for change), but there is an intimacy — you have been drowned in his life, and you feel as if you know him.

Grounding theme in authenticity

One strength of this approach is that the campaign -- or the lawyer -- is less vulnerable to the temptation of a theme that sounds canned or false.  Axelrod tells Wells-Wallace how he has learned that when a candidacy fails, the problem isn't the the message itself, but its authenticity in that particular campaign:  “unless a message authentically reflects the messenger, it’s likely to fail.”  When the message is conveyed by ideas intricately knotted to biography, authenticity comes naturally.

(Image posted by David Shapinsky at http://flickr.com/photo_zoom.gne?id=262992034&context=set-72157594316694064&size=o; license details there.)