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.)
