Deliberations

Respect

There are two juror stories in the legal blogs today, each illuminating in a different way the level of respect we give to jurors.   

"We listened, we thought, we argued, we went on"

First is the story of the juror who asked for respect after the trial was over.  He wrote to a federal judge, frustrated because the group's hard work seemed pointless when the defendant's sentence was based on alleged crimes the jury either rejected or never heard about.  (Sentencing Law and Policy discussed the story here, and Simple Justice and Legal Blog Watch both picked it up.)  The juror's letter describes the American jury at its best, the ideal we all hope for:

[W]e spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements.  We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail.  If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time. 

It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves.  We, the jury, all took our charge seriously.  We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy.  We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on.

I am not a shrew

The other story tells of jurors who got very little respect indeed.  It comes via Legal Profession Blog, which picked up this article about Friday's censure of a Kansas judge for yelling at jurors in voir dire.  Legal Profession's post title, "Anybody Else Want To Mess With Me?", is a direct quote from Judge Rebecca Pilshaw, daring jurors in a murder trial to say anything that might sound like they wanted to get out of jury duty.

The Kansas story sounded so bad that you had to wonder whether sanctioning the judge was enough.  What happened to the defendant, whose name was Dewey Gaither?  The 2007 opinion deciding his appeal is here:  He was convicted, of murder and other crimes committed in the course of two nasty drug robberies. 

The facts of the case were bad, and it's not clear from the supreme court's opinion that Gaither raised any meaningful defense.  But the opinion is still striking for its recitation -- much longer than the summary in the judicial censure opinion -- of what Gaither's jury went through in voir dire.

"Answer me yes or no."

It started when a juror said she wouldn't believe police witnesses.  Judge Pilshaw dismissed her -- and ordered her to sit through the trial anyway, as punishment:

"THE COURT: No one's asking the life history and the things that bring you to this place, but that's not what you started out saying, ma'am. What you started saying is, because someone has a uniform on, you will dislike them automatically, and you're going to discount their testimony; is that what you're saying?

"PROSPECTIVE JUROR [L]: When I got my driver's license –

"THE COURT: Answer me yes or no.

"PROSPECTIVE JUROR [L]: Yes. I have to really go and think about that a whole lot. I can't just take their word.

"THE COURT: I'm going to excuse you from your jury service, ma'am, but I'm going to require you to sit through this entire trial, so you can get an objective view of how people – of how people do testify. I think that you have – I think there is perhaps some validity to what you have to say, but I think that you – you need an opportunity to be exposed more to our law enforcement personnel, and I think that because this trial will have so many that will be testifying, I want you to – I'm ordering you to sit through this entire trial. It will be considered part of your jury service, and you will be paid at the rate of a jury member. You'll need to take your card back down.

. . . .

"PROSPECTIVE JUROR [L]: Okay.

"THE COURT: If you fail to appear on any day of the trial, that will be considered contempt of court, because this is a direct order."

Hitting the roof

"Anybody else want to mess with me?" she said then, and I don't imagine anyone did, but the next juror still said her religious beliefs made it uncomfortable for her to judge anyone, and also that she believed anyone on trial must be guilty of something.  Judge Pilshaw pointed out accurately that the two "beliefs" weren't consistent, and gave a necessary instruction that Gaither was presumed innocent -- but her words sounded more like a threat than anything else:

"I think what you're saying – you're contradicting yourself about what you're saying, and we have had Jehovah's witnesses that do sit on juries. I believe it's your personal feelings that you simply don't want to do it, not because it's a long trial, but I believe you don't want to do it. I've got quite a few people that don't want to do it either. But you have said the magic words, so you are released from your jury service. And I feel sorry for the next person that ends up going, because I am going to hit the roof, I think.

. . . .

"[Prospective Juror D] made a comment which is completely wrong. Just because Mr. Gaither is here does not mean he must be guilty of something. That is the antithesis, the opposite of what our judicial system is about.

"Mr. Gaither sits before each and every one of you right now, and he is innocent until there has been evidence sufficient to what I will instruct the jury on to prove him guilty, and that's beyond a reasonable doubt. . . . Nobody here has heard one piece of evidence about anything, and despite what [Prospective Juror D] said in her misguided beliefs about not judging people, that was absolutely wrong. He sits here an innocent man until evidence has been presented – until and if evidence has been presented sufficient to prove that he's guilty. Does everyone here understand that? If you do not understand that, raise your hand right now. I am vehemently serious about that."

Me?  I was just scratching my ear . . .

Shortly after, the prosecutor turned to another juror who had raised his hand on the police witnesses question.  That juror said he'd now changed his mind and had nothing to report.

Judge Pilshaw started apologizing about then ("I'm really not that bad. I am really not that bad at all, and I want – and you all took an oath, and you must be honest in your answers"), and kept apologizing the next day.  After a long explanation trying to set things right, she told the jurors:

"So if I have misled any of you into thinking that I am some angry shrew up here, I am not. I really and truly am not, and if any of you believe for one single minute that you are not free to say what is true in answer to the lawyer's questions, please raise your hand right now, and I will let you go. That is a promise to you. If you feel too intimidated to answer the lawyers' questions honestly, raise your hand right now, and you've just got a free pass out of here, and I won't berate you. I won't be mad. I will be mad only at myself for having caused this environment that you would feel that way, so this is your opportunity. Anybody want to leave?"

Two people took her up on the offer and were excused.

Affirmed.

None of this was enough to convince the Kansas Supreme Court that Gaither should be tried by a new jury that hadn't been harangued into service.  The court cited two prior Kansas convictions it had overturned because judges had made improper remarks, but said they didn't apply, because in those cases, "the misconduct polluted the entire trial."  The court said that Judge Pilshaw, by contrast,

regained control over her temper, emotions, conduct, and utterances after the first day of the voir dire. She apologized to the jury venire and offered to excuse anyone who felt intimidated. The judge's sincerity was evident when two prospective jurors accepted her offer and were excused without further questions. We believe the judge's apology and offer to excuse prospective jurors purged the taint of the misconduct.

Every trial judge needs to let jurors know that defendants are presumed innocent, and that attitudes manufactured to get out of jury duty aren't okay.  But surely Gaither and his lawyers didn't get the voir dire they should have, much less the deeply committed jury described in that other juror's letter to the judge.  An apology is a good thing, but more than a year after the Gaither opinion, a taint remains.

(Photo by Nathan Siemers at http://www.flickr.com/photos/nosha/2459245450/; license details there.)

It's About Race. It's Not About Race.

It's a familiar moment in many mock trials or focus groups where the key players on each side are of different races, but race wasn't explicit in whatever interaction led them to be opposing each other in court.  (Many trials -- employment disputes and criminal prosecutions are two common categories -- answer this description.)  After the jurors have talked through some of the other issues, we ask them:  "What does race have to do with this, if anything?"

Often a white juror's hand goes up first.  "Nothing," the juror says, and explains why things would have been the same regardless of race.  Others give their views, and then a black juror speaks.  Race had everything to do with it, that juror often says.

You can't know from the mock trial alone whether you're seeing a pattern, but you can start keeping an eye out for the deeply different ways that black and white Americans often perceive and explain the world.  This morning, for example, when the Washington Post and ABC News released a new poll on issues shaping the election (article here, poll results here; you may need a free subscription), most readers looked for clues as to who the next president might be.  Jury watchers, though, might have gone straight to these questions:

Having fully absorbed those answers, our jury watchers might then spend some time thinking about how to understand this one:

Race matters.  It even matters to whether someone thinks it matters.

(Photo by Santa Rosa OLD SKOOL at http://www.flickr.com/photos/santarosa/300475023/; license details there.)

The Secret Message In Every Bumper Sticker

I love the bumper sticker question in voir dire.  I've met lawyers and seen journalists who are surprised by it, or think it's intrusive, but when you think about it, it's a no-brainer.  If a juror holds an attitude so strongly that she'll paste it onto her car, you want to know what that attitude is.

New research suggests you should be interested in something else, too.  It isn't simply what jurors' bumper stickers say, it's whether jurors have bumper stickers at all.   Writing in the June issue of the Journal of Applied Social Psychology, Colorado State University researchers suggest that people with bumper stickers are more likely to be aggressive and angry people, or at least aggressive and angry drivers. 

Visualize THIS.

I haven't found a free version of the paper on line, but the Washington Post picked up the story (thanks to the Situationist for flagging this) and describes the research this way:

[Lead author William] Szlemko and his colleagues at Fort Collins found that people who personalize their cars acknowledge that they are aggressive drivers, but usually do not realize that they are reporting much higher levels of aggression than people whose cars do not have visible markers on their vehicles.

Drivers who do not personalize their cars get angry, too, Szlemko and his colleagues concluded in a paper they recently published in the Journal of Applied Social Psychology, but they don't act out their anger. They fume, mentally call the other driver a jerk, and move on.

"The more markers a car has, the more aggressively the person tends to drive when provoked," Szlemko said. "Just the presence of territory markers predicts the tendency to be an aggressive driver."

The amazing thing is that the aggression didn't change with the sticker's message.  Drivers who chose peaceful messages like "Visualize World Peace" were just as obnoxious on the road as those who slapped "My Kid Beat Up Your Honor Student" on their bumpers.

My car, my street, my interstate highway

Those two drivers would call themselves each other's opposites, but they have an important trait in common:  a strong and confused sense of territoriality.  The Post article continues:

The key to the phenomenon apparently lies in the idea of territoriality. Drivers with road rage tend to think of public streets and highways as "my street" and "my lane" -- in other words, they think they "own the road."

* * *

Drivers who individualize their cars using bumper stickers, window decals and personalized license plates, the researchers hypothesized, see their cars in the same way as they see their homes and bedrooms -- as deeply personal space, or primary territory. . . ."If you are in a vehicle that you identify as a primary territory, you would defend that against other people whom you perceive as being disrespectful of your space," Bell added. "What you ignore is that you are on a public roadway -- you lose sight of the fact you are in a public area and you don't own the road."

Issues of anger, territoriality, and boundaries are critical in all kinds of trials.  If they're critical in yours, think a little longer before you keep -- or strike -- that nice lady with the "Coexist" bumper sticker.

(Photo by Hadi-helvetIQ at http://www.flickr.com/photos/23081931@N02/2490169298/; license details there.)

"Blind Strikes" Okay In Second Circuit, And Elsewhere

Yesterday brought another opinion holding that the "blind strike" method of selecting jurors is constitutional, permitted by the rules, and otherwise just fine. 

If you don't practice in courts where the "blind strike" method is used, you've probably never heard of it.  Instead, you're used to alternating strikes, where the lawyers take turns exercising peremptory strikes, each knowing which juror the other just struck and taking that into account in choosing the next one.  In a "blind strike" voir dire, both sides exercise their strikes simultaneously.  If you get four strikes, you strike four jurors, without knowing (until it's over) whether your opponent struck those same jurors too.

You sunk my battleship!

The difference is important because, very often, a few jurors end up on both lawyers' strike lists.  Jurors who seem extreme, unpredictable, very opinionated, or just odd can easily seem too risky no matter which side you're on.  With alternating strikes, you can delay some strikes you know you'd make if you had to, because you suspect your opponent might strike that juror before you do.  With blind strikes, that kind of strategy is off the table; all you can do is make a list and follow it.

Moreover, if you count the total strikes used in a "blind strike" trial, they don't match the number of jurors who actually leave the room after voir dire.  Four strikes on each side might only really eliminate five or six jurors.

"No injury was done if the government united with him"

If you found yourself in that situation, you might easily feel that you didn't really get all the strikes you were entitled to, and that's what Richie Bermudez argued to the Second Circuit in a case decided yesterday.  The court rejected the argument with little trouble, since there's a very old and undisturbed Supreme Court case directly on point.  In 1894's Pointer v. United States, in the kind of grand, fusty language you never see anymore, the high court said:

It is true that, under the method pursued in this case, it might occur that the defendant would strike from the list the same persons stricken off by the government; but that circumstance does not change the fact that the accused was at liberty to exclude from the jury all, to the number, who, for any reason, or without reason, were objectionable to him. No injury was done if the government united with him in excluding particular persons from the jury.

The Bermudez court relied on Pointer, but noted also the five other circuit court cases that have upheld the blind strike method.

_________________

Notes:

1. Let's take a moment and be grateful that Justia.com lets us link to full text of 1894 Supreme Court cases, instantly and free.  That's pretty cool.
2. When I searched "blind strike" on Google, the first hit was my own early post on a D.C. Circuit case allowing lawyers to strike blind jurors without violating Batson.  I'll let someone else figure out whether there's some kind of line to draw connecting the two.

(Photo by Amanda Hatfield at http://www.flickr.com/photos/dust/2372626568/; license details there.) 

Jury Notes From Elsewhere, June 14

What a week.  We'll remember it more for its non-jury news -- the ringing, historic Boumediene opinion (Gideon here on why it's a great moment, Scott Greenfield here on why it doesn't help actual Guantanemo prisoners that much), the odd, jarring Judge Kozinski news (Volokh here seems to speak for most legal bloggers, but likely not for the general public), Tim Russert's way-too-soon passing today, and here in the Midwest, enough rain to float away an entire lake in central Wisconsin. 

But as Friday ended, the R. Kelly jury in Chicago made it a jury news week too.  They watched a homemade sex tape of a guy they decided was indeed Mr. Kelly with a female who was clearly very young, and 15 witnesses testified that she was a girl they recognized and that she was 14 at the time.  They watched as the prosecution played it over and over.  And they acquitted Kelly -- in large part, Time reports in a juror interview, because the girl herself denied the encounter at first and never testified in the trial.  Josh Levin of Slate watched the trial and couldn't believe it.  "[I]t is possible that the defense team finally succeeded in driving the jurors completely insane," Levin says in a terrific recap of the trial.

And there were as usual good blog posts on juries and trials:

--Elliott Wilcox at Winning Trial Advocacy Techniques is always excellent, this week on why, when, and exactly how to pause when we're speaking to juries. 

--Matthew Homann at The Nonbillable Hour has a tip for good graphics that you'll remember long after you read it. 

--Patrick Lamb, always the gruff, smart teacher, accepts no excuses in litigation budgeting.

--Jury consultants Chris Dominic at Tsongas Litigation Consulting Blog and Edward Schwartz at The Jury Box Blog are both back (as I am) from last weekend's annual meeting of the American Society of Trial Consultants, and they both have new blog posts:  Chris explains why litigators can't be squeamish about technology anymore, and Edward is inspired and inspiring about pro bono trial consulting.

--Evan Schaeffer explains why discovery depositions can rarely be used as substantive evidence in Illinois.

--What About Clients? has some awfully kind words about this blog, but it's Anne Skove at court-o-rama who is quickly and deservedly becoming the most popular Anne in the litigation blogosphere.  Here she announces the recipient of this year's ABA Jury System Impact Award. 

--Juror blog of the week, maybe the year:  Hinda, a feng shui consultant who writes at a blog called the Enerch'i Sisters.   "The Wealth/Power Gua was mostly unoccupied," she explains, "although some of the jury seats and the witness box could have occupied some of the periphery. The judge was located in Fame and Reputation. Partnership was unoccupied. Sitting in Creativity was the judge’s delightful clerk."

--Finally and most movingly, Victoria Pynchon's stunning series of posts about her father's illness at Settle It Now Negotiation Blog ended this week with a memorial to him.  It will be a long time before you see someone confront pain and loss with the courage and perspective that Vickie has, somehow managing to engage with it personally while at the same time seeking a larger lesson.  Vickie, best to you and yours. 

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

When Deliberations Fail

Why does a jury have to be a group of six or twelve instead of say, one person?  Because groups make better decisions than individuals, most people would say.

And they do make better decisions -- sometimes.  Except when they don't:

Much of the time, both private and public groups often blunder not in spite of deliberation but because of it. After deliberation, companies, labor unions, and religious organizations often make bad decisions; the same point holds for governments.

That's Profs. Cass Sunstein and Reid Hastie talking, the University of Chicago's law school and business school respectively.  Their paper "Four Failures of Deliberating Groups" has just been posted on SSRN.  Jury fans need to understand this paper, and jury doubters will love it. 

"The truth played a role, too . . ."

Drawing on research from psychology and business as well as a few studies of jurors, Sunstein and Hastie patiently list the ways groups can go wrong.  Mistakes begin at the simplest level, when an individual who has the facts right cannot convince a mistaken majority:

[A] comprehensive study has demonstrated that majority pressures can be powerful even for factual questions to which some people know the right answer.  The study involved twelve hundred people, forming groups of six, five, and four members. Individuals were asked true-false questions involving art, poetry, public opinion, geography, economics, and politics. They were then asked to assemble into groups, which discussed the questions and produced answers. The majority played a substantial role in determining each group’s answers. The truth played a role, too, but a lesser one. If a majority of individuals in the group gave the right answer, the group’s decision moved toward the majority in 79 percent of the cases. If a majority of individuals in the group gave the wrong answer, the group’s decision nonetheless moved toward the majority in 56 percent of the cases.

"Much garbage out"

And it gets worse.  Groups can not only pick up the errors of individual members, but they can make them bigger:

For purposes of assessing deliberation, a central question is whether groups avoid the errors of the individuals who comprise them. There is no clear evidence that they do, and often they do not—a vivid illustration of the principle, “garbage in, garbage out,” in a way that mocks the aspiration to collective correction of individual blunders. In fact, individual errors are not merely replicated but actually amplified in group decisions—a process of “some garbage in, much garbage out.”

These aren't tort reformers gathering research to support a cause, or at least I don't think so.  The paper hardly mentions juries, focusing more on decisionmaking in the business world -- and Sunstein clerked for Thurgood Marshall and is campaigning for Barack Obama.  The fact is, they're right that these errors can and do happen.  Watch a few mock trials and you'll quickly observe the "four failures" Sunstein and Hastie describe:  "amplification of cognitive errors," "cascades," "group polarization," and "over-weighting common knowledge." 

If you value juries, and most people do, the value of this paper is the way it dramatizes a skill that all lawyers need and most don't have.  You need to be able to explain how juries can make good decisions:  how to disagree with respect, how to catch each other's errors, and so on.  It isn't easy, but Sunstein and Hastie will soon offer help; this paper is a chapter from their upcoming book, called Smart Groups.

_______________

Note:  Thanks to The Situationist for flagging this paper.  The Situationist is relevant to jury watchers even when (maybe especially when) its topic is far from the courtroom; if you ever decide to reduce the number of blogs you read, you should probably drop mine before you drop theirs. 

(Photo by Julie Berlin at http://www.flickr.com/photos/jule_berlin/839245545/; license details there.) 
 

The Sudoku Jurors

Other countries seem to be a lot tougher on jurors who don't pay attention.

You've seen this story already if you read Above The Law, or How Appealing, or Blonde Justice, or any number of news services.  An Australian drug conspiracy trial had been going for three months, with more than 100 witnesses having already testified, at an estimated cost of nearly $1 million U.S. dollars, and the trial judge chucked the whole thing because five jurors admitted they were playing Sudoku when they should have been listening to evidence. 

If this sounds familiar, maybe you're remembering a post here last August, about a British rape conviction that was thrown out partly because a juror was doodling.  I kind of liked my line at the time:  "Jurors can't doodle?  What about counting the tiles on the ceiling, tracking the number of times defense counsel wears the same shoes, checking the second hand of the courtroom clock against their watches, planning their holiday outfits?" 

Across the pond

In this country, we're more tolerant of juror distraction.  In the Seventh Circuit, you can start a criminal investigation of the jurors while the trial is going on and the guilty verdict will still stand, or at least former Illinois governor George Ryan's did.

Sudoku is distracting and addictive, there's no question.  It's worse than doodling, and a judge who learns it is contaminating the jury box should put a stop to it.  And you never know; if you've lost the jury to a Sudoku tournament, go ahead and move for a mistrial.  But you might find yourself wishing you lived in Australia -- or had found a way to rest your case before you hit the three-month mark.

(Photo by Tim Psych at http://www.flickr.com/photos/01-17-05_t-m-b/2156513671/; license details there.)

The Long Way To Unanimity

The California Court of Appeals opinion in People v. Carrasco on Friday didn't quote this part, but it's easy to imagine.  The jury has just come back guilty on an attempted arson charge.  A California defendant can be convicted only by a unanimous jury, so the judge polls the jurors:

The Court:  "Juror No. 2, is this your verdict?"

Juror No. 2:  [no response]

The Court (maybe looking up sharply, perhaps a little louder):  "Juror No. 2, is this your verdict?"

Juror No. 2:  [after a pause] "Yes."  And she starts to cry.

Cross-examination by the Court:

Not the hearty affirmation the judge was hoping for.  So he sent the other jurors out of the courtroom and, before accepting the verdict, talked things over with Juror No. 2.  This part of the transcript is in the opinion, and you have to read all of it to understand just how much work it took to bring this juror into the fold:

“THE COURT: . . . [¶] Juror No. 2, you hesitated answering, and you teared up; and it appears that when you did give an answer, ‘yes,’ it was in a soft voice and you appear to be obviously emotionally distraught. [¶] Is the verdict that you rendered by saying yes to guilt as to counts 2, 3 and 4, is that your verdict? Is that your decision?

“JUROR NO. 2: No.

“THE COURT: All right. And it took Juror No. 2 some time to answer the question. [¶] Did you decide to vote the way you did because of the fact that you felt compelled because the other jurors were voting that way?

“JUROR NO. 2: Yes.

“THE COURT: Okay. So that is not your true intent to vote guilty for -- I’m not going to designate which count, but your guilty verdict was because you felt compelled or pressured because the other jurors were voting that way; is that correct?

“JUROR NO. 2: (No response.)

“THE COURT: Go ahead and explain to me that -- nobody will know about, the other jurors won’t know about our discussion here -- but I want to know what went on in the jury room that made you come up with a guilty verdict when you’re now indicating that that was not really your desire or intent.

“JUROR NO. 2: I had reasonable doubt.

Stop there, and there's no verdict.  But it didn't stop there.

“THE COURT: Okay, and in spite of the reasonable doubt, you came back with a verdict of guilty. [¶] Tell me what went on in the jury room, basically as to why you changed that reasonable doubt to a verdict of guilty.

“JUROR NO. 2: I guess, you know, when they were saying it was a felony, I wasn’t aware they were felony charges. That’s what made me start crying.

“THE COURT: Well, the question is not whether or not they are felony charges or any other charge; that’s not an issue. [¶] The issue is whether or not, based upon the evidence and everything you heard, you felt the defendant was guilty, irrespective of felony or what. [¶] The purpose of a jury is to decide the issue of guilt based upon the evidence and based upon the standard of reasonable doubt.

“JUROR NO. 2: Uh-huh.

“THE COURT: So I want to know -- your vote was for guilty.

“JUROR NO. 2: Yes.

“THE COURT: And now are you having second thoughts because you gleaned that the charges are a felony?

“JUROR NO. 2: Yes.

“[PROSECUTOR]: Well, I believe she has indicated that her findings were for guilt and --

“[DEFENSE COUNSEL]: Your Honor, I have to confess I’ve never had this situation before.

“THE COURT: I don’t think any of us have had this, and I want to be satisfied. [¶] First of all, this is your own personal decision; nobody in the jury room during deliberations put any pressure on you?

“JUROR NO. 2: No.

“THE COURT: That answer is no?

“JUROR NO. 2: No.

“THE COURT: Okay, so the reason why you are now somewhat equivocating on your vote is because you believe -- or you have reason to believe that the charges constitute a felony; is that right?

“JUROR NO. 2: Yes.

“THE COURT: But otherwise, based upon everything that you heard, all the evidence and the instructions the court gave you on the law, the argument of the attorneys, you were satisfied the defendant was guilty beyond a reasonable doubt? Going that far?

“JUROR NO. 2: Yes.

“[PROSECUTOR]: And that was the only thing she was asked to do. [¶] . . . [¶]

“[DEFENSE COUNSEL]: Your honor, are we allowed to inquire at all?

“THE COURT: I don’t think so at this point in time, Ms. Williams [defense counsel]. . . . That’s something we’ll have to explore later, I think, if that should arise. [¶] But just so that I have an understanding, because this may or may not lead to something else that doesn’t per se involve you, your concern now is and your hesitation now is that the defendant may have been charged with felonies?

“JUROR NO. 2: I wasn’t aware of that. [¶] . . . [¶]

“THE COURT: Well, don’t forget when I instructed the jury, I instructed the jury that they are not to consider the issue of punishment or penalty; that issue is solely for the court, depending upon many factors, not only the nature of the crime, but various other factors. So that’s something you’re not to be concerned with. [¶] I want to be satisfied that your vote for guilt as to count 2, the resisting arrest, if you will, or detention by Officer Macias; count 3, the same charge as to another officer; count 4, the attempted arson, if you will, that you were satisfied that based upon the evidence you heard, again, and the instructions on the law that I gave you, the arguments of the attorneys, you were satisfied that those charges have been proved beyond a reasonable doubt; is that correct?

“JUROR NO. 2: Yes.”

Really?

Was that a real "yes," even though the first one wasn't?  Or was Juror No. 2 trying to say that Carrasco sounded a lot more like a mentally ill man on a self-destructive mission than like a real arsonist?  (The arson incident started when Carrasco walked into a Los Angeles County sheriff's station and asked the first deputy he saw, "Do you have change, bitch?"  Eventually Carrasco challenged deputies to "Go ahead, bitch, fucking shoot me," and was subdued only by at least five deputies and pepper spray.  Then they found gasoline and rags in his duffel bag.)

Carrasco's lawyer hadn't objected to the judicial cross-examination, and he didn't argue on appeal that the verdict wasn't unanimous.  Instead, the argument was that the judge should have granted defense counsel's request to contact Juror No. 2.  The appellate court upheld the trial judge 2-1, saying there was "no showing" of juror misconduct, and that defense counsel should have "proposed an additional line of inquiry" to the trial judge, even though she'd been shut down when she asked to inquire herself.

Only in the dissent do you find the words you're looking for here:  "I think that at this point the juror had made it adequately clear that she did not intend to find the defendant guilty."  Defense counsel didn't need to object, said the dissenting judge; although no California case has yet dealt with the issue, "there is every indication, in my opinion, that a less than unanimous verdict is reversible error per se."

______________________

Notes:

1. The majority opinion does offer a little help to future defense counsel in this position, in a long Footnote 4: "When Juror No. 2 then stated, 'I had reasonable doubt,' better practice might have been to send the jury back to the jury room for further deliberations."
2. Should this opinion somehow leave you in need of further convincing to poll the jury on every guilty verdict, every time, see Mark Bennett, here among lots of other places.

(Photo by Arthit Suriyawongkul at http://www.flickr.com/photos/arthit/1057392143/; license details there.)  

When They Look Away

Your expert is on the stand presenting her analysis of lost profits damages, or whether an unintelligible patent claim was infringed.  As she's explaining the most difficult part, you look at the jury, and your heart sinks; no one is looking at her.  They're contemplating the ceiling, studying the floor, looking away.

Don't lose heart.  Maybe they're learning. 

There are many reasons why one person looks away when another is talking, but one of them is learning.  "A number of studies report ways in which adults switch off from environmental stimulation (both live faces and other sorts of visual displays) in order to concentrate on cognitive tasks," writes Dr. Gwyneth Doherty-Sneddon of the University of Stirling in Scotland, in one of many papers she has written on this topic.  Her current project, "Children's Eye Gaze: Associated Cognitive and Physiological States" was funded by the Economic and Social Research Council, where many of her papers are collected, all in full-text .pdf. 

"A positive sign"

The most recent conclusion of her research, explained in a press release this week, is that "gaze aversion" is often associated not simply with concentration, but with the moment of learning itself.  Studying children, she found that subjects averted their eyes more often when material was new, difficult, or complicated.  "That means that gaze aversion is a useful thing for teachers, care[give]rs and parents to know about," Doherty-Sneddon said in the press release.  "A child who is doing it is likely to be developing their understanding," the press release continues.

So maybe you welcome the moment when the evidence gets complicated and jurors look away.  If they never look back, though, you can probably go ahead and worry.

(Photo by Pσrcelαΐηgΐrl° at http://www.flickr.com/photos/pinkspleen/503225564/; license details there.)

On The Radio

I'm on the Lake Effect program on Milwaukee Public Radio again today, and honored to be there.  The topic this time is sort of a Web 2.0 primer, focused on the questions I (and I bet other bloggers) get so often:  what's a blog, does it cost money to sign up, how the heck do you have time to read them, do adults use Facebook, and so on.  If you're reading this on a computer screen, you probably know most of what I said -- although some E-mail subscribers might like to learn how to consolidate the blogs they read into a feed reader.  But your mom or your associate might find it useful.

If you're a pro at Web 2.0, listen to the show anyway, for the two interviews that precede me.  Milwaukee's new police chief Edward Flynn has impressed many in the city with smart, practical, and creative ideas about fighting entrenched crime.  After him, the new executive director of Milwaukee's terrific agency Neighborhood House talks about how they help children and families in our most precarious neighborhoods.  Jury trials are often criminal trials, and even when they're not, many jurors' lives and attitudes are shaped by the shadow of poverty and the crime that follows it.  It's a good show to learn about that.

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Scheduling note:  It's odd to talk about being on the radio when I'm flattened with a cold that makes talking pretty much impossible.  Scott Greenfield worries that I'm disappearing, and I've felt a little like it lately with TypePad problems, holiday travel, more TypePad problems, the end of the school year, and now this illness and more TypePad problems.  (This post took four times longer than it should have.)  I really like blogging, though, and don't plan to stop.  Thanks for your patience. 

(Photo by de jäck Mamsäll at http://www.flickr.com/photos/75471113@N00/160080677/; license details there.)