Deliberations

Blogging Jurors, Part II: Some Relevant Law

When we left the story of People v. McNeely or the Bad Blogging Juror, the California Court of Appeals had ordered the trial judge to interview Juror No. 8, author of the steamy deliberations diary, and his colleagues.  The trial judge is assigned to find out two things in this investigation:  whether the verdict was coerced or compromised, and whether it's possible to overcome the "presumption of prejudice" No. 8 created when he lied in voir dire about being a lawyer.

Inspired by Juror No. 8, I left you with a cliffhanger of my own:  half of that order probably couldn't have been made under the federal rules.  And the blog?  Cases like this really aren't about the blog at all.

Bringing jurors back to ask about the verdict:  California yes, federal rules no

Under the Federal Rules of Evidence, and the many state rules modeled after them, there would likely be no juror reunion to figure out whether Juror No. 8 coerced McNeely's verdict, or whether the jurors improperly compromised.  As we've seen, Rule 606(b) limits these inquiries to "extraneous prejudicial information" and "outside influence":

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

The California rules are different, though, and their Evidence Code section 1150(a) seems to let judges question jurors about anything that might have influenced the verdict, internal or external:

1150.  (a) Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly.  No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent to or dissent from the verdict or concerning the mental processes by which it was determined.    (b) Nothing in this code affects the law relating to the competence of a juror to give evidence to impeach or support a verdict.

(I don't know what that subdivision (b) means; there doesn't seem to be a 606(b) equivalent somewhere else in the rules that it might refer to, and I didn't look at case law.  If you're from California, feel free to write in on this.)

It's not about the blog

As for the blog part, juror blog cases have come up before.  This March the National Law Journal  ran an article about this New Hampshire case where a juror blogged, and that in turn was the talk of the blogs for many days.  "Should jurors be allowed to blog?" is the way the question is phrased sometimes, and I hope we keep answering that they should.

It's not about the blog.  A blog is just a way of talking, and jurors have been talking for a really long time.  They sometimes talk about the case, although they've been instructed not to.  They talk about the deliberations, sometimes after the verdict and sometimes before they're done.  And they sometimes talk about their biases in ways they never mentioned in jury selection. 

Whether we learn about it from jurors' co-workers (as in New Jersey's recent State v. Loftin, discussed here), or from post-trial juror interviews (as in the recent Procter & Gamble/Amway verdict), or from articles the jurors wrote (like New Jersey state senator Robert Martin), the point is what the juror said, not where he chose to say it.  Good instructions and a good Ask from the court, and good voir dire questions from the lawyers -- do you blog, do you Twitter, do you comment, do you Facebook, do you YouTube, do you Flickr, do you dream of writing a legal potboiler -- will get us through most trials without a Juror No. 8.  Where he does slip through, a prohibition on blogging wouldn't have stopped him.

I say this in enormous self-interest; I love a good juror blog.  When this series continues, I'll offer two recent ones, each with a little humor and a nice lawyer lesson.

___________________

Note:

I've left out the more interesting legal issue here:  the juror's lie in voir dire, and the "presumption of prejudice" that flows from it in California.  Different jurisdictions handle this differently, and I have to leave the whole topic for another post.  If you're in a hurry and you happen to live in Florida, Robert Kelley has your juror concealment cases collected here. 

Blogging Jurors, Part I: The Bad (Or, The Burglary Trial As Legal Thriller)

I quickly shot out, 'I recommend we take a quick poll to see where we stand.'

A woman interjected, 'No, let's wait. I don't feel comfortable doing that so early.'  I had hoped popular sentiment would lead us to decide this thing quickly, but underestimated the apparent sympathies among some of the jurors. I decided it best to let others speak.  They were wanting to speak, so I let them speak.

Whoa.  Is it the latest John Grisham?  Scott Turow?

No, it's Juror No. 8, blogging the California burglary trial of Donald McNeely in 2006.  He blogged at such length and with such gusto that he sent McNeely's conviction -- to which, by his account, he guided the jury with powerful insight and skill -- to the California Court of Appeals, where it was vacated this week. 

[F]or the next hour-and-a-half, the jury in the People v. Donald the Duck slowly congealed into a rational, investigative body of folks who ultimately realized that stealing was wrong, and that we ought to act responsibly. All, that is, except for Brad, the confident, muscular skinhead character with a carefully shaven goatee sitting directly at the head of the table, to my right. This cocky young fellow I had unease about since seeing him lope down the hallway on day one. He had stared at me for just a second or two too long when he first saw me, expecting some sort of acknowledgment to his presence from another white guy.

Trouble ahead. 

It wasn't just that Juror No. 8's blog cast him as the Chuck Norris of this jury.  The blog posts started in mid-trial, not after the verdict -- and they revealed that No. 8 had lied in voir dire, claiming he was his office's "project manager" and omitting the more accurate term "lawyer."  ("More neutral than lawyer, don't ya think?" he crowed in the blog.)  "This is a situation where a manipulative person, who unbeknownst to other jurors and the trial court was also a practicing attorney, deliberately maneuvered himself into the position of foreperson and potentially hastened the jurors to a verdict," said the troubled Court of Appeals.

At this point, the deliberations took a turn for the unexpected. The stiff man to my right, Brad, Mr. Tough Guy, blurted out, 'I can't believe you people. You're spineless! Can't you see this guy did it?! I know about justice, man, I have a friend in jail for attempted murder. Until you lose something yourself, you never know! I know, man! Come on!' His voice rose as he got excited that he finally had the attention of everyone in the room . . . . "

Gil spoke up. 'Who are you calling spineless?' Brad continued unrepentant. 'I mean, this is wrong. We got to put this guy away. Why do you think we're here? You don't know, man! I know! Unbelievable that we're gonna let this guy walk! Not me! '

The lying part was easy for the Court of Appeals.  When you intentionally mislead the court and lawyers about something they would fairly want to know, the court explained, there's a presumption of prejudice.  To let the verdict stand, the trial court should have not only reviewed Juror No. 8's writings, but also talked to him, and any other juror willing to talk.  (It's all about the Ask.)

The court struggled a little more with No. 8's leadership role, let's call it, in the deliberations.

I decided to shut him up. 'We're all bringing experiences to the table, and I'm making the count now. This is not a perfect process. Don't let the perfect be the enemy of the good.' Suddenly my wisdom bell was ringing like a church bell at a wedding. I said rather sternly, 'Give me a "guilty" or "not guilty," no commentary[.]' Around the room, I polled everyone individually. Each voted guilty on count five. I signed the jury forms then asked Bonnie, closest to the door, to buzz [t]he bailiff.

It was too much for the Court of Appeals.  "Assuming Juror No. 8 was reasonably accurate in his recitation of what went on in the jury room," the court said (and I'll pause here to let the reader consider that assumption), the possibility of pressure, coercion, or a compromise verdict was too strong.  The trial judge was ordered to bring back Juror No. 8 and his colleagues, and question them about "the integrity of the deliberative process," "the overt events and circumstances of the proceedings in the jury room," and presumably whether anyone else heard No. 8's wisdom bell.  The court said:

An inquiry into these matters would not violate [California] Evidence Code section 1150, subdivision (a) because it would not require investigation into the subjective reasoning processes of the individual jurors.

That's where we'll pick up with the exciting sequel tomorrow.  Okay, less exciting, because it will talk about things like how this opinion would have been different under bthe federal rules -- and how, entertaining as it is, No. 8's blog isn't really the issue. 

__________

Notes:

1. Kevin O'Keefe at Real Lawyers Have Blogs was one of the first to pick up this story, as he is early to pick up just about anything that occurs near the corner of Law and Blog. 
2. I looked for No. 8's blog posts and couldn't find them; I'm guessing they've been taken down.  The Court of Appeals opinion excerpt, though, goes on for pages. 
3. Later in this three-part series:  "Blogging Jurors:  The Good."
4. Far more seriously, thanks to Clay S. Conrad of jurygeek for his comment yesterday on activist jurors.  That post began when a white supremacist wrote to me saying white jurors should use what the writer called "jury nullification" to acquit white defendants accused of harming African-Americans and immigrants.  Conrad argues that such verdicts often aren't jury nullification at all.

(Photo by Kreg Steppe at http://www.flickr.com/photos/spyndle/485472993/; license details there.)

A Tale Of Juror Expertise

Here's a quiz.  When you leave a prominent local lawyer, teacher, and legislator (that's all one person) on your jury, are the other jurors likely to:

1. Ignore his views and go their own way?
2. Treat him like any other juror?
3. Ask him questions and look to him for guidance?

Senator Professor Juror, Esq. and Ph.D

"My selection as an actual juror certainly came as a surprise," wrote Robert Martin.  "I had assumed - because I was a state senator, law professor, practicing attorney and father of a local lawyer - that the judge or at least one of the trial lawyers would seek my removal."

You can see why he assumed that.  "Lawyer" only begins to describe why other jurors might defer to Robert Martin.  He's an elected official, a sitting New Jersey state senator, and has been for fourteen years.  He's been a teacher and legal scholar longer than that, a full-time member of Seton Hall Law School's faculty.  His Seton Hall bio says he also has a Ph.D in education.  But he was left on the jury in a slip-and-fall case against ShopRite last year.  He was selected as foreman at random, and the jury awarded $876,000. 

Presumably that would have been that, at least as far as Sen. Prof. Dr. Martin's jury service was concerned, except that he wrote about it.  He published an article in the New Jersey Law Journal last December, describing the experience.  (The article is here; it's subscription only, but there's a 30-day free trial.)

The juror's-eye view

It's a good article.  Martin described, as other jurors have, the fascinating dynamic of a diverse group of strangers trying to decide a case:

Perhaps the most indelible observation is that jurors really do take their obligation seriously. Every juror I encountered tried to do what was right and what was fair. Although some may not have originally wanted to participate, once appointed they accepted their role and performed conscientiously. By being one of them, I gained a much deeper appreciation for their service, sacrifice, and most importantly, sincerity.

He defended the verdict against those who might assume "that someone who happened to fall in a supermarket and proceeded to sue the owner must be a con artist out to make a fast buck."  It came down to credibility, he explained:

What seemed to be overlooked was that, in this case, all six jurors had found the plaintiff highly credible and, conversely, had determined that the defendant had misrepresented the facts after having failed to exercise reasonable care.

He noted too that the jurors' job wasn't made easy.  There was no note-taking, not even on the hour-long oral jury instructions.  There was no coffee in the "coffee breaks."  When the trial was extended for a day, no one asked the jurors about the effect on their schedules. 

Oh, and one other thing

And then he said something that has had the verdict in the newspapers and the appellate courts ever since.  Because of that something, the New Jersey Appellate Division ruled in January (I can't find a copy, even on Westlaw) that the judge needed to "conduct proceedings to explore allegations of jury misconduct."  The same court ruled yesterday that the hearing, in which all the jurors will testify, has to be public.  Here's the paragraph that is causing all the stir:

Over the course of our deliberation I became increasingly aware that other jurors were relying on me for assistance, especially in dealing with abstract legal concepts and procedural issues. For example, I was asked to clarify what the judge meant by "proximate cause" and its significance in proving a negligence claim. I do think my familiarity with the law proved helpful to fellow jurors; but I remain undecided as to whether it's advisable to have a lawyer serve on a jury — especially as its foreman. I am convinced that in our case my opinions swayed other jurors and were extremely influential in the final outcome.

No surprise

Well of course they did.

Of course the others relied on him, and of course his opinions were extremely influential.  Even if the others hadn't been time-pressured, caffeine-starved, and bereft of any notes, they would have relied on him. 

I've only read what I'm citing here, so I can't say whether anything was wrong with this New Jersey verdict.  But as a reminder for the rest of us, the story is timely even if it may be incomplete.  It highlights what may be one of the biggest disconnects between trial lawyers and jury reality:  the role of juror expertise.

The role of juror experts

I've written that mock trials don't predict the outcome of trials, but they're good for a lot of other things, and one of them is understanding how juries work.  You don't have to watch many mock trials to see that one of the strongest forces in the jury room is individual juror expertise:  jurors defer to other jurors' experience and knowledge.  If your trial is about lawn mowers and one juror repairs lawn mowers at the hardware store, you're unlikely to win without his support.  If your trial is about safety in a restaurant and one juror owns a restaurant, you're unlikely to win without her support. 

And if your trial is about law -- that is, if your trial is a trial -- and one juror is a lawyer, you're unlikely to win without the lawyer's support.  If the lawyer is also a community leader, experienced teacher, articulate writer, published author, elected official, and apparently respectful of the group and pretty skilled in understanding what it needs, "extremely influential" is the very least you can expect.

_____________

Update on past posts: 

Richard Glawson, the defendant who got a new jury after he punched a juror in Boston, screwed up his trial again yesterday by threatening to execute the entire new panel.  The news sources don't discuss whether and to what extent mental health is the issue here. 

(Photo by Mai Le at http://www.flickr.com/photos/maile/1745480/; license details there.)

The Shocking Case Of The Jurors Who Compromised

The jurors found zero dollars in lost sales or lost good will, but they decided to award attorney fees.  To calculate attorney fees, they each estimated what they thought the plaintiffs had spent based on their own experience, and they averaged the number to reach a verdict of $19,250,000. 

So sayeth the three jurors who filed affidavits after last month's big verdict for Procter & Gamble against Amway distributors who spread a rumor that P&G's logo was a satanic symbol. 

The affidavits are attached to the defendants' brief asking for an "immediate inquiry into possible jury misconduct."  The jurors shouldn't have awarded attorney fees, the defendants argue, and they shouldn't have averaged their individual damage figures -- an impermissible "quotient verdict" -- for any purpose.  Law.com picked up the story, including the defendants' allegation (unsupported by the affidavits so far as I can tell) that the jurors had counted the lawyers at counsel table in calculating fees. 

Since it came out, I've heard skilled lawyers talking about the case as an example of the jury system gone wrong.  To me it's a better example of how thoroughly lawyers forget how our brains used to work before we were lawyers.

Quotient verdicts happen

If you've seen ten mock juries deliberate, I bet you've seen some form of a quotient or compromise verdict.  Why do they do it?  Why wouldn't they? 

Think about it.  Outside the courtroom, we use "quotient verdicts" every day.  When you split the difference with the used car salesman to reach a price, you've averaged your two positions to get a fair result -- a quotient verdict.  Every "split the difference" settlement agreement is a quotient verdict.  When your kid wants to stay up 20 more minutes, you start at five, and you end up at twelve and a half, you've reached a quotient verdict.  We've been taught since childhood that finding a midpoint among different positions is a fair and honorable way to reach agreement.

When the Procter & Gamble jurors got to court, nobody told them the rules had changed.  The jury instructions contain the following familiar (to us) substantive information on how to reach a verdict:

The verdict must represent the collective judgment of the jury.  In order to return a verdict, it is necessary that each juror agree to it.  Your verdict must be unanimous.

It is your duty, as jurors, to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment.  Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence in the case with your fellow jurors.  In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous.  But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors for the mere purpose of returning a unanimous verdict.

You and I read that instruction as prohibiting averaging, majority votes, and so on.  But it doesn't say that.  A smart, honest juror could easily decide that a time-honored consensus tool like averaging is a fair way to get unanimous agreement "without violence to individual judgment."

Attorney fees are "out of pocket costs," aren't they?

The same is true with attorney fees as damages.  Trial lawyers know how many clients, even sophisticated business clients, think there must be a rule that the winning party in a trial gets its fees paid.  Why wouldn't jurors believe that too?  The Procter & Gamble jurors got two instructions telling them how to calculate damages, of which the entire substantive portion is:

Damages means the amount of money which will reasonably and fairly compensate Procter & Gamble for any losses you find were caused by the Defendants' false message.  You should consider the following:

1. The loss of Procter & Gamble's goodwill, including injury to its general business reputation:
2. The lost profits that Procter & Gamble would have earned if the Defendants had not sent the false message.  Lost profits are determined by estimating the amount of product sales that were lost and subtracting the amount of money that would have been spent making and selling the product;
3. The expenses of attempting to prevent customers from being deceived;
4. The cost of advertising or communications to consumers to correct confusion caused by the false representations;
5. The amount of its out-of-pocket expenses incurred to correct the Defendants’ false statements; and
6. Any other factors that bear on Procter & Gamble’s actual damages.

* * * *

Any damages you award must have a reasonable basis in the evidence.  In determining damages, the difficulty or uncertainty in ascertaining or measuring the precise amount of any damages does not preclude recovery, and the jury should use its best judgment in determining the amount of such damages, if any, based upon the evidence.  You may not, however, determine damages by speculation or conjecture.

That doesn't say they can't award attorney fees; in fact, it specifically tells them to award the "out-of-pocket expenses incurred to correct the Defendants’ false statements."  And as for relying on their own experience to gauge hourly rates, the instructions said:

You are to consider only the evidence in the case.  But in your consideration of the evidence you are not limited to what you see and hear as the witnesses testify.  You are permitted to draw, from the facts you find have been proved, such reasonable inferences as seem justified in light of your experience.

Inferences are deductions or conclusions which reason and common sense lead the jury to draw from facts which have been established by the evidence in the case.

Take it to the street

If you don't believe me, try it yourself.  Read those instructions, without emphasis, to any ten smart nonlawyers.  Tell them P&G didn't prove lost sales, but that the defendants did spread the rumor, and P&G had been litigating this case for more than a decade in its claimed effort to set the record straight.  Give your jurors copies of the instructions, and if they have questions, tell them they need to look at the instructions again.  (If you want to add extra realism, wait a couple of hours before you tell them.)  I'm guessing you'll find at least three who think they can award attorney fees, rely on their own experience to do it, and average their views on what a fair award should be.

There was a curse in the Utah Procter/Amway case, and it wasn't satanic; it was the Curse of Knowledge.  To lawyers and judges, it's obvious that attorney fees aren't usually part of damages, that jurors' own experiences with attorney charges aren't evidence, and that jurors aren't supposed to average verdicts.  It's so obvious that we forget to tell the jury.

____________

Related notes:

1. In 1997 the New York Times ran a good history of the P&G/Amway satanic rumor saga, two decades old even then.  It's subscription only.
2. For an overview of the legal landscape faced by the defendants in this motion, a New York University Law Review note by Benjamin Huebner is a great start.  In a nutshell, Federal Rule of Evidence 606 restricts the use of juror affidavits to challenge verdicts except as to "(1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form."  In 1987, the Supreme Court held in Tanner v. United States that a predecessor rule kept juror affidavits out when they merely impugned juror conduct, even when that conduct extended to the outright bacchanalia described in the affidavits in that case.   

(Photo by Stephanie D. at http://www.flickr.com/photos/strph/127760644/; license details there.)

 

Letter to a Nervous Juror

Somewhere out there last week, a nervous juror was searching Google.

At least he might have been.  I'm new at blogging, so I still check my stats with fascination.  One day last week, someone pulled up the Voir Dire category of this blog by asking Google "what happens if you lie about voir dire."  I didn't think much of it.  Then a few hours later, the search "voir dire not realizing you know someone" pulled up the Watching The Jury category here.  Hmmm.

It could have been anything, of course, but I'm picturing this scene.  The juror (let's call him a man, or I'll be he-or-she-ing you to death) showed up at voir dire.  The judge read a list of names and asked if anyone on the panel knew anyone on the list.  Nothing rang a bell, so he didn't raise his hand. 

Later, one of the lawyers called a witness -- and omigod, he recognized her.  Her name clicked instantly; he should have remembered it when he heard the voir dire list.  He'd taken some kind of oath when they started voir dire, right?  It definitely had something in it about telling the truth.  What should he do?  What would they do to him? 

I doubt he'll find me again, but just in case:

Dear Nervous Juror,

First, I'm sorry you didn't find anything here to help you.  It doesn't look like you got much guidance from the rest of your results, either.  I hope you ran the search in news as well as in web posts; if you did, you might have found this story, and learned that a juror had a similar experience just recently in Wisconsin's much-followed Steven Avery trial. 

In the Avery trial, a police officer who was an important witness took the stand.  Only when the juror saw the officer did she realize that she had seen him testify when she was on another jury seven years ago.  It all worked out fine, at least for her.  She told the bailiff right away, the bailiff told the judge, the judge questioned her and ruled she could still be impartial.  (There was a mistrial motion, and it was denied.)

I hope it worked out for you too.

Sincerely,

Anne Reed

ps -- Whatever you do, don't lie to the judge.  They might not punish you for it, but they might, and either way it makes the lawyers' lives very complicated.  You might have read my post on U.S. v. Vartanian, decided by the Ninth Circuit last Wednesday; in that one, the juror who lied only had to go home.  But that same Wednesday in Fort Worth, a juror told the judge he didn't know the defendant when in fact they were basketball buddies -- and he went to jail for three days.

U.S. v. Vartanian, or The Case Of The Juror Who Chatted At Starbucks

It's a good day when a judicial opinion not only illustrates the rules on dismissing a juror during deliberations, but also has entertaining facts.  U.S. v. Vartanian, issued by the Ninth Circuit on Wednesday, is a case like that.

Hagop Vartanian was accused of defrauding both lenders and the IRS.  On the second day of deliberations, the jury foreperson sent the judge a note saying "There is one juror that has been seen on different occasions speaking to the defendant's family.  Juror's name is Kathy.  Three or four people have seen her and two saw her this morning chatting with them outside the courtroom."

The trial judge interviewed Kathy, Juror No. 7.  The Ninth Circuit reported:

When questioned about her contacts, Juror 7 stated that she had only exchanged "pleasantries" with people associated with the case, telling them "hi," "it's a nice day," or "[t]hings will be okay." Juror 7 assured the judge she had done nothing more than say hello and did not intend to express her feelings about the case. At that time, Juror 7 also maintained that she made the "[t]hings will be okay" comment to a woman she described merely as dark-haired and present in the courtroom.

The trial judge then interviewed the other jurors, and got a different story.  The "merely" dark-haired woman was no bystander, but Vartanian's sister.  Juror No. 7 had tried to chat with defense counsel at Starbucks, had made a point of taking the elevator alone with members of the defense group, had approached Vartanian's family and talked for a full minute, and had talked about "Vartanian's eyes and how kind he looked and everything."  The trial judge "also noted that Juror 7 exhibited other "bizarre" behavior, including "bombard[ing] . . . the parties and the Court with notes asking questions at inopportune times and bringing chocolates to the court reporter and insisting that she take them."

Hold the phone, she's a fan

Then one juror added something that took the case to the Ninth Circuit: 

During an interview, one juror blurted out that "[Juror 7] said that [Vartanian] was not guilty and nobody can change --" Later, when asked whether Juror 7's conduct "influenced [her] or affected [her] in any way," the same juror also remarked: "Well, I think the jury is going to be hung up."

With those words the defense had an argument, and the trial judge had to find a legal boundary.  A trial judge cannot dismiss a juror because of her views on the merits.  If the other jurors were exaggerating Juror No. 7's outgoing nature in hopes they could sign their guilty verdict and go home, it was the trial judge's duty to let her stay.  But a trial judge can, and should, dismiss a juror for "improper contacts suggesting juror bias."

The trial judge dismissed Juror No. 7, citing not only her contacts with the defense group but his belief that she had lied to him about those contacts.  The Ninth Circuit affirmed.

(Starbucks photo by Bronwyn Quilliam at http://www.flickr.com/photos/beeep/92495907/; license details there.)