Deliberations

Don’t Call Me Fluffy: One Perspective on Mock Trials

As a profession, litigation consulting sometimes faces a fluctuating level of credibility within the legal community.  At times, trial attorneys question the necessity and even the validity of some trial consulting techniques.  Similar to the blowback psychologists encountered at the birth of their field, uninformed naysayers have readily utilized the terms “fluff science” and “voodoo” to describe our work.

In my opinion, this is not an accurate description.  While I have anecdotally heard of incidents of litigation consultants ignoring a full analysis of questionnaire results in favor of “the gut feel”, I believe that most would agree that carefully reviewing all collected data is crucial to providing well-founded recommendations.

How Does Nancy Grace Anger the French?

Last week’s news cycle was dominated by two criminal cases: Dominique Strauss-Kahn (or “DSK” as some in the media have affectionately dubbed him to avoid linguistic effort) and Casey Anthony (if you haven’t heard of this case, welcome back from that research trip in Antarctica).  Strauss-Kahn has been in the preliminary stages of being charged while the Anthony case has reached the exhausting challenge of jury selection, but both demonstrate a major conundrum within the U.S. Constitution: How does one balance freedom of the press with the right to a fair trial?

The French are up in arms (not literally) about the “perp walk” that Strauss-Kahn was paraded on after his arrest.  In France, this is viewed as unfair to defendants, as it casts them as guilty.  Perp walks are common in American justice and could certainly be argued as unduly prejudicial, but what has really gone over the edge is the media frenzy that has covered the story.  In addition to the massive onslaught of suppositions (some have even mentioned the words “serial rapist”), reporters and pundits have clearly painted an unfriendly narrative of “DSK.”

While I am no friend of the Messr. Strauss-Kahn, one only need look to the south at the Anthony trial to see the effects of a media frenzy.  The trial teams in Florida have been at wits end trying to find an impartial jury.  The massive media spectacle (much of which can be traced back to CNN’s Nancy Grace, who seemed to spout biased speculation on the case every night for months on end) has clearly endangered Anthony’s right to a fair trial.

The First Amendment of the U.S. Constitution makes clear that no law shall abridge the freedom of the press.  However, the Supreme Court has found that this freedom can be limited if there is a sufficient danger.  Interestingly, rulings regarding civil or criminal trials have become shifting lines in the sand and generally focus on the right of access, not the right to publish.   

While the First Amendment gets all of the fanfare (demonstrating the power of a well-crafted lead when writing), we also have the Sixth and Fourteenth Amendments that are just as important.  It’s great to have free speech, but if one can be unfairly imprisoned or punished by the courts, the speech ends up only being heard by cellmates.  As a result, our right to a fair trial is also a vital part of American life.

It is hard to argue that high profile trials do not put these Constitutional rights in conflict with one another.  Which begs the question: Which is more important, the public’s need to know or the individual’s right to fair judgment?  I’m guessing the answer depends on how guilty we think the person is.  Luckily, we have former-prosecutor Nancy Grace's "Swift Justice" to guide us in this evaluation. 

Blogger: Matt McCusker

 

If Miss Cleo Couldn’t Predict a Jury Outcome, WHO CAN?

In an end to an illustrious career, Miss Cleo and her Psychic Readers Network came to a landmark settlement with the Federal Trade Commission where the company sacrificed $500 million dollars in fees and paid a $5 million fine for deceptive business practices.  This result brought three questions to my mind:

1. A $500 million settlement! How much money was Miss Cleo Making?  How much did she “psychically predict” a jury would award?
2. This is just one example in a sea of settlements based on predictions of trial outcomes, I must ask: How accurate are these predictions?
3. If I wore a turban and spoke in Jamaican accent, could I be a successful psychic litigation consultant? (Seriously. I cannot get over that $500,000,000 figure for a psychic hotline.)

A recent analysis out of Cornell Law School attempted to explore the meaning of “jury predictability” in the United States and if such a thing even exists.  They utilized a national comparison of jury verdicts via the 2005 National Center for State Courts Civil Justice Survey (an amazing study I have cited before) and the 2005 and 2006 U.S. Chamber of Commerce State Liability Ranking Studies.  Through a process I won’t go into here, Valerie Hans and Theodore Eisenberg established a creative method of analyzing the relationship between corporate and insurance attorneys’ assessments of juror predictability and the actual verdicts that were eventually rendered in various States.

Their results demonstrated that predictability ratings had little relation to jury compensatory damage awards, but were surprisingly in synch with punitive damage awards.  It suggests that the outcomes of cases with punitive damages (awarded in only 5% of judge or jury civil plaintiff verdicts nationally) are dominating defense attorney assessments of jury predictability.

In 2008, a paper published in the Journal of Empirical Legal Studies entitled "Let's Not Make a Deal" analyzed 9,064 decisions in contested litigation cases to examine the number and magnitude of errors made by attorneys and clients in failed settlement negotiations that ended in jury verdicts.  The results reconfirmed the findings of three prior empirical studies: both plaintiff’s counsel and defendant’s counsel frequently make dramatic miscalculations when predicting trial outcomes.  Interestingly, plaintiffs had a high rate of miscalculations (61.2%) with mid-level financial magnitudes, while defendants had a lower rate of miscalculations (24.3%) that resulted in very high financial magnitudes.  In other words, the plaintiffs guessed wrong regularly but only took a medium hit to the pocketbook, while defendants miscalculated less often but it cost them tremendous amounts of money. (I call it a tie.)

So, what does this mean? I would suggest that there could be several factors at play:

• Current methods of predicting potential case outcomes may be lacking due to an over-reliance on a small sample of similar jury trial outcomes.
• The stronger side may be sacrificing too much during mediation and settlement negotiation due to an unrealistic fear of loss or a lack of preparation towards fully establishing the power of the case.
• The idea of what a case is worth may be too heavily based on what similar cases have settled for, furthering a vicious cycle of faulty settlements.
• There is an over-dependence on Jamaican mystics and psychic hotlines.

Predicting jury outcomes is tremendously difficult task and every situation is different.  The best insurance against faulty guessing is to spend significant time learning one’s case and developing the strongest possible strategy prior to negotiation.  Just remember, that attorney who just had the embarrassing loss on a similar case down the road may have been depending on a very questionable strategy that began with 1-900…

Blogger: Matt McCusker

 

Ever Wonder What This Blog Sounds Like?

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

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

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

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

The Future Of Polling?

Can you do a good opinion survey for free?  No, it turns out, but it's interesting to look at a site that's taking baby steps in that direction.  If you stand on that spot and squint, you can see what the future might look like.

"In minutes instead of days"

Ask500People.com explains itself this way:

In 2004 James Surowiecki wrote a best-selling book called "The Wisdom of Crowds."  The book's premise is that diverse, decentralized people voting independently are better at predicting future events or trends than individuals, small groups or even domain experts.

There are tools for surveying groups of independent voters, but they're either slow, expensive or both. We built Ask500People to gather input and opinion data in minutes instead of days, and to create a platform that other applications can integrate.

It doesn't substitute for a true poll -- at least not at the free level that I was exploring, and probably not at the "premium" level they offer.  At the free level, you get to ask 100 people, not 500.  The site puts your question on a network of websites, although it doesn't tell you which ones:

When a question goes live on the network, over 75,000 websites display that poll. This network reach allows us to deliver voting results in real-time.

Would you fire your boss?

I tried it with a question Gallup asked in September:  "If you could fire your current boss, would you do so or not?"  In Gallup's results, 24% of people said yes and 76% said no, although the numbers shifted for "disengaged" workers:

Just 6% of engaged workers say they would fire their boss if they had the chance, while 51% of actively disengaged associates would get rid of their leader if they could.

The 100 people who saw my question on Ask500People.com's websites must have been disengaged.  The question took around five hours to float to the top of the pile and only a few minutes more to collect 100 answers:  46 people would fire their boss and 54 wouldn't.  More than half the answers were from the U.S., and the rest were from people all over the world:  someone in Parow, South Africa, who would keep the boss, one in Makati, Phillipines, who was in dismissal mode, and so on.

Regular or premium?

In the premium version, you can get up to 500 answers, at $150 for worldwide responses and $225 for responses limited to one country.  You're not limited to yes or no questions; you can choose multiple choice or a sliding scale.  And when you pay for premium, Ask500People.com promises to keep you anonymous. 

It will never be Gallup, though, mostly because the respondents are all people who are sitting in front of a computer when your question happens by.  That's a lot of people, but it's not a cross-section.  If you want to know what logo your new dot-com company should use, you might want to ask this group; if you want to know what your jury pool thinks, you'll never get more than a partial answer. 

Does God exist?

Take it less seriously, though, and the site becomes fascinating, for the questions people ask as well as the answers they give.  Samples from the other night:

Are you a racist?  83% no, 17% yes

Do you know where Morocco is?  76% yes, 24% no

Does God exist?  72% yes, 28% no

Some of the questions give a sense of the demographics of the group:

What is your age?  24% under 18, 27% between 18 and 30, 30% between 30 and 40, 19% over 50 (it looks like 40-50 wasn't offered as a choice)

Are you a democrat or republican?  33% Republican, 67% Democrat

The future?

What's even more fascinating is to picture this technology in ten years, or four, or one.  Wikipedia's current article on Facebook says that social network has 49 million users, with 4 million new people arriving every month.  Both the New York Times and the Wall Street Journal report that older people are joining Facebook in droves, to the dismay of some of the college students who used to have it to themselves.  Meanwhile developers are testing all kinds of ways to link and communicate among different social networks on the Web.

So surely we're heading for a level of demographic diversity in large social networks that would come closer to that of a jury pool.  And we now know it's possible to float a survey question to a network, privately, and get answers quickly.  As the Internet evolves and takes us with it, it will be interesting to see whether polling changes, and how.

Jurors And Social Networking? So What?

"So what?"

I got that question from a member of the audience at the Wisconsin State Public Defender Conference last month.  Just what any speaker wants to hear.

But it was a good question.  I was talking about jurors' secrets, and stressing that no matter how good your voir dire is, potential jurors are unlikely to tell you about the experiences that most powerfully shaped them.  "So what?" this guy asked.  "Since I don't know these secrets, I can't do anything to respond to them.  Why are you telling me this?"

When we got to the topic of social networking and the ocean of information about jurors on the Internet, there were more questions on the same theme.  How am I supposed to use this?  More often than not, a juror who's writing on the Internet is writing anonymously -- and even if she uses her name, there will be sixty people with the same name writing other blogs, or posting weird messages on MySpace.  I'll never find my juror.  Why bother knowing all this?

Three reasons to know about social networking in voir dire

It's true there's no point in trying to find potential jurors in the vast expanse of the Internet.  But you still need to know about social networking when you stand up for voir dire.  Here's what to do with your new knowledge:

1.  Ask jurors.  You may not be able to find jurors' writing on your own, but you can ask them.  Do you blog?  Is your creative product, even so much as a Tweet or a photo, out there on the Internet in any way where someone without your password could see it?  How would I find that? 

Let them know you're not trying to pry (you don't need to see their passworded wish list at Amazon.com, much as you might like to), but you owe it to your client to fully understand what they've put out there for public view.

2.  Warn jurors.  Judges routinely warn jurors not to read or listen to radio, newspaper, or television reports about the trial, and not to talk to friends, family, or co-workers about it.  These warnings, especially when delivered in the usual monotone, may not be enough to jar jurors out of their Internet habits. 

Many jurors get their news and blog feeds, and a stream of news stories their friends have posted, delivered continuously to their computer screens.  Likewise many jurors head for their computers in the evening to blog or post about their day.  Alone in that room, typing may not feel like "talking about the case," even though it is.  When you know a little about social networking, you have the vocabulary to be sure tech-savvy jurors will follow the "don't read, don't tell" instruction.

3.  Just know.  Jury selection is about intuition, and the broader and deeper your knowledge about people is, the stronger your intuition will be.  You already know that the things you learned in your third-shift factory job in college, or the summer you spent clearing dishes at a country club, guide your voir dire decisions more reliably than anything you learned in law school or in this blog.  Think of social networking like that.  "EVERYBODY UNDER THIRTY IS ON THE INTERNET," Erin the blogging juror tells us.  If you want to talk to those jurors, you'd better have some sense of that world.

So what about secrets?

What about secrets, to come back to my questioner?  How does it help to know there are things you don't know?  It helps because the most ineffective speaker in the world is the one who assumes she has her audience all figured out. 

We all think we're humble, but we're not, or at least not always.  At some point each of us is like that smiling guy at the party, the one who has no idea the reason his joke fell flat is that your sister is gay, or your boyfriend is black, or your father is blind. 

When we remember how much we don't know, we speak with respect and restraint.  Without those qualities, we'll never persuade anybody.

(Photo by Paolo Mazzo at http://www.flickr.com/photos/paolomazzoleni/436307747/; license details there.)

A Trial Lawyer's Guide To Social Networking Sites, Part IV

It's done!  No, that's not true; it will never be done.  But here is the last installment of Deliberations' guide to the world of social networking, for your use in talking to potential jurors.  The entire guide is now a separate page on this site, filed under "Voir Dire Resources" in the side bar. 

It's a certainty that I've missed categories here, and and that new ones will pop up from the second I hit "save."  Please let me know if you see things that need to be corrected, updated, or augmented here, and I'll try to keep the page as current as I can.

Here's the last of the list:

Contests

The Internet has always teemed with contest sites, but often now the contest planners, contestants, audience, and judges are all site users.  Examples:

• Bix, "Create.  Enter.  Judge."  Typical contests are for cutest dog, best president of all time, and karaoke, karaoke, karaoke.
• Gather, listed above as a basic social network, has regular writing competitions.  October 2007 brought the announcement of the five finalists in the First Chapters Romance Writing Competition.

Comments

You can have a significant Internet presence without ever having a blog, social network page, or photostream of your own.  On thousands of sites, from large mainstream newspapers to major political blogs to individual photos on Flickr, readers can post comments, and many do.  When jurors write on line to defend their verdicts, they often do it in the comments to a news story about the trial; on this blog we've discussed examples here, here, and here.  To get a sense of how commenters get into conversations and develop recognizable personalities in comment threads, go to any major blog.  The WSJ Law Blog  and Firedoglake are two examples of blogs with heavy comment traffic and repeat commenters who get to know each other.

Forums

A forum is a discussion board, a little like comments without the underlying news story.  A user starts a discussion, usually by asking a question, and others respond.  Some forums are user-generated issue forums, offering a place for people to talk about particular challenges.  It would be hard to think of an issue there's no forum for:  pregnancy, parenting, cancer, weight loss, pick a problem and search it with the word "forum" and you'll find one. 

Other forums are associated with a particular business or author, most likely one who promotes a long-term approach that followers might need help with.  Thus Weight Watchers members support each other in on-line forums, and followers of David Allen's Getting Things Done books ask each other questions in forums on his site.   

As with comments, forums draw repeat participants whose personalities become defined.  At any given time, a given forum might have a few wise sages revered by all, some enthusiastic idea-offerers who pipe up often, a handful of new arrivals full of questions, and a rabblerouser who likes to challenge everything.

Groups

Most social networking sites allow users to gather into groups, but there are also "group" sites where the group is the main event.  Group sites offer a page where group members can see a shared calendar, posted files, and links, and they also offer a single group E-mail address that sends mail to all group members.  Groups can be as small as an extended family sharing baby pictures, or as large as FlyLady's group, whose 440,000 members (as of October 2007) get lots of daily reminder E-mails to help them stay organized and not overwhelmed.  (FlyLady's associated web site is here.  You'll either love her or want to flee.)  Examples of group hosting sites:

• Yahoo! Groups
• Google Groups
• WebRing

A variation on a group site is a wiki, where users collaborate to build web pages.   Big public wikis like Wikipedia are well known, but any work group, family reunion committee, or school club can have a wiki hosted at sites like

• pbwiki, "simple and secure collaboration"
• Wikispaces, "wikis for everyone"
• editme, "Edit your web"

Getting personal

The further you go down the social networking road, the more you find yourself in places where users might not want to be recognized.  Dating sites are the biggest example.  Consumers spent $500 million on Internet dating in 2005, about a quarter of the $2 billion spent on all Internet content (as opposed to, for example, on-line catalog sales) that year.  (Figures are from the Online Publishers Association.)  The Pew Internet & American Life Project reported in 2006 that one in ten Internet users had visited an on-line dating site, 43% of those visitors had dated someone they met there, and 31% of American adults know someone who has visited a dating site.  With numbers like that, it's likely that someone in the jury box knows a little or a lot about sites like:

• Match.com, "It's okay to look."
• eHarmony.com, "matches you based on compatibility in the most important areas of life"
• Chemistry, whose ads target those who were "rejected by eHarmony"

On the other hand, the technology behind dating sites is also used for things you could tell your grandmother about -- like Essembly, "a fiercely non-partisan social network that allows politically interested individuals to connect with one another."

Likewise, there are many ways that jurors might use the Internet that they'd want to keep private, even though they're fully legitimate.  People store their tax information on Turbotax, and look for jobs at Monster.com.  They can track their progress toward personal goals at Joe's Goals, and check their mental health on the various tests at Martin Seligman's Authentic Happiness site.  They post lists of things they'd love to own, not only at scores of store sites like Amazon, but also at free-standing "wish list" sites" like TheThingsIWant.com and DreamofThis.com.  They do all this on the promise that their personal information won't be revealed.  Rule of thumb:  if you couldn't see a juror's Internet profile without that juror's own password, don't ask about it in voir dire.

That way monsters lie

And then there's beyond.  The American Gaming Association says almost 23 million people gambled on the Internet in 2005.  Oddly, I'm not finding statistics that look trustworthy to describe how much pornography is out there, but anybody with a spam filter knows it's a lot.  There are hate sites for every group you could possibly hate.  Lawyers who work in these areas have to learn this territory.  I have not had to, and hope not to.

Combine all ingredients and stir well

Got all that?  Great.  Now, to finish the list, think of as many ways to combine all these applications as you possibly can.  There's an application that lets you see your Facebook friends' Second Life avatars on their Facebook profiles, and "teleport" from there to wherever they are in Second Life.  Facebook applications like HobNob! let you request introductions to other people in the same way LinkedIn does.  "Profile aggregators" like MyLifeBrand are emerging to let users manage all their different social networks.  Mashable is the news source for all this; subscribe to their blog and watch the world turn a lot faster than you thought it did.

Just plain web sites

Finally, don't forget web sites.  Your juror might have a plain ordinary old-fashioned web site.  You'd hate to forget to ask about that.

(Image by Leigh Blackall at http://www.flickr.com/photos/leighblackall/64955397/; license details there.)

A Message From Erin

I had the honor of speaking today at the Wisconsin Public Defender Conference, which continues tomorrow. One topic we touched on was jurors writing on line. It was timely, since Florida lawyer Robert Kelley had just written about Erin the blogging juror, whose September 28 post was titled "i will eat your babies, bitch!" and whose next post on October 3 was titled "I AM A JUROR."

Kelley's post didn't criticize Erin, but she didn't like it, or the attention her blog got from it. So she wrote another post on Tuesday. It's worth reading. Notice whether her language makes you uncomfortable, and whether you see intelligence under that. See if her questions resonate with you. Do you agree when she says that if we start striking every juror with an Internet presence, we'll be left entirely without young jurors? Here it is:

dear members of the florida bar: welcome to my shitty blog

jury duty. i actually did have it that was one of the things i wrote on this blog of lies that was actually true. anyway according to the florida bar i am what is wrong with juries today or something. and i guess the solution to the problem that is me is to select out jurors who have blogs or myspace or facebook or whatever. okay i didn't write my thesis on psychometrics or anything (yes i did) but i bet if you dismissed every potential juror with some type of internet presence you would end up with range restriction galore. EVERYBODY UNDER THIRTY IS ON THE INTERNET. those are my peers. please don't shatter my dreams of commiting a horrible crime and being judged by a jury of my peers. not that the people on the jury i served on were actually my peers. THERE WAS A WOMAN ON THE JURY WHO COULD NOT READ. i don't think i've ever met anybody who couldn't read in my entire life. thank god the constitution doesn't actually guarantee a defendant that his case will be heard by a jury of his peers because that would be a huge lie. i think what it guarantees is an impartial jury which is also a huge lie. i didn't actually serve on a capital punishment case, that was a joke. i wouldn't even be allowed to serve on a capital punishment case because i don't necessarily agree with the death penalty. i've never done a study on death qualified juries but i'm pretty sure the american psychological association did and determined that they are more likely to convict in general. THAT IS LIKE THE OPPOSITE OF IMPARTIAL. i don't believe our legislative system is breaching our constitutional rights and a bunch of lawyers in florida are freaking out because i mentioned on my stupid blog that nobody reads that i was selected to serve on a jury and i didn't even divulge any information about the case. i mean jesus bob kelly, weren't your friends in florida executing retards until like a year ago? and you don't like me because i say "fuck" alot? this is truly a dumb ass world we are living in.

A juror's blog tells you things about the juror that she probably won't tell you herself; but the fact that there is a blog doesn't make your strike decision for you. Robert Kelley is right that you'd hate to leave Erin on your jury without having seen her writing. And Erin is right that lawyers shouldn't reject blogging jurors out of hand, even those whose writing is as lavishly angry as hers is. You'd strike her in many trials, yes. But in the right trial, she might be the juror you need.

(Photo by Wesley Fryer at http://www.flickr.com/photos/wfryer/503600331/; license details there.)

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.)

If You Could Have Only One News Source . . .

At least half the challenge in learning about juries is replacing your stereotypes, projections, and assumptions about people with real awareness. If I had to face that challenge with just one news source, it might be the Gallup Poll.

Actually it's a handful of news sources, because Gallup has different feed "channels" in which they report research results on different topics. I subscribe to all of them: business and economy, government and politics, health and healthcare, religion and social trends, and education and youth. They send me a handful of reports a week, most of which are eye-opening in some way.

Here are a few recent stories from Gallup that challenged what I thought I knew, or highlighted something I hadn't thought about:

• "Public Not That Worried About Mortgage Crisis Affecting Own Finances": "Americans appear to be far more apprehensive about the impact of the subprime mortgage crisis on the national economy than on their own financial situations."
• "The Divide Between Public School Parents and Private School Parents": "Parents with children who attend private, parochial, or who are home schooled are much more positive than parents with children in public school about the quality of education their children receive, and are less likely to report concerns for their children's physical safety."
• "Americans Put Obesity On Par With Smoking in Terms of Harmful Effects": "More than one-quarter of Americans report that obesity has been a cause of serious health problems in their family. Americans are more than three times as likely to say they are sympathetic to those who are significantly overweight as to say they are unsympathetic."
• "Most Americans Approve of Interracial Marriages": "The vast majority of whites and an even larger majority of blacks approve of interracial marriages. Older Americans -- regardless of race or ethnicity -- are less inclined to support interracial marriages than are younger Americans, but still, older Americans show majority support."
• "Sixty Percent of Americans Approve of Labor Unions": "60% of Americans say they approve of labor unions, while 32% disapprove. The public's approval rating of labor unions has not shown much significant change in the past four years." But more people approve than belong: "Only about 1 in 10 Americans say they personally belong to a labor union."

(Photo by Kate Mereand at http://www.flickr.com/photos/katmere/63785117/; 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.)

Why Don't TV Jurors Talk?

Sometimes I don't know I've had a useful thought until someone else articulates it.  Here's a question I've mused on from time to time but never thought to write about:  If Americans are fascinated by jury duty, and my time blogging here has convinced me that they are, why is the role of a juror in a movie or television show almost always a nonspeaking part? 

Those silent TV jurors

There's "Twelve Angry Men," the famous exception, and then there's the rule.  From "Perry Mason" to "Matlock" to "Boston Legal," from "Witness For The Prosecution" to "My Cousin Vinny," there they sit, the silent jurors.  They're ethnically diverse, well-groomed, attentive, financially comfortable -- and completely passive.  It's a phenomenon explored in Marquette Law professor David Papke's article, "12 Angry Men is Not an Archetype: Reflections on the Jury in Contemporary Popular Culture," available here on SSRN.  Prof. Papke is willing to draw conclusions from the pattern:

I suggest that while 12 Angry Men invites us to envision the jury as a fundamental building block for American life, the standard contemporary portrayal of the jury is instead a sobering suggestion of how we have actually come to see juries in the context of our increasingly attenuated and formalistic democracy.

It's an interesting article for the reader, and it must have been great fun to write.  Imagine the popcorn you'd consume, doing the research that would qualify you to write this paragraph:

Classic films from the 1950s such Witness for the Prosecution (1957), I Want to Live (1958), Anatomy of a Murder (1959), and The Young Philadelphians (1959) featured courtroom trials.5 More recent Hollywood dramas such as The Accused (1988), A Few Good Men (1992), and A Time to Kill (1996) as well as comedies such as My Cousin Vinny (1992), Liar, Liar (1997), and Legally Blonde (2001) continue the trend. On television, series such as L. A. Law (NBC; 1986-94), Ally McBeal (FOX; 1997-2002), and The Practice (ABC; 1997- 2004) always portrayed one or more of their lawyer characters litigating in each episode, and current series such as Law & Order (NBC; 1990-present), Boston Legal (ABC; 2004- present), and Shark (CBS; 2006-present) do the same.

Art imitates life, or part of it

The lack of curiosity among film and television writers about jury duty is odd, but in one way it's completely consistent with the jury-duty experience most people report.  Few jurors experience the high drama of, say, the jury that convicted Illinois governor George Ryan.  Instead, by far the majority of people who report for jury duty aren't selected for juries at all -- so their day in the courthouse really is silent, passive, and individual.  I've talked about a few jury blogs describing this dreary experience, and more examples come up all the time.  Last week brought a good one, when law student Luke Gilman reported for duty.  Forgive me for quoting a cite to myself:

I had jury duty today. It was originally scheduled for February but I rescheduled to fit it in the pathetically short break between our summer and fall semesters. Yeah, yeah, I know, I’m a student so I guess I could claim an exemption, but I didn’t want to get out of it. Far from the typical reluctant juror claiming rampant racism or homophobia to get out of jury duty, I saw it as a rare chance to see things from the other side of the jury box. I thought I might even join the ranks of the blogging jurors sometimes featured in Anne Reed's Deliberations. Alas, it was not to be.

I spent 4 hours sitting in the juror holding pen, waiting for my number to be called. When it finally was called it was only to tell me that my services would not be needed. Could I come back tomorrow I asked? “Um, no,” I was told by a fairly incredulous officer, “you’re free to go, you got a release.” Sigh. I don’t think there would have been any shortage of volunteers to trade places among the 50 or so people who went ahead of me. Oh well.

His day had all the excitement of a TV jury's.

____________

Source note:  I'm glad for the chance to cite Luke Gilman's terrific law blog, The Blawgraphy.  I first noticed it in June, when he mused on the questions that might have been asked in a voir dire in the Duke lacrosse case, and ended up with as clear a statement of how experiences are likely to shape jurors' attitudes as any I've seen.  Right now he's observing the conversation several blogs are having about the billable hour, and translating it into advice for law students. 

(Photo by Soon at http://www.flickr.com/photos/randomecho/298010188/; license details there.)

We R Deliberating Where RU?

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

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

"Articles usent outstanding!"

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

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

Then there's the reply:

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

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

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

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

Weird new world

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

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

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

Jurors Who Read Blogs

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

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

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

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

Blogs about jurors reading blogs about jurors . . .

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

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

Jurors reporting jurors who read blogs . . .

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

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

Ask.  Instruct.  Remind.  Repeat.

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

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

What Do They Know?

It's one of the most common questions a jury consultant gets:  will the jurors know that?  If I make this analogy, this reference, this joke, will they know what I'm talking about? 

We're absorbed in our own lives even before we disappear into trial preparation, so it's easy to lose track of what the rest of the world does and does not know.  Luckily, the news brings partial answers to this question every day, if we're paying attention.  It turns out that most people know more than you thought they would about some things -- and less than you thought they would about others.

They don't know much civics -- or geography, or history, or literature

In an article it titled "Dunce-Cap Nation," Newsweek yesterday released the results of its "first What You Need To Know Poll."  The poll results themselves are here.  It's not clear how these particular questions were chosen, but only 11% of people came up with John Roberts when asked to name the Chief Justice of the Supreme Court; 40% couldn't pick Nancy Pelosi out of a multiple-choice question asking for the name of the Speaker of the House; 20% thought Christianity was older than Judaism; and 35% picked someplace other than South America in a multiple-choice question asking where the Amazon River is. 

They know more than you thought about drugs, and sex

"More than one in five adults 20-49 years of age have tried cocaine or other street drugs at some time in their life," says the National Center For Health Statistics in a study of drug use and sexual behaviors released yesterday.  (The study itself is here and the press release is here.)  "Twenty-nine percent of men reported having 15 or more female sexual partners in a lifetime compared with 9% of women who reported having 15 or more male sexual partners in a lifetime," the release continues. 

They don't know what people of other races experience

“White Americans suffer from a glaring ignorance about what it means to live as a black American,” said Mahzarin Banaji, co-author with Philip Mazzocco and others of a paper in the fall 2006 issue of Harvard’s Du Bois Review.  (Press releases for the paper, called “The Cost of Being Black: White Americans’ Perceptions and the Question of Reparations,” came out yesterday.) 

The authors reached this conclusion after asking white subjects to imagine what they would want to be paid if they had to live as a black person for the rest of their lives.  Less than $10,000, typical subjects responded. 

Economically, the answer was way off.  "White households average about $150,000 more wealth than the typical black family," explains the press release, and "[o]verall, total wealth for white families is about five times greater than that of black families, a gap that has persisted for years."  (Key for lawyers:  when researchers explained these costs to subjects, the amounts they requested went up.)

The subjects weren't just low graders, economically speaking.  They typically imagined they'd need more than $1 million to give up television permanently.  And when researchers asked them to imagine they had been disadvantaged in nonracial ways, they asked for much higher figures in compensation. 

They know the health care system has gaps

Another study released yesterday at the National Center for Health Statistics details how gaps in the health-care system play out in people's lives.  It's called the "National Health Interview Survey" (summary here, study data here and here), and it reveals among many other things that almost 20% of Americans 18-64 did not have health insurance in 2006.  That means someone on your jury likely has an uninsured friend or loved one, even if they're all insured themselves.

___________

Source notes: 

1. Thanks to both Eric Turkewitz of New York Personal Injury Law Blog and the Blog of Legal Times for picking up the Newsweek poll. 
2. Before you let that poll make you too hard on your fellow people, you might want to take it yourself.  I missed a couple of questions.  Even Newsweek spelled Jane Austen's name wrong  in the poll questions -- and, as Eric and BLT point out, spelled "charitable" wrong in the article. 

(Photo by  at http://www.flickr.com/photos/dcjohn/74907741/; license details there.)

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.)

How To Pick A Jury For A Lord

They're picking the jury in the case of People of the State of Illinois v. Lord Black of Crossharbour.

Conrad Black (now usually called "former media baron Conrad Black" or "former press mogul Conrad Black" in the papers) is on trial for fraud in Chicago.  The trial is being followed closely in Canada, where Black is famous.  A Toronto paper called the City News describes him in bullet points that could hardly describe anyone else:

• Former chairman and CEO of newspaper publisher Hollinger International.
• Gave up Canadian citizenship in 2001 to be named Lord Black of Crossharbour in Britain.
• Now lives in Toronto and is working to regain his Canadian citizenship.
• Known for his larger-than-life persona and lavish tastes.
• Has written books on Franklin Roosevelt and Maurice Duplessis.

It's the lavish tastes and that pesky title that make the voir dire worth watching.  This is a defendant whose lawyers argued the case should be dismissed because he could not possibly get a fair trial from jurors who do "not reside in more than one residence, employ servants or a chauffeur, enjoy lavish furniture, or host expensive parties."  A New York Times reporter listed some of the challenges of the first day of jury selection:

One recurring sticking point was the response of many of the jurors to a question of whether they thought there was anything wrong with individuals being paid “tens of millions of dollars.” “I don’t think that anyone should get that amount of money from any company,” one man said.

“No one just receives that much out of the blue for nothing,” said a woman.

Another man said that when he hears of millions in payments, he concludes: “Yes, they probably stole the money.”

Another woman added: “When I hear tens of millions of dollars, I shudder.”

"Yes, any time someone receives that amount of money, it’s hard to believe everything is on the up and up,” another person wrote [on a pretrial questionnaire]. “Look at Enron and the oil companies — big profits.”

Can I ask whether anyone on the panel has held a British title?

Then there was the peerage, presumably the first one that either side's lawyers had ever had to explore on voir dire.  Again the Times:

One male jury candidate said he believed Mr. Black has “something to do with Britain’s royal family.”

A woman wrote in her questionnaire that she thought that someone with a title “may feel that he/she is better than myself — untouchable.”

And just when they must have thought they'd fully explored jurors' resentment of rich royalty, the lawyers hit a vein of antiegalitarianism aimed at Lord Black because he is . . . Canadian.  "Another woman in the pool wrote when asked what she thought of Canadians: 'Not much. Socialist country.'"

They're different from you and me

I don't think there's data on what Americans think of moguls who give up Canadian citizenship to accept a British peerage.  But there is data suggesting we distrust rich people in general. 

In a 1998 Washington Post/Kaiser/Harvard Survey called the National Survey of Americans on Values, subjects were given a list of 17 individuals and groups and asked whether each shared "most, some, or hardly any" of their "moral and ethical values."  "None" was not offered as an option, but if the subject volunteered "none," the surveyer wrote it down.

When asked the degree to which "rich people" shared their moral and ethical values, only 11% of people felt they shared "most" values.  Half said "some," while 25% said "hardly any" and a full 10% volunteered "none."  (Poor people did far better, with 27% of people believing they shared "most" values, 55% "some," only 10% "hardly any," and only 3% "none.")  Besides rich people, the only other individuals or groups who had "none" responses in double digits were Bill Clinton (this was 1998), Newt Gingrich, the Republican Party, homosexuals (a huge 24% "none"), and groups like the Christian Coalition.

Bias thrives where experience is lacking

I've argued that lawyers would be wise to focus more on experience and less on bias in jury selection.  But a voir dire about rich people needs to be about bias.  Why? 

I suggest it's because most jurors have no experience with rich people.  They've seen rich people on TV, but they don't know any; as the gap between rich and poor grows, the rich live differently from the rest of us.  A wide-ranging 2005 New York Times inquiry on class in America discussed the ways in which class distinctions have in some ways blurred and in some ways remained clear in recent years.  One clear distinction is that rich people live different lives at home:

Family structure, too, differs increasingly along class lines. The educated and affluent are more likely than others to have their children while married. They have fewer children and have them later, when their earning power is high. On average, according to one study, college-educated women have their first child at 30, up from 25 in the early 1970's. The average age among women who have never gone to college has stayed at about 22.

And as we know, your family structure dictates a great deal about where you live, how you spend your time, and the people who come into your life.  (Seen much of your single friends since you had kids?)  For this and other reasons, most jurors have had little or no authentic interaction with a rich person before your trial.

Bias isn't the grail people think it is, but of course it has a role -- and that role expands quickly when jurors have only stereotypes to go on.

_______________

Related and unrelated notes:

1.  It looks like there will be Lord Black live blogs at a paper called the Chicagoist and in a blog called The Crime Sheet by visiting Canadian lawyer Steven Skurka.  "Everything about jury selection in this case is different from a Canadian trial," he says, and describes some striking aspects of the jurors' responses:  "An incredible number had experiences with identity theft in their family," for example.

2.  Mary Whisner's terrific Trial Ad Notes blog has been a jury goldmine lately.  She notes research on neuroscience and law here, research on juries' ability to make necessary sentencing decisions here, and research from Prof. Vidmar and others on whether there really are "judicial hellholes" here. 

(Photo by Jim Searle at http://www.flickr.com/photo_zoom.gne?id=362478600&size=s; license details there.)

The Neurojurors Might Be Coming

It's a Monday morning, sometime in the future, and you're about to pick a jury.  You're a little slower, a little bulkier than you were back in 2007, but in front of you at counsel table are your usual materials:  a chart to make your notes on, the written juror questionnaires, a list of topics you want to cover, the jurors' brain scans . . .

You've arrived in a world you first glimpsed when you read Jeffrey Rosen's article "The Brain On The Stand: How Neuroscience Is Transforming The Legal System" in the March 11, 2007 New York Times Magazine.  You were minding your own business on a Sunday morning, perhaps thinking you might do the crossword puzzle, when the bright and viscous brain-cell illustrations caught your eye and you began to read. 

Not just for criminal defense anymore

If you're not a criminal lawyer, you probably assumed the article didn't relate much to your practice.  The opening anecdote told of a murder defendant in the early 1990s who argued that he could not control his actions because of a cyst in his brain.  The new term "neurolaw," Rosen explains, has been used to describe the growing use of brain imaging and neuroscience in criminal defense. 

Then came a sentence that made you refill your coffee: 

Proponents of neurolaw say that neuroscientific evidence will have a large impact not only on questions of guilt and punishment but also on the detection of lies and hidden bias, and on the prediction of future criminal behavior.

That's lies, as in witnesses, and hidden bias, as in jurors.  This is about all of us.  In his extensive discussion, Rosen sets out at least two ways that brain scans and other neurological tools could make their way into any courtroom and be used on practically any person in it. 

Selecting the best brain scans

Serious researchers think brain scans might predict what jurors will do.  To explore this, Rosen visited Owen Jones, a Vanderbilt law professor who "is turning Vanderbilt into a kind of Los Alamos for neurolaw."  Rosen let Jones hook him up to an MRI scanner, where he pushed buttons to indicate how he would punish wrongdoers in various situations.  After "45 minutes trying not to move an eyebrow while assigning punishments to dozens of sordid imaginary criminals," Rosen got his results:

“Your head movement was incredibly low, and you were the harshest punisher we’ve had,” Josh Buckholtz, one of the grad students, said with a happy laugh. “You were a researcher’s dream come true!” . . . Marois emphasized that my punishment ratings were higher than average. In one case, I assigned a 7 where the average punishment was 4. “You were focusing on the intent, and the others focused on the harm,” Buckholtz said reassuringly.

Jury consultants have devoted many insightful words to describing the "punitive juror."  Is Rosen's brain picture worth more than them all?  Owen Jones thinks that prefrontal cortex activity "could be highly relevant for lawyers selecting a jury":

For example, [Jones] suggested, lawyers might even select jurors for different cases based on their different brain-activity patterns. In a complex insider-trading case, for example, perhaps the defense would “like to have a juror making decisions on maximum deliberation and minimum emotion”; in a government entrapment case, emotional reactions might be more appropriate.

“[I]t’s mind-boggling,” one scholar told Rosen.  No argument there.

I cannot tell a lie (anymore)

Once we've selected these brain-scanned jurors, we'll still have to convince them that our witnesses are telling the truth.  That won't be a problem, say the neuro-proponents.  While Rosen was in the Vanderbilt MRI, the researchers took data that let them read his mind:

[Vanderbilt neuroscientist René] Marois told me through the intercom to try another experiment: namely, to think of familiar faces and places in sequence, without telling him whether I was starting with faces or places. I thought of my living room, my wife, my parents’ apartment and my twin sons, trying all the while to avoid improper thoughts for fear they would be discovered.

As the researchers hoped, Rosen's parahippocampus (I'm just typing what I see here) was "lighting up like Christmas on all cylinders” when he thought of places, while his fusiform area "lighted up every time I thought of a face."  Marois "pointed to a series of practical applications:"

Because subconscious memories of faces and places may be more reliable than conscious memories, witness lineups could be transformed. A child who claimed to have been victimized by a stranger, moreover, could be shown pictures of the faces of suspects to see which one lighted up the face-recognition area in ways suggesting familiarity.

From there, the next step is neurological lie detectors, and they're in development.  Rosen describes two neuroimaging lie-detection technologies; one compares subjects' reactions to their own prior patterns (and might detect "not only lies but also honest cases of forgetfulness"), while the other compares "the brain activity of liars and truth tellers."  The president of Cephos Corporation, which plans to sell one of these products soon, told Rosen, “We have two to three people who call every single week.  They’re in legal proceedings throughout the world, and they’re looking to bolster their credibility.”

No stopping the "CSI effect" now

Rosen hints at another phenomenon we can expect from neurolaw.  Where it's not used in the courtroom, jurors might come to expect it, just as they expect fingerprints and DNA evidence today:

Even if witnesses don’t have their brains scanned, neuroscience may lead judges and jurors to conclude that certain kinds of memories are more reliable than others because of the area of the brain in which they are processed.

Long before neuroimaging lie detectors come to your county courthouse, you can be sure they'll show up on CSI, in the popular imagination, and in your jurors' unspoken beliefs about what lawyers ought to be showing them.

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Related notes and sources:

1.  Jeffrey Rosen is the legal affairs editor for The New Republic magazine, a law professor at George Washington University, and according to the Los Angeles Times, "the nation's most widely read and influential legal commentator."   His current book is “The Supreme Court: The Personalities and Rivalries That Defined America.”

2.  For more on the implications of the new neuroscience outside the courtroom, a comprehensive article is "Brave Neuro World:  The Ethics of the New Brain Science," by Kathryn Schulz, in The Nation last January.  (Dogged researcher that I am, I stumbled on this article because I hoped I could call this post "Brave Neuro World."  The phrase was taken, but the article is good.)

3.  For an overview of how jury consultants work now, see Matthew Hutson's article "Unnatural Selection" in the current issue of Psychology Today.  The article is the result of interviews with the jury consultants in some of the most prominent trials of the last few years.  I'll write more fully about it later in the week.

4.  As this blog enters its second month, I owe thanks to Anne Skove and her spirited Jur-E Bulletin, Prof. Suja Thomas, Eric Turkewitz at New York Personal Injury Lawyer Blog, Rush Nigut at Rush on Business, the learned folks at Empirical Legal Studies Blog and the Civil Procedure Prof Blog, designer Mike Rohde, and the generous trial consultants at ASTC for helping a newcomer along.

(The amazing brain image is by moujemouje at http://www.flickr.com/photo_zoom.gne?id=321779822&size=o; license details there)

The CSI Effect: While Scholars Get Empirical, Libby's Lawyer Tries It Out

Next time you need to make small talk with a prosecutor, try this question.  "So this 'CSI Effect' I hear about.  Is it real?" 

You won't have to talk again for quite awhile.  She'll tell you pained stories of juries who acquitted defendants -- even after hearing experienced police officers swear that they personally saw the crime -- because television has taught the jurors to expect forensic evidence like fingerprints and DNA.  Prosecutors say that back in the day, an eyewitness police officer was the golden ticket.  Now, "CSI effect" is a recognized term, and a fact of life for prosecutors.

A fact of life, at least anecdotally.  In a Yale Law Journal article last year, NYU professor Tom Tyler noted "there is little objective evidence demonstrating that the effect exists."  (Instead, his article is a comprehensive review of the literature bearing on whether juries are capable of expecting more just because of what they see on television.)

It's real -- but it's not just CSI, it's the culture

Now there's some data.  The scholars at the Empirical Legal Studies Blog noted over the weekend a new study by Professors Young Kim and Gregg Barak, and Hon. Donald Shelton, a sitting judge and adjunct professor, all of Eastern Michigan University.  Their article, published in the Vanderbilt Journal of Entertainment Law, is "the first empirical study designed to investigate whether 'the CSI effect' exists."   They used a survey, asking 1027 state-court jurors to describe "their television viewing habits, their expectations that the prosecutor would produce scientific evidence, and whether they would demand scientific evidence as a condition of a guilty verdict."

Their conclusion:  jurors do expect extraordinary levels of scientific proof, but their expectations can't be tied to any particular television show, or even television habits generally.  Rather, the authors conclude, "these juror expectations of and demands for scientific evidence are the result of broader changes in popular culture related to advancements in both technology and information distribution."

Trusting fingerprints, distrusting police

It makes sense.  The CSI show itself ("and its progeny," as we lawyers say) is a small current in the stream of changes that make jurors harder to convince.  Years before CSI's 2000 debut, for example, the 1995 O.J. Simpson trial taught millions of Americans not only the reach of DNA technology, but also that experienced police officers could lie  -- at least about their racist comments, and thus could be seriously suspected of planting evidence as well.  In the Yale Law Journal article, NYU's Prof. Tyler devotes a section to how jurors' "declining trust and confidence in legal authorities" makes them more likely to acquit. 

Then there is technology generally.  If jurors can watch CSI on their iPods in the jury room, it makes sense that they'd expect to see some showy technology in the courtroom as well.  Without question, a lawyer whose voir dire checklist stops with "Do you watch CSI?" has only begun to explore this area.

Can the CSI Effect help Lewis Libby?

While the Empirical Legal Studies folks consider the Michigan survey data, Lewis Libby's lawyer Ted Wells may be testing whether it works for white-collar perjury defendants as well as for accused murderers. 

The Libby jury drove observers crazy last week sending notes that ended up revealing nothing about their direction.  Then on Friday afternoon, they drove everybody crazy with a note that went straight to the heart:

We would like clarification of the term "reasonable doubt." Specifically, is it necessary for the Government to present evidence that it is not humanly possible for someone not to recall an event in order to find guilt beyond a reasonable doubt.

It could have meant a dozen things (star liveblogger Marcy Wheeler has a good set of wonderings here), but one of them is that the CSI Effect is happening in the jury room.  Jeralyn Merritt of TalkLeft highlights this from Ted Wells' closing argument:

There is no expert testimony that he could not have forgotten.  I mean, nobody took the stand and said, based on an empirical evidence, there is some study that says it's impossible for him to have forgotten in October what he was told in July. The record is barren on that point. There is no type of physiological evidence or scientific evidence. It's just barren.

If this were CSI, he's saying, you'd have heard from a scientist.  The jury's note might mean that some of them agree.

If that's where it's going, it won't be the first time the effect has appeared in a white-collar criminal case.  After Richard Scrushy was acquitted of securities fraud, the jurors apparently explained that they should have been shown fingerprints on the actual documents. 

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Thanks to the Empirical Legal Studies Blog -- for noting the Michigan study, for their skill at making empirical research relevant and readable, and for their very kind links to this blog last week. 

(Image by Chad Miller at http://www.flickr.com/photos/chadmiller/98014022/; license details there)

The Outside Comes In

Two news stories today converge nicely on the topic of whether, behind closed doors, juries obey judges' instructions to stick to the evidence.  First, Newsday writes of three recent cases in which jurors went beyond what they were supposed to -- two by getting outside information, and the third by drinking while they talked.

They're trying

Most juries try hard to stick to the evidence, as several experts consulted for the Newsday article stress.  Studies for the Arizona Jury Project show, the article says, that "jurors scold one another when off-limits information is introduced" -- something anyone who has done more than a few mock trials has seen.  (I think the particular article referred to is Diamond & Vidmar, Jury Room Ruminations on Forbidden Topics, 87 Va. L. Rev. 1857 (2001), although it doesn't focus heavily on the "scolding" phenomenon.)

But watch those cell phones

The Newsday article continued, though, "Nor do experts believe that the advent of the Internet has increased jurors' temptation to cheat.  The same information that can be found on the Internet could be found in the newspapers and on the radio in days past, they said."

Here I'm not so sure; times are changing very, very fast.  That's where the second article comes in.  The New York Times ran the word "Wikipedia" through a case database and found that judges are starting to cite it, often and with humor, for definitions of phrases like "booty music" and "jungle juice."  No less a stickler than Judge Richard Posner of the Seventh Circuit called Wikipedia a "terrific resource," if one to be used cautiously.

If we have suddenly come to a day when Judge Posner is citing Wikipedia, I'm guessing that jurors' comfort with greater and greater Internet access is changing out from under us, too.  They no longer have to leave the jury room to check Wikipedia, and they know it; there's a very strong chance that several of your jurors have accessed the Internet from their cars, or from their seat at the ballgame.

It may take a little more effort now to remind juries to stay within the evidence.  Think about it when you're drafting jury instructions, and consider it as a voir dire question:  Can you get to the Internet from your cell phone?  Do you?  For what?  Can you follow the judge when she tells you not to do that here?