Deliberations

When Jurors Lie, Part II

We're discussing jurors who lie so they can get on the jury, and yesterday's post discussed the federal standard for getting these cases overturned.  This one turns to the real questions:  whether we can keep "stealth jurors" off juries in the first place, and whether we can learn anything from our own reactions to them.

An ounce of prevention

How do you find these folks ahead of time, or at least minimize the harm they do?  You can't always; give up on the idea that it's possible.  Certainly it can't be done with familiar home remedies.  Subscribe to the Deception Blog (which collects the extensive research in this area) and you'll slowly but surely become convinced that liars do look you in the eye, they don't always shift in their seats, they can fool even experienced questioners -- even questioners whose sole aim is to discover deception, much less trial lawyers who have to juggle that job with the many other goals of voir dire. 

Some things you can do, imperfect as they are:

1.  Ask about experiences and behaviors.  Questions about experiences and behaviors are the strongest way to get past unconscious bias, as I've said many times.  But they can also be a tool to get at bias that's consciously concealed.  A juror like this will likely recognize a straight bias question, no matter how often it's asked and in how many varied ways, and pride himself on heading it off.  But the same juror might be willing to tell stories from his past, or tell about web sites he comments on, without realizing he's telling you about his biases.

2.  Fight your own stereotypes.  It looks like Woman in Black's juror lulled her by telling her he had a sister with mental illness.  I'm not remotely questioning her voir dire (she says the juror specifically said his sister's condition would make him want to be compassionate and fair), but it's a reminder to all of us that a given experience might not mean what we think it means to the juror.  To continue with the mental illness example, a juror with a mentally ill relative might feel deep compassion for the mentally ill -- or he might resent the lack of personal responsibility that often characterizes mental illness.  Or both.

3.  Listen for vocabulary.  Jurors with agendas may speak in a code they've forgotten is code.  I've written before that it's valuable, and fairly easy, to learn some of the language that extremists speak about issues relevant to your case.  The Countenance Blog, for example -- the one that advocated lying to get on a jury this week -- has categories for "black crime," "Hispanic crime," "minority crime," "black extremism," "Chicano extremism," and on and on.  Fifteen minutes spent there would teach you a lot about what words and concepts might be red flags in a case involving race or immigration.

4.  Ask about silence.  Remember Judge Gregory Mize's experiment asking silent jurors why they'd been quiet.  One of them said she was the defendant's fiancee!  She had not answered yes to the question "Do any of you know or in any way acquainted with me, any of the parties, witnesses or attorneys in the case?", or to the question, "Have any of you, a close friend or close relative been the victim of, a witness to, or charged with a criminal offense within the past ten years?"  Those silent denials must have been knowingly false, but somehow the follow-up question got the truth out.

5.  Prepare the group.  In the same way that you might prepare jurors to hold to their views and deal with disagreement, you can prepare them to respond to what essentially is an invader.  In the cases where we know a juror lied about bias, it's usually because another juror reported it.  An extra voir dire question and a line in your closing, reminding them of how important voir dire is and how you're relying on their candor, might be enough to help the rest of the group report the liar.

None of these things will fully protect you, but they may help. 

A lesson, maybe, in why we're so mad

I want to ask another question, though, one that may shift the emphasis to a more positive, and perhaps more broadly applicable, jury lesson.  Why are we so troubled by jurors who lie?  Woman in Black understandably says her juror story "is REALLY bothering me." Gideon, retelling the story, says "What’s the point, you ask? I don’t know. It just got me steamed up enough to post about it."  Stephen Gustitis of The Defense Perspective, commenting on Gideon's post, calls lying jurors "simply despicable" before offering good thoughts and advice.

It's not like these people have never seen lies before.  We all have, so often that it rarely gets us really mad.  In many ways we live in a culture of lies, where executives who resign "for personal reasons" and cancelled flights because of "equipment changes" are the constant junk food of our information diet.  When Bill Clinton said he never had sex with that woman, or Scooter Libby said he didn't gossip about Valerie Plame, or Martha Stewart said selling that stock was her own idea, some people were upset -- but millions of others shrugged and moved on. 

So why do lying jurors keep us awake at night?  Partly because a lying juror puts a lawyer personally at risk, and we take it personally.  Scott Greenfield gets that part exactly right: 

It's like having a saboteur in the case, a hidden time bomb waiting to go off.  No matter what happens at trial, how good or bad the evidence turns out to be, this juror is absolutely determined to sink you because, well, because that's his goal in the jury room.  And you don't know it, and can't do anything to stop it.

But I want to suggest there's something else at work here too, a deep belief we share with all those other jurors who don't lie.  People believe the courtroom is a place where justice happens. 

We believe

You see it over and over, from people of all types and backgrounds:  normal skepticism toward many other institutions, but pure idealism about the justice system.  Jaded executives stare at me in shock when judges make mistakes, or witnesses lie.  They can't believe it when lightning doesn't strike an opponent who is late with discovery, or a judge who takes two years to rule on a motion.  These people aren't stupid; they're some of the smartest folks I work with.  But they believe, beyond reason or evidence and beyond their usual cynicism, in the justice system and its power for good.  I think that when lawyers are startled by another lying juror story, we're showing that at some level we believe that too.

And like most personal insights, you can translate this to your jury work.  When you look at a jury panel, it's helpful to remember that most of them at some level -- like you, at some level -- believe in the purity of the courtroom, whether they'd say it that way or not.  Jurors' expectations for you, your client, the witnesses, themselves, and the judge are very, very high, even the jurors who look like and act like and think they are cynics.  In the moments when you can rise to that level in your trial, you're fulfilling one of their most deeply held ideals.  And you're taking something good, and helpful, from the story of the lying juror.

_________________

News note:  Saturday was such a day for stories about jurors who lie that I missed one.  The Baltimore Sun reported on a hung-jury mistrial where the prosecutor learned, talking to the jury afterward, that a juror's brother had pled guilty to first-degree murder.  The story implies, and it's very likely, that the juror had to evade at least one voir dire question (more likely several) to find her way onto that jury.

(Photo by Christina, technochick's 11-year-old daughter, at http://www.flickr.com/photos/technochick/595491058/; license details there.)

When Jurors Lie, Part I

Intelligent juries can be a firewall against capricious prosecution and abuse of power.  And in spite of what judges say, jurors can judge both the facts and the law in making a decision.  Lying in a court is never a good idea, but if I had to make the Hobson’s Choice, I would rather lie to get on a jury than lie to get out of jury duty.

It's funny how a topic suddenly comes from all directions.  Saturday was Lying Jurors Day.  On Saturday, the words above appeared on Countenance Blog, an anonymous St. Louis blog "of interest to members and supporters of the Council of Conservative Citizens," whose white supremacist roots are traced at the Anti-Defamation League.  On the same day, Gideon at a public defender relayed a story from lawyer/blogger Woman in Black about a juror whom she believes lied in a trial she defended.  Simple Justice in turn picked that up, with a great description of how hard it is both to prevent jurors from lying to get on the jury and to do anything about it when it happens.

It does happen.  One of the jurors who convicted Martha Stewart, "by far the most outspoken juror on the panel," failed to disclose an arrest and three lawsuits against him on a jury questionnaire that reportedly asked for this information.  Just in recent months on Deliberations, we've had the football fan who faithfully responded when asked who his favorite team was, but said nobody asked him whether he hated the plaintiff Oakland Raiders, which he did; the juror in the California Peregrine trial who at first said he wasn't reading media coverage of the trial, but later admitted he had; and the blogging lawyer juror who bragged that he'd slipped through voir dire by describing himself as a "project manager," leaving out the lawyer part.  This blog has gotten at least one reader who found me by searching for "What happens if you lie about voir dire."

A pound of cure

Juror-lie cases aren't easy to overturn, but Woman in Black's case might be among the few that might be overturned under the federal standard.  Woman in Black said her juror confessed after the trial to having "a bias against mental health defenses," saying that he hadn't been asked that specific question in voir dire -- but, she says, she did ask. 

The federal rule in these cases comes from 1984's McDonough Power Equipment v. Greenwood: "[T]o obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause."  That might not cover the blogging juror who lied about being a lawyer, since being a lawyer doesn't support a challenge for cause.  But if it doesn't cover the case where a juror denies he has a bias and later says he does, it's hard to imagine what case would be overturned.  (In California, the rule is different; the blogging lawyer's lie got the case sent back.)

Tomorrow, an ounce of prevention -- an ounce is about all there is -- and an attempt at a larger perspective.

(Photo by Christina, technochick's 11-year-old daughter, at http://www.flickr.com/photos/technochick/595491058/; license details there.)

Jury Notes From Elsewhere, July 27

Jury stuff from other blogs in the last two weeks includes:

1.  New cases. 

Gideon at a public defender reports on State v. Phillips, a Connecticut appellate decision in which four different jurors testified that a fifth juror was racially prejudiced.  The trial judge held that any prejudice hadn't affected the deliberations, but the appellate court reversed because that was the wrong standard:  "If the court does find that a juror is racially biased, through speech orconduct, such conduct is ipso facto prejudicial and the defendant is entitled to a new trial".   

Meanwhile, Barry Barnett at Blawgletter beat me to Wednesday's opinion in Alcala v. Emhart Industries, Inc. where Chicago federal judge Amy St. Eve refused to let the lawyers ask voir dire questions about jurors' attitudes on lawsuits and tort reform.  The Seventh Circuit said this was fine, since Judge St. Eve did ask the jurors about their experiences with lawsuits and whether they had any beliefs that would keep them from being impartial.  Barry has a great time imagining the tort-reforming juror who might have "made his way onto the jury by denying, silently to himself, that he couldn't judge the case impartially."

2.  Follow-ups. 

Further on things mentioned here:  Scott Greenfield at Simple Justice starts from the posts here earlier this week on Batson, and considers "the ugly subject of reverse Batson challenges."  (Because yes, defense lawyers, and yes, civil lawyers, Batson applies to you too.)

J. Craig Williams at May It Please The Court adds thoughts on the California Peregrine trial, where witnesses have been barred and a juror has been dismissed for reading a trial blog written by a local lawyer who's being paid to cover the trial by an anonymous law firm. 

Eric Turkewitz at New York Personal Injury Attorney Blog follows the malpractice case brought by Notre Dame football coach Charlie Weis against two doctors.  The trial was set for February, but that didn't work out; the judge had to declare a mistrial after a juror became sick and the defendant doctors rushed forward to save him.   This week a new trial ended in a verdict for the doctors. 

3.  Good advice

Adam Levin of Southern Criminal Law and Justice had a good idea, and sent a long list of questions about criminal defense practice to lawyers he admired.  Mark Bennett at Defending People has started a series answering them (the first post is a reading list), and Jon Katz at Underdog Blog has his answers here.  As always, civil lawyers can use their advice too.  From Jon, for example:   "Q.  What is the most overlooked tool of investigation?  A.  Close and deep listening."

More good advice for civil and criminal lawyers alike:  Steven Gustitis at The Defense Perspective starts a series on "building the persuasive case" with a detailed post on how to get the facts.

Finally, a tidbit from me:  remember to ask experts what their opinion is "to a reasonable degree of professional certainty in the field of ________", and you'll save yourself the many minutes of agony I spent in front of one of my first juries, having objections sustained to one attempt after another because I didn't know that.  This tip may not be needed much longer, though; Walter Olson at Point of Law reports on recent proposals to change the standard. 

4.  The high cost of trials.

Why are there fewer jury trials?  Maybe in part because so many lawyers struggle to try cases within a budget that reflects their value to the client.  Stephen Rosenberg at Boston ERISA & Insurance Litigation Blog reports on recent research suggesting that "the costs of patent infringement litigation actually exceed the economic value across all industries of patenting inventions."  Eric Goldman of Technology & Marketing Law Blog reports on how Susman Godfrey prices plaintiff's patent cases here. 

Meanwhile on the criminal side, the WSJ Law Blog reports on the eight-figure fees paid in the defense of recent prominent criminal cases.  (Some were awfully close to nine figures.)   Simple Justice argues here that big firms are the wrong choice for these cases; I don't think that's always true, but the post is good.

5.  Don't stereotype rural life

In a lovely post at Concurring Opinions, Melissa Waters points to a new Connecticut Law Review article arguing that "law's rhetoric - and therefore law itself - lags behind reality, due in part to out-dated assumptions about rural communities."    For trial lawyers, the article is a reminder that we stereotype rural jurors in the same way.  For Melissa Waters, it had a more personal connection:  the article cites an opinion by her dad, who was a federal judge in Arkansas, and she tells a nice story about him.

6.  Juror blog of the week

Here's a California man who is requesting a deferral from jury duty, because the date doesn't work for him.  His jury date is right before he leaves for Nippon, Japan, for the 2007 Worldcon -- that's World Science Fiction Conference.  Don't laugh:    over 6,000 people traveled to Anaheim, California for the 2006 event. 

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

Nightmare On Jury Duty

Some lawyers are tougher on jurors than others.  Yesterday's news brought two examples:

1.  A sobbing juror. 

She had reason to cry.  A British television actor named Chris Langham is being tried in England for sexual assault, and the prosecution decided to show the jury video clips of child pornography allegedly found on Langham's computers. 

The story I'm reading says the judge had ruled that the jury need not be shown any clips rated five on a one-to-five scale of seriousness. The prosecution started playing the rest.  They were on the third clip, rated three (an earlier one was a four), when the juror broke down and fled the room.   The judge relented and said they didn't have to watch any more:  "You can take it that the rest of the images are of the same quality as the ones you have just seen."

A moment like that is bad for the defense, of course, but it's not necessarily great for the prosecution.  If you're willing to sear those images into jurors' minds when the images aren't even direct evidence of the crime you've charged, at least a few jurors might wonder what else you would do to win. 

Jurors do have to see awful evidence, of course, too often.  Sometimes it seems like there's a dismemberment trial going on somewhere in America on any given day.  It's a complex topic, but if there's one thing to say about it, it might be this:  whether you do it out of concern for your case or for your soul, show compassion for jurors when that evidence comes out.  The rule applies no matter which side you're on.

2.  The nosiest voir dire ever. 

When your client is charged with masturbation, you have to ask about it in voir dire.  How Appealing relays a Miami Herald story about Terry Alexander, a Florida prison inmate charged with indecent exposure because he masturbated in his cell and "did not try to hide what he was doing as most prisoners do." 

Imagine showing up for jury duty and being asked, in open court, whether you masturbate:

Defense attorney Kathleen McHugh faced 17 prospective jurors and asked point-blank who among them had never done that particular sex act.

No hands went up.

Why they didn't strike the whole panel right then is a fair question. 

I'm presuming that Ms. McHugh was smiling when she asked, and that the question was rhetorical -- even though How Appealing quotes the story as saying she then "went one-by-one, asking each prospective juror if he or she had ever masturbated. All nine men said yes, two of the 10 women said no."  (This detail isn't in the current version of the story.)  If you really wanted an answer to a question like that, you'd try to use a questionnaire -- which you'd likely never get in a misdemeanor like this.  (The State-of-the-States Survey by the National Center For State Courts reports that supplemental questionnaires add on average 227 minutes to voir dire, and this trial might not have taken that long.)

But this story too is more about the prosecution than about the defense.  Why make jurors sit through a trial like this?  "While most prisons deal with such an offense internally, Broward Sheriff Ken Jenne -- and Miami-Dade Corrections officials -- are hoping to curb the practice among inmates by prosecuting them," the Herald explains.  The particular sheriff's deputy who observed Mr. Alexander has pursued charges in seven similar cases so far. 

Whether or not it curbs the practice, Mr. Alexander was convicted

"'It was pretty straightforward,'' said juror David Sherman.  "The prosecution's case was clear, and the defense did not dispute any of the major elements.'' . . . He also said that none of the jurors had a problem with the sex act, per se.

___________________

Notes: 

1. I was already getting page hits from searches like "pictures of attractive men," thanks to earlier posts on research studies showing the impact of beauty.  I hate to think what searches will lead to this site after today.
2. More on the Florida case, on the decision to charge and the fun turns of phrase a writer gets to use to describe it, from Grits For Breakfast and Herald columnist Fred Grimm.

(Photo by Salem Eames at http://www.flickr.com/photos/great_sea/160996406/; license details there.)

We R Deliberating Where RU?

....judge really helping w/jurors...
still having difficulties with #30
...any ideas???
keep pushing on ur side
did not understand ur thoughts on statute
but received links.

It's not the kind of message a juror is supposed to be sending to a fellow juror at 10:09 on a Sunday night in the middle of deliberations.  Nor is it the kind of thing a defense lawyer expects to find, sent anonymously, in the morning mail.    But when the defense lawyer's client is Richard Scrushy, you can bet the issue won't go away quickly.

"Articles usent outstanding!"

A follow-up message, sent about half an hour later, isn't any better:

I can't see anything we miss'd. u?
articles usent outstanding! gov & pastor up s---t creek.
good thing no one likes them anyway. all public officials
r scum; especially this 1. pastor
is reall a piece of work
...they missed before, but we won't
...also, keepworking on 30
... will update u on other meetingz

Then there's the reply:

Great info 4 r friends.
% of prosecution increases dramatically.
Could not find that when I surfed it.
Gov/Pastor GONE....

If you're lost track of the Scrushy story, here's a thumbnail.  Richard Scrushy has faced two criminal trials in the last few years.  In 2005, he was acquitted of fraud charges over the failure of HealthSouth, the company he ran.  The government had better luck in 2006, though, trying Scrushy and former Alabama governor Don Siegelman for corruption relating to campaign donations.  The corruption jury -- which included the two late-night E-mailing jurors -- reported twice that it was deadlocked before finally convicting Scrushy and Siegelman last June. 

Some E-mails between jurors surfaced soon after the verdict.  Armed with those and a juror affidavit ("I was confused between all the evidence and other Internet stuff that some of the jurors brought in and was talking about . . . They were pulling stuff out of files[.]"), Scrushy asked the trial judge for a new trial.  The trial judge interviewed the jurors and denied the request in mid-December.  Scrushy was sentenced to prison a few weeks ago.  (All these links are to the WSJ Law Blog, a great source for Scrushy chronology.)

In the meantime, however, defense counsel got another anonymous envelope in late December, containing the E-mails above.  The ensuing motion to reconsider wasn't decided, so the defense has now filed a motion in the Eleventh Circuit Court of Appeals asking the appellate court to issue subpoenas itself, requiring the production of evidence that would show whether the E-mails are genuine -- including, apparently, the personal computer hard drives belonging to the jurors in question.  (The proposed subpoenas themselves aren't attached to the copy of the motion I have, but that's the clear import of the motion.)  The government filed a response to the Eleventh Circuit motion last week. 

Weird new world

There's a plateful of food for thought here.  The idea of a federal court of appeals issuing subpoenas would be provocative enough, but I'm more distracted by the text-message quality of these E-mails, and what it might portend.  If you've ever taken a deposition and watched opposing counsel and his client E-mail each other in front of your eyes, you can start to imagine how jurors at opposite ends of a table might have their own conversation even as the group debate swirls around them.  When the jurors go home, they can find each other instantly:  RU there? 

And the slowish handheld connection that even a few months ago might have discouraged jurors from jury-room Internet research is now, if the commercials are right, up to full speed.  Those iPhone commercials are pretty incredible.  Imagine how much you could find out about Richard Scrushy if you had one of those things in jury deliberations.

(Photo by Dewayne Smith at http://www.flickr.com/photos/dewayne_smith/433951055/; license details there.)

When Race-Neutral Isn't

Yesterday's post looked at U.S. v. McMahan, where a prosecutor struck a black juror, asserting race-neutral justifications that were closely intertwined with race.  Researchers recently looked at the same issue in a larger framework, and found that peremptory strikes may be race-based when lawyers don't admit it or even know it. 

Intuition and theory suggest that race likely has an observable, pervasive influence on jury selection judgments, but such a causal relationship has not been confirmed through experimentation.

That's the problem tackled in a paper in the June issue of Law and Human Behavior:  "Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the Batson Challenge Procedure," by Michael I. Norton of Harvard Business School and Samuel R. Sommers of Tufts University.  (This via Psychology and Crime News, which flags volumes of new research in the area.)  The full paper isn't at the journal's website, but it's posted at Tufts, Harvard, and SSRN. 

Does it do any good to ask for justification?

Batson is based on the assumption that if we ask lawyers to justifiy their peremptory strikes, we can expose and reduce racial bias, the authors continue -- but no one has looked at whether that assumption is true.  What research exists, they point out, suggests it isn't:

Many researchers have demonstrated that people can offer compelling explanations for their behavior even when unaware of the factors—such as race—that are actually influential. But even if attorneys consciously and strategically consider race during jury selection, they would be unlikely to admit it. Such an admission would have immediate consequences, as it would comprise a Batson violation. More generally, psychologists have noted that behavior is often influenced by the desire to appear nonprejudiced and to avoid the social sanctions that can follow from the appearance of racial bias.

(I've eliminated cites from this excerpt, but they're in the paper, which has an extensive and well-explained bibliography.) 

Pretend you're a prosecutor

So they designed an experiment.  The idea was simple:  ask subjects to be prosecutors.  Three groups of participants -- 90 college students, 81 law students (from a Top 10 school, the paper points out), and 28 trial lawyers -- agreed to pretend they were prosecutors trying a black defendant.  The undergraduates were told they could strike jurors “because (a) you don’t think they would be able to be fair jurors or (b) you do not think they would be sympathetic to your case.”  The law students and lawyers were simply told they could exercise peremptory challenges. 

The participants were then given profiles of the same two fictional male jurors -- a journalist who wrote often about police misconduct, and an executive who said he was skeptical about statistics.  Half the group got a picture of a black man with the journalist's profile and a white man with the executive's, while the rest of the group got the pictures and profiles reversed.  They were all told they had one strike left, and asked to choose which juror to strike and explain their reasons. 

You guessed it.  The strikes depended significantly on race, and the explanations didn't.  Juror #1 was struck 77% of the time when he was black, and only 53% when he was white.  Juror #2 was struck 47% of the time when he was black and 23% when he was white.  But only 7% of college students, 6% of law students, and 8% of attorneys said that race had anything to do with their decisions.  Instead, they cited the non-race aspects of the profiles.   

"Little reason to believe"

Norton and Sommers conclude with blunt candor.  "The practical implications of these findings are clear:  even when attorneys consider race during jury selection, there is little reason to believe that judicial questioning will produce information useful for identifying this bias."  Whether they know it or not, "the present data suggest that decision-makers are remarkably facile at recruiting race-neutral characteristics to justify jury selection judgments, and this tendency poses a threat to current restrictions on peremptory use." 

(Photo by wonderferret at http://www.flickr.com/photos/wonderferret/587407945/; license details there.)

Batson, Day To Day

What's race and what's not?  The question comes up in nearly every aspect of public policy -- and it comes up all the time in voir dire.

In Batson v. Kentucky in 1986, the Supreme Court barred prosecutors from striking jurors because of their race.  The Court had high hopes for the decision's impact:

By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice.  In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race.

Twenty years later, Batson's contribution has been important -- but in daily courtroom life, it often bows to the complex relationship of race and experience.  An example is the Seventh Circuit's opinion in U.S. v. McMahan, issued Friday. 

"He lives on Chicago's West Side."

The five defendants in McMahan "were part of a long-term, well-established drug business near the corner of Washington and Waller on the west side of Chicago," said the Seventh Circuit's Judge Terence Evans.  They were tried before Judge Amy St. Eve, who just completed the Conrad Black trial.  The prosecutor struck an African-American juror.  The defense challenged the strike on Batson grounds, so the prosecutor was required to state "race-neutral" reasons for the strike.  The prosecutor was ready with two reasons, zip code and friends with arrest records:

First and foremost—and, most importantly—he lives on Chicago’s West Side.

It was reported, although we did ask the follow-up question with the Zip Code—and, unfortunately, none of us were able to place that Zip Code—as to whether or not it was the area of Washington and Waller.  We still had concerns. 

Those concerns were, then, seconded by a comment that was reported to us by Agent Helen Dunne, from some individuals who appear to be here perhaps because they are relatives or friends of the defendants; a comment that was remarked—that she overheard— where they said, “Oh, that’s a good Zip Code.”  That gave the government some concerns.

Secondly, he has stated that he has a number of friends who have been arrested; and, while the government  recognizes that we did not—or we would have run out of pre-emptories if we had exercised all  arrests—it seemed like there were—the numerous nature of these individuals that gave the government concerns.

Not race, but not race-neutral

That was good enough for the Seventh Circuit:

We agree with the district judge that the prosecution offered race-neutral reasons for the strike, in fact, quite convincing explanations for the strike.  The defense has not shown that the reasons were pretextual.  That the reasons are not pretextual is supported as well by the fact that three black jurors were empaneled as the jury selection process continued. 

It's a common analysis -- but it has an odd ring of the unsaid.  What isn't discussed, either in the opinion or in the trial court colloquy as the opinion describes it, is that while zip codes and arrested friends may be race-neutral under Batson's jurisprudence, they're not race-neutral in any practical sense. 

In Chicago as in many cities, race and zip code are essentially twins.  A 2002 analysis of Chicago census data found that "African Americans in Chicago continue[ ] to live in extreme isolation from members of other racial/ethnic groups."  Arrest rates in turn are higher in these areas for many reasons, so residents there would know more people who have been arrested. 

I'm not saying these factors don't affect how jurors hear cases.  To the contrary, they're critical;  our experiences shape our views.  As we've seen, for example, people who have been themselves incarcerated, or know someone who has, have less confidence in and support for social controls -- like police work -- than other people do.  It makes sense that a prosecutor would prefer a juror from a different zip code, with different friends.  But these and other facts of many black jurors' lives are undeniably connected with race.  So we watch Batson thread an unsteady path through race and experience, day by day and case by case.

_________________

Notes:

1.  The Seventh Circuit's Judge Evans, a former state and then federal trial judge here in Milwaukee, had a suggestion for voir dire management that's worth noting separately:

The jury selection process used [by Judge St. Eve] requires the attorneys to exercise peremptory challenges before they know what other problems might show up in the remainder of the venire. Although we are not saying that the process is legally infirm, it would seem to us to place the attorneys in an unnecessarily difficult position, which could be eliminated by the exercise of peremptory strikes after all the jurors were questioned. 

2.  The defendants' friends whispering "that's a good zip code" in the back of the courtroom didn't help their cause.  Note for next trial:  remind gallery to keep voices down.

3.  Many thanks to Blawgletter's Barry Barnett for his kind words about this blog in today's great edition of Blawg Review.  Barry's take on this week's law blogs is all about humor (although my post, darn it, wasn't all that funny) -- which makes sense, because Blawgletter is itself one of the funniest things out there, in addition to its substantive merit.  Look at this one. 

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

American Gallery Of Juror Art Welcomes Susan Sermoneta

"I started taking pictures to document my granddaughter's growth," says Susan Sermoneta.  "Then I started carrying my camera everywhere."  So she had it with her in the Vietnamese restaurant where she had lunch on jury duty:

Susan Sermoneta lives in Manhattan, where she teaches college English, and takes pictures.  Pictures and pictures and pictures -- she has almost 13,000 on Flickr.  There are pictures of her elderly father, of her baby granddaughter, of students, friends, animals, but most strikingly, of New York.  Fellow Flickr artist Steve Wall posted this description of her work:

Susan takes you on a detailed, unique and personal tour of her New York City. Through her camera we see a locals-eye-view of the architecture, graffiti and people that make her city so colorful and fascinating. From her sets on benchwarmers and city people to her perspective on colors and textures within restaurants, lobbies and museums, it’s a cityscape many will never notice. But Susan captures every overlooked detail and transforms them into unforgettable images. It’s a New York you will be glad you visited.

An ordinary moment, documented with care, is a thing of great value.  By that measure, Susan Sermoneta may be the richest woman in New York.

Clients, Choices, And The Jury System

Judge William Young is calling lawyers to the defense of the jury system.  He may be the most passionate and articulate voice to make this call, but there are many other voices.  The list of people who are said to be usurping the jury's role includes nearly everyone involved with justice:  some blame judges, others the legislature, some blame prosecutors and the rest of the executive branch. 

There's a word that comes up far less often in these conversations, though.  It's the word "client." 

"A shudder down your spine"

I like juries so much that I write about them almost every day.  When Judge Young asks his audience to imagine the moment, I'm there:

The jury tells us we have a verdict. Things are set up in the courtroom. Everyone is ready: litigants, lawyers, and the jury comes through the door. Everyone looks. How is the jury? Are they looking at the defendant? Are they drawn? Are they haggard? Are they comfortable among themselves? Court is in session. The clerk says, "Madame forelady. Has the jury agreed upon a unanimous verdict?" The forelady says, "Yes." The deputy clerk says, "Pass the verdict slip." It is passed up, with all eyes on the verdict slip. It is passed on to the judge. The judge opens it. Looks at it first. Says, "The verdict is in order and it may be recorded," and gives it back to the clerk. The clerk looks at the jury and says, "Ladies and gentlemen, would you please rise." And they all stand up, awkward now. Dead silence in the courtroom. Everybody watches that verdict slip. And then the clerk says this, "Ladies and gentlemen, hearken to your verdict as the court records it."

At that moment, if ever you have been there, and when next you go, you will know, with an incontrovertible shudder down your spine, that you are witnessing the purest form of democracy known to humankind.

I know that shiver.  Heck, I choke up a little when they take the oath before voir dire.  But I'll admit this too:  when I'm there, really in court in that moment, it's because nothing else worked.    We couldn't settle, we couldn't resolve the case with a motion, we couldn't arbitrate.  As much as I believe in the jury system, I routinely work to stay out of it -- and so does every good trial lawyer, at least part of the time.  Why?  Because we have a duty that trumps our loyalty to the jury system.  We represent clients.

We don't practice politics

When clients and lawyers set litigation strategy, they consider many factors.  Politics and the future of the jury system are not among them.  What they think about instead:

• Certainty.  We can't predict what a jury will do, ever.    When parties resolve a dispute with a clear agreement, they lift themselves out of a fog of uncertainty.
• Expense.  Whether it costs tens of millions of dollars (as the WSJ Law Blog, via Simple Justice, reported were the defense fees in several prominent prosecutions) or "only" tens of thousands, trial by jury is an expensive privilege.  Settlement, arbitration, and resolution by motion are all worth exploring in the seach for more affordable justice.
• Importance.  Related to the points above, but perhaps worth making separately:  some disputes are just too small or too big to try.  Nothing makes a jury madder than when the amount at stake is less than the combined wages they're all losing by being there.  On the other hand, a true "bet the company" (or the farm, or your life) trial is too big a bet for many parties.  Last week Mark Bennett described movingly a client's decision to plead in a death penalty case, simply to save his life.
• Time.  In most jurisdictions, a jury case -- from complaint filed to appeal decided -- takes at least a few years, and sometimes several.  Life is short, and many parties decide they don't want to devote that much of it to litigation.
• Finality.  In many cases, the jury's verdict is not the end; it's just the beginning of the appeal process.  Litigation of any size and kind takes a heavy toll on the parties, and often they see the wisdom in just being done.
• Legal rights.  Summary judgment stops looking like a judicial land grab when you have to sue on a clear promissory note, or when you're sued on a bogus claim.  When a party has clear legal rights, she typically thinks she ought to have them enforced quickly.
• Relationships.  Many lawsuits are between employers and employees, suppliers and customers, franchisors and franchisees, companies and shareholders, brothers and sisters.  When parties see that they can preserve some part of their relationship by resolving their dispute, they've done something more important than one more jury trial would be.

Jury advocates might respond to that list with reform ideas to make jury trials shorter, or cheaper, or more final.  That's fine.  It's good that scholars and policymakers worry about whether jury trials can survive against these pressures.  But for me and many trial lawyers, this is litigation as it is.  It's a great privilege to be able to ask a jury for justice for a client.  But our first responsibility is to the client, not to the jury, and that often means we choose another path.

______________

Note on the same theme:  Back in May, the InHouse Blog had a post highlighting a Law.com interview with Mark LeHocky, general counsel of Dreyer's Grand Ice Cream.  “I actively pursue a package of early dispute resolution tools," LeHocky began, and explained how and why.

(Photo by forklift at http://www.flickr.com/photos/forklift/744591491/; license details there.)

Is The Jury System Dying?

"Yet the American jury system is dying. It is dying faster in the federal courts than in the state courts. It is dying faster on the civil side than that on the criminal side, but it is dying. It will never go entirely, but it is already marginalized."

Judge William G. Young said that, speaking to the Florida Bar at its annual convention in late June.  (An article in Florida Bar summarizing the speech is here, linking to the transcript here, and thanks to Florida jury expert Phil Monte for the link to both.) 

Judge Young, chief judge of the United States District Court for the District of Massachusetts, is no ordinary speaker.  The words he chose in sentencing shoe bomber Richard Reid make as good an Independence Day reading as you're likely to find; and in an opinion that was widely praised, he held the federal sentencing guidelines unconstitutional before the Supreme Court's Blakely decision came down.  Nor is he new to this topic.  He published a much longer, footnoted version of the jury-system speech in the Suffolk Law Review as "Vanishing Trials, Vanishing Juries, Vanishing Constitution." 

Is he right?  Are we losing the jury system?  Judge Young isn't the only one who says we are.  It's clear that courts are holding fewer jury trials.  Adam Liptak of the New York Times discussed the issue in late April, calling his article "Cases Keep Flowing In, but the Jury Pool Is Idle."  (It's subscription, but it was reprinted in full by others, so a search should find it.)  Liptak cited Judge Young's Suffolk article as well as Prof. Suja Thomas's arguments that summary judgment denies the right to jury trial, and Prof. Marc Galanter's work for the American Bar Association's Vanishing Trials project.  (Prof. Galanter's 130-page report is here for ABA members.)

"Look what has happened."

Even among these voices, Judge Young's passion and his understanding of the relationship of judges and juries are extraordinary:

No country, in the history of the world, has turned to jurors more than the United States of America. No country. And look at what has happened. Look at what has happened. The fact that it was necessary to explain the law to real, average people who came in off the streets has worked an extraordinary empowerment on the judiciary of this country. The fact that we share the judicial power with juries has only made judges stronger, so that today the judiciary of the United States is the most independent and most envied judiciary in the world.

Why fewer jury trials?  Judge Young concedes (as some wouldn't) that "[t]here is not, in the United States today a direct attack upon the jury system."  Rather, he says, "difficulties are thrown in its way":

• Arbitration:  "Do any of you trade on the New York stock exchange? You've given up your rights. Do you have long distance phone service? You've given up your rights. Do you use cell phones? You've given up your rights. Work for Circuit City or other major employers? You've given up your rights to trial by jury."
• Statutory preemption: "Congress passes ERISA and the Supreme Court reads preemption broadly and suddenly it's snapping up out of the state court all these consumer protection cases so long as the defendant is an insurance company."
• Resolution of cases by motion: "Page after page of these carefully reasoned adjudications with the reasons why we don't go to trial."
• Discovery:  "The lawyers engage in contentious discovery that requires an enormous amount of attention, both from magistrates and judges."

He's right about all of that, of course, and it's beautifully said.  But there's a factor missing here, and I think missing from, or underemphasized in, the leading discussion on this topic.  More on this tomorrow.

(Photo by Zyada at http://www.flickr.com/photos/zyada/462780785/; license details there.)

The Reading Pile

Your summer reading list on juries need never run low.  If it does, run a quick search on SSRN for the word "jury."  Just in the last month, scholars have posted the following:

1.  On statistical fallacies:  "Statistics in the Jury Box: How Jurors Respond to Mitochondial DNA Probabilities," David H. Kaye , Valerie P. Hans , B. Michael Dann , Erin Farley and Stephanie Albertson, from the Journal of Empirical Legal Studies.  From the abstract: 

[W]e examine how jurors who responded to summonses for jury duty evaluated portions of videotaped testimony involving probabilities and statistics. Although some jurors showed susceptibility to classic fallacies in interpreting conditional probabilities, the jurors as a whole were not overwhelmed by a 99.98% exclusion probability that the prosecution presented. Cognitive errors favoring the defense were more prevalent than ones favoring the prosecution.

2.  On jury nullification:  "Necessity and Jury Nullification," Travis Hreno, from the Canadian Journal of Law and Jurisprudence.  From the abstract:

[T]he most striking thing about jury nullification is that nothing is done to actually prevent or punish jurors who behave this way. In this paper, I explore three rationales for why jury nullification is an officially tolerated, if not necessarily welcome, element of Anglo-American criminal law jury trials.

3.  On how long deliberations take, a topic on which I get waves of searches whenever a high-profile jury is out for awhile:  "Time to Deliberate: Factors Influencing the Duration of Jury Deliberation," Thomas L. Brunell.  From the abstract: 

The empirical results indicate that 6 person juries are no quicker than 12 person juries; as cases become more complex and/or more severe, juries deliberate longer; non-unanimous decisions take longer to reach than unanimous ones; panels that saw many potential jurors excused during voir dire end up deliberating longer than panels with fewer challenges.

4.  On witness confidence and credibility:  "Expanding the Scope of Cross Examination so that Jurors Can Infer Witness Calibration," Barbara A. Spellman , Elizabeth R. Tenney and Robert MacCoun.  (I wrote about an earlier confidence paper from these authors here.)  From the new abstract:

Jurors rely heavily on witnesses' confidence and veracity when evaluating credibility. Three studies demonstrate that jurors will regard a witness's calibration - the relation between that witness's own confidence and accuracy - as more important than either confidence or veracity when calibration information is available. We have already shown (Tenney et al. 2007) that initially jurors prefer a high-confidence witness; however, when an error allows the evaluation of calibration, jurors prefer a low-confidence but well-calibrated witness to a high-confidence poorly-calibrated one.

5.  On the demeanor of defendants and others not on the witness stand, a topic we've discussed here:  "Courtroom Demeanor: The Theater of the Courtroom," Laurie L. Levenson, forthcoming in Minnesota Law Review.  From the abstract:

This article proposes an approach to deal with non-testifying demeanor evidence that occurs outside the witness box. Given the problems with having jurors rely on demeanor evidence, courts should be carefully monitoring the use of non-testifying demeanor evidence. Appropriate jury instructions should be given, including those warning jurors on proper use of such evidence.

6.  On choosing jury trials over court trials:  "Preferences for Juries Over Judges Across Racial and Ethnic Groups," Mary R Rose , Christopher G. Ellison and Shari Seidman Diamond.  (Both this topic and Prof. Diamond's work are frequent topics here.)  From the abstract:

We asked a representative sample of 1,465 residents of Texas to state whether they would prefer a jury or a judge to be the decision maker in four hypothetical circumstances. Consistent with expectations, non-Hispanic whites favored juries over judges, particularly if they imagined themselves as a defendant in a criminal trial. By comparison, although African-Americans and some Hispanics generally favored juries, they showed a much weaker set of jury preferences. African Americans had markedly lower support for the civil jury, but support was higher among minorities with prior jury service. Among Hispanics, respondents who took the survey in Spanish typically preferred a judge to make legal decisions. We consider the implications of our findings for trust in the jury system and trust in community members as decision makers.

Don't print them all at once, or the sunscreen won't fit in your beach bag.

(Photo by Thomas Tringale at http://www.flickr.com/photo_zoom.gne?id=376900808; license details there.)

Still Waters: When Quiet Jurors Speak Up

What is that quiet juror really thinking?  Ask her. 

We've seen recently that jurors often have a stream of thoughts they're not sharing with you.  We've also seen that judges often discourage jurors from talking, either by asking them questions designed to evoke silence or by instructing them not to speak up at all unless they deem themselves biased.  At least one judge, though, has been not only actively trying to get jurors to talk, but also writing down what happens when they do.  It turns out they have a lot to say.

Judge Mize's experiment

When District of Columbia trial judge Gregory Mize (now retired from judging and a Judicial Fellow for the National Center for State Courts) saw a post here about judges asking leading questions, he sent me two papers he wrote.  Both describe different aspects of his experiment, which he began in 1998.  The papers are "Be Cautious Of The Quiet Ones," in the Spring 2003 issue of Voir Dire magazine, and "On Better Jury Selection:  Spotting UFO Jurors Before They Enter The Jury Room," in the Spring 1999 issue of Court Review magazine.  (I don't have the magazine's permission to post the Voir Dire article yet, but I'll update when I do.)

Even before he started focusing on quiet jurors, Judge Mize's voir dire was unusual.  He had co-chaired the D.C. Jury Project, which had just released a report recommending significant revisions to the jury selection process.  One way he implemented his group's recommendations in his own courtroom was to move to individual voir dire of jurors, since he and others believed jurors would speak more freely alone than they would in a large group. 

To make the individual voir dire manageable, Judge Mize asked his questions of the whole group, and asked jurors to silently write down the number of any question they would answer "yes" to.  Then he and the lawyers talked to each juror individually about the questions that juror had noted.

"Could you explain?"

Remarkable enough, but things got really remarkable when Judge Mize started asking the quiet jurors about the questions they hadn't planned to respond to:

During the individual interview, I would ask the jurors who had not responded to any of the general questions, “I notice you did not respond to any of my questions. I just wondered why. Could you explain?” If I did not get much of a response, I would say, “Is it because the questions did not apply to you?”

The answers were well worth the effort.  Some examples:

• "I am afraid to answer questions and cannot remember dates very well."
• "[In a gun case] I can’t stand to talk about guns. My grandson was killed with a gun so the topic of guns makes my blood pressure go up."
• "[In a narcotics case] Eight years ago I was a juror but I was excused because my brother committed suicide as a heroin and cocaine addict. He got drugs easily. Therefore I was and am angry. I’d start out with a bias in this case."
• "I’ll tell you straight up, I am an alcoholic. I’m starting to shake already today. [His breath clearly smelled of alcohol.]"
• "I cannot be fair in this case. The plaintiff’s attorney represented me in a personal injury case some years ago."
• "In a personal injury case, an elderly man appeared to be unusually shy and fearful of speaking up. He refused to answer my repeated questions about whether he would speak up during final deliberations. He eventually stammered, 'Yes, I guess I would. I am no expert about anything. I… I…'"

In the first of the two articles, describing the first year of this approach in criminal trials, Judge Mize sets out his results in numerical form.  In 27 of the 30 trials where he tried this, at least one initially silent juror was dismissed for cause based on answers he or she gave to Judge Mize's further inquiry.  "[O]ne cannot help," Judge Mize concludes, "but get a strong sense of the essential and revealing juror data that can be obtained by interviewing citizens who do not initially respond to open-court voir dire questions."

(Photo by Faraz Usmani at http://www.flickr.com/photos/faraz27989/390967242/; license details there.)

Jury Notes From Elsewhere, July 13

Jury stuff from around the web in the last couple of weeks includes:

1.  The listener and the liar.  By now you've heard about the British juror who hid an MP3 player under her Muslim headscarf, and the Cape Cod juror who tried to get out of jury by claiming he was a racist, a homophobe, and a liar.  The stories are interesting not just because they happened, but because of how far and fast they spread.  The Muslim music story is being reported in South Africa, and I had to turn off my Technorati "jury duty" search because it seemed like every personal blogger in America wanted to talk about the racist liar.  In case we needed a reminder, racism, homosexuality, and Islam are very hot topics -- and so is the idea of a juror rebelling against the system, whether by tuning out or by spouting off.

2.  Whom do jurors dislike more, lawyers or corporations?  Robert Ambrogi at Legal Blog Watch was one of the first to report a survey commissioned by the American Association for Justice (the plaintiff's bar organization, formerly ATLA), and released on the occasion of their annual meeting this week.  The survey concludes that trial lawyers, unpopular as we are, have the edge over corporations:

Americans believe that the civil justice system provides essential safeguards for them at a time when corporate misconduct is such a serious problem.

Ken Shigley at the Atlanta Injury Law & Civil Litigation Blog reports the survey in more detail and considers what it means for jury selection. 

3.  More juror blogs. I wrote yesterday about listening to jurors' thoughts as expressed in their blogs, and I owe thanks to Concurring Opinions for their kind words about that post.  (Welcome, new readers from CO.)  For more jurors in their own words, there's a great post from music-business blogger Bob Lefsetz called "What I Learned At Jury Duty."  It's a great list of lessons big and small ("19.  Sudoku rules.  Everybody was doing it.")

Or you could go to the social networking site Vox.com, where the "Question of the Day" last week was "Have you ever served on a jury?  What was your experience?"  There are dozens of responses. 

4.  More Scott Greenfield.  His Simple Justice is strong as always.  In "The Appeal to Common Sense," he takes on the familiar appeal that prosecutors and other lawyers make to juries:  "Use your common sense."  Scott thinks the argument keeps juries from seeing what might be possible in the life of a criminal defendant whose world is different from the one most jurors inhabit; and he explains how he tries to turn it on its head in his own closing argument.  Meanwhile in a post called "The Home Of The Compliant," Scott notes how hard it is for people to disobey rules, any rules, and applies the insight to juries:   

So as you argue to a jury of twelve that there is some possibility, no matter how remote, that one individual's failure to abide the rules that the government tells us required and expected of all good citizens, think about what you're asking them to do.  Noncompliance in a compliant society is unthinkable.

I know I keep saying this, but civil trial lawyers, read the criminal defense blogs.  Both those posts, for example, apply fully to civil trials.

5.  Jurors under pressure.  Jon Katz of the Underdog blog had a long and thoughtful post after the July 3 mistrial of Alfredo Prieto.  The mistrial came when a holdout juror wrote the judge that his colleagues were pressuring him like "a pack of lions protecting their kill."  "[O]ne is left to wonder," Jon says, "if, in a one-phase trial, juror psychology would make jurors less likely to reveal improprieties in jury deliberations with increased passage of time. The answer likely is yes."

(Posts on pressured jurors here include "A Jungle In There" and "I Wanna Go Home.")

6.  Good blog finds.  In other blogs:

• J.D. Hull What About Clients? has "Sensitive Litigation Moment No. 17: Informal Discovery," on the wealth of investigative information on the Internet that many trial lawyers miss:  "Next time a new case begins, resist rushing into written discovery and depositions. Step back from the discovery routine--you'll get into that bubble soon enough--and learn a few things on your own."
• Mary Whisner at Trial Ad Notes points to a study by Duke's Neil Vidmar, one of the leading jury researchers anywhere.  This paper is Medical Malpractice and the Tort System in Illinois, and it concludes "that the Illinois tort system does not appear to be the cause of the undisputed fact that doctors' liability insurance premiums showed dramatic rises."
• Elliott Wilcox at Winning Trial Advocacy Techniques Blog talks about referential questions we ask in depositions like “This blood here, is that from this general area here, or is that from another area?”  There's nothing like a deposition answer you know would convince the jury -- if anybody could figure out what you and the witness were talking about.  He gives good (in fact, good/better/best) suggestions for how to fix the problem.
• Evan Schaeffer's Illinois Trial Practice Weblog has a quote from the great trial consultant David Ball, from his book David Ball on Damages, on how juries get damages wrong because lawyers forget to explain how to get them right.  If you do civil work, it's worth posting where you'll see it often.

If These Jurors Could Talk

Back when Mel Gibson could credibly play a charming guy, he made a movie called "What Women Want," in which his character suddenly finds himself with the power to hear what women are thinking.  You feel like that sometimes reading juror blogs. 

If you could conduct voir dire by thought bubble, a twelve-person jury box might sound like this:

Juror No. 1 knits harder when the trial bothers her: 

having stopped everything else i’m knitting (mike’s sweater, mommy’s socks, etc.,), i decided to raid my stash tuesday morning before jury duty and make something for me. so, i came up with these. seriously, i started them on tuesday. that’s what jury duty does to me. listening to crazy messed up testimony makes me a little nervous. so i knit like a fiend. i’m listening … i’m just knitting and going off somewhere else at the same time.

it makes it better.

but … i might have to give them away. testimony on thursday was SO messed UP. i have a feeling that every time i look at my pretty green socks, i’ll get sent right back to that day, and that victim, and remember (as hard as i try to forget) how many plum evil people there are in this world.

Juror No. 2, who happens to be reporter John Whiteside of the Houston Chronicle [update and correction:  reader blogger, not reporter; see his kind comment], is irritated (Mark Bennett picked this up too):

Jury selection was infuriating. I couldn't believe how many people were spewing absolute crap about how they couldn't possible convict anyone based on evidence "beyond a reasonable doubt," even though the same people probably watch TV news about trial and decide who's guilty based on a three-minute news report. Obviously, they just didn't want to have to be on a jury. And I understand that - I didn't want to spend the last two days downtown in the courthouse - but too bad. You're a citizen of a country that provides an excellent system of justice compared to most of the world, this is your duty. Somebody has to do it. If you don't like it, move to a dictatorship where there are no trials. It left me very depressed about the state of our society.

Juror No. 3 is a thoughtful Buddhist: 

The single greatest determinant of the success or failure of a community is the relative geography of its members. As a rule, the closer people live, work and exist to each other, the stronger their chances of creating and maintaining a live community. If one wants to understand why a community is or is not working, geography is the place to start.

The concept is so self-evident that it's forgettable: human beings are social creatures, and they will try to connect with whomever is around them. I saw a good example of this when recently called for jury duty: my group of 65 potential jurors convened over the course of 2 days, as the various lawyers questioned us. In the morning hours of the 1st day, most of the group were quiet and observatory, especially those (like myself) who had never been through the jury selection process before. But in the afternoon people were chatting with their neighbors, and by the 2nd day some new friendships had obviously been struck.

And No. 4 is a thoughtful Christian: 

I got summoned for jury duty this morning, and as I was sitting there I started thinking about commen sense. (By the way, there were not any cases for the specific group I was in, so I was only there two hours.) They said we should decide using our own commen sense. This is also a technical term that I have been reading a lot about recently, specifically Scottish common sense realism. This viewpoint had a great effect on the church in the last two centuries and affects how we do theology and how we read the Bible. But as I was pondering common sense, it seems that a postmodern culture is drifting away from common sense: they recognize that everyone has an angle and a viewpoint. Therefore, common sense actually isn't all that common. So will the whole idea of a jury go away? In my thinking postmodernism doesn't mix real well with a jury system. Of course, postmodernism doesn't mesh real well with a justice system at all

No. 5 is a "judge not" Mennonite: 

I find myself in a rather ironic position over this fourth of July holiday.  On the one hand tomorrow I will be celebrating living in a country where every person is free to practice his or her faith as their conscience sees fit.  That right is guaranteed in our constitution.  On the other hand I have been called for jury duty.  As a Mennonite, I believe that I have no place in civil government.  I am an ambassador for "another country".  The Bible clearly tells me not to "entangle myself in the affairs of the world".  The Bible also clearly commands me NOT to sit in judgment of another, nor to swear an oath.

I sent a letter to the Judge explaining these things, but was denied exemption.  . . . So, the day after independence day, I will present myself to the court as required.  I will however, still refuse to serve on a jury.  I believe that is what God would have me do.  I need to obey the law insofar as it does not conflict with the law of God, but I will not go further.  If you happen to read this before the fifth, please pray that I might find favour with the court and that I would not be held in contempt of court by refusing to serve.  I believe that this is my right...and regardless, this is what is right.

No. 6 has no patience for holdouts: 

Had jury duty... got called on a case....GUILTY!!

long story short...bad neighborhood: yes, legal stop: yes, probable cause: yes (crack pipe fell on car floor while passenger stepping out of car), crack found: yes (on both sides of driver-left and right side), crack tested: yes

the juror next to me said not guilty cause it is possible that the guy didn't know the rock was in his car. "someone could have put it there"... dang lady...not everyone is an angle like you. She came around cause she wasn't going to change 6 other's minds.

No. 7 is disappointed: 

I have to report to juvenile court. That's lame. I wanted a real court. How interesting can a child's case be? Probably some snotty dropout got caught with a few stems and seeds, or some spray paint. Yeah, I know what these kinds of kids are like. Predictable. I bet I already know how the case will go. I probably won't even have to pay attention. I'll tell the judge exactly that.

No. 8 is bored: 

Oh, jury duty, you suck out loud!

*sigh* How the hell did someone like me wind up serving on a jury? I'm easily bored, disagreeable yet strangely apathetic, and I spent the entire day making rude comments, poking a cricket with my shoe and rolling my eyes whenever one of the (many) idiots in the jury pool said something stupid... which was often. Plus, I think one of the attorneys is an absolute moron.

Funny thing - the judge kept yawning really hugely and dozing off during the trial. I think the bailiff might have napped a little bit, too.

I hope to hell this trial is over quickly.

Juror No. 9 really likes Brad Pitt and Angelina Jolie: 

It's probably been a good two weeks since there was really fresh new news on Brad and Angelina. At one point, when I saw new pictures of them, I just rolled my eyes because even I was getting tired of the stalkerish non stop voyeurism on that family. With Oceans 13 and A Mighty Heart both out in June, I anticipated that month to be maximum exposure, but even I was overwhelmed! And you all know I love them, but there comes a point when you can only absorb so much Brad and Angelina to prevent ruining what you enjoy so much about being a fan of theirs. So as June came to a close and their movies were released and all their world premiere travels were documented, I knew it would then be nothing for a little in early July, and that has come to fruition. . . . I had Jury Duty today that was a complete waste of 5 1/2 hours of my life.

Juror No. 10 is shocked: 

The lawyers on both sides took turns dismissing potential jurors. At one point, juror #2 wanted to know if he could ask the judge a question. The judge allowed it. He asked, "since these two men do not speak english and need interpreters, I wanted to know if I'm allowed to ask this..." The judge saw his hesitation and told him to go ahead and ask the question. The juror concluded, "are they illegal?"

Oh. My GOSH! You could just see the tension rise in that courtroom! Of course, being liberal California, the judge would not answer such a question and went ahead and shared ten minutes worth of gobbledy-gook about how the jurors are not to see such an assumption as "relevant" to this case. Frankly, I just tuned him out at that point.

O.K. Now you can call me a bigot. Call me intolerant. Call me an illegal alien basher.

I don't care!

What I see is a broken justice system.

If these two were illegal aliens,(which is probably most likely) the first thing done should have been immediate deportation! NOT take up the time of all of these people!!

Juror No. 11 is angry (thanks to Ed. of Blawg Review for this one): 

I’m never serving on a jury again. It’s a small thing, sure, but damn right I’ll take it, it’s one less thing. In no way will I ever let my soul and intellect be shit upon by participating in our legal system, never, and no judge will ever allow me to be in a courtroom very long when it’s discovered who I am. . . .I’ll tell the judge right to his or her face I won’t follow instructions with manipulative deception, Machiavelli is one of my greatest heroes, and that I’m a great liar and actor who won’t have any trouble deliberately tying a jury up in hopeless knots just for hell of it, right after I have innovative sex with one or two jury members, that is. . . . I’ll never server on a jury, ever, American courtrooms have lost the right to make me, and I won’t lower myself by doing so. American jurisprudence may have no standards and ethics, but I do.

And Juror No. 12 had other things to think about:

After an incredibly boring day at jury duty in Waukegan today, I stopped by the Walgreens in Round Lake Beach on my way home to pick up a couple of pregnancy tests...

Her blog begins and ends with that entry.  I hope things are going well.

(Photo by Shawn Haskell at http://www.flickr.com/photos/fpo/66063063/; license details there.)

More Thoughts On Lawyers On Juries

A quick wrap-up on the topic of lawyers on juries.  We've talked about the problem, that other jurors will defer to them; and we've talked about using experiences and behaviors to try to get a better sense of them in voir dire.  If it seems clear that the final panel will include a lawyer -- in Scott Greenfield's lawyer-heavy jury panel, it seemed inevitable -- here are a few closing thoughts that may be helpful.

1.  Rehearse the lawyer's role in deliberations.  Remember the power of priming.  Those who mentally rehearse an activity perform it better and more reliably, a fact used by everyone from athletic coaches to music teachers to doctors treating stroke patients.  You can use it too. 

In voir dire, when you're talking directly with the lawyer/juror, think about letting her know you've seen instances where lawyers unintentionally dominate, and have a conversation about what she'll say when jurors start asking her about the law, or start straying from the instructions.  In closing argument, when you're talking to the whole panel, you can invite the group to imagine how they'll deliberate so that everyone is heard and no one has a special role. 

2.  Look her up.  Compared to most other people, lawyers are easy to learn about on the Internet.  They sign appeal briefs, contribute to campaigns, give seminars, join nonprofit boards, give quotes to the newspaper, give radio interviews, get rated by their peers and nowadays by private rating services (but take Avvo with a cup of salt, as Scott Greenfield has explained in many posts including this one), and sometimes write blogs.  Even if you have to do it after voir dire is over, try to learn a little about this lawyer you'll be trying to persuade.

3.  Argue the instructions.  Lawyers don't lead juries because we're naturally compelling.  Other jurors wouldn't rely on a lawyer colleague for engineering expertise, or even necessarily to recommend a lunch spot.  Instead, lawyer jurors lead because other jurors ask them to explain the law -- the instructions, the verdict form, and in general what jurors are supposed to do.  So, to manage as best you can the lawyer juror's impact, give her what she needs to say when the questions come.  Shape your argument as best you can so that it flows inevitably from the instructions and the verdict form. 

I'm not talking about the burden-of-proof instruction, civil or criminal.  There are exceptions to every rule, but in general a lawyer may be the last person you'd want to argue reasonable doubt to, much less preponderance of the evidence.  A lawyer's life largely consists of being asked to make the call in unclear circumstances, and a few years of doing that over and over will have wrung the doubt right out of her.  I understand that sometimes reasonable doubt is all you have, but the instructions you want to stress if you can are the elements of the claim or the crime, and the elements of the defenses.  Ideally, when you're done, the lawyer juror will be able to explain to her colleagues exactly where it says you win.

(Photo by Macguys at http://www.flickr.com/photos/radiomacguys/475575951/; license details there.)

When Judges Lead Jurors In Voir Dire

We recognize that there is a power differential between a United States District Court judge and a juror.  Generally, a juror would be hard-pressed to disagree with a premise stated by the district court with which the district court asks the juror to agree.  The better practice is for the district court to ask non-leading questions when examining a juror for bias.

Sounds like another trial lawyer blogger, complaining about judges who browbeat jurors into denying their biases.  But wait:  it's the Seventh Circuit Court of Appeals, in an opinion yesterday called United States v. Sloan.  I promised I'd talk more today about lawyers on juries, and I'll get back to that soon, but this might be a big deal. 

It's not the judge's leading question that's surprising. Some fine judges read this blog, but it has to be said:  judges ask leading questions in voir dire all the time.  They're famous for their skill in rehabilitating jurors who admit prejudice.  What's surprising is that an appellate court noticed it, and didn't like it.

Free Electricity for Life!

What happened here?  Mr. Sloan was allegedly a con man, promising “Free Electricity for Life! Plus—the opportunity to make $492,000.00 per year” to those who paid to join a pyramid scheme he called the Christian Freedom Foundation.  A juror named Propes told a courtroom deputy "of his concerns about his ability to remain impartial since, in his mind, the case involved Christianity."  After opening statements and some evidence, the trial judge raised the issue with the parties, and questioned Mr. Propes on the record:

The district court: Hold on just a second and let me say out loud what I was told; that you thought it might—when you got to thinking about it more, you thought it might have been Christian, although we covered it several ways, and you apparently were concerned because you’re a deacon in your church, that you might have some conflict of interest or something?

Juror Propes: Yes, I don’t know if I just didn’t catch it the whole time or exactly what it was, but I have an issue with making money with churches. I’m a member of a church, I’m a faithful member of a church, and I know we have different ways of acquiring money, and it’s not through anything like this. I just totally disagree with this.

The district court: All right. You can tell now from having heard both the opening statements and more of the evidence that the issues of the Christian religion are really tangential to this dispute. So I don’t foresee any way in which there would be a conflict of interest. And I just wanted to raise that with you and make sure that you were of the same way of thinking, that it shouldn’t conflict with your religious beliefs. Do you agree with that?

Juror Propes: Yes.

"There is little doubt that the district court’s colloquy with Juror Propes was leading," the Seventh Circuit said.  "[T]he district court asked Juror Propes to agree with its own opinion."

Not much law to go on

I ran a few quick searches on federal judges leading in voir dire, and found not much -- a trial judge here or there praised for open-ended voir dire questions (as in United States v. Campa last year in the Eleventh Circuit), but none chastised for leading.  The main exception was an exceptional dissent, in an 2000 Eighth Circuit case called United States v. Love, in which the trial court's entire questioning on race was:

You will have observed that the defendants in this case are African-Americans. I do not have to tell you, but for purposes of this question I will tell you, that race is not an issue in this case. It cannot be. It must never be an issue in deciding the guilt or innocence of a defendant.   

Is there anyone here who for whatever reason cannot follow that simple basic principle? (No response)   

I take it from your silence, then, that you are pledged to give these defendants a fair and impartial trial notwithstanding their ancestry. (No response)   

The Eighth Circuit upheld that voir dire in a single sentence, but Northern District of Iowa Judge Mark Bennett, sitting by designation, wrote a long and masterful dissent.  He collected law from every angle on careless voir dire when the issue is race, and pointed often beyond what is required to what may be aspired to, as set out especially in the National Jury Project's book Jurywork:  Systematic Techniques.  Judge Bennett said:

“[T]he group voir dire setting can impede honest statements of opinion or bias.”  1 JURYWORK § 2.11[1] at 2-72.30. It is not surprising that the jurors, confronted with a demand for a public response to a closed-ended, non-leading question, following the district court’s admonition, provided only a socially acceptable response.  See 2 JURYWORK § 17.03[4] at 17-53.  The district court then took the lack of any negative response to its question as an affirmation or pledge that the jurors would give the defendants a fair and impartial trial “notwithstanding their ancestry.”  Trial Transcript at 56. However, closed-ended questions, such as the one and only one propounded by the district court, encourage jurors to deny their true feelings and opinions about race, effectively ending the voir dire before it has begun. See 2 JURYWORK § 17.03[4] at 17-54. 

(I don't have a direct free link to the Love opinion, but you can get it by searching the court's web site here; it's Case No. 99-3291, decided June 15, 2000.) 

The more things stay the same

The Seventh Circuit's distaste for leading in voir dire didn't help Mr. Sloan yesterday.  The court finished this section of the opinion with little trouble:

That being said, there was no indication during the questioning by the district court that Juror Propes had any bias. Juror Propes was selected as a juror because he swore that he could be impartial and base his verdict only on the evidence that was presented. After expressing his concerns and having them assuaged y the district court’s explanation, he agreed that there was no conflict. The district court was satisfied  by Juror Propes’ response, as are we.

It's not easy to be satisfied with Mr. Prope's response.  What he said, after only opening statements and a little evidence, was "I just totally disagree with this," meaning Mr. Sloan's business model.  But defense counsel hadn't objected at trial, or asked that he be removed, or moved for a mistrial -- which made it easier for the appellate court to be satisfied. 

For the trial notebook

It's worth remembering the case, though.  If you haven't yet, take a piece of paper, write "Trial Notebook:  Voir Dire" at the top, and start a list of cases you want handy reference to, beginning with "leading questions -- United States v. Sloan."  Let me know what happens when you use it.

(Photo by Finiky -- her nature shots are wonderful -- at http://www.flickr.com/photos/kim/12692534/.  License details there.)

First Thing We Do, Let's Ask About Experiences And Behaviors

It's not catchy, I'll admit.  But it's the most useful technique I know in voir dire.  And I should have included it in a post last week.

I wrote about the California Supreme Court's decision in The Oakland Raiders v. National Football League, and how it teaches yet again that lawyers who serve on juries are going to lead those juries.  Scott Greenfield at Simple Justice responds, very fairly, with a question.  "In my last trial, the full panel of 45 had more than a dozen lawyers," Scott says.  (Yikes.)  When you stand up to voir dire that group, what do you do?

Let's strike all the lawyers?

Scott states the problem starkly, and correctly:

[B]y allowing a lawyer on my jury, I must presume that I am entrusting my client's fate to one person, who will then bring the others around to his point of view regardless of whether that's his intention.

"But that's the easy part, recognizing the problem," he continues.  "The hard part is trying to figure out whether the lawyer is with me or against me."  He first considers the Shakespearean strike 'em all approach, but admits that with such a lawyer-heavy panel you may not have enough peremptory challenges to eject them all, much less deal with the nonlawyers you'd like to strike.  And when you question them, Scott says, they'll either expertly eject themselves, or "they are going to look like the most reasonable people on earth, free of any prejudice and 110% interested in pristine justice."  (That's true.  People often don't articulate their biases or even their attitudes in jury selection -- partly because they don't know they have biases and partly because it seems uncomfortable or inappropriate to talk freely about them in court.) 

"So we resort to our own obvious lawyer prejudices in deciding who is the most evil lawyer on the panel," Scott concludes, but stereotypes aren't helpful either.  "Any ideas?" he asks. 

Experiences and behaviors

I do have ideas -- ideas I hope are helpful not just with lawyer jurors but with any potential juror, especially one who will clearly be a leader on the panel.  When questions about biases and attitudes run dry, as they quickly will, you don't need to resort to stereotypes.  There are two other, powerful, ways to learn about jurors' attitudes:  Ask about experiences, and ask about behaviors. 

1.  Ask about experiences.    You have attitudes.  Where did they come from?  They came from your experiences, from what has happened to you and what you have seen.  Jurors are the same.

Our experiences shape our attitudes.  Studies show it all the time.  Clinical instructors in radiation therapy show more positive attitudes toward their students' evaluations if they themselves had good experiences as students.  People who have been "exposed to prison," either because they've been incarcerated or they know someone who has, have less confidence in and support for social controls than do people who have been spared that experience.  "People who have a close gay friend or family member are more likely to support gay marriage and they are also significantly less likely to favor allowing schools to fire gay teachers than are those with little or no personal contact with gays," a May 2007 Pew Research Center survey found.   

So let's say I was on your jury panel, and you knew I'd been with the same large-ish Midwestern corporate law firm for 26 years.  If you're a criminal defense lawyer, or a plaintiff's lawyer in a civil case, you could go ahead and reserve a peremptory strike for me, or you could ask more about my life -- in which case you'd learn that I'm married to a public defender and that through various friends and connections over the years I've had a good look at mental health issues, addiction, and the criminal justice system.  If you asked me about civil topics, you'd learn that I've almost never made any kind of claim, and I've probably skipped lots of chances to get refunds, tax credits, and such.  I've represented corporate defendants against some truly manipulative abuses of the justice system; but I've represented plaintiffs too, and co-tried a case that ended in one of the largest local verdicts a few years ago. 

Do you strike me?  That depends on your case and who's sitting next to me, but at least you have a sense of what you're getting. 

When I work with lawyers to get ready for voir dire, we spend most of our time brainstorming experiences, listing what could possibly have happened to a juror that might resonate with the case we're working on.  I've written more about that process here.

2.  Ask what experiences mean.  Experiences shape attitudes, but don't assume you know how they shape them.  Say your panel includes a clean-cut white lawyer, male, late 30s, married, and when you ask about his experiences, you learn that his dad worked for the CIA.  Don't strike him yet.  He's Mark Bennett, the Houston criminal defense lawyer (and terrific blogger), and his e-mail address today ends in fightthefeds.com.

Our experiences affect us differently.  Some people who lost loved ones on 9/11 emerged with hatred for all Muslims; others found themselves driven to better understand them.  Some families of murder victims become fervent death penalty advocates; others become just as fervent in their opposition to the death penalty.  When you learn that a juror's experience will be important to your case, then, your next question is what it means.  What did he take away from that?  What kind of meaning does he find in that experience?  What does that experience mean to him now?  You're on very personal ground here, so be respectful, but ask.

3.  Ask about behaviors.  The other way we display our attitudes is in the way we act.  If you ask potential jurors how they feel about immigrants or companies with foreign ownership, you may get bland answers.  If you ask which jurors make an effort to buy only American-made products, or if your bumper-sticker question turns up one that says "Build The Wall," you'll have learned something.  Jurors who think of themselves as completely open on race issues may drive miles to avoid going through black neighborhoods. 

Again, this comes from brainstorming.  Make a list of all the ways that jurors might act out their perspective on your case -- donations, letters to the editor, radio call-ins, ribbons around their trees, year-round flag displays, and yes, bumper stickers -- and then ask about them, as much as you can.

Tomorrow I'll add some thoughts about techniques when lawyers end up sitting on the jury.

_________________

Notes:

1. Other posts here on the importance of asking about experiences in voir dire include A Helpful Way To Think About Race and Tears, Pain, And History In The James Seale Voir Dire.
2. Is Mark Bennett "the best new legal blogger of 2007"?  I'd never argue with Capital Defense Weekly, especially when it's giving out well-deserved praise. 

(Photo by ClatieK at http://www.flickr.com/photos/clatiek/462222145/; license details there.)

News Flash: Lawyers Are Leaders On Juries

Monday's NFL/Oakland Raiders case from the California Supreme Court got a lot of attention this week, much of it from football fans happy to have something to talk about off-season.  Here at Deliberations, it's just another jury case, and it's a fun one. 

Note to self:  in next football voir dire, ask which teams they hate

The Raiders sued the NFL claiming the league should have given them more money.  (That's all the detail we need in a jury blog.)  It probably would have been cheaper to resolve  the dispute in a winner-takes-all game, but instead they went to trial.  The jury could not agree, but in California civil cases they don't have to.  They came back 9-3 for the NFL.

The Raiders moved for a new trial, attaching declarations from five jurors complaining about the behavior of two of their colleagues, Joseph A. and Linda H.  Joseph A., the declarations said, just plain hated the Raiders:

According to those declarations, Juror Joseph A. stated several times during deliberations that he hated the Raiders and their owner, Al Davis, and that he would never find for the Raiders or award them any money. Juror Alice I. declared: “Joseph [A.] stated to the group that he hated the Raiders and Raiders’ owner Al Davis. He also said to us that the Raiders were always starting lawsuits with the NFL, and that he would never award the Raiders any money or find for the Raiders in this case. [¶] I confronted [Joseph A.], along with several other jurors, saying that it was improper for him to make such a statement and to act that way. I also told him that he had filled out a questionnaire, and he had a duty to express his hostility in the questionnaire. [Joseph A.] responded to me ‘this is America’; that he had a right to express how he felt; that the questionnaire only asked him what his favorite team was, which he said was the New York Jets or Giants, and that the questionnaire did not ask which team he disliked. [¶] Jurors [Wayman J.] and [William S.] both told [Joseph A.], in the presence of other jurors, that this act of concealing his bias could cause a mistrial. [¶] [Joseph A. did not] attempt to explain his dislike for the Raiders in terms of any evidence he had heard during the trial; rather, his references to other lawsuits between the Raiders and the NFL and his other comments to the jury made clear to me that his bias against the Raiders existed prior to this trial.”

An "unofficial leadership position"

The problem with Linda H., though, had nothing to do with sports.  She was a lawyer.

The  declaration by Juror William S. stated that Linda H. “told the other jurors that the  Raiders’ lawyer did not want her on the jury, and that she would make them pay.”  The declaration of Juror Angelo C. stated that Juror Linda H., a lawyer, “exercised  an unofficial leadership position,” dominated the deliberations, and instructed the  jurors on the law. She “told the jury that if they voted one way on one of the  claims, they had to vote the same way on another claim, because ‘that was the  law.’ ” She also wrote out statements of the law and taped them to the jury room  walls; her statements were not quotations from the jury instructions “but were her  own words of what she claimed the law was.” She also told the other jurors that  Resolution FC-7 could not be a contract and that there could be no fiduciary  relationship between the NFL and the Raiders as a matter of law.

The NFL came back with declarations from Joseph, Linda, and other jurors saying it hadn't been like that at all.  The trial judge granted the new trial in a two-line order:  “The motion for new trial is granted. The Court finds that the objectively ascertainable acts of juror misconduct were prejudicial to the Oakland Raiders’ right to a fair trial.”

That wasn't enough for the Supreme Court.  In an opinion that's more about appellate review than it is about juries, the court essentially said that if the trial judge wouldn't at least tell them which juror he was worried about, they would shift the burden of proof to the Raiders to convince the Supreme Court there had been misconduct.  The pile of conflicting juror declarations, the court held, wasn't convincing, and so the NFL's verdict will stand.

I didn't forget the news flash

There isn't much new law made here, but there are still two points worth noting:

1.  California, land of the juror declaration.  Why did this case spend six years (it was tried in March 2001) in the appellate courts while the parties argued over the meaning of conflicting juror declarations?  Because in California, as we've discussed before, they can.  The California rules allow juror declarations to attack the deliberation process, where the federal rules, and most state rules based on them, do not.  California readers, if I have any, how do you keep this from happening all the time? 

2.  The promised news flash of the title.  This case can do a world of good for trial lawyers everywhere if they take just one lesson from it:  if a lawyer is on  the jury, she will lead the jury.  We've discussed this issue before too, but the word isn't getting out yet, so I'll just keep saying it.  Jurors look to their fellow jurors for whatever expertise they may bring, from plumbing to accounting to how much an injury hurts.  If a juror is a lawyer, other jurors will look to her to explain the law.  They just will.

___________

Note:  The case caption is The Oakland Raiders v. National Football League, and it's here.  How Appealing lists other coverage in posts here, here, and here. 

(Photo by ACDI/VOCA for USAID.  I know it's not the Raiders.)

 

What's Up With Jurors Who Dress Up?

I'm thinking of starting a blog category called Jurors Who Dress Alike. 

Not really.  But it seems like I just wrote about this, and I really didn't think it would come up again so soon.  You may recall that on Valentine's Day, all but one of the Lewis Libby jurors reported for duty wearing red T-shirts with white hearts on them.  Tuesday, the Southern District of Florida Blog tells us, the jurors in the Jose Padilla terrorism trial also dressed for the holiday:

Row one in red. Row two in white. And row three in blue. I'm not kidding.

It was the Padilla jury's third experiment with coordinated outfits, the Southern District post goes on.  Last Friday the men all wore blue and the women all wore pink; and a week ago, all the jurors but one wore black. 

Inquiring minds

Everybody wants to know what's going on.  Peter Lattman at the Wall Street Journal Law Blog asks:

What’s going on here? Jurors are not supposed to talk about the case, but it’s obvious they’re chatting about their clothes. Does it show they’re unified, which could be bad news for the defense? Or should their peppiness be a concern for prosecutors, as a happy jury during a terrorism trial might not be such a good thing? Or is it at all appropriate during a criminal trial for the jury to make so many fun fashion statements?

The AIDP Blog of the International Association of Penal Law wonders that too, in a post exploring associations to everything from the film "Runaway Jury" to the jury's amazing misbehavior in Tanner v. United States: 

Lets say, for the sake of argument that a juror, or a few jurors are influencing the group and convincing them to behave in a certain way. Perhaps suggesting that as a jury they need to present a unified front, maybe even suggesting that it is their obligation to stand united in a “war against terror.” . . . So, could the judge declare a mistrial in Padilla?

A short, incomplete history of dress-alike juries

I'm pretty sure there isn't a developed case law on this topic, although the way things are going, there might be soon.  Ten years ago the New York Times wrote about a death penalty trial where "most of the jurors came to court dressed in blue, after having worn purple on Thursday and red on Friday."  Defense counsel moved for a mistrial, saying, ''If the jury was in agreement on what color to wear, we were afraid they were surrendering their individual opinions about the case."  But the judge interviewed the jurors, and when they explained that the outfits were "merely a way to release tension," the mistrial was denied.  (The jury convicted the defendant, Avi Kostner, but refused to sentence him to death.  He died in prison a year later.)

Last year in Massachusetts, opponents of Judge Mitchell Sikora's elevation to the appeals court listed, among their other complaints against him, his decision to let jurors wear costumes on Halloween in one trial.  He explained that the jurors were "demoralized and tired," and now he sits on the appeals court.  (A few other Halloween costumes, and many other unusual juror outfits, are described by the trial lawyers quoted in this piece at VerdictSearch.com.)

There might be more dress-alike cases, but in some places jurors can't wear just anything.  The rules of some divisions of the U.S. District Court for the Western District of Texas are strict:

It is the policy of this Court that all male jurors wear coat and tie, and female jurors wear pantsuits or dresses.

That link is to San Antonio.  In Austin, the rules say you're fine as long as you're not in "shorts, cutoffs, tank or tube tops, over-revealing clothing, sandals without socks or hose" -- or a hat.  (The sandals part seems a little extreme; it's hot down there.)

So what do I do?

Okay, seriously, what does a lawyer do when a jury shows up in matching gear?  A couple of thoughts:

• Smile.  If they're smiling, smile, for heaven's sake.  They're watching you, and you know what you think of people who don't laugh at your jokes.  Be, or at least look, comfortable.  In a trial as serious as Padilla's or Avi Kostner's, you have a line to walk here; the trial isn't a joke to you and it shouldn't be.  But you need to find a way to react as a normal nice person would to a stranger's attempt at levity.
• Wonder.  You're going to do it anyway, and it's not inappropriate to spend some time thinking about what Juror Funny Socks Day might mean.  Try to focus your thinking on things you might be able to respond to.  Are they bored?  Can you liven things up?  Are they stressed, as they might well be if the facts are gory or traumatic?  Can you do anything to ease the strain?  Is there a holdout?  If you think she's against you, can you bring her around? 
• Make your motion if you think you have one.  The law is sparse, so go for it.  These decisions are often about the Ask, and judges don't always get it right.
• Let it go.  As I wrote the last time, at some point you have to stop wondering about the jury's clothes and get back to persuading them.  Don't let their T-shirts, whatever color, pull you away from your task. 

______________________

Notes:

1. The questionnaire the Padilla jurors filled out is in Deliberations' sample library.
2. If you run the search "Padilla jurors wearing," what you get is not dress-alike stories, but the mistrial motion filed last week because jurors saw one of Padilla's co-defendants wearing chains.  The motion was denied.
3. Tanner v. United States, cited above, is the case that held that jurors couldn't testify to impugn the jury's conduct no matter how bad it was.  I mentioned it in another post here.
4. I think the New York Times story on the Avi Kostner jury is subscription, but it's very short, and the gist of it is above. 

(Photo by Andreas Hagerman at http://www.flickr.com/photos/41267663@N00/303710146/; license details there.)

The "Juries Get It Wrong" Study

It showed up quietly in news feeds a couple of weeks ago:  a little press release announcing a striking conclusion.  "[I]n at least one out of eight cases, juries came up with the wrong decision," was the nutshell version of Northwestern statistics professor Bruce Spencer's paper, "Estimating The Accuracy of Jury Verdicts."  Since then the paper has been noticed, to put it mildly.

A range of responses

It was like a jury Rorschach test.  Thoughtful writers made thoughtful comments.  Emma Barrett at Psychology and Crime News noted Spencer's "somewhat complex method"; Nicole Black at Sui Generis said "the method used to determine whether mistakes were made in a given trial is a bit questionable, in my humble opinion."  Mark Bennett at Defending People had an extended analysis yesterday, and Scott Greenfield at Simple Justice added his thoughts today.

Jury critics criticized.  "By whatever means necessary, let’s put an end to this inaccurate farce we call 'trial by jury,'" said one.  "It is stories like this and Nifong, Fitzgerald and the rest that hurt our system. We need an overhaul of how juries are seated", another agreed.

And there was anger, a lot of anger, at Spencer himself.  "Who made himself God in this study to declare which juries are right and which are wrong?" said one blogger.  "This “study” sounds little like a study and more like a platform for advocating more liberal courtroom standards."  And widely-read Patterico, calling his post "God Himself Appears In Human Form," said:

And just how does some statistics professor sitting in his office know whether the people in these cases were truly guilty or innocent? . . . I haven’t seen the study itself, but I’m calling bullshit.  There is, quite simply, no way that some statistics professor sitting in his office can know the true guilt or innocence of 290 criminal defendants. That’s why we have a system, pal — because there is no way for any one self-appointed individual to be the Sole Arbiter of who’s guilty and who’s not.

Even DentalPlans.com had a post on Prof. Spencer's work. 

What the paper says

Meanwhile I kept trying to read the paper, which is to be published in the July issue of Empirical Legal Studies, but is also on Northwestern's web site here.  It's about statistics, so it's rough going.  (Northwestern put out a more detailed and very helpful press release the other day; when an author's own press release calls his paper "a technical report," you know you're in trouble.) 

The bottom line is this.  In two major prior studies, judges were asked what their personal "verdict" would have been in trials that were decided by juries.  Spencer looked at both studies and found that judges and juries agreed only in around 77 percent of cases in one study and 80 percent in the other.  Where they disagreed, he figured, one of them had to be wrong.

Spencer did not, as critics assumed, simply decide that the judges were right and the juries were wrong.  To the contrary, Spencer stresses, "[T]he judge’s verdict is not taken as the gold standard."  The whole paper is an effort to figure out via statistical analysis how accurate -- objectively (we'll come back to that) -- juries were.  Spencer applied different analyses to try to eliminate three kinds of "errors" that might have skewed the disagreement rate:  "survey error" because the initial data might be tainted, "identification error" because juries and judges who agreed might both be wrong, and "specification error," exactly because when juries and judges disagree we don't know which was right.

Spencer misses few chances to stress the limitations of his work.  "The estimates [of jury error] are no basis for action other than future studies," he says.  It's clear that all he's trying to do is find out if this kind of measurement is possible, and at that level, it's a fascinating effort.  You can see why the empirical legal studies folks are drawn to what they do.

What's "wrong"?

For lawyers, though, what may be more interesting than Spencer's 33-page statistical analysis is his one-paragraph discussion of what it means to say that a jury is "wrong."  Correctness can be defined two ways, he explains.  There's "procedural" correctness:

Jury accuracy refers to the average probability for a set of cases that the jury verdict is, in some sense, correct. “Correct” can be interpreted in a variety of ways. A “procedural viewpoint” considers a “correct” decision to be one which applies the legal standards correctly: if proof is not demonstrated to the standards prescribed by the law, the defendant should be acquitted.  Thus, if a person tried for a crime truly committed the crime, but the evidence was lacking, the procedurally correct decision would be acquittal.

And then there's factual, "impartial and rational" correctness:

An alternative, “omniscient viewpoint”, holds that the correct decision is the one that would be reached by an impartial and rational observer with perfect information (including complete and correct evidence) and complete understanding of  the law.  If the defendant committed the crime, the correct decision is guilt, regardless of the strength of evidence.  Although this definition of correct decision could be ambiguous in certain settings involving legal complexities, where even experts would disagree, in many applications it could be precise enough. 

"This perspective has the advantage of being defined independently of the evidence and courtroom presentations," the paragraph concludes, "and conforms to popular notions of justice."  So it's factual error he's measuring for.

Popular -- meaning jurors' -- notions of justice

Think about that statement.  The decision we ask juries to make -- did the government prove the defendant guilty of the precise crime charged beyond a reasonable doubt -- does not conform to popular notions of justice. 

Prof. Spencer is outside his expertise when he says this, but he's right.  And if anything accounts for the wrongful convictions he's trying to measure, it may be this dissonance.  In trial, we have a few days to convince jurors that their job is to decide whether the exact elements of the case, civil or criminal, have been proven to the required legal standard.  But their whole lives before then have taught them to believe that trials are supposed to seek justice and truth.  The formulations overlap, but they're not the same.  The popular notion is, well, wrong.

In short, the relevance of Prof. Spencer's work to trial lawyers may be not in what it says about juries, but in what it says about jurors.  From high-school dropouts to university professors, they come to court with a clear, and often mistaken, idea of what their task is.  If your case depends on correcting that idea, you may need to work harder than you imagined. 

________________

Notes:

1. Prof. Spencer's study concludes that where judges and juries disagreed, judges were more likely to convict.  That rings true, but don't write off judges.  A 2005 study by Andrew Leipold of the University of Illinois asks "Why Are Federal Judges So Acquittal Prone?", and backs it up:  "Between 1989 and 2002, the average conviction rate for federal criminal defendants was 84% in jury trials, but a mere 55% in bench trials."  The difference may be that Leipold studied cases where defense counsel chose a bench trial, while in all of Spencer's cases, defense counsel chose a jury trial.
2. Mark Bennett writes often about the difference between factual and legal guilt, including this the other day:

"Right and wrong" and "legal and illegal" are entirely separate concepts. "Right" and "wrong" are moral terms, not legal terms. The fact that something is illegal does not make it wrong, and the fact that it is legal does not make it right. (Flipping those two propositions, the fact that something is right does not make it legal, and the fact that it is wrong does not make it illegal.) Something that is wrong and illegal does not become right if it's decriminalized. Something that's right and legal doesn't become wrong if it's criminalized.

(Image by  at http://flickr.com/photos/olivepress/580930/; license details there.)

New Feature At Deliberations: "In The News"

I'm trying an experiment.  As of today, there's an "In The News" section on the sidebar, highlighting recent news stories and blog items that might interest those who are interested in juries. 

I don't promise this will be comprehensive, or even based on a clear standard for exclusion or inclusion -- in fact, I think I can safely promise that it won't be.  And I need to make a disclaimer; I send items to this section without editing or commenting on them, but they're not mine.  The opinions expressed in any item included in the "In The News" are solely those of the item's author, not of me or my firm.  In fact, I can safely promise I'll disagree with some of this material.

You can subscribe to these items as a separate feed if you'd like.  The news feed URL (to copy and paste into your feed reader) is here.  If you don't want a link but would like to see these items on one page, the link is here. 

Finally, I know this isn't a particularly chatty blog, but I'd really appreciate feedback on whether this new section, both its existence and its content, are helpful -- and on what other features might be particularly useful here.  E-mail goes to [email protected], or just comment below.

(Photo by Marco Cassè at http://www.flickr.com/photos/kazze/22436333/; license details there.)