Deliberations

Supreme Court: No Constitutional Right To Peremptory Challenge

  The embattled peremptory challenge got no help from the United States Supreme Court today in Rivera v. Illinois.  

Rivera tried to strike a juror in his Illinois state court trial.  The trial judge said no, finding a Batson violation, and seated the juror.  All sides agree now that was a mistake, and the peremptory strike was proper. 

So does Rivera get a new trial?  That's what he argued to the Supreme Court.  Finding hope in the Court's 1965 Swain v. Alabama pronouncement that "[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice," Rivera argued the trial judge's mistake violated his constitutional right to due process. 

Not nobody, not nohow

Absolutely no way, the Supreme Court basically said.  (To underscore the point, the opinion was unanimous, and Justice Ginsburg wrote it.)  Here's the constitutional law of peremptory challenges as it stands on this day:

• "If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws."
• "[T]his Court has consistently held that there is no freestanding constitutional right to peremptory challenges."

• "Because peremptory challenges are within the States' province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution."

Any questions?

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The opinion is Rivera v. Illinois.  Related posts here:

• Is Batson Wrong?
• Challenging The Peremptory Challenge: Snyder v. Louisiana
• A Narrow, Broad Opinion In Snyder

The Fourth Circuit And The Juror Who Called The Press

The evidence in Brandon Basham's 2004 South Carolina federal trial was that he confessed to taking part in separate killings and apparent kidnapping of two women.  On appeal of his conviction and death sentence, the Fourth Circuit was faced with those grim facts on the one hand, and a startling instance of jury misconduct on the other:  a one-woman media campaign by the jury foreperson, during the trial.  At a time when many people are concerned about jurors' communications on Twitter and Facebook, this story of a juror with an old-fashioned telephone shows how difficult it is to upset a verdict when jurors send information out of the courthouse rather than bringing it in.

Your juror reporter on the scene

As today's Fourth Circuit opinion tells the story, soon after the verdict was in, a producer from Greenville television station WSPA contacted the trial judge.  The producer said that the juror had, during deliberations, "called and asked why WSPA was not covering the trial. The woman also told the producer she believed the jury would have a difficult time reaching a decision in the penalty phase because there were several jurors for and several against the death penalty. She also informed the producer that Basham had 'acted out' in court and that there were some jurors from the upstate [region of South Carolina]."

The trial judge then questioned the juror, and learned the one call wasn't all:

After consulting with counsel, the jury foreperson, Cynthia Wilson, admitted to calling not only WSPA, but also two other television stations while the trial was in progress. Wilson claimed that she made the calls in an effort to have the media do a profile piece on the dangers of shopping alone at malls.

When the phone records came out, there was even more.  "Wilson made a six-minute call to WSPA, two one-minute calls and a four-minute call to WHNS Asheville, a two-minute call to WYFF in Greenville, a two-minute call to the Greenville News, and a one-minute call to the Spartanburg Herald. These latter two calls to newspapers had not been reported by Wilson during her initial testimony."  And more:  "seventy-one calls between her and two other jurors from September through October 2004," including calls on days of critical testimony.  But Ms. Wilson insisted no one had given her any information (including her husband, who admitted he had researched the case).  Somehow in the nine different post-verdict hearings on this issue in the district court, no one asked her what she told the other jurors in her 71 calls with them.

"Minimal"

The Fourth Circuit started by recognizing its own rule that when jurors communicate inappropriately, prejudice is presumed, and new trials are ordered unless the Government shows there is "no reasonable possibility that the jury’s verdict was influenced by an improper communication."  The Court went on to hold that the Government had established just that, because Ms. Wilson had only sent information out, not brought it in:

First, the extent of the communication, the most important factor, was minimal; several phone calls to different media outlets, none lasting longer than six minutes. The district court found there was "no showing" that the media outlets even provided any information to Wilson. [Citations omitted here and throughout this excerpt].  To the extent Wilson received any information, it was a statement from the WSPA news producer Shannon Mays that she had covered the case in Indiana when Basham and Fulks escaped; such information was obviously cumulative of what the jury had already heard. In addition, the district court found "no evidence" that Wilson "informed the other members of the jury about the phone calls."

We admit the timing of the communication, right before jury instructions, is troubling. Courts rarely find external communication prejudicial, however, where, like here, the communications are "devoid of substantive content." Given the district court’s express finding that Wilson received no substantive information during these phone calls, we cannot say that the district court abused its discretion in denying Basham’s motion for a new trial.

The opinion does not discuss whether Ms. Wilson's campaign for press attention might itself cast doubt on her impartiality, whether or not she learned anything as she pursued it.  Instead, like most juror impartiality opinions, this one turns on two things:  explicitly, the quality of the trial court's inquiry ("a textbook model," said the court) -- and implicitly, the horror of the underlying facts. 

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The opinion is U.S. v. Basham.  Related posts here:

• Juror Disqualification:  The Role Of The Ask
• Jurors And The Internet:  Deliberations' Collected Posts

(Photo by Alexander O'Neill at http://www.flickr.com/photos/aoneill/27718289/; license details there.)

What's The Best Legal Blog In Wisconsin?

  Deliberations!  Or so say the voting readers of the Wisconsin Law Journal, in that paper's recent "Best Of" feature. 

This will come as a shock to the thousands of readers of Althouse, and rightly so, but they'll be comforted to see the part where the WLJ "freely acknowledge[s] that this is not, nor was it intended to be, a statistically valid review of the best our state’s legal community has to offer."  The fact is that the WLJ is kind enough to syndicate most posts of this blog, so its readers may be the only audience in the world that's more familiar with Deliberations than with Althouse.  All that said, it was an awfully nice compliment, and I'm grateful.

As with most "best" lists, one of the best parts about it is the rest of the list:

--Althouse, which came in second;

--The Marquette University Law School Faculty Blog;

--Proof and Hearsay, the excellent law blog of the Milwaukee Journal/Sentinel; and

--Ross Ipsa Loquitur, the legal technology and law practice management blog of Ross Kodner's Milwaukee legal tech company, MicroLaw.

Further consolation to Prof. Althouse's many fans, of course, is that while any blog can get an award once in awhile, it takes an extraordinary blog to lead to marriage.  Very best wishes to her on her engagement -- to a man she met when he commented on her blog!  I myself am already married, I hasten to say.

(Photo by Vicky Brock at http://www.flickr.com/photos/vickyb/2146359449/; license details there.)

What We Still Don't Understand About Lawyers, And Other Leaders, On Juries

Last year I was a little flippant when I wrote about Robert Martin, the New Jersey lawyer, law professor, and state legislator who made the mistake of admitting, in an article about his jury service, that his opinions "swayed other jurors and were extremely influential in the final outcome."

"Well of course they did," I said, and tried to explain that any juror with relevant expertise is an important resource for other jurors, and that any jury containing a lawyer/juror/legislator/professor is thus essentially a jury of one.

"A terrible practice"

You'd think I'd be more respectful now that the intermediate New Jersey appellate court has reversed the verdict, in large part because of Martin's influence.  But if anything, I'm feeling grumpier than ever.  Commenters are holding up the decision as evidence that there's something wrong with the jury system.  Jonathan Turley says the story shows how "lawyers sitting as jurors . . .  is a terrible practice that encourages undue influence by a single juror in deliberations."  Dan Solove at Concurring Opinions says it means "we should have professional juries," who know so much about the law they don't have to lean on a law professor juror. 

These proposed solutions aren't helpful, primarily because nothing about Robert Martin's jury experience exposes a problem that needs to be solved.  What's troubling instead is the appellate court's reaction, and its remarkable naiveté about how juries really work. 

Here's what lawyers and judges need to understand:  Jurors rely on each other's experience and expertise.  They do it routinely, instinctively, constantly.  In the mock trials I've observed, it has happened in every single case, in ways that routinely shift outcomes.  In the real jury deliberations videotaped as part of the Arizona Jury Project, the respected scholars Neil Vidmar and Shari Diamond wrote that 61% of jurors' conversation consisted of "inference exchanges" in which jurors sought guidance from each other about what inferences to draw from the evidence -- guidance that often came from jurors' "personal knowledge of the world."  In a patent case about electricity, the juror who is an electrician will guide the others.  In a criminal case where the defendant claims police abuse, the police officer -- or the juror whose son was arrested -- will be leaders.  In every case, one juror will have more relevant knowledge than the others, and the others will rely on that. 

"A 'tendency' to influence the verdict."  (Exactly.)

The New Jersey appellate court's reasoning, that "Martin's explanations to the jury had a 'tendency' to influence the verdict," puts us on an unmarked path toward reversing every verdict, or at least every verdict that a juror was unfortunate enough to write honestly about.   Nor do Profs. Turley and Solove's solutions get us any closer to a jury of truly equal voices.  If we banned lawyers without banning other juror experts, we'd be making a meaningless distinction -- but if we banned all juror experts, we'd ban a huge portion of the pool.  As to professional juries, Scott Greenfield explains here why they'd lack the one thing we do count on from juries, the public trust.

Then there's the question of why we'd want to silence knowledgeable jurors in the first place.  The whole point of juries is to bring the wisdom of the lay community into the courtroom.  We instruct jurors to use their common sense and their experience.  Trial lawyers who understand the role of juror expertise will often strike a juror expert in a particular case -- but there is no reason why they should be broadly denied the right to serve. 

Of course the jury system isn't perfect.  Scott Greenfield overstates it, I think, when he concludes that "[i]t's a terrible system, and whether it's better than all the others depends on whether today is the day that your ox is gored."  In fact, there's significant evidence that juries work well overall, much of it gathered in the recent book by Prof. Vidmar and Cornell's Prof. Valerie Hans, American Juries: The Verdict.  But Scott has evidence on his side too.  (It's one of his longest posts, and that's saying something.)

The point is that whether or not you like the jury system as a whole, the Robert Martins of the world don't need fixing.  Jurors whose expertise provides guidance to other jurors are not part of what's wrong with juries.  Courts who don't understand how juries work, and respond with draconian urgency when they glimpse a normal jury in operation, are likely to create more problems than Robert Martin ever did.

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Related posts here:

• Experts -- Or At Least Jurors -- In The Box

• A Tale Of Juror Expertise (on Martin's case)

• Law Professors Watch Jurors, And Learn

• News Flash:  Lawyers Are Leaders On Juries

• More Thoughts On Lawyers On Juries

(Photo by Kelly B. at http://www.flickr.com/photos/foreverphoto/2760042027/; license details there.)

Jurors And The Internet: Deliberations' Collected Posts

The juror on Twitter this weekend in Philadelphia's high-profile Fumo trial must have been the tipping point.  Suddenly everyone is talking about jurors on the Internet. 

The New York Times has a front-page article today that has gotten a lot of attention, in part for the wise comments of Douglas Keene, president of the American Society of Trial Consultants.  Meanwhile I've gotten to talk to reporters and columnists from the Associated Press, ABCNews.com, the Philadelphia Inquirer, the Milwaukee Journal/Sentinel's law blog Proof and Hearsay, BBC Radio's The World Today and then their Newshour, and Southern California Public Radio's Patt Morrison Show (Doug Keene was on that one too, with Greenberg Traurig's Scott Bertzyk) -- all in the last two days, with two more interviews coming up.

Visits to this blog are up too, so welcome, new visitors.  For your tweeting-juror-research convenience, there's a new category here, Jurors and the Internet, pulling together all the posts here on the subject.  Over the last two years we've accumulated posts on jurors who blog (lots of those, actually), jurors who read blogs, jurors on Facebook and other social networking sites, jurors on Twitter, jurors researching the case on the Internet, jurors who comment on news stories,  how to ask jurors about social networking, how to find jurors' on-line writing, why it matters, and how to deal with problems when they arise.  The way things are going lately, there will probably be many more.

(Photo by James Cridland at http://www.flickr.com/photos/jamescridland/2769699053/; license details there.)

The One Simple Rule When Jurors Go Online

It happened again.  A juror accessed Twitter from court, and everybody's twitting out about it. 

 In a financial fraud case in Arkansas, a juror named Johnathan tweeted a little before and after -- but not during -- the trial.  In between, his jury awarded $12.6 million to the plaintiffs.  Now the corporate defendant's lawyer claims Johnathan's tweets as grounds for a new trial -- and the Associated Press and How Appealing and dozens of other papers and blogs have picked up the story.  Johnathan didn't sleep last night and took today off from work to try (unsuccessfully) to talk to the judge.  "I'd be in hiding if I thought I did something wrong," he told the Northwest Arkansas Morning News.  "I didn't."

He's right.  There's nothing wrong with his "tweets".  If we weren't so busy making the issue of jurors on the Internet more difficult than it needs to be, this story would never have gotten any play and Johnathan would be sleeping just fine.

One simple rule

Little band of people who read this blog, we can resolve this issue once and for all if we just tell every lawyer and judge we know that there is One Simple Rule for handling every case in which jurors access the Internet.  One Simple Rule.  Here it is:

If the juror had done the same thing off line, what would we do?

Seems too easy?  Let's practice:

• A juror asks her friends on Facebook what her verdict should be.  If she'd just asked a bunch of friends on her lunch hour, we'd -- dismiss her, right, if we were lucky enough to catch it before the verdict?  So that's what should happen here (and did).  This rule really works!  Try it again:
• A juror looks at the scene of the accident on Google Maps Street View.  If he'd gone there himself, would it be okay?  Of course not.  So it's not okay on his iPhone.
• A juror sitting in the waiting room, not yet picked for a trial, tweets a series of bitter complaints about how stupid jury duty is.  If he'd gone to the pay phone and given the same rant to his girlfriend, would we do anything?  Not if we wanted any jurors left.  So we don't do anything about this guy.
• A juror, after a high-profile trial is over, publishes a blog with detailed descriptions of the trial and what the jury said about the evidence.  What if she'd written a book?  She'd be happily collecting her royalties.  So unless her blog itself describes something that was illegal about the deliberations, it's fine.

"It is kinda exciting"

It works every time.  Try it on Johnathan's tweets.  He tweeted twice before he reported at all:

• "Well, I finally got called for jury duty. It is kinda exciting"
• "trying to learn about Jury duty for tomorrow, but all searches lead me to Suggestions for getting out if it, instead of rocking it"

Any different from hundreds of conversations around office coffee machines on any given day?  Not a bit.  He tweeted twice from the waiting room:

• "I guess Im early. Two Angry Men just wont do"
• "Im the only one who brought toys: my laptop and a book"

What if he'd called his mom and told her this?  No problem.  He tweeted that he was on a jury:

• "I got selected!"

I'm pretty sure that every juror in America's history has said that to somebody.  And he tweeted three times after the verdict:

• "And the verdict is ... Penguin Eds can not make fries"

• "So Jonathan, what did you do today? Oh nothing really, I just gave away TWELVE MILLION DOLLARS of somebody else's money"

• "oh and nobody buy [stock in] Stoam [the defendant]. Its bad mojo and they'll probably cease to Exist, now that their wallet is 12m lighter. http://www.stoam.com"

I don't know what "Penguin Eds can not make fries" means, but after the verdict, he can say anything he wants to.  It is, as they say, a free country.

I think Johnathan's tweets are great.  But even if you don't like them as much as I do, you're wasting your energy if you think you can stop social networking jurors.  Go to http://search.twitter.com and search "jury duty"; at any given moment during the business day you'll find people tweeting from courthouses all over America.  The issues they're creating for lawyers and judges are not difficult.  Just apply the One Simple Rule.

__________________

Related posts here:

• If We Strike All The Facebook Jurors, Who's Left?
• Someday, Your Facebook Juror Will Come
• Blogging Jurors Part III:  The Good (I liked parts I and II also)

(Image of the famous Twitter Fail Whale posted by Florian Boyd, http://www.flickr.com/people/fboyd/)

 

The Price Of A Poker Face

It may be the single most frustrating piece of jury advice for young lawyers:  "Watch the jury."  Watch them what?, I used to think.  They're just sitting there!  I felt like I could watch the jury for hours and never see a facial expression.

There are many exceptions, but often, jurors keep very straight faces through even the most disturbing evidence.  A new study suggests this may be harder on them than it is on you, enough so that it might make a difference in your trial.

. . . and now we'll show you -- oh yuck.

This would have been a fun study for ten-year-old boys to plan.  The researchers asked half their subjects to hold a pen between their lips, not telling them the reason for this was to hold their facial muscles still.  Then they showed all the subjects a series of really disgusting images, like a dirty toilet or film of an amputation.  (The press release doesn't say how much they paid the subjects, and I can't find the paper itself.  I hope it was a lot.)

The subjects who couldn't move their facial muscles experienced more negative emotions and held them longer, in what lead researcher Judith Grob called a "negative spiral."  This happened even though the subjects didn't realize that their facial expressions were being blocked by the pen.

The researchers wonder about the implications for Botox®.  I'm wondering about the implications for jurors.  They don't all succeed, but most jurors try very hard not to let their emotions show in court.  When the evidence is difficult, does this effort itself make them react more strongly?  And if so -- or if maybe -- is there something you should do? 

Think about voir dire questions asking not just how jurors feel about disturbing images (you'd ask that anyway, right?), but also how they react, whether they tend to be stone-faced or expressive.  Think too about a sentence in opening statement that gives them permission to react in the moment.  "I know we'll be able to see on your faces how difficult it is to look at those pictures," you might tell them.  For one or two, it might be that momentary "rehearsal" that will let them respond fully when the pictures come. 

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Related posts here:

• A Jungle In There: The Dysfunctional Jury

• When They Look Away

• Jury Notes From Elsewhere (see item one, "Helping jurors with sad facts")

(Photo by Phillie Casablanca at http://www.flickr.com/photos/philliecasablanca/2052720494/; license details there.)

New Study Vindicates Juror Artists

Not everyone approves of jurors who doodle in the margins of their notepads.  (Who can forget the British rape verdict that was overturned partly because a juror "made two sketches of the judge while he should have been concentrating on the evidence"?)  Here at Deliberations, though, we love doodling jurors, defend their honor, and maintain the American Gallery of Juror Art to showcase their best work.

It is with delight, then, that we report on this new study, strongly suggesting that doodling jurors are better jurors:

Doodling while listening can help with remembering details, rather than implying that the mind is wandering as is the common perception. According to a study published today in the journal Applied Cognitive Psychology, subjects given a doodling task while listening to a dull phone message had a 29% improved recall compared to their non-doodling counterparts.

Apparently spontaneous doodling, like jury deliberation, is hard to test directly, so researchers told half their subjects to "shade in shapes on a piece of paper" while they listened to a tape with a long list of names and places.  The other half just listened, and both groups tried to write down the sixteen names and places that were supposedly connected to a party.  Asked to remember names afterward without looking at their lists, "[t]he doodlers [okay, shape-shaders] recalled on average 7.5 names of people and places compared to only 5.8 by the non-doodlers."

"Sufficient to stop daydreaming without affecting performance"

The researchers' explanation for this makes a lot of sense.  When a task is boring, your brain will inevitably do something to cope, and that something usually involves tuning out:  daydreaming, planning ahead, reminiscing.  When your brain's coping strategy is doodling, though, you can still pay attention, and so you retain more:

"[S]tudy researcher Professor Jackie Andrade, Ph.D., of the School of Psychology, University of Plymouth [said,] 'Daydreaming distracts them from the task, resulting in poorer performance. A simple task, like doodling, may be sufficient to stop daydreaming without affecting performance on the main task.'"

So doodle on, juror artists.  And send your work here when the trial is over.

______________

Related posts here:

• Juror Art Spoils Rape Conviction?

• American Gallery of Juror Art archives

(Illustration by Christine Buckman Tillman from the American Gallery of Juror Art; all rights reserved to Christine Buckman Tillman.)

Is Batson Wrong?

Just my luck.  I leave town for two days, away from the Internet for once in my life, and the blogosphere decides to spend the whole time talking about peremptory challenges to potential jurors. 

Peremptory strikes, the cons and pros (and pros and pros)

It started with an article by Nathan Koppel in the Wall Street Journal, discussing proposed reforms to the peremptory challenge system, including eliminating them altogether.   The reformers point to a problem that's real:  knowing they aren't allowed to strike jurors because of race, gender, or ethnicity, lawyers contort their explanations in ways that seem to be either ridiculous excuses or transparently racial code.  One of the casualties is the credibility of the whole justice system.

Bloggers on trial law took note.  The WSJ Law Blog simply reviewed the article, and Juries used a long quote.  But Walter Olson at Overlawyered said he's long supported getting rid of peremptories, and was tempted too by one reform idea in the WSJ article, limiting them to three per side, no matter what kind of case or where. 

Defenders of the peremptory strike ran to their keyboards and wrote one terrific post after another.  It may have been the best two days for jury blogging in history.  There were two posts from Mark Bennett (here and here), Scott Greenfield of course, two different authors from the blog Popehat (Patrick and Ken), and in his great new blog JuryVox, consultant Dennis Elias weighed in. 

I favor peremptory strikes.  I'm a practicing lawyer, not a theorist, and I know that in the courtroom, the peremptory system adds to the fairness and efficiency of trials, even when so many lawyers use it poorly.  And I can't imagine a thing I could say in favor of peremptory strikes that wasn't said more cogently in one of those great posts last week. 

The problem with Batson

One thing does seem worth adding, though -- a thought that isn't really part of the discussion, but instead about the reason we're having it.  It isn't just clumsy, racially motivated lawyers who have driven us to have to defend peremptory strikes.  It's Batson itself, the case that prohibited racially motivated strikes in the first place.

Is Batson wrong?  Not in its intent, or its immediate result.  In Batson's trial -- and many others, then and sometimes now -- the jury selection was simply racist.  The Batson court was right to end this shame.   But the court's reasoning left us with a false choice that is itself tainting jury selection today.

The Batson court divided the universe of peremptory strikes into two categories:  those with a "racially discriminatory purpose," and those that are "racially neutral."  If we can infer from your strikes that you're "discriminatory," the only way to save them is to convince the judge you're "neutral."  The literature, case law, and blog posts on Batson for the most part accept this distinction without question -- like last week's WSJ article, which talked about "the tricky question of when peremptory challenges cross the line into discrimination."

 But the distinction is wrong.  You know it's wrong.  Consider:

• You're defending a black man in a knife assault case.  A black prospective juror says two of her family members have been assaulted with knives in separate incidents.  She and her extended family all live in a high-crime neighborhood that is almost entirely African-American, and she has started an anti-crime program on her block.

• You're defending that same case and a white prospective juror says she avoids driving through the inner-city neighborhood where the assault happened, and has never known anyone who was arrested for a serious crime.  She lives in an affluent white neighborhood. 

• You're defense counsel in a medical malpractice case involving medical research studies, and an African-American prospective juror tells you she is highly suspicious of doctors and tests.  You're aware of the studies (here's one) showing that many African-Americans feel deep distrust of medicine and medical research.

 

In each case, is your peremptory strike meant to be "racially discriminatory," or is it "racially neutral"?  It certainly is not meant to discriminate, and I'd argue strongly that each of those strikes is appropriate.  But neither is it "neutral," in any sense except the way that courts applying Batson have come to redefine that word as they try to shoehorn strikes into one label or the other.  It's something we need another word for, like "racially complicated." 

Americans spent most of the election year 2008 teaching ourselves every day that race matters -- in ways we expect and in ways we don't, in the way we influence each other in groups and the way we think privately.  It matters because race, and the economic and social status that often come with race, are among the primary forces shaping each person's experiences.  That lesson has made our conversations about politics a lot more interesting -- but when we talk about other issues, like jury selection, it's as though we paid no attention at all.  "Discriminatory or neutral?" is a question with no right answer, and when we make lawyers answer it anyway, we shouldn't be surprised when the responses sound silly.

______________

Related posts here: 

• Challenging The Peremptory Challenge: Snyder v. Louisiana

• Batson, Day To Day

• A Helpful Way To Think About Race

 

(Photo by Photocapy, one of the very best photos on Flickr, at http://www.flickr.com/photos/photocapy/301093262/; license details there.)