Wednesday, August 31, 2005

A Non-Jury Post: On New Orleans

I'm going off-message this morning to remind people that New Orleans is more than just a big convention town and the home of Mardi Gras: it is the home of American music. Ragtime emerged from the New Orleans "second line" rhythms - the music played returning from the cemetery during the traditional black funerals. (The first line was the dirge played going to the cemetery.) The drum set and brushes were both invented in New Orleans. Jazz, modern blues, swing, and even rock and roll can all be traced to New Orleans as well.

Federal appeals in my neck of the woods are argued in N'awlins, so I've visited the place many times. There is no place like it used to be; nobody knows what it will be like when it re-emerges. Let us hope that the uniquely American spirit that was New Orleans survives this disaster.

Tuesday, August 30, 2005

Batson Redux: Can We Ever Eliminate Racially Motivated Peremptory Strikes?

A recent case out of Dallas, Texas has caught the attention of the the Dallas Morning News. (DMN recently published an excellent three-part series (1 2 3)on race and jury selection.) Mike, a blawger on the Crime and Federalism site, cites to a transcript on the Dallas Morning News website concerning a trial in which Kerry New, at that time a Dallas prosecutor, struck one juror because of missing teeth, and another for not being sufficiently feminine.

In addition, she struck one black man because he had earrings and gold teeth, and a "head covering," which he resisted removing prior to jury selection.

The State claimed the missing teeth were a problem because they indicated that the juror was from a "certain socioeconomic level that is not a favorable juror for the State." Ms. New went so far as to admit that she was relying on a stereotype for exercising that strike - a stereotype she described as "honest and genuine."

Defense Attorney Clark Birdsall stated that Ms. New's logic was so paper thin that she was "knitting a parachute out of thin air." He correctly noted that "by that line of reasoning, anybody who'se poor is against the State. And if it just so happens that any major ethnic group falls into that poor category, then, by the State's reasoning, they can strike people from that group any time they want to."

The woman who was not dressed with sufficient femininity was "indivative of a liberal lifestyle, which the State would not prefer as a juror."

Turns out that the toothless juror in fact had his teeth.

The point is: what is the State doing striking jurors based on their dress and/or their dental work? I had earlier pointed out that all Batson (the rule that racial stereotypes cannot constitutionally be used in the exercise of peremptory strikes) has accomplished was to make liars out of lawyers (an accomplishment many would think and already been achieved). A potential juror can be stricken for having the same hair-style, manner of dress, or coming from the same neighborhood as, the defendant.

According to Ms. New's logic, a juror can also be stricken for being insufficiently feminine, for having bad teeth, or just for being poor.

When will we hear of a juror being stricken for having the same blood type as a defendant? Or perhaps, in an unpublished case, that has already occurred.


In Batson, Justice Thurgood Marshall argued that the only way to eliminate racist peremptory strikes was to eliminate peremptory strikes. Prosecutors like Kerry New will find no difficulty in rationalizing a good reason to strike every potential black juror who finds their way into court. Clothing, demeanor, tone of voice, attitude, inattentiveness, excessive attentiveness, hair style, poverty, etc., are all available. Moreover, any decent lawyer can ask questions of a juror in such a way that they appear to change their mind, waffling.

Miller-El changed very little, if anything, other than the complexity of the dance steps that must be used to evade justice and the Constitution.

Perhaps a more modest suggestion would be to reduce the number of peremptories available in a felony case from their current levels (as many as fifteen per side, depending on the jurisdiction) to a more modest number like three? In that circumstance, lawyers will be very careful not to base their peremptories on "head coverings," bad teeth, or clothing style, but will look for action signs of real-world bias.

So long as both sides retain an ample number of peremptories, they will "play the odds" using stereotypes once all jurors who've demonstrated legitimate signs of bias are removed. Race, like it or not, will always be one of the most powerful stereotypes available -- and attorneys will always find a way to rationalize their racist strikes.

Thursday, August 25, 2005

Roadblocks to Jury Reform

Jury reform tends to be a hard sell. One reason may be that jury reformers are interested in procedural issues, which are about as exciting to the general public as soda crackers. We can get all hot and bothered about penalties for drunk drivers, legalizing (or not) medical marijuana, or the death penalty. But the procedures through which those laws are enforced cannot be expected to grab the public's attention in the same way. After all, everyone knows what the death penalty is, but how many non-lawyers know what death qualification is?

Another is that the general public does not learn about the jury system's value in high school or college, and so they can't form a strong vision about what the jury ought to do or how it ought to work. If we don't understand the value of the jury system, we are unlikely to preserve it, participate in it, or seek to improve upon it. The roadblock to jury reform is apathy.

The media has so long portrayed the jury as a pack of village idiots that it seems far-fetched to expect the general public to protect the role of juries or to (heaven forfend!) expand upon that role. The jury system is far from perfect. That shouldn't be a criticism; no institution of our government has come close to that standard. The fact that juries are not perfect is hardly just criticism. We need to look at how good juries are, compared to other governmental entities, and seek appropriate reforms to address their shortcomings and remove the shackles that prevent their doing an even better job than at present.

Bar association efforts to publicize the importance of the jury system have become popular in legal circles, but largely seem to be self-congratulatory and have no discernable impact on the general public's attitudes. In fact, the only thing that really seems to make a difference is serving on a jury: something that many Americans stubbornly refuse to do. The American Legislative Exchange Counsel, a conservative think tank, has proposed a Jury Patriotism Act to address some of these problems.

As noble as the motive may be, the act seems doomed to failure. It is doubtful that legislatures will be willing to impose sanctions upon employers who prevent their employees from attending jury duty. Nor is it possible, as the act posits, to punish jurors who fail to respond to jury summonses, because there is no way at present of proving that those individuals personally received such summonses. The cost of sending them jury summonses by certified mail or having them delivered by constables is prohibitive.

This brings me back to the point I've made earlier: unless we make the jury system a part of all public school curricula, we cannot change the widespread public image of the jury system and jury duty. And that requires making education on the jury system a part of any standardized testing schemata.

The hidden concern here is that students will somehow become indoctrinated to, for instance, make them more likely to vote to convict in criminal cases. If the State designs the curriculum, how fair and balanced can it be? Thus, as essential as making the jury system part of the curriculum is, the challenge to have that curriculum to be designed by neutral scholars, and not partisan bureaucrats, is one that must be met. Only then can we expect higher juror turnouts, and can we have a public that understands the value or the dangers posed by any proposed jury reforms.

Sunday, August 21, 2005

Jury Waivers & Arbitration: two sides of one side

An interesting story in the August 8th Recorder brought to my attention a ruling of the California Supreme Court, which on August 4th held in the case of Grafton Partners v. Superior Court that pre-dispute jury trial waivers were not enforceable under the California Constitution. To that, Jurygeek can only say "Bravo." However, the logical implications of the actual ruling in Grafton Partners is problematic.

What the California Supreme Court held was that Section 179 of the California Civil Practice Act outlined the methods in which a jury trial could legitimately be waived, and because a pre-dispute contractual waiver was not enumerated in that statute, it could not be deemed a valid waiver. Well enough.

However, the California Court found arbitration agreements unproblematic. Because jury trial waivers prescribed the guidelines for procedures in court, while arbitration agreements merely avoided the court altogether, they were (somewhat disingenuously) differentiated. An arbitration agreement necessarily waives a jury trial (as well as a bench trial); what the California Court achieved was to put more protection on a part than on the whole.

The Court managed to cite a lot of high-falutin' language to the extend that "[t]he right of trial by jury is too sacred in its character to be frittered away or committed to the uncontrolled caprice of every judge or magistrate in the State," Exline v. Smith 5 Cal. 112, 113 (1855); the right to trial by jury is considered so fundamental that ambiguity in the statute permitting such waivers must be "resolved in favor of according to a litigant a jury trial," Loranger v. Nadeau 215 Cal. 362, 368, 10 P.2d 63 (1932), overruled on other grounds in Reich v. Purcell 67 Cal.2d 551, 555, 63 Cal.Rptr. 31, 432 P.2d 727 (1967), and that "lower courts have observed that the right to trial by jury is so important that it must be "zealously guarded" in the face of a claimed waiver," Byram v. Superior Court, 74 Cal.App.3d 648, 654, 141 Cal.Rptr. 604 (1977).

Nice language. But if the right to trial by jury is so sacred that it needs to be zealously protected, shouldn't it (at the very least) be made explicit in an arbitration agreement? But the minute it is made explicit, wouldn't it run afoul of Grafton Partners?

Through technical distinctions, the California Supreme Court has managed to square the circle. Yet their arguments are ultimately unpersuasive: they have made a distinction without a difference. This is the sort of case that puts courts, and lawyers, in a bad light as technocrats with no interest in preserving Constitutional rights. They have allowed jury trial to be waived - but only if the waiver is implicit, in a form that prevents the consumer from being confronted with that which he is giving away.

Consider a recent case. A homeowner contracted with a termite eradication company. The boilerplate on the back of the contract contained an arbitration agreement. The termite eradication tech drilled through the fuel-oil line, placing termiticide and fuel oil in the water supply and in the foundation of the home.

Nasty stuff. Destroyed the value of the house. Surprise! Homeowner couldn't sue, and had to come up with over seven thousand dollars up front to initiate arbitration. Had to hire their own attorney, by the hour, to arbitrate, because they couldn't win enough money to make it worthwhile for a lawyer to take the case on contingency fees.

The termite eradication company was fully aware of the damage their techs could cause. A homeowner would have no reason to suspect this sort of damage was even possible. Yet the arbitration clause was fully enforceable.

All that Grafton Partners accomplished was to ensure more arbitration clauses in more contracts, in place of jury waivers. Both should be equally objectionable. Perhaps California judges view Grafton Partners as a victory, in that it reduces the number of cases they have to deal with. But for those who are to be denied their day in court, Grafton Partners is a disaster, and an abdication of the duty of our courts to enforce our State and federal Constitutions when the result of such enforcement is politically disfavored.

Wednesday, August 17, 2005

Professional Juries: I Still Don't Think So...

KipEsquire of A Stitch in Haste takes issue with my opposition to professional juries. He seems to believe that my position is circular. In his words: "professional jurors would be bad because they would be professional jurors, which is bad."

Not at all.

Professional jurors would be bad because they would not be jurors (as the Founding Generation understood the term), which would be bad.

Professional jurors would be, by definition, a panel of specially trained and experienced government employees.

Jurors are, by definition, lay members of the general public.

Thus, the term "professional jurors" is an oxymoron. An oxymoron, as we all know, is an extremely large moron. Which is exactly how we can expect professional jurors to behave: like extremely large morons, i.e., bureaucrats.

What Kip and others fail to address is the difference between JUROR incompetence and ATTORNEY incompetence. We attorneys tend to assume that if the jury didn't understand something, it is their fault.

Perhaps if we presented our cases more coherently, deliberately, and thoughtfully, juries would understand what we are talking about.

The best lawyers never seem to complain about incompetent juries. The Gerry Spences, Dick DeGuerins, Tony Serras, Tom Mesereaus, etc., always seem to have much smarter juries than the average lawyers.

Those juries understand every word these lawyers and their witnesses say. What brilliant, insightful jurors they must get!

When we fix the wrong problems, we employ the wrong solutions.

Friday, August 12, 2005

Agreeing to Disagree to Agree

A recent case from Columbia County, New York has gotten alot of attention lately. It seems a jury in a robbery case had reported that it had reached a verdict of guilty. Then the defense lawyer, Robert W. Linville, requested that the jury be polled. Juror No. 2 said "not guilty."

So much for the "unanimous" verdict. So what could County Judge Paul Czajka do, but send the jury back for further deliberations?

Several hours, and one jury request for a readback of portions of the record and a definition of reasonable doubt later, and the jury finally reached a verdict - 12-0 for acquittal. This time, the State had the jury polled, and it remained unanimous.

Besides the importance of polling a "unanimous" jury, what can this bizarre turn of events teach us?

First, the jury was unsure what was meant by "proof beyond a reasonable doubt." This isn't unusual. As I have pointed out before, reasonable doubt instructions are inherently contradictory, in that they simultaneously posit that the burden is on the State, while defining not the quantum of proof needed to convict, but the quantum of doubt needed to acquit. Empirical testing demonstrates that juries impose a higher burden when given "clear and convincing evidence" than when given "reasonable doubt" instructions. We focus too much on the doubt, ignoring The Great (proof) Beyond.

So this jury started off, most likely, imposing the burden primarily on the accused. Add to that the fact that jury compromise is, according to Harry Kalven & Hans Zeisel's landmark work The American Jury, pervasive. It is not at all unlikely that the jury in this case misunderstood the burden of proof, and compromised on a verdict without first adequately discussing the evidence. A first vote (based on this ambiguous reasonable doubt standard) leaned towards guilty, and the minority jurors agreed to go along with the majority.

When polled, a minority juror admitted that it was a compromise verdict - "Guilty" did not reflect her judgment. After discussing the case, with further explanations of the standard of proof, and the jurors came to understand that the minority, not the majority, was correct.

This may not be correct as to what occurred - it is certainly speculative. But we do know, from a recent Arizona study of 50 real jury trials and their deliberations, that dissenting jurors are often given short shrift. This study, from civil cases in which juries do not have to be unanimous, may not correlate directly to criminal cases (save in Oregon and Louisiana, states in which criminal juries need not be unanimous) but it may logically indicate that majority jurors may not be very patient with dissenting jurors who refuse to compromise.

As important as the unanimous verdict rule is, it means nothing if dissenting jurors are willing to compromise away their conscientious judgment merely in order to prematurely terminate deliberations. An anti-compromise jury instruction should be routine in criminal cases, warning jurors that if they cannot truly agree, they must vote their own individual judgment regardless of the result. Judges tend to be hostile to such instructions (jury compromise means faster verdicts, thereby maximizing judicial time on the golf course.)

But however you look at it, jury compromise is always jury misconduct. Considering that most cases do end in convictions, compromise is usually jury misconduct of the most harmful type -- resulting in the conviction of a person without the prosecution first convincing each and every juror, beyond a reasonable doubt, as to the guilt of the accused. Considering that jury compromise is "pervasive," it is impossible to know how many people rotting away in American prisons were only found guilty as the fruit of jury misconduct.

I am unable to consider this as an abstraction. While I do believe that jurors have the lawful prerogative to nullify if they believe a conviction would be unjust, I do not believe they ever have the lawful prerogative to compromise in order to reach a pseudo-unanimous verdict. While judges have vociferously lambasted jury nullification, they have covertly embraced jury compromise.

Apparently, such compromise nearly led to the conviction of a man who was later acquitted, in Columbia County, New York. At least he is not imprisoned due to jury misconduct. But, as all involved agreed, his case was the exception. It demonstrates, more clearly than anything else, why we must endeavor to change the rule.

Sunday, August 07, 2005

Simmered Amphibians and Juries as Toast

I spoke last week to the annual meeting seminar of the National Association of Criminal Defense Lawyers in Portland, Oregon. Part of my talk had to do with the decline in the percentage of cases going to jury trials, and the declining number of jury trials as a whole (an issue I raised in my first blog entry.) While I thought the audience would need a reminder as to these facts, what surprised me was that most of the audience was totally oblivious that this was occurring.

I am reminded of the old recipe for frog soup. You see, if you place a frog in boiling water, it will immediately hop out - stinging, but hardly worse for wear. However, if you place it in lukewarm water, and slowly turn up the heat, the frog will relax in its hot tub, take a nap, and wake up cooked.

So it is with the jury. We attorneys have gradually adapted to measures that reduce the viability or availability of jury trials - from acceptance of responsibility credits for those who plead guilty, to judges who require expensive, time consuming mediation prior to trial. As the jury trial gets rarer, and harder to attain, we adapt to our environment.

To mix culinary metaphors, we need to hop out of the pot before the jury is toast. Too often, we fail to recognize or object to procedures that raise the risk or cost of a jury trial. These mechanisms (and there are more being added practically daily) have become part of the warp and woof of our legal system. Most judges and legislators are not aware of the fact that the jury system is dying, and are not aware that they are contributing to its demise. Many may respond positively once aware of the facts. We should at least give them the chance.

In the meantime, if we don't make ourselves aware (and spread that awareness among others), we become part of this seemingly intractable problem. It is time to break out of this rut and to object to those rules and procedures that act as a tax on the right to a trial by jury -- while there are still those who remember why it is important.

Tuesday, August 02, 2005

Hey, How About Some Respect?

I must thank David Giacalone for making me aware of this little outrage.

It appears that Frank H. Easterbrook, a Seventh Circuit Court of Appeals Judge, doesn't like juries. Well, maybe he loves them. He just thinks they are stupid.

According to Giacalone, during some hearings of the Antitrust Modernization Commission, Judge Easterbrook during his testimony referred to juries as "twelve high school dropouts." Giacalone's article on the topic is here.

Ever since law school, I have complained that law schools fail to teach their students history and context. Instead, they churn out unenlightened technocrats by the bucketful. Can we consider Easterbrook's myopic statement evidence that my complaint is correct? This technocrat may know some law, but he apparently is completely unaware that juries are -- far from "twelve high school drop-outs," -- on the whole slightly better educated than average Americans, and are nobly taking time out of their lives and performing a public service for little more than parking money.

These people - from whose taxes Judge Easterbrook derives an exorbitant and (judging from this statement) unearned salary -- deserve respect for the integrity, intelligence and perspective they bring to their task. It is sad that Judge Easterbrook does not bring the same wisdom to his comments.

Justice Cardozo is quoted as saying "for the law to be respected, it first must be respectable." The same can be said of a judge. Many judges, unable to earn respect, are content with merely being feared. Easterbrook has apparently built up a reputation as a judicial bully.

Is it surprising that a judicial bully would think jurors (not being appellate court judges) must henceforth be village idiots? Hardly. The elitist judges who denounce jurors without even being aware of the research that shows that most jurors are intelligent and act with integrity continue to fester in our courts. But at least now, thanks to those like David Giacalone, there are some out there to call them on it.