Jurygeek Lives: Yard Dies

For those of you who have asked, Jurygeek and his family went through Hurricane Rita unscathed. We taped the windows in our home, took the art off the walls and put the art pieces high off the ground on shelves, put tarps over the television and stereo, etc. Then we endured a brutal 14 hour, 150 mile drive to Austin, where we spent far too much money on hotels, gasoline, and meals. Then we returned home to find that Rita didn't even drop enough water on our house to keep the yard alive.

Better safe than sorry.

On another jury-free note, I have been forced to put a word-verification into the comments to keep the spammers out. Jurygeek does not endorse any dating services or magic shows and does not claim any expertise in silicosis. Comments containing links to sites concerning such items do not belong on this Blawg, thank you very much.

Justice May Be Blind, But Is She Unconscious?

An interesting article in the New Jersey Law Journal. Seems that several jurors decided that the trial of Roy Higinia, in October, 1996, was less than compelling. In fact, four or five were allegedly "deep asleep," and several others were falling asleep.

This was in the defense attorney's opening statement.

Now, I'm not the most animated speaker. But putting half the jury to sleep during opening statement? Wow.

Now, I'm from Houston. It took the Federal courts to tell us that a lawyer has to stay awake in a capital case. Who woulda thunk it? Next thing, someone's gonna want judges to stay awake during trial. Heaven forfend!

The New Jersey courts rejected the complaint that a defendant is entitled to jurors who are actually awake and who hear all the evidence. Seems reasonable to Jurygeek.

But it seems to me that a defense attorney has to take an affirmative approach. Request breaks if the jury seems snoozy. Tell the jurors that they have to stay awake. Request the judge to intervene. Frequently.

Or maybe just not be so friggin' boring.

That said, a judge should also be aware of what the jurors are doing. And if one or more has faded away into the Land of Nod, he has a duty to act.

The Appellant should win in this case if the judge said "let them sleep." But if the defense failed to preserve the juror's snoozing in the record, it seems to Jurygeek that the defense is doomed. Maybe they can win on a Writ, but not on direct appeal.

Jury Told it "Must" Convict: 2nd Cir. Gets it Wrong

An interesting post from the Second Circuit Blog on the case of United States v. Carr. Seems the Second Circuit - one of the least jury friendly of the Federal appellate courts - recently held that a district court can properly tell a jury that it has a "duty to convict" if the government proves the guilt of the defendant beyond reasonable doubt.

This isn't news, but it is wrong. A jury cannot be required to convict in any circumstances, although they can be ordered to acquit if the judge finds the evidence insufficient to sustain a conviction. This is pretty well black letter law.

What the Second Circuit seems to ignore is the history behind trial by jury. But this isn't, again, surprising. It's the same approach they took in United States v. Thomas, in which it determined that a juror who decides not to convict on conscientious grounds is committing misconduct. Such a juror is exercising a prerogative which is protected by law; yet only if he exercises it before the judge figures out what he is doing. The decision in Thomas was based on sheer fiat: "nullification is jury misconduct because we (backed by an army of bureaucrats) say it is." Yet the history is clear that a juror cannot be punished because he or she nullified, and that a nullification acquittal if final. Thomas is not only fiat law; it is paradoxical and inconsistent.

My problem with the decision in Carr is simply that it is dishonest, and I think that judges should at the very least be truthful with jurors if they are to expect the legal system to be viewed with any respect. It simply is not true that a juror has a "duty to convict" in any case, under any facts. While judges may wish to remain silent as to the fact that a jury has a prerogative to acquit whatever the facts, they should not misinform the jury as to the opposite of the truth.

Historically, courts would inform jurors that they MUST acquit if they had a reasonable doubt, but that they SHOULD convict if the case was proven beyond a reasonable doubt. This distinction was adequate to preserve the jury's historic prerogative without unduly emphasizing it. This is the approach that the D.C. Circuit Court of Appeals took in United States v. Dougherty, 473 F.2d 1113 (D.C. Cir. 1972), a leading case on the topic of jury nullification. Whatever shortcomings this approach may have to those who wish the jury to have more, rather than less, information concerning their prerogative to judge the merits of the law, it at least remains free of the fatal vice of having trial court judges affirmatively lie to jurors - as the Second Circuit has permitted in Carr.

On Katrina Redux

Clay raises some very interesting points in his remarks regarding the potential impact of bad faith on future jury verdicts in the southern states of Mississippi, Alabama, and Florida, among others -- I think that where he and I disagree is on whether those states tend to be more friendly in general towards plaintiffs than other regions of the country, not on whether an insurance company should be held responsible for bad faith dealings with clients (of course they should, though perhaps there are some who would disagree). It is interesting to consider whether the determination that a claim is arguable or not, and actually gets to court, depends in large part on whether a judge sitting on a summary judgment motion views the facts as reasonably subject to dispute, and of course a judge's views on the merits or lack thereof of tort reform and other issues can play a role in that regard. How often do two judges see the same set of facts and rule differently?

On another front, it looks like there will be a retrial of the case against Oliver Diaz et al. in Mississippi. http://www.clarionledger.com/apps/pbcs.dll/article?AID=/20050917/NEWS01/509170377/-1/NEWS.

Philip Monte, Ph.D., J.D.

Katrina Redux: Other Considerations

Thinking of Katrina, and the impacts, if any, it will have on the jury system:

An interesting story is the one of the school bus comandeered by renegade refugees. Seems that Jabbar Gibson, a twenty year old, claims police told him to take the bus, and try to get out of the city. Along the way, he filled the bus up with complete strangers and took it all the way to the Houston Astrodome.

At first, they were refused entry. They weren't on an official FEMA bus. One report claimed the bus was stolen.

I don't know about y'all, but I don't think I'd vote to convict Jabbar. Probably offer to buy him a good meal. Is he a criminal - or a hero?

And how did he managed to get the jump on the entire federal government by several hours in evacuating the first bus load of people (and probably save the bus from destruction by flooding in the process?) This kid isn't a criminal - hell, he ought to be made head of FEMA. They've done worse.

OK, so stealing a bus isn't a criminal act under these circumstances. What about "looting?" There are numerous reports of police officers looting. As one blogger notes, if police (or anyone else) needed water and food, dry shoes and clothing, so that they could survive in this chaos, well, have at it. And I think most jurors would agree.

Now, nobody needs a 40" plasma TV to survive, and those looters will probably be dealt with unmercifully by juries. But anyone taking food, water, dry clothing, or anything else that is even remotely survival-related, is hardly a threat to his neighbors, and -- if those neighbors are aware of their discretion - very unlikely to be branded by them as a criminal.

So far as Philip Monte's concern that juries will punish insurance companies for denying too many claims - the question is whether those companies will try, in good faith, to settle all arguable claims. Claims that aren't arguable will not GET to juries - they'll be dismissed on summary judgment. Claims that are arguable should be settled, quickly and fairly.

If everyone in Alabama, Mississippi and Louisiana starts having friends who feel like they've been cheated and shortchanged by their insurance company, I have no doubt that those frustrations will bubble up, and that any lawyer representing an insurance company will find that their clients and their witnesses will simply have no credibility with juries in those areas.

Unlike Philip, however, I don't think that's a bad thing. That's what is, right now, today, giving insurance companies a very strong incentive to be fair and to be seen as being fair. Without that incentive, this disaster could become much worse for tens of thousands of families. So smart insurance adjusters out there should start saying "well, this house has both flood AND wind damage, so let's see if we can agree to a compromise," and not just say "flood damage - not our problem."

Because their response to this disaster will earn them a reputation, and once they earn that reputation, they will have to live with it. And, if it is bad, to pay for it. Philip sees that as injustice - I see it as the invisible hand of justice at work.

Jurors' Risk Assessment

The concept of risk tends to permeate much of what goes on in a courtroom. Jurors tend to second guess conduct during deliberations in negligence and other cases, arguing, for instance, "He should have known that it was risking disaster to build a house in a city that is below sea level," or "the defendant should have known that an assault would likely occur on her property." Social psychologists call this "hindsight bias," and it is manifested as the tendency of people to believe that they could have accurately predicted the occurence of an event had they been in the shoes of the person whose decision is alleged to have caused the outcome. Such bias would not necessarily present a problem, except that very often we are simply inaccurate in our assumptions about how we would have actually perceived various risks. Many factors come into play that skew our perceptions. Good courtroom lawyers are aware of this phenomenon and address it in the presentation of their evidence and during argument. For some interesting thoughts on the topic, see http://www.findarticles.com/p/articles/mi_m1175/is_3_36/ai_n6028116#continue . Philip Monte, Ph.D., J.D.

Effect of Hurricane Katrina

Thanks to Clay for giving me permission to post this to his excellent blog. A former jury consultant, I presently work in administrative law but continue to follow research and news relating to jury behavior.

It is interesting to consider the impact of the Hurricane Katrina disaster on the attitudes and behavior of jurors in the upcoming months and years, especially in the South. It is difficult to determine exactly how any catastrophic event will affect verdict outcomes. The specific facts and issues associated with each case are unique, but generalizations are possible. The terrorist attack of 9-11 provides an interesting example. An Islamic defendant in a criminal case facing ordinary street crime charges may well have experienced some level of bias in how jurors perceived him after the incident, even if the charges were completely unrelated to what we ordinarily consider to be “terrorism.”

Similarly, if predictions concerning the impending conflicts between homeowners and insurance companies come to pass, we may observe attitudes towards insurance companies become even more cynical and suspicious than they are at the present time. In states such as Louisiana, Mississippi, Texas, and Alabama, this could influence verdict outcomes in cases beyond those relating to the immediate disaster. Insurance companies are likely to find themselves even more under the gun, even in ordinary litigation. (Whether jurors in these southern states are biased in favor of or against insurance companies and other defendants is debatable and Clay and I disagree. In support of my position, see, e.g., ATRA’s listing of counties in Texas, Louisiana, and Mississippi [pre-tort reform] in http://www.atra.org/reports/hellholes/report.pdf.) Likewise, negative public opinion about oil companies will come back to haunt them in cases where they sit as defendants. Clay observes that large corporations may serve themselves and the public well by showing a willingness to enter into compromise settlements in disputed claims where a population has been decimated due to the storm. Arguments about whether damage was caused by wind or weather may prove costly in the long-term as cases go to trial. Regardless, lawyers on either side of the aisle will be hard-pressed to consider how potential jurors view the disaster, and how their perceptions might cause them to vote on key case issues.

Philip Monte, Ph.D., J.D.

An Astute Kansas Jury

This just in from Roger L. Falk, of Wichita, Kansas:

"I had to write and share this with those who deal with prosecutors every day. I just got lucky and got a two word verdict in the above second degree murder case. Defense was self defense and my client shot the victim twice in the back.

"The judge went back to talk to the jury after the verdict, and the jury indicated to him that they wanted to talk to the lawyers. Usually, I hate to talk to the jury after a verdict, but the prosecutor was faunching at the bit to get back there and berate the jury for finding my client not guilty. So I decided to go on back and talk to them, to let them know that they had done the right thing. As soon as we got back there the following exchange took place between the Presiding Juror and the Prosecutor (who by the way was the Kansas District & County Attorney Association's "Prosecutor of the Year" for 2004, Kevin O'Connor):

"Presiding Juror: (with hand raised) I have a question for the prosecutor, if I may?

"Mr. O'Connor: (Excited that the jury wanted to talk to him and not defense counsel, after his defeat) Well of course you can?

"Presiding Juror: (Very sarcastically) I just wanted to know if you were a jerk all the time, or if it was just in the Courtroom?

"Mr. O'Connor: (Laughing nervously and squirming just a bit) No, most people would say I'm a jerk all the time.

"Presiding Juror: (To other 11 jurors) See, I told you so.

"This exchange between the jury and Mr. O'Connor, coupled with the NOT GUILTY verdict, and my Client going home with his family after spending 9 months in jail waiting for trial, made my day. I decided right then that I had a very astute jury."

Ah, how our self-images vary from reality! How many self-proclaimed legal geniuses have had jurors say similar things about them in the jury room?

More on New Orleans!

As an old roadie, I've been looking for ways to support the New Orleans music community to keep them together until the city is ready for their return.

I've found these:

The Jazz Institute of Chicago has set up a New Orleans Jazz Emergency
Relief
Fund: http://www.jazzinstituteofchicago.org/

Preservation Hall has set up a fund to assist New Orleans musicians:
http://www.preservationhall.com/2.0/donate.php

The Recording Academy has set up the MusiCares Hurricane Relief Fund:
http://www.grammy.com/musicares/

There's the Tipitina's Fund for New Orleans Musicians and Artists:
http://www.theleaf.com/hurricanesupport.php

If it wasn't for its history of music and culture, creating dixieland, ragtime, jazz, rhythm and blues, rock and roll, and funk, New Orleans would be no more than another Beaumont, Texas. It is the fact that the place is a creative cultural mix that makes it stand out. It needs to be preserved.

More on juries later this week!