Deliberations

And Now, The Rest Of The Judge's-Mother-On-The-Jury Story

About a year ago I wrote a post about a Wisconsin court of appeals opinion affirming a small-town trial judge who refused to strike his own mother from the jury for cause.  The post was fun to write, and I remember it fondly because other than my Blawg Review post, it's the only post here that Above The Law ever linked to, so I got all kinds of visitors from it.

To be honest, the opinion itself -- like many unpublished opinions -- wasn't all that interesting.  But today the Wisconsin Supreme Court reversed it, and that opinion is a good read.

There are three opinions, actually.  The three concurring justices (in two opinions) wanted simply to correct the trial judge's mistaken belief that there was not "any legal basis for excusing" his mom, without binding future judges to rule one way or the other on their own mothers if the occasion arises.  The three majority justices¹ went much further, holding that a judge's-mother-juror is always unconstitutional:

[W]e conclude that the defendant was deprived of his right under the Sixth Amendment to the United States Constitution and Article I, Section 7 of the Wisconsin Constitution to be tried by an impartial jury and accordingly reverse the conviction and order a new trial.  A presiding judge's mother serving as a juror is a special circumstance so fraught with the possibility of bias that we must find objective bias regardless of the particular juror's assurances of impartiality.

Together, the opinions are a thought-provoking illustration of two viewpoints on the trial judge's task in jury selection.  If you live in Wisconsin, they're also a little handbook, since they're the most current synopsis of the "objective bias" and "subjective bias" framework Wisconsin courts use to analyze jury selection issues.

Your move

There's a strategy component to the case that's interesting too.  After Judge Eaton (that was his name) denied the motion to strike his mom, defense counsel decided not to use a peremptory strike on her, and left her on the jury.  Under current Wisconsin law, that was the only way to preserve the issue on appeal.  The case that says so is State v. Lindell, which sets out the chess game clearly:  "If the circuit court erroneously fails to exclude a prospective juror who should be struck for cause, the defendant may take his or her chances and refuse to exercise a peremptory challenge, wait until the jury renders its verdict, appeal if he or she does not like the result, and then receive a new trial."  The prosecutor is a player too:

Anticipating the defendant's possible strategy, the State has three courses of action: (1) It can join the defendant in urging the court to remove a juror for cause; (2) it can exercise one of its own limited peremptory strikes to remove a juror who should have been struck for cause; or (3) it can do nothing and risk a new trial if an appellate court finds that a biased juror sat on the jury. 

That quote is from Lindell.  The Supreme Court's opinion today is State v. Tody.

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¹ If you're counting, you got six justices, all concurring in the result but split on the precedent they wanted to create.  That's because one of the seven justices didn't participate.  I'm not enough of an appellate guru to figure out why the majority opinion is a majority opinion under those circumstances, but it sure sounds like one.  If you know, please comment below.

 

Susan Boyle In The Eye Of The Beholder

You've seen it, right?  Tens of millions of people have.  It's the video of plain, middle-aged Susan Boyle, stunning the "Britain's Got Talent" judges and then the world with her lovely voice. 

Exceeding expectations

There are at least two jury lessons in her story.  One is already covered at the Situationist and at Eric Turkewitz's New York Personal Injury Law Blog, so I can be quick with it:  expectations are critical.  If Susan Boyle had been beautiful, beautifully made up and coiffed, and presented to us as a professional opera singer, no one but her family would have watched her YouTube video.  (The Situationist describes an experiment "in which persons listen to acclaimed violinist Joshua Bell–either while he is disguised as a subway peddler or while performing normally at a symphony," and the difference "enormously influences how they regard his music.")  It's what some researchers call the "talking platypus phenomenon" -- the idea that we judge people not on their skill and talent alone, but on their skill and talent as compared to what we expected. 

Eric explains ways to use this knowledge.  It's not only the strategic tool he describes, though; it's also a confidence builder.  If you're, say, a woman, and concerned about the research suggesting that jurors perceive male lawyers as more competent than women, here's your answer.  Exceed expectations -- and if you're good, you will -- and the research suggests you'll actually get a "bump" in jurors' perception.  The same is true for anyone whom jurors might judge harshly at first sight.

The eye of the beholder

The second lesson doesn't have much to do with Susan Boyle -- which is the point.  When everyone is talking about somebody, it's easier to see something we often miss.  Each person is different, and therefore each person's impression of the thing we're describing is different. 

So Susan Boyle changes depending on who's looking at her.  The New York Times notes that she's "become a heroine not only to people dreaming of being catapulted from obscurity to fame but also to those who cheer her triumph over looks-ism and ageism in a world that so values youth and beauty."  Meanwhile to an unromantic Milwaukee Journal/Sentinel business reporter, she's a sales driver; an article there this week describes how her fame has boosted local sheet music sales.  An op-ed piece in the Washington Post collects other reactions. 

My favorite demonstration of the Susan-Boyle-is-what-you-make-her effect was in the roundtable discussion on This Week With George Stephanopoulos on Sunday.  (The Susan Boyle conversation starts with about 2:40 left in the video.)  From four well-known pundits, we got four Susans: 

• To Peggy Noonan, she was about reality television and the way we respond to it.  "Sometimes you know you're being manipulated a little bit; you know it, you watch, and you still burst into tears."

• To George Will, she was all that's great about democratic government.  "It plays to a perennial belief that democracies are bumpy with undiscovered talent, and it happens to be true."

• To Sam Donaldson, she invoked our personal ambitions.  "All of us Clark Kents want to be Superman.  We want more Harry Trumans to be great presidents.  I myself want to sit down and play piano at the Kennedy Center, and play so that Rachmaninoff's ghost turns up his ears."

• To Cokie Roberts, she was about authenticity.  "I couldn't get over the contrast between her and the judges.  . .. They were Barbie and Ken; they were the most fake-looking people I've ever seen.  And there she was, this totally genuine person.  It was so refreshing."

To me, she's about us -- how different we are, and how differently we see things.  One of the biggest mistakes lawyers make in jury trials is to assume that if they like the key witness and think the evidence is strong, the jurors must react the same way.  They won't, because each juror is different.  Call it the Rule of Susan Boyle.

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Related posts here:

• Beauty And The Juror, Parts I and II

• Sometimes It's Hard To Be A Woman

• What We Are Is What We See

(Photomosaic image by Gilberto A. Viciedo at http://www.flickr.com/photos/viciedo/3450613461/; it's amazing at full size, tiny tiles of butterflies, flowers, and birds.  License details on the Flickr page.)

Sleepers

Two jurors who fell asleep have been replaced at an Ohio financial fraud trial heavy in testimony about bookkeeping and check-writing.

That's the opening line from an Associated Press story out of Akron yesterday, but unless you're following that particular trial (of former executives of Evergreen Homes), the main thing that's newsworthy is that these sleeping jurors made the paper while other jurors slept in trials all over America. 

It's been covered here before, but it's worth revisiting.  If you're a trial lawyer, you've seen jurors sleeping.  The key points are:

1.  People are tired.  Really, really tired.  They're holding two jobs, or staying up late with kids, or standing up all day, or all those things.  Put one of those folks in a chair, in a quiet room, with no talking required or even allowed, and it's amazing they stay awake as long as they do.  And like many things, our national fatigue is getting worse, not better.  The National Sleep Foundation's 2009 survey concludes that "The number of people reporting sleep problems has increased 13% since 2001. In the past eight years, the number of Americans who sleep less than six hours a night jumped from 13% to 20%, and those who reported sleeping eight hours or more dropped from 38% to 28%."  (The National Sleep Foundation is funded in large part by mattress and drug companies, but they claim research independence, and even if you discount their numbers, people are tired.)  On top of our other worries, nowadays we're losing sleep over the economy.  "One-third of Americans are losing sleep over the state of the U.S. economy and other personal financial concerns," the NSF said in March. 

2.  Fatigue affects decisionmaking.  Fatigue not only impairs memory and learning generally (Newsweek had an article last week summarizing recent research), but a a 2007 study suggests it specifically impairs moral judgment. 

3.  You can often spot fatigue in voir dire if you remember to look.  Tired jurors often look tired, will say they're tired, and will make you tired when they describe what they have to do in a typical day.  You'll miss it if you're focus only on themes and attitudes in jury selection. 

4.  Sustained sleepiness is reason to dismiss a juror.  In most courts and most states, this is a no-brainer.  A dozing juror can't hear the evidence and thus cannot decide the case on the same evidence as the others.  If a juror who keeps falling asleep isn't dismissed, it's usually because a lawyer forgot to ask, unless the trial has gone on so long and the panel is so small that the dismissal would mean (or threaten) a mistrial.

5.  You might be boring.  As we've noted, people are tired, so if a juror falls asleep while you're talking, it's usually not entirely your fault.  But think about whether it partly is.  The juror was awake earlier, right?  And if one juror slept through your expert's testimony, how many others daydreamed?  Even if your trial is "heavy in testimony about bookkeeping and check-writing," like that Akron fraud trial, you need to figure out how to make it interesting -- preferably before anybody falls asleep.

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Related posts here:

• Are You Sleeping, Brother Juror?

• Sleep And Moral Judgment

(Photo by Tambako the Jaguar at http://www.flickr.com/photos/tambako/853748895/; license details there, and follow the link to see the rest of his animal pictures, which are wonderful.)