Deliberations

Trick Or Treat, If You're Lucky

How much in your life do you take for granted?  The more you understand how precarious your own comfort is, the better you'll understand a lot of things, including -- although perhaps least importantly -- juries.

Today is Halloween, but here in practical Milwaukee we get our trick-or-treating done in the sunshine of Sunday afternoon.  This year it was easy.  It was the first year that the kids in my charge were old enough to go around the neighborhood by themselves -- so I got a long workout in, while my husband manned the front door.

Basic safety

That paragraph sounds mundane, but according to two recent studies, every word of it shows how lucky I am.  Basically the whole day was possible only because I live in a safe neighborhood. 

First of all, if I didn't feel safe, I not only might not have exercised, but I might not exercise very often at all.  In a study released last week, Harvard researchers found that women who did not feel safe in their neighborhoods at night got 20% less physical activity than others did. 

Then there's the trick-or-treating.  My neighborhood is safe enough that our group could go out alone -- but in many neighborhoods, kids aren't going out at all.  A survey released yesterday found that 73% of white respondents and only 56% of minority respondents planned to let their children trick-or-treat.  The numbers corresponded to responses in the same survey about safety and income levels.  The press release said:

Ninety-one percent of whites, compared with 75 percent of minorities, said they felt their kids would be secure when they went out seeking candy in their area.

Similarly, 93 percent of people earning $50,000 or more said their communities are safe for trick-or-treating, compared with 76 percent of those making less than $25,000.

People's lives are different, which makes their experiences different, which makes their attitudes different.  It's not a bad mantra for life.  Because it also makes different people respond differently to your case, it's a great mantra for jury selection.

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Halloween note:  It's a great day for this blog when jurors dress in costumes for court, and today it happened right here in Milwaukee!  Proof and Hearsay reports that the entire jury in Judge Rick Sankovitz's trial walked into court this morning wearing judicial robes.  It's the same trial where he earlier struck a juror who was sending Twitter messages from the courtroom.  They started closing arguments today; it's a shame to see that trial end.

A Trial Lawyer's Guide To Social Networking Sites, Part IV

It's done!  No, that's not true; it will never be done.  But here is the last installment of Deliberations' guide to the world of social networking, for your use in talking to potential jurors.  The entire guide is now a separate page on this site, filed under "Voir Dire Resources" in the side bar. 

It's a certainty that I've missed categories here, and and that new ones will pop up from the second I hit "save."  Please let me know if you see things that need to be corrected, updated, or augmented here, and I'll try to keep the page as current as I can.

Here's the last of the list:

Contests

The Internet has always teemed with contest sites, but often now the contest planners, contestants, audience, and judges are all site users.  Examples:

• Bix, "Create.  Enter.  Judge."  Typical contests are for cutest dog, best president of all time, and karaoke, karaoke, karaoke.
• Gather, listed above as a basic social network, has regular writing competitions.  October 2007 brought the announcement of the five finalists in the First Chapters Romance Writing Competition.

Comments

You can have a significant Internet presence without ever having a blog, social network page, or photostream of your own.  On thousands of sites, from large mainstream newspapers to major political blogs to individual photos on Flickr, readers can post comments, and many do.  When jurors write on line to defend their verdicts, they often do it in the comments to a news story about the trial; on this blog we've discussed examples here, here, and here.  To get a sense of how commenters get into conversations and develop recognizable personalities in comment threads, go to any major blog.  The WSJ Law Blog  and Firedoglake are two examples of blogs with heavy comment traffic and repeat commenters who get to know each other.

Forums

A forum is a discussion board, a little like comments without the underlying news story.  A user starts a discussion, usually by asking a question, and others respond.  Some forums are user-generated issue forums, offering a place for people to talk about particular challenges.  It would be hard to think of an issue there's no forum for:  pregnancy, parenting, cancer, weight loss, pick a problem and search it with the word "forum" and you'll find one. 

Other forums are associated with a particular business or author, most likely one who promotes a long-term approach that followers might need help with.  Thus Weight Watchers members support each other in on-line forums, and followers of David Allen's Getting Things Done books ask each other questions in forums on his site.   

As with comments, forums draw repeat participants whose personalities become defined.  At any given time, a given forum might have a few wise sages revered by all, some enthusiastic idea-offerers who pipe up often, a handful of new arrivals full of questions, and a rabblerouser who likes to challenge everything.

Groups

Most social networking sites allow users to gather into groups, but there are also "group" sites where the group is the main event.  Group sites offer a page where group members can see a shared calendar, posted files, and links, and they also offer a single group E-mail address that sends mail to all group members.  Groups can be as small as an extended family sharing baby pictures, or as large as FlyLady's group, whose 440,000 members (as of October 2007) get lots of daily reminder E-mails to help them stay organized and not overwhelmed.  (FlyLady's associated web site is here.  You'll either love her or want to flee.)  Examples of group hosting sites:

• Yahoo! Groups
• Google Groups
• WebRing

A variation on a group site is a wiki, where users collaborate to build web pages.   Big public wikis like Wikipedia are well known, but any work group, family reunion committee, or school club can have a wiki hosted at sites like

• pbwiki, "simple and secure collaboration"
• Wikispaces, "wikis for everyone"
• editme, "Edit your web"

Getting personal

The further you go down the social networking road, the more you find yourself in places where users might not want to be recognized.  Dating sites are the biggest example.  Consumers spent $500 million on Internet dating in 2005, about a quarter of the $2 billion spent on all Internet content (as opposed to, for example, on-line catalog sales) that year.  (Figures are from the Online Publishers Association.)  The Pew Internet & American Life Project reported in 2006 that one in ten Internet users had visited an on-line dating site, 43% of those visitors had dated someone they met there, and 31% of American adults know someone who has visited a dating site.  With numbers like that, it's likely that someone in the jury box knows a little or a lot about sites like:

• Match.com, "It's okay to look."
• eHarmony.com, "matches you based on compatibility in the most important areas of life"
• Chemistry, whose ads target those who were "rejected by eHarmony"

On the other hand, the technology behind dating sites is also used for things you could tell your grandmother about -- like Essembly, "a fiercely non-partisan social network that allows politically interested individuals to connect with one another."

Likewise, there are many ways that jurors might use the Internet that they'd want to keep private, even though they're fully legitimate.  People store their tax information on Turbotax, and look for jobs at Monster.com.  They can track their progress toward personal goals at Joe's Goals, and check their mental health on the various tests at Martin Seligman's Authentic Happiness site.  They post lists of things they'd love to own, not only at scores of store sites like Amazon, but also at free-standing "wish list" sites" like TheThingsIWant.com and DreamofThis.com.  They do all this on the promise that their personal information won't be revealed.  Rule of thumb:  if you couldn't see a juror's Internet profile without that juror's own password, don't ask about it in voir dire.

That way monsters lie

And then there's beyond.  The American Gaming Association says almost 23 million people gambled on the Internet in 2005.  Oddly, I'm not finding statistics that look trustworthy to describe how much pornography is out there, but anybody with a spam filter knows it's a lot.  There are hate sites for every group you could possibly hate.  Lawyers who work in these areas have to learn this territory.  I have not had to, and hope not to.

Combine all ingredients and stir well

Got all that?  Great.  Now, to finish the list, think of as many ways to combine all these applications as you possibly can.  There's an application that lets you see your Facebook friends' Second Life avatars on their Facebook profiles, and "teleport" from there to wherever they are in Second Life.  Facebook applications like HobNob! let you request introductions to other people in the same way LinkedIn does.  "Profile aggregators" like MyLifeBrand are emerging to let users manage all their different social networks.  Mashable is the news source for all this; subscribe to their blog and watch the world turn a lot faster than you thought it did.

Just plain web sites

Finally, don't forget web sites.  Your juror might have a plain ordinary old-fashioned web site.  You'd hate to forget to ask about that.

(Image by Leigh Blackall at http://www.flickr.com/photos/leighblackall/64955397/; license details there.)

Jury Notes From Elsewhere, October 29

Jury talk seems to be everywhere lately.

1.  When you can't handle the truth.  "[T]here is enormous freedom in trying the impossible case," says Scott Greenfield of Simple Justice in "Loser Truth," a long post about what to do when the client insists on a story that no one is likely to believe.  If that weren't useful enough, Gideon at a public defender ends his comments on Scott's post with what may be the single best piece of jury advice you'll ever get:

What is it about the client’s story that would convince you that he was telling the truth? That’s how you convince the jury.

2.  No rehearing in George Ryan's appeal.  In August a Seventh Circuit panel upheld former Illinois governor George Ryan's conviction despite some of the messiest jury management you'll ever see, and last week the full court rejected Ryan's request for an en banc hearing.  The dissent, jointly authored by Judges Michael Kanne (who dissented from the panel opinion as well), Richard Posner, and Ann Claire Williams, is an extended essay on jury management.  Robert Loblaw made the case his Decision of the Day; Point of Law Forum highlighted the dissent's concerns about long jury trials; and How Appealing collected other discussion here.

3.  Nervous jurors.  Colin Miller's EvidenceProf Blog is almost a month old, and always welcome.  Last week Miller differed with the trial judge in a Wyoming case where the jury sent this anxious note:

Dear Judge Grant:

     During our deliberation some concerns have arose about the safety and any retaliation of either family, towards any of us or our families.  Some of us have been approached by some of the family members.  Please advise us of our course of action.  Thank you.

Respectfully yours,

The Jury.

4.  What's in a name?  David Swanner of South Carolina Trial Law Blog argues that jurors would respond better to many lawsuits against doctors if lawyers described them better.  It's often "medical mismanagement," he argues, not "medical malpractice."

5.  Baby steps in Japan.  Robert Precht at Foley Square continues his stories of Japan as it prepares for jury trials.  He recently told an audience that defense lawyers should argue their own interpretation of the evidence, rather than simply relying on the burden of proof.  How can I do that, one lawyer asked, "without knowing what the evidence will be at trial?"

6.  From voir dire to verdict.  Stephen Gustitis at The Defense Perspective can somehow blog during trial, and his generosity gives us a rare view of trial strategy and how it works out.  At least twice now, he's told us a little about how a voir dire went, and then a few days later we've been able to hear what that jury decided.  This time, Gustitis reports he got a mistrial from his "twelve special jurors." 

7.  Mark Bennett teaches cross.  He has a terrific series going at Defending People about preparing to cross-examine a doctor.  The first two installments are here and here. 

8.  The power of gossip.  Howard Zimmerle of Quad Cities Injury Lawyers points to new science suggesting that we're influenced by gossip even when it contradicts our own observations.  Howard considers what this might mean for voir dire.

9.  Juror Locks Self In Bathroom.  "So, it's come to this, has it?" asks jury consultant Edward Schwartz at Jury Box Blog. 

10.  And finally, Ann Handley at Marketing Profs Daily Fix Blog is right that if you want to understand how the world is changing, this short video is a must-see.

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

Take The NPR Jury Quiz

"Some 10 million U.S. citizens are summoned for jury duty each year. How many report for jury service?

"A: 900,000
"B: 4 million
"C: 7.5 million"

On a day when there isn't time for a full post, it's great that this and other jury questions  -- and answers -- are on line at NPR. 

_____________

Update and correction:  the quiz is fun, but it's from 2005, and some of its answers -- including the answer to the question above -- are outdated.  A far better source for current jury statistics is the National Center for State Courts' State of the States Survey, published this May.  Thanks to Judge Gregory Mize for the reminder. 

(Image by Amy at http://www.flickr.com/photos/psychobabble/94146830/; license details there.)

These Are Our Kids On Drugs

If you're like most lawyers, the most powerful thing you can do to better understand juries is to learn more about the lives of people who are not you.  No matter how informed, well-rounded, and naturally empathetic you are, this isn't easy.  Your mind has a way of insisting that your perspective is the only, rather than merely your own.

Snapshot of the day

The only way to do this is slice by slice, snapshot by snapshot.  So here's the snapshot of the day:  the OAS Report (that's the Office of Applied Studies of SAMHSA, the government's Substance Abuse and Mental Health Services Administration) called "A Day in the Life of American Adolescents: Substance Use Facts," released last week.  The web site has a fact sheet with links to the whole study and a press release, and the highlights are:

• "On an average day in 2006, youth used the following substances for the first time: 7,970 drank alcohol for the first time, 4,348 used an illicit drug for the first time, 4,082 smoked cigarettes for the first time, 3,577 used marijuana for the first time, and 2,517 used pain relievers nonmedically for the first time.
• "Youth who used alcohol in the past month drank an average of 4.7 drinks per day on the days they drank and those who smoked cigarettes in the past month smoked an average of 4.6 cigarettes per day on the days they smoked.
• "On a average day in 2005, the number of youth admissions to substance abuse treatment were referred by the following sources: 189 by the criminal justice system; 66 by self-referral or referral from other individuals; 43 by schools; 37 by community organizations; 22 by alcohol or drug treatment providers; and 18 by other health providers.
• "On an average day in 2005, active substance abuse treatment clients under the age of 18 received the following the types of substance abuse treatment: 76,240 were clients in outpatient treatment; 10,313 were clients in non-hospital residential treatment; and 1,058 were clients in hospital inpatient treatment."

As always with statistics like this, take a minute to consider their full impact.  Each of those kids has, or had, two parents.  Four grandparents.  Siblings, cousins, teachers, social workers, friends. 

When you stand up to speak to jurors about young people and substance abuse, there's a strong chance that several of the jurors will know, from experience, what you're talking about.

(Image from Edwart Visser at http://www.flickr.com/photos/flashpro/1441624141/; license details there.)

 

"The Quarter-Second Election"

I kept telling my friends that guy could never be elected president.

Never mind which guy.  In fact, it doesn't matter, because I've said this more than once.  It's my staple line when the dinner conversation turns to lists of candidates:  he's too short, too skinny, too funny-looking.  My friends never listened, secure (and correct) in the knowledge that they all know more about politics than I do.  But I do know a little about the power of people's visual judgments.  He'll never win, I said.

Now here comes Princeton professor Alexander Todorov to say I was right.  His paper, "The Quarter-Second Election" will be in the October 22 issue of Proceedings of the National Academy of Sciences.  Unlike a lot of schools, Princeton writes readable press releases on social science research, so I have the luxury of letting them describe the experiment:

A split-second glance at two candidates' faces is often enough to determine which one will win an election, according to a Princeton University study.

Princeton psychologist Alexander Todorov has demonstrated that quick facial judgments can accurately predict real-world election returns. Todorov has taken some of his previous research that showed that people unconsciously judge the competence of an unfamiliar face within a tenth of a second, and he has moved it to the political arena. His lab tests show that a rapid appraisal of the relative competence of two candidates' faces was sufficient to predict the winner in about 70 percent of the races for U.S. senator and state governor in the 2006 elections.

"We never told our test subjects they were looking at candidates for political office -- we only asked them to make a gut reaction response as to which unfamiliar face appeared more competent," said Todorov, an assistant professor of psychology and public affairs. "The findings suggest that fast, unreflective judgments based on a candidate's face can affect voting decisions."

Todorov and Charles Ballew, an undergraduate psychology major who graduated from Princeton in 2006, conducted three experiments in which several dozen participants had to make snap judgments about faces. Participants were shown a series of photos, each containing a pair of faces, and asked to choose, based purely on gut feeling, which face they felt displayed more competence. The differences among the experiments largely concerned the amounts of time an observer was allowed to view the faces – as brief as a tenth of a second or longer -- and to pass judgment afterward.

What was unknown to the participants in the third experiment was that the image pairs were actually the photographs of the two frontrunner candidates for a major election being held somewhere in the United States during the time of the experiment in late 2006. The races were either for state governor or for a seat in the U.S. Senate. In cases where an observer recognized either of the two faces, the researchers removed the selection from the data.

Two weeks later elections were held, and the researchers compared the competency judgments with the election results. They found that the judgments predicted the winners in 72.4 percent of the senatorial races and 68.6 percent of the gubernatorial races.

"This means that with a quick look at two photos, you have a great chance of predicting who will win," Todorov said. "Voters are not that rational, after all. So maybe we have to consider that when we elect our politicians."

[Read the rest here.]

This doesn't mean jurors make up their minds at the sight of your face, or your client's.  Your interaction with jurors is more personal than a candidate's interaction with voters, for one thing.  You have many more chances to get your evidence, your arguments, and your authentic personality across.

But this research does mean that physical appearance is a powerful force in shaping opinions and reactions, far more powerful than most people think it is.  It's an issue that has come up before, and it's not going to go away.

(Photo by Daniel Lobo at http://www.flickr.com/photos/daquellamanera/73686445/; license details there.)

A Trial Lawyer's Guide To Social Networking Sites, Part III

The last installment of Deliberations' social networking guide ended with sharing sites. Let's pick up there.

Bookmarking sites

Bookmarking sites are sharing sites too, but there are so many of them and they're so powerful that they're worth talking about separately. Bookmarking users share things they've found on line -- news stories, blog posts, web sites. Other users get their news from the resulting flood of stories, and they in turn flag stories they like. As in other sharing sites, each user has an individual page where you can look at stories that user has shared.

These sites are big. On Digg, one of the leading bookmarking sites, the top story of the last 24 hours has been "dugg" almost 3,000 times as I write this. When somebody put one of my posts on Reddit, my page hits tripled, and stayed up there for three days.

Examples of the dozens of sites like this are:

• del.icio.us
• Digg
• Reddit
• StumbleUpon

Many feed readers have a "shared stories" feature that works like a bookmarking site. Deliberations' "In The News" feature consists of the stories I tag for sharing in Google Reader.

Games

Wikipedia has a separate entry for "massively multiplayer online role-playing game," or MMORPG. It's a game in which "a large number of players interact with one another in a virtual world," each living the life of a fictional character. The Wikipedia entry claims there were more than 15 million memberships in these games in 2006. Your character usually has a defined and changing personality, joins groups and makes alliances with others, and keeps interacting even when you're not playing the game. Some of the biggest MMORPGs are:

• World of Warcraft -- you're fighting your way through the fantasy world of Azeroth
• Omerta -- you're a gangster
• EVE Online -- you're in space
• World of Pirates -- you're a pirate, naturally

It's not all swash and buckle. You can post a profile with a picture in your online bridge club, spend the evening (or all night) getting to know the rest of your foursome, and head off to the chat room when you're the dummy. There are online multi-player games of all kinds, from chess to poker, where people are getting to know each other or some virtual projection of each other. You can also bond with those who would rather watch than play; 19.4 million people were playing fantasy sports games in August 2007, the Fantasy Sports Trade Association reported.

Second Life

Second Life is -- how to explain Second Life? It's an online world, "a 3-D virtual world entirely created by its Residents," the Second Life people say. As I write this on a Sunday evening in October 2007, there are more than 37,000 people directing their "avatars" through the events of their days and nights in Second Life.  In the last 60 days, almost 1.3 million people have logged in, and there are over 10 million "Residents" of Second Life's world.

Isn't that just a MMORPG, you'll ask, now that you know what a MMORPG is? No, say the Second Life folks, for two reasons. First is ownership. You own what you create in Second Life, and as the Illinois Business Law Journal reported in September, this means there is an active economy not only in virtual currency but also in actual currency for virtual property. (Read that again slowly. People are paying each other actual money for the right to own stuff that exists only on an Internet web site.) Second is flexibility. Second Life isn't a gangster world or a pirate world, it's a world:

If you want to hang out with your friends in a garden or nightclub, you can. If you want to go shopping or fight dragons, you can. If you want to start a business, create a game or build a skyscraper you can.

It's hard to convey how huge this thing is, and how closely it is interweaving itself with the thing we (so far still) call "real" life. Real professors teach seminars in Second Life classrooms, and students' avatars show up to listen. Yesterday, Timothy Zick guest-blogged at Concurring Opinions about a "Free Burma" event at Second Life, "which featured a 'human chain' event in which 500 people from 20 countries joined, as well as vigils and meditations in support of this cause." The event left Zick (and at least one thoughtful participant he quotes) wondering what it was about Second Life that made this event powerful, and whether it will inspire activism offline as well.

Part IV, to come, should finish the series.

(Image by Leigh Blackall at http://www.flickr.com/photos/leighblackall/64955397/; license details there.)

American Gallery Of Juror Art Welcomes Laurie Ballesteros

"Houston is my muse," says Laurie Ballesteros on her blog, Photine:

I enjoy exploring every aspect, from its well known avenues to its hidden corners. I am especially drawn to capturing the elements of the city that never change. The buildings, the parks, the streets ... the city that we inhabit every day but often walk by without seeing.

So you can see why, when she reported for jury duty, she wanted to record this view of her city:

Like many juror artists, Laurie Ballesteros has to make room for art in her life. She's a middle school choir teacher, which would give her the right to do nothing but watch TV at the end of the day. Instead, she takes pictures -- or heads for the computer, where she administers a web site called Houston Photobloggers, runs a Flickr group with over 250 members called "Assignment: Houston," and most importantly maintains the photoblog Photine, where her lovely images can be seen and also purchased. She has a wonderful eye not only for the urban landscape, but also for found still life (like these clarinets), color (this thread display), flowers (this bottle brush), everything. Her work gives you the idea that the world is considerably more beautiful than you thought it was.

All rights in this image belong to Laurie Ballesteros. Thanks to her for allowing it to be reprinted here and in the American Gallery of Juror Art.

The Silent Stereotype

A mock trial not long ago taught me a lesson about anti-Semitism. One of the presenting lawyers was Jewish, with both first and last names suggesting that heritage. The other lawyer had a name and a look suggesting Irish ancestry.

The case had nothing to do with religion. The Jewish lawyer spoke second, and the jurors filled out questionnaires. One juror said that at that point he was siding with the Irish lawyer. In the blank for "Why?", he wrote, "Christian argument."

"You didn't really say that, did you?"

This week Ann Coulter said on CNBC that Christians wanted Jews to be "perfected," and of course she started people talking. Scott Greenfield flagged the story early, and then decided Coulter wasn't worth his attention. Others debated whether Coulter was (correction: whether the idea of "perfecting Jews" was, see the comment) really anti-Semitic, with Jeralyn Merritt at TalkLeft saying yes and David Bernstein at Volokh Conspiracy and Paul Horwitz at PrawfsBlawg saying no.

To me, the key phrase of the interview wasn't something Coulter said. Instead, it was the reaction of her interviewer, Donny Deutsch. When Coulter said, "We just want Jews to be perfected," he said: "Wow, you didn't really say that, did you?"

However you define anti-Semitism and whatever you think of Ann Coulter, the interview is a reminder that negative attitudes and stereotypes about Jewish people are very much alive, and very much taboo as a conversation topic. Many jurors hold these views, and they're among the most difficult attitudes to learn about in voir dire.

The Anti-Defamation League's 2005 Survey of American Attitudes Towards Jews in America is its most recent look at these stereotypes in the U.S. The press release for the survey is here and a more detailed set of slides on the survey results is here.

"Probably true"

You can't just ask folks what they think of Jewish people, so the survey asked instead whether respondents agreed with a list of "index" questions. Here is the percent of respondents who said each of the following statements is "probably true":

• 50% say Jews stick together more than other Americans.
• 32% say Jews always like to be at the head of things.
• 33% say Jews are more loyal to Israel than America.
• 15% say Jews have too much power in the U.S. today.
• 17% say Jews have too much control and influence on Wall Street.
• 19% say Jews have too much power in the business world.
• 15% say Jews have a lot of irritating faults.
• 15% say Jews are more willing than others to use shady practices to get what they want.
• 15% say Jewish business people are so shrewd that others don’t have a fair chance at competition.
• 12% say Jews don’t care what happens to anyone but their own kind.
• 12% say Jews are not just as honest as other businesspeople.

Fourteen percent of respondents said that six or more of these statements were probably true, making them "unquestionably anti-Semitic" as the ADL defines that term. That number is down from 17% in 2002.

Who holds these views? The ADL couldn't tie them to respondents' religion, economic situation, or political affiliation. They did find that negative Jewish stereotypes were highest among people 65 and older (24%, twice the rate of any younger group), African-Americans (36%), and Hispanics, especially those born outside the U.S. (29% and 35% respectively).

So in voir dire . . .

If you're trying a case that clearly involves allegations of anti-Semitism, your task in voir dire is clear, if challenging. Since these issues are already on the table, you can invite jurors to have the same kind of open discussion about their relevant experiences that you would in any other case. You're particularly looking for lack of interaction with Jewish people, since stereotypes grow where experience is missing.

If you're an ordinary Jewish lawyer heading into an ordinary trial, your task is much more difficult. You can't ask whether they have a problem with you, or even come close to that. (The same is true obviously if it's your client or a key witness who might trigger these stereotypes.) All you can do is be alert, to the kinds of vocabulary and related attitudes that might signal a problem.

It may be helpful to know that the ADL's survey found that people who strongly believed negative Jewish stereotypes also agreed strongly with these statements:

• "Students do better attending schools with people from similar racial and ethnic backgrounds."
• "AIDS might be God’s punishment for inappropriate sexual behavior."
• "It bothers me to see immigrants succeeding more than Americans who were born here."
• "Books that contain dangerous ideas should be banned from public school libraries."

Wish they'd asked more questions like that.

(Photo by Windell Oskay at http://www.flickr.com/photos/oskay/313881232/; license details there.)

Ninth Circuit To Trial Judge: It's Not Too Late To Look Like An Idiot

You don't often see a felon-in-possession gun case reversed because the trial judge blew a discretionary call, but the Ninth Circuit did it yesterday. Whether or not you agree with the opinion, it helps fill out one section of your trial notebook page on jury glitches: the section you turn to when the jury wants testimony read back.

It's called U.S. v. Richard, and it has a common fact pattern: one traffic stop, four passengers, one gun stuffed into the back seat upholstery. Two of the passengers convinced police that the gun belonged to a third passenger, Jacquan Richard. (Richard had just told the police that the first two were a pimp and prostitute, so their loyalty to him may have faltered.)

Maybe he'd gained weight

The female passenger, Nicole Reeder, was the only one to say she'd seen Richard with the gun, and her testimony had its weak points:

Reeder had significant, ongoing difficulty identifying Richard in the courtroom as a passenger in Martin’s vehicle. She failed to do so on four successive attempts over the course of several minutes, despite being prompted with a photograph of Richard she had previously identified as the backseat passenger who possessed the gun and specifically directed to look at the defense table. On the fifth attempt, after additional prompting and direction, Reeder finally acknowledged that Richard looked like the passenger in Martin’s vehicle, explaining that he had apparently gained weight and changed his hairstyle.

During deliberations, the jury asked to hear Reeder's "testimony and cross-examination" again. The trial judge explained there was no transcript, only an audiotape, and told the jury, "you have to let us know what part you want to hear." The jury said they wanted to hear the part "right around the time she was being asked to identify the defendant."

"would make him 'look like an idiot'"

Oh, right around that time. Richard's counsel objected, and moved to have the entire testimony replayed. No luck:

The judge denied the motion as untimely, expressing concern that reversing course at that point and requiring the jury to hear all of Reeder’s testimony would make him "look like an idiot." He also rejected Richard’s argument that, because Reeder’s credibility was at issue, it was important for the jury to hear her entire testimony, and stated that he would also overrule the objection on the merits because it was not his "place" to instruct the jury that it was required to hear "the entire testimony of everybody, or of Ms. Reeder, or anyone else."

So the excerpt was read, without the part where Ms. Reeder admitted the other male passenger was her boyfriend, or the part where she had such trouble identifying Richard, or any of the cross-examination. The verdict was guilty.

What to do when the jury wants testimony

The Ninth Circuit reviewed its prior guidelines on reading testimony back, summarizing them as follows:

• "[I]t is preferable to have the testimony reheard (or reread) in open court with all parties present."
• "[T]he jury should ordinarily be provided with the witness’s entire testimony—i.e., direct and cross-examination, and should be admonished to weigh all the evidence and not focus on any portion of the trial."
• "[A] district court should consider the 'quantum of other evidence against the defendant' and 'the importance of the [testimony to be replayed] in relation to other evidence.'"

Richard's trial judge had followed the first guideline but not the others, the court said, so the conviction was reversed. There was a dissent: "[T]he majority's rigid, rule-based approach effectively usurps the trial court’s function."

Your new trial notebook page

How to use this case: take out a sheet of paper, write "If jury wants testimony read" at the top, and write down those three guidelines. If you practice in federal court in the Ninth Circuit, just write down the cites to Richard and the cases it discusses. If you practice elsewhere, take a few minutes sometime and find out what the relevant cases are where you are. Put it in your trial notebook, or start one. The page might never come in handy, but it might.

(Photo by Tim Dobbelaere at http://www.flickr.com/photos/storem/139950080/; license details there.)

Best Law Blog?

Definitely not, but I'm still delighted to have been nominated in the category of Best Law Blog in the 2007 Weblog Awards. And I'm not too proud to say that the nomination can be seconded, by anyone who may be so moved, by clicking on the little plus sign in the nomination comment here. (The voting comes later, apparently.) Or you can go to the main post where you can second the nomination of some really good blogs, or nominate your own.

(Photo by Nichole Armageddon at http://www.flickr.com/photos/nmusser/150096657/; license details there.)

A Trial Lawyer's Guide To Social Networking Sites, Part II

It's a great day to continue the series begun last week, since everybody seems to be talking about social networking over the weekend and today. The New York Times reported on the graying of Facebook. Daniel Solove at Concurring Opinions posted a link to the first chapter of his book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, arguing that the "permanent chronicle of our private lives" that we're building on social networking sites is heading us for an "online collision between free speech and privacy." Vesna Jaksic at the National Law Journal and jury consultant Edward Schwartz (in his newly active and fascinating Jury Box Blog) both talk about what lawyers can learn about clients and witnesses on social networking sites.

All that and your jurors are out there too -- all reasons to learn the territory. Here's a continuation of last week's guide; when it's all done, I'll post it on a single page.

Business sites

With all the ads on MySpace and the hamster pictures on FaceBook, it's amazing it took so long for someone to develop a networking site for business. It's not clear that they're taking off, especially as FaceBook attracts older users. LinkedIn has a lot of people in it, but it doesn't encourage the kind of communication the broader sites do, so at least in my experience it's very quiet. (Word is they're developing more kinds of interaction.) LawLink is new, but people like Kevin O'Keefe at Real Lawyers Have Blogs and Doug Cornelius at KM Space wonder if it will attract anyone when it's so small and other sites are so big. Anyway, examples are:

• Linked In, "Relationships matter"
• Ryze, "helps you expand your business network"
• LawLink, "The First Online Network Exclusively For Attorneys"

Niche communities

If you're nuts for a hobby, there's a social networking site for nuts like you. A tiny, random tip of that huge iceberg:

• Fatsecret, "the diet solution of the people, by the people, for the people"
• WetCanvas!, "Cyber Living for Artists"
• Fuzzter.com, "A Social Network for Cats, Dogs and All Your Fuzzy Pets"
• BakeSpace.com, "a place for cookers and cakers"
• Common Circle: "Powered by a mix of solar/wind energy and pure love, Common Circle exists to help support the progressive movement."
• Infield Parking, co-founded by NASCAR driver Dale Earnhardt Jr., "leverages the power of social networking to bring together the millions of race fans eager to share their passion for the sport with fellow racing fans and also makes it easy for fans to connect directly with their favorite drivers," but hasn't yet mastered the art of the catchy tag line.
• Vinorati, "your wines and you"

Sharing sites

On a sharing site, the main point isn't your page, or your blog -- it's your stream. Users are there to share their images, video clips, jokes, music (or, nowadays, music recommendations), or expertise. Most of us breeze into YouTube or Flickr to look for a specific clip or image, but for frequent users, it's more than a resource; it's a community where you can learn a lot about a person by what she shares. Many artists, for example, use a Flickr "photostream" as their main face to the world.

Examples of sharing sites include:

Images

• Flickr (the biggest player), "Share your photos. Watch the world."
• Photobucket, "where millions manage their media"
• Picasa Web Albums (Google)

Video (and a little audio)

• YouTube (hands down the best-known sharing site on the Internet), "Broadcast Yourself."
• Funny or Die, a site said to be developed by Will Farrell and others "where celebrities, established and up-and-coming comedians and regular users can all put up stuff they think is funny." Will Ferrell's profile and what are billed as his picks are here.
• blip.tv, "We focus on shows"
• ComicWonder, where funny users call in jokes by phone
• Revver, "the viral video network that pays"

and of course niche sharing sites had to be next, like

• GodTube, "Broadcast Him," with the terrific tag line, "What would Jesus download?"

Music

The file-sharing music sites you've heard about are struggling as the Recording Industry Association of America pursues those who trade songs on line. (The RIAA's recent $220,000 verdict against a Minnesota woman got a lot of press.) If you go to Grokster, once an active music-sharing site, your screen will show nothing but a notice in huge letters: "The United States Supreme Court unanimously confirmed that using this service to trade copyrighted material is illegal. . . . YOUR IP ADDRESS IS [insert long number here] AND HAS BEEN LOGGED. Don't think you can't get caught. You are not anonymous." Okay, okay.

The Minnesota woman's music site, KaZaA, is still on line, and the trend in this area seems to be toward music recommendation sites where users post lists and short clips of what they like, but not the whole song. Examples of both types:

• KaZaA
• upto11.net
• MyStrands, "What you play counts."

Expertise

You don't think of Amazon.com as a sharing site? Think again. It was one of the first places where users could demonstrate their expertise, in self-published book reviews and "Listmania" lists of their recommended books on a topic. Now Amazon lets you expand your list into a "guide," with your explanatory text. One person's reviews, lists, and guides are all gathered in his profile, with links to "friends" just like any other social network.

Then there's Squidoo, brainchild of marketing guru Seth Godin, where users build a free web page called a "lens," with links and text displaying their expertise on any topic.

• Amazon.com
• Squidoo, "Everyone's an expert on something!"

Part III to come.

(Image by Leigh Blackall at http://www.flickr.com/photos/leighblackall/64955397/; license details there.)

Jury Notes From Elsewhere, October 12

Recent writing on juries at other sites has been great. It includes:

1. A great technique for opening statement. "When I open, I like to start the story in the middle," says Eric Turkewitz of New York Personal Injury Law Blog. It's a compelling way to begin a story, and Eric explains it more clearly than I ever have.

2. Fearless thinking on secrets. Picking up on a post here about the secrets jurors carry and are unlikely to share, both Stephen Gustitis and Mark Bennett suggest: share yours first. "[A] person responds to what is given to them," says Stephen at The Defense Perspective: "Sad for sad. Fear for fear. Slow for slow. Secret for secret." At Defending People, Mark relates the discussion to a wonderful series he's doing on the Tao Te Ching, and says, "Sometimes you have to show the jurors yours -- reveal your own secrets -- to have even a chance that they'll show you theirs."

This is advanced stuff. If you have the intuition and awareness these guys do, your authentically open voir dire might elicit stories jurors have never told before. (The voir dire in the James Seale trial is a striking example of jurors trusting their questioner enough to tell some of their most painful memories.) If you're clumsy or faking, it won't work.

3. The trouble with juries. Scott Greenfield was already asking tough questions about juries (he always starts with "I really like Anne Reed's blog, but . . . ") when Ken Lammers at CrimLaw described a trial where the jury took an inexplicable turn. Scott was right there, blunt as usual ("That great old saw about the jury system, 'it may not be perfect, but it's the best there is' is a load of crap"), but making valid points. If anybody tries to tell you she has a foolproof approach to jury trials, reread these posts.

4. "Lie acceptability." One of Scott's questions was "When we catch a witness [lying], we exploit it as much as the judge will allow. Will [jurors] think it's such a big deal?" It depends, says Emma Barrett at Deception Blog, reporting on a new study. "Different types of lie may be more or less acceptable, depending on the motivaton for telling them and the context in which they are told." She gives details.

5. More on law professors on juries. Prof. Michael Dorf at Dorf on Law is concerned about the jury system too, after he reported for jury duty and was "peremptorily challenged again." He thinks the lawyers must have assumed he'd favor prosecution, and he's not so sure he would have. Either way, he says, "By providing lawyers with just enough information to make wild guesses about a juror's sympathies, our system of voir dire and peremptory challenges shows itself to be worse than useless."

6. Farther down the collision course. A post here awhile back wondered if two Supreme Court cases were heading for conflict: Witherspoon v. Illinois, which says a juror must be removed for cause if his religious views prevent him from applying the law, and Batson v. Kentucky, which holds that jurors may not be removed because of their race -- and, the Court may eventually hold, their religion. Karl Keys at Capital Defense Weekly wrote on this theme this week, citing a poll finding that 47% of Catholics believe they would be ineligible to hear capital cases, and noting a pending certiorari petition "that asks why should Witherspoon continue in light of the evidence that it hits members of minority communities and the religious the hardest."

7. Finding lawbreakers on MySpace in a few short clicks. The Milwaukee Journal/Sentinel's Proof and Hearsay blog has an amazingly simple primer.

8. The vanishing jury trial. Beck and Herrmann at Drug and Device Law Blog are honest about it, when -- as they note -- a lot of trial lawyers aren't. "It matters because counsel should change their strategies when they're defending cases that they know will settle," they say, and explain how.

9. Make your message stick. Are you reading the marketing blogs? They're all about persuasion, so you should be. Marketing Profs Daily Fix Blog has a podcast interview with Chip and Dan Heath, authors of the book Made To Stick, a wonderful resource on how to get your message across clearly and memorably. I keep coming back to Made To Stick.

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

A Message From Erin

I had the honor of speaking today at the Wisconsin Public Defender Conference, which continues tomorrow. One topic we touched on was jurors writing on line. It was timely, since Florida lawyer Robert Kelley had just written about Erin the blogging juror, whose September 28 post was titled "i will eat your babies, bitch!" and whose next post on October 3 was titled "I AM A JUROR."

Kelley's post didn't criticize Erin, but she didn't like it, or the attention her blog got from it. So she wrote another post on Tuesday. It's worth reading. Notice whether her language makes you uncomfortable, and whether you see intelligence under that. See if her questions resonate with you. Do you agree when she says that if we start striking every juror with an Internet presence, we'll be left entirely without young jurors? Here it is:

dear members of the florida bar: welcome to my shitty blog

jury duty. i actually did have it that was one of the things i wrote on this blog of lies that was actually true. anyway according to the florida bar i am what is wrong with juries today or something. and i guess the solution to the problem that is me is to select out jurors who have blogs or myspace or facebook or whatever. okay i didn't write my thesis on psychometrics or anything (yes i did) but i bet if you dismissed every potential juror with some type of internet presence you would end up with range restriction galore. EVERYBODY UNDER THIRTY IS ON THE INTERNET. those are my peers. please don't shatter my dreams of commiting a horrible crime and being judged by a jury of my peers. not that the people on the jury i served on were actually my peers. THERE WAS A WOMAN ON THE JURY WHO COULD NOT READ. i don't think i've ever met anybody who couldn't read in my entire life. thank god the constitution doesn't actually guarantee a defendant that his case will be heard by a jury of his peers because that would be a huge lie. i think what it guarantees is an impartial jury which is also a huge lie. i didn't actually serve on a capital punishment case, that was a joke. i wouldn't even be allowed to serve on a capital punishment case because i don't necessarily agree with the death penalty. i've never done a study on death qualified juries but i'm pretty sure the american psychological association did and determined that they are more likely to convict in general. THAT IS LIKE THE OPPOSITE OF IMPARTIAL. i don't believe our legislative system is breaching our constitutional rights and a bunch of lawyers in florida are freaking out because i mentioned on my stupid blog that nobody reads that i was selected to serve on a jury and i didn't even divulge any information about the case. i mean jesus bob kelly, weren't your friends in florida executing retards until like a year ago? and you don't like me because i say "fuck" alot? this is truly a dumb ass world we are living in.

A juror's blog tells you things about the juror that she probably won't tell you herself; but the fact that there is a blog doesn't make your strike decision for you. Robert Kelley is right that you'd hate to leave Erin on your jury without having seen her writing. And Erin is right that lawyers shouldn't reject blogging jurors out of hand, even those whose writing is as lavishly angry as hers is. You'd strike her in many trials, yes. But in the right trial, she might be the juror you need.

(Photo by Wesley Fryer at http://www.flickr.com/photos/wfryer/503600331/; license details there.)

A Trial Lawyer's Guide To Social Networking Sites, Part I

By now you're probably convinced that you need to ask potential jurors if they're writing on line. Milwaukee County Circuit Judge Richard Sankovitz is. He put the question in the pretrial juror questionnaire in the Thomas lead paint trial he's presiding over, and sure enough, a potential juror was a blogger. The Milwaukee Journal/Sentinel's law blog Proof and Hearsay tells the story of how the courtroomful of lawyers turned to their laptops to find not only the juror's edgy blog, but also his stream of Twitter posts from the courtroom. "Still sitting for jury duty crap. Hating it immensely. Plz don't pick me. Plz don't pick me," he'd been saying. They didn't pick him.

So the question isn't whether to ask, it's how -- and like any question, it's easier if you have some idea of what you're asking about. Florida lawyer Robert Kelley (in a post about a startling juror blogger) says, "Any lawyer who does not inquire during jury selection about a juror’s Internet presence — whether it be a Web site, a blog, an account on MySpace or an account on Match.com — hasn’t done their job." There are nearly countless ways a juror could be writing on line. You need some sense of the landscape to ask about them, or you'll get partial answers or answers you don't understand.

If words like "Tweet" and "wiki" pop up often in your vocabulary, you don't need this post. But in case this stuff is new to you, here's the first installment of Deliberations' short guide to the world of social networking. These are roughly grouped according to the main feature of the site, but most have overlapping features and functions.

Basic social networking sites

Social networking 101 starts with the basic players. Members each have a personal page where they post thoughts, pictures, music (often a song starts playing as soon as you click on the page), and videos. Then friends chime in with their own thoughts, and links to their pages, and out it spreads from there. Within the community there are usually blogs (thousands), forums, groups, and dating searches, but the basic unit is the individual page. Examples:

• My Space, "a place for friends"
• Facebook
• Orkut, "We hope to put you on the path to social bliss soon."
• Zude!, "Feel free."
• Gather, "a place where you can share the things that are important to you with the people who are important to you, too."

Ethnic and special-interest communities

A company called Community Connect has social networking sites aimed at specific groups. They work like My Space and the rest, but members look more alike -- or worship more alike, or love people more like them. The five sites in October 2007:

• AsianAve.com
• BlackPlanet.com, "the world is yours"
• MiGente.com, "the power of Latinos"
• Glee.com, "Gay. Lesbian. And everyone else."
• FaithBase.com

These sites are big enough that Barack Obama has a page on each of them except Faithbase, all matching this sample from BlackPlanet. ("Sex: male. Age: 46. Primary job: government and policy.")

Blogs

A blog looks, well, like this. It's a page where you write separate posts that are organized by date. The format works well for a personal journal as well as a sort of on-line newsletter like this one. Individual blogs are typically supported by blogging platforms such as TypePad (the one I use), Blogger, WordPress, and (for law blogs) LexBlog, but you don't have to hop from site to site to search them. Several search engines search all blogs at once, or at least lots of them. Examples:

• Technorati
• Google blog search
• Feedster
• Blogdigger

"Microblogs"

As instant messages are to essays, microblogs are to blogs. Twitter, the leader here, calls itself "a global community of friends and strangers answering one simple question: What are you doing?" Typical "Tweets" tell the world that the author is heading out for pizza, or bored at work, or listening to music, or going to the bathroom.

People read this stuff, you ask? Yes, thousands, to the point where marketing gurus like Seth Godin have joined up and are sending out their wisdom in Tweets. Microblog search engines are starting to appear, too. Examples of microblog sites:

• Twitter, "A global community of friends and strangers answering one simple question: What are you doing?"
• Rabble, designed to be used from mobile phones
• Jaiku
• Pownce, "Send stuff to your friends"
• Yappd, "Let your friends see what you're up to!"

Blog/social network hybrids

These are on-line communities where the user's "home base" is a blog with date-stamped entries, rather than a page with posted information. These sites have the same functions the social networking sites do -- friends, groups, posted images and videos, etc -- but they're organized around blogs.

• Xanga
• Vox
• LiveJournal

Part II, coming later, will continue the list.

(Image by Leigh Blackall at http://www.flickr.com/photos/leighblackall/64955397/; license details there.)

What They'll Never Tell You

Good lawyers know how much you can learn about jurors if you ask the right questions in voir dire. Really good lawyers know how much you'll never learn, no matter how perfect your questions are. Often -- maybe always -- the experiences that most shape our personalities and attitudes are our secrets.

"We all carry a secret that would break your heart if you just knew what it was," Frank Warren tells Guy Kawasaki in an interview on Kawasaki's blog today. Over 150,000 people have sent Frank Warren their secrets, on anonymous handmade postcards. He gets 1,000 a week, and each Sunday he posts 20 of them at www.PostSecret.com. Today, the site includes these:

"[I]f we could remember that," Warren continues, meaning the secrets people bear, "there might be more understanding and peace in the world."

Jury selection is as good a place as any to begin, with a deeper awareness of jurors' unspoken experiences, and the peace that comes with expecting less of yourself. There are critically important things that you will never learn.

__________________

Note: Frank Warren has a new book, A Lifetime Of Secrets.

My Blog Speaks Italian

One of the strangest things about writing almost every day is that the work slowly grows into something almost unfamiliar. You look back over it and think, "Did I really say all that?" And then one day the blog stands up and does something you can't -- like speak Italian.

I get page hits every once in awhile from Google Translate, a Google service that somehow automatically translates text into other languages. I've seen automated translators before and they were awful. (A friend once tried to use one to prepare a business letter in French, and it rendered the typical American closing "yours very truly" into something roughly like "I will love you forever.") But Google Translate is pretty good, as best I can tell with my sort-of-okay French skills -- not perfect at all, and sometimes just wrong, but generally readable and in places even fluid.

I could stare all day at this site in French; it just looks so sophistiqué. It looks worldly in Italian, cutting-edge in Spanish, and in Russian it looks like an ancient text.

In Japanese, this site might actually be helpful to somebody. They're introducing juries in criminal cases there. I've gotten several hits recently for this site in Japanese, especially for the juror questionnaires collection. Japanese reader(s), if you're out there, I do hope you found something helpful here, and feel free to contact me if you have questions I might be able to answer.

__________________

Note: As coincidence would have it, Kevin O'Keefe at Real Lawyers Have Blogs discusses blogs in translation today, and warns of the danger of being misunderstood. It's perhaps a good time to repeat that nothing in this blog is intended as legal advice -- even in English, much less other languages.

(Photo by Anthony M. at http://www.flickr.com/photos/antmoose/63891248/; license details there.)

Lawyers In Etanis Cumba Trial, You Have A Juror On Line One

Soon this will be commonplace, but in October 2007 it's still news. After a jury acquitted the defendant in an intensely charged murder trial last week, one of the jurors posted a comment on line to defend the verdict.

"He killed my baby"

Joseph Wilson, 20 years old and two years out of high school, was stabbed to death at a 2005 party. The killer wore a bandana over his face. The state charged a 19-year-old, Etanis Cumba, and last week a jury acquitted him. The scene was awful; at least one juror was crying, while Wilson's mother screamed, "He killed my baby!"

A Boston blog called Universal Hub, "an alternate news and information resource for the Boston area," posted a short notice of the verdict -- and the comments started flowing in. "[W]hen the NOT GUILTY verdict was handed down, and the victims family's cries and moans for their lost son," said the first one,

all the defendent ETANIS CUMBA did, was turn around, laugh, and snicker at the pain the Wilson family was enduring to see their son's murderer set free once again. As Boston's crime rate, especially homicide/murder continues to sky-rocket, these rats whom are the lowest form of life on this planet, continue to be set free.

Some commenters simply chimed in on guilt or innocence (as in "HE will get his one day what goes around comes around... god will punish him!!!!!!!!!!!!!!"), but others added details. "Cumba, whom has a very violent wrap-sheet was 17 at the time of the murder," said a comment, probably the same person as the first one. And there was jury intimidation, added that person and others, citing a report from Wilson's mother that "10 or 20 of Cumba's friends" had menacingly surrounded a juror in the parking lot. Meanwhile another commenter defended the presumption of innocence: "What next, a righteous lynch mob? Puhleeze."

"We did the best we could"

Into this fray came another comment -- from someone who, like most of the others, used the name "Anonymous." This is what it said:

The state created a strong probability that he was guilty, but not beyond reasonable doubt.

1) Cumba's past was not revealed to us at any time. We were not allowed to do outside research. All we knew was that this kid got arrested for mary j, and was suspected of this crime.

2) Witness One was a person who could've well committed the crime, and whose testimony of the events contradicted those of the party goers.

3) Witness Two was high on crack, weed and had drunk alcohol the night of the crime. His story also contradicts that of the party goers. He did not actual witness the crime happening.

4) Nate Yarde and his intimidation was not mentioned at any time during this trial

5) The letters, the whole 3 we were shown, had multiple interpretations. We read them MULTIPLE times, and had the same conclusions that they ambiguous. They could be a scared kid, or story coordination.

6) To us, the phone calls indicated he had drugs. Why would his brother get everything out of his room and LEAVE KNIVES BEHIND? And, where was this BLOOD OF OTHER PEOPLE ON THESE KNIVES? THIS WAS NOT ADMITTED INTO EVIDENCE.

The BURDEN OF PROOF lies on the Commonwealth of Massachusetts. There was NO physical evidence. There was NO admittance of his past, or prior incidents.

All we had to work with is a kid, who we DID NOT SEE LAUGHING ONCE, who was accused of a crime. Their evidence against him was the word of two individuals with dubious credibility, and some letters and PIECES of phone calls. I don't know where you got all of your "evidence" but these were things that we weren't told. We were picked BECAUSE we were ignorant of the case so that we could judge him SOLELY for the charges at hand.

We did the best we could, with the information we were given.

If this kid is who you say he is, he will probably end up dead by 25.

And given what I know about my co-jurors... Jury intimidation... I would have to say that most definitely did not happened. What happened was a shakey case that possibly let another murder go free.

It was -- or was supposed to be, and sure sounds like -- one of the jurors themselves. In a sense it's not different from a juror talking to a newspaper reporter. But in its emotional immediacy, its availability, and its detail, it is different.

The information superhighway ahead

It's the second time in the last month that I've learned of a juror defending a controversial verdict in the comments to someone else's blog. Meanwhile CourtTV was offering live chat with some of Phil Spector's jurors for the trial-hungry commenters who hang out over there.

It's all happening as we watch. Already we have jurors texting each other their Internet research, juror blogs, jurors reading blogs, jurors commenting on blogs, verdicts challenged over all these things. Few predictions are safe, but this one is: it will happen more and more, faster and faster. Jurors are on line.

________________

Update: see the October 5 comment to this blog here, pointing out another juror comment today to defend another verdict here. The juror comment came after Peoria's PJStar.com reported the sentencing of two men convicted of gang rape. Other comments to that story "were getting very racist," says my commenter, "and this juror stepped in to say the jury never considered race in the deliberations."

(Photo by dro!d at http://flickr.com/photos/lecates/454787692/; license details there.)

Simply The Best, My Ten

A jury blogger ought to be able to follow instructions, right?  So although I'm still basking in Blawg Review's praise, I'll name ten really good law blogs, and pass this meme on to them to do the same if they choose.

Simple Justice, Defending People, Corrections Sentencing, and Drug and Device Law Blog, you'll be relieved to hear you're disqualified, since you just got a different meme award here on Monday. From the rest of the "blawgosphere," these ten come first to mind:

• SCOTUSblog
• New York Personal Injury Law Blog
• Austin Criminal Defense Lawyer
• Blawgletter
• Capital Defense Weekly
• a public defender
• TalkLeft
• Empirical Legal Studies Blog
• Point of Law Forum
• Psychology and Crime News

(Photo by Nichole Armageddon at http://www.flickr.com/photos/nmusser/150096657/; license details there.) 

"Simply The Best"!

The anonymous editor of Blawg Review reads law blogs all day (or so it seems). Today he listed "the top ten law blogs he thinks are simply the best" -- and Deliberations is one of them!

I know, I was surprised too, especially in light of the nine luminaries who unsurprisingly made up the rest of the list: Above the Law, Adam Smith, Esq., Balkinization, Concurring Opinions, f/k/a, May It Please the Court, QuizLaw, Sentencing Law and Policy, and The Volokh Conspiracy.

"Sure, there may be better blawgs out there," says Ed., and he's definitely right that there are better blawgs than this one. This fact has now become my problem, since Ed. has challenged his ten best to name their ten best. I'll do that, when I dare -- and meanwhile, I'll try my best to behave at the grown-ups' table. Thanks, Ed.

Update:  my own "ten best" list is here. 

(Photo by Nichole Armageddon at http://www.flickr.com/photos/nmusser/150096657/; license details there.) 

A Picture Is Worth . . .

What's a picture worth? Too much, a new study suggests. The mere presence of a picture of a brain, in an article about cognitive processes, makes us more likely to believe what we're reading -- even though most of us have no ability to understand the picture.

The paper is "Seeing Is Believing: The Effect Of Brain Images On Judgments Of Scientific Reasoning," by Colorado State's David McCabe and UCLA's Alan Castel, forthcoming in the journal Cognition but also published on line at Colorado State. There's a press release here.

More credible, better written

In three different experiments, subjects read articles about different aspects of cognition. The articles were identical in everything but the illustrations. In the first experiment, for example, subjects read three fictitious articles, including one called "Watching TV Is Related To Math Ability." As you might guess from that title, the article was flawed. (Or as McCabe and Castel kindly put it, it contained some "claims that were not necessitated by the data," "giving participants some basis for skepticism in their ratings.")

The article purported to compare the brain's responses, as measured by neuroimaging, to watching TV and to math, and that comparison had an illustration. Some of the subjects saw this picture,

but the rest of the subjects saw this one,

and even though the graph is something even I can comprehend and the brain picture is completely inscrutable, the subjects who saw the brain picture found the article more credible and better written. The difference was small, McCabe and Castel said, but it was significant.

Let's try that a different way

So okay, McCabe and Castel said, maybe it's not the brain picture that's making the difference here; maybe it's just that the brain picture is more complicated and impressive. So they did the experiment again, this time with two complicated and impressive pictures. This time half the subjects saw the brain "map" on the left below, and half saw the brain picture on the right:

And it wasn't just the complexity. The subjects who got the brain picture found the article better reasoned than those who got the map, even though both are byzantine. When the researchers repeated the test with a real article, the result was the same.

"It is unlikely that this subtlety is appreciated by lay readers"

McCabe and Castel aren't sure why we're so dazzled by these pictures. They think it may trace back to our naive belief -- "reductionist," they call it -- that the mind is "an extension of the brain," so that we think the brain images are literally pictures of thinking. In fact they're not, as McCabe and Castel explain in the kind of passage that makes these papers so much fun to read and translate:

Indeed, it is important to note that while brain images give the appearance of direct measurement of the physical substrate of cognitive processes, techniques like fMRI measure changes in relative oxygenation of blood in regions of the brain, which is also indirect. Of course, it is unlikely that this subtlety is appreciated by lay readers.

The limits of teaching

At one level, the message for lawyers here is clear: use pictures, and not just any pictures. Pictures may be most powerful when they represent what you're talking about as directly and concretely as possible.

At the next level, though, this research dramatizes a judgment call that lawyers often have to make. When the material is difficult, we can try to teach it to jurors so that they independently get it, or we can simply tell them, with the authority that comes from credibility, that we're right. A large body of research and writing tells us that when we can really teach jurors, they're not only convinced, but they're grateful for the experience.

But is there a limit to teaching? This research suggests (at least to me) that there may be -- that at some level of complexity, jurors are more comfortable with trusting than they are with learning. The amazing thing about McCabe and Castel's research is those first two pictures, the graph and the brain. One picture makes sense to most laypeople, the other doesn't -- and the one that makes no sense was more believable. The article implied that the brain picture demonstrated the author's claims; the subjects had no way of judging whether this was true; and yet they believed more strongly than when they were given a graph they themselves could read.

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The full cite for this article is McCabe, D. P., & Castel, A. D., Seeing is believing: The effect of brain images on judgments of scientific reasoning, Cognition (2007), doi:10.1016/j.cognition.2007.07.01

(Drawing by lucianvenutian, done when he was three, at http://flickr.com/photos/lucianvenutian/477929996/; license details there.)

Deliberations' Thinking Blogger Award Winners

Several weeks after Emma Barrett of Deception Blog kindly named me one of her five Thinking Bloggers, I'm finally ready with my own list.

Ironically, designer Ilker Yoldas, who started this "tag" award -- called a meme -- at The Thinking Blog, didn't like memes. "I have decided not to join any memes in the future," he said in the first "Thinking Blogger" post in February, "but how can I leave the world of blogging memes without starting one?" It's been a good one, rolling around the Internet for the last six months unearthing some very good writing in dozens of fields.

Making the list was difficult at first, like trying to name your five best friends; you hate to leave anybody out. But it isn't "five best," it's "five who," I finally realized, and it's just for fun. So here are five of the many bloggers who make me think, in a list slanted toward those I don't normally get to cite:

1. Tim's El Salvador Blog. My friend Tim was the first blogger I actually knew, and it took awhile to realize not all blogs are as good as his. Tim is an ordinary Midwestern guy who went to El Salvador with his church in 2001, and fell in love with the country and its imperiled culture. He started his blog in 2004 "as a way to make information about current news and events in El Salvador available to other English speakers." That means that in addition to his demanding and unrelated day job, he follows the press on El Salvador every day, in both Spanish and English, and passes it on with steady clarity.

Tim covers everything: politics, the environment, pop culture. Too often he has to report violence, like the murder of a journalist this week, and of a little boy Tim knew this summer. All of it is intelligent, unflinching, and quietly compelling.

2. woolgathering. If I could read only one blog post a day, it would be Elizabeth Perry's daily drawing. Each one is an ordinary moment, calmly recorded, and they add up to the rich life we all have, if we could only see it as she does. Last week she posted her 1000th drawing. She's been tagged before, and she doesn't have to pass this on if she doesn't want to, but I couldn't leave her off this list.

3. Corrections Sentencing. Michael Connelly has been a key player in the sentencing and corrections community in Oklahoma, Maryland, and here in Wisconsin. He started his blog last year, noting "the lack of constant, consistent forums for practitioners, policymakers, and the public to seriously review and discuss what's happening" in corrections and sentencing. The depth of what's discussed here, and the depth of frustration felt by many in this community, are striking.

4. Drug And Device Law Blog. Dechert LLP's James Beck and Jones Day's Mark Herrmann, somehow managing to write about pharmaceutical and medical device product liability defense in a way that keeps specialists interested and newcomers still reading. They're also pretty funny, especially on the rare occasions when they go off-topic.

5. Simple Justice and Defending People. I link to both Scott Greenfield and Mark Bennett all the time, but I haven't had a chance before to talk about the dialogue that goes on between them, and attracts insightful comments from all over. There's always some kind of backyard party going on in their blog neighborhood. You guys can decide how to divide up this award.

So, lucky winners, here are the rules as they have been passed down to me:

1. If, and only if, you get tagged, write a post with links to 5 blogs that make you think.

2. Link to the Thinking Blog's original post so that people can easily find the exact origin of the meme.

3. Optional: Proudly display the "Thinking Blogger Award" with a link to the post that you wrote (there is an alternative silver version if gold doesn't fit your blog).