Deliberations

The Dangers of “Sending a Message” Through Damage Awards

Colleen and Robert Middleton suffered an unspeakable tragedy.  In 1998, their 8 year old son (Robbie) was allegedly set on fire by a sexual predator named Donald W. Collins.  While he survived the initial attack, Robbie Middleton died 13 years later of cancer that originated from the skin grafts utilized to treat his burns.

The criminal case inexplicably disintegrated (read more about it here) , so the Middletons sued Mr. Collins for wrongful death.  After seeing videotaped testimony from the now deceased Robbie, a very emotionally charged jury found in favor of the plaintiff.  However, they decided to “send a message” by awarding a very, very large award.  $150,000,000,000.00.  That is $150 billion if you lost track of the zeros. 

THE FUTURE OF TRIAL CONSULTING: Deep Thoughts After the 2010 ASTC Conference

 As I fly home to Seattle from the American Society of Trial Consultants (ASTC) conference in Minneapolis; I am left with two nagging questions:

1)      How can I shamelessly promote the 30^th Annual ASTC Conference next year in Seattle between June 9^th and 12^th, 2011?

2)     What can be prognosticated as to the future of the Trial Consulting profession?

Obviously, I quickly answered the first quandary.  (Shameless promotion accomplished!). 

However, the second left me pondering to come up with a few guesses…

John Grisham will write a bestseller called ‘The Consultants’

Set in the Windy City, it’s a story that centers on an all-female trial consulting firm (a la Charlie’s Angels) with the protagonists living a secret double-life.  By day, they work huge corporate cases and hobnob around the world with the beautiful people.  However, by night, they secretly devote their powers to innocent plaintiffs and death penalty defendants.  It will become a NYT bestseller and make it on to Oprah’s night stand.

Reality TV Trial Consultants will take center stage

Forget a jury, which television judge and timeslot would best fit your case?  These specialized consultants will help you choose: Judge Judy, Judge Joe Brown, Judge Mathis or Judge Reinhold?  With the right decision, you could find yourself some fortune and fame (or at least your old futon and five minutes you can TiVo.)

John Grisham’s book ‘The Consultants’ is turned into less appealing movie

Like most Grisham books-turned-movies, it is disappointing.  Rather than preserving the brilliant character-development and nuanced plot twists, the movie is heavy handed and makes terrible casting choices (Lindsey Lohan, Tara Reid and Paris Hilton play The Consultants).  As a result, the film goes straight to video.

Okay, most kidding aside, here are a few real predictions (or at least hopes)…

Trial consulting for cases without trials

The best national assessment of civil case outcomes (state and federal) was performed in 2005 by the USDOJ Bureau of Justice Statistics.  The most cited result from that study was the value "3%" (or conversely, 97%).  Only 3% of cases filed were actually decided by trial.   In other words, you have a better chance of randomly selecting a One-Eyed Jack out of a deck of cards than having your case settled by a jury.

I predict that litigation consultants will continue the rocketing trend toward offering affordable services designed for cases that settle.  This includes assistance like: witness prep for depositions; case narrative and presentation strategy; video/PowerPoint/demonstrative production for ADR; negotiation tactics; preliminary case testing with small focus groups; and much more.

We will educate our jurors 

Jurors have far more communication ability and knowledge than ever before.  While the media tends to focus on jurors who Tweet, a more important issue is jurors who Google.  Generally speaking, rules are most effectual when they are explained.  Saying “Don’t blog or Google” is not nearly as successful a proposition as saying “Here is why we are asking you not to blog or Google…”  I predict that the courts will realize this and teach jurors rather than simply making unenforceable threats of punishment.

Further, I foresee the courts being more liberal with their allowance of juror questions to avoid confusion.  I have seen some “jury instructions” that would make constitutional scholars take pause.  It is unfair to expect simple English-language speakers to understand legalese without the help of a translator or dictionary.

We will get to know our jurors

My last post lauded the merits of extending voir dire and pointed to research studies (especially Judge Mize's study) that demonstrate this necessity.  As time goes on, I hope that this message gets carried further and is heeded widely.  I predict that more and more judges will continue to sacrifice the time required for a solid voir dire in the interest of seating the most impartial jury.

I believe there are some who would prefer our juries were composed of legal robots that simply interpret “the facts and law” before printing out a verdict.  This would be great, except that most cases present very different understandings of “the facts and law” which must be interpreted and weighed by people on the jury.  Given that “human nature” is required to fairly weigh “the facts and law”, it is that “human nature” that we must explore with more extensive voir dire and questionnaires.

(In my prediction, these legal robots would then get self-awareness and try to take over the world.  We would toil under the foot of our "logical overlords" until The Consultants organized a resistance to save us.  But I’ve said too much.)

Blogger: Matt McCusker

 

What To Do If A Juror Tries To Bribe You

Some stories don't need a fancy essay.  Like this one, from the AB A Journal: 

A federal juror has been charged with bribery and contempt of court after allegedly seeking money from a defense lawyer in a tax evasion case against a St. Louis-area automobile dealer.

Dorothy Hendricks is accused of calling a unidentified defense lawyer in the U.S. Virgin Islands case over a $300 million tax shelter there and asking the attorney to put a price on a not guilty verdict, according to the Belleville News-Democrat and the St. Louis Business Journal.

Deliberations' tip of the day:  Do what this lawyer did.  "The lawyer reported the March call to the presiding judge the next day."  And got a not-guilty verdict anyway!  Poetic justice.

(Photo by Dave-F at http://www.flickr.com/photos/frield/1507671920/; license details there.)

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.

___________________

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.)

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. 

___________________

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.)

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/)

 

Juror Love

Every facet of life makes its way into the courtroom eventually.  So it shouldn’t be surprising that jurors fall in love:

• Sometimes they fall for each other.  It happened last week in Denver,  when two jurors were sent home from Alex Midyette’s child abuse trial after they were reported “walking arm-in-arm together and giggling.”  In St. Louis in December, Roberto Dunn sought a new trial because two jurors had sex with each other while the group was sequestered.  Another juror said she could hear them through the hotel walls.
• In January, the story was the juror who married the prosecutor.  The prosecutor called the juror for coffee after the trial was over, and defendant Ryan Thompson now claims that’s grounds for a new trial.
• Then there was the juror who said she fell in love with the defendant.  "When I feel the need for sex I just get it and I always get what I want," said one of her strange letters to Ricky Vasquez, after she’d agreed to the verdict convicting him. 

There’s a watch-the-jury lesson here that’s pretty obvious.  But there’s a more subtle lesson as well.  In all three of these cases, the evidence was awful – so awful, you’d think jurors wouldn’t be able to think about anything else.  Alex Midyette was accused of killing an 11-month-old baby who had 37  broken bones.  Roberto Dunn’s girlfriend’s mother was stabbed to death “with several kitchen knives,” the newspaper story says.  Ryan Thompson was a teenager accused of shooting and killing another teen at a party in a small Connecticut town.  And Ricky Vasquez was accused of robbing and killing a 28-year-old man and dumping his body in the middle of the street as he and a friend drove away laughing.  And yet, in the middle of that grim ugliness, there was love, or some version of it. 

Not about you

Thus the lesson:  If jurors’ minds could wander from the evidence in these trials, we can safely conclude that they wander in every trial.  Jurors walk into the courtroom with complicated thoughts, from complicated lives, and they don’t and can’t set all that aside just because you’re talking.  The work it takes to make your evidence and argument clear against that competition is often far beyond what most lawyers think it will be.

__________________

Related posts here:

• If These Jurors Could Talk
• Blawg Review #127 (especially the section “remember they have lives”)

Elsewhere, these stories were picked up in a lot of places (there's an endless fascination with misbehaving jurors), but Gideon has a special touch in discussing juror love, as in his post on the Dunn trial.  Things That Make You Go Hmmm... has the "arm-in-arm and giggling" story here. 

(Photo by Dave at http://flickr.com/photos/vintagehalloweencollector/3214986231/; license details there.)

If We Strike All The Facebook Jurors, Who's Left?

It’s one thing to understand that jurors might be on Facebook.  The next step is to decide what to do when you find out they are.

“Sitting in hell”

If you’re on Facebook yourself, you know that Facebook starts your “status update” for you.  Mine starts “Anne Reed is . . . ” and then I’m supposed to finish the sentence.  Anne Reed is happy; Anne Reed is home because school is closed; and so on.  (In a fairly recent improvement, you can backspace over the “is” and use another verb if you like.  Anne Reed should exercise more, something like that.)

Last week in Cincinnati, says the Cincinnati Enquirer, potential juror Barry Price accessed Facebook from the courthouse.  “Barry Price is . . . ,” the update began.  “[S]itting in hell . . . aka jury duty,” Price typed, and hit “Update.” 

Well-known Cincinnati plaintiff’s lawyer Stan Chesley (at least one news story calls him “torts king”) had a computer in the courthouse too, and he found the update.   The next thing Barry Price knew, he was finished with jury duty in Chesley’s personal injury trial; the trial judge granted Chesley’s motion to excuse him.  The Enquirer story suggests, but doesn’t clearly say, that it was Price’s negative view of jury service, or at least his willingness to share it on the Internet, that sent him home.

“Jury duty freaking sucks!”

If that’s the rule, we’re in big trouble.  If we strike everybody with an I-hate-jury-duty status update somewhere on the Internet, we’re going to run out of jurors really fast.

As I write this, Twitter – a social networking site that’s much like Facebook except it’s nothing but status updates and it’s much less private – contains 108 updates including the phrase “jury duty” in the last eight hours alone.  (That’s as far back as my Tweetdeck search goes.)  They are, as anyone would guess, overwhelmingly negative.  Some of the tamer samples:

• Yay no jury duty!
• ugh...I might have to miss class tomorrow, for jury duty :(
• well I managed to get off jury duty. all I had to do was wear a man-baby outfit.
• Jury duty freaking sucks! I am so bored...
• I have jury duty tommorow [sic]- time to turn on the Texan, "I love god, guns, and the e-lectric chair. And I hate liberals. Amen."
• DAMMIT! I got a jury duty summons. Any suggestions to come off like a raving lunatic are appreciated.

(I’m not linking these because these folks weren’t counting on being blogged, but if you use a Twitter search engine, they’re there.)  Another large fraction of these juror updates isn’t exactly negative, but hardly shows the respect for the process the founding fathers envisioned:

• Jury duty tomorrow = lunch in Chinatown. And it's for federal court so it's 3 days or one trial. Meaning 3 days of Chinatown lunch. Nice.
• Jury Duty just got better -- free WiFi
• well, i misplaced the mags! i know i used the jury duty badge as a bookmrk in 1 of them, if i could find those mags. ill look tonite

Yes, there was one who said, “Jury duty is quite an interesting and amazing process. For those who think you'd hate it you might be surprised at how much you learn.”  But you’d have to go through an awful lot of Tweets to find her – unless more jurors made it easy, like this juror who collected her jury-duty status updates in a single blog post today. 

What’s your strategy?

Don’t get me wrong.  I suspect Mr. Price’s dismissal was an overreaction, but I doubt Stan Chesley – that’s the plaintiff’s lawyer – overreacted.  Mr. Price is described in the Enquirer story as “a systems analyst for Procter & Gamble.”  Both the technical job and the Fortune 50 employer would be red flags for most plaintiff’s lawyers in voir dire.

______________

Source note:  Both Court-O-Rama and Juries got to this first.  Both blogs also have news:  Juries has moved from Blogspot to Typepad, so you may have to resubscribe; and happy birthday to Court-O-Rama’s Anne Skove.

(Photo by Alpha at http://flickr.com/photos/avlxyz/2077892948/; license details there.)

Someday, Your Facebook Juror Will Come

I swear they keep this blog in business, those social networking jurors. 

I didn't set out to cover that particular jury issue so heavily, but from the first week, when I set up searches to find topics to cover here, the juror blogs started showing up in my news feeds, so I wrote about them.  Today, although (really) I write about other things, it's the most common thing I'm quoted or interviewed or asked to speak on, and there are probably more posts here about social networking than any other topic.

"He beats his hand on the jury box."

So here come two more online jurors this week, frightening lawyers everywhere.  There's the Facebook juror in England who put a poll on Facebook to help her decide guilt or innocence.  And there's the blogging juror here who knows she can't write about the case, but thinks that "doesn't mean I can't give people a a glimpse of the people I am dealing with," and so gives a great sketch of each person in the courtroom.  ("The lead defense lawyer. When he is trying to make a point when questioning a witness he beats his hand on the jury box.  "So you *wham* are telling me *wham* that blah blah blah blah blah  BLAH! *WHAM*" )  The Facebook juror was dismissed; the word-sketch artist is still sitting, as far as we know.  (And I have to admit, I hope so.)

This is going to happen to you.  It's going to happen to you.  It's going to happen to you.

Four things to add to your trial task list:

1.  Ask.  Ask jurors in voir dire whether they write on line and if so where.  If you get a "yes" to that question, you have several tools:  (1) the judge can strongly impress on that particular witness that she is to write nothing about the trial, not even character sketches; (2) the lawyers can keep an eye on the juror's site during the trial; and (3) if there's time, you can jump on the juror's site before the jury is chosen to see if it contains anything of concern. 

2.  Look.  Simply running searches by jurors' names -- before the jury is seated if possible, after if not -- you can find non-anonymous blogs, of which there are many. 

3.  Watch.  Even if you've asked and looked, you can still have jurors writing about your trial that you didn't know about, on anonymous sites they did not disclose.  If you have enough people, assign someone to set up standing searches to try to catch these, using terms the juror might choose -- the location of the court, and the type of case it is.  It also makes sense to check on-line comments to news stories about the case, where you have the staffing to do it.

4.  Relax.  It's possible that none of these techniques will find the Facebook juror or the sketch artist on your trial.  Does that mean we're in a frightening new world with intolerable new rules?  I don't think so.  Remember that in the old days, both jurors probably would have had talked about the case in the same way, but in conversations with their friends, not on line -- and you wouldn't have found out about those either.  If anything, it's easier, not harder, to find chatty jurors than it was when they simply talked.

__________________

Some of many related posts here:

• The Wasteland, one of the first posts on this blog
• A Trial Lawyer's Guide To Social Networking Sites
• The "blogging jurors" series, starting here

Scott Greenfield's take is here:  "It's clearly time to change the instructions to cover this, and means that we have yet another responsibility to check the internet each night during trial to see what our jurors are saying and doing.  Like we had too much free time during trial before."  Exactly.

(Photo by avlxyz at http://flickr.com/photos/avlxyz/2077892948/; license details there.)

Lawyer Jokes In The Jury Room

The sad thing was they weren't even particularly good lawyer jokes.  Stuff like this:

From the moment of birth, sharks' skin is tough and rough -- covered with thousands of tiny hard teeth call denticles that abrade any passerby made of softer stuff. Lawyers are also thick-skinned. Easily identified by their humorlessness and abrasive personalities, they are the bane of many social gatherings.

There's no way, then, that "Sharks And Lawyers:  A Comparative Study" would have turned up in a published opinion of the First Circuit Court of Appeals last week -- except that a printout of the Internet page was found in the empty jury room after jurors convicted Benito Grullon of conspiring to distribute cocaine.

. . . and then the lawyer said, "professional courtesy"!

Grullon's lawyer asked for a mistrial, but the First Circuit wasn't troubled (I've omitted citations):

[T]he lawyer joke posed no real danger of prejudicing the jury against the defendant, having nothing to do with the issues in the case or any more connection with one side's counsel than the other's.

Nor was the judge required to hold an evidentiary hearing to explore the subjective reactions of the jurors. Whether to hold such a hearing depends on a practical estimate--particularly whether it is likely to serve any useful purpose. Here, there was no such likelihood, absent which there are affirmative reasons to avoid questioning jurors about their thinking.  . . . So there was no error at all, let alone a patent abuse of discretion.

Maybe if it had been funnier.

Lawyer shark photo by Jeff Kubina at http://flickr.com/photos/kubina/131673530/; license details there.

Update: Scrushy "Juror E-mails" Forged?

Remember how the corruption conviction of HealthSouth's Richard Scrushy and former Alabama governor Richard Siegelman was called into question when it looked like the jurors were researching the case on line and E-mailing their findings to each other?  Sure you do; I wrote about it here, a year ago tomorrow.  One of the E-mails went:

....judge really helping w/jurors...
still having difficulties with #30
...any ideas???
keep pushing on ur side
did not understand ur thoughts on statute
but received links.

This is the rat, that ate the malt . . .

Or I should say "purportedly went," because the government is now saying that the E-mails are fakes.  Or I should say "now saying they previously determined the E-mails were fakes," because -- man, this is complicated.  Even tracking the cast of characters is complicated, long before you get to the substance of this story.  Listen to the Birmingham News try to explain it:

According to the new information from the Justice Department, at least five co-workers of the two jurors in question received in the mail from unknown sources paper copies of what appeared to be e-mails between the jurors.  Those co-workers notified the two jurors, who then notified the Marshals Service. The Marshals Service notified the lead prosecutor in the case, who asked the postal inspector to determine who mailed the copies to the jurors' co-workers. The prosecutor then transferred oversight of the e-mail investigation to another lawyer in his office not involved in the Siegelman-Scrushy prosecution.

Who lived in the house that Jack built.  Wait, that's not it.  What I mean is that the postal inspector decided last spring that the E-mails were fakes, and told the trial judge at the time, but no one told defense counsel until now.  The Birmingham News again:

An investigation by a postal inspector found the e-mails purportedly exchanged by jurors during former Gov. Don Siegelman's 2006 criminal trial were forged, but the results of that investigation were shared with the judge and not the defense attorneys, according to the U.S. Justice Department.

In a letter to the defense team earlier this month, a top official in the appellate division of the Justice Department disclosed that a representative of the U.S. Marshals Service told the judge about the postal inspectors' findings in April 2007, a time when the prosecution and defense were arguing over whether the e-mails improperly influenced jury deliberations and warranted a retrial.

The Justice Department on July 8 sent the new information to the attorneys for Siegelman and co-defendant Richard Scrushy "out of an abundance of caution" and said it did not change the government's opinion that a new trial was unnecessary, according to the agency's letter.

Now the late disclosure itself is a defense argument, and the case goes on.  In particular, Siegelman, a Democrat, claims the whole prosecution was politically motivated.  TalkLeft is covering that aspect of things, for example this post today. 

(Photo of a very cute rat by Phil at http://www.flickr.com/photos/asplosh/544454437/; license details there.)

What Is The Sound Of One Juror Clapping?

How do you know the trial isn't going well?  When a juror applauds your opponent's closing rebuttal, that's a pretty good clue.

The California Court of Appeal described the scene:

During his rebuttal argument, respondent's trial counsel argued that appellant's witnesses were lying about many issues, including the reason it lost the new account.  Then counsel read to the jury the standard instruction that, " 'if you decide that that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said.' "  At that point, Juror No.2 applauded by clapping her hands.  Respondent's counsel continued his argument without commenting on the juror's applause.

"This must have left appellant's counsel with a sinking feeling," the court noted, with admirable empathy.

The trial judge did the smart thing and quizzed the jurors, each separately.  (As we've discussed, whether juror glitches lead to reversal often depends on how well the trial judge did "the ask.")  Nothing much turned up:

When questioned about it, Juror No. 2 explained, "I was pleased with the statement that was read whereas if it was proved that somebody lied on the stand that all of their testimony could be dismissed."  Each of the remaining jurors remembered the incident; no one stated that it would impact their impartiality.  Jurors found the applause odd, embarrassing or an expression of stress.  None could recall the statement that prompted or immediately preceded the clapping.

So the trial judge let the jury finish the trial, and refused a new trial even after another juror signed an affidavit saying No. 2 was "physically confrontation [sic], putting her face very close to me, speaking very loudly and pounding on the table," and that she had "referred to her own expertise in accounting to support her arguments to the jurors."

The Court of Appeal had no trouble upholding all of this, ticking off the applause, the pushiness, and the claim to higher accounting knowledge as just part of an imperfect world:

"The jury system is fundamentally human, which is both a strength and a weakness. . . .  Jurors are not automatons.  They are imbued with human frailities as well as virtues.  If the system is to function at all, we must tolerate a certain amount of imperfection short of actual bias.  To demand theoretical perfection from every juror during the course of a trial is unrealistic." 

The case is Bandana Trading Co., Inc., v. Quality Infusion Care, Inc., decided yesterday.  It's noted also at California Appellate Law Blog.  That last quote is from In re Carpenter (1995) 9 Cal.4th 634.

(Photo by Kevin Flanagan at http://flickr.com/photos/kevflanagan/364568552/; 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.)

Ever Wonder What This Blog Sounds Like?

Wonder no more, because today's post is audio.  I was delighted to be invited back to "Lake Effect," the daily interview-and-arts program on Milwaukee's public radio station WUWM.  The interview is here; it's about blogging jurors, and the conversation pulls together several points and themes from prior posts on this site. 

If you have time, listen to the other guests too.  They include the Milwaukee Journal/Sentinel's Tannette Johnson-Elie, who writes wonderfully about the strengths and challenges of Milwaukee's minority-owned business community; authors Alice Sebold and CJ Hribal; and the research director for the Milwaukee Public Policy Forum, which is reporting on problems faced by smaller school districts here. 

What's a "lake effect," you ask, since you're not all from around here?  It's when spring takes forever -- I mean forever -- to arrive in the towns and neighborhoods along Lake Michigan's shoreline.  "Cooler near the lake," the weather folks say day after day.  It will drive you crazy, but the fall almost makes up for it, since winter comes a little later to the shoreline too.

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

The Pros And Cons Of Death: The Bible In The Jury Room

Juries rely all the time on their personal experience and knowledge -- but they're not allowed to rely on authority or evidence beyond what they hear in trial.  A Ninth Circuit opinion today shows that sometimes the line between the two means life itself.

For and against

It's the sentencing phase of Stevie Fields's 1979 death penalty murder trial in California.  The jury foreman's name is Rodney White.  After the first day of deliberations, White goes home, pulls out his Bible, and starts making notes.  The next day, he shares with other jurors the handwritten"For" and "Against" list he has made.  "For" death, that is, and against death.  His notes list these pros:

• “placate gods”
• “eye for eye”
• “deterrence”
• “Fitting punishment to crime”
• “Rights of victim”
• “Duty of the state to protect citizens”
• “Biblical”
  • “Genesis 9:6 ‘Whoso sheddeth man’s blood by man shall his blood be shed, for in the image of God made He man’ ”
  • “Exodus 21:12 ‘He that smiteth a man, so that he dies, shall surely be put to death’ ”
• “Possibility of Repeated offenses”
• “Murder = a rejection of the values of society”
• “New Test”
  • “Romans 13:1-5 ‘Let everyone be subject to the higher authorities, for there exists no authority except from God, and those who exist have been appointed by God. Therefore, he who resists the authority, resists the ordinance of God; and they that resist bring on themselves condemnation
  • ‘For rulers are a terror not to the good work but to the evil. Dost thou wish, then, not to fear the authority?
  • ‘Do what is good and thou will have praise from it. For it is God[’s] minister to thee for good. But if thou dost what is evil, fear, for not without reason does it carry  he sword. For it is God’s minister, an avenger to execute wrath on him who does evil. Wherefore you must needs be subject, not only because of the wrath, but also for conscience’s sake.’ ”
  • “Luther, Calvin, Aquinas felt this to be supportive of capital punishment” and
  • “Per Paul’s letter to Romans: State has power for two reasons — 1. Satisfy demand’s [sic] of God’s service [and] 2. Protect society by deterring future crime.”

And these cons: 

• “No real deterrent value—mostly because murderers not normal”
• “Question of ‘Just’—There is no simple, ‘just,’ penalty”
• “Discriminatory selection”
• “Human fallibility—Perhaps wrong chap convicted.”
• “Rehabilitation”
• “ ‘Popular’ feelings”

The jury sentenced Fields to die.  Eighteen years later, the en banc Ninth Circuit Court of Appeals says that was okay.  The opinion is Fields v. Brown, decided today.

Majority:  it's just like memory

The court's majority, in an opinion by Judge Pamela Rymer, didn't directly decide the question, since they found that "the foreman's notes had no substantial and injurious effect or influence in determining the jury’s verdict."  But they were clearly untroubled by the pro-and-con list:

White’s notes are not like these examples [of impermissible extrinsic evidence]. They are a mix of ideas “for” and “against” capital punishment. Both the Biblical verses and the other concepts contained in the notes are notions of general currency that inform the moral judgment that capital-case jurors are called upon to make. As Justice Stevens put it, “[w]hile the question of innocence or guilt of the offense is essentially a question of fact, the choice between life imprisonment and capital punishment is both a question of underlying fact and a matter of reasoned moral judgment.” White’s “for” notes all exposit well-known themes. So do his “against” notes. In effect he marshaled general, commonly known points in favor of the death penalty — “eye for eye,” “deterrence,” “fitting punishment to crime,” “rights of victim,” and the Bible says so — along with general, commonly known points in opposition   “no real deterrent value,” “there is no simple, ‘just,’ penalty,” “discriminatory selection,” “rehabilitation,” and “perhaps wrong chap convicted.” Fields nowhere suggests that White was not free to recite these points, including those from the Bible, or to resort to their reasoning. It is difficult to see how sharing notes can be constitutionally infirm if sharing memory isn’t.

(Citations are omitted in all these excerpts; somehow they seem to make blog posts unreadable.)  It's not, the majority went on, as though the prosecutor had invoked the Bible:

Fields correctly points out that we have held it is improper and prejudicial for the prosecution to invoke God or to paraphrase a Biblical passage in closing argument in the penalty phase of a capital case. However, the prosecutor is constrained in ways that a juror is not. In Sandoval [the court's 2000 opinion on this topic], as we explained, the prosecutor’s argument frustrated the purpose of the closing argument, which is to review the evidence presented at trial that is relevant to the jury’s decision as defined by the instructions given by the court. Also, the prosecution’s invocation of “higher law” or extra-judicial authority violated the Eighth Amendment principle of narrowly channeled sentencing discretion. Further, we noted that  argument involving religious authority undercuts the jury’s own sense of responsibility for imposing the death penalty.  None of these considerations applies in similar fashion to a juror; what may be improper or prejudicial when said by a prosecutor may not be so when said by a juror.

Dissent:  it's an "extrajudicial code"

The two dissenting opinions focus on the Bible's role as a code of law, not a source of common sayings.  Judge Ronald Gould wrote: 

The “use by deliberating jurors of an extrajudicial code (not already embodied in their own characters) cannot be reconciled with the Eighth Amendment’s requirement that any decision to impose death must be the result of discretion which is carefully and narrowly channeled and circumscribed by the secular law of the jurisdiction.” California’s death penalty statute provides specific factors the jury is to consider to distinguish “the few cases in which [the death penalty] is imposed from the many in which it is not.” Here, White introduced to the jury deliberations only Bible quotations that were pro death penalty, and left out  Bible quotations that spoke to mercy. Moreover, the passages from which White quoted “explicitly reject[ ] the drawing of distinctions in murder cases,” and directed the jury to impose death in any case involving murder. These Bible passages, commanding death, inserted “higher law” into the jury deliberations and unconstitutionally relieved the jury from their individual responsibility to determine whether to commit Fields to death or sentence him to life imprisonment. . . . The Bible’s presence in the jury room as a focus of deliberations, if I may borrow a phrase from Judge Wilkinson, crossed “the constitutional line.”

Judge Marsha Berzon listed cases from other jurisdictions which treat the Bible as extrinsic reference material, and pointed out that the Biblical references were hardly just like memory for White, since he had to look them up:

[I]t is undisputed that White’s notes were the product of overnight Biblical research, rather than of familiarity with the Bible that White already had at the outset of deliberations. The case law proscribing importation of external information places its all on the proposition that this distinction matters: After we choose jurors, we want the decision made on the basis of what went on in the courtroom, filtered through the personalities, background information, and reasoning ability the jurors brought with them to court. But we do not approve of, and regard as misconduct, affirmatively gathering outside information. Further, the lengthy quotations, written down and passed around, conveyed a sense of authority quite different from a paraphrase or one line quotations spoken from memory, not least because they could be consulted repeatedly and outside of White’s immediate presence. The written, lengthy quotations introduced tangibly an external exhortation, that God, or the authors of God’s book — not just juror White — encouraged jurors to disregard the judge’s instructions and vote for the death penalty no matter what. The majority, therefore, is wrong to portray this case as similar to “sharing memory,” and this case does not raise the question of whether jurors act impermissibly by referring to their faith during deliberations.

Death at random

The case looks Supreme-Court-bound, then, on this issue of the line between inner morals and outer authority.  But even if the high court were able to draw that line unmistakably -- and it won't be able to -- Fields's case would cast a disturbing shadow.

The problem isn't just that smart judges can differ on whether jurors can cite the Bible.  The problem is the random way we found out what this jury did.  In the end, it's only coincidence that White wrote his notes down, that he showed the written notes to other jurors instead of simply talking to them about his findings, and that defense counsel somehow found out about it.  In another case, a juror might easily consult the Bible (or any other source), invoke its authority to other jurors, and no one would know.  Fields may live, and someone else may die, because these coincidences fall one way in one trial and a different way in another.  Of all the reasons to leave the death penalty behind, these meaningless variations seem among the most meaningful.

_______________

Notes:

1.  This opinion is 99 pages long and I've left out a lot -- like an entirely different issue, even more startling.  Judge Berzon summarized it this way, and it's really what happened:

The majority also concludes that we must accept as dispositive  a juror’s assertions that he was able to disregard the close resemblance between the unsolved kidnapping and rape of his wife not long before the trial and the crime with which Fields was charged. It does so even though the resemblance was so marked that the juror’s wife became convinced that Fields could have been her assailant and tried repeatedly during the trial to convince her husband to let her attend the trial so she  could tell whether he was.

2.  Robert Loblaw again covered this case almost instantly in Decision of the Day.  (How does he do that?)

(Photo by Dave Bullock at http://www.flickr.com/photos/archangel11/659176288/; license details there.)

If Your Juror Were Writing On Line, Could You Find It?

"Is that a juror responding to a verdict in the comments of this blog?"  That was the E-mail I got yesterday from sharp-eyed and generous Eric Turkewitz of New York Personal Injury Law Blog.  Sure enough, it was. 

"I would just like to ask that no one judge."

There are jurors who blog, and jurors who read blogs, so jurors commenting on blogs had to be next.  In her excellent Trial Ad Notes on Saturday, the University of Washington's Mary Whisner wrote about a recent $5 million jury verdict against a Seattle doctor, in a lawsuit brought by the family of a patient who died.  Mary's post noted the contentious and sometimes nasty on-line "sound-off" comments to the Seattle Post-Intelligencer's story on the verdict.  Later on Saturday, this anonymous comment appeared to Mary's post:

I would just like to ask that no one judge neither the Dr. in this case nor the family. I was able to sit and hear this case for the past five weeks and given the task of determining whether this Dr. was negligent or not.  All I want to say is that this is unfortunate for all parties involved.

It's an innocent remark -- nothing here for postverdict motions -- but the fact that it's there at all is striking.  If you're starting to get overwhelmed thinking of all the ways your jurors might be talking or reading about your case online, you're not alone. 

After, words

The juror's comment highlights a different point as well, a point about timing.  So far, this issue has come up mostly in the context of jurors who are on line while the trial was in progress.  A more likely time to find jurors on line, though, may be after the trial is over.  At that point, they're free to talk about the case -- and they're often still caught up in the case itself, in a way that makes them want to talk about it. 

The reasons they're caught up in it vary.  Some are simply impressed by the jury process itself, like New Jersey State Senator Robert Martin.  (He's the one who wrote a New Jersey Law Journal article about the deliberations he participated in, and got the verdict challenged for his efforts.)  Others are troubled by the evidence, as Mary Whisner's commenter seems to have been.  Then there are jurors who see their verdict criticized, and take it personally.  When Seventh Circuit Judge Michael Kanne, speaking in dissent eighteen months after the trial, called parts of the jury process in Illinois governor George Ryan's trial "totally astounding," the Chicago Tribune found jurors willing to defend their verdict as though it had happened yesterday:

"It's a shame that [the defense attorneys] feel the need to come after jurors with false allegations in a desperate attempt to get their client off," juror Leslie Losacco wrote in an e-mail. "I now understand why people despise most defense lawyers."

Searching 101

How can a trial lawyer hope to find all this?  Set up searches, and keep them open until you couldn't possibly need them.  Some ideas:

• If you don't know how to set up feed searches, preferably collected in a feed reader, it's time to learn.  This skill will help you in a thousand ways, long before you ever find a juror comment.  I've tried several feed readers and right now I like Google Reader best; it's quick and meshes well with Google's other services.
• Start with searches for the name of your case, plus "jury duty" and your city.  Then expand to some of the words that a juror might use to describe the case without identifying it.
• Set the searches to scan both blogs and news stories.
• Most searches will pick up "main" stories but not the comments to those stories.  If there's a blog post or news story highly relevant to your case, click through to it and look for comments, possibly multiple times. 
• Let others know you're looking.  No amount of searching could pick up all the possible places a juror might talk about your case.  I see nearly everything about jurors on line, but I would have missed this story if it hadn't been for Eric Turkewitz.

(Photo by striatic at http://www.flickr.com/photos/striatic/1629269/; license details there.)

It's Broke, But Don't Fix It: The Ryan Appeal

When do jury deliberations become so horribly flawed that a guilty verdict cannot stand?  If you're in the Seventh Circuit and the trial was long and important, the answer may be never.   

The Seventh Circuit today rejected the appeal of former Illinois governor George Ryan and his aide Lawrence Warner, who were convicted of improperly steering state contracts for their own benefit.  The first sentence really says it all:  "This appeal comes to us after an investigation that lasted for years and a jury trial that lasted more than six months." 

"Totally astounding"

In lines that have been repeatedly quoted already today, the majority said the trial "may not have been picture-perfect" and the dissenting judge, Judge Michael Kanne, called that "a whopping understatement by any measure."  Judge Kanne spent three pages setting out in bullet points what went wrong in this trial.  "Some of the factors would be unremarkable in a routine criminal case," he said, "and other factors are totally astounding in any case."  I've italicized some of the more astounding items:

• "In a case that was tried over a six month period, the jurors entered and exited the courthouse every day past scores of television and still cameras and reporters.
• "The jurors used public elevators and brushed elbows with anyone who happened to be in them.
• "Although the court’s intent was not to make the jurors’ names public, that effort was compromised when the jurors’ names were used in the in-court voir dire.
• "When jury deliberations were ready to commence in the most high profile case in Chicago in recent memory, there was no thought of sequestering the jury.
• "During the initial eight days of deliberations an apparent holdout juror was purportedly threatened by other jurors with a charge of bribery.
• "Legal research gained by a juror from the internet was – contrary to the court’s instruction – brought into the jury room in an effort to persuade the recalcitrant juror to change her position.
• "A reporter for the Chicago Tribune advised the district court during jury deliberations that the newspaper’s   search had disclosed major inconsistencies between answers in a jury questionnaire and public records. Based on the information provided by the Chicago Tribune, the district judge, in concurrence with all parties, requested the U.S. Attorney’s Office to conduct a background check on all jurors.
• "Jury deliberations were halted following the Chicago Tribune disclosure and the hiatus continued during the investigation of the jurors by the U.S. Attorney’s Office.
• "During the five-day hiatus in jury deliberations, the exposé by the Chicago Tribune was published revealing that, indeed, false answers had been given on a jury questionnaire and that the sitting jurors were now under investigation.
• "Amidst questions raised by the district judge concerning the necessity of advising the jurors of their constitutional rights and their right to counsel, the individual examination of six sitting and three alternate jurors was begun.
• "Through the judge’s examination it was determined that a majority of jurors had provided false answers under oath and could face criminal prosecution. Many jurors who were interrogated told the district judge that they were scared, intimidated or sorry for what had occurred.
• "During the course of the interrogations, the jurors were granted immunity from prosecution by the U.S. Attorney.  Some jurors later hired lawyers in order to represent their own independent interests arising from their participation in the trial.
• "Two jurors who provided untruthful answers were excused from further service while others so situated were retained.
• "Before the hiatus in deliberation, jurors informed the court that they were having a conflict and yet after the interrogations the judge dismissed one of the jurors in the conflict without determining whether she was a holdout juror.
• "Alternate jurors were seated, but not in the order required by Rule 24.
• "After eight days of deliberation by the original jury, and five days in hiatus, a reconstituted jury deliberated for ten days and returned the verdicts in this case."

Amazing as that litany is, it doesn't fully capture the yelling and, apparently, pushing and shoving that went on in these deliberations.  The majority explained that the apparent holdout juror, whose name was Ezell, sent out one note saying "that other jurors were calling her derogatory names and shouting profanities."  Then the others sent a note asking that Ezell be removed "because she was refusing to engage in meaningful discourse and was behaving in a physically aggressive manner."

It's about time

Between the two opinions, there are 74 pages to read here, with each side discussing dozens of flaws in the management of the jury, whether they were harmless error, and whether they had been adequately raised on appeal.  The majority might have saved both sides some paper if it had pared its opinion to something like "We're not retrying a case that riveted the entire state of Illinois for six months no matter what anybody says."  Then Judge Kanne -- who, as a Volokh Conspiracy commenter pointed out, is a Reagan appointee not known in these parts as a friend of criminal defendants -- might have been able to limit his opinion to its candid conclusion:

In the final analysis, this case was inexorably driven to a defective conclusion by the natural human desire to bring an end to the massive expenditure of time and resources occasioned by this trial – to the detriment of the defendants. Given the breadth and depth of both structural and nonstructural errors, I have no doubt that if this case had been a six-day trial, rather than a six-month trial, a mistrial would have been swiftly declared. It should have been here.

A consensus builder

Whether you like the result or not, it's worth jotting down the cite for this case, which is actually captioned U.S. v. Warner.  For one thing, the sheer number and variety of the jury glitches make it a one-opinion encyclopedia of case law on this subject.  I'll save the opinion for another reason too.  Someday I'll want to quote Judge Kanne's thoughtful words on an issue appellate courts seldom mention:  the mess that results when judges refuse to judge.

At oral argument before this court, Prosecutor Collins stated that “Judge Pallmeyer is a consensus builder.” . . .  This insightful comment is the key to understanding the non-structural juror errors. Consensus building can help in finding common ground in disputes. It can also help to expose decision makers to alternative points of view. But consensus building can have negative consequences as this case demonstrates.

Consensus building by the district judge allowed a continual round robin of discussions between the attorneys and the court especially during the critical period of March 27th and 28th when the parties and the court were addressing the juror related issues. Transcripts from this period reveal a very conscientious but irresolute judge who is willing to contribute her views and concerns to the conversation involving contested issues, but is reluctant to provide firm rulings that end the court’s consideration of those issues. The record from this period is full of conversations but lacks definitive rulings.  Consensus building does not always lead to the resolution of difficult issues.

_________________

Note on other sources:  this case was all over the Web today.  There is particularly thoughtful discussion at White Collar Crime Prof Blog (two posts, here and here); Robert Loblaw's Decision of the Day (again); and Volokh Conspiracy. 

(Photo by ecparker at http://www.flickr.com/photos/ecparker/458330140/; license details there.)

That Which Should Not Be Said

This week brought two cases where jurors heard something they shouldn't have heard -- once from a potential juror, and once in a rollicking closing argument exchange between counsel.  Read them and you're left wondering if there's any meaningful way to respond to mouthy jurors and lawyers. 

"I used to be a lawyer with the EEOC"

The lawyer case is DeCorte v. Jordan, an employment discrimination case decided by the Fifth Circuit on Wednesday.  In closing argument, both lawyers decided to supplement the evidence with their personal knowledge and experience.  They were talking about how the EEOC found that the plaintiffs had probable cause to sue (you need this finding before you're allowed to bring a discrimination case), and what that finding did or didn't mean about the strength of the plaintiffs' case. 

Plaintiffs' counsel started the exchange, telling the jury, “The EEOC doesn’t find cause that often.”  Defense counsel responded that the finding was no big deal and indeed, the jury could infer the EEOC wasn't all that impressed with the case, since the EEOC only authorized the plaintiffs to sue but didn't sue the defendant itself:

[The EEOC] litigate[s] all the time [and] ... could have brought this case themselves. There are lawyers at the Justice Department who do just that. If the EEOC felt strongly about this case, where were they when it came time to litigate it?

No way, plaintiffs' counsel struck back in rebuttal:

Let’s talk about the EEOC determinations. Counsel misrepresented. The EEOC does not  file lawsuits in regard to public entities. The Justice Department in Washington does that with regard to public entities. I used to be a lawyer with the EEOC. And I’m going to tell you this. The facts of the EEOC charges are these. [A Plaintiff] went to the EEOC on a Friday afternoon, filed her charge, and they dismissed it Tuesday without doing any investigation. Reopened it and investigated it for a year. And found cause. Counsel didn’t tell you that.

Separately, plaintiffs' counsel offered some expert testimony in closing that hadn't quite come out in trial:

Remember. Let me tell you this: It doesn’t take a Ph.D. in industrial psychology to figure out those numbers. And that’s what Dr. McDaniel told me the first day I talked to him. Do you know what else? Do you know what Dr. Kenny told them? You didn’t hear it, but let me tell you what he told them. I can’t touch the firing decisions. That’s why this has got to be a hiring case.

None of this was in evidence, and the Fifth Circuit found it all "obviously improper."  But it was all harmless: "a back-and-forth between opposing viewpoints," "of limited duration," that "certainly did not impact the integrity of the judicial process" or affect the defendant's "substantial rights."

"I have found him to be completely truthful."

The juror case is Reynolds v. Bagley, decided by the Sixth Circuit yesterday and featured in Robert Loblaw's excellent Decision of the Day.  In this death-penalty murder case, the jury panel included a police officer who, it's fair to conclude, knew he had no chance to be a juror, and decided to do all he could to help the prosecution while he had the floor. 

Defense counsel moved to strike the policeman early on, and the trial judge denied the motion.  So he was questioned while the rest of the panel listened, and his answers revealed a hardworking advocate.  Could he objectively evaluate the testimony of a police officer witness whom he knew?  “I have always found him to be completely truthful.”  Was it a problem that he had worked with the prosecutor before?  The officer "stated that he could remain objective — but prior to doing so noted how 'efficient' the prosecutor was, and how the prosecutor demanded a lot from police officers before 'moving forward' with a prosecution."  Finally he was dismissed.

Defense counsel didn't move to strike the panel, which made things difficult on appeal, but it's hard to believe the court would have reversed a gory murder conviction on this ground no matter how well the issue was preserved:

Although Vanhyning’s statements could theoretically have biased ultimatelyseated jurors in favor of the prosecution and its witnesses, Reynolds has failed to show that there was any actual bias, especially given the trial judge’s subsequent curative instruction that jurors would have to decide the case for themselves. Nor is this a case in which the jury venire appears to have been predisposed to convict Reynolds, so that Vanhyning’s comments might have only heightened their predisposition, the trial judge’s curative instructions notwithstanding. Thus while we can conceive of a hypothetical in which a single veniremember’s comments, prior to his dismissal, might irreparably prejudice the remaining veniremembers against the defendant, the instant case does not approach that hypothetical.

(Citations are omitted from that excerpt.)

You can't catch me

I don't argue much with these courts' refusal to reverse in these cases.  It probably doesn't make sense to try a whole case over again when something like this happens.  But we ought to be left with a real dissatisfaction over cases like this.  In both cases, the two lawyers and the policeman juror, testifying rampantly with no one on the stand, had to know they were breaking the rules.  They also knew they were likely to get away with it -- and they did. 

(Photo by Robert Paul Young at http://www.flickr.com/photos/robertpaulyoung/148905239/; license details there.)

Juror Art Spoils Rape Conviction?

It couldn't happen here, could it?  The London Daily Mail reports:

A convicted rapist was freed from jail after it was discovered a juror had been doodling during his week-long trial.

The juror made two sketches of the judge while he should have been concentrating on the evidence.

As the proud curator of the American Gallery of Juror Art, I'm struggling with this story.  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?  Jurors are bored, bored, bored, and if we're going to start overturning verdicts because a juror's attention wandered, we really ought to shut down the prisons right now. 

It had to be the underwear

So I've decided not to believe it was the juror's sketches that botched this conviction.  I've decided the final straw was the jury's experiments with women's underwear.  In England, they're called knickers:

The trial hinged on the victim's pink knickers which were torn in three places, and formed a major exhibit in the case.

It was [when the defendant was to be sentenced] that the judge revealed that a juror had asked an usher at the end of the trial on Friday to dispose of a pack of women's pants.

The judge said: "They bought a pack of five knickers.

"One is torn. They had been trying the strength of knickers and comparing them with knickers in this case.

"The juror said they had been conscientious, but they decided the case on evidence not before the court."

Juror artists, keep drawing.  You're doing great work.

(Image by Ben Britten at http://www.flickr.com/photos/tauntingpanda/731940008/; license details there.)

When Jurors Lie, Part II

We're discussing jurors who lie so they can get on the jury, and yesterday's post discussed the federal standard for getting these cases overturned.  This one turns to the real questions:  whether we can keep "stealth jurors" off juries in the first place, and whether we can learn anything from our own reactions to them.

An ounce of prevention

How do you find these folks ahead of time, or at least minimize the harm they do?  You can't always; give up on the idea that it's possible.  Certainly it can't be done with familiar home remedies.  Subscribe to the Deception Blog (which collects the extensive research in this area) and you'll slowly but surely become convinced that liars do look you in the eye, they don't always shift in their seats, they can fool even experienced questioners -- even questioners whose sole aim is to discover deception, much less trial lawyers who have to juggle that job with the many other goals of voir dire. 

Some things you can do, imperfect as they are:

1.  Ask about experiences and behaviors.  Questions about experiences and behaviors are the strongest way to get past unconscious bias, as I've said many times.  But they can also be a tool to get at bias that's consciously concealed.  A juror like this will likely recognize a straight bias question, no matter how often it's asked and in how many varied ways, and pride himself on heading it off.  But the same juror might be willing to tell stories from his past, or tell about web sites he comments on, without realizing he's telling you about his biases.

2.  Fight your own stereotypes.  It looks like Woman in Black's juror lulled her by telling her he had a sister with mental illness.  I'm not remotely questioning her voir dire (she says the juror specifically said his sister's condition would make him want to be compassionate and fair), but it's a reminder to all of us that a given experience might not mean what we think it means to the juror.  To continue with the mental illness example, a juror with a mentally ill relative might feel deep compassion for the mentally ill -- or he might resent the lack of personal responsibility that often characterizes mental illness.  Or both.

3.  Listen for vocabulary.  Jurors with agendas may speak in a code they've forgotten is code.  I've written before that it's valuable, and fairly easy, to learn some of the language that extremists speak about issues relevant to your case.  The Countenance Blog, for example -- the one that advocated lying to get on a jury this week -- has categories for "black crime," "Hispanic crime," "minority crime," "black extremism," "Chicano extremism," and on and on.  Fifteen minutes spent there would teach you a lot about what words and concepts might be red flags in a case involving race or immigration.

4.  Ask about silence.  Remember Judge Gregory Mize's experiment asking silent jurors why they'd been quiet.  One of them said she was the defendant's fiancee!  She had not answered yes to the question "Do any of you know or in any way acquainted with me, any of the parties, witnesses or attorneys in the case?", or to the question, "Have any of you, a close friend or close relative been the victim of, a witness to, or charged with a criminal offense within the past ten years?"  Those silent denials must have been knowingly false, but somehow the follow-up question got the truth out.

5.  Prepare the group.  In the same way that you might prepare jurors to hold to their views and deal with disagreement, you can prepare them to respond to what essentially is an invader.  In the cases where we know a juror lied about bias, it's usually because another juror reported it.  An extra voir dire question and a line in your closing, reminding them of how important voir dire is and how you're relying on their candor, might be enough to help the rest of the group report the liar.

None of these things will fully protect you, but they may help. 

A lesson, maybe, in why we're so mad

I want to ask another question, though, one that may shift the emphasis to a more positive, and perhaps more broadly applicable, jury lesson.  Why are we so troubled by jurors who lie?  Woman in Black understandably says her juror story "is REALLY bothering me." Gideon, retelling the story, says "What’s the point, you ask? I don’t know. It just got me steamed up enough to post about it."  Stephen Gustitis of The Defense Perspective, commenting on Gideon's post, calls lying jurors "simply despicable" before offering good thoughts and advice.

It's not like these people have never seen lies before.  We all have, so often that it rarely gets us really mad.  In many ways we live in a culture of lies, where executives who resign "for personal reasons" and cancelled flights because of "equipment changes" are the constant junk food of our information diet.  When Bill Clinton said he never had sex with that woman, or Scooter Libby said he didn't gossip about Valerie Plame, or Martha Stewart said selling that stock was her own idea, some people were upset -- but millions of others shrugged and moved on. 

So why do lying jurors keep us awake at night?  Partly because a lying juror puts a lawyer personally at risk, and we take it personally.  Scott Greenfield gets that part exactly right: 

It's like having a saboteur in the case, a hidden time bomb waiting to go off.  No matter what happens at trial, how good or bad the evidence turns out to be, this juror is absolutely determined to sink you because, well, because that's his goal in the jury room.  And you don't know it, and can't do anything to stop it.

But I want to suggest there's something else at work here too, a deep belief we share with all those other jurors who don't lie.  People believe the courtroom is a place where justice happens. 

We believe

You see it over and over, from people of all types and backgrounds:  normal skepticism toward many other institutions, but pure idealism about the justice system.  Jaded executives stare at me in shock when judges make mistakes, or witnesses lie.  They can't believe it when lightning doesn't strike an opponent who is late with discovery, or a judge who takes two years to rule on a motion.  These people aren't stupid; they're some of the smartest folks I work with.  But they believe, beyond reason or evidence and beyond their usual cynicism, in the justice system and its power for good.  I think that when lawyers are startled by another lying juror story, we're showing that at some level we believe that too.

And like most personal insights, you can translate this to your jury work.  When you look at a jury panel, it's helpful to remember that most of them at some level -- like you, at some level -- believe in the purity of the courtroom, whether they'd say it that way or not.  Jurors' expectations for you, your client, the witnesses, themselves, and the judge are very, very high, even the jurors who look like and act like and think they are cynics.  In the moments when you can rise to that level in your trial, you're fulfilling one of their most deeply held ideals.  And you're taking something good, and helpful, from the story of the lying juror.

_________________

News note:  Saturday was such a day for stories about jurors who lie that I missed one.  The Baltimore Sun reported on a hung-jury mistrial where the prosecutor learned, talking to the jury afterward, that a juror's brother had pled guilty to first-degree murder.  The story implies, and it's very likely, that the juror had to evade at least one voir dire question (more likely several) to find her way onto that jury.

(Photo by Christina, technochick's 11-year-old daughter, at http://www.flickr.com/photos/technochick/595491058/; license details there.)

When Jurors Lie, Part I

Intelligent juries can be a firewall against capricious prosecution and abuse of power.  And in spite of what judges say, jurors can judge both the facts and the law in making a decision.  Lying in a court is never a good idea, but if I had to make the Hobson’s Choice, I would rather lie to get on a jury than lie to get out of jury duty.

It's funny how a topic suddenly comes from all directions.  Saturday was Lying Jurors Day.  On Saturday, the words above appeared on Countenance Blog, an anonymous St. Louis blog "of interest to members and supporters of the Council of Conservative Citizens," whose white supremacist roots are traced at the Anti-Defamation League.  On the same day, Gideon at a public defender relayed a story from lawyer/blogger Woman in Black about a juror whom she believes lied in a trial she defended.  Simple Justice in turn picked that up, with a great description of how hard it is both to prevent jurors from lying to get on the jury and to do anything about it when it happens.

It does happen.  One of the jurors who convicted Martha Stewart, "by far the most outspoken juror on the panel," failed to disclose an arrest and three lawsuits against him on a jury questionnaire that reportedly asked for this information.  Just in recent months on Deliberations, we've had the football fan who faithfully responded when asked who his favorite team was, but said nobody asked him whether he hated the plaintiff Oakland Raiders, which he did; the juror in the California Peregrine trial who at first said he wasn't reading media coverage of the trial, but later admitted he had; and the blogging lawyer juror who bragged that he'd slipped through voir dire by describing himself as a "project manager," leaving out the lawyer part.  This blog has gotten at least one reader who found me by searching for "What happens if you lie about voir dire."

A pound of cure

Juror-lie cases aren't easy to overturn, but Woman in Black's case might be among the few that might be overturned under the federal standard.  Woman in Black said her juror confessed after the trial to having "a bias against mental health defenses," saying that he hadn't been asked that specific question in voir dire -- but, she says, she did ask. 

The federal rule in these cases comes from 1984's McDonough Power Equipment v. Greenwood: "[T]o obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause."  That might not cover the blogging juror who lied about being a lawyer, since being a lawyer doesn't support a challenge for cause.  But if it doesn't cover the case where a juror denies he has a bias and later says he does, it's hard to imagine what case would be overturned.  (In California, the rule is different; the blogging lawyer's lie got the case sent back.)

Tomorrow, an ounce of prevention -- an ounce is about all there is -- and an attempt at a larger perspective.

(Photo by Christina, technochick's 11-year-old daughter, at http://www.flickr.com/photos/technochick/595491058/; license details there.)

We R Deliberating Where RU?

....judge really helping w/jurors...
still having difficulties with #30
...any ideas???
keep pushing on ur side
did not understand ur thoughts on statute
but received links.

It's not the kind of message a juror is supposed to be sending to a fellow juror at 10:09 on a Sunday night in the middle of deliberations.  Nor is it the kind of thing a defense lawyer expects to find, sent anonymously, in the morning mail.    But when the defense lawyer's client is Richard Scrushy, you can bet the issue won't go away quickly.

"Articles usent outstanding!"

A follow-up message, sent about half an hour later, isn't any better:

I can't see anything we miss'd. u?
articles usent outstanding! gov & pastor up s---t creek.
good thing no one likes them anyway. all public officials
r scum; especially this 1. pastor
is reall a piece of work
...they missed before, but we won't
...also, keepworking on 30
... will update u on other meetingz

Then there's the reply:

Great info 4 r friends.
% of prosecution increases dramatically.
Could not find that when I surfed it.
Gov/Pastor GONE....

If you're lost track of the Scrushy story, here's a thumbnail.  Richard Scrushy has faced two criminal trials in the last few years.  In 2005, he was acquitted of fraud charges over the failure of HealthSouth, the company he ran.  The government had better luck in 2006, though, trying Scrushy and former Alabama governor Don Siegelman for corruption relating to campaign donations.  The corruption jury -- which included the two late-night E-mailing jurors -- reported twice that it was deadlocked before finally convicting Scrushy and Siegelman last June. 

Some E-mails between jurors surfaced soon after the verdict.  Armed with those and a juror affidavit ("I was confused between all the evidence and other Internet stuff that some of the jurors brought in and was talking about . . . They were pulling stuff out of files[.]"), Scrushy asked the trial judge for a new trial.  The trial judge interviewed the jurors and denied the request in mid-December.  Scrushy was sentenced to prison a few weeks ago.  (All these links are to the WSJ Law Blog, a great source for Scrushy chronology.)

In the meantime, however, defense counsel got another anonymous envelope in late December, containing the E-mails above.  The ensuing motion to reconsider wasn't decided, so the defense has now filed a motion in the Eleventh Circuit Court of Appeals asking the appellate court to issue subpoenas itself, requiring the production of evidence that would show whether the E-mails are genuine -- including, apparently, the personal computer hard drives belonging to the jurors in question.  (The proposed subpoenas themselves aren't attached to the copy of the motion I have, but that's the clear import of the motion.)  The government filed a response to the Eleventh Circuit motion last week. 

Weird new world

There's a plateful of food for thought here.  The idea of a federal court of appeals issuing subpoenas would be provocative enough, but I'm more distracted by the text-message quality of these E-mails, and what it might portend.  If you've ever taken a deposition and watched opposing counsel and his client E-mail each other in front of your eyes, you can start to imagine how jurors at opposite ends of a table might have their own conversation even as the group debate swirls around them.  When the jurors go home, they can find each other instantly:  RU there? 

And the slowish handheld connection that even a few months ago might have discouraged jurors from jury-room Internet research is now, if the commercials are right, up to full speed.  Those iPhone commercials are pretty incredible.  Imagine how much you could find out about Richard Scrushy if you had one of those things in jury deliberations.

(Photo by Dewayne Smith at http://www.flickr.com/photos/dewayne_smith/433951055/; license details there.)

News Flash: Lawyers Are Leaders On Juries

Monday's NFL/Oakland Raiders case from the California Supreme Court got a lot of attention this week, much of it from football fans happy to have something to talk about off-season.  Here at Deliberations, it's just another jury case, and it's a fun one. 

Note to self:  in next football voir dire, ask which teams they hate

The Raiders sued the NFL claiming the league should have given them more money.  (That's all the detail we need in a jury blog.)  It probably would have been cheaper to resolve  the dispute in a winner-takes-all game, but instead they went to trial.  The jury could not agree, but in California civil cases they don't have to.  They came back 9-3 for the NFL.

The Raiders moved for a new trial, attaching declarations from five jurors complaining about the behavior of two of their colleagues, Joseph A. and Linda H.  Joseph A., the declarations said, just plain hated the Raiders:

According to those declarations, Juror Joseph A. stated several times during deliberations that he hated the Raiders and their owner, Al Davis, and that he would never find for the Raiders or award them any money. Juror Alice I. declared: “Joseph [A.] stated to the group that he hated the Raiders and Raiders’ owner Al Davis. He also said to us that the Raiders were always starting lawsuits with the NFL, and that he would never award the Raiders any money or find for the Raiders in this case. [¶] I confronted [Joseph A.], along with several other jurors, saying that it was improper for him to make such a statement and to act that way. I also told him that he had filled out a questionnaire, and he had a duty to express his hostility in the questionnaire. [Joseph A.] responded to me ‘this is America’; that he had a right to express how he felt; that the questionnaire only asked him what his favorite team was, which he said was the New York Jets or Giants, and that the questionnaire did not ask which team he disliked. [¶] Jurors [Wayman J.] and [William S.] both told [Joseph A.], in the presence of other jurors, that this act of concealing his bias could cause a mistrial. [¶] [Joseph A. did not] attempt to explain his dislike for the Raiders in terms of any evidence he had heard during the trial; rather, his references to other lawsuits between the Raiders and the NFL and his other comments to the jury made clear to me that his bias against the Raiders existed prior to this trial.”

An "unofficial leadership position"

The problem with Linda H., though, had nothing to do with sports.  She was a lawyer.

The  declaration by Juror William S. stated that Linda H. “told the other jurors that the  Raiders’ lawyer did not want her on the jury, and that she would make them pay.”  The declaration of Juror Angelo C. stated that Juror Linda H., a lawyer, “exercised  an unofficial leadership position,” dominated the deliberations, and instructed the  jurors on the law. She “told the jury that if they voted one way on one of the  claims, they had to vote the same way on another claim, because ‘that was the  law.’ ” She also wrote out statements of the law and taped them to the jury room  walls; her statements were not quotations from the jury instructions “but were her  own words of what she claimed the law was.” She also told the other jurors that  Resolution FC-7 could not be a contract and that there could be no fiduciary  relationship between the NFL and the Raiders as a matter of law.

The NFL came back with declarations from Joseph, Linda, and other jurors saying it hadn't been like that at all.  The trial judge granted the new trial in a two-line order:  “The motion for new trial is granted. The Court finds that the objectively ascertainable acts of juror misconduct were prejudicial to the Oakland Raiders’ right to a fair trial.”

That wasn't enough for the Supreme Court.  In an opinion that's more about appellate review than it is about juries, the court essentially said that if the trial judge wouldn't at least tell them which juror he was worried about, they would shift the burden of proof to the Raiders to convince the Supreme Court there had been misconduct.  The pile of conflicting juror declarations, the court held, wasn't convincing, and so the NFL's verdict will stand.

I didn't forget the news flash

There isn't much new law made here, but there are still two points worth noting:

1.  California, land of the juror declaration.  Why did this case spend six years (it was tried in March 2001) in the appellate courts while the parties argued over the meaning of conflicting juror declarations?  Because in California, as we've discussed before, they can.  The California rules allow juror declarations to attack the deliberation process, where the federal rules, and most state rules based on them, do not.  California readers, if I have any, how do you keep this from happening all the time? 

2.  The promised news flash of the title.  This case can do a world of good for trial lawyers everywhere if they take just one lesson from it:  if a lawyer is on  the jury, she will lead the jury.  We've discussed this issue before too, but the word isn't getting out yet, so I'll just keep saying it.  Jurors look to their fellow jurors for whatever expertise they may bring, from plumbing to accounting to how much an injury hurts.  If a juror is a lawyer, other jurors will look to her to explain the law.  They just will.

___________

Note:  The case caption is The Oakland Raiders v. National Football League, and it's here.  How Appealing lists other coverage in posts here, here, and here. 

(Photo by ACDI/VOCA for USAID.  I know it's not the Raiders.)

 

Jurors Who Read Blogs

One of Mark Stein's terrific missives from the Conrad Black closing arguments in Chicago this week was this:

One lady juror appears to be reading. A book? The paper? Her bus ticket? This blog?

If it's the last, hi there, the pink really suits you, free for a drink at lunchtime?

He was kidding, but it's not absolutely impossible.  We've talked about jurors who write blogs; recent stories from New Jersey and California remind us that jurors also read them. 

Blogs about jurors reading blogs about jurors . . .

In New Jersey, lawyers for murder defendant Melanie McGuire failed to convince the trial judge that she should get a new trial because the case was so heavily covered, in blogs as well as traditional media.  The news stories suggest that the jurors were deeply aware of the coverage, but the trial judge said he was satisfied they weren't tainted.  Kevin O'Keefe at Real Lawyers Have Blogs pointed to a good local pre-hearing article, and there's a shorter post-hearing article linking to some of the trial blogs in question.   

In California, the trial in question started in April and is still going on.  It's a criminal fraud trial over the collapse of Peregrine Systems, a software developer; three executives and the company's (former) Arthur Andersen accountant face charges.  Local lawyer Robert Grimes is posting detailed daily reports on the trial at his web site -- having been "hired to write the blog," says the San Diego Union Tribune, by a law firm that is involved in civil litigation over the Peregrine mess.  (First I've heard of lawyers anonymously hiring trial bloggers.  That raises interesting issues.)

Jurors reporting jurors who read blogs . . .

The Peregrine prosecutors, and apparently some other jurors, were concerned about Juror No. 7 already.  Back in June (I'm getting all this from the Union Tribune article), jurors sent out a note which prompted the judge to ask No. 7 if he had read about the case on the Internet; he said he'd looked to see if there was media coverage, but didn't read any.  On Tuesday another note came out, saying No. 7 had called the case "B.S." and a waste of time.  Questioned again by the judge, No. 7 admitted he had read Grimes's blog, and he was gone. 

"The move could represent a setback for defense lawyers," said the Union Tribune, "as the juror often nodded and smiled during their cross-examination of witnesses called by prosecutors."  But there may have been a symmetry in the ruling.  Defense lawyers got a ruling preventing five witnesses from testifying -- because they had read Grimes's blog.

Ask.  Instruct.  Remind.  Repeat.

The moral is, as it so often is, ask and ask, instruct and instruct.  Remember especially that many jurors can get to blogs -- and the rest of the Internet -- from the jury room itself, not just from home.  Remind them that news means all news. 

Defense counsel, let them hear it from you too.  You don't want your juror advocate to be sent home because he thought reading blogs would be a great way to stick it to the government.

Blogging Jurors, Part III: The Good

We're in the middle of a series on juror bloggers, inspired by the purple prose of Juror No. 8, the Bad Blogger in California's People v. McNeely case.  It's time to speak up for all the good juror bloggers.

They're out there

One of my first posts -- I still really like it -- was on juror blogs and what lawyers could learn from them.  The simple act of keeping an eye on jury blogs, a few feed hits every day, can slowly teach you what a mistake it is to assume anything about jurors.  We confuse blank faces with blank slates, when in fact the thoughts and attitudes jurors bring to court are incredibly varied.  Juror blog entries can be hostile, frustrated, curious, inspired, scared, angry, distracted, or bored -- very, very often bored. 

Most of these bloggers never get past the waiting room, and most of the rest leave after voir dire.  It's a rare blogger who actually gets to deliberate.  When they do get that far, their posts very commonly say they can't talk about the case, and so if there's a description of deliberations, it comes after the verdict or not at all. 

Whatever stage of trial it describes, a juror blog entry often has something to teach.  The best ones are also a lot of fun.

Viva El Birdos

Last week this blog started getting page hits from a site called Viva El Birdos.  Lots of page hits -- from a site by and for fans of the St. Louis Cardinals, where they "take our baseball seriously and in proportion."  Turned out that the site's author, Larry Borowsky, had written about jury duty, and Deliberations juror artist David Salvia, a Cardinals fan, had linked to this blog in the comments.  So many people read Viva El Birdos that this blip was enough to send a lot of them here. 

This blog probably has little to interest Cardinals fans, but Borowsky's completely appropriate jury duty post in Viva El Birdos has plenty of tips for lawyers.  To start with, give a gold star to the prosecutor, who asked enough questions to unearth Borowsky's blog.  Then admire the defense lawyer, who saw the blog as a moment both to explore the reasonable doubt standard and get in a little self-deprecating humor:

during voir dire, i stated that i make my living as a writer; the prosecuting attorney asked me what type of writing i do, and i gave him a quick description of my client base and said, "that's most of it" or something like that. "most of it," he says; "what's the rest of it?" "i also write a blog."

Q: a blog? [raised eyebrow] about what?
A: the st louis cardinals baseball team.
Q: oh. [pause] how do you feel about mark mcgwire being kept out of the hall of fame?
A: well, i'm not all that interested in the hall. but i do think he cheated with steroids.

i'm not making this up, now; this exchange really took place. (and i'd like to know how the court reporter rendered "mark mcgwire" on that freaky keypad of his.) i think my answer left the prosecutor saying to himself, hell yeah, i'll take this guy on my jury; he's ready to convict the hometown sports hero on nothing more than circumstantial evidence. then the defense attorney gets up there and says:

Q: mr borowsky, how you can you be convinced beyond a reasonable doubt that mcgwire used steroids?
A: i'm not convinced beyond a reasonable doubt.
Q: but you said that you think he cheated with steroids.
A: that's right --- i do think he cheated. but mcgwire's not on trial, so the beyond-a-reasonable-doubt standard doesn't really apply.
Q: i see. so if you were judging him in a court of law, you'd apply a more rigorous standard of proof before you'd convict him --- is that correct?
A: yes sir.

so now this guy wants me too; he's telling himself, borowsky will give a guy his day in court, even a guy who might look kinda guilty. but the defense attorney's not quite finished:

Q: in the interest of full disclosure, i should tell you that i grew up on chicago's north side. [pause] knowing that, do you think you can give my client a fair trial?

The next day, Borowsky used a sentence to describe the prosecution's allegations against the defendant -- but nothing you wouldn't read in the paper, and only as a nice intro to a rant on Cardinals pitcher Kip Wells.  Later Borowsky reported that the case was over, a guilty verdict.  He said he might write up the details, and I hope he does.  There's nothing like a good jury blog.

(Photo by Tim Lindenbaum at http://www.flickr.com/photos/lindenbaum/399058046/; license details there.)