Deliberations

Legalese After-Math: When Jurors Forget to Carry the One

The Indiana Court of Appeals recently ruled that a plaintiff was not entitled to several hundred thousand dollars that the jury allegedly thought it was awarding (but didn’t).  According to a juror’s affidavit, the group became confused during the deliberation process and accidentally lowered the dollar figure.  In addition to being bewildered by the jury instructions and verdict form questions, the jury had to request multiplication help from the judge in open court.  As a result, they actually awarded $128,172, instead of the $464,472 that was claimed to be the intended award. 

Some might view this as another opportunity to slam the intelligence of juries or make a wisecrack about those who are not smart enough to get off jury duty.  After all, who could possibly misunderstand something as simple as a verdict form?

However, those of us non-attorneys who actually see verdict forms might have a different response.  Jury instructions and verdict forms are written by experts in law that are fluent in legalese.  Often, attorneys will battle over small wording changes that are vital to the legal arguments, but far above a typical juror’s head. 

This is not to suggest that the jurors are stupid.  I’m sure that a juror who works in nuclear science or car mechanics would be able to write instructions that would easily perplex the average attorney.  The issue is experience, not intelligence.

Much like speaking a second language, it is easy to take the meanings of words and phrases for granted.  Litigators can attest that even something as simple as the burden of proof can often be confused by jurors. 

There are no statistics that accurately convey how frequently juries come to verdicts based on misunderstandings of the verdict form or instructions, but anecdotal mock trial evidence would suggest a much higher rate than anyone would be comfortable with.  The question is: What can be done to help?

The answer is to start working on the verdict form early.  As this article points out, attorneys often focus on the jury selection with great intensity and leave the verdict form as a loose end to be tied.  Great thought must be put into the verdict form, but this is not strictly about legal strategy.  It is also about simplicity.

Much like speaking to a Spanish 101 student, time and explanation are vital.  Try to use as many basic words as possible.  When big words are required, be sure to explain the meanings with little words that the student already knows.  Most importantly, don’t add complexity where it is unnecessary.  The result will only be frustration and eventual exhaustion.

Gracias.

Blogger: Matt McCusker

 

Doggie Witness Prep (Coming To A Courtroom Near You?)

Recently, a loveable dog named Rose (Rosie to her friends) sat next to a child witness in court while she gave testimony about the brutal rape and impregnation she endured at the hands of her father.  Yes, a dog sat in the witness stand.  Rosie is a service dog that can sense anxiety and was provided to the young witness to aid her in the process of testifying.  At one point, the help was very evident when Rosie “nosed” the child during a particularly difficult bout of answers.

While this is the first instance of “comfort dog” use during testimony in New York State, (as this article outlines) the practice has actually been happening across the country with child witnesses for some time (Arizona, Hawaii, Idaho, Indiana, etc.).  In this case, Rosie and the witness spent five weeks bonding (and prepping) prior to the trial.  The goal of the training was to help the victim reduce her anxiety about facing her father and being questioned on such painful memories in front of a courtroom full of strangers.

Not surprisingly, the defense attorney was up in arms about the dog’s presence (and is appealing).  It is certainly a valid point to suggest that the presence of a dog could be unduly prejudicial.  Would dog lovers view her more favorably?  Dog haters more unfavorably? Is it possible that a witness could lie more easily with a comfort dog present?  How would the dog impact opposing counsel’s cross examination?

These are valid questions, but the opposing response is more persuasive.

In State v. Cliff, 116 Idaho 921, 782 P. 2d 44 (1989) an eight year old victim of sexual assault was allowed to carry her doll to the stand because the court ruled the calming effect would aid in more accurate testimony.  A similar ruling occurred in Washington [State v. Smith 119 P.3d 411 (2005)] when a teddy bear was allowed to venture into the witness box.  In those cases, the defense unsuccessfully argued that the presence of a psychological security blanket would impede cross examination of the children.

Anyone worth their salt at witness prep will tell you that anxiety is one of the top barriers to effective testimony.  Much of what litigation consultants do is help in reducing witness anxiety so the truth can be more effectively presented on the stand.  Why would the reduction of anxiety in a child be a bad thing?  Further, service dogs for people with physical/mental handicaps have long been allowed in courtrooms.  Has the presence of these dogs created unjust verdicts?

Most importantly, the “comfort dog” accommodation has primarily been utilized with children.  A child witness has a special status with the court, which can be seen in states that allow closed circuit or videotaped testimony for child victims.  As this UST Law Review notes:

“…our Supreme Court  promulgated the Rule on Examination of A Child Witness  which acknowledges the special concerns of child witnesses that need to be addressed while testifying before criminal, civil, legislative, or administrative proceeding…  the main objectives of the said Rule are to ‘create and maintain an environment that will allow children to  give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of the truth.’”

Obviously, the rules of the game change when a minor is giving testimony.  Proper voir dire should spot those jurors who would not be able to set aside the influence of having a dog (or a doll, or a teddy bear) sitting with a child on the stand.  While there is some danger of prejudicial effects, the value of truthful testimony from a calm mind (and reduced emotional damage to the child) far outweighs the potential risk.

Those interested in utilizing comfort dogs in court can check out a sample brief here.

Blogger: Matt McCusker

 

The other definition of "LAW PRACTICE"

 Attorney James Earhart had done an admirable job defending Karen Sypher.  For those unaware, she is the the woman who was accused of attempting to extort money from Louisville basketball coach Rick Pitino.  However, according to jurors, Mr. Earhart inexplicably went off-script at the end of the trial and lost them.  The following excerpt from an article in the Courier-Journal says it all…

…in his closing argument, James Earhart seemed to abandon his carefully scripted defense, Elder [the foreperson] and other jurors said.  First, the defense lawyer admitted that [Pitino] had been the victim of extortion, after previously arguing that it was Pitino who bribed Karen Sypher.  Then, Earhart abruptly offered up a culprit for all the threats delivered to the coach — Tim Sypher, Karen's then-husband, Pitino's longtime aide and equipment manager.

“It was a surprise,” Elder [said] “It was the first time we had heard it. There was no evidence to support it. It almost was like it was an after-thought.”

Ouch.

Many overestimate their ability to perform “on the fly” or “off the cuff,” but still choose to attempt it.  Some say the delivery of an impassioned speech is more “organic” or “real” when put together at the last minute.  Others just like the adrenaline rush or are serial procrastinators.  No matter the rationale, those who think a closing argument (or opening statement; or direct examination) is more powerful and effective without practice are mistaken.

This paper out of the University of Miami utilized quantifiable measurements to demonstrate that practicing speeches in front of an audience is very helpful to performances.  Moreover, it found that the larger the practice audience, the more adept the speaking presentation in front of a real audience.  So, while it may be more comfortable to stand in front of your bedroom mirror, it would be more useful to gather your family or co-workers.

Don’t have anyone to use as a practice audience?  No worries.  Researchers from Washington State University have shown that even simple visualization can substantially aid in the delivery of speeches.  Not only did those subjects exposed to visualization perform better than the control and placebo groups, but they also had significant reductions in trait and state communication apprehension.

Some people may feel like they are “special” or have a “unique ability” to deliver presentations extemporaneously.  That is certainly possible.  However, those who have read Malcom Gladwell’s book Outliers will know of the “10,000-Hour Rule” which suggests that the key to becoming an expert in any discipline includes thousands of hours of practice (and some luck).  How many of us could claim to even having 1,ooo hours of “off the cuff” speaking experience in high-pressure situations like a trial?

I realize that preparation levels vary by the importance of the performances (a deposition interview is not an opening statement).  However, I would suggest that we all sometimes cut corners under the belief that practice is unnecessary.  This is especially true when we are confident about our subject matter feel connected to it.  With that in mind, I leave you with this clip of testimony from a Santa Cruz City Council meeting.  This woman was passionate and felt like she had to make a strong case for her position, however she obviously skimped on the preparation.  As you can see, it didn’t quite work out. (Miss Teen South Carolina has met her match.)

Blogger: Matt McCusker

OPENING STATEMENT? We've got an app for that.

 Last year, comedian Louis CK delivered a hilarious rant on the Conan O’Brien Show about our modern-day technological expectations (click here to laugh).  CK makes his point about how accustomed we’ve become to the luxuries of 21^st century life by recounting an interaction with a fellow airplane passenger:

“I was on an airplane and there was internet, high speed internet on the airplane…it’s amazing… then it breaks down and they apologize the internet is not working and the guy next to me goes ‘this is bullsh**.’…Like the world owes him [YouTube clips] he knew existed only 10 seconds ago… Oh really?  What happened next?  Did you fly through the air incredibly like a bird? Did you partake in the miracle of human flight?  Wow, you’re flying!  It’s amazing!  Everybody on every plane should just constantly be going, ‘OH MY GOD!’ ‘WOW!’ …You’re sitting in a chair in the sky!”

Louis CK’s rant went viral through the internet because it rang so true.  Technological advancements have completely altered our daily expectations.  Think of the first cell phones, the first internet connections, the first automobiles.  How would we rate them today?  Progress has caused us to judge harshly those who fail to rise to the lofty goals we set.  The courtroom is not immune to this phenomenon.

Today’s information-age jurors expect well-crafted presentations that include advanced auditory and visual components which are interwoven with the case story.  Moreover, a famous 1963 Weiss and McGrath study demonstrated that there is good reason for this juror preference.  They found that information is retained at a remarkably higher rate when it is presented orally and visually (65% retention), rather than orally alone (10% retention) or visually alone (20% retention).¹  While many attorneys think that a good opening statement or closing argument does not need the aid of visual dynamics, both research and juror comments beg to differ.

However, there is also the danger of going too far.  Presentations should not be so shocking or overwhelming that they serve to drown out supporting evidence that may be key to the foundation of a case. A recent study published in the Journal of Current Issues and Research in Advertising found that commercials shown between “intense war news” segments had much lower retention rates in audiences.  One could see how it would be counterproductive to make key points in a closing argument directly before or after graphic photos were shown.

Interestingly, a similar point was made when researchers tested the efficacy of PowerPoint text animations.  A study out of the University of North Carolina at Wilmington found that college students retained less information when presented with animated PowerPoint slides, than when the same topics were presented through static (non-animated) PowerPoint slides.

Still, it should be remembered that a good PowerPoint presentation, demonstrative computer animation or video clip will only go so far.  This audio-visual array must also be set in a framework that allows jurors to focus on learning, rather than remembering.  Researchers from the University of Amsterdam and Duke University have demonstrated that learning and remembering compete for valuable resources in the brain.  As a result of this battle for brain power, jurors who are constantly trying to recall case elements (Who is who? Why does this matter? When did this happen?) are distracted.  If this happens, all of the money spent on fancy instructional animations could be wasted.  An effective story or narrative framework is essential to making multi-modal presentations stick in jurors’ minds.

Blogger: Matt McCusker

*Image courtesy of the Wake County (N.C.) Bar Awards and Merritt Videoworks.  Click Here to see all of the great work the Wake County Bar is doing for their community and see if you can help.

¹ (H. Weiss and J.B. McGrath, "Technically Speaking: Oral Communication for Engineers, Scientists and Technical Personnel" (1963).)

WHAT AN UMPIRE CAN TEACH BP AND TOYOTA: How Truly Being Sorry Can Change the Legal Game

 It was a deeply sympathetic moment that we will all remember; Toyota’s CEO (Akio Toyoda) immediately delivered a heartfelt apology to his company’s consumers as soon as it became evident that there was a safety problem with some Toyota gas pedals.  What?  You don’t remember that?  Well, maybe it was more of a very belated, quasi-apology in front of the U.S. congress teamed with a commercial contrition that was more of a salute to prior Toyota glory and their “commitment” to be a top auto manufacturer again.

However, BP’s Tony Hayward wasn’t going to make the same mistake.  He released an ad that actually said “I’m deeply sorry” only 6 weeks after the disaster (a.k.a. 20 million gallons of oil later).  While this was slightly quicker, it also mixed the “deeply” remorseful message with touts of all the great things BP was doing to fix the problem.  By the way, congratulations to BP on the largest cleanup effort in U.S. history,  the polls are showing that bragging about this is really helping their image (or not, as this Ace Metrix data shows.)

Then there is Jim Joyce, the umpire who mistakenly blew a call that would have given Detroit Tigers’ pitcher Armando Galarraga a perfect game (which is amazingly rare in major league baseball).  Sadly, instant replay undeniably confirmed that that call was wrong.  So, upon seeing the evidence, Mr. Joyce immediately asked to personally see Mr. Galarraga to apologize profusely and tell him how terrible he felt (face to face).  The meeting ended with a hug and Armando said “I understand.”

Jim Joyce did not try to make excuses or point out all of the great calls he had made in the past.  He quickly owned up to his mistake and gave a heartfelt mea culpa that showed his distress about the situation.  He did not wait for a chorus of negative press.  He did not need to see if thing blew over.  He acted like a man who truly felt sorry.

Studies out of the University of Illinois have shown that apologies can “resolve legal disputes ranging from injury cases to wrongful firings, giving wounded parties a sense of justice and satisfaction that promotes settlements and trims demands for damages.”  This includes significant reductions in financial demands.

In an article published in Contemporary Accounting Research, a collaborative study between George Mason University and Oklahoma State University found that jurors reduced the frequency of negligence verdicts when auditors expressed regret for mistakes that resulted in damage. “We found that apologies reduce the jurors’ need to assign blame to the auditor for any negative outcomes to the client,” said one of the authors.  The same has been shown at Johns Hopkins for patients who feel that their doctor was legitimately sorry about malpractice and did not try to make excuses.

In fact, an investigation out of the Nottingham School of Economics found that if a company says “I’m sorry” to wronged customers, it can be more effective than sending a check.  This research asked consumers to withdraw a negative evaluation of a company for a delay in the shipping of a product to them.  Some consumers were offered money (“As a goodwill gesture, we can offer you €5 if you would consider withdrawing your evaluation.”) while others were told “We are very sorry and want to apologize for this.”  Twice as many respondents withdrew their complaint after the apology than when offered compensation.

While BP and Toyota said they were sorry (sort of), the public has not felt that it rang true.  Their messages were mixed with self-serving statements and attempts to spin the message.   Umpire Jim Joyce (and the research on apologies) has demonstrated that when a mistake is made with dire consequences, sometimes the most beneficial path is just admitting fault and asking forgiveness.  The court of public opinion (and juries) are sometimes not as blood-thirsty as some might imagine.

Blogger: Matt McCusker

Shoot-out at the OS Corral (v1.2)

There are a lot of sayings out there that warn us against making the same mistake twice:  

“The definition of insanity is trying the same thing over and over again, but expecting different results.”

“Don’t bang your head against the wall.”

“Those who fail to learn from history are doomed to repeat it.”

And so on…

Despite this sage advice, many of us continue habit patterns that have been exposed as unhelpful. I am left wondering, why are changes so difficult to make? 

A potential example of this comes from a recent verdict against Microsoft in an East Texas courtroom.  Two gunslingers met for a rematch over a high-stakes patent case.  Douglas Cawley represented the plaintiff (VirnetX), while Matthew Powers (an IP Top Gun) again wore the defense hat for Microsoft. As Zusha Elinson of Law.com writes: 

“The two have shown contrasting styles, according to lawyers who have faced them: A tall Texan, Cawley speaks slowly with a slight twang and comes off as a gentleman. Powers has an erudite and sometimes imperious style.” 

Less than a year ago, on a different high-dollar patent case against Microsoft, the same two lawyers fought it out in the same courthouse with the same judge.  The verdict was once more in favor of Mr. Cawley’s client (a Canadian software company called i4i).

I know few details about these cases, and would never suggest that two instances make a pattern.  However, I did see some quotes from jurors who spoke with Joe Mullin of The Prior Art after deciding last year’s battle ( i4i v. Microsoft):

“I expected Microsoft to have done a better job…”

“We all thought if this was that big a deal to Microsoft, they might have had some of their more executive-type people present.”

“It's big business. They just don't care.” 

“…if I was Bill Gates, and had $200 million on the line, I would want to be present.”

As Mr. Mullin’s recounts a conversation with one juror:

“…they ‘both seemed really intelligent.’ But… the jury found Cawley ‘much more genuine and sincere.’ Powers…‘came across as being cocky, and kind of always on the defensive about everything. He made several low blows...’”

The first trial’s result hinted that Microsoft was having difficulty connecting with the jurors of East Texas.  While it’s true that this venire has often been labeled as a plaintiff’s dream for IP cases, I would be curious to know how much presentation strategy was altered for the VirnetX case as a result of the prior loss.

In honor of Anne Reed’s new position at the Wisconsin Humane Society, I end this inaugural blog post as it began, with a common turn of phrase: "Don't let the tail wag the dog."  

Our habit patterns (conscious and subconscious) make life easier and predictable.  Without habit patterns, we would have to consciously choose every decision we make. (Is it brush-rinse-spit or brush-spit-rinse?).  However, these habit patterns should not become “the tail that wags us” and inhibits us from taking risks and discovering new habit patterns that are even more effective than the old.  There is no panacea that will work for every case.  Always remember the benefits of “trial and error.”

Thanks Anne, it’s an honor to continue what you began.

Blogger: Matt McCusker

Unforgettable Juror Art

Deliberations collects juror art, as you may know --  drawings and photographs made by real people on jury duty, gathered in what we cheerfully call the "American Gallery of Juror Art."  The collection is meant to show both the light side of jury duty and also the often-missed depth and talent of many jurors.  Much of the work is extraordinary.

A story like this, though, can't just go in the collection.  You have to read the whole thing, but the short version is that artist Alberto Araoz, a 64-year-old Cuban immigrant, sat as a juror in a California murder trial where the victim was a four-year-old girl.  When it was over, he went home and painted the little girl's portrait -- beautifully.  Six months after the trial, he gave the finished painting to her grieving grandparents. 

I've been reading a lot of "jury duty" tweets on Twitter lately, and feeling a little discouraged at the frustration, boredom, and alienation that many people express.  It was awfully good to see this article.

(No picture with this post; just look at the ones in the article.)

Find Jurors' Experiences At Jury Experiences

I wasn't sure about the Jury Experiences web site early on, but I've become a fan.

"What really happens in jury rooms"

The site itself as evolved as much as my perception of it has.  It was designed as, and still hopes to be, a forum, where jurors would post descriptions of their own jury experiences.  When he started the site back in late 2006, founder Jonathan wrote:

Many of us serve on juries. Our experiences are often both extremely interesting and much different from what we expected. We emerge from our service with stories that we share with our families and friends. However, with the exception of notorious trials, and rare cases in which ex-jurors are interviewed for research purposes, most of these stories are eventually lost. 

The Internet provides an ideal medium for collecting and discussing our experiences. While there are numerous jury-related Web sites and, increasingly, blogs where individuals write about their jury service, few if any of these sites provide an open forum where ex-jurors and other interested people can discuss their experiences and exchange ideas.

Jury Experiences is an attempt to create such a forum. By facilitating discussion about what really happens in jury rooms, court rooms and the jury selection process, in various courts and jurisdictions and especially from the juror's perspective, I hope to contribute to better understanding of our government and legal system by the public and legal specialists alike.

He was right about all that, and even "primed the pump" with a thoughtful description of his own jury experience -- but for the most part, jurors have not yet joined the forum. 

Go for the forum, stay for the news feed

Maybe jurors simply prefer to describe their jury duty on their own blogs, which we know they regularly do.  Because of what Jonathan's quiet forum has become, hundreds of those jury duty posts can be found in one place at Jury Experiences.  As he waited for the jurors to come, he started a news feed, and it's extraordinary.  My own feed settings pick up dozens of juror blog posts a week, but Jury Experiences finds so many more that I've stopped looking for them on my own.  When a colleague and I were researching juror stress for my Japan trip, we found examples of every kind in Jury Experiences' archives.    On top of that, Jonathan gathers regular news stories, usually several a day, about all aspects of juries and jury service. 

There's so little of Jonathan's own voice on the site that it's easy to mistake it for a splog, or worse, a front for the kind of extreme politics that sometimes attaches itself to the idea of the jury.  I'm now convinced it's neither, and it's become a go-to resource when I want to know what jurors -- at least the ones who write on line -- really think.

A New Questionnaire, And The Impression It Makes

Here's a new proposed jury questionnaire for Deliberations's collection, from the upcoming federal corruption trial of former Orange County, California sheriff Mike Corona, his mistress, and his wife. 

The questions

You'd think that a case with that cast of characters might have few stipulations, but it looks like the defense is submitting questions jointly, and even the government agrees to some of them.  The proposed questions touch on infidelity, profanity, boat ownership, business gifts, and the racial controversy raised by Hurricane Katrina, among many other topics.  There's a remarkable list of almost eighty agree-or-disagree questions probing jurors' attitudes.  Many judges wouldn't put all those in a questionnaire, but they make a great voir dire checklist. 

The impression

Even better, this questionnaire comes with its own newspaper article.  When a newspaper features a jury questionnaire, the result is not only entertaining (this one is a lot of fun) but informative for trial lawyers.  The reporter is doing what your jurors will be doing:  trying to figure out why on earth you're asking these questions, and making judgments about you based on the questions you've asked.  If a reporter says your questionnaire "seems like a survey on 'Cinemax After Dark,'" some juror may be saying that too.

(Photo by Korean Resource Center at http://www.flickr.com/photos/krcla/362137815/; license details there.)

American Gallery Of Juror Art Welcomes Laurie Ballesteros

"Houston is my muse," says Laurie Ballesteros on her blog, Photine:

I enjoy exploring every aspect, from its well known avenues to its hidden corners. I am especially drawn to capturing the elements of the city that never change. The buildings, the parks, the streets ... the city that we inhabit every day but often walk by without seeing.

So you can see why, when she reported for jury duty, she wanted to record this view of her city:

Like many juror artists, Laurie Ballesteros has to make room for art in her life. She's a middle school choir teacher, which would give her the right to do nothing but watch TV at the end of the day. Instead, she takes pictures -- or heads for the computer, where she administers a web site called Houston Photobloggers, runs a Flickr group with over 250 members called "Assignment: Houston," and most importantly maintains the photoblog Photine, where her lovely images can be seen and also purchased. She has a wonderful eye not only for the urban landscape, but also for found still life (like these clarinets), color (this thread display), flowers (this bottle brush), everything. Her work gives you the idea that the world is considerably more beautiful than you thought it was.

All rights in this image belong to Laurie Ballesteros. Thanks to her for allowing it to be reprinted here and in the American Gallery of Juror Art.

Lawyers In Etanis Cumba Trial, You Have A Juror On Line One

Soon this will be commonplace, but in October 2007 it's still news. After a jury acquitted the defendant in an intensely charged murder trial last week, one of the jurors posted a comment on line to defend the verdict.

"He killed my baby"

Joseph Wilson, 20 years old and two years out of high school, was stabbed to death at a 2005 party. The killer wore a bandana over his face. The state charged a 19-year-old, Etanis Cumba, and last week a jury acquitted him. The scene was awful; at least one juror was crying, while Wilson's mother screamed, "He killed my baby!"

A Boston blog called Universal Hub, "an alternate news and information resource for the Boston area," posted a short notice of the verdict -- and the comments started flowing in. "[W]hen the NOT GUILTY verdict was handed down, and the victims family's cries and moans for their lost son," said the first one,

all the defendent ETANIS CUMBA did, was turn around, laugh, and snicker at the pain the Wilson family was enduring to see their son's murderer set free once again. As Boston's crime rate, especially homicide/murder continues to sky-rocket, these rats whom are the lowest form of life on this planet, continue to be set free.

Some commenters simply chimed in on guilt or innocence (as in "HE will get his one day what goes around comes around... god will punish him!!!!!!!!!!!!!!"), but others added details. "Cumba, whom has a very violent wrap-sheet was 17 at the time of the murder," said a comment, probably the same person as the first one. And there was jury intimidation, added that person and others, citing a report from Wilson's mother that "10 or 20 of Cumba's friends" had menacingly surrounded a juror in the parking lot. Meanwhile another commenter defended the presumption of innocence: "What next, a righteous lynch mob? Puhleeze."

"We did the best we could"

Into this fray came another comment -- from someone who, like most of the others, used the name "Anonymous." This is what it said:

The state created a strong probability that he was guilty, but not beyond reasonable doubt.

1) Cumba's past was not revealed to us at any time. We were not allowed to do outside research. All we knew was that this kid got arrested for mary j, and was suspected of this crime.

2) Witness One was a person who could've well committed the crime, and whose testimony of the events contradicted those of the party goers.

3) Witness Two was high on crack, weed and had drunk alcohol the night of the crime. His story also contradicts that of the party goers. He did not actual witness the crime happening.

4) Nate Yarde and his intimidation was not mentioned at any time during this trial

5) The letters, the whole 3 we were shown, had multiple interpretations. We read them MULTIPLE times, and had the same conclusions that they ambiguous. They could be a scared kid, or story coordination.

6) To us, the phone calls indicated he had drugs. Why would his brother get everything out of his room and LEAVE KNIVES BEHIND? And, where was this BLOOD OF OTHER PEOPLE ON THESE KNIVES? THIS WAS NOT ADMITTED INTO EVIDENCE.

The BURDEN OF PROOF lies on the Commonwealth of Massachusetts. There was NO physical evidence. There was NO admittance of his past, or prior incidents.

All we had to work with is a kid, who we DID NOT SEE LAUGHING ONCE, who was accused of a crime. Their evidence against him was the word of two individuals with dubious credibility, and some letters and PIECES of phone calls. I don't know where you got all of your "evidence" but these were things that we weren't told. We were picked BECAUSE we were ignorant of the case so that we could judge him SOLELY for the charges at hand.

We did the best we could, with the information we were given.

If this kid is who you say he is, he will probably end up dead by 25.

And given what I know about my co-jurors... Jury intimidation... I would have to say that most definitely did not happened. What happened was a shakey case that possibly let another murder go free.

It was -- or was supposed to be, and sure sounds like -- one of the jurors themselves. In a sense it's not different from a juror talking to a newspaper reporter. But in its emotional immediacy, its availability, and its detail, it is different.

The information superhighway ahead

It's the second time in the last month that I've learned of a juror defending a controversial verdict in the comments to someone else's blog. Meanwhile CourtTV was offering live chat with some of Phil Spector's jurors for the trial-hungry commenters who hang out over there.

It's all happening as we watch. Already we have jurors texting each other their Internet research, juror blogs, jurors reading blogs, jurors commenting on blogs, verdicts challenged over all these things. Few predictions are safe, but this one is: it will happen more and more, faster and faster. Jurors are on line.

________________

Update: see the October 5 comment to this blog here, pointing out another juror comment today to defend another verdict here. The juror comment came after Peoria's PJStar.com reported the sentencing of two men convicted of gang rape. Other comments to that story "were getting very racist," says my commenter, "and this juror stepped in to say the jury never considered race in the deliberations."

(Photo by dro!d at http://flickr.com/photos/lecates/454787692/; license details there.)

American Gallery Of Juror Art Welcomes James Mundie

If you're a portrait artist like James Mundie, jury duty is a great place to draw, because people hold still for so long.

James Mundie is a draughtman, printmaker and photographer living in Philadelphia where he says he gets called for jury duty "with surprising frequency." This time Mundie was determined to spend the time productively, so he showed up with sketchbook at hand. When they finally let him go, he headed to a local pub for lunch:

"I draw constantly," Mundie wrote to me, "but I'm trying to be more disciplined about making a regular practice of using my sketchbook. Sketching helps keep my drawing skills honed, but also loosens me up and helps me to become more efficient in describing form. Just the act of drawing something -- really observing it --- helps me to focus and relax. It's like meditation."

James Mundie's work seems to map the path from here to fantasy. On his web site mundieart.com, there are intricate drawings and prints; some are the ordinary faces around us, and others are the creatures and scenes of dreams. At another site called Prodigies, Mundie displays his "portraits of 'anomalous humans' -- sometimes called 'monstrosities' or 'freaks' -- in contexts borrowed from artworks of centuries past." At first you think these are historical drawings, and realizing that they're not pulls you in to what Mundie has drawn and your own reactions to it. "It is my hope that these images compel the viewer to linger and consider their own inhibitions and conceptions in relation to a subject which many consider taboo," he says.

If that weren't enough, the black and white photographs in Mundie's Flickr photostream are full of a sense of light and scene, like the photo he took from that same seat in the pub after jury duty.

The American Gallery of Juror Art is proud to welcome James Mundie. All rights in these drawings are his; thanks to him for allowing them to be reprinted here.

American Gallery Of Juror Art Welcomes BB, A Milwaukee County Juror

So I'm checking Flickr for juror art, as I periodically do, and there's my old familiar Milwaukee County Courthouse. 

Built in 1931, it's not everyone's idea of a picture-postcard courthouse; Wikipedia says Frank Lloyd Wright once called it a "million-dollar rockpile."  But I love its echoing stone corridors, its soaring ceilings, and and its 24 then-modern murals of "the virtues," one in each of the original courtrooms, painted for the building by Wisconsin native Francis Bradford and financed by the WPA as part of the New Deal.

The pictures on Flickr weren't of the building's exterior or of the Bradford murals.  Instead, they were interior details, recorded with wit and warmth by a Milwaukee County juror who blogs as BB.  That's about all she'll let me say:  ""I'm BB, I'm a Web Information Architect at Hanson Dodge Creative here in Milwaukee, and my blog is BB-Blog at http://bblinks.blogspot.com."  But I'll gladly publish an anonymous artist if it lets me give you a little tour of my home courthouse.

Here's the door to the basement cafeteria.  BB says, "I love the old hand-painted signage," and so do I.

Then "[t]here are these weight & horoscope machines everywhere at the Milwaukee County Courthouse," says BB.  "I wonder what the story is behind them...?"  Me too.

And here's the way the rooms are marked, and a look at a typically beautiful vaulted hallway. 

BB liked this one for the room number, and quoted 1984:  "'You asked me once,' said O'Brien, 'what was in Room 101. I told you that you knew the answer already. Everyone knows it. The thing that is in Room 101 is the worst thing in the world.'"  And of course for some people, this one probably is.

See more of BB's work at her Flickr photostream and at BB-Blog, and see more juror art in the American Gallery of Juror Art.  All rights in these photos belong to BB; thanks to her for letting me use them here.

_______________

Historical note:  not everybody likes the Bradford murals, and it looks like that's been true from the start.  Researching this post, I found this excerpt from a 1932 issue of the Wisconsin Bar Association's Wisconsin Lawyer magazine:

Civil Judge A.J. Hedding did not like the mural painting entitled 'Labor,' which the artist, Francis Scott Bradford Jr., placed on the wall behind his desk in the new Milwaukee courthouse. Therefore, he personally purchased mauve colored drapes, which he caused to be hung over the painting, and then placed in front of the drapes a picture of George Washington. There was some objection to this action ... but the judge finally prevailed. The mural painting is of a large woman walking away from the spectators, done in modern style. The weight of opinion, newspaper and otherwise, seems to be in favor of Judge Hedding's treatment of the matter.

Law Professors Watch Jurors, And Learn

It's true that jurors come to court with unrealistic expectations about lawyers and the law, whether from watching too much "CSI" or from having paid insufficient attention on the day in high school civics when someone explained why we have both federal and state courts. 

It's just as true, though, that lawyers come to court with unrealistic expectations about jurors.  And our mistakes are hard to correct, because we so rarely get to watch jurors at work.  Whenever a lawyer serves on a jury and comes out surprised, it's a lesson to us all; if it's a law professor, all the better. 

Last week, law professor Gordon Smith got a jury duty notice, and he wrote about it in the Conglomerate business law blog:

I know law professors who have served on juries. Still, I wonder whether I would want one of us on the jury if I were a litigant. Perhaps the decision requires too much context, but as a general matter, wouldn't law professors tend to exert a disproportionate influence over the other jurors?

"These things stood out:"

They would exert a disproportionate influence, is the simple answer to that question, but a couple of Smith's commenters give more nuanced answers from their own experience.  One of them, commenting under the name AnonLawProf, tells a jury duty story that's interesting on several levels, beginning by confirming a law professor's ability to lead a jury and continuing with a great list of surprises:

I was (somehow) allowed on a criminal jury not too long ago. It proved utterly fascinating. I was, yes, made foreperson, and I indeed ran it like a seminar (no wonder it took two days to reach a verdict -- in a drunk driving case!). These things stood out: (1) how badly the state court system is run, and how poorly the judge protected jurors' time: a five hour trial took four days, plus two for voir dire; (2) the utter uselessness of the jury instructions; (3) the bizarre logical leaps a few of the jurors tried to make (e.g., "The legislature enacted this drunk driving statute so we could party without having to worry about it."); (4) how deeply formalistic and legalistic most of the jurors were.

Those four things would come as a surprise to a lot of trial lawyers, and they're all true. 

___________________

Thanks to Trial Ad Notes for picking this up, and private note to AnonLawProf:  when you tell us a drunk driving voir dire took two days, we're going to guess you live in Connecticut, the land of constitutionally guaranteed one-on-one voir dire in every case.  Am I right? 

(Photo by Douglas Muth at http://www.flickr.com/photos/dmuth/490613967/; 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.)

The Case For Curiosity: Shatz v. Ford Motor Company

The Fourth Circuit made the world a little safer last week for lawyers who, when handed an unexpected chance to learn how juries work, choose curiosity over ignorance. 

The case is Shatz v. Ford Motor Company, reported in today's National Law Journal.  Lawyers D. Alan Thomas and John Isaac Southerland of Huie, Fernambucq & Stewart had traveled from their Birmingham, Alabama home to defend Ford in a product liability case in the District of West Virginia before Judge Frederick Stamp.  They won the trial, and after the jury went home, "the courtroom clerk asked counsel for both parties to assist in removing exhibits from the jury room." 

One man's trash

In the jury room, Thomas and Southerland found not only the trial exhibits, but a valuable cast-off:  "On an easel in the jury room in plain view was a flip chart reflecting the jurors’ views on the evidence presented in the case."  Thomas asked Southerland, who at the time was just finishing his first year of practice, to write down the jurors' notes.  Southerland sat down and started copying from the chart, writing away until someone told him they were closing the courtroom and he had to go. 

Back home in Birmingham, Thomas and Southerland presumably were still feeling very cheerful when they got an order from Judge Stamp.  The judge's law clerk had told him she had seen someone copying notes in the jury room, but didn't know who it was.  The order demanded answers and scheduled a hearing "to determine what action, if any, should be taken." 

"Violated the sanctity of the jury room"

Thomas and Southerland confessed, explained they had copied the notes “[o]ut of curiosity, for professional information, and for personal development purposes," and handed over Southerland's work.  None of this appeased Judge Stamp, who was mad, mad, mad:

[C]lear and convincing evidence shows that Mr. Thomas and Mr. Southerland have engaged in conduct that, from an objective standpoint, falls short of the obligations owed to the Court, to opposing counsel and to the jurors in this action. By failing in such obligations, Mr. Thomas and Mr. Southerland have required this Court to hold additional proceedings, have complicated the grounds for post-verdict motions, have violated the sanctity of the jury room and have interfered with this Court’s ability to achieve an orderly and expeditious disposition of this case, which necessarily continues through the time available for post-verdict motions.

Judge Stamp ruled that the copying indirectly violated the local rule against “communicat[ing] or attempt[ing] to communicate with any member of the jury regarding the jury’s deliberations or verdict without obtaining an order allowing such communication,” and that it somehow also was wrong under Federal Rule of Evidence 606(b), which says jurors can't testify to undermine a verdict.  He ordered Thomas and Southerland to pay over $14,000, representing the plaintiffs' attorney fees and expenses in having to file papers and appear at the hearing on all this.

"Nor are we aware of any authority"

Almost two years later, the Fourth Circuit says there was nothing wrong with what Thomas and Southerland did.  The local rule is designed to prevent harassment of jurors, the court explained, and here, "Not only was no juror contacted, but it is doubtful that any juror ever knew what transpired."  As for "the sanctity of the jury room":

We have found no rule or law that makes sanctionable the viewing or copying of jurors’ notes after the case has ended, nor are we aware of any authority that confers per se confidentiality upon discussions in a jury room.

The National Law Journal asked Thomas what he would do if he had it to do over.  "In hindsight, I would ask the judge for permission," was his diplomatic answer.   In hindsight, looking at his two-year odyssey, you might instead try to write faster.

(Photo by Kazze at http://www.flickr.com/photos/kazze/289620863/; license details there.)

American Gallery Of Juror Art Welcomes Susan Sermoneta

"I started taking pictures to document my granddaughter's growth," says Susan Sermoneta.  "Then I started carrying my camera everywhere."  So she had it with her in the Vietnamese restaurant where she had lunch on jury duty:

Susan Sermoneta lives in Manhattan, where she teaches college English, and takes pictures.  Pictures and pictures and pictures -- she has almost 13,000 on Flickr.  There are pictures of her elderly father, of her baby granddaughter, of students, friends, animals, but most strikingly, of New York.  Fellow Flickr artist Steve Wall posted this description of her work:

Susan takes you on a detailed, unique and personal tour of her New York City. Through her camera we see a locals-eye-view of the architecture, graffiti and people that make her city so colorful and fascinating. From her sets on benchwarmers and city people to her perspective on colors and textures within restaurants, lobbies and museums, it’s a cityscape many will never notice. But Susan captures every overlooked detail and transforms them into unforgettable images. It’s a New York you will be glad you visited.

An ordinary moment, documented with care, is a thing of great value.  By that measure, Susan Sermoneta may be the richest woman in New York.

If These Jurors Could Talk

Back when Mel Gibson could credibly play a charming guy, he made a movie called "What Women Want," in which his character suddenly finds himself with the power to hear what women are thinking.  You feel like that sometimes reading juror blogs. 

If you could conduct voir dire by thought bubble, a twelve-person jury box might sound like this:

Juror No. 1 knits harder when the trial bothers her: 

having stopped everything else i’m knitting (mike’s sweater, mommy’s socks, etc.,), i decided to raid my stash tuesday morning before jury duty and make something for me. so, i came up with these. seriously, i started them on tuesday. that’s what jury duty does to me. listening to crazy messed up testimony makes me a little nervous. so i knit like a fiend. i’m listening … i’m just knitting and going off somewhere else at the same time.

it makes it better.

but … i might have to give them away. testimony on thursday was SO messed UP. i have a feeling that every time i look at my pretty green socks, i’ll get sent right back to that day, and that victim, and remember (as hard as i try to forget) how many plum evil people there are in this world.

Juror No. 2, who happens to be reporter John Whiteside of the Houston Chronicle [update and correction:  reader blogger, not reporter; see his kind comment], is irritated (Mark Bennett picked this up too):

Jury selection was infuriating. I couldn't believe how many people were spewing absolute crap about how they couldn't possible convict anyone based on evidence "beyond a reasonable doubt," even though the same people probably watch TV news about trial and decide who's guilty based on a three-minute news report. Obviously, they just didn't want to have to be on a jury. And I understand that - I didn't want to spend the last two days downtown in the courthouse - but too bad. You're a citizen of a country that provides an excellent system of justice compared to most of the world, this is your duty. Somebody has to do it. If you don't like it, move to a dictatorship where there are no trials. It left me very depressed about the state of our society.

Juror No. 3 is a thoughtful Buddhist: 

The single greatest determinant of the success or failure of a community is the relative geography of its members. As a rule, the closer people live, work and exist to each other, the stronger their chances of creating and maintaining a live community. If one wants to understand why a community is or is not working, geography is the place to start.

The concept is so self-evident that it's forgettable: human beings are social creatures, and they will try to connect with whomever is around them. I saw a good example of this when recently called for jury duty: my group of 65 potential jurors convened over the course of 2 days, as the various lawyers questioned us. In the morning hours of the 1st day, most of the group were quiet and observatory, especially those (like myself) who had never been through the jury selection process before. But in the afternoon people were chatting with their neighbors, and by the 2nd day some new friendships had obviously been struck.

And No. 4 is a thoughtful Christian: 

I got summoned for jury duty this morning, and as I was sitting there I started thinking about commen sense. (By the way, there were not any cases for the specific group I was in, so I was only there two hours.) They said we should decide using our own commen sense. This is also a technical term that I have been reading a lot about recently, specifically Scottish common sense realism. This viewpoint had a great effect on the church in the last two centuries and affects how we do theology and how we read the Bible. But as I was pondering common sense, it seems that a postmodern culture is drifting away from common sense: they recognize that everyone has an angle and a viewpoint. Therefore, common sense actually isn't all that common. So will the whole idea of a jury go away? In my thinking postmodernism doesn't mix real well with a jury system. Of course, postmodernism doesn't mesh real well with a justice system at all

No. 5 is a "judge not" Mennonite: 

I find myself in a rather ironic position over this fourth of July holiday.  On the one hand tomorrow I will be celebrating living in a country where every person is free to practice his or her faith as their conscience sees fit.  That right is guaranteed in our constitution.  On the other hand I have been called for jury duty.  As a Mennonite, I believe that I have no place in civil government.  I am an ambassador for "another country".  The Bible clearly tells me not to "entangle myself in the affairs of the world".  The Bible also clearly commands me NOT to sit in judgment of another, nor to swear an oath.

I sent a letter to the Judge explaining these things, but was denied exemption.  . . . So, the day after independence day, I will present myself to the court as required.  I will however, still refuse to serve on a jury.  I believe that is what God would have me do.  I need to obey the law insofar as it does not conflict with the law of God, but I will not go further.  If you happen to read this before the fifth, please pray that I might find favour with the court and that I would not be held in contempt of court by refusing to serve.  I believe that this is my right...and regardless, this is what is right.

No. 6 has no patience for holdouts: 

Had jury duty... got called on a case....GUILTY!!

long story short...bad neighborhood: yes, legal stop: yes, probable cause: yes (crack pipe fell on car floor while passenger stepping out of car), crack found: yes (on both sides of driver-left and right side), crack tested: yes

the juror next to me said not guilty cause it is possible that the guy didn't know the rock was in his car. "someone could have put it there"... dang lady...not everyone is an angle like you. She came around cause she wasn't going to change 6 other's minds.

No. 7 is disappointed: 

I have to report to juvenile court. That's lame. I wanted a real court. How interesting can a child's case be? Probably some snotty dropout got caught with a few stems and seeds, or some spray paint. Yeah, I know what these kinds of kids are like. Predictable. I bet I already know how the case will go. I probably won't even have to pay attention. I'll tell the judge exactly that.

No. 8 is bored: 

Oh, jury duty, you suck out loud!

*sigh* How the hell did someone like me wind up serving on a jury? I'm easily bored, disagreeable yet strangely apathetic, and I spent the entire day making rude comments, poking a cricket with my shoe and rolling my eyes whenever one of the (many) idiots in the jury pool said something stupid... which was often. Plus, I think one of the attorneys is an absolute moron.

Funny thing - the judge kept yawning really hugely and dozing off during the trial. I think the bailiff might have napped a little bit, too.

I hope to hell this trial is over quickly.

Juror No. 9 really likes Brad Pitt and Angelina Jolie: 

It's probably been a good two weeks since there was really fresh new news on Brad and Angelina. At one point, when I saw new pictures of them, I just rolled my eyes because even I was getting tired of the stalkerish non stop voyeurism on that family. With Oceans 13 and A Mighty Heart both out in June, I anticipated that month to be maximum exposure, but even I was overwhelmed! And you all know I love them, but there comes a point when you can only absorb so much Brad and Angelina to prevent ruining what you enjoy so much about being a fan of theirs. So as June came to a close and their movies were released and all their world premiere travels were documented, I knew it would then be nothing for a little in early July, and that has come to fruition. . . . I had Jury Duty today that was a complete waste of 5 1/2 hours of my life.

Juror No. 10 is shocked: 

The lawyers on both sides took turns dismissing potential jurors. At one point, juror #2 wanted to know if he could ask the judge a question. The judge allowed it. He asked, "since these two men do not speak english and need interpreters, I wanted to know if I'm allowed to ask this..." The judge saw his hesitation and told him to go ahead and ask the question. The juror concluded, "are they illegal?"

Oh. My GOSH! You could just see the tension rise in that courtroom! Of course, being liberal California, the judge would not answer such a question and went ahead and shared ten minutes worth of gobbledy-gook about how the jurors are not to see such an assumption as "relevant" to this case. Frankly, I just tuned him out at that point.

O.K. Now you can call me a bigot. Call me intolerant. Call me an illegal alien basher.

I don't care!

What I see is a broken justice system.

If these two were illegal aliens,(which is probably most likely) the first thing done should have been immediate deportation! NOT take up the time of all of these people!!

Juror No. 11 is angry (thanks to Ed. of Blawg Review for this one): 

I’m never serving on a jury again. It’s a small thing, sure, but damn right I’ll take it, it’s one less thing. In no way will I ever let my soul and intellect be shit upon by participating in our legal system, never, and no judge will ever allow me to be in a courtroom very long when it’s discovered who I am. . . .I’ll tell the judge right to his or her face I won’t follow instructions with manipulative deception, Machiavelli is one of my greatest heroes, and that I’m a great liar and actor who won’t have any trouble deliberately tying a jury up in hopeless knots just for hell of it, right after I have innovative sex with one or two jury members, that is. . . . I’ll never server on a jury, ever, American courtrooms have lost the right to make me, and I won’t lower myself by doing so. American jurisprudence may have no standards and ethics, but I do.

And Juror No. 12 had other things to think about:

After an incredibly boring day at jury duty in Waukegan today, I stopped by the Walgreens in Round Lake Beach on my way home to pick up a couple of pregnancy tests...

Her blog begins and ends with that entry.  I hope things are going well.

(Photo by Shawn Haskell at http://www.flickr.com/photos/fpo/66063063/; license details there.)

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.)

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. 

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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.)

American Gallery of Juror Art Welcomes Jonathan Koshi

Would you change anything in your presentation if you knew one of your jurors could draw a perfect bike from memory?  That's how Jonathan Koshi spent his waiting time on jury duty.

I asked Jonathan to tell me about himself, and ended up learning a lot of things I didn't know -- about the media player software called Songbird ("a desktop Web player, a digital jukebox and Web browser mash-up," says their website), an online San Francisco music magazine called the Owl Mag ("Our goal is to provide an easily perusable forum that lets you frolic in genuine music knowledge and culture, like a tight-wearing wood nymph"), and a great documentation project:

I'm an artist with a taste for technology.  My professional craft revolves around the Songbird open-source media player project.  I'm the User Experience Architect and a co-founder of the company that makes Songbird, Pioneers of the Inevitable.  I'm responsible for the experiences everyone has with our project, from the software, to the website, to our tshirts and stickers.  I also illustrate our bird mascot.

Outside of work, I'm an avid cyclist (I finally gave up my car last year!), a live music fan and I volunteer for the Owl Mag, as a photographer.  Photography has turned from a hobby to a part-time pre-occupation.    Among my other photographic obsessions is one for documenting San Francisco's jukeboxes.

Jonathan's Flickr photostream includes, as you might imagine, a lot of bikes.  All rights in this image are reserved to him; thanks for his permission to put it in the American Gallery of Juror Art. 

American Gallery of Juror Art Welcomes David Salvia

It's the miracle of Google, that's what it is.  David Salvia's wife Jane was looking for fruit and tree motifs in Tiffany lamps, and somehow she landed in the American Gallery of Juror Art.  (It must have been the post on Christine Buckton Tillman's work.) 

A lot of people would have clicked "back" in exasperation, but Jane instead remembered her husband's intricate jury duty sketches and notes, from a trial in the mid-1990s.

For the sake of legibility on this site, David created a version of the original sketch with the notes in typeset form:

 

Together these are a striking record of a jury deliberating, a bit of an archeological find for people like me.  Why did he make such detailed notes?  He wondered that too, and decided it was the jury itself that pulled his attention:

[A]s I completed my first jury experience, I wanted to document what I considered to be the most compelling part of the experience, and that was my fellow jurors. More so than the actual civil case itself, or the lawyers' performances, it was the surprising and illuminating behavior of the jury that I was most eager to document.

I created the little lists, under which I categorize the jury, so I could better have a framework to understand what I had just been through. As seriously as several of us took the proceedings and our duty, several others were equally disengaged; some entered deliberations completely on the side of the plaintiff, others on the side of the defendant; some seemed open to considering other points of view, and to analyzing their own positions through another lens, while others would not even listen to contrary arguments. It was such a slice of humanity---old, young, white, black, brown, blue collar, professional---and I found the process of throwing us into a room to come to a unified decision simply fascinating.

David now lives in Boston, where he is a graphic designer with the architectural firm Goody Clancy.  He says "I still have the pages of notes I took in the trial, including my sketches of photographic exhibits, which proved helpful during deliberation when other jurors' perceptions of testimony proved to be a little shaky."  It's easy to imagine that the sketches were helpful indeed.

All rights in these drawings and text are reserved to David Salvia.  Many thanks to him for finding this site and allowing them to be shown here.

The Nacchio Jurors Speak

When a newspaper features a juror interview after a high-profile trial, it's usually disappointing.  A typical article uses a couple of quotes from the juror, and fills the rest of the column space with a review of who was suing whom for what.

When four jurors give separate interviews, though, and the resulting articles are even reasonably comprehensive, you end up with something useful.  That's what happened after the Nacchio guilty verdict in Denver last week.  Juror David McCanless talked to the Rocky Mountain News;  Doug Stoneman talked to the Wall Street Journal; Terrell Dye gave one interview to the Denver Post, and Anna Garduno gave another.  Some of the things that stand out when you line up all four articles:

1.  Jurors need visuals so much they'll make their own.  The Lewis Libby jury hung posters on the walls, each summarizing one witness's testimony and their reactions to it.  The Nacchio jury used a time line instead: 

The walls of the jury room behind the 10th-floor courtroom were covered with a 3-foot-wide band of paper. Notes written in black, yellow and red marker snaked across the paper, the products of a timeline that traced stock trades and earnings announcements.

Words in red symbolized something the jurors felt was suspicious, yellow pointed toward innocence, black was the color of raw information.

There was a lot of red, Garduno said.

2.  Jurors don't want to believe they are crediting emotional testimony.  Nacchio's defense team had two key pieces of emotional evidence, heavily stressed in opening.  First, lead defense lawyer Herb Stern argued that Nacchio could not have received a key memo because "[h]e was in Appalachia with his now abbot of the Saint Benedictine order distributing food in hovels to underprivileged people."  Second, Stern argued that Nacchio could have cashed out and abandoned Qwest altogether, but instead he stayed in part because his son tried to commit suicide.  The abbot himself came to testify. 

The jurors said neither point affected the verdict.  "We certainly had to dismiss it," McCanless said. "At best it was ancillary."  Stoneman echoed, “Sympathy and compassion aren’t supposed to be part of the decision,” he said.  As to the Appalachian trip, Stoneman remembered a cynical point made by the prosecutors:  “It might have carried more weight if he hadn’t brought a photographer with him.”

Similarly, the jurors themselves worked to minimize their own emotion.  "I felt so bad for his wife and son, and I cried," Garduno said.  But McCanless was among those to bring emotional jurors back:  "I had just reminded a couple of other jurors that we didn't create this situation.  He did."

3.  Jurors look for clear ways to cut through complex evidence.  After weeks of trial and days of deliberations, the Nacchio verdict came down to one date.  The Garduno interview explained:

On the timeline jurors had written on the wall, one date stood out - April 24. It was the day Nacchio had told Wall Street he saw no reason to back away from double- digit growth projections. In the months preceding that day, his executives had warned him repeatedly that those numbers were unrealistic.

"I went in thinking he was innocent," Garduno said. But it was hard to escape the fact that Nacchio knew by the time he spoke in the April earnings call that Qwest was headed for trouble. Still, he sold his stock.

The verdict was based on that date, plain and simple:  the jurors found Nacchio innocent of insider trading at all times before April 24, and guilty at all times after.

4.  Being smart can hurt you.  The defense painted a picture of Joe Nacchio as a highly competent chief executive who passionately believed in his company.  His intelligence came through, and it hurt him.  From the juror interviews:

• "We felt he had months of information," Dye said. "He had people telling him that those one-time sales were drying up. We felt in good conscience it wasn't possible that he didn't know, not a man of that intelligence. The fact is those one-timers were never divulged."
• "Mr. Nacchio is a very bright man," McCanless said. "At some point he had to get it. The man did not fall off a turnip wagon and land in the Qwest boardroom. He had to know he was committing a crime. He was too smart to not conceive of that."
• "[G]iven who he is and how competent he demonstrated himself to be,”Stoneman said, he had to be aware of the alleged insider information.

5.  Trying cases is hard.  I'm one of hundreds of lawyers who were taught by Herb Stern.  He has no idea who I am, but I regularly use his lessons, and I remember them more clearly because of his passionate and compelling delivery.  I remember being amazed at how he made trying cases sound easy.  I winced, then, to read in Anna Garduno's interview:

"I think a lot of what he did was an act, but he was so fun to watch," Garduno said. He carried a tote bag labeled "Dad" and he would dig through it for evidence "for 10 minutes," she said. When he pulled out documents, his hair would be disheveled.

But she thought his opening statement and closing arguments rambled, and jurors had a hard time paying attention to them. "I had hoped for his sake that someone else would have done the closing argument, he went off in so many different directions," she said.

The Rocky Mountain Times separately wondered whether the 70-year-old Stern had lost his touch.  I wasn't there, but what strikes me instead from the reporting is that trying cases is just hard, so hard that a very skilled teacher will struggle like the rest of us in a tough case.

6.  Jurors care.  As the verdict was read, the string of pre-April "not guilty" verdicts came first, and Nacchio thought he had won.  Garduno described the moment:  "You could see Mr. Nacchio smiling and his son and wife crying, and I felt horrible because they thought he was off the hook, and that was going to change," she said.  In a moment out of "Rocky Mountain High," McCanless said he "closed his eyes, began his deep breathing exercises and 'went to my happy place.'"  Only in Denver, I guess.

(Image by Stefan Powell at http://www.flickr.com/photos/duchamp/13777559/; license details there.)

American Gallery Of Juror Art Welcomes Elizabeth Perry

What a pleasure to discover Elizabeth Perry.  "I saw a lot of this staircase and interior," she says of her jury service last year.

"In December 2004," says Elizabeth Perry, "I decided to learn to draw by sketching something every day in a small journal." The result is her beautiful blog Woolgathering, where she posts one drawing or watercolor sketch each day. 

The daily drawing is "a moment to pause and look around," she said one day recently.  That's true for the viewer too when you see each drawing in the morning, but as a group, the drawings are more than that.  They're a remarkable record of a thoughtful life, for one thing; the days bring humor, beauty, love, and on the day after the Virginia Tech shootings, grief.  And they're a remarkable proof that a fleeting moment and a timeless truth are not opposite ends of a linear continuum.  It turns out the continuum isn't a line but a circle, and Elizabeth Perry works where the two ends meet.  Her drawings have a timelessness that seems to come directly from the evanescence of the moments she has chosen.

There is much more to Elizabeth Perry's work.  There is her Museum Drawing Project:

From October 1, 2006, through June 30, 2007, I plan to visit the public spaces of the Carnegie Museum of Art and the Carnegie Museum of Natural History in Pittsburgh, every day the museums are open. I will draw something in a small sketchbook in response to my experience, and post that drawing to a new sketchblog, www.museumdrawing.com, with short written reflection or response.

There are her Pittsburgh drawings, of which this jury duty drawing is an example.  They're posted at Flickr and at a group blog called Clusterflock.  By training she is a writer, not an artist; she has written a children's book, Think Cool Thoughts, together with nonfiction and short stories.  She has other projects ranging from interactive web/video student materials to knitting ("I do make up my own patterns.")  Somewhere in the mix are a job and children, and I have no idea how she fits all this together.  She describes her work in a steady voice that seems perfectly matched to her drawings, in a short video here. 

Many thanks to Elizabeth Perry not only for allowing her drawing to be used here, but for posting her Flickr work under a Creative Commons license that lets others use it too.