Deliberations

Mini-Openings Set the Stage for Jury Selection

By Susan Macpherson

Judges tell prospective jurors: “All we really need to know is whether you can be fair and impartial.”   But prospective jurors are often not told what they will have to be fair and impartial about.  When jurors don’t know what the case is about or what they will be asked to decide, their answers to the most basic question in jury selection may not be very reliable.[1]  Yet there are very few jurors who have the nerve or the self- awareness to give the response that I recently heard from the back row of the jury box:  “Depends on what you guys got for me to decide!”  When jurors are told it is a criminal charge, such as possession of a controlled substance, they can make some assumptions as to what the case is about and consider whether they have any relevant experiences or opinions.  When jurors are told it is a civil case involving a claim like “tortious interference” or “a violation of the Sherman Act” or “misappropriation of trade secrets” that generally means nothing to them and certainly reveals nothing about the issues that might trigger a predisposition to favor one side.  Having each attorney present a mini-opening early in jury selection provides a simple solution to this problem.

A mini-opening is a brief statement – usually in the range of 5-7 minutes – that describes the context of the dispute, provides a quick overview of the key issues in the case, and gives a “50,000 foot” description of what the jurors will be asked to decide.  The basic concept is quite simple: when jurors are given a coherent statement about the case at the outset of voir dire they can do a better job of identifying the issues that may make it difficult for them to be impartial and of revealing any prior attitudes or experiences related to the specific issues in dispute.  The objective in the mini-opening is not for counsel to tell the jurors “this is why we are right” but rather “this is why we are here; this is what the jury will be dealing with.”   As a result, the follow-up voir dire is more efficient and effective because prospective jurors have a better understanding of why the questions are being asked, and they can do a better job of anticipating what the lawyers and the judge need to know about their opinions and experiences. 

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.

Debating “.45-caliber lead cocktails” Instead of Death-Qualified Juries

Florida State Representative Brad Drake recently introduced a bill that would change the State’s death penalty options from lethal injection, to firing squad or electric chair.  Apparently, this would somehow speed-up the infamously long death penalty process.  Drake noted:

“I say let's end the debate.  We still have 'Old Sparky.'  And if that doesn't suit the criminal, then we will provide them a .45-caliber lead cocktail instead...  If it were up to me we would just throw them off the Sunshine Skyway bridge and be done with it…  In the words of Humphrey Bogart (sic), 'Frankly my dear, I don't give a damn.'"  (The "sic" is due to his misquote.   Clark Gable said that.)

Deliberations does not take a position on the righteousness of the death penalty.  However, it’s fair to suggest that the most important problem with capital murder trials is overlooked by the media, the public and (obviously) our elected officials: the dangers of death-qualified juries.

Typically, the death penalty debate is couched as a moral fight.  There are those who believe that the ultimate crimes (aggravated murders) deserve the ultimate punishment.  In fact, the U.S. Federal Government and 35 states offer the death penalty as a potential sentence.  According to Gallup, national support for the punishment has not dropped below 60% since the early 1970’s (peaking at 80% in 1995). 

Conversely, a vocal minority has suggested that taking a life should be outside the State’s reach.  This group blends an interesting coalition of those who hold traditionally liberal stances with those who are cut from a Libertarian cloth.  Either way, their quarrel comes down to a moral opposition to the government’s right to impose executions.  The most common argument cites the potential for the death of an innocent person (which is possible given the 15 exonerations by DNA evidence of death row inmates.)

Most people have an opinion on this issue, but they seldom bring up jury selection.  Death-qualification is a process that forces the judge to remove potential jurors for cause if the court believes that the juror could not impose the death penalty or would be highly influenced by it.  In effect, anyone who opposes a death sentence can’t sit on a jury that decides one.  Many attorneys view the death-qualified jury as a significant advantage for the State because it removes a large number of people who might be more open to the defense’s perspective.

In Lockhart v. McCree (1986), the Supreme Court found that the Constitution does not prevent death-qualification.  The Court did not believe that “opposition to the death penalty” created a “distinctive group” whose exclusion would endanger a “fair cross-section” of the jury pool.  It should be noted that according to Gallup, 75% of the public was in favor of the death penalty in 1986. 

Today, 61% of Americans favor the death penalty.  This also means that 39% oppose the measure.  Moreover, this proportion changes greatly as one moves from jurisdiction to jurisdiction.  In many urban populations, it’s safe to say that the majority is likely opposed to the death penalty.  This would suggest that most of that community would be unqualified to answer the public’s gravest question: life or death for a fellow citizen. 

The potential side effect of removing fruitful debate from our most dire deliberations is troubling.  Our jury system depends on a robust discussion from a random (yet unbiased) cross section of the community.  Voir dire is intended to eliminate prejudice, not stack the deck.  If the death penalty cannot be decided by a fair jury, then we must ask ourselves whether it is worthwhile by our measure of law (not our measure of morality).

Representative Drake is focused on the wrong question.  Method of execution is simply a means to determined end.  Debating the morality of the end is equally wasteful, as two people cannot negotiate morals.  Instead, the question should be focused on integrity of the process.  Whether supporting or opposing the death penalty, we all agree that these cases deserve the most impartial jurors available.

Blogger: Matt McCusker

 

A Juror Reminds Us That The System Works

Last week, Ed Fletcher of the Sacramento Bee wrote a truly insightful piece about his jury service on a criminal trial. Not surprisingly, the story got little attention from media outlets around the country.  (Apparently, only incite-ful jury pieces need apply.)  The title of the column was “I voted to send another brother to prison.”

Mr. Fletcher is a black man (as was the defendant).  Mr. Fletcher is a journalist.  Mr. Fletcher was leaning towards a not guilty verdict at the trial’s opening.  Most importantly, Mr. Fletcher was the foreperson.

To some prosecutors (and armchair lawyers), this would be a situation that demanded an immediate plea deal.  However, that decision would have been based on an opinion of Mr. Fletcher that was rooted in stereotype and personal bias.  Worse, it would assume that the prosecution’s presentation would be so inept and disjointed, that it would be unable to overcome any juror predilections.

Instead, the State chose to present a compelling case and let the jurors decide.  As Mr. Fletcher noted:

“The gunshot residue was big, but no piece of evidence offered the clear cut satisfaction supplied by ‘CSI,’ ‘Bones,’ ‘The Closer,’ or ‘Criminal Minds.’ In our real world case, witnesses' views were obscured by darkness, the handgun had no incriminating finger prints and the (video) footage was crap.”

He continued…

“When I entered the deliberation room, my gut told me that we were headed for a hung jury. But as we kept reviewing evidence, re-reading the jury instructions on the law and talking about our positions, more of the jurors began to reach the same conclusion: Boyce fired the gun.”

Despite the harrowing cries of incompetence from the public and blogosphere, this is the typical process that justice follows in our system.  As this National Center for State Courts research indicates, hung juries are rare.  They are the exception, not the rule.  

After the trial, Mr. Fletcher did research on the newly convicted defendant.  He discovered that the man crying like a baby in court was no angel.  This put Ed Fletcher’s mind at ease:

“Today, I feel much better about our collective decision. Freed from court instructions not to do any research, I now know that Boyce's record stretches back to 1999 and includes a murder charge that was dropped in 2003, two separate plea deals on spousal abuse and a 2005 plea deal on an assault with a deadly weapon charge.”

I would argue that this is the perfect example of our system at its best.  Mr. Fletcher’s eyes presumed the defendant’s innocence from the start.  His conviction was based on the prosecution’s presentation of evidence of the crime, not an opinion of Mr. Fletcher that was rooted in stereotype and personal bias.  Sadly, it is the exception, not the rule that most of us remember.

Blogger: Matt McCusker

 

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

 

Ask Me No (voir dire) Questions, I’ll Tell You No Lies

How far will someone go to avoid jury duty?  While many suggest that pretending to be a racist is a common juror escape strategy, I question how many people are willing to take this route. Moreover, I tend to believe that anyone who is so unbalanced as to publicly present themselves as a devout racist (truthfully or not) would be a poor juror on any case.

However, is punishing this behavior really a good idea?  A Federal judge in New York thinks so.  Judge Nicholas Garaufis was so angry at a woman for racist comments during voir dire that he punished her with “indefinite” jury service. The Asian woman in her 20’s suggested on a juror questionnaire that those people she “least admired” were “African-Americans, Hispanics and Haitians.” (Who knew racists would use the term African-American?)

While we may hold her opinion in moral contempt, it is very dangerous to start holding it in legal contempt.  “Voir dire” (to speak truth) is dependent on jurors giving honest (or honest-ish) answers.  Being punitive towards jurors’ attitudes or opinions that we disagree with can only reduce the number of honest responses. As a result, we are more likely to end up with biased jurors. 

The most important question is: "What if she hadn't said anything?"

Blogger: Matt McCusker

 

 

Judicial Variability: To serve at the pleasure of the King (or Queen)

Judge Valerie Vega (coincidentally out of Vegas) recently made news by ordering jurors in a murder trial to stay all-night to finish hearing and eventually deliberating the case at hand.  In fact, the jury began deliberating at 3am (after 13 hours of trial) and finished at 7am. While juror overtime is not uncommon, this was extreme.  After the sun rose, the jury ended up acquitting Victor Fakoya in the murder of a 2-year old child that was in his care.

However, what made this story truly newsworthy was Judge Vega’s reasoning.  Shockingly, she was set to start a two-week vacation the next day and wanted a verdict so she could be free to leave.  While Judge Vega blamed the attorneys for the long trial, it was uncovered that many of her court days were cut short so that she could go watch her kids play soccer.  No matter the reasoning, it is hard to believe that a jury that had been up all night could fairly consider the facts in any case, much less the potential murder of a 2-year old.  It is also hard to believe that Judge Vega’s decision was completely within her rights as judge.

I would like to first say that the vast majority of judges are fair individuals who work hard at being the referees of our complex judicial system (and would never hold a cheeky blog against someone).  That said, the power a judge has over a case can be remarkably scary to those who sit outside our legal bubble.  In fact, I suggest that many would choose not to go to trial if they had a palpable sense of how little control one has over one’s fate after the case has been calendared.

As a litigation consultant, I’m often asked about the generalized procedures for jury selection and am typically embarrassed when I must reply “It depends on the judge.”  Surely someone who advises on these matters would know what the rules of the game are?  However, as many of us are painfully aware, the rules are actually guidelines that can be widely interpreted from state to state, from city to city and even from courtroom to courtroom within the same building.

There are many questions that come with jury selection: What qualifies for cause or hardship?  How are the alternates selected?  When does the day start and end?  How long is lunch?  What is the procedure for administering strikes and how much time is there to decide?  Are the attorneys given a real opportunity to ask questions in voir dire?  What questions will the judge ask the jurors?  Are juror questionnaires allowed?  However, the answers to these questions vary wildly.

To some it would be natural to ask:  why have we not developed more standardized rules and procedures for courtroom logistics?  Realizing that judging the strength of a cause strike or hardship claim comes down to personal opinion, there are still many other decisions that simply speak to the personal preference of the judge.  It could be argued that this variability of judicial inclination increases stress, the likelihood of a mistake and in some cases (like Judge Vega’s) abuse.

That being said, the true value of a litigation consultant is demonstrated through the fact that judges who preside across the hall from one another can have very different answers to all of the above questions.  A consultant who is worth their salt is ready to go into any courtroom situation and makes his or her living from the seat of the pants (figuratively and literally).  While judicial variability may be an added stress, it is one that we in the field of trial consulting are happy to help manage.

Blogger: Matt McCusker

BREAKING NEWS: Cute Woodland Creatures Protest Batson Ruling

 ENCHANTED FORREST  (AP) Last week, a herd of cute woodland creatures travelled to New York to picket the office of Judge Frank LaBuda (Sullivan County, NY) in response to his ruling that “hunters” should be considered a protected class under Batson.  A spokesman for the animal group, who would only give his first name (Bambi), told the crowd, “When did hunters suddenly become victims that need protection?  My mother was never tried by a jury of her peers when she received a death sentence. Why should the hunters get this special right.  We want justice for all!”

The backlash originated with LaBuda's decision to stop the trial of Robert Robar, a hunter charged with assault for the shooting of another hunter.  LaBuda concluded that the defense had systematically excluded “hunters” during jury selection when the team used all of their peremptory challenges on those who partook in the sport.  In his ruling, LaBuda noted that “hunters” were "… a class of people recognized by law… (who are licensed) to bear arms… Yet, in this case, they are being systematically excluded."

Interestingly, the peremptory challenges were utilized by the defense in an attempt to prevent other hunters from judging the actions of Mr. Robar.  This strategy of hunter exclusion angered some local hunters who supported LaBuda’s opinion. Mr. Elmer Fudd, who watched the protest from a distance told reporters, “I want to hunt wascally wabbits.  How can I feewl safe if othuh huntuhs awe shooting at me?”

This is just another instance in a string of confusing Batson-related issues.  The Washington Supreme Court recently ruled in State v. Rhone that a Batson motion should be automatically triggered by a “bright-line rule” when the last juror of a defendant’s racial group is struck by peremptory challenge.  In essence, this creates the assumption of potential discrimination:  “… a defendant establishes a  prima facie case of discrimination when, as here, the  record shows that the  State exercised a peremptory challenge against the sole remaining venire member of the defendant's constitutionally cognizable racial group.”  It is unclear how far this opinion reaches and how it will be interpreted regarding civil cases and other protected classes.

On the opposite side, defenses against Batson challenges have also become increasingly bizarre.  Given the broad scope allowed for class-neutral explanations, some attorneys have gotten quite creative. A brief search on Google will show reasons including “crazy red hair”, “shifty looks”, “working at MacDonald’s” and “having mustaches and goatees.”  If attorneys are honestly striking jurors based on these characteristics, then I would highly recommend them attending the next ASTC conference .

In my opinion, Batson is simply a Flintstones band-aid applied to (an overlooked) gushing wound in our justice system: the lack of time given for voir dire.  Attorneys are told not to use the most obvious visual characteristics to decide peremptory challenges (race, gender, ethnicity, etc.) while they are simultaneously put under severe voir dire time limitations (inhibiting the ability to learn what is beneath the skin).  Is it any wonder that lawyers end up depending on unreliable demographics to guide peremptory strikes?

Blogger: Matt McCusker

NO BASIS FOR BIASES: How Demographics Fool Even the Best Lawyers

 Let’s face it, we all stereotype.  We all make assumptions about others based on visual information alone.  These could be conjectures about grey hair, obesity, a tight skirt, or a body piercing; but people continually make visual judgments of others founded only on personal biases and prior experiences.  Think of the last time you were forced to stand in line (the DMV, the bank, the post office, etc.).  Did you notice the people around you?  What did you think of them?  What basis did you have?

While I do not endorse the practice of stereotyping, I accept it as an evolved part of the human condition.  Without these assumptions, the world would be a chaotic place where every new person would be an outright enigma (and even a potential threat).  Stereotyping provides order and a sense of security, even if it is often highly inaccurate.

Stereotypic predictions about individuals on looks alone come with three major downfalls:

1.       Making assumptions about individuals based on broad demographic stereotypes is simply not a reliable method.  Studies and analyses (Debunking Stereotypes, Objective Reality, Fourteenth Amendment) have shown that trying to apply large group characteristics (gender, race, age, hair color) to specific questions about an individual (Are they intelligent? Are they dangerous? Are they likely to convict?) is a generally ineffective technique.  Typically, the larger the group, the more flawed the assumption. 

For example, it is popular for some people make stereotypic assumptions about the automobile driving ability of particular demographic groups.  Let’s take a hard look at the stereotypes.  Which group reference do you think would likely be a good predictor for spotting an unsafe driver?

 

• Asian drivers (racial stereotype, approximately 4.5 billion people);
• Women drivers (gender stereotype, approximately 3.5 billion people);
• Drivers who have received speeding tickets (very common experience, certainly  in the tens of millions);
• Drivers who have rear-ended another vehicle  (less common experience, no data available); or
• Drivers who self-report on a questionnaire that they tend to speed and/or engage in “risky behavior” on the road (small group that is limited by how many are asked).

Notice that the smaller and more focused the pool, the more comfortable we feel in our assumption?  

2.      It’s easy to be right when one never knows the correct answer.  For the most part, none of us are typically able to test our stereotyping hypotheses.  These broad generalizations are only maintained for those people who we never get to know (the stranger in the DMV line will always remain a stranger).  Those who we actually meet (strangers who become new friends or acquaintances) will give us more individual information, thus making the stereotype unnecessary.  For everyone else (strangers who remain strangers), we simply get to move on with our lives assuming that we were right (which reinforces the stereotype).

3.      In several key areas of our society, we are specifically prohibited from depending on particular stereotypes (race, gender, age, sexual orientation, etc.) to make particular decisions (housing, employment, education, peremptory challenges, etc.).  This is generally because we have found that faulty decision making based on inaccurate stereotypes can have drastic consequences.

Recently, there has been a fervent discussion about the removal of peremptory challenges from the jury selection process.  The primary reason for this outcry is the belief that despite the Batson v. Kentucky ruling, attorneys depend too heavily on racially-based stereotyping when utilizing strikes (which this research suggests is likely).  As a result, some assert that minority criminal defendants are being placed at a disadvantage at trial, violating their 6^th Amendment right.  .

Banning peremptory challenges would remove racial prejudice through the restriction of information, rather than the promotion of openness and honesty.  While it’s true that this solution would limit race-based strikes, it would also come at the cost of increasing many other types of juror bias.  Without the presence of peremptory challenges, the courts would likely perform even less voir dire than the limited amount we see today.  By further reducing potential jurors’ ability to speak during voir dire, we would see even more serious cause and bias issues influencing our jury deliberations and verdicts (as the Mize study demonstrated).

Rather than denying the existence of stereotyping or asking people to continually suppress a basic human instinct, there is a better way to help reduce demographic profiling in forbidden areas.  The simple answer is to increase the time for voir dire and utilize jury questionnaires.  The minimal cost associated with these processes will exponentially increase the amount of information provided by individual jurors.  As we have seen, the best weapon against stereotyping is simply allowing a person to talk about their opinions and life experiences (something many of us are happy to do).

Blogger: Matt McCusker

What do Homer Simpson, Fonzie, MacGyver, and Batman have in common?: THE MIND OF A HOLDOUT JUROR

 I begin this post not with Henry Fonda (12 Angry Men), but with a few lesser-known (yet still famous) references to holdout jurors.

Some will remember that Homer Simpson was a holdout juror who argued a man’s innocence in the name of a free hotel room, free food, and free HBO. He noted, “Marge, it was horrible. Everyone was against me in that jury room. But I stood by the courage of my convictions and I prevailed… And that's why we had Chinese food for lunch.”

Both Fonzie (Happy Days) and MacGyver (MacGyver) also held out in the name of justice for the innocent.  Fonzie utilized his knowledge of motorcycles during the deliberation to prove a man not guilty (actually “Not Guiltyamundo”), while MacGyver … well …  pulled a MacGyver.

Despite being sequestered, MacGyver used two soda cans and a coin to distract the guard and sneak out of his hotel room.  He then conducted his own investigation of the crime scene, eventually nabbing the real attacker. (Before you think Hollywood is unrealistic, the judge did admonish MacGyver for these crazy antics… but then thanked him for finding the truth.)

However, my favorite holdout juror comes from the comedy 3rd Rock from the Sun. Putting a nice twist on the 12 Angry Men plot, Dick tries to defend a very obviously guilty man and sway the jury to set him free.  Here is an example of his case theory: “Well, Foster SAID he didn't do it.  Are you calling him ... AND his attorney ... LIARS?"

If you recall, I began this blog series on hung juries and holdouts, talking about the 20% of French faux-reality show contestants who refused to shock a man (actually an actor) into unconsciousness.  I was curious to know what type of people stand up to the group and refuse to comply with the wishes of a badgering game show host and vocal studio audience. 

While this is by no means an exhaustive list, and choices depend greatly on the case at hand, here are a few things to look for when thinking about jurors who are aversive to compromise or don’t play well with others:

1)      Watch the Talkers:  A study on interaction rates amongst members of split juries showed that the smaller the size of the minority faction, the more they talked.  It is easy to sit quietly when supporting the majority in a deliberation.  The holdouts are often required to argue and explain why they won’t go along with the group.  During voir dire, make a note of the people who like to talk.

2)     Strong Houses Rest on Solid Foundations:  Frequently, those who indicate “very strong” opinions about issues of ethics and morals are likely to be unwilling to shift to a position that would be in contradiction with these beliefs.  Those schooled in cognitive dissonance know that often, the stronger the belief, the more extreme the need to stay in line with it (even if it means wild theories with little support).

3)     Agree to Disagree:  There are some people who just like to argue.  They will often place the thrill of debate in front of the search for justice.  Anecdotally, I offer a few potential giveaways for these conflict-magnetic individuals during voir dire:

a.      Debating with attorneys or other jurors during Q&A;

b.      Whispering jokes in the back of the courtroom;

c.       Angrily staring at you with the “evil eye”; and

d.      Giving curt answers that are obviously intended to send you a message.

4)     Step One - Read Instructions:  A study by the American Bar Foundation showed that juries were twice as likely to hang if they began their deliberations focused on votes instead of evidence.  While this is usually out of attorneys’ control, asking judges to give jurors guidance about evidence-based deliberations could go a long way towards finding unanimous verdicts.

*A Caveat:  Those who have read the first two parts of the series already know that research suggests that holdouts are born from a split group that has different interpretations of the strength of the evidence and testimony.  The holdouts seldom begin the deliberation as 11 against 1 , but arrive there after a string of minority defections to the majority.

I end this post as it began, with another reference to a famous holdout juror.  Believe it or not, Bruce Wayne served on the jury of a man whom he captured as Batman.  In this scenario, (possibly due to the lack of evidence associated with “arrest by superhero”) Bruce had to convince the jury that the man was actually GUILTY!  Before you complain about juror deception, you should know that during voir dire, the Caped Crusader openly admitted in court that he would be a poor  juror because he was, in fact, Batman.  As would be expected, everyone laughed but him, the holdout. 

Blogger: Matt McCusker

(BTW, feel free to post comments with other famous juror holdouts.)

 

How the French’s shocking behavior relates to jury dynamics

 

 Last week, TV viewers in France saw a replication of Stanley Milgram’s shocking 1963 experiment  with a 21^st century twist: Reality TV.  Much like the original version, participants on  "The Game of Death" were asked to progressively increase the voltage of electric shocks administered as punishment to an unknown person. The recipient of the shock was obscured from vision, but the screams of pain were clearly audible (and eventually ceased due to supposed unconsciousness or death).  Unbeknownst to the shockers, the shockee was an actor who was faking it.

The 80 contestants (shockers) were told that this was a pilot game show, so there was no money to be won.  Everyone was asked to sign releases indicating that they would be willing to shock another person for incorrect answers.  Unlike Milgram’s study, this whole process was being conducted in front of TV cameras, a very enthusiastic live studio audience and directed by an eager game show host.

Those who know Milgram’s work will not be surprised with the results: 80% of the contestants went “all the way” and shocked the man into unconsciousness. However, as a jury consultant, I am more interested in the 16 people who said “No!” and ceased pushing the button.  The people who went against the group, despite intense social pressure to do otherwise.  In the legal world, we call these people “The Holdouts.”

This blog series will examine “Hung Juries” and “Holdouts” in three parts:

1)      Hung Juries and NFL Ties: Both are Unsatisfying and Rare

2)    “Can’t We All Just Get Along?”: How Juries Get “Hung”

3)     A Peek into the Mind of a “Holdout Juror”

(Part 1) “Hung Juries” and NFL Overtimes: Both are Unsatisfying and Rare

As terrible as a loss feels, ending in a tie (or being forced into a redo) can sometimes feel worse.  Granted, this depends heavily on your goals (excuse the pun).  Some criminal defendants and winless NFL teams ('82 Colts) may see a tie as a victory.  However for many, a draw is synonymous with a wasted effort.  Given the emotions involved, a hung jury can often epitomize this feeling.

How often do hung juries occur? Due to a lack of access to state court records, there have been a limited number of studies investigating the percentage of “hung juries” (and most have been in the criminal arena).  Research has suggested rates varying from 1% to 12%.  Much of this variability is based on jurisdictional changes and differing working definition of “hung” (one count, all counts, the most serious count, etc.). 

The National Center for State Courts (NCSC) completed an ambitious account of hung juries in 2003.  Data on Federal civil and criminal cases provided by the Administrative Office of the U.S. Courts (1980 to 1997) suggested a very low, consistent and stable hung jury rate.  Over the seventeen year span, Federal civil juries were hung less than 1% of the time and Federal criminal juries less than 3%. 

Data collected from State criminal courts in 1996-1998 by the NCSC was very different.  These numbers suggested a much higher hung jury rate and significant variability.  While the national average calculated was 6.2% (over 30 counties in 13 states), the percentages ranged from a low of 0.1% in Pierce County, WA to a high of 14.8% in Los Angeles County, CA.  To throw more confusion into the mix, an analysis of all 62 counties in the State of New York found an average hung jury rate of 2.8%.

I know percentages can be misleading, but this data confirms our belief that hung juries are rare.  This begs the question: What causes these rare occasions when agreement is impossible to find? Jeffrey Rosen wrote a piece in The New Yorker ("One Angry Woman: Why Are Hung Juries on the Rise?") suggesting racial divides were the primary root of jury nullification (a popular theory). Part 2 of this series looks at this and other theories/research investigating why juries hang.   

Look for the next installment, (Part 2) “Can’t We All Just Get Along?”: How Juries Get Hung, to arrive within the next week.

Blogger: Matt McCusker

Mark Bennett's Simple Rules For Jury Selection

We love simple rules here at Deliberations, and so I'm only a little embarrassed that I'm not the blogger who came up with a set of simple rules for better jury selection.  Mark Bennett is, and he's building it as we speak. 

Here's Mark's "Simple Rules" post; he updates the links as he posts detail explaining each rule.  By the time he's finished, you'll know the Nike Rule, the Shrek Rule, the Beer Pong Rule (no link yet), and the rest -- and you'll be better at this.

Please don't argue with Mark (or with me) about this concept of rules.  As he says, "The test of a good rule is not whether it is always right (rules seldom are) but whether it is right more often than the alternative—which could be another rule or no rule at all."  The other test of a good rule is whether you remember it so that it continues to challenge you -- and I'm guessing you'll remember the Shrek Rule.

There's a book in this, Mark -- think about it.

(Photo by John Haslam at http://www.flickr.com/photos/foxypar4/502077255/; license details there.)

They're Out There

The New York Times had a nice article yesterday on conspiracy theorists, especially those who believe the Apollo moon landings were a government hoax.  It's a good reminder that -- unlike all the things they believe are out there -- conspiracy theorists really are out there, and on juries.

You know about the most widely held conspiracy theories:  moon landings a fraud, 9/11 attacks and the Holocaust hoaxes too, Elvis isn't dead, the CIA killed John F. Kennedy, and so on.  What you might not realize is how common it is to find a broader sort of "conspiracy mindset," an approach to the world, in jurors.

The lawyers did it

You'll see it, though, if you do a few mock trials.  Almost every mock trial I've worked on has had at least one person who could fairly be called a conspiracy theorist.  They're the folks who find gaps you never dreamed you'd left in the evidence (sometimes gaps that aren't there at all) and fill them by imagining dark secret dealings behind the scenes.  I'm not talking about legitimate inferences from suggestive evidence; I mean wacky conspiracies.  In one mock trial about contract negotiations that began, fell silent, and then recommenced after several months, a mock juror suggested to her group that the transaction lawyers on both sides of the deal must have had a secret agreement going.  In the observation room, eyebrows rose as the lawyers and clients realized that no one on the panel was going to contradict her.

Conspiracy theorists aren't simply common; they also have a lot in common, and that is separately important to trial lawyers.  Here's a character sketch from the New York Times article.  As you read it, think about which side wants this juror:

Ted Goertzel, a professor of sociology at Rutgers University who has studied conspiracy theorists, said “there’s a similar kind of logic behind all of these groups, I think.” For the most part, he explained, “They don’t undertake to prove that their view is true” so much as to “find flaws in what the other side is saying.” And so, he said, argument is a matter of accumulation instead of persuasion. “They feel if they’ve got more facts than the other side, that proves they’re right.”

Mark Fenster, a professor at the University of Florida Levin College of Law who has written extensively on conspiracy theories, said . . . at the core . . . is a polarization so profound that people end up with an unshakable belief that those in power “simply can’t be trusted.”

* * * *

Adam Savage, the co-star of the television show “MythBusters,” [said that the theorists] never give up. “They’ll say you have to keep an open mind,” he said, “but they reject every single piece of evidence that doesn’t adhere to their thesis.”

Got the picture?  Focused entirely on what the other side failed to prove, convinced that those in power are corrupt liars, and willing to argue longer than anyone else.  A prosecutor's nightmare, most of the time.  Definitely not the profile many business defendants are looking for.  But hardly a clear call for any party, even if you're accusing the other side of corruption.  These are forceful, voluble, unpredictable jurors who won't compromise.  Learn to recognize them where you can; and if you leave one on the jury, pack extra antacid in your briefcase. 

(Photo by xamad at http://www.flickr.com/photos/xamad/518876976/; license details there.)

What Have You Missed?

The better the trial lawyer, the better her sense of what experiences have been important to other people -- that is, to jurors.  But we all have blind spots.  One of mine, it turns out, was Michael Jackson.

I know I risk losing subscribers when I say this, but I missed him entirely, or more accurately missed his music and his impact entirely.  He was almost exactly a year younger than I am, and we're both from northwest Indiana, so early on, I liked him a lot.  In junior high school, we all sang along with "Rockin' Robin."  But when his solo career started with songs like "Ben," I must have tuned out.  When "Thriller" came out in 1982, I was a young lawyer trying to stay calm with music I'd liked in college, and I just missed it all.  Before Jackson died, I couldn't have hummed a single line from "Billie Jean" or "Beat It."  I knew his biography included moonwalking and plastic surgeries and maybe oxygen tanks and allegedly pedophilia; if you'd asked me to describe him in two words, I probably would have picked sad and weird.

"An outsize, mesmerizing talent"

So I'm shaking my head as I watch footage of streets full of mourners, and listen to tributes from people of all ages and from all corners of the arts.  (Here's a collection of samples from Rolling Stone.)  Did Fred Astaire really say "That's the greatest dancer of the century"?  (I'm not linking because I can't find a solid source, but the quote is all over the web right now.)  Was Jackson really "in possession of an outsize, mesmerizing talent," as the New York Times summed it up?  Was he really a symbol of peace and hope to an entire "We Are The World" generation, as young fans on TV lined up to say into the microphone?

Apparently he was.  It wasn't that I'm too old (he had plenty of older fans) or that I disdain pop culture (I know far too many "Friends" episodes by heart).  It was just that his particular combination of personality and musical style didn't speak to me, so I ignored him.  I truly had no idea. 

What are you missing?

Here's the larger point for trial lawyers in this little memoir:  you're probably missing something too.  And it might not be small; it might be, like Michael Jackson, something that a lot of jurors would list among their greatest inspirations and influences.  It's worth pausing at moments like this to consider what you're missing, and whether you could open a little further to the experience of people who are not you.

(Photo by LainerJeanTater at http://www.flickr.com/photos/lainerjeantater/3669419395/in/set-72157620556773637/; license details there.)

Sleepers

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

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

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

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

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

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

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

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

___________________

Related posts here:

• Are You Sleeping, Brother Juror?

• Sleep And Moral Judgment

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

Supreme Court: No Constitutional Right To Peremptory Challenge

  The embattled peremptory challenge got no help from the United States Supreme Court today in Rivera v. Illinois.  

Rivera tried to strike a juror in his Illinois state court trial.  The trial judge said no, finding a Batson violation, and seated the juror.  All sides agree now that was a mistake, and the peremptory strike was proper. 

So does Rivera get a new trial?  That's what he argued to the Supreme Court.  Finding hope in the Court's 1965 Swain v. Alabama pronouncement that "[t]he denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice," Rivera argued the trial judge's mistake violated his constitutional right to due process. 

Not nobody, not nohow

Absolutely no way, the Supreme Court basically said.  (To underscore the point, the opinion was unanimous, and Justice Ginsburg wrote it.)  Here's the constitutional law of peremptory challenges as it stands on this day:

• "If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court's good-faith error is not a matter of federal constitutional concern. Rather, it is a matter for the State to address under its own laws."
• "[T]his Court has consistently held that there is no freestanding constitutional right to peremptory challenges."

• "Because peremptory challenges are within the States' province to grant or withhold, the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution."

Any questions?

__________________

The opinion is Rivera v. Illinois.  Related posts here:

• Is Batson Wrong?
• Challenging The Peremptory Challenge: Snyder v. Louisiana
• A Narrow, Broad Opinion In Snyder

Is Batson Wrong?

Just my luck.  I leave town for two days, away from the Internet for once in my life, and the blogosphere decides to spend the whole time talking about peremptory challenges to potential jurors. 

Peremptory strikes, the cons and pros (and pros and pros)

It started with an article by Nathan Koppel in the Wall Street Journal, discussing proposed reforms to the peremptory challenge system, including eliminating them altogether.   The reformers point to a problem that's real:  knowing they aren't allowed to strike jurors because of race, gender, or ethnicity, lawyers contort their explanations in ways that seem to be either ridiculous excuses or transparently racial code.  One of the casualties is the credibility of the whole justice system.

Bloggers on trial law took note.  The WSJ Law Blog simply reviewed the article, and Juries used a long quote.  But Walter Olson at Overlawyered said he's long supported getting rid of peremptories, and was tempted too by one reform idea in the WSJ article, limiting them to three per side, no matter what kind of case or where. 

Defenders of the peremptory strike ran to their keyboards and wrote one terrific post after another.  It may have been the best two days for jury blogging in history.  There were two posts from Mark Bennett (here and here), Scott Greenfield of course, two different authors from the blog Popehat (Patrick and Ken), and in his great new blog JuryVox, consultant Dennis Elias weighed in. 

I favor peremptory strikes.  I'm a practicing lawyer, not a theorist, and I know that in the courtroom, the peremptory system adds to the fairness and efficiency of trials, even when so many lawyers use it poorly.  And I can't imagine a thing I could say in favor of peremptory strikes that wasn't said more cogently in one of those great posts last week. 

The problem with Batson

One thing does seem worth adding, though -- a thought that isn't really part of the discussion, but instead about the reason we're having it.  It isn't just clumsy, racially motivated lawyers who have driven us to have to defend peremptory strikes.  It's Batson itself, the case that prohibited racially motivated strikes in the first place.

Is Batson wrong?  Not in its intent, or its immediate result.  In Batson's trial -- and many others, then and sometimes now -- the jury selection was simply racist.  The Batson court was right to end this shame.   But the court's reasoning left us with a false choice that is itself tainting jury selection today.

The Batson court divided the universe of peremptory strikes into two categories:  those with a "racially discriminatory purpose," and those that are "racially neutral."  If we can infer from your strikes that you're "discriminatory," the only way to save them is to convince the judge you're "neutral."  The literature, case law, and blog posts on Batson for the most part accept this distinction without question -- like last week's WSJ article, which talked about "the tricky question of when peremptory challenges cross the line into discrimination."

 But the distinction is wrong.  You know it's wrong.  Consider:

• You're defending a black man in a knife assault case.  A black prospective juror says two of her family members have been assaulted with knives in separate incidents.  She and her extended family all live in a high-crime neighborhood that is almost entirely African-American, and she has started an anti-crime program on her block.

• You're defending that same case and a white prospective juror says she avoids driving through the inner-city neighborhood where the assault happened, and has never known anyone who was arrested for a serious crime.  She lives in an affluent white neighborhood. 

• You're defense counsel in a medical malpractice case involving medical research studies, and an African-American prospective juror tells you she is highly suspicious of doctors and tests.  You're aware of the studies (here's one) showing that many African-Americans feel deep distrust of medicine and medical research.

 

In each case, is your peremptory strike meant to be "racially discriminatory," or is it "racially neutral"?  It certainly is not meant to discriminate, and I'd argue strongly that each of those strikes is appropriate.  But neither is it "neutral," in any sense except the way that courts applying Batson have come to redefine that word as they try to shoehorn strikes into one label or the other.  It's something we need another word for, like "racially complicated." 

Americans spent most of the election year 2008 teaching ourselves every day that race matters -- in ways we expect and in ways we don't, in the way we influence each other in groups and the way we think privately.  It matters because race, and the economic and social status that often come with race, are among the primary forces shaping each person's experiences.  That lesson has made our conversations about politics a lot more interesting -- but when we talk about other issues, like jury selection, it's as though we paid no attention at all.  "Discriminatory or neutral?" is a question with no right answer, and when we make lawyers answer it anyway, we shouldn't be surprised when the responses sound silly.

______________

Related posts here: 

• Challenging The Peremptory Challenge: Snyder v. Louisiana

• Batson, Day To Day

• A Helpful Way To Think About Race

 

(Photo by Photocapy, one of the very best photos on Flickr, at http://www.flickr.com/photos/photocapy/301093262/; license details there.)

More Harmless Than Harmless? The Mother Who Was Locked Out Of Voir Dire

Robert Gibbons was tried in what apparently was a very small courtroom in Goshen, New York, for the rape of his 15-year-old daughter.  He had told the police, “it was mutual, I didn’t rape her.”  That’s a conviction that many people – including, it seems, a series of appellate and postconviction judges -- would naturally want very much to stand.

She only wanted to see her son’s trial

As jury selection was about to begin, only one spectator sat in the courtroom:  Mr. Gibbons’s mother, who of course was also the victim's grandmother.  The trial judge told her she had to leave.  The courtroom was too small, he said, and he was not “going to taint the entire jury pool” by “put[ting] a relative right next to a potential juror.” Defense counsel asked if she could sit in the “well” just behind counsel table.  No, said the trial judge,  “[n]o one goes in the well unless it’s their attorneys or part of the defense team.”  That would “cause more problems,” he said, like security, or the jury wondering who this woman was.

The courtroom was thus closed to the public – that is, to the only member of the public who wanted to be there – for the entire afternoon of the first day of trial.  The next morning, enough jurors had been excused to free up some seats, and the defendant’s mother was allowed back in.

“This was not the trial of Osama bin Laden.”

In its opinion last week deciding Gibbons’s habeas petition, the Second Circuit had no trouble with the law.  Defendants have a constitutional right to a public trial in both state and federal court; that’s the holding of the Supreme Court’s opinion in Waller v. Georgia, decided in 1984.  The denial of a public trial is a “structural error,” meaning it’s one that courts aren’t permitted to ignore even if they find the error was harmless; Waller said that too. 

And, the court went on, the closure of Gibbons’s voir dire was not justified under the standards that Waller set out.  The trial judge’s security concern was silly (“this was not the trial of Osama bin Laden,” the court said), as was the purported concern that jurors would wonder who the mother was (“we do not understand what difference it would make”).  Nor did the trial judge look hard enough for alternatives.  In a note to future trial judges with small courtrooms, the court noted, the trial court could have:

• “Accepted defense counsel’s suggestion to have Gibbons’s mother sit behind counsel, or in some other part of, the 'well;'
• “Called fewer jurors at the start, leaving some room for spectators;
• “Required either a member of the venire or Gibbons’s mother to stand until a seat became vacant; or
• “Moved the proceedings to a larger courtroom — an option the court considered on the second day of voir dire. “

(He could have moved jury selection out of the courthouse, too.  I once consulted in a voir dire held in a popular banquet hall across town.)

“voiding a trial . . . seems to us unimaginable.”

Will Gibbons get a new trial, then, since the Second Circuit has found that his first one was tainted by structural error?  He will not.  The court turned to a “trivial error” theory that has no basis in Supreme Court case law but which the Second Circuit has used once before, in Peterson v. Williams in 1996.  In essence, this theory says to the Supreme Court, Surely you don’t mean we have to overturn a conviction when the error was this harmless:

The contention that . . . a brief and trivial mistake could require voiding a criminal trial of many months duration seems to us unimaginable. Whether the explanation would be that so trivial an exclusion did not constitute a violation of the Sixth Amendment, or that there was a violation but too trivial to justify voiding the trial, we do not know. But we believe that, regardless of which explanation would be given, the result would be to allow the conviction to stand. We must speculate because the Supreme Court has never ruled on such a question.

And so Gibbons’s conviction will stand.  “Nothing of significance happened” in the courtroom that closed afternoon, the court said.  “We need not rule on the metaphysical question whether, in view of the triviality of the incident, it was not a deprivation of a constitutional right, or in contrast, it was a violation of a constitutional right, but, in spite of the inapplicability of the harmless error rule, too trivial to justify vacating the state court’s judgment.”

Questions

Metaphysical for some people, I guess.  Worrisome for others.  Where are we going with this?  The other “structural” errors include denial of counsel; can trial courts now hold an afternoon of voir dire without a defense lawyer, as long as “nothing of significance” happens?  Will the Supreme Court, fresh from finally carving a good-faith exception to the exclusionary rule, decide that it likes this distinction between harmless and trivial?  Will the answers to these constitutional questions be different because we wanted to protect a young woman from having to testify twice?

I’m troubled too by the image of that courtroom in Goshen, and the mother – the grandmother – who had to wait outside.  If she had been a reporter, or if she had been a man, would the trial judge have found a way to let her stay?  I wish she’d had a lawyer of her own that day.

___________________

Notes:

1. The case is Gibbons v. Savage, decided January 28.  The opinion itself doesn’t say where the trial took place, but the New York Appellate Division opinion does.
2. New York lawyer Stephen Bernstein, who wrote about this case last week, practices in Orange County (Goshen is the county seat), remembers that “the old criminal courtrooms were certainly tiny and smaller than most law school moot courtrooms.”

(Photo by takomabibelot at http://flickr.com/photos/takomabibelot/626790274/; license details there.)

Stereotyping Jurors: What Would Clarence Darrow Do?

 Sunday’s post here asked where on earth a New York prosecutor could have read, as the state claimed in a recent Second Circuit Batson case, that “that heavy-set people tend to be very sympathetic toward any defendant.”  Lawyer and jury consultant Mark Stanziano wrote me wondering if Clarence Darrow might have said it.  “Darrow had lots of thoughts about heavy set people, thin people, Baptists, Methodists, lots of stereotypes,” Mark wrote. “It was the way he saw the world and the people in it.  Clearly, a different age, but one the prosecutor may have ‘read about.’”

Mark pointed me to an article Darrow wrote in the May 1936 issue of Esquire, called "How to Pick A Jury."  It’s set out in full as part of a Darrow site maintained by Prof.  Douglas Linder of the University of Missouri-Kansas City School of Law.  Overweight jurors aren’t mentioned in the article; but stereotypes definitely are.

“There is no sure rule”

You may have seen this article before, but read it again.  It’s an amazing document.  (Click through to Linder’s site and read the whole thing, not just the excerpts here; I’d reprint it all, but I can’t quickly figure out the copyright situation.)  Some of it is the kind of astute and measured advice you’d hope for from Clarence Darrow, like remembering who will empathize with your client, and what our “entire environment” teaches us:

If the client is a landlord, a banker, or a manufacturer, or one of that type, then jurors sympathetic to that class will be wanted in the box; a man who looks neat and -trim and smug. He will be sure to guard your interests as he would his own. His entire environment has taught him that all real values are measured in cash, and he knows no other worth. Every knowing lawyer seeks for a jury of the same sort of men as his client; men who will be able to imagine themselves in the same situation and realize what verdict the client wants.

His reminder not to rely on a single quality of any juror is modern and apt:

Choosing jurors is always a delicate task. The more a lawyer knows of life, human nature, psychology, and the reactions of the human emotions, the better he is equipped for the subtle selection of his so-called "twelve men, good and true." In this undertaking, everything pertaining to the prospective juror needs to be questioned and weighed: his nationality, his business, religion, politics, social standing, family ties, friends, habits of life and thought; the books and newspapers he likes and reads, and many more matters that combine to make a man; all of these qualities and experiences have left their effect on ideas, beliefs and fancies that inhabit his mind. Understanding of all this cannot be obtained too bluntly. It usually requires finesse, subtlety and guesswork. Involved in it all is the juror's method of speech, the kind of clothes he wears, the style of haircut, and, above all, his business associates, residence and origin.

He is cutting-edge when he reminds lawyers that individual experiences easily trump stereotypes:

There is no sure rule by which one can gauge any person. A man may seem to be of a certain mold, but a wife, a friend, or an enemy, entering into his life, may change his views, desires and attitudes, so that he will hardly recognize himself as the man he once seemed to be.

“If a Presbyterian enters the jury box and carefully rolls up his umbrella . . .”

But when you come to Darrow’s advice on “the nationality, politics, and religion of the person examined for the jury,” you’ll wonder how he ever won a case.  Here’s his cheerfully broad-brush rundown of potential jurors for the “underdog”:

An Irishman is called into the box for examination. There is no reason for asking about his religion; he is Irish; that is enough. We may not agree with his religion, but it matters not, his feelings go deeper than any religion. You should be aware that he is emotional, kindly and sympathetic. If he is chosen as a juror, his imagination will place him in the dock; really, he is trying himself. You would be guilty of malpractice if you got rid of him, except for the strongest reasons.

An Englishman is not so good as an Irishman, but still, he has come through a long tradition of individual rights, and is not afraid to stand alone; in fact, he is never sure that he is right unless the great majority is against him. The German is not so keen about individual rights except where they concern his own way of life; liberty is not a theory, it is a way of living. Still, he wants to do what is right, and he is not afraid. He has not been among us long, his ways are fixed by his race, his habits are still in the making. We need inquire no further. If he is a Catholic, then he loves music and art; he must be emotional, and will want to help you; give him a chance.

If a Presbyterian enters the jury box and carefully rolls up his umbrella, and calmly and critically sits down, let him go. He is cold as the grave; he knows right from wrong, although he seldom finds anything right. He believes in John Calvin and eternal punishment. Get rid of him with the fewest possible words before he contaminates the others; unless you and your clients are Presbyterians you probably are a bad lot, and even though you may be a Presbyterian, your client most likely is guilty.

If possible, the Baptists are more hopeless than the Presbyterians. They, too, are apt to think that the real home of all outsiders is Sheol, and you do not want them on the jury, and the sooner they leave the better. The Methodists are worth considering; they are nearer the soil. Their religious emotions can be transmuted into love and charity. They are not half bad; even though they will not take a drink, they really do not need it so much as some of their competitors for the seat next to the throne. If chance sets you down between a Methodist and a Baptist, you will move toward the Methodist to keep warm.

Beware of the Lutherans, especially the Scandinavians; they are almost always sure to convict. Either a Lutheran or Scandinavian is unsafe, but if both in one, plead your client guilty and go down the docket. He learns about sinning and punishing from the preacher, and dares not doubt. A person who disobeys must be sent to hell; he has God's word for that.

As to Unitarians, Universalists, Congregationalists, Jews and other agnostics, don't ask them too many questions; keep them anyhow, especially Jews and agnostics. It is best to inspect a Unitarian, or a Universalist, or a Congregationalist with some care, for they may be prohibitionists; but never the Jews and the real agnostics! And do not, please, accept a prohibitionist; he is too solemn and holy and dyspeptic. He knows your client would not have been indicted unless he were a drinking man, and anyone who drinks is guilty of something, probably much worse than he is charged with, although it is not set out in the indictment. Neither would he have employed you as his lawyer had he not been guilty.

And so on, through Christian Scientists, the wealthy, and those who laugh easily and those who do not.  (“By all means, choose a man who laughs.”) 

“Then too,” Darrow says, “there are the women,” then newly eligible for jury service:

Women still take their new privilege seriously. They are all puffed up with the importance of the part they feel they play, and are sure they represent a great step forward in the world. They believe that the sex is co-operating in a great cause. Like the rest of us, they do not know which way is forward and which is backward, or whether either one is any way at all. Luckily, as I feel, my services were almost over when women invaded the jury box.

[In a trial a] few years ago . . . the courtroom looked ominous with women jurors. I managed to get rid of all but two, while the dismissed women lingered around in the big room waiting for the victory, wearing solemn faces and white ribbons. The jury disagreed. In the second trial there were four women who would not budge from their seats or their verdict. Once more I went back to the case with distrust and apprehension. The number of women in the jury box had grown to six. All of them were unprejudiced. They said so. But everyone connected with the case was growing tired and skeptical, so we concluded to call it a draw. This was my last experience with women jurors. I formed a fixed opinion that they were absolutely dependable, but I did not want them.

It’s remarkable that there was a day when you could say things like this, much less publish them in a national magazine. 

The challenge now

I can’t help wondering whether, in the early part of the last century, stereotypes like this might have been more useful than they are now.  That was a world when immigrants often lived together in tight communities and neighborhoods, often doing business and worshiping in the old language.  Perhaps the thinking of a group member then matched that of the group more closely than it does today.  And when it didn’t match – as Darrow’s better advice shows he knew it didn’t always – it was an era when it was habitual to think and talk in stereotypes anyway.

We need to leave Darrow’s stereotyping behind, but not his effort, or his insight.  Darrow actually draws some wonderfully accurate psychological sketches in these wacky paragraphs.  What’s different is that the types aren’t linked to gender, religion and heritage anymore, if they ever were.  What today’s lawyer needs to do is sense the unique character of the Scotch/Irish/Scandinavian banker juror, raised Catholic and now a practicing Buddhist, married to a Jewish social worker with whom he has four children, one a disabled adult. 

And by the way, that juror is overweight.  If you strike him, or keep him, is that the reason?

(Public domain photograph of Darrow at Wikipedia.)

Overweight Jurors Are . . .

How's this for a race-neutral reason to strike a black juror?

I do not select overweight people on the jury panel for reasons that, based on my reading and past experience, that heavy-set people tend to be very sympathetic toward any defendant.

So said the prosecutor in Seth Dolphy's 1997 New York trial on drug, weapon, and assault charges, and the trial judge was fine with it.  Last Friday the Second Circuit basically said hey wait a minute, that's not Batson, and remanded to the federal district court to take another look at habeas corpus.  Since the trial judge hadn't given any serious consideration to the possibility that the "fat" explanation was a pretext, the court said, the conviction should be overturned unless the state could somehow convince the trial judge, now eleven years later, that the prosecutor was sincere.  

Where is it written?

On the off chance the prosecutor ever takes the stand, I have a question.  You strike overweight jurors "based on [your] reading"?  Where the heck did you read that?

I could have missed it, but I don't know of any research on the attitudes of overweight jurors.  (Or any that would answer the Second Circuit's tart question, "Which side is favored by skinny jurors?")  There is plenty of research on how jurors and others judge overweight witnesses and parties, especially since "obesity litigation" against fast-food companies and others started to appear.  In fact there's so much of that research that searching for research about overweight jurors is difficult, but I'm not seeing it in literature reviews either. 

Maybe the prosecutor had seen Stephen Adler's 1995 book/critique, The Jury:  Trial and Error in the American Courtroom.  Adler, according to Walter Olson's review at the time, attributes to defense lawyer Gerry Spence the notion that "fat people lacked self-control and wouldn't demand as much law-abiding discipline from others."  Heaven knows Gerry Spence can speak for himself, but whether he said that or not, I bet his actual thought process in voir dire is more subtle. 

Regardless of where it came from, did this idea somehow make it into prosecutors' voir dire seminars in the mid-1990s?  If so, is it still there?  If so, can we get rid of it?

Answers you already knew

Let's drop the stereotypes just for a minute and think about how many different ways being overweight might affect a juror.  I'm probably missing several, but here's a start:

• Overweight people often believe they are discriminated against, and they're right.  This might make one angry at an authority figure like the state; another ready to punish a defendant; and a third perhaps ready to be a holdout, feeling distant from the rest of the group.  Or it might have no effect.  It depends on the juror and the case.
• Overweight people have more health problems than thin people.  This might make jury service, with its long days of sitting still, more difficult for them.  One might respond with energy and commitment, another with cynicism.
• Overweight people are, obviously, overweight, and thus may be less likely themselves to be biased against your overweight client, or witness, or self.  (There's a study here whose abstract suggests this.)
• Overweight people (at least overweight women, according to this study) often have impaired romantic relationships.  A juror who had experienced this might listen differently to the evidence in a domestic abuse or sexual abuse case. 

Most important, overweight people are people.  Each one is as unique as you are.  Each one's story contains moments as life-shaping as yours have been.  You knew this, of course -- but if your "reading" about jury selection is full of garbage like "heavy-set people tend to be very sympathetic toward any defendant," you may hesitate to trust what you know when voir dire begins. 

Don't let anybody tell you that you never want overweight jurors, or that you always want them -- or that you never or always want any other group.  It just isn't true.

___________________

Source notes:  The Second Circuit opinion is Dolphy v. Mantello, discussed at the WSJ Law Blog and Althouse as well as here. 

Related posts here: 

• The Bias In The Mirror
• Beauty And The Juror, Part I and Part II
• When Women Judge Women

(Photo by Lee Carson at http://www.flickr.com/photos/tcatcarson/3082059555/; license details there.)

 

Jurors Take A Holiday

Are you picking a jury on January 5?  Be glad you won't have me on the panel.

If you're still picking jurors by demographic profile alone, you might think you want someone like me.  I'm fairly educated, a lawyer, a parent, a blogger, pretty senior at my office and thus used to leading project groups -- that's not the right juror for every case, but I might be a good candidate for yours.

Bread from a cold oven!

Except that during the holidays, I look nothing like that profile.  Over the last few weeks, the burning issues in my life have been questions like these:

--Will I ever find a recipe for pourable royal icing that's right for the fruitcake recipe I love?  The cookbook author doesn't give one because she says you can find it in "any general cookbook."  That might have been true when she wrote it, but times have changed.  (Answer:  I think I've got this right now.  And the fruitcake really is good, I swear.)

--Can you really bake bread in a clay pot starting from a cold oven, so the bread bakes while the oven preheats?  No more trying to fill the hot oven up with steam when you put the loaf in?  (Answer:  you really can.  I am unduly excited about this.)

--Will the gift book I made on Blurb.com turn out all right?  (Answer:  It was pretty spectacular.  Huge thumbs up for Blurb.com.)

--Will my relatives get in all right?  And will they get out all right?  (Answer:  They did, through snow and fog and storm.)

--Where the heck did I find the recipe I used that one year when I got the sweet potatoes right?  (Answer:  My old copy of The Joy of Cooking, but I didn't figure this out until I had messed them up yet again.)

--Will I really finish, for the first time, the Concept 2 indoor rowing "holiday challenge," joining three of my family members to row 200,000 indoor meters (at my slow pace that's close to 45 minutes a day) between Thanksgiving and Christmas Eve?  (Answer:  I did!)

I kept up on client work, of course, but the rest of my lawyer/blogger life was far away.  If I were in your jury box next week, I'd try to listen to you, but you'd be competing with the bread recipes in my head.

Not just baking

I'm not the only one who's distracted over the holidays, in ways that may not be predictable from a "profile."  This time of year is hard on relationships, for example.  I'm convinced that I see more requests for referrals to divorce lawyers between Christmas and Valentine's Day than in the entire rest of the year.  Jurors who need to "do something" about their elderly parents' living situation or their college student's mental health issues are thinking harder about it right now.  What was just financial anxiety the rest of the year may be closer to financial panic this week -- in any year, and especially this year.

If you're picking a jury in the next few weeks, try to remember that -- now even more than usual -- you are not the most important thing in their lives.  Find non-obnoxious ways to keep their attention and to make sure your key points get through.  Ask them how their holidays were, and listen to what they say. 

And speaking of holidays, I hope yours have been great.

(Photo by Chris Metcalf at http://www.flickr.com/photos/laffy4k/310048508/; license details there.)

 

Six Mistakes That Can Mess Up Voir Dire

Most of the legal talk about the Lori Drew case has been about the charges, not the jury.  But the jury story that did come out this week reinforces a whole series of lessons about voir dire.

Didn't read the terms of service?  "Absolutely you should be held liable"

Ms. Drew is the "MySpace mom" who harassed 13-year-old Megan Meier with a fake MySpace page.  She may not have meant for Megan to commit suicide, but that's what happened.  Ms. Drew was convicted last week of misdemeanor charges, but acquitted of felonies, and many question whether the charges against her will survive on appeal.  The prosecution's theory was that Ms. Drew committed a crime when she violated MySpace's "terms of service" by setting up a fake profile.  As Emily Bazelon wrote in Slate today, those terms of service, like most of what we all click yes to on the Internet, are "a long series of legalistic paragraphs that just about nobody really reads."

So when jury foreperson Valentina Kunasz told the press this week that she does always read Internet terms of service, and "If you choose to be lazy and not go through that entire agreement or contract of agreement, then absolutely you should be held liable" and maybe go to prison if things turn out badly, it made Scott Greenfield mad at the whole jury system: 

In this case, given its notoriety and attention, the effort to find fair-minded jurors, how did H. Dean Steward end up with the only person in the world who actually reads the terms of service?  Worse still, one who has such a chip on their shoulder that they believe anyone who does not read the TOS is lazy and should go to prison for it?  . . . [I]f jury selection, the process in all its art and science, fulfills its purported purpose, how could this have happened?  Or is it all just voodoo?

Scott and I go back and forth on the whole is-it-voodoo thing, and he has made some strong points on the subject.  But he has this one all wrong.  It wasn't some unpredictable mystery of the jury system that let Valentina Kunasz slip onto the Drew jury panel.  Her presence there was completely preventable.

One of three things happened here.  Ms. Kunasz was asked whether she reads terms of service and she told the truth; she was asked and she lied; or she wasn't asked.  If she told the truth, we don't have an issue, since that means the lawyers knew this fact and kept her anyway.  If she lied, then the problem isn't jury selection.  (I doubt that happened; presumably Wired would have reported it, as they reported much of the Drew voir dire in detail and also the Kunasz interview.)  And if she wasn't asked, well, that's not the jury system's fault.

Six mistakes

I have no information to criticize either side's voir dire in the Drew case, and I wouldn't do it even if I knew more.  This post is about the rest of us, not the Drew lawyers -- because the story brings to mind some of the ways a good lawyer could have failed to ask Ms. Kunasz if she was a terms-of-service reader and regretted it later.  Here are six of them, mistakes lawyers make all the time: 

1.  They don't allow enough time to plan voir dire.  Every Sunday night, this blog gets the same search hit over and over:  "Sample voir dire questions." 

It's clear what's going on.  All over the country, trials are starting on Monday.  The lawyers finally have everything else ready, and they are turning to voir dire.  They'll put together a good list, maybe do a fine job, but if they'd started earlier, they would have done better.

The earlier you start, and the more different times you revisit the project, the better your voir dire questions will be.  Each time you take a break and then return to your draft questions, you'll be amazed at the new questions that jump to your mind -- suddenly obvious, but somehow missed before.

2.  They don't plan voir dire in a systematic way.  If you try to plan voir dire by listing every question that comes to mind -- and many lawyers do it that way -- you'll end up with a lot of questions, and you'll miss a lot more.  You need a system that will prompt you to think of what doesn't come to mind. 

I've suggested some starting points for a systematic approach, here and here.  However you shape your system, be sure it includes the elements of the crime (or the civil cause of action) and the defenses asserted.  As to each element, whatever else you ask, you need to ask whether anybody has done that, or had it done to them.  Somehow this is easier to remember when the case is about something most people haven't done, like shooting someone in self-defense.  But if the case is about reading the terms of service, then that's what you ask about.

3.  They don't ask about experiences.  Lawyers too often jump to the punch line, asking jurors how they feel about the issues in the case.  Depending on how good you are at it, this technique falls somewhere between incomplete and useless, mostly because jurors often aren't very good at understanding or describing their attitudes.  Ask anyway, but ask also about what has happened to them, and about what they've done.  Very often you can understand them better from there. 

4.  They don't ask for follow-up questions in judge-conducted voir dire.  Lori Drew's trial was in federal court, and the stories I've seen refer only to questioning by Judge George Wu, not by the lawyers.  Again, I don't know what happened; maybe the lawyers asked for follow-up questions and didn't get them, or maybe they got them, or maybe they didn't ask.  But in general, it's remarkable how many lawyers write good voir dire questions for judges to ask in federal court, but neglect to ask for follow-up questions. 

5.  They get tangled up in paper questionnaires.  The Drew jurors answered what sounds like an extensive written questionnaire.  (I've looked for a copy and can't find it, even on PACER; if you have it and would share, please let me know.)  Questionnaires are great, of course -- an effective way to ask questions that would be difficult to ask in person, and to take a little time to think about the answers.  But when you have questionnaires, you need to be ready to handle the information they contain.  Too often lawyers find themselves standing in front of the jury box leafing through an armload of paper.  Sometimes that's unavoidable, but avoid it if you can.

6.  They don't question young working-class women.  Valentina Kunasz is a 25-year-old former hairdresser.  If there's anyone in the world who's likely to be under-questioned in voir dire, that's the profile.  Lawyers know they can't take all day on voir dire, so they often spend more time on jurors they think are likely to be leaders in the group:  educated jurors, jurors who supervise others at work, jurors with more life experiences, and yes, male jurors.  If a 25-year-old unemployed (I assume that's what "former" means) female hairdresser isn't volunteering, in many trials she wouldn't get to say much at all.

It's important to look for leaders in voir dire, and to try to understand them as fully as you can once you find them.  But it's also important to suspend your preconceptions while you're looking, and to make sure everybody speaks.  As Judge Gregory Mize has explained, the silent ones can surprise you.

________________________

Related posts here:

• How To Brainstorm Voir Dire Questions: A Practice Exercise

• Back To Basics: Nine Things To Look For In Voir Dire

• First Thing We Do, Let's Ask About Experiences And Behaviors

Update:  Gideon, who has been following the legal issues in the Drew case, posts on the juror story here. 

Cartoon by Roberto Zingales, [email protected] 2008)

How Would You Improve Voir Dire?

On Tuesday, I reviewed "Building A Better Voir Dire," the article by Judge Gregory Mize and Paula Hannaford-Agor of the National Center for State Courts.  The article challenged judges to work creatively to help the actual practice of jury selection live up to the ideals most of us share.

Now it's your turn.  What do you think judges should do to improve voir dire where you practice? 

I'm serious; I'm collecting your advice.  A number of judges read this blog, I'm honored to say, and I'm sometimes asked to talk to judges' groups about this topic.  I'll collect your best answers in a post (or two?) here, and I'll pass them on in person as well.

Tell me what you think judges most need to change in voir dire -- in the comments below, on Twitter, on your own blog, or by E-mail.  (Keep it civil, of course, and constructive.)  If you have friends with ideas, tell them to send them along.  We'll see what happens.

(Photo by Laughlin Elkind at http://flickr.com/photos/wurzle/659315; license details there.)

Principle v. Practice: A Judge's Challenge To Improve Voir Dire

What do judges talk about when they talk about voir dire?  Judge Gregory Mize is gently challenging his colleagues to make voir dire better, by comparing a new set of inspiring goals to new data documenting a less inspiring reality.

 

If there were a blog devoted entirely to Judge Mize's work to improve the jury system, that blog would have plenty to talk about.  Judge Mize guest posted here about his trip to Russia for the first-ever "juror's summit" there.  In trials in his own courtroom, he asked jurors who had been silent through voir dire to speak up --resulting in eye-opening papers I wrote about here.  ("I'm the defendant's fiancee," one juror said.)

 

Judge Mize is retired from the Superior Court of the District of Columbia. He is currently a judicial fellow at the National Center for State Courts, where he is guiding NCSC’s National Jury Program. Now, with the NCSC's respected Center for Jury Studies director Paula Hannaford-Agor, he has written another paper.  This time they're talking to judges, in the ABA's Judges' Journal , and the article is "Building A Better Voir Dire."  (You can't get into Judges' Journal unless you're in the Judicial Division of the ABA, but Judge Mize and the Journal have both kindly agreed to let me post a copy here, all rights reserved.)

 

Telling the truth

 

How do you inspire reluctant judges to improve voir dire?  With quiet candor.  First, let's be clear about the problem:  judges and lawyers have different interests.

 

The parties and their lawyers want to learn as much as possible about the attitudes and life experiences of each venire member to know who they want to keep out of the jury box. But at times, lawyers obtain so little information that jury selection becomes a hunch game.

 

The trial judge, with dozens—or hundreds—of like-kind cases on his or her docket, wants to administer justice in a timely and efficient manner so that other cases can be given prompt attention. Speed can be a top goal for some judges. Others, however, share the lawyers' thirst for juror information in order to rule intelligently on motions to strike for cause. . . .

 

These competing professional interests are seldom resolved to anyone's satisfaction.

 

But there are, these authors say, two resources that let judges compare ideals to reality, and use the gap between them to improve.  Both tools are fairly new, and Judge Mize and the NCSC had a hand in both.  

 

Principles . . .

 

The first is the ABA's American Jury Project, "an intense effort to inspire judges and lawyers to improve jury trial practices."  Judge Mize was part of it, together with Ms. Hannaford-Agor's NCSC colleague Tom Munsterman.  "After twelve months of intensive work," say Judge Mize and Ms. Hannaford-Agor, "the group, composed of trial practitioners, judges, and jury experts from across the country, produced the ABA Principles for Juries and JuryTrials."   The central tenet on the quality of voir dire is Principle 11: "Courts should ensure that the process used to empanel jurors effectively serves the goal of assembling a fair and impartial jury."

 

What does that mean?  The Principles suggest it means a lot of things.  Like jury questionnaires in regular use.  On-the-record voir dire.  "Appropriate demographic data." Simply letting lawyers ask questions, "recognizing the special knowledge that each attorney possesses regarding case-presentation strategy and the characteristics of their witnesses."  (Judge Mize and Ms. Hannaford-Agor note that "empirical research has repeatedly documented that prospective jurors tend to respond more candidly to questions posed by attorneys than those posed by judges."  In many courts, including federal court here in Wisconsin, it's almost never done.) 

 

Most important, perhaps, this goal means that judges should stop working so hard to keep possibly biased jurors on the panel:  "[Principle 11] supports a low-threshold standard for court rulings on for-cause motions by stating that '[i]n ruling on a challenge for cause,the court should evaluate the juror's demeanor and substantive responses to questions. If the court determines that there is a reasonable doubt that the juror can be fair and impartial,then the court should excuse him or her from the trial.'"

 

. . . in practice?

 

The second tool is the NCSC's massive "State-of-the-States Survey," which Judge Mize and Ms. Hannaford-Agor helped author and which I've written about here.  This national study "provided the first comprehensive snapshots of jury procedures, operations, and practices in state and local courts," they now write, and "like box scores in the sports pages, presents several undeniables." Again, they're gentle but blunt:

 

The information-promoting techniques recommended in Principle 11—use of questionnaires and individualized questioning of prospective jurors—are hardly ever employed.

 

This article isn't a lecture, it's a set of questions.  "Might the ABA's adoption of the principles provide an opportunity for judges and lawyers to begin discussing what a more mutually desirable voir dire could look like? Is there likely agreement among bench and bar in one's home jurisdiction that the 'system' would be better served if we worked together to attain greater juror candor in cases?"  Many more questions follow, and the authors conclude:  "In this matter, you are the jury, and it may be time to render some verdicts."

 

___________________________

Related posts here:

•  When Judges Lead Jurors In Voir Dire
• "Your Honor, I Move To Strike Your Mother For Cause"
• Judge Posner And The Jury Trial

 

"Building a Better Voir Dire" was published in The Judges’ Journal, Volume 47, Number 1, Winter 2008. © 2008 by the ABA, Judge Mize, and Ms. Hannaford-Agor, reproduced with their kind permission.

 

(Photo by Shadowgate at http://www.flickr.com/photos/shadowgate/1231138267/; license details there.)

Why You Need To Know Whether Your Jurors Blog

Asking jurors about their blogs really can help you.  I have evidence now.

 

I had the honor recently of speaking to the National Association of Criminal Defense Lawyers, on the topic of jurors and social networking.  I love this topic because people still really want to hear about it.  It won't be too long before lawyers all know what an RSS feed is and can explain the difference between a group and a wiki; but until then, I can say something about social networking that most of the audience doesn't know yet.

 

When I've talked about this to other audiences, though, I've gotten some resistance.  Lawyers don't like to ask about something as personal as a blog or a Facebook page, and they're not sure it's worth it.  They've heard the stories about jurors whose blogs would have justified a strike for cause, but there aren't many stories like that yet, and those jurors were in other people's trials in other jurisdictions.  Surely they wouldn't need to ask about blogs in their trial?

 

The first four blogs on the list

 

So this time I did a tiny experiment before my speech.  I went to Jury Experiences, the best collection of juror blogs, and took the first four blogs on the list on the day I was searching.  They were on the list because each blogger had been called for jury duty and blogged about it.  I've read many juror blog posts before, but this time I wasn't particularly interested in what they said about jury duty itself.  My question was:  if a lawyer had looked at that juror's blog on the day the juror appeared for jury duty, would there have been anything important there?

 

On all four blogs, there was.  Not necessarily something earthshaking, but in each case, something you would have wanted to know about that juror before you decided on your strikes.  Here they are:

 

Blog One:   Boredom Advanced, a blog by an art student.  On the day he was on jury duty, if you'd looked at his blog, you'd have seen that he and his roommate were wrongly accused of vandalism, by school officials who were abusive in their questioning, and he wasn't happy about it. 

So I call the guy when I get the chance and he starts trying to feed me this line of crap about how they're certain that this is either mine or David's fault and how they're leaning towards David. So they're basically looking for me to point a finger at him and give them the confirmation they need to slap a fine on him. Never mind the fact that none of us did it and they are strikingly absent of proof of anything . . .

 

I just want them to leave us alone.

We didn't do anything.

If high-handed police questioning (or employer questioning, or any other kind of questioning) is an issue in your case, you want to know about that blog.

 

Blog Two:  The Journal of Rhiannon Black, a metalworker and gardener who says "I am not in my early thirties. I would like to be."  If you'd looked at her blog on the day she was in court, you'd have seen this exchange with a guy she'd hired to help with her garden:

 

He transplanted my Creeping Rosemary.

[He says t]his is because he dug up the rosemary without knowing what it was or something. But really, it doesn't fit in the island.

What island? I don't have islands. I don't want islands. Oh my god what is he planning to do to my yard?

I told him that he had to respect some ground rules if he was going to continue working for me. Boy, was I getting the "you're a fat bitch" looks from him. But we'll see how it goes. If he comes back and starts working without speaking to me, again, I'm probably going to tell him to leave and not come back. He's not a bad worker but I don't want him doing what I don't want him doing and then expecting me to pay him for it.

Nothing wrong with that; I'd react much the same way if somebody moved my creeping rosemary.  But there's a sense here of how this juror will interact with others, and perhaps assess her own perceptions if they differ from those of others, that you're not likely to see in voir dire.

 

Blog Three:  AdBroad, the "oldest working writer in advertising."  It's a terrific blog about women in the advertising industry -- less introspective than many blogs, but the author's bio is wonderfully informative, and there are moments like this:

 

It's Sunday morning in August and I don't feel like writing. I feel like reading. Something offline. The Times, in its original, crinkly version. Then something bigger. Bookier. Something literary. Which makes me part of a dwindling crowd. According to Amy Stolls, Program Officer at the NEA, fewer than half of American adults now read literature.

Again, you could live without knowing this.  But voir dire won't bring out that reflection on her sense of her place in the larger world -- the world of other jurors -- and it would be a shame to miss it.

 

Blog Four:  Mars Girl On Two Wheels, whose "love of cycling has sustained me through some rough times in my life." The blog is about both the cycling and the rough times, and it is personal and revealing.  The week before she went to jury duty, this blogger wrote a long post about why she cares about equal rights for gay and lesbian couples:

 

Even as a heterosexual, I can relate on some level to being forced to hide aspects of oneself from the public eye to fit in. As a child in middle and high school, I submerged aspects of my personality in order to fit into the group mind of the adolescents in my high school. Though trite compared to having to hide your own sexuality, the toll to my mentality was detrimental. I found myself doubting my own self-worth and it took a lot of years to undo the damage I did. I guess that's part of the reason I've gone the complete opposite direction as an adult in highlighting the unique aspects of my personality, calling myself Mars Girl to constantly remind people that I feel I am different. I'm tired of hiding who I am so I've let myself out of my own closet to tell the world, "This is who I am; like it or leave it."

If there's a person in your trial who is marginalized in any way, you'd want to know about that juror's blog.

 

That's four blogs, randomly selected, and four blogs where lawyers would have seen something valuable if they had looked.  It's not a statistically valid study; but I'm convinced.

______________________

 

Questions:  Are you asking jurors about their blogs yet?  What are you finding?

 

Related posts here:

• ATrial Lawyer's Guide To Social Networking Sites
• A Message From Erin
• Blogging Jurors, Part I (follow the links to II and III)
• If These Jurors Could Talk

(Photo by Annie Mole at http://www.flickr.com/photos/anniemole/85515856/; license details there.)