Wednesday, June 29, 2005

Are Jurors Overly Obedient to Authority?

I have long wondered whether Stanley Milgram's well-known experiments on the obedience to authority are a reasonable predictor of jury behavior. For those of you who cannot recall, Milgram conducted a series of experiments in which he offered volunteers $4.50 for an hours work participating in a psychology experiment. The volunteer met an experimenter in a white lab coat and a pleasant-enough co-subject, who was really an actor. Lots were drawn, in a fixed manner, and the actor was assigned the role of "student" and the subject the role of "teacher."

The student was connected, in another room, to a number of wires. The teacher was set before a panel with thirty switches on it, from 15 to 450 volts. The switches were labeled in groups, from "slight shock" to "danger" to "XXX". The teacher was supposed to give the "student" a shock whenever he got an answer wrong. The next shock would be at a higher voltage, until 450 volts was reached.

At some point, the "student" would start screaming, then quit answering, then fall silent.

Every single subject proceeded to at least the 300 volt level. Two-thirds of them went all the way to 450 volts. Their actions plainly left them distraught, and many of the subjects needed counseling to come to grips with what they were willing to do.

There are two lessons to be learned from the Milgram experiments:

1. People are willing to take actions that go against their most deeply held conscientious values when ordered to do so by an authority figure.

2. Ethics are situational: just because we personally feel something is morally wrong does not mean we are unwilling to participate in it if saying "no" puts us at odds with authority. The characteristics of the person are far less important in determining who obeys, and the characteristics of the situation are far more important, than most people believe.

The person who obeys malevolent authority must dehumanize both himself and his victim. He forgets that the victim is human; as one of Milgram's subjects put it "You really begin to forget that there's a guy out there, even though you can hear him."

Moreover, he sees himself not as an autonomous actor but "as the agent of another's will; someone who "has a job to do" whether he likes it or not. The obedient person sees himself as an instrument; by the same token, he sees the victim as an object. In his eyes, both have been dehumanized." Henry Gleitman, Psychology, 476 (4th ed. 1995).

So what does this have to do with the jury? I have long wondered to what extent jurors (especially in states in which juries impose punishment) act as Milgram's subjects. Do they convict people in cases in which they view convictions as unconscionable, yet do not wish to be at odds with the judge? Do they confuse jury "instructions" with "orders," and believe the instructions give them no choice?

Moreover, who are the authority figures in the courtroom? Plainly the judge and the prosecutor, but rarely the criminal defense attorney. Thus, the tendency to obey authority pushes the jury to convict, but rarely to acquit.

It appears that this tendency towards obedience to authority is the greatest stumbling block to obtaining jury nullification verdicts. Jurors must feel personally empowered and involved if they are to rise above their tendency to mechanically obey authority figures and deliberately act on their own judgment.

Jury nullification, when it occurs, appears to be more of a subconscious than a conscious phenomonon. That is, because of their discomfort with convicting, jurors creatively interpret their instructions, make disingenuous findings of fact, etc. Nullification may be seen as passive-aggressive. Instead of confronting the unjust or unconscionable demands of authority directly, the nullifying juror cloaks his aggression in the guise of disingenuous fact-findings or a feigned misunderstanding of his or her instructions.

In a future post I plan on discussing some of the techniques I've learned for breaking down this tendency to obey authority. However, as one jury researcher has suggested, jury deliberations themselves may dilute or break down this obedience by giving the jurors a peer group and empowering them to think independently. Whether this is true or not may depend on the composition of the jury, the personalities of the attorneys and judge, and the evidence and arguments the jurors have been given to take with them into the jury room.

Sunday, June 26, 2005

Tort Reform: A Myopic Vision

Jonathan Wilson continues the discussion on tort reform. Curiously, many of the points I've made he ignores; he sets up several obvious straw men to knock down in their stead.

Wilson claims I have conceded that punitive damages have "no relationship to the harm or wrongdoing by corporate defendants." I've never said this is true; what I've said is that this is the claim the Behavioralists make. It is plainly untrue; while punitive damage awards have a relationship to the harm or wrongdoing of corporate defendants, that is not the ONLY thing they have a relationship to. Other factors come into play - and properly so. Juries also determine the likelihood of the harm being repeated, the wealth of the corporation (and thus the amount of punishment needed to deter future wrongdoing), the attitude of the corporation towards their wrongdoing (i.e., the amount of recalcitrance or remorse shown), and numerous other factors.

While Wilson's attempt to tell me what I would say if the civil justice system did, in fact, produce "economically efficient deterrence of corporate misconduct" is simply another strawman, the point is that "economically efficient deterrence of corporate misconduct" is not and has never been the goal of the civil justice system. Nor should it be.

What Wilson ignores is that an award of "punitive damages," in a civil case, serves the same purpose as "punishment" in a criminal case.

It punishes.

And the really anemic part of Wilson's argument is his failure to address that point.

We do not flinch against allowing criminal courts to impose exceptional sentences in order to deter other actors against committing similar crimes. Why should we flinch at allowing civil juries to impose exceptional sentences in order to deter other corporations from committing similar torts?

There simply is no reason.

Wilson invokes an ancient civil case for the proposition that "the defendant ought not be responsible for something he could not have reasonably forseen." However, punitive damages only hold the defendant responsible for torts he could have reasonably foreseen. So this is another obvious strawman. The only issue is whether the defendant could have foreseen the extent of punishment he would receive.

Of course, it has long been the rule that the entity committing a tort need not be able to foresee the extent of damages the tort would cause - a tortfeasor is liable for extraordinary damages caused, for instance, to an extremely vulnerable victim. A trash-hauling company that hires drunk drivers can't complain that they could not have foreseen that the drunks would hit a crowded school bus or ambulance instead of a passenger car. And of course, because punitive damages are always available, a corporation should foresee that its misconduct may always be punished dramatically.

An efficient way to keep them on their best behavior, one would hope.

Now, let us compare the realpolitik differences between what tort reformers DO, and what they SAY. Tort reform issues tend to do two things: reduce noneconomic damages (pain and suffering and the like), and to reduce punitive damages.

Neither of these, of course, have any relationship to frivolous lawsuits. They only deal with actual torts in which someone has been actually harmed. What, for example, is the ECONOMIC costs of, say, a surgeon removing a non-cancerous breast by mistake - and then removing the cancerous one as well? A woman has been left with no breasts instead of one.

Except for strippers and streetwalkers, breasts are not tangible economic assets. However, for a woman, what would be the value of that remaining natural breast? Should her compensation be capped at an arbitrary number - or should a jury be left to decide?

We know what the tort reformers would say; give her a couple hundred grand and send her on her way. Juries would probably add a zero to that.

Or two.

What is the "rational relationship" for "economic efficiency?" How would that be determined? By whom? According to what mechanically-applied formula? Determined by whom? How?

Now, Wilson proposes shifting the prevailing party's attorneys fees to the party who rejects a settlement, unless they recover more than the settlement offer at trial. Of course, such a rule would only work in cases in which a Defendant ADMITTED they had committed an actual tort. (A Plaintiff who flat out lost would not recover less than a zero settlement offer.) There is something important that Wilson's proposal omits - something of Constitutional dimension that goes precisely to the fabric of what makes America America.

That is that everyone that has been wronged is entitled to their day in court. Wilson would entitle them to a payday, but put a tax on their day in court. If a person prefers $5 awarded by a jury to $5,000,000 in a settlement, they should be entitled to force the defendant to a jury trial SIMPLY TO PUT THE DEFENDANT'S MISCONDUCT TO THE JUDGMENT OF A JURY. Wilson's proposal presumes that the only interests plaintiffs ever have are venal ones; I have had many clients who didn't care what the outcome was nearly so much as they wanted to have the evidence of the defendant's wrongdoing made public. The Defendant can concede damages, but the Plaintiff has a right to have a jury hear the case and set damages.

The Seventh Amendment (at least in Federal cases) guarantees the plaintiff this right - and any procedural rule that would tax the insistence on trial by jury would violate this principle. Of course, most States have similar provisions in their Constitutions.

It ain't economically efficient to allow this. But it is Constitutional. An amazing number of clauses in the Constitution are less than economically efficient - including just about the whole Bill of Rights. But that is part of the cost we all pay to be relatively self-governing and free.

And again, of course, Wilson does not answer why we should not enforce the same rule in criminal cases. Should the defendant who wins at trial be entitled to the return of his legal fees? Should O.J., Robert Blake, and Michael Jackson all be reimbursed by the taxpayers?

If not, why should G.E., Chrysler, and A.D.M. be entitled to reimbursement on suits that they may win?

Wilson depends on emotion-charged but contentless terms like "litigation lottery" and "individual responsibility." Is it not responsible for corporations who have committed torts to be subject to punishment for their actions? It appears that Wilson uses the term "individual responsibility" only to contrast it to "corporate responsibility," which he eschews.

The statistics simply don't support this idea that juries are bankrupting corporations left and right. There is no "litigation lottery." Corporate America is capable of inflicting great torts on society and on individuals, and (as Enron, Martha Stewart, Tyco, Adelphia, World-Com, etc., all show) acting with arrogance and contempt for the public in doing so. When they do so, they may be subjected to great punishment. And sometimes, juries find it appropriate to do so. This threat does more to restrain corporate misconduct than any schedule of fines ever could - and it is fair, grounded in American law and history, and effective.

Thursday, June 23, 2005

Did Legal Formalism Mortally Wound the Independent Jury?

Many years ago, Prof. Randy E. Barnett suggested to me that in my book on jury nullification I missed one of the reasons late nineteenth century juries lost the legally recognized role of deciding both facts and law. The reasons I had given were the diversification of the jury (which had come to include blacks, women, poor whites, and new immigrants), and the fact that elites could control legislatures but not juries. Barnett saw another factor at play: the rise of legal formalism during that same period, supplanting the natural rights doctrine that gave rise to the jury's larger role.

Under natural rights doctrine, certain rights exist independently of written laws. Whether a product of nature or God, these rights must be recognized for any laws to be legitimate. Governments can violate these rights, but cannot create or remove them. According to Barnett, the Ninth Amendment recognizes these "other" rights, which are too numerous and diverse to be enumerated. The job of legislatures, judges and juries is to perfect their understanding of those rights which already exist: they in doing so they are to help perfect an understanding of justice.

Legal formalism is an alternative doctrine that arose in the late nineteenth century. Formalists believe that justice is a product of properly and evenly applying written law. Law, according to the formalists, must be explicit and enforceable. It is the job of the legislature to adapt the law to new situations. Legal formalism respects tradition, authority, habit and training. It casts the judge less as a philosopher of law than as an interpreter and guardian of law.

One of the primary threats to legal formalism is the independent jury. Juries are more interested in justice than in law. To legal formalists, injustice under law is preferable to a justice which is the product of discretion. As Duncan Kennedy puts it, legal formalism "involves the morally delicate refusal to respond to the call for justice in the particular case, for reasons that may be bad or good according to the circumstances."

Legal formalists require that trained judges, with respect for the institutional hierarchy, strictly interpret the law. The lay public is qualified to find the facts, but no more. Juries should precisely apply the law, as given them by the judge, regardless of consequences. The appellate courts then decide whether the judge interpreted the law correctly, and in doing so will provide a precise formulation of the law to be used in future cases.

Of course, many other philosophies of law exist, yet most have as their base a belief in legal formalism. Critical Legal Studies, feminist jurisprudence, law and economics, utilitarianism, legal pragmatists and postmodernisms, and critical race theorists all, to a greater or lesser degree, depend on legal formalism. Legal formalism is no longer (for the most part) considered a theory in America's law schools; it is simply The Way We Do Law. It is the framework upon which all other theories are built.

None of us would be so brash as to suggest that justice is a meaningless word; we all desire our laws to be just and fair. Contrariwise, none of us would be so brash as to suggest there is no need for formal laws: nature will not tell us which side of the street to drive on. What legal formalists cannot concede is that there are some constitutional statutes which are unjust, or that just statutes can be misapplied in a draconian and unjust fashion. As U.S. District Court Judge Thomas A. Wiseman once noted, "Congress is not yet an infallible body incapable of making tyrannical laws." Until that omniscience is gained, there will continue to be a rather large chink in the armor of legal formalism.

A broad role for the jury in determining the merits of the law is incompatible with a legal formalist conception of law. As legal formalism rose into the predominant theory of law, jury independence was formally squeezed out of the system. It has continued to exist in a sort of legal twilight: recognized and protected in the formal law, yet considered "jury misconduct" and hidden from jurors at trial. Whether this is a rational or even formally appropriate manner of dealing with the prerogative of jurors to nullify the application of laws they find unconscionable is a question to be addressed at a later date.

Monday, June 20, 2005

What Lawyers Should Know About the Jury System

I am currently reading Prof. Nancy S. Marder's recent book The Jury Process, published by Foundation Press, now part of the Thomson/West legal publishing empire.

This book is intended as an introduction, and succeeds admirably at that task. As is necessary in a work of only 279 pages, Marder at times can present only an overview. She covers the history of the jury system, for example, in sixteen small pages. As such, The Jury Process does not have the depth of, for example, Randolph N. Jonakait's The American Jury System.

Unlike Prof. Marder's work, Prof. Jonakait's book was not intended as a law school textbook. While it undoubtedly will find its way into classrooms, it is neither organized nor written for textbook use. The Jury Process, on the other hand, is intended to serve with other materials in a law school course. A small paperback, the book is a good read for those interested in the subject.

While the book is an excellent introduction to the jury system, what is surprising is that this is the only book on the jury system written specifically for use as a law-school textbook. One would think anyone interested in being a trial lawyer would study the jury voraciously. One would be wrong.

Few law schools offer courses on the jury. While courses on tax, evidence, procedure, business associations, trial skills, white collar crime, etc., are standard fare (and there are dozens of books on any of these topics), most law schools offer no class on the history, purpose, or social science of the jury.

Many law professors speak condescendingly of jurors - probably because they've never seen one. Few law professors have ever been trial lawyers. Even fewer have been really good ones. Should we be surprised so few lawyers know more about the jury than they do? In fact, anyone who has ever served as a juror probably knows more about the workings of the jury system than the average lawyer.

While Prof. Marder's book is an excellent choice for a law school looking to add a course on the jury to its curriculum, what is sad is that this book has no competition. This is an important topic, which anyone interested in trial work ignores only at his or her peril.

Jurygeek hopes that Prof. Marder's book will sell well enough to inspire competition in the law-school textbook market. I applaud Prof. Marder for bravely going where no law school professor has dared go before, and I hope that this book is a harbinger of a full-blown casebook (with a generous section on the social sciences) to come.

Friday, June 17, 2005

Tort Reform or Jury Elimination: Redux

Jonathan Wilson, who has self-published a book advocating tort reform, not surprisingly disagrees with my argument that the hidden agenda behind tort reform is to eliminate the civil jury system, at least for corporate America.

Wilson is correct on one point: I do lump all tort reformers together. This is because I am looking at the political realities, and the money, behind tort reform. I am not interested, in this context, in some of the academic arguments that are not being urged by the big money behind tort reform. I am focusing on the Republican tort reform agenda.

Also, he is correct that I didn't spend much time going into the flawed premises behind the corporate-sponsored book Punitive Damages: How Juries Decide. (Symmetrically, Wilson did not address any of the flaws Prof. Hoffman identified in the theories underlying Punitive Damages.) In response to Wilson, I will do so here.

What the “Behavioralists” in Punitive Damges claim is that punitive damages awards given by juries have no relationship to the harm or wrongdoing by corporate defendants. The niggardly interpretations of harm and wrongdoing accepted by the “Behavioralists” are unsatisfying (except, of course, to corporate counsel.) Moreover, their view of what juries should do would require completely eliminating the jury role in determining punishment in tort cases.

Could a jury rationally believe a cost/benefit analysis cannot rationally justify placing a dangerous product in the stream of commerce - and punish the company that did so? Harshly? Not according to the “Behavioralists.” The “Behavioralists” want the legal system to provide no more than "economically efficient" deterrence of corporate misconduct. Juries, on the other hand, want fairness and justice. The "Behavioralists" would prefer to see established fines and penalties, overseen by technocratics, taking the place of juries. The conscience of the community, as the jury is often called, would be silenced - and technocratic cost/benefit analysis would take its place.

A criminal who kills people may be given the death penalty in criminal courts. A corporate tortfeasor whose actions do similar harm should risk the same penalty: bankruptcy, corporate death. Rarely do juries decide corporate misconduct was so bad as to justify this death penalty. However, having it available does more to deter corporate misconduct than the criminal death penalty can to deter murder. Unlike most murderers, corporations are rational actors with the self-control to act in their own interest. The risks of corporate misconduct shouldn't be balanced with the rewards; they should overwhelmingly outweigh them.

Wilson cites Punitive Damages for the proposition that
"there is no rational connection between the evidence involved in punitive damages cases and the punitive damages awarded by juries. A later study by Viscusi demonstrated that, inappositely, juries were more likely to punish responsible corporate decision-making (i.e. trade-offs between cost and safety) than they were to reward it."

So juries do not do cost/benefit analysis. Guess what. Neither do criminal courts! Cost/Benefit analysis is not the goal of punishment. And punitive damages are intended to punish wrongdoing. If the thesis behind Punitive Damages is credited, then we should do similar cost/benefit analysis whenever we determine to punish a criminal.

Of course, the classic jury-critic problem is evident here: legislatures and judges are no better, and usually worse, than juries at cost/benefit analysis. So Wilson would have us ruled by experts. In this regard I am reminded of the words of Chesterton:

"Our civilization has decided, and very justly, that determining guilt or innocence of men is a thing too important to be trusted to trained men. [When it] wishes for light upon that awful matter, it asks men who know no more law than I know, but who feel the things that I felt in the jury box. When it wants a library catalogued, or the solar system discovered, or any trifle of that kind, it uses up its specialists. But when it wishes anything done which is really serious, it collects twelve of the ordinary men standing around. The same thing was done, if I remember correctly, by the Founder of Christianity."

G.K. Chesterton, Tremendous Trifles (1910). Heaven forbid that we should ever be ruled by 'experts.' I, for one, trust the justice of a jury far more than the narrow logic of technocrats.

Wilson argues that the failure of juries to do cost/benefit analysis undercuts the goal of deterring unsafe and reckless conduct. I strongly disagree.

Any cost-benefit analysis is limited, naturally, by the benefits and costs that are included into the calculation. And, those benefits and costs, in our legal system, are facts to be determined by juries. But the tort reformers want to constrain the jury's fact-finding role in this context, somewhat independently of the evidence. Imposing a cost-benefit "test" to actual litigation is artificial, and fails to encompass the myriad of actual considerations before the jury.

Is Jury Elimination the Real Goal?
If anyone doubts that the goal of the tort reform movement is to eliminate juries, one has only to look at the success of the first round, the movement towards arbitration in the place of litigation. The Federal Arbitration Act encourages corporations to include arbitration clauses in form contracts. Often hidden in the small print at paragraph 37, arbitration clauses exist in credit card agreements, pest control service agreements, cable modem agreements, etc. If you’ve signed a contract with a large or medium size corporation (and even some small ones), you have probably signed an arbitration agreement.

Most consumers are either not aware of such agreements, are only vaguely aware of them, or do not believe they are binding in case of a real injury. They are wrong. They have given up almost all their legal rights.

When you sign such an agreement, you abandon your right to sue the entity you contract with. If the company then defrauds you, burns your house down, gives your family cancer, or recklessly employs rapists who assault your children, your recourse is to take them to binding arbitration. No judge, no jury: just a lawyer, often retired, who decides who he thinks should win and how much.

Forget about hiring yourself a lawyer at no up-front expense. Arbitration requires that the party initiating proceedings pay a huge lump sum, often over $10,000, to begin proceedings. Many cannot afford to even initiate arbitration, which is far more expensive for the plaintiff than taking a case to trial. And, no matter how willful, wrongful, and knowing the tortious action is, arbitrators cannot give punitive damages, and their awards can rarely be appealed.

Of course, because your award, if any, will be much smaller, good lawyers probably won’t want to handle your arbitration claim on a contingency fee. You are on your own.

Arbitration agreements are contractual. Therefore, they do not cover all tort victims. Now that their customers are precluded from suing them, corporations are out to ensure that they cannot be held fully liable to those third-parties who are injured by their faulty products, services or employees.

It is a natural progression.

Wilson is also correct in that I give short-shrift to "loser pays" schemes and similar arrangements. The number of dollars and the amount of political capital invested in such schemes is a miniscule fraction of that spent to cap punitive or non-economic damages such as pain and suffering. These proposals tend to take the lion's share of the tort reform energies. "Loser pays" arrangements are, for the most part, a side-show.

Should we have "loser pays" rules in criminal cases? I don't think Tom Sneddon would agree. But why should innocent corporations be able to recover their costs, and innocent citizens wrongly accused of crime unable?

Because so little litigation actually filed is frivolous, there is little frivolous litigation to derail. Again, the effect of loser-pays arrangements that are not isolated to frivolous cases is simply to raise the costs of litigation. These measures simply raise the risks for plaintiff's counsel, making it less likely that small or difficult cases will even be filed, no matter how meritorious they may be. Corporate convenience has again trumped justice.

Greedy Trial Lawyers: A Perfect Smokescreen

For the most part, the general public has failed to see the dire threat tort reform poses. By demonizing “trial lawyers,” the tort reformers have found an easy and unpopular target. But tort reform isn’t aimed at lawyers; it is aimed at reducing jury power and limiting victim recovery. It is only by hiding what tort reform actually does that its proponents hope to succeed. Few of us yearn to abandon our Seventh Amendment rights to a civil jury trial; few of us want to see companies who injure or kill our loved ones escape with no meaningful punishment. But hey, who doesn’t want to knock those arrogant trial lawyers down a notch?

Wednesday, June 15, 2005

Batson with Teeth: Examining Miller-El

Racial discrimination in jury selection has gone on ever since the jury ceased to consist wholly of white, property owning males. In a case every law student for the last nineteen years has studied, Batson v. Kentucky, the Supreme Court determined that racial discrimination during jury selection violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. However, the test the Court made available was so feeble that it quickly became a joke.

The test in Batson was to object, showing a pattern of the other side excluding black jurors. If the objecting party raises an inference that the other party has excluded jurors because of race, the burden shifts to the other party to give some legitimate race-neutral reason for their jury selections.

This is where the joke comes in. Typical race-neutral reasons include that the juror in question was paying too much or too little attention, looked sleepy, looked wired, had the same hairstyle as the defendant or victim, dressed too sloppy, yawned, had facial hair, looked at the attorney "funny," etc. Court watchers have been waiting for a prosecutor to complain that a juror was removed because they had the same blood type as the accused.

Monday, the Supreme Court finally came to grips with the limp remedies in Batson. In Miller-El v. Dretke, the Court required, finally, that the explanations as to why jurors were stricken be clear and reasonably specific, and that a failure to provide adequate justifications can be established through looking at a disparity in the questioning of white and black jurors.

Most importantly, the Court held that if the reasons given for striking jurors do not hold up, it doesn't matter if there were other, legitimate reasons for the strikes. The reasons given must stand or fall on their own merits.

This case should make it easier to successfully object to racial jurymandering at trial. A better explained standard, with more definite rules, is easier to meet. But will it in practice? I would argue that Batson objections will be as rarely successful in the future as before. My cynical prediction is that attorneys will become better at rationalizing racially-neutral excuses for their jury strikes.

Of course, we all know the different between a cynic and a realist. The answer to that riddle is: not much.

Tuesday, June 14, 2005

The Importance of Losing Gracefully

Yesterday was such a busy day on the jury front that it took me a while to comment.

Courtesy of twelve of his neighbors, Michael Jackson is now officially not guilty of the charges against him. Congratulations are due to Mr. Jackson and his attorney Thomas Mesereau, and to the jury, which managed to reach a unanimous verdict in a difficult case (something many pundits doubted they could do). Several facts make this case far different than similar celebrity cases emerging out of that polluted dystopia of the West, Los Angeles:

1. Nobody has lambasted the jury. I have read (almost) no suggestions from anyone that this case represented an inappropriate exercise of jury nullification. Interviews with the jurors indicate that the jurors considered all the evidence, and came to the conclusion that the complaining witness and his family were simply not credible. Of course, there will be some sour grapes - as always - but the jury, by nearly all accounts, has acted responsibly and diligently in considering all the evidence.

2. Unlike the reprehensible behavior of Los Angeles District Attorneys Gil Garcetti and Steve Cooley who publicly criticized the O.J. Simpson and Robert Blake juries, respectively, Santa Barbara County District Attorney Tom Sneddon has accepted his loss gracefully and has not blamed the jury for his weak case. (Ironically, after his unethical public tantrum, Garcetti now presides over the Los Angeles City Ethics Commission. Go figger.) Whether or not one thinks the case ever should have gone to trial, one has to respect Sneddon for his refusal to sink to the depths of his neighbors to the South. It is a difficult thing for any lawyer in the media spotlight to lose a hard-fought case, and the temptation to scapegoat the jury can at times be overwhelming to any lawyer. Sneddon has acted admirably in refusing to succumb.

3. A gag order, a refusal to allow cameras in the courtroom, and a little dignity on the part of the judge and attorneys, kept the circus outside from coming into the courtroom and determining the course of proceedings. One of the jurors noted that by the time deliberations started, they had become so used to the media that they didn’t even notice it. While the case will remain, due to Jackson’s wealth, an aberration, at least it wasn’t a total fluke. A well-prepared, well-funded defense is the exception in American felony courts. But then again, so is a jury trial.

Statistics show that, while Federal criminal filings have more than doubled over the last forty years, the number of criminal jury trials has decreased by thirty percent - a two/thirds reduction in the percentage of cases going to a jury. Most defendants in Jackson’s position would today be forced to take a plea bargain, guilty or not, because the risk of decades in prison if they lost at trial would have been too great. Appearances can be damning, (polls show that roughly half of Americans think Jackson was guilty.)

Jackson was lucky: he could afford to mount a vigorous defense before a jury. The real injustice in this case is that there are so few Mesereaus, and so many defendants who need them.

Saturday, June 11, 2005

Tort Reform or Jury Elimination: Pt. II

A reader named Rattlerd posted the following comment:

I guess I am probably a law-and-economics type - a CPA with an econ undergrad who is about to start law school - but I can appreciate what is conveyed here. Still, doesn't the legal profession have to admit to a certain level of abuse considering cases like the never-ending litigation of fen-phen and asbestos? Or at least accept that a perception of abuse is legitimate on behalf of the public when they see Texas Hammer and Strong Arm types airing TV commercials with cash register sound effects?

To respond to Rattlerd:

Is the solution to problems with excesses in lawyer advertising to reduce jury awards when they are justified? Such excesses exist, and they are, at best, tacky. But why should tort victims be the ones to pay for them?

Is the solution to the legislature's failure to write procedures to properly handle mass-tort litigation to reduce jury awards to those who are injured, killed or maimed? Mass torts - like fen-phen, tobacco lawsuits, and asbestos - take a huge toll on our courts. But would it not make more sense to have procedures allowing common issues (e.g., causation, liability, etc.) to be determined in one trial, and then to have only damage award determinations in the remainder? Must each case be relitigated as though these issues had never been raised before?

But this is a problem with our procedural codes. And I would suggest that the corporate defendants in these cases do not want to face such procedures, in which one loss may open the doorway to hundreds, thousands, or millions of claimants. However, as the public cost of a district court, on average, is about $1000 an hour, the corporate lobbyists should be forced to take a backseat to public economy.

And in any event, is the way to handle the failure of the legislature to draft and enact appropriate procedures to handle mass-tort litigation to gut the damages awards to victims?

The tort reform bills that have either passed or been suggested have nothing to do with reining in lawsuit abuse. They deal with reducing damage awards in cases with actual, bona fide victims. I would suggest this is because the corporate sponsors of tort reform are more concerned with the awards they have to pay their REAL victims than they are with the costs of frivolous litigation.

If the latter was the concern, a loser-pay system would be their goal, or at least a system to require plaintiffs or their counsel to reimburse defendants if the litigation is dismissed as frivolous. We aren't hearing many cries for those sorts of reforms.

The same people who demand draconian levels of individual responsibility in the criminal justice system seem to seek dramatically reduced levels of responsibility for defendants in the civil justice system. That isn't ideology, but history. Ideology comes in when you try to justify it, and the justifications Jurygeek has seen to date ain't pretty.

Friday, June 10, 2005

Medical Marijuana: Is Jury Nullification the Next Step?

Since the June 6th Supreme Court decision in Gonzalez v. Raich, medical marijuana supporters have largely determined to focus on lobbying congress. While Raich did not overturn state medical marijuana laws in the eleven states that have them (Alaska, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, Oregon, Vermont and Washington), it did permit the federal government to arrest medical marijuana patients in those states. (State medical marijuana bills exempt qualified patients who use cannabis medicinally from state criminal penalties.)

Congress is expected to vote later this month on a bipartisan amendment sponsored by Reps. Dana Rohrabacher (R-CA) and Maurice Hinchey (D-NY) that would prohibit the federal government from spending taxpayers' dollars to prosecute patients who comply with their state's medical marijuana laws. Yet Congress has refused to pass a similar bill before, and has by all appearances only moved further towards intolerance in the interim. It seems a stretch to believe that this Congress will act to protect medical marijuana patients.

In some areas, particularly the San Francisco/Oakland area of Northern California, it seems likely that jury nullification may be an increasing threat in federal marijuana cases. In 2003, jurors revolted after convicting Ed Rosenthal of growing 100 pounds or more of marijuana in a highly disputed San Francisco federal case. The jury was outraged that they had not been informed that Rosenthal was growing the marijuana for distribution to medical dispensaries. Juror Marney Craig, a 58 year old Marin County property manager, labeled the trial "a cruel charade." "It is the most horrible mistake I have ever made," she said. "I feel like we were sheep, we were manipulated."

The foreman, Charles Sackett, said, "I fail to understand how evidence and testimony that is pertinent, imperative and representative to state government policy, as well as doctor and patient rights, and indeed your own family, are irrelevant to this case."

Following Rosenthal's conviction, five of the jurors joined Rosenthal on the steps of the Federal Courthouse, denouncing their own verdict, saying they had been manipulated and misdirected, and demanding that Rosenthal receive a new trial. Not surprisingly, the trial court judge, Charles Breyer (brother of U.S. Supreme Court Justice Steven Breyer) refused to consider the jurors protests or grant a new trial. However, in the glare of negative publicity, Judge Breyer eventually gave Rosenthal - whom the federal government wanted to send to prison for six and a half years - a startling one-day sentence.

The Rosenthal jurors convicted without being aware of their nullification prerogative. However, the Rosenthal case made the issue of jury nullification a front page item - and cast it in a positive light. Articles on the jury revolt, often including statements by Sackett and others that jury nullification would play a large rule in future trials, were carried by the New York Times, Newsday, the Washington Post, Reuters, the San Francisco Chronicle, San Francisco Examiner, Oakland Tribune, the Chicago Tribune, the Associated Press and elsewhere. The jurors themselves appeared on numerous nationally televised news broadcasts.

Will medical marijuana advocates, such as Americans for Safe Access, NORML and Green-Aid, find that educating the jury pool in their nullification prerogative is their only way to defeat the Federal efforts to steam-roller their home-grown velvet revolution? It wouldn't be an unreasonable choice. Particularly in Northern California, it would be difficult to imagine putting together a jury of 12 people without including at least one medical marijuana supporter. Such a person could simply refuse to convict - claiming to find the evidence unconvincing - and avoid a conviction. Any acquittals and/or hung juries would successfully announce to other potential jurors that they simply did not have to convict. In short, a few recalcitrant "stealth" jurors could cut government prosecution efforts off at the knees.

Moreover, should jurors decide not to convict in cases of this sort, Congress might be spurred on to finally pass a law exempting state-authorized medical marijuana patients from prosecution. The acquittal of John Peter Zenger paved the way for the reform of English libel law, and as the acquittals of abused women in "burning bed" cases paved the way for battered woman syndrome defenses, have shown that jury nullification can foreshadow dramatic changes in the law.

Independent jurors could force a change in the way our drug laws treat seriously ill people who smoke marijuana to relieve suffering and prolong their lives. And I don't think you have to be stoned to think that such a change is long overdue.

Thursday, June 09, 2005

Tort Reform or Jury Elimination?

Tort reform is high on the Presidential agenda. It is also on the table in many states, unless, of course, it has already passed. All the talk about those evil trial lawyers is a smokescreen, however: what the tort reformers really want to eliminate is the civil jury system.

Think about the tort system from the perspective of a plaintiff's lawyer. The plaintiff's lawyer only gets paid if he wins, and then receives a percentage of the jury award. (This is called a contingency fee.) The lawyer puts a great deal of time into the case, and usually advances the funds to pay experts. This can quickly run into the tens of thousands of dollars, sometimes hundreds of thousands.

If the case is lost, so is that money.

Obviously, plaintiff's law is a high risk business - like drilling oil wells. You sometimes win big - and sometimes lose big.

What tort reform does is put caps on the wins, with no similar caps on the losses. So what happens? Difficult or expensive cases won't be litigated, because the downside risk will be more than the potential upside reward. Now mind you, we're not talking about frivolous cases here (good lawyers won't take frivolous cases, because they are by definition losers). We are talking about substantial cases, in which real people have been injured, often seriously, but which are so expensive to litigate that the verdicts can never cover the costs of litigation.

If Judge William G. Young, quoted in my 6/2/05 blog entry, is correct, and the jury system IS dying, tort reform is one huge nail in its coffin. By limiting the compensation a jury can give injured people for their injuries, arbitrarily, regardless of the circumstances, tort reform reduces jury power and authority in those cases that are tried, while keeping many more cases from being litigated at all.

What the tort reformers, who are by and large conservatives, fail to realize is that tort reform is socialist. We limit the individual responsibility of tortfeasors in the name of "public good," while forcing their victims to bear the costs of the injuries the tortfeasors caused, because society thinks it is too expensive to give them justice.

The ends (reducing health care costs) cannot justify these means (eviscerating individual rights and responsibilities in the civil justice system.) Nor, of course, are health care costs lower in those states with tort reform than those without.

It has been argued, by a group of law professors called "behavioralists," that juries are incapable of rendering rational punitive damage awards. Some might think it relevant that their major work, a volume called Punitive Damages: How Juries Decide was funded largely by Exxon and other corporations. Obviously, Punitive Damages certainly seems to support the corporate desire to take punitive damage awards away from juries.

A number of articles, however, have shown that the behavioralist research is logically flawed. Perhaps Temple Law School Associate Prof. David A. Hoffman's article How Relevant is Jury Rationality? does the best job of showing that the cost-benefit analysis that behavioralism uses as the sole test of jury rationality is only one of many factors juries and society must take into account.

If punitive damages are cost-efficient, they may fail to provide the degree of deterrence that juries find reasonable. Furthermore, juries may find it important to flat-out punish tortious conduct that was willful, reckless, or dishonest. It seems outrageous to take such decisions away from juries merely because a few law-and-economics types find it cost-effective to do so.

The tort reform battles have not yet exhausted themselves. It is important, however, to recognize them for what they are: a smokescreen for an attack on the jury system. And a dishonest attack, at that.

Wednesday, June 08, 2005

Are Jurors Competent to Do Their Job?

I received a recent comment from Joshua Karstendick, which I thought I should answer in a new post:

"I understand the Framers' reason to keep citizens as a check on the government's power, but doesn't it make you the least bit nervous to allow the fates of legal cases to be determined by ordinary folk? I mean, these people have no legal background. You know what they say, half of all people are below average."

"Speaking of which, do you know of any real data on juries as to their demographics and education?"

First, let's look at whether jus' plain folk are capable of determining the outcome of legal cases. It is true that they have no legal background, but that may be as much of an asset as a liability.

Let's put jury nullification - the prerogative of a jury to acquit on extralegal grounds - aside for the moment. The job of a juror is to determine what the facts are, and then apply them to the law as they are instructed by the court. This requires, primarily, the determination of who is lying, and who is telling the truth - credibility.

Telling the Truth
In his book The American Jury System, New York Law School Prof. Randolph Jonakait quotes a statistic that the average person can tell whether someone is lying or not with an accuracy of 54%. Not much better than a coin toss.

With training and practice, that number can be raised. How high? According to the studies Jonakait cites, only as high as 57%. So the judge's training and experience aren't worth any more than three percentage points.

But wait! Judges have experience(which may result in nothing more than ingrained mistakes), yes. But training? Hey, they went to the same law schools as other lawyers, and Judging Credibiity 101 was not on the curriculum. So the alternative to a jury may be no better, and often worse.

Complex Evidence
In cases with engineering, scientific, financial, or other technical evidence, a jury is likely to do much better than a judge. To quote Duke Law School Prof. Neil Vidmar, lawyers tend to be highly literate - but barely numerate. The chance of getting one or more people who understand technical evidence on the jury (and can explain it to the rest) are far higher than that of having a CPA, engineer or physicist on the bench. So juries are more, not less, likely to understand complex evidence than are judges.

Jury Nullification
The next question is whether jurors are competent to decide whether to nullify? Of course, that is a question of ethics. A juror should be able to tell whether a conviction would or would not be unconscionable without any specialized education or training. In fact, it would seem that lawyers and judges often get hardened to injustices, and may be willing to accept injustices that the lay public would be repelled by. After all, this is a question of right and wrong - and if a person isn't able to tell right from wrong, they are legally insane (at least by some tests) and should be disqualified from jury duty!

Finally, as for the education level of jurors: Harry Kalven and Hans Zeisel, in their landmark study The American Jury, found that jurors were, statistically, slightly above the national average for education - at that time, 12.3 years of schooling as opposed to 11.6 years, for the average. This makes sense: those who are ineligible for jury duty tend not to be at the top of the heap, and are weeded out.

Now, motor-voter programs and other programs to diversify the jury pool may have brought the jury closer to average, as many employed people do everything they can to "duck out" of jury duty. The answer is not to disparage or discard the jury, but to put some teeth in the jury summonses - and, perhaps, to pay jurors at least minimum wage. Jury service is the best opportunity most of us have to participate in our government. It is abysmal that so few of us want to take advantage of this opportunity.

The alternative to trial by jury is trial by judge. A jury provides a consensus judgment of diverse elements of the community; a judge provides one jaded perspective. A judge will not have twelve lifetimes of experience, or the educations of twelve individuals, to bring to the job.

Well, Joshua, I hope this answers your questions.

Tuesday, June 07, 2005

Sour Grapes from California

As an attorney, I hate to lose a case. One of the first things I was told when hired as a new associate was that if I only won cases I was “supposed” to win - cases in which the facts and the law were clearly in my favor - I wasn’t much of a lawyer. My job is to win close cases, and when possible, bad cases. My clients hire me for that job, and I owe it to them to take it seriously.

Prosecutors have a different obligation. Their job is not to seek convictions whenever they can get them, but only when a conviction would be “just.” If there is a reason to doubt the guilt of an accused person, our Constitution demands he be set free. The Founders of this Nation, following Blackstone, believed it was better for ten guilty men to go free than for one innocent man to suffer conviction, in order to prevent the conviction of innocents and preserve the moral authority of the criminal justice system.

Of course, we do not allow a prosecutor to determine when a conviction is justified. He has to convince the community at large, as represented by a jury, to agree with him. If the jury thinks the prosecutor is wrong, the accused goes free. Any other system would lead to trial by government - something the Founders thought the most dangerous and arbitrary power imaginable.

To allow a government apparatchik to determine guilt or innocence would leave all the rights of the people at the mercy of their government. To allow the people, acting through juries, to determine the guilt or innocence of an accused leaves the powers of government at the mercy of its citizens. If the citizens do not believe a conviction is justified, legally or morally, the accused is allowed to go free. The job of a juror is to be skeptical, to test the State’s case carefully - and to vote their best conscientious judgment after a thorough review of all the facts, evidence, and arguments before them.

Under this plan, the job of prosecutors is difficult, as it should be. Sometimes they win, sometimes they lose, but they should never win too easily. Whether they win or lose, they should respect the process and the critical role of the jury – or find another line of work.

Some prosecutors, it would appear, have issues with this noble and well-established Constitutional plan. Following the jury acquittal of actor Robert Blake on two of the three charges against him, Los Angeles District Attorney Steve Cooley said not only that he disagreed with the jurors, but called the jurors who decided the case “incredibly stupid."

Blake’s attorney M. Gerald Schwartzbach, according to an Associated Press report, responded that Cooley’s ‘attack on the jurors was inappropriate and “small-minded.” ’ As indeed it was. It was also unethical, and an affront to America’s Constitutional order.

Standard legal ethics rules prohibit any attorney from subjecting discharged jurors to coercion or public humiliation. Comments such as Cooley’s not only violate those rules, but disparage the entire American legal system: if we cannot trust jurors to make well-informed decisions, then the result of any case is simply a crap-shoot. If Cooley’s confidence in the system he is such an integral part of is so poor, how can we have trust any convictions meted out by similarly “incredibly stupid” juries? Or are juries that agree with Mr. Cooley incredibly smart, and only those who disagree with him incredibly stupid?

Why should any citizen appear for jury duty, now that they know that the price for failing to rubber-stamp the State’s ambitions is to be publicly labeled “incredibly stupid” by elected officials? Such sour-grapes are not just unbecoming. They demonstrate a profound antagonism for the people and the system Mr. Cooley was elected to serve.

It is because of small-minded prosecutors like Steve Cooley that the constitutional safeguards that limit their power are so critical to the maintenance of a free country. Mr. Cooley may believe that no prosecution witness in the Blake case lied; the jurors who heard both sides of the case, however, had good reasons to disagree. They were hardly “incredibly stupid” for doing so. The jurors did their job and held the State to its burden of proof, just as the Constitution commands. If doing the job the Constitution sets out for them makes these twelve men and women “incredibly stupid,” must we not place Jefferson, Adams, Franklin, Hamilton, and the rest of the Founders in the dunce box as well?

Saturday, June 04, 2005

Spectacle of the Decade

Looking at the Michael Jackson trial brings one ironic thought to my mind: can it really be ten years since OJ was acquitted? Ten years - and a large portion of the American public (or at least the media) still hasn't gotten over it. The case has been referred to as one of jury nullification, yet the record shows that the incompetence of the prosecution (who were apparently more interested in grandstanding for the cameras than in winning their case), and by the judge may have been responsible for the outcome. Simply put, the case dragged on too long, and the civil servants on the prosecution team were thoroughly out-classed, out-maneuvered, and out-lawyered by the defense team. The Judge did nothing to level the playing field. Marcia Clark and Chris Darden were the best friends O.J. Simpson ever had.

So the O.J. case has wrongly been decried as one of jury nullification. But what is worse is that the media hasn't learned anything in the meantime. They still think of trial by jury as a popularity contest.

Now, ten years later, and another black celebrity is in the dock: this time, one from the A-list. Yes, it's the king of pop himself! Michael Jackson is charged with four counts of committing a lewd act on a minor, one count of an attempted lewd act, one count of conspiracy involving child abduction, false imprisonment and extortion, and four counts of administering alcohol for the purpose of committing child molestation.

Yet what, according to Tim Molloy of the Associated Press, will decide the case? Whether Michael Jackson or the child's mother is "weirder." The concept that the jury could believe Michael Jackson likely IS guilty, but still have room for reasonble doubt, just gets left in the dust. Of course, with such media reporting (which is either irresponsible or ignorant) feeding into the psyche of the jury pool, how can we expect jurors to understand and follow the concept of "proof beyond a reasonable doubt"?

Well, the academic literature shows that juries fail to comprehend the concept of proof beyond a reasonable doubt. Prof. Lawrence M. Solan has written that "empirical studies and linguistic analysis strongly suggest that it is more difficult to establish proof by clear and convincing evidence than it is to establish proof beyond a reasonable doubt, even though our system regards the former as reflecting a lighter burden." This is because, according to Prof. Solan, clear and convincing evidence instructions "focus the jury on the government's burden, while [proof beyond a reasonable doubt instructions] focus the jury on the defendant's ability to come up with alternative explanations." See Lawrence M. Solan, Refocusing the Burden of Proof in Criminal Cases: Some Doubt About Reasonable Doubt, 78 Tex.L.Rev. 105 (1999).

We still just don't get it: it doesn't matter who is weirder. It doesn't matter who is more incredible. What matters is only whether the incriminating evidence is so credible that it leaves no room for rational dispute. If not, no matter how weird Michael Jackson may be, he must be acquitted.

Friday, June 03, 2005

A Judicial Bully In Philadelphia

Generally, you'd think that, once a jury goes into deliberations, that they'll either agree on a verdict or hang. In the last ten years or so, that understanding has started to break down. Now, if only a small number of jurors disagree with the majority (especially if the disagreeing jurors are holding out for an acquittal), they may be labeled as "nullifiers" in some courts, and removed from the jury.

U.S. v. Thomas: a synopsis

The trend started with a case out of New York, U.S. v. Thomas, 116 F.3d 606 (2nd Cir. 1997), a drug case in which the sole black juror was holding out for acquittal. Numerous other jurors sent the judge a note, in which they complained about the hold-out feigning vomiting and otherwise disrupting deliberations. They said that the hold-out was ignoring his instructions and would not convict whatever the evidence.

The trial court judge then questioned the holdout, who said that he just wasn't convinced from the evidence. The judge dismissed him from the jury, believing that it was likely he was simply refusing to convict, or committing jury nullification. The remaining 11 jurors convicted the defendants.

The Second Circuit, while whining (as courts so often do) about jury nullification being a bad thing, determined that for a trial court judge to dismiss a sitting juror, there had to be no doubt that the jury was refusing to follow instructions. Because the holdout in Thomas had given some indications that he was not satisfied with the evidence, dismissing him was unjustified, and the defendants got a new trial.

8 Years Later: U.S. v. Kemp

Last April,in the corruption and bribery case against Philadelphia City Treasurer Corey Kemp, these issues again arose. Juror Margaret W. Szewczyk, 57, was removed from the deliberating jury by Judge Michael M. Baylson, a 2002 Bush appointee, and replaced by an alternate because the judge believed she had displayed "bias" against the government and the FBI, and had thus "violated her oath."

Her offense? Other jurors reported that in deliberations, she had said that "the FBI lies," and that the government "didn't play all the calls."

Of course, those are factual statements. The FBI has been caught lying, and in fact, some agents have been so frustrated with FBI perjury that they've gone public. So saying that the FBI lies simply means that FBI agents don't get a pass on credibility; that, just like any other witness, the jury has to determine whether to believe them.

Saying the government "didn't play all the calls" is probably true as well, as most wiretap cases involve hundreds and hundreds of wiretaps - and the prosecution, naturally, cherry-picks which calls to play.

What makes this more frustrating is that Szewczyk denied making the statements other jurors attributed to her. It was plainly not proven beyond all doubt that Ms. Szewczyk was not willing to follow her instructions. "This case is now no longer just about Corey Kemp and City Hall," said Kemp’s lawyer in an interview with the Philadelphia Inquirer. "We're dealing with a serious legal issue that cuts right to the heart of the right to a trial by jury."

Baylson, a true activist judge and former federal prosecutor, should look in the mirror if he wants to see the face of bias. Clearly, he couldn't believe that an unbiased juror just might be a little skeptical about the government evidence. But in this case, it appears that he may have handed the defense a clear shot at an appeal.

Baylson failed to meet the test of U.S. v. Thomas. Ms. Szewczyk was left unconvinced by the evidence, and this is why, by any reading of the case, she was removed. Her statements made it clear that she did not believe the government had proven its case, because of omissions in the testimony and because its professional witnesses had not been credible. These are her decisions to make.

If Ms. Szewczyk had said, of the defendant's testimony, that "people accused of crimes lie," would Judge Baylson have sent her packing? If she had said "paid expert witnesses are hired guns, willing to say anything for a buck," would she have been sent home? What if, instead of it being the FBI she was skeptical about, it was a private investigator hired by the defense?

It is up to the juror whether to believe a witness, or whether to be skeptical. It is up to the government to prove their case through credible evidence. A juror who remains unconvinced is entitled to vote not guilty - and the accused is entitled to the benefit of that vote.

The place to screen out biased jurors is in voir dire. There are no allegations that Ms. Szewczyk was dishonest during voir dire. Saying that she was biased, at this late date, is a little too easy: any time a jury hangs, we can just call those who disagree with the majority "biased," replace them, and keep going until a verdict is reached. Of course, this makes a mockery out of the concept of a unanimous verdict.

To Judge Baylson, for denying Mr. Kemp the benefit of Ms. Szewczyk's vote, and in depriving him of the benefit of a unanimous verdict, I can only say "shame, shame."

Thursday, June 02, 2005

First Day of Blogging

It seems that few people - lawyers included - take juries seriously. In law school, juries are treated like a bunch of village idiots - in courtrooms, they are treated just a little better than the defendants, at least in criminal cases. Yet the American legal system depends on juries, gives juries immense powers (so long as nobody tells them about them!) hides behind juries, and does all it can to avoid holding jury trials.

Chief Judge William G. Young, Chief Judge of the U.S. District Courts, Boston, MA, has stated that:

"I think the data is incontrovertible that the American jury system is dying. It's dying faster on the federal side than on the state side; it's dying faster in civil cases than in criminal. But, it's dying."

Is Judge Young alarmist? Perhaps. And perhaps not. And perhaps he IS, but someone needs to set off the alarm.

My purpose in establishing this blog is to investigate, publicly, whether the alarm is justified.

The data shows that jury trials are becoming rare occurrences. In Federal courts, less than 1.5% of civil case filings result in a jury trial. Criminal trials are also becoming more rare, as sentencing guidelines have allowed defendants to know the size of the "trial tax" that will be imposed if they are convicted.

As of this date, there is no citizen outrage at the impending demise of the jury trial. The only citizen group at all interested, the American Jury Institute, is largely focused on the jury nullification issue. While I am currently the Chair of that organization, it has not adopted the broad perspective that I think is necessary.

Now, don't get me wrong - I've written a book on jury nullification - but it is a small corner of the overall picture. If juries don't get seated, they can't nullify. And nullification is only appropriate in a small percentage of cases. Trials are appropriate in all cases.

What would I like to see? I'd like to see the jury considered as important in the education of primary school students as any other fundamental government institution -- the presidency, Congress, the Supreme Court, etc. In my opinion, if we do not, as a people, understand why the jury system is important, we will be unlikely to respect jury verdicts, appear for jury duty, or protect and preserve the institution when it is under attack.

In the coming weeks and months, I intend on raising more related issues here. Please feel free to drop comments and let me know if there is anything anyone reading this is interested in exploring.