Deliberations

Jury Notes From Elsewhere, June 29

Jury talk in other places over the last couple of weeks includes:

1.  Advanced seminar in closing argument.  Closing arguments in the Conrad Black trial took all week.  MacLean's Mark Steyn sent out partisan-but-wonderful highlights, like the way defense lawyer Ron Safer instantly wove an objection into his argument:

Safer scoffed at [a prosecution argument], pointing out that his client didn't know what proportion Conrad Black owned of Inc vs what proportion he owned of International. He didn't know what proportion of Inc was owned by Radler or Ravelston.

[Prosecutor] Eric Sussman leapt to his feet. "Objection! There's no evidence about what Mark Kipnis did or didn't know."

"Exactly!" said Safer. "That's the very point I'm making." The room fell around laughing, and defence counsel jabbed his finger at the chief prosecutor: "They have the burden of proof. A tie doesn't go to the government."

And this simple gesture by another defense lawyer, Michael Schachter:

Michael Schachter ended his closing statement by asking [his client] Peter Atkinson to stand up. Peter did, a bald sheepish man looking a little flushed and embarrassed by his moment in the limelight.

But it was worth doing. Amid all the computer screens and transcript binders and dozens of lawyers, it's easy for the three of the four defendants who aren't larger than life British peers to get lost amid the clutter.

2.  Juries and damages.  At Point of Law, David Rossmiller notes a paper by Prof. Cass Sunstein suggesting that juries and judges overestimate the harm felt by plaintiffs who have lost some aspect of a normal life (like the ability to walk, say), and underestimate the harm caused by "consistent low-level pain."

3.  When lawyers and FBI agents show up in voir dire.  Scott Greenfield at Simple Justice, prompted by a post here, tells about the recent time he had an FBI special agent and a prominent criminal defense lawyer on his jury panel, and how the trial judge handled the potential bias of each. 

4.  Rethinking assumptions.  Lawyer Ron Miller, writing at the Trial Lawyer Resource Center, makes a case for seeking out ideas that challenge your jury habits.  He writes that he has long subscribed to the idea "exposing the flaws in your own case scores credibility points with the jury and that you can frame your weaknessess better by getting out your own version of the story first."  (I've written here about a study that seems to support that approach.)  Now Miller is reading a book that argues the opposite tactic, argue only your strengths, is the way to go.

5.  Taking risks in voir dire.  Mark Bennett at Defending People answers an anonymous prosecutor who asks, "Do you think it's wise to ask the jury can they think of any reason why the defense lawyer may not want his client to testify? What if they say 'Because he has a record'?"

Everything I've missed, and there's a lot, is at this week's Jur-E Bulletin as always.

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

Jurors Who Read Blogs

One of Mark Stein's terrific missives from the Conrad Black closing arguments in Chicago this week was this:

One lady juror appears to be reading. A book? The paper? Her bus ticket? This blog?

If it's the last, hi there, the pink really suits you, free for a drink at lunchtime?

He was kidding, but it's not absolutely impossible.  We've talked about jurors who write blogs; recent stories from New Jersey and California remind us that jurors also read them. 

Blogs about jurors reading blogs about jurors . . .

In New Jersey, lawyers for murder defendant Melanie McGuire failed to convince the trial judge that she should get a new trial because the case was so heavily covered, in blogs as well as traditional media.  The news stories suggest that the jurors were deeply aware of the coverage, but the trial judge said he was satisfied they weren't tainted.  Kevin O'Keefe at Real Lawyers Have Blogs pointed to a good local pre-hearing article, and there's a shorter post-hearing article linking to some of the trial blogs in question.   

In California, the trial in question started in April and is still going on.  It's a criminal fraud trial over the collapse of Peregrine Systems, a software developer; three executives and the company's (former) Arthur Andersen accountant face charges.  Local lawyer Robert Grimes is posting detailed daily reports on the trial at his web site -- having been "hired to write the blog," says the San Diego Union Tribune, by a law firm that is involved in civil litigation over the Peregrine mess.  (First I've heard of lawyers anonymously hiring trial bloggers.  That raises interesting issues.)

Jurors reporting jurors who read blogs . . .

The Peregrine prosecutors, and apparently some other jurors, were concerned about Juror No. 7 already.  Back in June (I'm getting all this from the Union Tribune article), jurors sent out a note which prompted the judge to ask No. 7 if he had read about the case on the Internet; he said he'd looked to see if there was media coverage, but didn't read any.  On Tuesday another note came out, saying No. 7 had called the case "B.S." and a waste of time.  Questioned again by the judge, No. 7 admitted he had read Grimes's blog, and he was gone. 

"The move could represent a setback for defense lawyers," said the Union Tribune, "as the juror often nodded and smiled during their cross-examination of witnesses called by prosecutors."  But there may have been a symmetry in the ruling.  Defense lawyers got a ruling preventing five witnesses from testifying -- because they had read Grimes's blog.

Ask.  Instruct.  Remind.  Repeat.

The moral is, as it so often is, ask and ask, instruct and instruct.  Remember especially that many jurors can get to blogs -- and the rest of the Internet -- from the jury room itself, not just from home.  Remind them that news means all news. 

Defense counsel, let them hear it from you too.  You don't want your juror advocate to be sent home because he thought reading blogs would be a great way to stick it to the government.

How To Brainstorm Voir Dire Questions: A Practice Exercise (Rerun)

I'm heading out of town for a few days, so I'm taking the liberty of reprinting a post from early April.  The Moussaoui questionnaires discussed here are newly added to Deliberations' juror questionnaires library.  Meanwhile on Monday the Supreme Court granted certiorari in Snyder v. Louisiana, where the defendant claims the prosecutor combined race-based strikes with race-based arguments.  I won't be able to discuss it until next week, but Lyle Denniston of SCOTUSblog has a lengthy post here. 

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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.)

What Do They Know?

It's one of the most common questions a jury consultant gets:  will the jurors know that?  If I make this analogy, this reference, this joke, will they know what I'm talking about? 

We're absorbed in our own lives even before we disappear into trial preparation, so it's easy to lose track of what the rest of the world does and does not know.  Luckily, the news brings partial answers to this question every day, if we're paying attention.  It turns out that most people know more than you thought they would about some things -- and less than you thought they would about others.

They don't know much civics -- or geography, or history, or literature

In an article it titled "Dunce-Cap Nation," Newsweek yesterday released the results of its "first What You Need To Know Poll."  The poll results themselves are here.  It's not clear how these particular questions were chosen, but only 11% of people came up with John Roberts when asked to name the Chief Justice of the Supreme Court; 40% couldn't pick Nancy Pelosi out of a multiple-choice question asking for the name of the Speaker of the House; 20% thought Christianity was older than Judaism; and 35% picked someplace other than South America in a multiple-choice question asking where the Amazon River is. 

They know more than you thought about drugs, and sex

"More than one in five adults 20-49 years of age have tried cocaine or other street drugs at some time in their life," says the National Center For Health Statistics in a study of drug use and sexual behaviors released yesterday.  (The study itself is here and the press release is here.)  "Twenty-nine percent of men reported having 15 or more female sexual partners in a lifetime compared with 9% of women who reported having 15 or more male sexual partners in a lifetime," the release continues. 

They don't know what people of other races experience

“White Americans suffer from a glaring ignorance about what it means to live as a black American,” said Mahzarin Banaji, co-author with Philip Mazzocco and others of a paper in the fall 2006 issue of Harvard’s Du Bois Review.  (Press releases for the paper, called “The Cost of Being Black: White Americans’ Perceptions and the Question of Reparations,” came out yesterday.) 

The authors reached this conclusion after asking white subjects to imagine what they would want to be paid if they had to live as a black person for the rest of their lives.  Less than $10,000, typical subjects responded. 

Economically, the answer was way off.  "White households average about $150,000 more wealth than the typical black family," explains the press release, and "[o]verall, total wealth for white families is about five times greater than that of black families, a gap that has persisted for years."  (Key for lawyers:  when researchers explained these costs to subjects, the amounts they requested went up.)

The subjects weren't just low graders, economically speaking.  They typically imagined they'd need more than $1 million to give up television permanently.  And when researchers asked them to imagine they had been disadvantaged in nonracial ways, they asked for much higher figures in compensation. 

They know the health care system has gaps

Another study released yesterday at the National Center for Health Statistics details how gaps in the health-care system play out in people's lives.  It's called the "National Health Interview Survey" (summary here, study data here and here), and it reveals among many other things that almost 20% of Americans 18-64 did not have health insurance in 2006.  That means someone on your jury likely has an uninsured friend or loved one, even if they're all insured themselves.

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Source notes: 

1. Thanks to both Eric Turkewitz of New York Personal Injury Law Blog and the Blog of Legal Times for picking up the Newsweek poll. 
2. Before you let that poll make you too hard on your fellow people, you might want to take it yourself.  I missed a couple of questions.  Even Newsweek spelled Jane Austen's name wrong  in the poll questions -- and, as Eric and BLT point out, spelled "charitable" wrong in the article. 

(Photo by  at http://www.flickr.com/photos/dcjohn/74907741/; license details there.)

Voir Dire Questions That Could Have Been Better

"Ladies and gentlemen, this next question is another one of those two-part questions, okay, so listen carefully," the trial judge began, in one of two cases decided Friday demonstrating unhelpful ways to conduct voir dire.  You can picture the jurors looking up.  The judge continued:

If your answer to the first question is yes, don’t raise your hand right away, but listen very carefully to the second question. If your answer to that question is yes, you must raise your hand and come up and talk to the Court about the issue. Okay?

Okay . . .

Now, here is the first question. And, again, you don’t need to raise your hand. Listen carefully. This is a question about you personally, you personally as well as any close family member or close personal friend. Is there anyone in that group, either you personally, close family member or close personal friend, who is either presently or previously employed by any law enforcement agency?

Good question.  But of course no one is raising a hand yet.

Now, if the answer to that is yes, listen very carefully to this question. As a result of that experience that either you had personally or are having right now as an employee, as a result of that experience or as a result of the experience of a close family member or a close friend, . . . do you believe that you, that you personally would be unable to be fair and impartial to both sides if selected as a juror in this case?

Do you mean . . .

Wait a minute.  One of those people could be a career police officer and the lawyers would never know it?  That's right -- and once the compound voir dire questions were finished, the lawyers also had to rely on jurors' assessment of their own bias to learn whether prospective jurors knew the other jurors; were involved in criminal defense work; were lawyers; had served as grand jurors; or had served as jurors in a criminal case before.

The D.C. Circuit agreed that "[t]he defect in that question is obvious," and vacated the conviction on Friday in U.S. v. Littlejohn.  The court matter-of-factly recognized the reality of unconscious bias, citing its own recent case, U.S. v. West:

“[W]hether a juror can render a verdict based solely on evidence adduced in the courtroom should not be adjudged on that juror’s own assessment of self-righteousness without something more.” And as West recognizes, such self-evaluation is particularly troublesome when jurors are asked about the potential bias caused by their employment history. Even the most scrupulous juror may not recognize that “lingering loyalty [to a past employer], friendship of persons still employed there, or knowledge of agency procedures” may color his or her judgment.

(I omitted citations in the excerpt.) 

The Littlejohn opinion is carefully limited; in fact, the defendant in West lost on appeal, despite similarly flawed compound voir dire questions.  But under the “particular circumstances of this case,” the D.C. Circuit said, "the district court’s compound questions denied Littlejohn 'a full and fair opportunity to expose bias or prejudice on the part of the veniremen.'”

On the other hand

The defendant didn't do as well in Friday's other confusing-voir-dire case, Nicklasson v. Roper, a death penalty habeas case from the Eighth Circuit.  In the "death qualification" phase of voir dire (what a phrase to have to use), the trial court explained the allegations asked the jurors, if they found Nicklasson guilty:

(1) whether they would automatically vote for the death penalty, (2) whether they would automatically vote for life without probation or parole, and (3) whether they would be able to follow the court’s instructions and consider both the imposition of the death penalty or the imposition of life without probation or parole.

Apparently no one explained that these were alternative choices:

Sixteen venirepersons responded that they would both automatically impose the death penalty and would automatically impose life imprisonment if they convicted the defendant of first-degree murder. Despite this contradiction, the court refused to ask additional death qualification questions or allow counsel to do so.

Not pretty, but this is habeas.  "Were we reviewing this case on direct appeal, we might have come to a different conclusion," the Eighth Circuit said.  But it held that the Missouri Supreme Court wasn't "objectively unreasonable" -- the federal habeas standard -- in upholding the conviction.  The case is one of the first to cite the Supreme Court's latest death-penalty-juror case, Uttecht v. Brown, stressing the importance of the trial court's ability to observe jurors first-hand. 

(Image by Tall Chris at http://www.flickr.com/photos/tallchris/14288097/; license details there.)

Blogging Jurors, Part III: The Good

We're in the middle of a series on juror bloggers, inspired by the purple prose of Juror No. 8, the Bad Blogger in California's People v. McNeely case.  It's time to speak up for all the good juror bloggers.

They're out there

One of my first posts -- I still really like it -- was on juror blogs and what lawyers could learn from them.  The simple act of keeping an eye on jury blogs, a few feed hits every day, can slowly teach you what a mistake it is to assume anything about jurors.  We confuse blank faces with blank slates, when in fact the thoughts and attitudes jurors bring to court are incredibly varied.  Juror blog entries can be hostile, frustrated, curious, inspired, scared, angry, distracted, or bored -- very, very often bored. 

Most of these bloggers never get past the waiting room, and most of the rest leave after voir dire.  It's a rare blogger who actually gets to deliberate.  When they do get that far, their posts very commonly say they can't talk about the case, and so if there's a description of deliberations, it comes after the verdict or not at all. 

Whatever stage of trial it describes, a juror blog entry often has something to teach.  The best ones are also a lot of fun.

Viva El Birdos

Last week this blog started getting page hits from a site called Viva El Birdos.  Lots of page hits -- from a site by and for fans of the St. Louis Cardinals, where they "take our baseball seriously and in proportion."  Turned out that the site's author, Larry Borowsky, had written about jury duty, and Deliberations juror artist David Salvia, a Cardinals fan, had linked to this blog in the comments.  So many people read Viva El Birdos that this blip was enough to send a lot of them here. 

This blog probably has little to interest Cardinals fans, but Borowsky's completely appropriate jury duty post in Viva El Birdos has plenty of tips for lawyers.  To start with, give a gold star to the prosecutor, who asked enough questions to unearth Borowsky's blog.  Then admire the defense lawyer, who saw the blog as a moment both to explore the reasonable doubt standard and get in a little self-deprecating humor:

during voir dire, i stated that i make my living as a writer; the prosecuting attorney asked me what type of writing i do, and i gave him a quick description of my client base and said, "that's most of it" or something like that. "most of it," he says; "what's the rest of it?" "i also write a blog."

Q: a blog? [raised eyebrow] about what?
A: the st louis cardinals baseball team.
Q: oh. [pause] how do you feel about mark mcgwire being kept out of the hall of fame?
A: well, i'm not all that interested in the hall. but i do think he cheated with steroids.

i'm not making this up, now; this exchange really took place. (and i'd like to know how the court reporter rendered "mark mcgwire" on that freaky keypad of his.) i think my answer left the prosecutor saying to himself, hell yeah, i'll take this guy on my jury; he's ready to convict the hometown sports hero on nothing more than circumstantial evidence. then the defense attorney gets up there and says:

Q: mr borowsky, how you can you be convinced beyond a reasonable doubt that mcgwire used steroids?
A: i'm not convinced beyond a reasonable doubt.
Q: but you said that you think he cheated with steroids.
A: that's right --- i do think he cheated. but mcgwire's not on trial, so the beyond-a-reasonable-doubt standard doesn't really apply.
Q: i see. so if you were judging him in a court of law, you'd apply a more rigorous standard of proof before you'd convict him --- is that correct?
A: yes sir.

so now this guy wants me too; he's telling himself, borowsky will give a guy his day in court, even a guy who might look kinda guilty. but the defense attorney's not quite finished:

Q: in the interest of full disclosure, i should tell you that i grew up on chicago's north side. [pause] knowing that, do you think you can give my client a fair trial?

The next day, Borowsky used a sentence to describe the prosecution's allegations against the defendant -- but nothing you wouldn't read in the paper, and only as a nice intro to a rant on Cardinals pitcher Kip Wells.  Later Borowsky reported that the case was over, a guilty verdict.  He said he might write up the details, and I hope he does.  There's nothing like a good jury blog.

(Photo by Tim Lindenbaum at http://www.flickr.com/photos/lindenbaum/399058046/; license details there.)

Blogging Jurors, Part II: Some Relevant Law

When we left the story of People v. McNeely or the Bad Blogging Juror, the California Court of Appeals had ordered the trial judge to interview Juror No. 8, author of the steamy deliberations diary, and his colleagues.  The trial judge is assigned to find out two things in this investigation:  whether the verdict was coerced or compromised, and whether it's possible to overcome the "presumption of prejudice" No. 8 created when he lied in voir dire about being a lawyer.

Inspired by Juror No. 8, I left you with a cliffhanger of my own:  half of that order probably couldn't have been made under the federal rules.  And the blog?  Cases like this really aren't about the blog at all.

Bringing jurors back to ask about the verdict:  California yes, federal rules no

Under the Federal Rules of Evidence, and the many state rules modeled after them, there would likely be no juror reunion to figure out whether Juror No. 8 coerced McNeely's verdict, or whether the jurors improperly compromised.  As we've seen, Rule 606(b) limits these inquiries to "extraneous prejudicial information" and "outside influence":

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (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. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

The California rules are different, though, and their Evidence Code section 1150(a) seems to let judges question jurors about anything that might have influenced the verdict, internal or external:

1150.  (a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.  No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.    (b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict.

(I don't know what that subdivision (b) means; there doesn't seem to be a 606(b) equivalent somewhere else in the rules that it might refer to, and I didn't look at case law.  If you're from California, feel free to write in on this.)

It's not about the blog

As for the blog part, juror blog cases have come up before.  This March the National Law Journal  ran an article about this New Hampshire case where a juror blogged, and that in turn was the talk of the blogs for many days.  "Should jurors be allowed to blog?" is the way the question is phrased sometimes, and I hope we keep answering that they should.

It's not about the blog.  A blog is just a way of talking, and jurors have been talking for a really long time.  They sometimes talk about the case, although they've been instructed not to.  They talk about the deliberations, sometimes after the verdict and sometimes before they're done.  And they sometimes talk about their biases in ways they never mentioned in jury selection. 

Whether we learn about it from jurors' co-workers (as in New Jersey's recent State v. Loftin, discussed here), or from post-trial juror interviews (as in the recent Procter & Gamble/Amway verdict), or from articles the jurors wrote (like New Jersey state senator Robert Martin), the point is what the juror said, not where he chose to say it.  Good instructions and a good Ask from the court, and good voir dire questions from the lawyers -- do you blog, do you Twitter, do you comment, do you Facebook, do you YouTube, do you Flickr, do you dream of writing a legal potboiler -- will get us through most trials without a Juror No. 8.  Where he does slip through, a prohibition on blogging wouldn't have stopped him.

I say this in enormous self-interest; I love a good juror blog.  When this series continues, I'll offer two recent ones, each with a little humor and a nice lawyer lesson.

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Note:

I've left out the more interesting legal issue here:  the juror's lie in voir dire, and the "presumption of prejudice" that flows from it in California.  Different jurisdictions handle this differently, and I have to leave the whole topic for another post.  If you're in a hurry and you happen to live in Florida, Robert Kelley has your juror concealment cases collected here. 

Blogging Jurors, Part I: The Bad (Or, The Burglary Trial As Legal Thriller)

I quickly shot out, 'I recommend we take a quick poll to see where we stand.'

A woman interjected, 'No, let's wait. I don't feel comfortable doing that so early.'  I had hoped popular sentiment would lead us to decide this thing quickly, but underestimated the apparent sympathies among some of the jurors. I decided it best to let others speak.  They were wanting to speak, so I let them speak.

Whoa.  Is it the latest John Grisham?  Scott Turow?

No, it's Juror No. 8, blogging the California burglary trial of Donald McNeely in 2006.  He blogged at such length and with such gusto that he sent McNeely's conviction -- to which, by his account, he guided the jury with powerful insight and skill -- to the California Court of Appeals, where it was vacated this week. 

[F]or the next hour-and-a-half, the jury in the People v. Donald the Duck slowly congealed into a rational, investigative body of folks who ultimately realized that stealing was wrong, and that we ought to act responsibly. All, that is, except for Brad, the confident, muscular skinhead character with a carefully shaven goatee sitting directly at the head of the table, to my right. This cocky young fellow I had unease about since seeing him lope down the hallway on day one. He had stared at me for just a second or two too long when he first saw me, expecting some sort of acknowledgment to his presence from another white guy.

Trouble ahead. 

It wasn't just that Juror No. 8's blog cast him as the Chuck Norris of this jury.  The blog posts started in mid-trial, not after the verdict -- and they revealed that No. 8 had lied in voir dire, claiming he was his office's "project manager" and omitting the more accurate term "lawyer."  ("More neutral than lawyer, don't ya think?" he crowed in the blog.)  "This is a situation where a manipulative person, who unbeknownst to other jurors and the trial court was also a practicing attorney, deliberately maneuvered himself into the position of foreperson and potentially hastened the jurors to a verdict," said the troubled Court of Appeals.

At this point, the deliberations took a turn for the unexpected. The stiff man to my right, Brad, Mr. Tough Guy, blurted out, 'I can't believe you people. You're spineless! Can't you see this guy did it?! I know about justice, man, I have a friend in jail for attempted murder. Until you lose something yourself, you never know! I know, man! Come on!' His voice rose as he got excited that he finally had the attention of everyone in the room . . . . "

Gil spoke up. 'Who are you calling spineless?' Brad continued unrepentant. 'I mean, this is wrong. We got to put this guy away. Why do you think we're here? You don't know, man! I know! Unbelievable that we're gonna let this guy walk! Not me! '

The lying part was easy for the Court of Appeals.  When you intentionally mislead the court and lawyers about something they would fairly want to know, the court explained, there's a presumption of prejudice.  To let the verdict stand, the trial court should have not only reviewed Juror No. 8's writings, but also talked to him, and any other juror willing to talk.  (It's all about the Ask.)

The court struggled a little more with No. 8's leadership role, let's call it, in the deliberations.

I decided to shut him up. 'We're all bringing experiences to the table, and I'm making the count now. This is not a perfect process. Don't let the perfect be the enemy of the good.' Suddenly my wisdom bell was ringing like a church bell at a wedding. I said rather sternly, 'Give me a "guilty" or "not guilty," no commentary[.]' Around the room, I polled everyone individually. Each voted guilty on count five. I signed the jury forms then asked Bonnie, closest to the door, to buzz [t]he bailiff.

It was too much for the Court of Appeals.  "Assuming Juror No. 8 was reasonably accurate in his recitation of what went on in the jury room," the court said (and I'll pause here to let the reader consider that assumption), the possibility of pressure, coercion, or a compromise verdict was too strong.  The trial judge was ordered to bring back Juror No. 8 and his colleagues, and question them about "the integrity of the deliberative process," "the overt events and circumstances of the proceedings in the jury room," and presumably whether anyone else heard No. 8's wisdom bell.  The court said:

An inquiry into these matters would not violate [California] Evidence Code section 1150, subdivision (a) because it would not require investigation into the subjective reasoning processes of the individual jurors.

That's where we'll pick up with the exciting sequel tomorrow.  Okay, less exciting, because it will talk about things like how this opinion would have been different under bthe federal rules -- and how, entertaining as it is, No. 8's blog isn't really the issue. 

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Notes:

1. Kevin O'Keefe at Real Lawyers Have Blogs was one of the first to pick up this story, as he is early to pick up just about anything that occurs near the corner of Law and Blog. 
2. I looked for No. 8's blog posts and couldn't find them; I'm guessing they've been taken down.  The Court of Appeals opinion excerpt, though, goes on for pages. 
3. Later in this three-part series:  "Blogging Jurors:  The Good."
4. Far more seriously, thanks to Clay S. Conrad of jurygeek for his comment yesterday on activist jurors.  That post began when a white supremacist wrote to me saying white jurors should use what the writer called "jury nullification" to acquit white defendants accused of harming African-Americans and immigrants.  Conrad argues that such verdicts often aren't jury nullification at all.

(Photo by Kreg Steppe at http://www.flickr.com/photos/spyndle/485472993/; license details there.)

The Details Of Unanimity: Classroom And Courtroom

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

Is it A, B, or C?

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

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

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

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

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

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

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

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

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

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

_________________

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

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

Announcing The Deliberations Library Of Sample Juror Questionnaires

I know you're out there.  I see your searches.

They come in steadily all week, then surge on the weekend.  "Voir dire questions murder case."  "Illinois personal injury voir dire."  "Voir dire questions in a fraud trial."  "Sexual abuse case voir dire."  "Jury voir dire in a civil rights case."  Sometimes you spell it "voire dire," but you still end up here.

Maybe you're working ahead, because you know that thinking early about the jury makes you think about the case in new ways.  Or maybe your trial is Monday morning; your jury instructions and motions in limine and exhibits are in, and you're turning to voir dire because you finally can.   You may already have an outline and are looking for a checklist to see what you missed, or you may be starting from scratch.

Whereever you are in the project, you're not looking for a bunch of musing, occasionally amusing essays that may or may not add up to something helpful.  You're looking for one list, all in one place, something you can use. 

Announcing . . .

For you, voir dire question searcher, Deliberations announces its new Sample Juror Questionnaires library.  (There's a link on the sidebar.)  On this page is a growing collection of jury questionnaires, either given or proposed, from actual cases.  Use them to brainstorm or cross-check your own voir dire questions; as source material in asking your judge to allow a jury questionnaire; or just as a way to think about how an individual juror's background and experiences might shape the way she hears your case. 

Please feel free to submit questionnaires for this page, whether approved by the court or merely proposed, and ask your friends to do the same.  If you send one, I'll credit you as author or contributor, and link to your website if you'd like.  You can E-mail submissions to me at [email protected]; please tell me a little about the case as well, so I can describe it helpfully.  Likewise if you're the author of something I've already posted and would like credit, let me know.

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

Jury Notes From Elsewhere, June 15

Things of interest to jury watchers and thinkers over the last couple of weeks:

1.  Seale convicted.  In breaking news, James Seale's jury convicted him last night of kidnapping and murdering teenagers Charles Moore and Henry Dee in 1964.  (I had written about the voir dire here.)  Congratulations again to Matt Saldaña and the Jackson Free Press for their coverage; Matt's description of closing arguments shows again how powerful a simple this-is-what-I-saw report can be.

2.  The British survey.  They're talking juries in England, after the release of a four-year study on the demographic make-up of juries there and how racially mixed juries treat defendants of different races.  I haven't read the study itself, and the headlines on it are a puzzle at first. 

The government news release proclaims, "Juries and the jury system in England and Wales are fair, unbiased and balanced, according to a groundbreaking study today," and continues, "The new research shows in particular that the jury system does not discriminate against people from black and minority ethnic (BME) backgrounds."  Not against them, but how about for them?  The Guardian's story begins, "Black and ethnic minority jurors show more leniency to black defendants than their white counterparts in court, research commissioned by the Ministry of Justice revealed yesterday."  The Economist seems to play it pretty straight:

Contrary to widespread belief, no discrimination was found. In an elaborate case simulation at London's Blackfriars court, which involved more than 300 jurors on 27 juries, the verdicts were all remarkably similar, regardless of whether the defendant was black, Asian or white.

This does not mean that a defendant's race did not influence individual jurors. Black and Asian jury members tended to show more leniency toward black defendants (though not, interestingly, toward Asians), whereas white jurors were usually softer on white defendants. But these individual biases did not affect the collective verdicts of the juries, the report says. Ten of 12 jurors must usually agree for a verdict to be reached, so individual biases cancelled each other out.

3.  New source for research.  Empirical Legal Studies Blog reports on a new "journal" at SSRN, one of the main places to look for social science research on the Web.  The new journal, called Law and Courts,

will distribute abstracts of working papers, forthcoming articles, and recently published articles dealing with judicial decisionmaking, including the determinants of decisions, the influence of outside parties and other institutions, and the societal impact of those decisions.

4.  Getting what you paid for.  Fellow Milwaukee law blogger David Lowe just won a case where his wheelchair-bound client claimed that a transit van driver failed to fasten the van's restraints properly, and David's client was hurt in an accident.  His post on the trial offers this cautionary tale on how that decision you made on whether to pay for six or twelve jurors can come back to haunt you:

The main legal issue that arose at trial had to do with attrition of jurors after the trial began. Thirteen jurors were originally empanelled. On the second day of trial, a juror called in by cell phone to report that she could not find a parking place, apparently due to a large motivational speaker conference held near the courthouse, featuring Zig Ziglar, Bill Cosby, Suze Orman, Colin Powell, Ed McMahon, Chicago Bears head coach Lovie Smith and Green Bay Packers head coach Mike McCarthy. [It's true; traffic that day was a mess.]  After waiting 45 minutes, the trial court excused her. The next day, a second juror became unavailable due to a death in the family. The defendant was unwilling to stipulate to proceed with the remaining 11 jurors, and moved for a mistrial. When the action was filed, the plaintiff had demanded 12 jurors but did not pay the fee at that time. The defendant filed an answer requesting only six jurors, and paid that amount. The plaintiff had later paid for the other six jurors. Because the defendant had not requested or paid for 12 jurors, the court denied the motion for mistrial. Finding the Wisconsin statutes unclear, and no applicable case authority, the trial judge relied upon the words of Mick Jagger: "You can't always get what you want. But you get what you requested." The court accordingly sent only six jurors to deliberate.

4.  Judges, especially Robert Bork, acting silly.  Eric Turkewitz at New York Personal Injury Law Blog has another fun post on judges whose antics in the news make the jury system look great by contrast.  (This one is inspired by the judge who claimed $54 million against the dry cleaners who ruined his pants, and then cried at trial.)  Eric also has a great open letter to Robert Bork on how he might salvage his slip-and-fall case against the Yale Club, which so far has mostly made him a laughing stock.  It's a post that all big-firm litigators should read, whether or not a famous client is pressing you right now to file a complaint in an area you don't know anything about.

5.  Mark Bennett and Scott Greenfield discuss juries.  Mark Bennett at Defending People imagines a world where we are all reminding each other about juries' power to nullify.  I wrote this week about a recent reminder I got that jury nullification isn't all freedom and glory; Mark's post sets out the other side strongly, and it's funny:

"Did you know that judges lie to juries in criminal court every day? Do you know why the criminal juror is the most powerful person in the criminal justice system? Did you know that jurors don't have to follow the law?"

"Dude, I just asked if you preferred paper or plastic!"

In another post, Mark features a comment from his reader John Gioffredi about the lawyer in Mark's trial who started voir dire with "Good morning!  I said good morning, class!" and how opposing counsel might take that on.  Scott Greenfield of Simple Justice joins in the comments.  (They're talkative, those criminal defense bloggers.)  I'll leave it to them to explain the response they were considering, with the warning that it's not for beginners, and that even a veteran should be careful.  The jurors don't know you yet, and you have a lifetime's worth -- or in civil cases, at least several months' worth -- of anger they don't share.

6.  The pick of the criminal defense blogs.  Speaking of criminal defense lawyers, I'm very honored to find this blog in Jamie Spencer's survey of blogs you folks read often.  Civil lawyers, look at the Top 11 list (I'm way out of that league), and add some to your reading list even if you couldn't find criminal court with a map.  These people know trials.

Jamie had another post this week, with advice to a lawyer just starting a blog.  It was familiar to me, and I bet to many others.  Jamie was one of the first people to find this blog, and offered candid suggestions heavily sprinkled with encouragement.  He's one of the most generous citizens of the blogosphere.

A Jungle In There: The Dysfunctional Jury

We're always asking jurors to tell us what deliberations were like, and often their stories are inspiring.  In these accounts, jurors from all walks of life work together with respect and sincerity to reach the best verdict they can, bringing life to that shining gem of American justice, the jury system.  Research confirms that these highly functional jury groups are not rare (we've talked about one example, a Seattle survey of actual jurors), and I see the same kind of effort and good will in mock juries regularly.

"Shut the . . . up!"

And then you get a news story like this, from the Philadelphia Inquirer this week: 

Jury deliberations in the rape trial of Jeffrey Marsalis were cut short yesterday after angry shouting erupted among jurors.  At one point, one of the jurors yelled, "Shut the . . . up!", according to court staff. 

A sheriff's deputy and court staff had to go in to break up the fray.  (Yesterday the jury came back with a split verdict.)

Those stories come up more often than jury fans like me would like to think.  Last month the Eighth Circuit had a case called U.S. v. Eizember, where one juror started telling the others that Mr. Eizember had been prosecuted before and "was going to fry anyway."  But it was all right, the court said, in part because most of the other jurors couldn't hear these comments.  How could they, over the din?

Some of the jurors said that they had tried to drown out what the offending juror was saying and stop him from talking. One juror said that once the offending juror began talking "everybody was screaming, so there was a lot of confusion."

Verdicts in the jungle

In these chaotic jury rooms, outcomes can change.  It's likely, for example, that some holdout jurors become more entrenched when deliberations become angry and dysfunctional.  More likely to come up on appeal are the cases where the pressure makes the holdouts give up.

Just yesterday, two appellate courts decided cases where holdout jurors reluctantly went along with the group.  In one of them, an Eighth Circuit habeas case called Pederson v. Fabian, the tenor of jury deliberations wasn't described, but it's easy to imagine that the holdout juror felt pressure when she said (in the prosecution's post-case questionnaire) that "I know a person is supposed to be innocent until proven guilty, but in reality it didn’t work that way," and that she had disbelieved the accusing witnesses and believed the defendant. 

In the other case, State v. Wery here in Wisconsin, the holdout juror "had been the lone holdout during deliberations and had taken 'a lot of heat' from the other jurors, but she had ultimately agreed to join the other jurors in the guilty verdict," according to the jury's foreman.  Both verdicts were affirmed, even though in Wery the juror changed her mind while the trial was still in progress, in the sentencing phase.

Helping juries function

What will happen to your case if the jury can't function, and what can you do about it?  A couple of ideas:

1. Watch them.  You won't always know if there's a storm coming, but you might.  Are they laughing and joking in the hall, or are they forming little cliques?  Are two of them straining their backs to lean away from each other in their assigned chairs?  Do all but one of them wear matching shirts on Valentine's Day?  The one who argued with everything both lawyers said in voir dire is likely to argue with his fellow jurors too, and the one who said his prior connection with the law was after a bar fight might have a temper.
2. Teach them.  If you need consensus and unanimity, use your closing to offer the group tools to get there.  A couple of simple web searches will produce many lists of such tools and techniques.  Some that are particularly relevant to juries are to agree ahead of time on the "ground rules" for the conversation (no one interrupts, everyone will work patiently to understand other points of view); to set time limits for a couple of people to hash out an issue while the rest listen; to keep referring to the group's goals (here, the instructions and special verdict); and to use time lines and poster lists to make the process more concrete and less interpersonal.
3. Coach them.  On the other hand, if you know you may need a holdout to hold out no matter what, you can use part of your closing to challenge jurors to rise to the kind of resolute conviction that holding out requires, while patiently defusing the chaotic atmosphere that can make holding out more difficult.

(Photo by Fabio Venni at http://www.flickr.com/photos/fabiovenni/67877557/; license details there.)

Story Gaps, Candor, And A Little About The Sopranos

Your trial advocacy teacher told you to be candid with the jury about the weaknesses in your case.  New research suggests she was right.

Stories and gaps

Trial lawyers almost all know they're supposed to tell a story.  Many also have worked with variations on that idea:  how to help the jurors anticipate where you're going with the story, for example, or let them "solve the mystery" by filling in gaps in the story themselves.  This week you can confirm the psychological power of stories, and gaps in stories, if you run a couple of searches on the "Sopranos" season finale, starting perhaps with the 113 (at this writing) comments to this Newark Star-Ledger interview with the show's creator, David Chase.  Between those who are complaining that the story didn't close properly and those who are figuring out their own endings, our relationship to narrative and its gaps is a leading news item right now.

We've learned one rule in particular to prevent a dangerous story gap:  tell the jury the "bad news" about your case yourself, rather than wait for your opponent to do it.  (We have multiple phrases for this, like the Eskimos' supposedly multiple words for snow:  draw the sting, bite the bullet.  Apparently we get a lot of practice with bad news.)

The science of ambivalence

There's a new study that supports this common wisdom.  Researchers Joseph Priester, Richard Petty (not that one), and Kiwan Park have been studying "ambivalence," in the sense that it's important to marketers:  what makes consumers ambivalent about the product they're considering? 

In prior papers, they found that most ambivalence arises as you'd expect it would:  the more conflicting reactions we have to information about a product, the more ambivalent we feel.  But a "seeming puzzle" remained in their data.  At the bottom of the graph, where people had uniformly positive or negative reactions, their ambivalence should have disappeared, but it didn't.  People who had reacted entirely positively or negatively to what they heard were still reporting mixed feelings.

The new paper, "Whence Univalent Ambivalence?", takes on this puzzle.  It's in the June issue of the Journal of Consumer Research, and summarized at Science Daily.  As the title suggests, the paper is a tough read if you're not a social scientist.  In this discipline, a product isn't a product, it's an "attitude object" -- and if you get through the description of the three experiments, you still have to traverse (or, okay, skim) the statistical analysis. 

But it's worth it, because the researchers' conclusion gives you one of those "I knew it!" moments.  It turns out that when we hear just the good or the bad side of a story (or, in these experiments, a product's qualities), we don't trust it.  We assume there must be another side of the story we haven't been told.

A new construct, a familiar idea 

This "anticipation of conflicting reactions" is "a new construct" in this field of psychology, the researchers say.  Lawyers will be glad to know that it confirms something they were trying to do all along:  tell the story, both sides, and draw the sting -- or whatever you call it.

(Photo by iyers at http://www.flickr.com/photos/i_y_e_r_s/532933618/; license details there.)

Recognizing The Activist Juror

Most juror bias is unconscious, but not all.  There is such a thing as a juror with an agenda and a plan.  You  stand a better chance of recognizing that juror if you know the key phrases of the language he speaks. 

Letter  from a white supremacist

Last week I wrote about the dramatic voir dire in the James Seale murder trial in Mississippi, where Mr. Seale is accused of kidnapping and murdering two black teenage boys in 1964.  Over the weekend I got a comment to the post, consisting entirely of a short article from a white supremacy web site. 

I'm not going to publish the comment or link to the site, but the gist was that white juries should use jury nullification to exonerate white defendants charged with harming African-Americans -- or immigrants, or Communists.  All those groups, the writer argued, are plotting to take over the United States, and by that logic it is patriotism to acquit defendants who are doing their part to stop the plot.

The piece was grammatical, with sentence and paragraph structure.  It did not use epithets.  If its author showed up on your jury panel talking about his job and educational background, there might be nothing to suggest he was unusual.  But if your client were black or immigrant or Jewish, you would need to identify this juror, and find a way to strike him even though he wanted to stay.

Learning the language

To do this, you need to recognize the associations in his thinking, even though you might not make those associations yourself.  If you've worked on a hate crime case, you'll be familiar with the idea that Southern blacks in 1964, supposed Communists in the 1950s, and immigrants today might be perceived as a united enemy.  But if you're not at a point where you can recognize a piece of the white supremacist picture without seeing the whole image, a little research can help a lot.  If you can accurately spot clues to a juror's agenda in the web sites or news sources he mentions, the apparently unrelated ideas he acknowledges, the news stories he follows, or the people he admires, you'll be able to explain to the judge why a strike for cause is justified, and strike the juror yourself if that's denied.

When the issue is race or immigration, much of your research has been done for you.  The Southern Poverty Law Center Intelligence Project, formerly called Klanwatch, has one of several web sites gathering information on hate activity. 

Business cases too

This isn't just about race trials.  Jurors with agendas can show up in cases that have nothing to do with race or crime.  If your client or opponent is a business, for example, and it outsources jobs -- or uses foreign factories with poor work conditions, or performs research with animals, or doesn't use unions -- it makes sense to learn how activists on these issues speak and think, even though the case is about the most mundane contract.  If you have a tort case, it makes sense to know the language on both sides of the tort reform debate, even though your case isn't about policy.  It's all on the Internet, and it won't take long to find.

(Photo by Brian K at http://www.flickr.com/photos/brian9000/138590190/; license details there.)

From The Marketing Desk: Know What You Need

  There are four kinds of marketing situations, and the approach to each is radically different. Yet most of the time, we lump them together as just plain 'marketing'.

So said Seth Godin a couple of weeks ago. 

If you worked in the marketing department of a company, you probably would have read those words already.  Seth's Blog is one of the most influential in the blogosphere (as I write this, his blog is ranked 28th among the hundreds of thousands in Technorati), and Godin's dozens of books are bestsellers. 

But since you're reading this, you're probably a lawyer or a judge or a trial consultant, and you might not read Seth's Blog, or much else about marketing.  If that's true, you're missing useful wisdom.  Marketing, like trial work, is persuasion -- except that unlike most lawyers, marketers have to exercise their persuasive powers every single day, and often are paid and promoted largely on the basis of the results.  They've thought a lot about this.

One, a few, most, or all?

Seth Godin's take on the four kinds of marketing situations is an example of a marketing idea that should interest lawyers.  He explains:

If you are trying to sell a house or fill a job, you only need to persuade one person.

If you want to make your book sell a bunch of copies, your restaurant to be filled on Saturday night or your coaching practice to have a full schedule, you need to sell a few people.

On the other hand, viral bestsellers, killer websites and essential conferences hit their stride when most people in a marketplace have been converted. You can't get elected President (most years, anyway) without persuading most of the people who vote.

Lastly, when the market is defined right, there are situations in which you need to persuade all of the people involved. If you need 51 Senators to agree with you on a bill, or if you need the purchasing committee at a big company to buy your software, then you need a unanimous decision.

Your approach to persuasion is different, Godin continues, depending on how many you need:

ONE: You're a needle, the market is a haystack. Make your needle as sharp as you can, put it in as many haystacks as you can afford. Alternatively, you've already decided on your one (the date for the prom or the perfect job). In that case, throw the haystack out and engage in a custom, one-on-one patient effort to tell your story to the person who needs to hear it.

A FEW: Being exceptional matters most. Stand out, don't fit in. Shun the non-believers.

MOST: Amplify the excitement of the few and make it easy for them to spread the story to the caring majority.

ALL: Compromise. You need to be many things to many people, embraced by the passionate but not offensive to the masses. Sooner or later, the issue for the reluctant part of the buyer community is that it becomes more expensive/risky to stand in the way of the group than it is to go along.

Which are we?

So how many converts does the trial lawyer need?  Where unanimity is required, it's "all," of course, but note Godin's point that you don't need to make each juror your advocate to get there.  If by the time you sit down your case is "embraced by the passionate" and "not offensive" to the rest, the process of deliberation completes your win while you're down the street having coffee and trying not to stare at your cell phone.  When doubting jurors give up and join the group, Godin's prediction -- "it becomes more expensive/risky to stand in the way of the group than it is to go along" -- exactly describes their decision.  On this thinking, if you try to instill passion in every single juror, you'll likely overdo it with somebody, and end up with an impassioned holdout. 

On the other hand, if you're a criminal defense lawyer whose best hope today is a hung jury, think about Godin's advice for convincing "one" and "a few," and see what it inspires. 

(Photo by Paul Downey at Flickr; license details there.)

American Gallery of Juror Art Welcomes Jonathan Koshi

Would you change anything in your presentation if you knew one of your jurors could draw a perfect bike from memory?  That's how Jonathan Koshi spent his waiting time on jury duty.

I asked Jonathan to tell me about himself, and ended up learning a lot of things I didn't know -- about the media player software called Songbird ("a desktop Web player, a digital jukebox and Web browser mash-up," says their website), an online San Francisco music magazine called the Owl Mag ("Our goal is to provide an easily perusable forum that lets you frolic in genuine music knowledge and culture, like a tight-wearing wood nymph"), and a great documentation project:

I'm an artist with a taste for technology.  My professional craft revolves around the Songbird open-source media player project.  I'm the User Experience Architect and a co-founder of the company that makes Songbird, Pioneers of the Inevitable.  I'm responsible for the experiences everyone has with our project, from the software, to the website, to our tshirts and stickers.  I also illustrate our bird mascot.

Outside of work, I'm an avid cyclist (I finally gave up my car last year!), a live music fan and I volunteer for the Owl Mag, as a photographer.  Photography has turned from a hobby to a part-time pre-occupation.    Among my other photographic obsessions is one for documenting San Francisco's jukeboxes.

Jonathan's Flickr photostream includes, as you might imagine, a lot of bikes.  All rights in this image are reserved to him; thanks for his permission to put it in the American Gallery of Juror Art. 

Tears, Pain, And History In The James Seale Voir Dire

James Seale is on trial in federal court in Jackson, Mississippi, for kidnapping and murdering two black teenagers, Charles Moore and Henry Dee, in 1964.   It's fitting that a trial so extraordinary has extraordinary local press coverage; the Jackson Free Press has reporters Matt Saldaña and Donna Ladd in the courtroom, and their blog is the best trial reporting I'm seeing right now.

Voir dire, Day 1

The voir dire was last week, Wednesday through Friday, and it was nearly as emotional as the trial promised to be.  The first day was spent on the jurors who might not be able to serve -- the one who needs to tend to his six chickenhouses, the one who had plane tickets to accompany his wife for eye surgery.  Even when the questioning was at that general level, though, it was dramatic, because people's lives often are.  One juror "referred to her own chronic depression and anxiety," one was an alcoholic who "“wished (she) could be drinking,” and then there were these exchanges:

The defense argued for the dismissal of Juror No. 8, a black male construction worker who admitted that he could not read well. “I have no problem being on the trial,” Juror No. 8 said. He said that he merely wanted to court to know about his inability to read large words. After confirming that he could read work manuals, motorbike magazines and occasional newspaper articles, Wingate kept the juror in the pool.

Juror No. 53, a white female from Lawrence County, broke down in tears when she described how nervous driving in Jackson made her.

“I’ve been thinking about it for a month. I can’t sleep,” she said.

Day 2

On the second day of voir dire, the questioning turned to experiences with race and crime.  The jurors cried, and told stories like this:

Juror No. 6 described an incident in which he narrowly avoided a race-motivated church bombing.

“The preacher said, ‘Run, run!’ We had to run,” he said.

“(The Ku Klux Klan) rode through—shot up houses. You had to cut your lights out,” he added. “I really don’t want to be on (the trial) because I couldn’t be impartial or anything like that.”

And this, from a juror who said she couldn't stop crying at night:

When prompted, she revealed to the courtroom that her father had shot and killed her former boyfriend in 1982, one of the day’s many candid—and, at times, disturbing—revelations. U.S. Attorney Dunn Lampton, a district attorney in 1982, told the court that he had attempted to prosecute her father in the ensuing murder trial, but neither Lampton nor Juror No. 36 could recall one another.

And more; you have to read the post.

Day 3

The final day of voir dire on Friday was the same.  "My grandmother grew up on a farm. When white people came by, they would run away to the woods,” one juror said.  The blog quotes another juror:

“My family moved from Mississippi to get away from racism and hatred. I had a difficult experience with an older white man. Sexually—he just did things that were not permissible, but I couldn’t do anything about it,” she said.

She said that, as she looked at Seale—seated again, in Dockers slacks and a green oxford shirt—she saw a “mindset of superiority” that reminded her of the experience, which she said happened five or six years ago.

Her experience would be “a hard thing to let go,” she said.

And now the witnesses

This week there are jurors in the box, and witnesses on the stand, and the blog continues. Yesterday Charles Edwards testified as to his part in the kidnapping.  After the jury left the room, Saldaña reported, this happened:

"I want to speak to the families of Mr. Moore and Mr. Dee," the former Klansman said to the judge.

Edwards then turned and looked directly at Thomas Moore, sitting on the far end of the front row, and whose efforts jumpstarted the investigation in 2005. "I can't undo what was done 40 years ago, and I'm sorry for that. And I ask you for your forgiveness for my part in that crime. That's exactly what I wanted to say to you."

Thomas Moore, the brother of Charles, first looked at the wall and then looked back at Edwards and nodded his head slightly.

(Photo posted by pingnews.com at http://www.flickr.com/photos/pingnews/434444310/; license details there.)

Juror Disqualification: The Role Of The Ask

The last few days have turned into a juror disqualification series.  Friday listed some issues that might disqualify jurors; Monday talked about ways to prepare for those moments; and Tuesday looked at Monday's death-doubting-juror decision in Uttecht v. Brown. 

There's another point that pulls it all together, a critical factor -- maybe the critical factor -- in juror disqualification.  Over and over, cases seem to turn not on what the juror actually said or did, but instead on how extensively the trial judge questions, or allows questioning of, the juror and the rest of the panel.  To borrow a phrase from fundraising circles, it's all about The Ask.

The Ask in Uttecht v. Brown

Karl Keys at Capital Defense Weekly points out that the Uttecht v. Brown opinion relies heavily on the quality of the trial judge's voir dire:

Justice Kennedy need not have set out number of days in voir dire, appended the jury selection, mentioned the use of questionaires, or even that the jury panel was told repeatedly that life meant life without parole; none of those facts were necessary for the Court to reach its decision. Those details, however, are important if you are trying to send a message to those courts where such procedural safeguards are not taken. The processes Brown received at his trial were substantially more than you get in 80-90% of capital trials nationally. Justice Kennedy’s chambers reviews those same cases and he knows Brown received more process than almost all the hundreds of men the Court has sent to their deaths.

The import of the opinion then, at least in my mind, is the blueprint it sets out for what voir dire should look like.

Guess the reversals

Whether or not Uttecht v. Brown will end up limited to strong voir dire performances by trial courts, it's not the only recent case to turn on the quality of the trial court's questioning.  It's hard to rank the last several weeks' cases by how egregious the juror's conduct was.  Try it:  which of these trial court decisions do you think would stand up on appeal?

1. In a death-penalty case, to the question whether anyone had a problem with the idea of the defendant not testifying, one juror responded, "I do.  I think he should have to.  I know the law is not that way, but I think so."  Defense counsel asked whether the juror could set aside those thoughts, and he responded, "I don't know."  The trial court refused to dismiss the juror.
2. A trial judge dismissed a juror after she recognized the defendant and "although she was unsure, she had some recollection that he was fired for an incident involving a gun."  She had said she could be fair and wouldn't tell the others.
3. A juror complained that the defendant was "eyeballing" him.  Noting that the jury had been “repeatedly admonished not to make up its mind about any issue,” the trial judge left him on the jury.
4. In a death-penalty case, a white juror told African-American co-workers -- at his workplace, away from the other jurors -- that he was “going to the hardware store to buy rope to hang this man with.”  The defendant was African-American.  Questioned later by the trial judge, the juror insisted he was only saying what he thought his co-workers expected him to say, and he had not really made up his mind.  The trial judge left him on the jury but made him an alternate, so he did not deliberate.
5. In a death penalty case, the trial court refused to strike for cause ten jurors who remembered seeing publicity, including one who "related that she knew others who felt he was probably guilty and that she felt the same," one who said "that most of the people in the community at that time believed" the defendant was guilty, one who "was not sure if she could remove all information from her mind during the trial and deliberations," and one, the eventual foreman, who said in voir dire "that he wanted evidence from Appellant to prove his innocence."

And the answer is . . .

Only one of these cases affirmed the trial judge, and it's the one with the most egregious facts.  It's Case No. 5, where the ten tainted jurors remained (and nine deliberated.)  The opinion is Foley v. Parker, decided by the Sixth Circuit on May 17.  Granted, it's the only federal habeas case on the list, but the turning point in the opinion is The Ask:  "[T]he trial court conducted a thorough voir dire and was satisfied from the responses of the ten challenged jurors that they could set aside what they had heard about the case and decide it based upon the evidence presented in court."

Each of the other cases is different from the rest, of course -- different facts, jurisdictions, procedural postures, legal standards, and appellate judges.  What they all have in common, though, is that the trial court didn't ask enough:

1. Case No. 1 is Kopsho v. State, a death-penalty direct appeal in Florida decided May 24.  "Neither the State nor the trial court attempted to rehabilitate Mullinax after this exchange with defense counsel" in which Mullinax said he thought the defendant should testify.
2. Case No. 2, where the juror recognized the defendant, is People v. Dukes, decided by New York's highest court on May 1 and discussed in this blog here.  In Dukes the trial judge asked the juror what she remembered, and then reflexively dismissed her even though defense counsel objected.  The Court of Appeals reversed, saying the trial judge should have inquired whether she could still be impartial.
3. Case No. 3, the eyeballing case, is U.S. v. Simtob, a direct appeal decided by the Ninth Circuit on May 11 and a favorite of this blog.  (I know I keep bringing up Simtob, but it keeps being relevant.)  The Ninth Circuit sent the case back to the trial court to "determine whether the perceived threat impaired that or any other juror’s ability to act fairly and impartially," since the trial judge didn't do that the first time.
4. Case No. 4, where the juror talked about lynching, is State v. Loftin, decided yesterday by the New Jersey Supreme Court on postconviction review, not direct appeal.  (The case is discussed here at Capital Defense Weekly.)  The trial judge should have dismissed the juror immediately because his comments were so heavy with racism, the court said -- but more than that, the trial judge should have questioned the other jurors: 

[T]he trial court had to voir dire the jury and satisfy itself either that Juror No. 4 did not express predetermined or biased views to other jurors or that if he did, the jurors were not influenced by those views. Therefore, the trial court first should have dismissed Juror No. 4 and then voir dired the jury. In cases in which a jury has been potentially exposed to external influences that could undermine jury impartiality, our courts have not hesitated to make inquiry of the jurors to ensure that they have not been fatally tainted.

The lesson is easy here.  If you're a judge, ask and ask and ask.  If you're trial counsel, be ready, and object precisely.

(Photo by Jilligan86 at http://www.flickr.com/photos/gillian_m/448800043/; license details there.)

The Unsure Death Penalty Juror Goes Home

Who gets to sit on a death penalty jury?  You'll need sturdy walking shoes to research the question.  We started here, in Witherspoon v. Illinois in 1968:

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.

And we ended up here, in Uttecht v. Brown yesterday:

Juror Z's assurances that he would consider imposing  the death penalty and would follow the law . . . did not require the trial court to deny the State's  motion to excuse Juror Z.

That's quite a journey.

No objection, but to what?

This blog is about what trial lawyers need to know next time, so I can leave most of the policy analysis to more capable others, a few of whom are listed in the note below.  That's good news for me, because on a policy level (I humbly submit) this opinion only highlights the Court's jurisprudential death penalty mess, but a post on the take-home lesson is easy to write.  The lesson is:  Object clearly. 

The Court summarized the moment of Juror Z's dismissal as follows:

Counsel, any challenge to this particular juror?

MR. MATTHEWS: I would, your Honor, not on the term beyond a shadow of a doubt, I think he would certainly stick with the reasonable doubt standard. But I think he is very confused about the statements where he said that if a person can't kill again, in other words, he's locked up for the rest of his life, he said, basically, he could vote for the death penalty if it was proved beyond a shadow of. And I am certainly going to concede that he means beyond a reasonable doubt. And if a person kills and will kill again. And I think he has some real problems with that. He said he hadn't really thought about it. And I don't think at this period of time he's had an opportunity to think about it, and I don't think he said anything that overcame this idea of he must kill again before he imposed the death penalty or be in a position to kill again. So, that is my only challenge.

MR. MULLIGAN: We have no objection.

THE COURT: Counsel, the request of the prosecutor's office, we will go ahead and excuse [Juror Z].

What did "no objection" mean?  Was defense counsel "thank[ing] his lucky stars when the prosecutor bumped Z," one of several interpretations Justice Kennedy considered?  Or was he instead saying he had "no objection" to Z remaining on the jury, as Justice Stevens supposed in dissent? 

There are paragraphs of discussion in the opinion about what the precise legal impact of that "no objection" should be, and Justice Breyer's entire dissent is based on it.  Defense counsel didn't have to object to preserve the error, but the Court had to struggle with how to weigh an affirmative "no objection," if indeed that's what was meant. 

But that's for the policy bloggers.  For us, there's only one point:  object clearly.  It isn't easy; we've all been shocked to see how what seemed like a plain oral statement took on a dozen different meanings in the transcript.  But it's worth striving for.

Beyond habeas?

Two other points.  First, when I wrote about the Uttecht oral argument in April, I warned that the opinion might not offer much guidance on how trial courts should handle unsure death penalty jurors, because the analysis might end in the maze of federal habeas corpus requirements.  Reading the opinion now, I think I may have been wrong.  At the beginning and end of his Uttecht opinion, Justice Kennedy does recite that federal courts defer to state trial courts on habeas.  But like many a trial lawyer's supposed "theme," the idea never really connects to the argument itself.  When he gets to the point, Justice Kennedy chooses words that say "we agree," not "we defer":

From our own review of the state trial court's ruling, we conclude the trial court acted well within its discretion in granting the State's motion to excuse Juror Z.

What's next?

Finally, what will death penalty juries look like, at least until the next time the Court changes course?  Justice Stevens predicts:

the perverse result of its opinion is that a juror who is clearly willing to impose the death penalty, but considers the severity of that decision carefully enough to recognize that there are certain circumstances under which it is not appropriate (e.g., that it would only be appropriate in "severe situations"), is "substantially impaired." It is difficult to imagine, under such a standard, a juror who would not be considered so impaired, unless he delivered only perfectly unequivocal answers during the unfamiliar and often confusing legal process of voir  dire and was willing to state without hesitation that he would be able to vote for a death sentence under any imaginable circumstance.

A panel of jurors like that would look a lot like the one that convicted Mr. Witherspoon in Illinois so long ago.

__________________

Notes:

Some of the discussion elsewhere: 

1. Capital Defense Weekly is more optimistic than Justice Stevens: "Although some want to see larger trends at play here, I don’t." The post concludes, "The import of the opinion then, at least in my mind, is the blueprint it sets out for what voir dire should look like. It may also well be the template of what the Court will expect from here forward."  More on that here tomorrow. 
2. Blawgletter notes the emotional opening of both this opinion and the Carhart partial abortion case:  "The law aspires to decide cases through logic.  Stirring up passions seems an odd way to promote public confidence in the system." 
3. SCOTUSblog's analysis is here. 
4. How Appealing has a round-up of news stories here.

I've omitted record cites in the opinion excerpts in this post.

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

Ready For Juror Glitches: Tips From A Trial Judge

Friday's post listed some of the juror issues that often come up in trial.  You're going along, and you suddenly learn that a juror is anxious or upset; or can't hear or speak English; or has background that's relevant to the case; or recognizes a witness in the middle of the trial.  When something like this happens, you face what I've called an Instant Decision Moment.  You need to decide within minutes, sometimes within seconds, whether you're going to ask for the juror's dismissal, and if so how loudly. 

The problem for many lawyers is that they didn't prepare for this part.  They have a neatly organized trial notebook with outlines for an engaging voir dire, a gripping opening statement, simple direct examinations and scorching crosses.  But when a juror says "Hey, I know that guy," or "Hey, he's eyeballing me," there's no section in the notebook to turn to. 

Simple tips to prepare:  pictures and a bench book

We've talked before about some of the in-the-moment factors that can guide your reflexes here.  But it's also possible to prepare. Here are two simple tips that will help, both sent by Milwaukee Circuit Court Judge Rick Sankovitz in response to other posts.  One focuses on prevention, the other on cure:

1. To prevent jurors recognizing witnesses too late, use pictures.  "On the issue of jurors who know witnesses but don't realize it until they see the whites of their eyes, I often make this recommendation to lawyers who use display technology at trial -- in voir dire, show the panel pictures of the witnesses who will be called.  The display of technology may create a good first impression (all the caveats about technology in the courtroom apply, of course), and it may weed out this problem, which happens more often than people think."
2. Do what the judge does:  get a bench book.  "A pointer I always like to share with lawyers putting together their trial notebook - get the benchbook.  Judges regularly turn to it, and it's nice to be able to walk the judge through the analysis that most judges tend to consult when confronted with an Instant Decision Moment."

The bench book tip is elegant, not just for jury issues but for whatever comes up.  As the judge is reaching over her shoulder for her own copy, why shouldn't you be reaching for yours? 

State bench books are commonly available; Wisconsin's can be purchased here in hard copy and here on CD.  For federal court, both the bench book and an extensive Civil Litigation Management Manual are free, yes, free.  Download them, and an amazing wealth of other resources, from the Federal Judicial Center.  (That link is to their catalog; simple searches will find them from there.)  What you'll learn is that both federal documents are silent on when jurors must be dismissed (although the Management Manual is full of other good juror information), so you'll want to be ready with case citations in federal court. 

__________________

Notes: 

1. Judge Sankovitz isn't just a source of good ideas.  More important, he's well known here for his work for indigent litigants.  His advocacy has inspired many lawyers to take on more pro bono cases.  Most recently he chaired the Wisconsin Bar's Access to Justice Committee, whose report describes the urgent and unmet need that remains. 
2. The weekly edition of Blawg Review is at Blawg's Blog today, with a very comprehensive look at other law blogs you might want to add to your reading list, and a very kind compliment to this one.  Thanks.

(Photo by Scott LaPierre at http://www.flickr.com/photos/pierrelaphoto/431468152/; license details there.)

Look, Dad, I'm On The Radio

If you have a blog and you do a radio interview, I'm told you risk cosmic imbalance unless you close the loop by mentioning the interview on the blog.  So:  I'm on the Lake Effect show today on Milwaukee's public radio station, WUWM.  The archive link is here and my part is about fifteen minutes long. 

I can't opine on my own performance, but the rest of the show is really good, including Ann Althouse; a wonderful Milwaukee independent bookstore called Woodland Pattern; a guy who walked and ran Wisconsin's Ice Age Trail in three weeks; and tips on "How To Eat Like A Milwaukeean," which of course you need to know if you come here.

(Photo by de jäck Mamsäll at http://www.flickr.com/photos/75471113@N00/160080677/; license details there.)

One New Case, Six Common Juror Issues

Dear Deliberations:  I'm getting ready for trial. I know something might come up that should make me ask to strike a juror for cause, but I'm afraid I'll miss my cue!  I want to prepare for the juror issues that might come up, but I don't have time to read a lot of cases.  Any ideas?  Signed, Worried

Dear Worried:  Have I got a case for you.  Six of the top reasons you might want to ask for a juror's dismissal were lined up (and shot down) in a single case this week:  Ammons-Lewis v. Metropolitan Water Reclamation District of Chicago, decided by the Seventh Circuit on Wednesday. 

The six jurors you meet in Ammons-Lewis

Ms. Ammons-Lewis worked for Chicago's Water Reclamation District as an "operating engineer," and claimed the work environment there was hostile and discriminatory to women.  The juror issues in her trial read like a law school exam.

1.  The really anxious juror.  "Juror Bright disclosed that he experienced anxiety," the Seventh Circuit explained, and described the questioning on voir dire:

Bright explained that he had a highly stressful job and that he had been diagnosed with an anxiety condition approximately one year prior to the trial. He had taken medication for the condition for a period of six months, eventually discontinued the medication, and at the time of trial was doing fine provided that he took certain prophylactic measures. [H]e was “a little worried” about how he would handle the unfamiliar experience of jury service. After the court explained to him what jury service would entail, he indicated that he “should be okay,” and added that he had not had not experienced any difficulty during jury selection. [T]he district judge said that “we’ll just work with that” and instructed Bright to let the court know  if he experienced any difficulty.

(I've omitted record cites in all these excerpts.)  Anxiety disorders aren't uncommon, and jury duty can be tough or impossible for those who suffer from them.  (Recent examples from bloggers are here and here.)  Sure enough, Bright struggled at first:

Bright sent the court a note disclosing that while “the plaintiff’s attorney was asking small questions that didn’t seem important,” he had begun to experience difficulty that he described as “getting dizzy, nervous and anxious,” and feeling bothered by things that would normally not trouble him.  Bright’s note added that he would consult his physician. . . . Bright advised the court that he was fine as long as the trial kept moving along and agreed to advise the court if he needed a break or any other accommodation to deal with his anxiety. Bright reported no further difficulty and was later chosen to be the presiding juror.

2.  The juror who is recognized by a witness.  Bright probably never knew it, but one of the witnesses thought he recognized him:

Stephen Kelly, one of the individuals whom Ammons-Lewis accused of harassing her, reported to defense counsel during a break in his testimony that he believed he recognized Bright as his niece’s former fiancé. However, he recalled the first name of his niece’s fiancé as being “Brian,” which, because that was not Bright’s first name, led defense counsel to think he was mistaken. On learning of the situation, the court agreed that “[i]t’s a different person” and let the matter drop without further action.

3.  The juror who recognizes a witness.  More common is the situation where a juror recognizes a witness.  (I've written about it here and here.)  Sure enough, that too happened in Ammons-Lewis: 

Juror Robinson disclosed on the third day of trial, during the plaintiff’s testimony, that he was acquainted with one of the witnesses in the case. Robinson had indicated during voir dire that he did not know anyone on the parties’ list of anticipated witnesses. But after the trial began, he noticed on a document shown to the jury the name and address of Willie Davis, an individual that Ammons-Lewis had identified as one of her harassers and who would later testify in the case. Robinson realized at that point that he knew Davis, who lived a block away from him. After the trial broke for lunch, Robinson apparently approached the judge and tried to inform him orally of his conflict, but at the judge’s request he instead put the matter in writing. When the trial reconvened that afternoon, the judge reported the contents of Robinson’s note and excused him from the jury after consulting with the parties.

4.  The juror who struggles with English.  When jurors don't speak or read English well, comprehension in the courtroom and deliberations in the jury room can both be impaired.  Ammons-Lewis had this issue too:

Juror Astorga completed his juror questionnaire in English and disclosed no difficulty understanding or speaking English during voir dire. After the jurors were selected and the trial was about to get under way, the court advised the jurors that they would be given notebooks and writing implements. Astorga then advised the court that “[i]f we need to be writing, I can’t write English.”  The court advised Astorga that his service as a juror required the ability to listen but not to write anything down.  This apparently satisfied Astorga, who expressed no further concern.

It sounds like no one asked Mr. Astorga how well he could read English, beyond the questionnaire.

5.  The juror who can't hear.  This one pains me because I missed it in my own first trial.  The guy on the end couldn't hear a word I said, and I forgot to ask that he be excused.  Ammons-Lewis had a juror like that: 

Juror Reisman disclosed during voir dire that she had trouble hearing.  However, Reisman added that she had no difficulty hearing the district judge so long as he spoke into the microphone. This satisfied the court that she was able to serve on the jury: “Okay. We’ve got microphones everywhere and we’ll deal with that.” Periodically during the trial, the judge admonished witnesses to speak directly into the microphone and asked whether everyone in the courtroom could hear adequately.

6.  The juror with relevant experience.  When we ask whether jurors have experience relevant to the trial, they often answer yes:

Finally, juror Nahin disclosed during voir dire several facts concerning the litigation and employment history of her relatives and herself. First, Nahin had a great aunt with a penchant for filing lawsuits; however, she had no contact with her aunt and knew nothing about the suits. Second, Nahin reported that her sister had been discharged from a job five years earlier, although that termination had not resulted in any grievance or litigation. Finally, Nahin indicated that she herself had been treated unfairly at a previous job; she clarified that the unfairness she experienced did not involve discrimination or harassment. Nahin agreed that she could put her own experience and that of her sister aside and that it would not prevent her from being fair in this case.

And the answer is . . . waiver

The Seventh Circuit's job in Ammons-Lewis was easy, because trial counsel did not challenge any of these jurors.  "[W]e deem these challenges waived and consider them no further," was all the court needed to say. 

On Monday, I'll pass on some tips from a trial judge on how to be ready for juror issues like these.

(Photo by Laughlin Elkind  at http://www.flickr.com/photos/wurzle/659315/; license details there.)