This week brought two cases where jurors heard something they shouldn't have heard -- once from a potential juror, and once in a rollicking closing argument exchange between counsel. Read them and you're left wondering if there's any meaningful way to respond to mouthy jurors and lawyers.
"I used to be a lawyer with the EEOC"
The lawyer case is DeCorte v. Jordan, an employment discrimination case decided by the Fifth Circuit on Wednesday. In closing argument, both lawyers decided to supplement the evidence with their personal knowledge and experience. They were talking about how the EEOC found that the plaintiffs had probable cause to sue (you need this finding before you're allowed to bring a discrimination case), and what that finding did or didn't mean about the strength of the plaintiffs' case.
Plaintiffs' counsel started the exchange, telling the jury, “The EEOC doesn’t find cause that often.” Defense counsel responded that the finding was no big deal and indeed, the jury could infer the EEOC wasn't all that impressed with the case, since the EEOC only authorized the plaintiffs to sue but didn't sue the defendant itself:
[The EEOC] litigate[s] all the time [and] ... could have brought this case themselves. There are lawyers at the Justice Department who do just that. If the EEOC felt strongly about this case, where were they when it came time to litigate it?
No way, plaintiffs' counsel struck back in rebuttal:
Let’s talk about the EEOC determinations. Counsel misrepresented. The EEOC does not file lawsuits in regard to public entities. The Justice Department in Washington does that with regard to public entities. I used to be a lawyer with the EEOC. And I’m going to tell you this. The facts of the EEOC charges are these. [A Plaintiff] went to the EEOC on a Friday afternoon, filed her charge, and they dismissed it Tuesday without doing any investigation. Reopened it and investigated it for a year. And found cause. Counsel didn’t tell you that.
Separately, plaintiffs' counsel offered some expert testimony in closing that hadn't quite come out in trial:
Remember. Let me tell you this: It doesn’t take a Ph.D. in industrial psychology to figure out those numbers. And that’s what Dr. McDaniel told me the first day I talked to him. Do you know what else? Do you know what Dr. Kenny told them? You didn’t hear it, but let me tell you what he told them. I can’t touch the firing decisions. That’s why this has got to be a hiring case.
None of this was in evidence, and the Fifth Circuit found it all "obviously improper." But it was all harmless: "a back-and-forth between opposing viewpoints," "of limited duration," that "certainly did not impact the integrity of the judicial process" or affect the defendant's "substantial rights."
"I have found him to be completely truthful."
The juror case is Reynolds v. Bagley, decided by the Sixth Circuit yesterday and featured in Robert Loblaw's excellent Decision of the Day. In this death-penalty murder case, the jury panel included a police officer who, it's fair to conclude, knew he had no chance to be a juror, and decided to do all he could to help the prosecution while he had the floor.
Defense counsel moved to strike the policeman early on, and the trial judge denied the motion. So he was questioned while the rest of the panel listened, and his answers revealed a hardworking advocate. Could he objectively evaluate the testimony of a police officer witness whom he knew? “I have always found him to be completely truthful.” Was it a problem that he had worked with the prosecutor before? The officer "stated that he could remain objective — but prior to doing so noted how 'efficient' the prosecutor was, and how the prosecutor demanded a lot from police officers before 'moving forward' with a prosecution." Finally he was dismissed.
Defense counsel didn't move to strike the panel, which made things difficult on appeal, but it's hard to believe the court would have reversed a gory murder conviction on this ground no matter how well the issue was preserved:
Although Vanhyning’s statements could theoretically have biased ultimatelyseated jurors in favor of the prosecution and its witnesses, Reynolds has failed to show that there was any actual bias, especially given the trial judge’s subsequent curative instruction that jurors would have to decide the case for themselves. Nor is this a case in which the jury venire appears to have been predisposed to convict Reynolds, so that Vanhyning’s comments might have only heightened their predisposition, the trial judge’s curative instructions notwithstanding. Thus while we can conceive of a hypothetical in which a single veniremember’s comments, prior to his dismissal, might irreparably prejudice the remaining veniremembers against the defendant, the instant case does not approach that hypothetical.
(Citations are omitted from that excerpt.)
You can't catch me
I don't argue much with these courts' refusal to reverse in these cases. It probably doesn't make sense to try a whole case over again when something like this happens. But we ought to be left with a real dissatisfaction over cases like this. In both cases, the two lawyers and the policeman juror, testifying rampantly with no one on the stand, had to know they were breaking the rules. They also knew they were likely to get away with it -- and they did.
(Photo by Robert Paul Young at http://www.flickr.com/photos/robertpaulyoung/148905239/; license details there.)
