Deliberations

"Is This Thing On?"

Read the newest Batson case from the Sixth Circuit and you'll treat courtroom cameras with new respect.

"The other one is already off"

The voir dire in Frederick Harris's 1998 trial for kidnapping and robbery must have seemed absolutely typical.  The prosecutor used four peremptory challenges to strike black jurors, offered a race-neutral explanation for each strike, and got a conviction. 

There was only one problem.  The courtroom was equipped with video cameras to record certain proceedings, and as the prosecution team huddled to choose their last strike, the cameras were on.  The lead prosecutor didn't know he was being recorded as he recapped the strikes so far:

Okay, this is who we got guys so far. We got 76, [name deleted]. That’s the guy we at first liked, but who had been accused by his girlfriend. We’ve got 128, [name deleted], kind of hippy, with the beard and the hair, who sat behind [name deleted]. He was on the not guilty jury. We’ve got [name deleted], 82. She was the last person on the second row. She was also a juror on the carrying concealed deadly weapon charge, which was a 10-2 to acquit. We’ve got [name deleted], who is the girl at Seiller and Handmaker [a local law firm]. We’ve got 77 [name deleted], who you originally liked, but who was a juror on the Robbery I case. We’ve got [name deleted], 138. She was the black female who said her cousins were charged and convicted of armed robbery. We’ve got [name deleted], 49, she’s the old lady, the black lady. The other one is already off. Then there’s [name deleted], 160, the first guy out here, who was sleeping. We’ve got one more to go. What do you guys think?

What "other one"?  The only other black female, something a prosecutor might say if he was trying to strike them all?  Or, as the prosecutor later claimed, another juror who had been joking with No. 49, a juror who was white?

Habeas corpus

The trial judge never had a chance to ask.  The tape was discovered after Harris was sentenced (to 75 years) but before his first appeal, and it has been the centerpiece of divided opinions ever since, first in the Kentucky state system and now in the federal courts on habeas.  Today, for the first time, Harris won.  The Kentucky Supreme Court had reviewed the tape and decided that the prosecutor's words didn't mean his strikes were based on race.  In Harris v. Haeberlin today, the Sixth Circuit held that the Kentucky Supreme Court should have remanded the case to the Kentucky trial court to assess the prosecutor's credibility in light of the tape.

Key points from this one:

1. The Supreme Court's Batson jurisprudence isn't easy. The Harris majority sifted through a long list of cases to get to its ruling; a spirited dissent worked through the same list to the opposite conclusion.
2. Let's be honest: any lawyer could have said what's on that tape. A racist prosecutor could have said it; so could a completely innocent lawyer just trying to be clear about whom he meant. (Which is exactly why the Sixth Circuit majority said the case should have gone back to the trial court, because it showed the prosecutor's "demeanor," which the trial judge could have analyzed in context.)
3. Congratulations to David Debold of Gibson Dunn & Crutcher LLP (and, we can guess, a happy team of lawyers who worked with him), Harris's lawyers in the Sixth Circuit.
4. Watch out for courtroom cameras.

(Photo by halloween jack at http://www.flickr.com/photos/halloweenjack/47269493/; license details there.)

Announcing "The Jury Expert"

If you try cases to juries, ideas like these are likely to catch your attention:

• "It is important to recognize that [Baby] Boomers are often traditionalists.  They may use technology happily or begrudgingly, but as a whole they view it as something to augment the old way, not replace it." 
• "Death-qualified jurors are more likely to be racist, sexist, and homophobic.  They are more likely to weigh aggravating circumstances (i.e., arguments for death) more heavily than mitigating circumstances.  Death-qualified jurors are more likely to evaluate ambiguous expert scientific testimony more favorably."  (Each of those sentences cites to at least one research study.)
• "Imagine having the ability to walk into a deposition, hand your iPod to the court reporter, have her download the deposition transcript, hand it to the other side and have them download all their exhibits, then hand it to the videographer and download the deposition video onto it as well." 
• "Witnesses operate under the assumption that if they are intending to be truthful then the truth is what comes out and gets across to the audience.  . . . That assumption is wrong." 
• "Pay attention to three things:  (1) the facts [jurors] use to answer your question, (2) the emotion they use to express themselves, and (3) the intention behind the words." 
• "If your legal pad and seating chart with one-inch squares are no longer cutting it to manage all the information you learn during voir dire, keep reading." 

They all come from the same source:  the debut online edition of The Jury Expert, the bimonthly publication of the American Society of Trial Consultants.  The idea is to offer useful thoughts from respected jury consultants, often and free of charge.  Take a look, and let us know what you think.  (I say "us" because I'm part of the communications committee that cheered as TJE's editor Rita Handrich of Keene Trial Consulting and her team worked very hard and unveiled an impressive product.)  You can subscribe free by E-mail, comment on and rate articles, and download them in .pdf format.

This edition's articles are, and the quotes above are from them in this order:

• "Four Generations in the Jury Box: Tailor Your Message, Make the Connection," by Cam Marston of Generational Insights
• "Caveats of the Death-Qualified Jury: Ways Capital Defense Attorneys Can Use Psycholegal Research to Their Advantage," by Brooke Butler, Ph.D
• "How to Successfully Integrate an iPod into Your Litigation Practice," by David Mykel of Courtroom Sciences, Inc.
• "Witness Preparation: Hidden False Assumptions, Real Truths and Recommendations (Part One)," by David Illig of Litigation Psychology
• "What Do You Hear When You Listen? Five Principles with Tips for Developing Critical Listening Skills," by Diane Wyzga of Lightning Rod Communications
• "Practical Tools for Staying Organized during Voir Dire and Jury Selection," by Kelley Tobin of Tobin Trial Consulting

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Technical note:  My blog platform, TypePad, changed the software bloggers use to compose posts, and at least on this blog, the transition is very rocky.  I hope posts here will start looking pretty again soon.

 

To See Gerry Spence

Gerry Spence, cross-examining a government witness today:  "Can you tell me a case in the history of the world in which ..."

Prosecutor:  "Objection."

Spence:  "Okay, the United States."

Those are the kind of courtroom reflexes worth traveling across the country to see. 

Blogger Norm Pattis has traveled across the country to watch his legendary former teacher defend Geoffrey Fieger on campaign finance charges in Detroit.  Since the trial began, Pattis has been chronicling it from his home in Connecticut, passing on the best of the news coverage with his comments.  (His collected posts on it are here.) 

To hell with it

Yesterday, though, his coverage took a turn -- no, a trip.  The next witness in the trial was the FBI agent who would present much of the government's case.  Pattis wrote:

I sat down to write about this showdown between the lawman and one of the last remaining populist cowboys in America.

"I would give an eyetooth to see that," I started to write. I looked at the clock. It was just after three. To hell with the eyetooth, I concluded. I booked a flight to Detroit and am now at my hotel in the Motor City, some eight hours later. I'll be up early tomorrow to get a seat in the courtroom.

The posts since then are wonderful.  The wrenching moment in one of Spence's psychodrama sessions that -- I'm not overstating -- changed Pattis forever.  Coverage of the direct examination today, with that wonderful Spence throwaway.  This afternoon spent re-exploring Detroit, his childhood home:  "No way I can go home again: Most of the houses I lived in are gone, erased, kaput, vanished."  And thoughts about what tomorrow, the day he came for, will be like.

There's a lot of good fiction that isn't nearly this good.  Thanks to Norm Pattis for sharing it.

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Notes: 

1. Scott Greenfield has been following Norm's Fieger posts and adding his own comments admirably, most recently here. 
2. Mark Bennett, also a Spence alum, talks more about psychodrama and its relevance to trial lawyers here.

(Photo by Dr. Wendy T.L. at http://www.flickr.com/photos/wtlphotos/488456796/; license details there.)

Twittering Voir Dire

There's a new kind of journalism coming from a Kansas courtroom this week.

It's not just a live blog; those have been around for awhile.  When I started this blog last February in the middle of the Scooter Libby perjury trial, one of the best jury resources was the live blog of that trial at firedoglake.com.  After that came wonderful live blogs from the Daphne Wright murder trial in South Dakota and the James Seale Ku Klux Klan murder trial in Mississippi.

It's not easy to live-blog a trial, but the best live blogs are better than being there, immediate without the boring.  By necessity, though, they're not truly "live."  The blogger needs to collect enough information for a post, and so posts go up every few hours, or even at the end of the day. 

Twitter journalism

Enter Ron Sylvester, a reporter for the Wichita Eagle and its online version, Kansas.com.  Sylvester is reporting a murder trial in a series of 140-character Twitter posts.

Twitter, you may remember, is the leading "microblog" site, with millions of people answering the question "What are you doing?" all day and night in "tweets" of 140 characters or fewer.  There's a lot of silly tweeting going on at Twitter, but more and more, serious professionals are having professional conversations.  I've been checking in there for the last month or so, happily "following" the thoughts of Kevin O'Keefe (Real Lawyers Have Blogs), Grant Griffiths (Home Office Warrior), Susan Cartier Liebel (Build A Solo Practice), Carolyn Elefant (My Shingle and Legal Blog Watch), Gideon (a public defender), Rush Nigut (Rush on Business), Brett Trout (Cyber Law), and Nicole Black (Sui Generis and Women Lawyers - Back on Track), among others. 

My corner of Twitter has mostly been cheerful small talk and link sharing, but suddenly this week it's news.  Kevin O'Keefe wrote today about Twitter's role in letting the world know about today's earthquake in China.  Less drastically, but central to my blog's topic, Ron Sylvester is reporting jury selection with a fresh and direct style you don't often see, except on Twitter. 

"You could see lawyers tensing up"

Today was Day Two of what will be at least a three day voir dire.  To take just a few examples from today, Sylvester is noting:

• Practicalities.  "One juror excused for not being able to look at crime photos. You could see lawyers tensing up, expecting others to see that as a way out."
• Lessons.  "Even if you're against the death penalty, if you say you can consider it, you can qualify to sit on the jury."
• Ironies.  "When I left, a woman was dismissed because she couldn't consider the death penalty. I return: a man is excused for not considering life."
• Light moments.  "On[e] juror forgot to turn off his cell phone. Ring tone: "Carry on My Wayward Son," by Kansas (1976)."

At his blog Technolo-J ("getting in touch with journalism's technical side"), Sylvester wrote on Saturday about the decision to cover the trial this way, and what he's learning.  I'd argue with him on only one point:

And it’s only the first week.  The intense and exciting part – the real evidence of the trial - is yet to begin.

Of course we know that jury selection is the exciting part.  Thanks to Ron Sylvester for covering it so well. 

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Note:  After a few false starts, I'm finding Twitter to be a good forum to say things that are off-topic or too short for this blog, and to communicate with an interesting and growing group of people there.  My Twitter page is here, as good a place as any to start if you'd care to join in.

(Photo by J. Samuel B. at http://www.flickr.com/photos/lobsterstew/220109812/; license details there.)

Late For Uma Thurman

"If something happens and I post on it in 45 minutes, I'm timely.  If something happens and I post on it the next day, it's kind of stale." 

So (or approximately so) said Mark Herrmann of Drug And Device Law Blog today, when I had the honor of speaking on a panel with him at the State Bar of Wisconsin's annual convention.  Our topic was blogs and blogging, and we were joined by charming Bonnie Shucha of WisBlawg.

I secretly winced when he said it, because I knew my post today would be stale.  It was yesterday that Wall Street Journal reporter Emily Steel wrote about the jury deliberations in the Uma Thurman stalker trial this week -- from her privileged vantage point as a deliberating juror herself.  I saw it in the WSJ Law Blog, and put it in my news feed right away, but I didn't get a post up. 

Different posts for different folks

Now, of course, the story is all over not only the blogs but the news wires, with its twin attractions of eavesdropping on a jury and Uma Thurman, for heaven's sake.  Different blogs had different perspectives, and they're all good:

--Scott Greenfield at Simple Justice got to it right away, of course.  He highlighted the part I keep harping on here:  there were two lawyers on the jury, and a comment from one of them made a big difference.  "So much for getting legal instructions from the judge, with the attorneys capable of objecting and preserving," says Scott.

--Jeralyn Merritt at TalkLeft picked up the lawyer's role too, and also caught a media angle.  "Perhaps [Steel] just helped the defendant in a bid for a new trial," she says, since Steel documented the juror who saw (and liked) the courtroom artist's sketches.  "Where would s/he have seen the sketch artist's depictions but in a newspaper?" Jeralyn asks.

--Brad Parker at Where's Travis McGee focuses on the lawyer, but imagines himself in the lawyer's place, and wonders what he'd tell his fellow jurors.  (Where's Travis McGee was a new blog to me; thanks to Blawg Review's Ed. for the tip.)

--It took a nonlawyer blogger to question Ms. Steel herself.  "I'd love to know if she told the other jurors she was a reporter and was writing down everything they said for an article," says Jodi of the MamaPop blog.

(Photo by Brandon Weight at http://www.flickr.com/photos/brandonweight/2267541061/; license details there.)

Commitment Issues

Is the Fifth Circuit trying to change the way prosecutors talk to jurors?

A few weeks ago I shocked the world -- okay, surprised a few people -- by pointing out United States v. Gracia, in which the Fifth Circuit reversed a drug conviction, finding that the prosecutor had improperly "vouched" for the credibility of federal agents who testified.  I thought, and some commenters (even defense lawyers) agreed, that what the Fifth Circuit had called vouching in Gracia was actually fairly routine argument. 

"Please raise your hand"

Last week the Fifth Circuit decided United States v. Fambro, and came close to reversing another conviction, this time because it didn't like the prosecutor's voir dire questions.  As in Gracia, when you look at what the prosecutor actually said, you might find the questions familiar:

Let’s say that law enforcement finds a box of grenades and they’re trying to determine whether I possessed those grenades. My first question, would it be important to you whether the grenades were found in my house or not? Would that be an important factor, do you think, in determining whether I possessed the grenades? How many think it would be important? If you do, please raise your hand.

Let me add another piece of evidence onto it. Let’s say the grenades are found in my house and that they are found in a box, and with the grenades in the box are some adult T-shirts that happen to fit my size, that are the size of shirt I wear. Do you think that would be important in determining whether I possessed the grenades or not? Okay. If you do think it’s important, please raise your hand.

Let me add one more twist to our little fact scenario. Let’s say that during an interview with law enforcement, I’m talking with the officer and I say, yes, the grenades were bought in Arizona. I was there and I brought them back to Lubbock. How many people think that would be important? Okay. Is there anyone here who thinks it wouldn’t be important?

If you had heard all of that and you were asked to decide, did [I] possess the grenades found in [my] house, how many people think I did possess those grenades? How many people think that I did not possess those grenades?

Can't I wait for the evidence?

These are called "commitment questions," and lawyers use them often, at least in my part of the world.  Frankly I don't know why they're so common.  I think they confuse jurors at best, and much more commonly really irritate them.  I've seen jurors resist one question after another like this, shifting uncomfortably while they tried to explain they'd really prefer to hear all the evidence, until they were finally beaten into saying that yes, this or that factor would be important. 

The Fifth Circuit doesn't like these questions either, and cites other courts to the same effect (I'm omitting the citations here):

A defendant’s right to due process under the Fifth Amendment requires an impartial jury at least to the same extent required by the Sixth Amendment. As the Eighth Circuit has explained, “although there are no constitutional provisions directly addressing the use of hypothetical questions during voir dire, there may be circumstances where a party’s manner of conducting voir dire renders a jury [non-]impartial and thereby triggers a Sixth Amendment violation.” We have stated that a voir dire question that “in effect asked the jury how it would weigh evidence it had not heard” would “not be a proper line of inquiry.” A majority of states appear to prohibit hypothetical questions to prospective jurors on voir dire to determine how they would decide fact issues in a case. 

Conviction affirmed

Fambro's counsel didn't object to the commitment questions, though, so the Fifth Circuit needed plain error to reverse, and didn't find it:

Nevertheless, we are unaware of any decision by the Supreme Court or any federal appellate court that has reversed a district court because it allowed commitment questions on voir dire in violation of the due process clause or the Sixth Amendment. Moreover, there was considerable evidence from which the jury could reasonably conclude that Fambro possessed the firearm. We therefore cannot say that the error, if any, was plain.

If your opponent starts asking commitment questions in voir dire, you have a valid objection.  With luck, you'll also have a jury panel that's tired of being badgered.  That's a good start.

(Photo by Ed Schipul at http://www.flickr.com/photos/eschipul/2371505523/; license details there.  Schipul's blog, not photography but PR and marketing, is Brand To Be Determined.)

Jury Notes From Elsewhere, May 4

Good things for jury watchers at other sites lately:

--Elliott Wilcox wonders why lawyers say they're speaking "as an officer of the court" when they want to stress they're telling the truth.  What are they telling the rest of the time?

--Evan Schaeffer has six tips for improving direct examination at Illinois Trial Practice Weblog.

--"I'm a bad blogger" is how Eric Turkewitz starts a review of Mark Herrmann's terrific book The Curmudgeon's Guide To Practicing Law. 

--The "How To Be A Great Trial Lawyer" series at John Day's Day On Torts has more installments than "Rocky," and they're all good.  He's up to Part 14, "A Healthy Respect for the Judicial System."

--Everything at Thaddeus Hoffmeister's Juries is relevant, of course, like this post on how juries in Gibraltar acquit local defendants far more often than those from outside Gibraltar.

--Howard Zimmerle at Quad Cities Injury Lawyers has a fresh and often unexpectedly candid perspective, as in this post where he explains how a well-intended and well-spoken lawyer might decide to draft a complaint in legalese.

--Jon Katz finds points of agreement with his political opposite, Antonin Scalia. 

--Karen Franklin announces the guilty verdict in the Hans Reiser case in Oakland, where Reiser was convicted of killing his wife although her body was not found.  A simple technique the prosecutor used in closing, Franklin explains, might have made the difference. 

--Two juror stories made the rounds this week, but they're best told by master storytellers:  Scott Greenfield at Simple Justice tells about the jurors who were sent home for wearing Hell's Angels' regalia, while Seth at QuizLaw tells about the one sent home for showing up drunk.

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

Hizzoner The Foreman

I don't know why a 1999 New York Times story suddenly showed up in my news feeds, but I'm glad it did, because I missed it the first time.  Rudolph Guiliani, then mayor of New York, spent a week on jury duty in a personal injury case that year. 

Not surprisingly, he was foreman.  Not surprisingly, he was a big hit with the rest of the group.  And not surprisingly, the plaintiff lost.

"No."

The story starts:

As five jurors who heard a personal injury case in Manhattan emerged from State Supreme Court, they had praise for the jury foreman, describing him as a regular guy who came across, in their words, as ''unpretentious'' and ''friendly.''

''You'd expect a man with responsibility for a $30 billion annual budget to always be on cell phones during breaks or talking to aides, but he wasn't,'' said Caleb Silver, 28, a business reporter who served on the jury. ''When we took breaks, he took breaks. When we drank coffee, he drank coffee.''

In more typical get-down-to-business style, the famed foreman, Mayor Rudolph W. Giuliani, used just one word -- no-- in announcing that he and his fellow jurors had rejected a $7 million claim from a man who said that searing shower water had scalded his genitals so badly that it had rendered him impotent.

The rest, equally good reading, is here. 

Like a juror

''I let the other jurors express their opinions first,'' Giuliani told the Times, adding that "his fellow jurors had treated him 'like a juror, not like the Mayor.'"  Likewise, "[m]embers of the panel, which consisted of a corporate executive, a college student, a registered nurse and a lawyer as well as the Mayor, said they were unswayed by Mr. Giuliani's presence."  Maybe so.  But if you think those other people, no matter how distinguished, could have talked the mayor out of the verdict he wanted, think again.

And thus we build our list of guaranteed jury leaders.  So far we have lawyers, sitting legislators, the judge's mom, and now we can add the mayor of one of the world's largest cities.  You can leave any of these people on your jury if you want to.  Just understand:  if you do it, you have a jury of one. 

(Photo (c) 2007 Bill Fish Photography at http://www.flickr.com/photos/protectourprimary/477145883/; license details there.)