jurygeek

Testing the waters...

2009-04-16T12:19:00.000-07:00

I'm thinking of blogging again.

I'm inspired by Mark Bennett's Defending People, and I do believe that everyone is entitled to an opinion -- mine. So perhaps I should start sharing it again.

However, I intend to be an occasional blogger -- when something gets my goat, I'll come out of my yurt and yak about it.

Being from Harris County, Texas, my goat gets gotten frequently. Injustices tend to outnumber instances of justice. Yes, Justice is a vague term. But not so vague as some would think. And injustice is as concrete as a heart attack when it hits you.

Ambrose Bierce wrote that injustice is "A burden which of all those that we load upon others and carry ourselves is lightest in the hands and heaviest upon the back." A pretty apt description of sending someone to prison for a minor, or victimless, offense. It is easily done and difficult to endure. How is it that we can dispense cruel punishments so easily?

Perhaps it is fear of the other -- after all, defendants are mostly young, poor, and often minority, hardly the demographic of those who show up for jury duty.

Perhaps it is the fact that we live in a crowded world, and know so few of our neighbors, so it is easy to objectify strangers. Jurors feel like they are dealing with abstractions, not flesh and blood people, much less people JUST LIKE THEM.

Perhaps it is the fact that we feel no personal responsibility for our actions unless we can be punished for them. The ghost of Stanley Milgram continues to haunt our jury rooms.

Have Americans simply become this jaded -- that we think of prison as the first tool of choice to deal with social problems?

In Harris County, prosecutors routinely ask every member of the jury whether the purpose of punishment, in a criminal case, is rehabilitation or retribution. And most people answer the latter.

I have yet to hear a juror stand up and say what a stupid question this is. After all, the death penalty cannot exist for purposes of rehabilitation. And nobody thinks a teenaged shoplifter needs to do hard time. Whether the purpose is one or the other must be decided, by the jury (assuming jury punishment, as in Texas), on a case by case basis.

Yet instead of asking an INTELLIGENT question ("what would determine whether retribution or rehabilitation is the appropriate goal of punishment in this case?") the state resorts to a one-size-fits-all question, seeking jurors who will impose a one-size-fits-all punishment.

And defense lawyers, by and large, let them get away with it. Which, of course, is also stupid.

An Interesting Conversation on Rights, Powers, and Lies

2007-04-13T08:15:00.000-07:00

Mark Bennett, a Houston criminal defense attorney, recently started a conversation on State's Rights. His position is that the State has no rights; the State has powers. While his examination of the subject has some flaws (he claims rights cannot be maintained using force, a statement I find questionable: if someone seeks to kill me, do I not have a right to defend myself, thereby maintaining my right to live through violent self-defense?) I think Mark touches on a very real issue, that I like to call the rights/powers dichotomy. It arises quite often in law. It is said that someone has a power to breach a contract, but not the right to do so (hence, they can be sued and forced to pay damages should they exercise their power.)

Clearly, not all powers are rightfully exercised. Others may be. Does the rightful exercise of a power imply, or even prove, the existence of a right?

Specifically, do jurors have rights - or just powers? It is commonly said that jurors have the power, but not the right, to nullify. But is there a substantive difference between a lawfully exercised power and a right? If so, what is this difference? Or is it just a way of saying that we consider some lawfully exercised powers to be on a higher plane than others, so we call them rights -- even though their exercise is indistinguishable?

In other words, is the rights/powers dichotomy a real dichotomy, or a false dichotomy? A false dichotomy exists when a debater attempts to position two things as opposites (either a right or a power) when they are not incompatible. In fact, are rights not powerful things?

The distinction between juror rights and juror powers, viz a viz jury nullification, is used to justify instructing jurors that the do not have this prerogative, and for denying lawyers a chance to voir dire jurors on it or mention it in argument. This does not affect the rights or powers of the jurors, however: it only affects the rights or powers of litigants and their lawyers.

Jurors do not lose any lawful options in the jury box merely because they have not been informed of them: it merely leaves those who were not already aware of their existence in a state of ignorance regarding them. The rights that have been denied are those of the litigants, who no longer have the legal right to demand an instruction on the jury's prerogative, or the right to inform the jurors of the right during voir dire or argument. Nor do they have the power to do so, if they proceed in doing so they may be disciplined by the Court or a mistrial declared.

The real issue, as I see it, is when the ignorance of jurors is replaced with lies. Jurors do retain the prerogative to nullify: they cannot be punished for their verdict, and a substantial number of jurors do decide not to convict on extra-legal grounds. When a trial court tells a jury that they cannot do this, then the jury is being positively lied to. It is hard to respect a legal system that depends on positively lying to jurors in order to maintain control over their verdict.

Merely because Courts have the power to lie to jurors does not mean they have the right to do so. Until the 1970's, most juries in the US were instructed that if the State proved its case, they may convict, but that if they had a reasonable doubt, they must acquit. This is sufficient to acknowledge the independence of the jurors, without raising a distractive debate about jury nullification. It is honest.

Definitional Shift -- Jury Reform Pt. II

2006-11-21T09:32:00.000-08:00

It is amazing what the passage of time can do to the meaning of a word. Consider, for example, the simple word "jury." Article III, Sec. 2, the Sixth Amendment, and the Seventh Amendment all guarantee Americans the right to a jury in certain trial situations. And, clearly, the Founders had something specific in mind when they made these guarantees.

A panel of governmental employees wouldn't qualify as a jury. Or would it?
A panel of inquisitors certainly wouldn't qualify as a jury. Or would it?
A computer bank could not qualify as a jury. Or would it?

Of course, the answers to these questions all depend on what a jury IS. Yet, strangely, the jury reformers do not care what the historical meaning and role of a jury is. They want to write on a blank slate to create the "ideal" jury. Or at least, the closest to an "ideal" jury they believe they can get away with.

During the October ABA Jury Symposium, I asked the members of a panel chaired by Professor Stephan Landsman, a jury historian and member of the ABA jury reform committee, whether the committee had considered historical norms in assessing their suggested reforms. The answer was resoundingly no. As a matter of fact, even Prof. Landsman seemed surprised anyone asked such a question. Yet to me, it goes to the very heart of the matter.

Clearly, the Founders had something specific in mind when they thought of trial by jury. They did not think of any panel of any number of people selected by any procedure deemed expedient. They had an image of an ideal jury in their mind - yet instead of attempting to stay true to this image, to perfect it, and to debate what it may have been from the historical record, we have allowed social scientists to play with the system, to re-invent it according to the results of their research.

I should point out that little of this research is even peer reviewed.

I will posit the following concepts, for consideration by readers:

1. Many of the problems with the jury system (lack of respect for juries, failure of people summonsed to jury duty to appear for service, dissatisfaction among jurors) are the fruits of past reforms. Through the years we have disempowered and "dumbed down" the jury. We have limited what can be argued to the jury, micromanaged them, and found every possible excuse (at least on the civil side) to take cases away from them. We have taken many turns in the wrong direction - so instead of reversing course, we have decided to turn to social scientists to blaze a new trail (new trial?). This untried, untested new trial is likely to be far bumpier than the experts are predicting. After all, remember the experts who described the war in Iraq as a "cakewalk?" This is a far more serious proposition, however, than a mere war: this is the American Jury System, a cornerstone of American democracy.

2. The American Jury System has existed for over 230 years. There is a lengthy historical record that can be studied to see what procedures have been applied over the decades, and how jurors have responded to them. We can see what worked, what didn't, what changed, and why. Must we not avail ourselves of that record as fully as possible before resorting to blind faith in the social scientists who would re-define the historical jury system nearly out of existence?

3. If we allow the jury system to be dramatically re-defined now, will it be re-re-defined in another five or ten years? How many dramatic re-definitions can it survive? Is a call for specialized training on the horizon? A call for a Juror's Union, or perhaps aptitude tests? Perhaps a "jury" should merely be a panel of government employees - Judges Light - or perhaps they should be specially trained fact-finders. Perhaps a computer connected to a polygraph machine (to test the witnesses) could be called the JURY (Justice User Resource for YOU). The computer could generate the questions AND test the witnesses, and be programmed with the law. (With a little work it could impose electric shock therapy to both punish AND rehabilitate criminals on the spot, as legal error would be impossible...)

Now, suggestion 3 ended on a creative note, but if anyone believes no social scientists or political scientists can be found who would applaud such a machine, they are incredibly naive. IF the sole job of a jury is to find the TRUTH, as the social scientist consensus runs, then there is no need for a lay jury of average citizens. A machine can do a much better job...

The ABA JURY PROJECT is headed down a slope that is far steeper and far more slippery than those intimately involved in it will admit - because they refuse to look at either their own fallibility or the fallibility of their disciplines. Let us be a little more humble. Let us trust in the wisdom of the Founders, and not in the wisdom of the statisticians, and let us return to their version of the Jury.

It is, after all, our legacy. We have failed in our duty to protect it, but the fact that it is tarnished is not enough to destroy its value. It can be polished right back up to its original condition and operation, with no more work -- and with far better results -- than those involved in its reinvention.

The Return of Jurygeek!!!

2006-11-06T08:04:00.000-08:00

Hello, patient readers. Yes, I have been busy elsewhere these last six months or so. After attending the New Orleans Jazz and Heritage Festival last April, I have used these last six months to agitate towards rebuilding that fair city. For those who have never visited that city, or have not been back since 8/29 (a day that should live in at least as much infamy as 9/11), I heartily recommend that you do so - and there is no better opportunity to do so than at Jazzfest, the nations preeminent live music event.

Be that as it may, on October 26-27 of this year I attended the ABA Jury Symposium at the Southern Methodist University Dedman School of Law. The event raised many concerns in Jurygeek's mind. While I generally applaud the efforts of the ABA in advocating for increased use of the jury to adjudicate legal cases, I find it troubling that the process appears to have been hijacked by social scientists. I believe in restoring the role of the American Jury: I do not support efforts to redefine that role in ways that have no historical precedent. Yet, unfortunately, the tendency to tinker has taken over. Many of the "innovations" I heard applauded may well do more harm than good.

Let me make it clear that I do not believe that any of the top tinkers are malevolent: I have nothing but respect for Thomas Munsterman (an engineer who has made a second career for himself out of studying the jury system) and Shari Siedman Diamond (a law professor and psychologist who has studied juries for decades.) Yet I believe that they are guiding this process in a direction that will eventually lead to DIMINISHED respect for and DIMINISHED use of the jury system, and a DECREASED willingness of jurors to appear for jury duty.

Let me mention some of the most troubling "innovations" being promoted as part of this process: first would be questioning of witnesses by jurors. Now, this is troubling for many reasons. A juror who starts taking an ACTIVE role in questioning has, by that one change, become something other than an objective judge. The juror has started taking over for at least one of the sides, he has started blazing his own path towards "the truth." If his questions are rejected, he may well know which side would be more likely to object, and thus may form a grudge; he may also concentrate more on re-forming the question than on listening to the evidence.

I heard calls for computers in the jury room, and that all the technology in the courtroom should be available to the jury. A frightening concept. Few lawyers know how to run accident reconstruction software: should jurors be provided with an expert who can re-draw the reconstruction based on a number of possible scenarios? Really, this slippery slope leads directly to replacing our adversarial system of jurisprudence with an inquisitorial system. It appears unthinkable if not insane to start down that path.

I am troubled by the concept that a trial is "a search for the truth," as we heard repeatedly at the symposium, and not a search for justice. We do not and cannot know the absolute truth about anything at trial; all we can know is the likelihoods the credible evidence presents.

A search for truth abandons concepts such as the burden of proof, or even leaving that burden on the parties. A pary who fails to meet his burden, only to have an inquiring juror make the burden for him, still did not meet his burden. Again, these reforms appear to be aimed not at "improving" the jury system, but at allowing the jury system to function in a world of incompetent and incoherent lawyers. Perhaps what we need are not jury reforms, but reforms in the dysfunctional world of legal education.

The concept of a trial as a "search for the truth" also invites consideration of extraneous evidence, such as prior convictions, etc., that are irrelevant to the case at hand but appear quite influential in determining where the "truth" is more likely to lie. This concept, while superficially appealing, in practice becomes a "trial as a search for what looks true at the time."

We have all had occasions when our attempts to present a coherent story have been screwed up by questions that were peripheral to the story at hand. Do these help to get the truth out? I don't think so. Yet this is what is likely to occur in trials with open jury questioning -- and they are as likely to disrupt and derail the case as to enlighten, leading to a situation in which no truth can be discerned from the rag-tag pile of disjointed evidence admitted.

The historical use of a trial to test the evidence should not be undermined so easily, regardless of what the social science may show. We are not looking at a muffler that can be re-designed at whim, but at what may be THE bedrock institution of American democracy. We should no more re-engineer the jury system based on the views of a small group of social scientists (the insiders, who may well be refuted by the outsiders) than we should re-draft the Constitution based on opinion polls.

The Founders left us with an adversarial legal system, believing that the truth is best discerned by allowing two opposing parties to present their best case. Social scientists now disagree with the Founders conclusion, and seek to reform the jury system, yet again, according to their vision as to how it should operate. And there are almost no voices raised in opposition.

We have not insisted that the word "jury," as used in the Constitution and Bill of Rights, carry any historical baggage: it has been an empty bucket that each State, and sometimes each judge, could redefine at whim. We now have only a remnant of the jury as the Founders knew it; lawyers are not permitted to argue law before the jury; jury deliberations are micromanaged through judicial instructions; very often more potential jurors are excluded than are deemed qualified to serve; whole categories of cases are excluded from the jury trial right, either by law (FISA) or by contract (arbitration clauses.) We have naively limited the amount juries can provide in damages, regardless of the facts, in many categories of cases.

We have reformed the jury practically out of existence.

Many, if not most, of the damage to the jury system today are the result of reforms of the past, well-intentioned, but poorly understood. Piling more reforms on top of past ones risks making a bad situation worse. What the jury system needs is to be restored to its former glory - not "reformed" to a new level of "perfection" by social scientists. Yet I am in the minority, sadly, I think, and, from my perspective the future does not look pretty.

Ninth Circuit Recognizes Juror Independence

2006-04-27T06:59:00.000-07:00

It's about time.

Ed Rosenthal was convicted of growing marijuana in a San Francisco federal courthouse in January of 2003. Ed was a large grower of marijuana for the medical marijuana dispensaries in California. The trial court judge, Charles Breyer, refused to allow the defense to make any mention of the fact that Ed was growing marijuana for medical use. This, in spite of the fact that Ed was licensed under State law, and deputized by the city of Oakland, to do exactly what he was doing.

While most legal commentators agree that Breyer made the right decision by foreclosing any mention of medical marijuana, I have argued elsewhere that Ed should have been allowed to present evidence that undercut the moral underpinnings of the law. If, as Old Chief v. United States holds, evidence which shows a conviction is morally reasonable is relevant, then evidence that a conviction is morally unreasonable is relevant. While numerous federal judges do hold this view, Breyer was not among them. Rosenthal's constitutional right to present his defense was stopped in its tracks.

What happened following the conviction was virtually unprecedented. At least half the jurors (and both alternates) held a press conference on the steps of the federal courthouse the week following their verdict, proclaiming that if they had known that Ed's was a medical marijuana case, they would not have convicted him.

The jurors appeared on televised news shows. The juror's rebellion was fodder for TV and radio talk shows, news reports, print articles, and, of course, the internet. Why were they so angry? If the jurors had been informed that this was a medical marijuana case, they would not have convicted. The foreman of the jury, Charles Sackett, said that "I think jury nullification is going to be part of the answer regarding states' rights in future cases."

"What happened was a travesty and it's unbelievable, unbelievable that this man was convicted. I am just devastated," said juror Marney Craig.

Marney Craig had considered nullification, but she checked with a lawyer friend who told her that she could get in trouble if she refused to convict on conscientious grounds. She discussed this with two other jurors, Pam Karkowski and Eve Tulley-Dobkin. They voted to convict due to fear of repercussions had they done otherwise. Based on these facts, Rosenthal's lawyers filed a Motion for New Trial based on juror misconduct. It was denied, because the only thing the jurors had been told was not to nullify. In Judge Breyer's words:

Rosenthal's argument would be that a new trial is warranted because Craig's friend's exhortations to follow the law interfered with Craig's inclination to disobey it. This novel proposition is fundamentally irreconcilable with the Court's responsibility “to forestall or prevent” nullification whenever it is possible to do so. Rosenthal has failed to identify a single published decision in support of this argument, and this Court will not be the first to write one.

The Sentence: Breyer Appeases his Critics

Ed was sentenced on June 4, 2003. While the federal government asked for a sentence of at least six years, Breyer, citing the "extraordinary, unique circumstances of this case," sentenced Ed to only one day in jail - a day he had already served. Was Breyer doing what he thought right - or was he trying to appease the jurors, and the public, that had rallied so strongly against his denying Rosenthal the right to present evidence of medical marijuana in court?

Both sides appealed - Ed appealing his conviction, and the Government appealing the one day sentence. The Ninth Circuit Court of appeals heard argument in the case in September, 2005 - and issued its decision yesterday, April 26, 2006.

Ninth Circuit: Can't Coerce Jurors to Follow Law

The Court, in a unanimous opinion written by Judge Betty Fletcher, held that Rosenthal was entitled to a new trial. The Court of Appeals disagreed with Judge Breyer over whether Juror Craig's conversation with a lawyer (who told her to follow the law) constituted prejudicial extraneous information. The Court held that the circumstances and nature of that conversation left it dubious whether the jurors were left to deliberate without undue outside pressure or influence. The (erroneous) information was that the jurors could get "in trouble" for failing to apply the law. The Court held:

Jurors cannot fairly determine the outcome of a case if they believe they will face “trouble” for a conclusion they reach as jurors. The threat of punishment works a coercive influence on the jury’s independence, and a juror who genuinely fears retribution might change his or her determination of the issue for fear of being punished.

The verdict was overturned because the jurors received outside pressure that coerced them into not committing jury nullification. So much for any claims that jury nullification is illegal.

BTW, the Court ended its opinion noting that it was not inclined to disturb the "reasoned analysis" which led to Rosenthal's one-day sentence. The sole remaining questions: will Rosenthal be retried? And if so, will another San Francisco jury ever convict him?

Juror Abuse at the Hands of the State: A Case Study

2006-04-08T10:47:00.000-07:00

Recently, someone emailed Jurygeek an appalling story from the Houston Chronicle. Seems a newly minted prosecutor in Harris County, Texas lost a jury trial in the 232nd District Court. His reaction was not to suck it up and take it as a learning experience, but to throw an infantile temper tantrum accusing the jurors of breaking the law. Unfortunately, this is not only normal operating procedures for the Harris County District Attorney's Office - it is a violation of the Texas Disciplinary Rules of Professional Conduct.

Disciplinary Rule 3.06 (d) reads:

(d) After discharge of the jury from further consideration of a matter with which the lawyer was connected, the lawyer shall not ask questions of or make comments to a member of that jury that are calculated merely to harass or embarrass the juror or to influence his actions in future jury service.

Hmmm, seems to me that the statements attributed to Harris County Assistant D.A. Doug Richards fit that bill nicely. For example, "The jurors say Doug Richards told them, "You have violated your oath as jurors today," before he walked out of the jury room after the trial last week."

"He broke into a tirade about the strength of his case, and that we had screwed up," Yules [ a juror in the case] said . . . "He said we ignored the facts. Then he turned around and stomped out."

"He didn't like our verdict and he lost control," said juror Juanita A. Byers.

"He said we ignored the laws and the facts" said jury foreman Terri Hebert who, like her two colleagues, said she found the remarks "offensive."

Unfortunately, this is de rigeur in Harris County. Prosecutors here routinely admonish jurors who acquit as to why they were wrong, what evidence was not allowed to come in, the defendant's criminal history, etc. Clearly, this violates another rule: that they should not communicate with jurors in a way calculated to prejudice the jurors potential future jury service. But no prosecutor in Texas has ever been punished for this activity by the Texas State Bar.

Civil attorneys have been disciplined by the State Bar for exactly this sort of behavior. Yet prosecutors are given a free pass. Why? Why are prosecutors protected by the State Bar when their conduct involves harassing jurors and tampering with the jury system?

Perhaps Mr. Richards misconduct has become so public that it will have to result in some sanctions. We can only hope so. Those who seek to prosecute others must be held to the highest ethical and legal standards if the legal system is to retain a shred of respectability.

Venting...

2006-04-07T09:54:00.000-07:00

I received a telephone call earlier this week that one of my first clients had died. He was caught with two kilograms of cocaine in a federal case. We were unable to get the case to go away - he was the proverbial client caught red handed.

However, I got his sentence reduced on appeal. U.S. v. Miller, 179 F.3d. 961 (5th Cir. 1999). All good enough.

The problem was that Mr. Miller had a kidney transplant while on bond prior to pleading guilty. He was selling drugs in order to make money to pay his doctors. While in the custody of the Federal Bureau of Prisons, his special needs as a transplant patient were completely neglected. Consequently, his transplanted kidney failed and he had to go back on dialysis.

And now, he is dead.

Did the war on drugs kill him? Hard to say. That, and poverty, and kidney disease, and perhaps other problems. Our willingness to hand out pain and death instead of aid and education, however, must be considered a major factor.

Sometime, somehow, someway, we must re-think our approach to non-violent crime. The death of Mr. Miller should be, but won't be, the last needless casualty in our "get tough on crime" approach.

The Peremptory Challenge: An Idea Whose Time is Gone?

2006-03-07T10:47:00.001-08:00

Morris B. Hoffman wrote a fascinating op-ed for the March 7, 2006 New York Times. In it he persuasively argues that the peremptory challenge should be abolished. Hoffman is not alone in that position: Brandeis University Government Professor Jeffrey Abramson, author of the hugely successful introduction to jury studies "We, the Jury," concurs.

WHAT IS A PEREMPTORY CHALLENGE?

The peremptory challenge is the primary tool for jury selection that lawyers have. Generally, we do not "select" jurors -- we de-select them. The first twelve people in the box will be the jury unless the Prosecution or the Defendant strikes one - either through a peremptory challenge or "for cause."

A "for cause" strike is exercised when a juror is disqualified as a matter of law. Any person who is too young, not a citizen, is a felon, is insane, or fits a small number of other disqualifying points, is disqualified as a matter of law and cannot serve. Primary among these would be any juror who is so biased against one party or the other that they could not put that bias aside and judge the case on the merits.

Any person who is legally qualified to serve may be removed through a peremptory challenge. Both sides have a number of peremptories to exercise (in Texas, each side has ten in District Court (felony cases), and three in County Court (misdemeanor cases tried before 6 member jury). A lawyer may exercise a peremptory strike for any reason other than gender and race.

Accordingly, peremptories may be exercised arbitrarily; they may not be exercised discriminatorily. This is a distinction without a difference. A lawyer can say that he didn't like the juror's wardrobe, attitude, vocal inflections, eye contact, lack of eye contact, etc.; so long as he doesn't mention race, there is no problem.

I have seen jurors dismissed for having the same hair style as the defendant -- the theory being that the defendant and the juror, both African-American males with the same hair style, will somehow bond due to -- (not their race!!! definitely not their race!!!) -- their hairstyle.

To date, I know of no example of a juror being dismissed for having the same blood type as the accused. I cannot, however, monitor every case.

Recently a Texas capital murder case concerning Thomas J. Miller El, the Supreme Court reversed, granting Mr. Miller El a new trial, due to the State's use of racially discriminatory peremptory challenged. However, every lawyer, and most people who haven't gone to law school, know that the prosecutor's sin was not in using race to exercise her peremptory challenges. It was in getting caught: i.e., in being artless enough that her subterfuges could be seen through.

After all, she didn't once mention blood type!

The peremptory challenge serves important purposes, in allowing lawyers to remove jurors who they believe, but cannot prove, are overly biased against them. Once the peremptory challenge is subverted into a tool of jury stacking, it becomes a perversion of its own principle: a tool to micromanage the biases of the resultant jury.

It would appear that Jeff Abramson has it right: challenges for cause, perhaps, should be more liberally granted (so that those borderline jurors presently removed by peremptory challenges do not sit on trials), and the peremptory challenge eliminated or their number sharply reduced. This will put an end to the jury stacking that is presently an accepted part of our justice system, and return lawyers back to the task of presenting strong cases that a jury randomly selected from average citizens will find believable.

Important? Or just necessary?

2006-02-09T17:43:00.000-08:00

Yesterday, in response to my having completed jury duty in Harris County Criminal Court at Law No. 15, the Hon. Judge Jean Spradling Hughes sent me a "thank you" letter. The letter stated that even though I hadn't been selected, that my jury duty was still important, because the jury system could not function without responsible folks just like me who appear, regardless of whether we are ultimately selected as jurors.

Curiously, I received a catalog in the mail the same day - February 8, 2006. It was the Despair Christmas Catalog. Now, I've given Despair Christmas Calendars out with great glee as Christmas presents in the past. But I'm just twisted like that.

However, one of their products -- a demotivational poster on the topic of Worth -- really seemed appropriate. The poster featured a lovely photograph of a number of gears, over the heading WORTH: Just Because You're Necessary Doesn't Mean You're Important. So, Judge Hughes, which is it: was my service important, or merely necessary?

I believe that is a serious question, and the answer depends on what role we see jurors playing in our legal system. Are they merely factotums, or are they the "palladium of justice" and the "bulwark of liberty?" Are jurors merely fact-finders, expected to blindly accept the law and the evidence and churn them into a mechanical verdict, or are they the conscience of the community, responsible for applying the facts and the requirements of justice to the law, and to fashion a conscientious and just verdict?

Jurors who are not charged with independent judgment and decisionmaking may be necessary for the system to function - but they are hardly important. Their role is mechanical, uninspired, dependent on the decisions of those "important" judges, prosecutors, police officers and lawyers who feed the data into them for a mechanically obvious solution to pop out. Such juries make decisions that are the results of the decisions of others. They are necessary, but fungible. They are unimportant.

Jurors empowered to "think outside the box" are important, because they are empowered to make important decisions. Even if the jury decides, as in most cases they undoubtedly should, that the law SHOULD be applied according to their instructions, the fact that they've been empowered to do more makes their decision to apply the law important. It embraces the voice of the community, it encompasses the power of public decision making.

Jurors are not merely cogs in the machine. They have the capacity to make important, even life-changing decisions. But to be important, they need to understand that those decisions are theirs; the decisions are not merely thrust upon them by the facts and the law. To be important, not just necessary, requires independent decision making. Without knowledge that they possess that role, jurors aren't important - only necessary.

Jury Duty: What Worked, What Didn't

2006-02-01T13:05:00.000-08:00

Today, February 1, 2005, I appeared for jury duty in Harris County, Texas. I was on time - in fact, slightly early. I got there at 7:40 AM, and I was summoned to be there at 8:00 A.M.

Now, for all those who talk about making jury duty less onerous, I have a simple question: why 8 A.M.? That means leaving the house no later than 7:00 A.M. for most people. This is early. Defendants don't have to be at court before 9:00 A.M. in most cases. Why did I have to wake up an hour early?

Now, Jurygeek is a night owl. Waking up before 6:00 A.M. is not just inconvenient, but physically stinkin' painful. Moreover, I was punished for being on-time. See below!

Once there, I handed in my standard jury questionnaire (very brief: age, occupation, spouse's occupation, how many kids at home, what level of education), and sat down. Right at 8:00 A.M. they showed a boring video full of platitudes (like the lies I've complained of before), and then told us that the doors would close at 8:30.

Shortly after 8:30, they did another collection of the jury questionnaires, and then showed the boring video full of platitudes again. Because I was on time, I had to suffer through this silly crap twice! Once was quite enough to cure any insomnia I was suffering from (not a problem for Jurygeek at 8:00 A.M.), twice was simply abusive.

Shortly after that I was assigned to a venire panel going to County Criminal Court at Law #15. I was excited - a real criminal case, maybe a drug case in which my vote of "not guilty" can save some poor sap from some unjust law. Ah, the romantic musings of a venireperson!

Our venire-panel was walked over to the criminal courthouse (can't they afford buses? It was raining lightly, and few of us had umbrellas), and we assembled in the hallway outside the courtroom. And waited.

I did have a nice time chatting with a newly-licensed attorney, who was also an engineer and who hadn't made up his mind whether or not to actually practice law. We talked about how the criminal courthouse works, the jury system, and Jon Stewart (he was reading Stewart's America, and I told him that if the prosecutor saw that he'd never have a chance of getting on the jury.)

Well, about an hour and a half or more later, we were finally allowed into the sacred temple of justice otherwise known as County Criminal Court at Law No. 15. There were two lawyers and a defendant at one table. There was another lawyer at the other table. The defendant had headphones on going to his interpreter - he only spoke Spanish, as it turned out.

After we'd gotten into our appropriate seats, the judge started speaking to us. Nobody was really focusing on what he was saying, so far as I could tell. He didn't say much worth hearing, either. Even the least legally literate of us had heard it all on TV before, and even the judge seemed disinterested in the canned dialogue he was forced to recite.

The judge kept saying "Oh, and one thing I forgot," and kept going on what was obviously a word-for-word reading of whatever was in front of him. Nobody was fooled into thinking he was being spontaneous. He asked only whether any of us were not US citizens, convicted thieves, or felons, and a few similar questions.

One woman was anxious to get off the jury and raised her hand. Appears her son had been killed in a fight about a year ago, and so she was unable to be fair. She didn't even know what the case was about yet, but she was convinced she couldn't be there. Although she was ultimately dismissed, she was not excused until the end of jury selection.

Then the prosecutor stood up. Thankfully for me, he was a newly minted assistant DA, someone I'd never met there before. Great! I figured that meant he wouldn't recognize me or know to strike me from the panel. When he asked me what kind of law I practiced, civil or criminal, I said some of each. I tried to appear as indifferent as possible.

Turns out this was a family violence case in which the alleged victim was going to testify that nothing happened. Thus, the only evidence was to come from the cops, who would testify as to what she told them right after the events, supposedly as "excited utterances." Now, over the years the excited utterance exception has grown to swallow up the rule: what used to require the level of excitement that would deprive the speaker of reflection, case law now merely requires that the speaker be "upset." This type of evidence is notoriously unreliable in family violence cases, because the "upset" speaker can be looking for an advantage in a to-be-filed divorce, child custody, or child support case.

Well, any hopes I had of being on the jury faded quickly when the defense attorney got up to do his questioning of the venire. Right off the bat, he starts talking about how he used to be an assistant DA, and that he recognized me from all the cases we've done together... poof. After that, I was doomed... the prosecutor struck me off the panel after that.

Five days later, I got my check for $6.00 in the mail, to compensate me for jury duty. I spent more than that on parking, of course. But I have the check in hand, and I'm ready to spend it. Perhaps I can now buy that small Renoir I've had my eye on...

Double Jeopardy: The Power Behind Jury Nullification

2006-01-18T12:43:00.000-08:00

I have, for years, heard complaints that jury nullification is not protected by the United States Constitution, because it is not explicitly mentioned in that document. These objections not just wrong, but plainly so. I wish to respond to them briefly here.

HISTORY

First, we must look at the understanding of the jury at the time the Constitution was written. As I've discussed at length elsewhere, the Founding generation considered the role of the criminal trial jury to include discussing both law and fact. This wasn't controversial at the time of the founding. Jefferson, Franklin, Hamilton and many others supported this view.

Secondly, legal practice in the early years of this country was to instruct jurors on their role as finders of both law and fact - even in civil cases. The plainest example is in Georgia v. Brailsford, 3 U.S. 1 (1794), in which John Jay, for a unanimous Supreme Court, wrote:

"It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of facts; it is, on the other hand, presumbable, that the court are the best judges of the law. But still both objects are lawfully, within your power of decision. "

Finally, let's look at the best understanding we can have as to what a jury was expected to BE at the time of the founding: the most popular law dictionary of the time. Jacob's Law Dictionary explicitly stated that a criminal petit (trial) jury's role was was to decide both questions of fact and law. Pretty straight-forward as to what informed people would have considered the role of the jury.

Clearly, a historical understanding of the role of the jury indicates that it was never intended to be a mere fact-finder.

WHAT DOES THE CONSTITUTION SAY?

Several clauses of the Constitution and Bill of Rights protect the jury's prerogative to deliver a verdict according to conscience. The Art. III, Sec. 2 and Sixth Amendment guarantees to trial by jury deprive the trial court of the ability to convict a defendant against the wishes of the jury. There can be no directed verdicts for the prosecution in criminal cases - even if the defendant takes the stand and admits to every element of the offense.

A defendant cannot be denied a trial by jury in any case in which the sentence is more than six months. The jury can acquit, whatever the evidence, because only they can make the decision - and no matter what the reason for their acquittal is, it stands.

But most importantly, the Double Jeopardy Clause of the Fifth Amendment prevents the Government from re-prosecuting anyone who has been acquitted by a jury -- no matter how irrational, arbitrary, or bizarre the jury's reasoning in finding the accused not guilty. Even if the jury foreman scribbles the words "because your law sucks" under the words "not guilty" - and the inscription is unanimously initialed by the jurors. Not guilty = over (at least so far as that sovereign is concerned).

Consider the situation in Russia, in which jury acquittals are nothing more than speed bumps for prosecutors. Clearly, the power of Russian jurors to nullify is non-existent. Even when Vera Zasulich was acquitted for shooting the Governor General of St. Petersburg, she would have been re-prosecuted had she not gotten out of the city before she could be re-arrested.

Such has never been the case in America. While a person acquitted in State court can still be prosecuted and convicted in Federal court (remember the trials of the L.A. police officers caught on videotape beating Rodney King), it rarely occurs. The Double Jeopardy clause of the Fifth Amendment is still alive and well. As the Pennsylvania Superior Court has noted, the Double Jeopardy interest in protecting jury nullification is "absolute," as nullification is "the highest interest protected by the principle of double jeopardy."

CONCLUSION

It is clear that at the time the Constitution was written, it was intended to protect the nullification prerogative, as the definition of the jury trial at the time included that option. It would be like guaranteeing people cars, and then saying "ah, we never mentioned anything about tires or engines." Without tires or engines, we may have a collection of automotive parts, but we do not have cars. Similarly, without the nullification prerogative intact, we may have maintained significant vestiges of the Founders' trial by jury - but we certainly don't have the whole thing.

The Constitutional right to a jury empowered to nullify is protected in the Constitution. What is not guaranteed in the Constitution (although it may perhaps be considered included under the rubric of procedural due process) is the right of a defendant to inform the jury as to its nullification prerogative. However, there is no room for reasonable doubt as to the jury possessing this prerogative under our Constitution. It is there - and it's not going away.

Why People think Lawyers are Liars

2005-12-18T08:12:00.000-08:00

One thing I've always despised is lawyers who lie, in order to project what they think is the "right image" to the public. It is sick, sycophantic, and silly.

Look at these two "fact/fiction" questions and answers on the Texas Young Lawyers Association American Juror web page, which was cited on the Jur-E bulletin on December 16, 2005:

"Fiction: Attorneys only pick jurors with a college degree.

"Fact: The main thing we’re looking for from potential jurors is the ability to be open to both sides of a debate. It’s up to the lawyers to present the evidence clearly. But we count on the juries to be honest in deciding for themselves what is true and what is fair. That is not based on intelligence or education- it’s just a basic sense of right and wrong."

Let me make it clear: any associate with my law firm who looks mainly for jurors to be open to both sides of a debate will be unemployed before Voir Dire is over. We want jurors who will NEVER, EVER under ANY CIRCUMSTANCES, WHATEVER THE EVIDENCE consider the other side of the debate. We want jurors who are 100% biased towards our side, 100% hostile to the other side, and if we can get 12 of them, we want them.

We will settle for a fair and impartial jury, as a bare minimum. We assume, and have never seen this assumption proven wrong, that the other side is also seeking jurors who will be committed to their case, and biased against ours. That's the way the game is played - and shame on TYLA for lying to the public and prospective jurors about it.

"Fiction: Lawyers ask questions designed to figure out who will help reach a verdict in their client’s favor.

"Fact: Voir Dire is a French term that means "Speak the Truth." Prospective jurors are sworn to tell the truth so that the attorneys or judge can ask questions to find out if they can be impartial unbiased, and trusted to make a reasonable decision based on the facts of the case."

Again, any associate with THIS firm who does not ask questions designed to figure out who will help reach a verdict in our client's favor will be unemployed before Voir Dire is over. We don't want a fair jury; that is the MINIMUM we will settle for. We want a jury that will NEVER, EVER under ANY CIRCUMSTANCES, WHATEVER THE EVIDENCE, vote against us.

Any lawyer who says he wants a fair and impartial jury is either incompetent (being deluded by bar association PR) or is simply lying, lying, lying. The public knows that. I've spoken to many high school classes. I ask them what they think a lawyer wants out of a jury, and they tell me a jury that will vote for their client. We know they know. Yet we strangely persist in lying to them when we know we'll be caught. That's either insane or stupid.

What is weird is that bar associations lie, to people who they know will KNOW they are lying, in a vain attempt to improve the public image of the bar. What they are in fact doing is proving to the general public that lawyers are liars and manipulators who cannot be trusted - because they lie when, if they gave any thought to it, they'd know they'd be caught by anyone with two brain cells to rub together.

Kind of disgusting, this collective indifference to reality in the pursuit of image, isn't it?

P.S. I also tell high school classes that what the judge wants is a jury that will be compliant and will return on time after lunch. Judges HATE that I say that - one judge complained so much that the Houston Bar Association will no longer use me as a speaker. But that is the institutional bias of the judiciary. If we cannot tell the public the truth about what we do and how courts operate, it seems to me we have far more to worry about than our public image. What we have to worry about is that our public image may well be accurate.

Time to Start that Christmas Shopping (a jury-free posting)

2005-11-24T20:02:00.000-08:00

Hello, Folks.

Merry Christmas.

This year for Christmas, I'm promoting the idea of buying New Orleans music for Christmas presents. I can't think of a better way of using the market to help out the musicians from that great city. And let's just make one thing clear -- there is no point to rebuilding New Orleans without its musicians.

New Orleans is (was) one of the few cities in which being a musician isn't considered self-indulgent, but in which musicians are seen as the cornerstones of the community. It is (was) also one of the few cities in which the lines between "black music" and "white music" are pretty much ignored.

New Orleans is the home of American music - jazz, ragtime, swing, dixieland, blues, rhythm & blues, rock and roll and more hail from there. But today, New Orleans musicians are dispersed across the country, as the rooms in which they made their livings and honed their chops remain closed.

Few of these artists are affluent; even internationally respected artists such as Kermit Ruffins, Dr. Michael White, the Rebirth Brass Band and the Subdudes don't necessarily make alot of money. Many, such as the New Birth Brass Band, relied on weddings, sports events and private parties, as well as regular club gigs, to make ends meet; the network of jobs they relied on no longer exists. A number of great artists are functionally homeless today, following Katrina.

This cultural diaspora endangers the core of American musical culture. If the New Orleans creativity dies, I fear we will be left with Madonna Ciccone and Gwen Stefani as our cultural standard-bearers. Personally, I would find this unbearable.

So, I'm suggesting there are no better Christmas (or Hanukkah) gifts, this year, than music from New Orleans - and no better place to buy it than from New Orleans music distributors and record companies, such as the Louisiana Music Factory or Basin Street Records. They have to survive as well.

If you're not familiar with New Orleans jazz, consider the Putumayo Presents New Orleans collection. It is an excellent introduction, including pieces by Kermit Ruffins, Dr. John, Dr. Michael White, Deacon John, and others. Putumayo is donating its proceeds from this disk to relief efforts; it is available directly from Basin Street Records (less expensively than from Putumayo).

Unfortunately, my efforts to find some charitable organization to promote this idea have met with no success; any readers caring to promote the concept have my thanks. The most I've achieved is to convince the Louisiana Music Factory to include a little slip with each order it ships out suggesting that CDs made great Christmas gifts.

As a lawyer, I've done some pro-bono work for some artists from New Orleans, so I see the state these people are in. They've lost homes, instruments, master recordings, papers, written music, and jobs - often after careers that span decades. So this year, let's see if we can give them all Christmas presents that will really matter, by buying their music and giving them a taste of the national recognition that has, sadly, too long eluded them.

So, please consider this humble suggestion. Your uncle doesn't need another tie; he'd be much happier with the Dirty Dozen Brass Band's Funeral for a Friend. And don't forget to treat yourself, as well, to a taste of some of the greatest music America can produce.

Why Lawyers and Judges Don't Understand the Jury: Redux

2005-11-16T13:12:00.000-08:00

Robert Williamson made the insightful comment:

"I didn't have a clue about the historic role of the jury or how juror's make decisions when I graduated from law school. Having an academic take the lead to design the "history" and "purpose" sections of the course makes sense for the reasons set forth in your post. The folks most conversant with the social science research and with how jurors make decisions, however, are not on law school faculties. Conflict of interest or no, they are trying cases or consulting on cases and any course that does not tap into that well of knowledge is likely to fall short of the mark I think you have in mind. I've pointed to your post on my blog, and I am looking forward to hearing more on this idea as you develop it. "

And for the most part, I agree. While a small number of legal academics are social scientists (such as Michael J. Saks and Neil Vidmar), they are by far the exception and not the rule. It is interesting that neither Saks or Vidmar have J.D. degrees; both did post-doctoral work at Yale Law School, where Saks received an M.S.L. degree, and where Vidmar performed a Law Fellowship.

Jury social scientists can be found in a variety of disciplines, including psychology, philosophy, criminology, sociology, and mathematics. Indeed, Thomas Munsterman, head of the NCSC Center for Jury Studies, is an engineer by training. And, like anything involving the social science, it can be assured that if you laid every one of these experts end to end, they still wouldn't reach a conclusion.

I am not so sure, however, that high-school students need to receive much training as to the social-science behind the jury. First, it can be pretty heady stuff. Secondly, alot of the social science has more to do with jury manipulation than performance.

Now, I do believe that law schools should offer courses on the social science of the jury system. Few do. The classes may be taught in psychology, political science or sociology departments, but clearly this is something lawyers are expected to know yet have no background in. We go by myth, anecdote, popular misconceptions, sheer luck, intuition, clues, hints, rumor, gossip and innuendo, not by a background in study and science.

Unfortunately, there is not even a decent law school textbook giving a broad overview of the social science of the jury system in an approachable and useful way. Nancy Marder's book The Jury Process and Randolph Jonakait's The American Jury System are the pick of the litter, but neither are written for this purpose. If someone wants to study this material, they can get snippets, read an occasional lengthy treatise which will cover one aspect, or research the law reviews.

What we have here is an institutional failure on the part of American legal educators to take the jury seriously. How many law professors have ever been successful trial lawyers? And if we take out those educators consigned to the less prestigious and influential clinical programs?

Teaching High-Schoolers about the Jury System

2005-10-28T09:37:00.000-07:00

Ever since the American Bar Association, thanks to Virginia attorney, and ABA Prez. Robert Grey, started to recognize that the jury system was falling into disuse and disrepair, a number of organizations have started to prepare programs to teach high school students about the jury system.

The American Board of Trial Advocates reportedly spent $400,000 on their interactive CD-Rom based program, Justice by the People. Another program has been prepared by the Texas Young Lawyers Association, entitled We, the Jury. Other programs are out there as well.

There is a common problem to all these programs, in my mind: they all are built around the concept that the justice system, at present, works. This concept is a dis-incentive for people to want to get involved as jurors. If everything is fine as-is, then everything will stay fine if I stay home. The message should be more brutal, but more honest: the legal system cannot be counted on to do justice; too high a proportion of jurors come from too few segments of society; the perspectives, and viewpoints, of other members of society are not brought to bear.

Also, citizens looking at jury duty do not feel empowered. They feel like they are there to sit down, shut up, to speak only when spoken to, and to do as they are told. Not exactly an experience most people are dying to participate in.

These are all part of the same problem: few Americans can give a cogent explanation of why trial by jury is important. In large part, this is because lawyers shy away from discussing the topic of jury nullification. Without explaining that juries are empowered to do justice, when the law is unjust or unjustly applied, leaves the jury a hollow, powerless shell of the institution the Founding generation knew. It is not that juries should nullify in every case, or that they should enter court with a presumption that they are going to nullify. It is simply that they should be aware that they have this prerogative when justice demands it be employed.

Last week, I spoke to four high-school classes at Alief-Taylor High School about the jury system. At each session, a judge participated as well. One judge took great umbrage at my speaking so frankly to high school students. In particular, he was upset by my truthful statement that a trial judge’s interests are not in seating impartial jurors, but in having jurors who are compliant and who will come back in time from lunch. Yet those are the institutional interests the judge represents, no matter how distasteful it may be to a judge to admit it. (One adjunct professor I had in law school put it even more bluntly: "a judge's main interest is in maximizing his golf time." He is now a judge.)

Now, I aim to provoke when speaking to students, to make them want to hear what I have to say, and so do not shy away from being controversial. I believe my remarks represented a point of view students need to hear: that jurors are called to try cases because they represent the only truly independent voice in the American legal system. A judge is there to administer a case, not decide it. The judge is not empowered to decide the case because We, the People do not have that level of confidence in judges due to their institutional biases and lack of independence.

Historically, trial by jury cannot be divorced from the concept of a skepticism towards the judiciary. The history of the jury in the American colonies, and in the United States, is that there are certain judgments that, for good reasons, we do not allow judges to make. "The (jury trial) clause was clearly intended to protect the accused from oppression by the Government . . ." Singer v. United States, 380 U.S. 24, 31 (1965). Moreover, "when juries differ with the result at which the judge would have arrived, it is usually because they are serving some of the very purposes for which they were created and for which they are now employed." Duncan v. Louisiana , 391 U.S. 145, 157 (1968) . Obviously, the jury provides a protection a judge cannot be trusted to provide; Singer begs the question of why? The importance of trial by jury (and the answer to that question) cannot be understood without exploring the dimensions, and necessity, of the unique protections provided by the jury.

And unless the importance of trial by jury is understood, people will continue to ignore their jury summonses. So long as the role of a jury appears to be to act like a rubber stamp, people will continue to stay home -- and jury pools will not be representative, consisting only of the self-selected few who appear.

I believe my remarks gave a ‘real-politik’ view of how the justice system works, and gave the students reasons to respond to a jury summons that a more doctrinaire presentation would lack. I see no value in giving students a view through rose-colored glasses. Instead, I choose to focus their attention on the warts in the legal system, in the hope that they will be inspired to do better than their elders have.

A Juror Identity Theft Case

2005-10-21T08:32:00.000-07:00

An interesting item just showed up on the NCSC Jur-E bulletin:

"A very resourceful man in NY County (Manhattan) designed his own juror qualification questionnaire. He mailed them out to select affluent zip codes in Manhattan using the telephone directory. People responded to a PO box that he opened returnable to The Questionnaire Processing Center (we do not have such a Center). He even provided envelopes. When he received responses, he then mailed the responders out a Juror Proof of Identity Form. Citing that NY State was asking for personal information in order to protect their identity. This form asked for Social Security number, outstanding loans, credit card information, employer name and mother's maiden name. From those who responded to that form he was now armed with enough information to wipe out several bank accounts. He was caught via a stakeout of the PO Box. He received 2 ½ to 5 years."

If he'd managed all this from a foreign country without extradition, he'd be enjoying his stolen money today.

Remember, boyz and girlz, it's just like Nancy Reagan used to say: when asked for personal or financial information, whether by a real or an ersatz government official, a phisher, or a pollster, JUST SAY NO.

Restoring New Orleans Culture (A non-jury posting)

2005-10-19T11:15:00.000-07:00

Many readers understand that I am concerned about what has been referred to as the "cultural diaspora" from New Orleans. What New Orleans artists want and need isn't a handout. What they want is to make more money by selling more records. And the best place to buy those records from is from a New Orleans distributor.

I'm told that the Louisiana Music Factory is back in operation, and that they are working through a backlog of orders. I'm giving nearly everyone on my disk NOLA music this Xmas - and hoping I whet their appetite so that they buy more on their own.

And I'm going to avoid the big names. Aaron Neville is going to be fine; I'm more interested in folks like those who record for smaller, local labels like Basin Street Records.

No better present for you and yours than a fine disk by Kermit Ruffins, Henry Butler or the Dirty Dozen Brass Band.

It's a start.

Unreasonable Jury Criticism

2005-10-14T08:01:00.000-07:00

For years, the folks at Reason Magazine have had an ineffable hatred of juries. It seems to have began with Virginia Postrel - an elitist jury hater, and former editor of that magazine. A recent article by a Tim Cavanaugh states that "American jurors are a bunch of louts, nincompoops, and media whores who need to stop trusting their guts and start listening to people smarter than themselves."

Well, well, well. Strong words - with no indication that Mr. Cavanaugh has anything to back them up. Jurors are not only the conscience of the community - they are also the most conscientious actors in the American legal system. What Cavanaugh complains of are the consequences not of bad jurors - but of bad lawyering.

When juror John Ostrom states that "[w]henever Merck was up there [on the witness stand[, it was like wah, wah, wah," he is demonstrating the failure of Merck to present a cogent case through its witnesses. Lawyers are supposed to be communicators and persuaders -- yet many are incapable of making their case understandable to a lay jury (perhaps because they don't understand it all that well themselves). Lawyers, and expert witnesses, who lean on legal buzzwords and technical jargon, or who talk down to jurors, are not doing their jobs, and can expect to lose.

The average juror in America has about half a year more education than the average American, and tends to take their job far more seriously than judges or lawyers do. Jurors have one case - and they want to get it right. Lawyers and judges become jaded, and have numerous cases on their dockets at any one time.

Is the jury system perfect? Of course not. Is the alternative -- trial by judge -- any better? Again, of course not. While any individual juror may not have an advanced scientific or business background, the chance of one or more people on a jury understanding such evidence (and being able to help the remaining jurors through it) is relatively high - especially in light of the fact that almost none of the judges in American courtrooms are trained in such disciplines.

Anecdotal stories are easy to find to impugn any human institution - yet such anecdotes rarely give a full, fair or balanced picture. Out of the hundreds of thousands of Americans who serve on a jury every year, the vast majority do so with intelligence, a sense of justice, and the willingness to give all sides a fair hearing. Scapegoating the jury for the failure of bad lawyers to communicate a coherent case has it backwards. We should not reform (deform?) the jury system, merely to make the world a safe place for bad lawyers.

The jury system is, as Thomas Jefferson noted, the only way known to man to hold a government to the principles of its Constitution. It is the one place where average Americans get to participate in the administration of government power, and to understand how their government works in practice. We need to start by publicly recognizing that American jurors are US, and that, given good information and by paying attention to our sense of justice, we, the people are capable of coming to the right answer more often than not. We do not need some self-appointed elites (those Cavanaugh refers to as "people smarter than themselves") to make our decisions for us.

That was the principle our American democratic republic was founded upon. And, if it no longer holds true, we need to rethink far more than the institution of trial by jury.

The Jury Duty Scam: Fact, Hype, or Fiction?

2005-10-07T06:40:00.000-07:00

Many stories of appeared recently on incidences of juror identity theft. Even the U.S. Military has chimed on on the issue. The way the scam works is described in one article:

"The scammer calls claiming to work for the local court and claims you've failed to report for jury duty. He tells you that a warrant has been issued for your arrest.The victim will often rightly claim they never received the jury duty notification. The scammer then asks the victim for confidential information for "verification" purposes.Specifically, the scammer asks for the victim's Social Security number, birth date, and sometimes even for credit card numbers and other private information -- exactly what the scammer needs to commit identity theft.So far, this jury duty scam has been reported in Michigan, Ohio, Texas, Arizona, Illinois, Pennsylvania, Minnesota, Oregon and Washington state. " (There are recent reports of the scam being utilized in Alabama, as well.)

Apparently, the scam began being used by February, 2004; since then, it has rapidly spread around the country.

Apparently, these scams are all too real. The FBI has gotten involved in publicizing the scams. Even Snopes.com, the pre-eminent urban legend busters, have announced that this scam is real, with an unknown potential for financial harm. It is, by all accounts, widespread and growing.

What Jurygeek finds most interesting is that Snopes described this as a "social engineering" scam: " a technique which preys upon people's unquestioning acceptance of authority and willingness to cooperate in order to extract from them sensitive information. "

My, my. This sounds strangely similar to something Jurygeek noted back in June: that the tendency of people to obey authority allows them to be too easily manipulated. While in that post, Jurygeek was referring to the tendency of jurors to be too willing to convict against their own conscientious judgment in order to satisfy or appease authority figures, in the jury duty scam, people are being asked to comply with the request of a (feigned) authority figure.

When someone saying they are about to issue a warrant for your arrest calls, people tend to respond out of anxiety and a wish to appease the threatening authority figure. What is needed to protect ourselves from these sorts of scams, as well as to protect ourselves from manipulation as jurors, appears to be a cultural paradigm shift, away from the obedience to authority and in favor of exercising individual judgment.

One can hardly envision such a paradigm shift in our educational system: what public school teacher is going to begin class by saying "I want you to question and challenge everything I tell you"? (While I try to instill this value in my own child; my wife has resorted to pulling hair - mine!) Yet so long as we treat reflexive obedience to authority as a positive, rather than a negative, trait, we are subject to malevolent manipulation - whether by judges, prosecutors -- or scammers.

Jurygeek Lives: Yard Dies

2005-09-28T18:50:00.000-07:00

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?

2005-09-27T12:26:00.000-07:00

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

2005-09-26T17:40:00.000-07:00

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

2005-09-21T03:31:00.000-07:00

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

2005-09-20T17:58:00.000-07:00

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

2005-09-19T17:46:00.000-07:00

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

2005-09-15T15:50:00.000-07:00

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

2005-09-09T07:16:00.000-07:00

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!

2005-09-07T08:29:00.000-07:00

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!

A Non-Jury Post: On New Orleans

2005-08-31T07:41:00.000-07:00

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.

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

2005-08-30T08:08:00.000-07:00

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.

THURGOOD MARSHALL WAS RIGHT

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.

Roadblocks to Jury Reform

2005-08-25T07:15:00.000-07:00

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.

Jury Waivers & Arbitration: two sides of one side

2005-08-21T07:11:00.000-07:00

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.

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

2005-08-17T08:55:00.000-07:00

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.

Agreeing to Disagree to Agree

2005-08-12T19:03:00.000-07:00

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.

Simmered Amphibians and Juries as Toast

2005-08-07T14:47:00.000-07:00

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.

Hey, How About Some Respect?

2005-08-02T18:58:00.000-07:00

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.

A Safer World. . . for Whom?

2005-07-31T08:21:00.000-07:00

Rattlerd asked:

Are there any other innovative ideas out there that could address the problems professional juries are put forward to solve? As a CPA and auditor, I was especially distressed at the outcome of the Scrushy/HealthSouth case upon reading some of the jurors' comments that they really didn't understand the prosecution's case because it was too complicated and simply boring. There was evidence in the OJ Simpson trial that at least one juror confused DNA evidence with blood type, and given the increasing complexity of technology I don't see most patent cases can be competently heard if you're not an engineer.

Is this just a problem of perception, and if not, are there no good alternatives?

Thanks,
D.

---------------------------------------

Whenever there is a failure in communication, at least two parties are involved. There is the person attempting to communicate, and the person attempting to understand that which the other party is attempting to communicate.

Perhaps we are blaming the wrong party.

My law school did not offer any courses in communication skills. Nor do most others. There are courses in trial advocacy, certainly. But courses in communication skills? No.

Quoting from the communication failure link, a simple communication effort "can be presented diagrammatically as follows:

idea in A's mind --> a formulated message (e.g. sentence) --> transfer mechanism (e.g. speech and hearing) --> idea in B's mind.

Each transformation (depicted as "-->") brings its own contribution to the probability of a failure."

Thus, some of the reasons for the communications failures are:

1. A doesn't have a clear idea in his mind.
2. A cannot formulate the idea into a coherent message
3. A cannot speak clearly
4. B cannot hear well
5. B cannot understand A's message to create a coherent idea in his mind.

In the case of an attorney presenting evidence through an expert witness, the additional problem is that BOTH the expert and the attorney have to have the same idea in their mind, and be able to formulate it into a coherent message through Q+A.

So, when juries misunderstand what a lawyer is trying to tell them through an expert, who is at fault? Is the problem with the jury being unable to understand, or is the problem with the attorney and/or experts being unable to communicate a coherent message?

I do not think it is a stretch to claim it is more often the latter. We should not reform/deform the jury system to make the world a safer place for incompetent lawyers and their incompetent experts. Instead, we should better understand how to present a clear, coherent message through our witnesses. We do not need better jurors: we need better lawyers, better experts, and - perhaps - better judges.

The best experts are easily capable of explaining their subject to a group of lay persons. The average experts, however, are not. Their understanding tends to be more abstract, and they are less capable of explaining their subject matter in concrete terms that lay people can understand. A good lawyer can assist in this matter, through witness preparation and careful questioning. How many lawyers omit these steps -- then blame the jury afterwards?

The average lawyers never even gain a good understanding of the subject matter they are trying to present through an expert. Some even consider their lack of understanding an asset: they will make the expert explain it until they understand it. But is it explained so well that everyone in the room shares the attorney's comprehension (considering that the attorney had at least some head start on the jury?) Probably not. Again, do we blame the jury for bad lawyering?

Good experts, with relevant visual aids and a coherent, well-planned presentation, can be understood by juries. But so long as mediocre lawyers choose to baffle by BS because they are too lazy to dazzle with brilliance, the results will be predictable.

It goes without saying that few trial judges are CPAs, or have any business or accounting experience or training. There is no reason to believe a trial court judge is any better at understanding complex, technical or scientific evidence than a jury. So trial by judge is no improvement. But do we want specially trained jurors, creating a trial transcript that appellate judges will not be able to comprehend (perhaps finding insufficient evidence as a result?) I don't think so.

There is a problem in allowing people with specialized training to make decisions binding upon society as a whole. As Lord Chesterton noted long ago:

"Our civilization has decided, and very justly decided, that determining the 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 can 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 right, by the Founder of Christianity."

G.K. Chesterton, Tremendous Trifles, 67-68 (1910)

Instead of changing the qualifications for jury duty, we should change the qualifications for getting a law license and/or graduating from law school to better reflect the demands upon real-world lawyers. An IRAC spouting parrot who is incapable of communicating may make a fine engineer. Don't expect him to be a persuasive trial lawyer.

Professional Juries? I don't think so...

2005-07-28T17:59:00.000-07:00

One reform to the jury system that raises its head all too often is the concept of professional jurors. I don't think anyone is surprised that Jurygeek (and for that matter, the vast majority of other jury proponents) are four square against such proposals. And, while the reasons may seem obvious, they deserve repeating here.

First, while the term "jury" may not be defined in either Article III, Sec. 2 or the Sixth Amendment (or in the various State constitutional jury guarantees), the Constitution is not, nor should it be, interpreted in a vacuum. The Founding Generation didn't recognize a panel of government employees as a jury, whether those government employees were legally trained or not. The historical reason behind trial by jury was to have the ultimate legal decision maker not be a government employee, but a panel of lay citizens. Obviously, professional jurors would not be recognized as jurors by the Founders.

The English common-law method for demanding a jury trial was to call for a trial "by God and Country," meaning the people of the Country, instead of their government. A professional jury would necessarily mean a trial "Solely by Bureaucrats." The Declaration of Independence listed as one of the grievances the deprivation of the benefit of Trial by Jury. One can hardly imagine the Colonists going to war against the most powerful nation on earth for depriving them of the benefit of trial by bureaucrats.

Moreover, real jurors are not beholden to either side. Could a "professional juror" ever not be beholden to his employer, the government? Could anyone really believe that a "professional juror" who voted against the government too often would not quickly be out of a job? I think not.

Anyone who knows the reality of our courts knows that few judges are truly impartial, and most judges have no qualms about using their influence and discretion to have a case come out in accordance with their preferences. Can we really believe that this would not extend to the hiring and firing of "professional jurors?" I think not.

Moreover, local lawyers and judges would quickly get to know each professional juror in the community well. Think lawyers get home-towned now? The out-of-town lawyer would never have a chance against tight-knit locals. Jury selection would be a fiasco: the locals could pick who they wanted by name without a single question, and the out-of-towner wouldn't believe any answers he received from slick professionals. Fair? Methinks not.

The myth is that "professional jurors" would be "better trained and educated", and that "experience" will somehow make them better at their job. Neither claim holds water. For obvious reasons, "professional jurors" will not have the diversity of viewpoint, education and experience that lay jurors demonstrate, nor will "professional jurors" improve with experience.

First, lay jurors have a variety of experience and education. I've seen professors, lawyers, doctors, engineers, schoolteachers, business owners, accountants, and other professionals serve on juries. The fact that the average jury consists of strangers with different backgrounds, education, and experience enriches jury deliberations and makes it possible for the jury to examine facts with a fresh eye. These people are meeting for the first time, comparing their perspectives and opinions, and trying to reach a consensus opinion on something that is new and strange to them. In the real world, this brings out the best, the most conscientious in people.

"Professional jurors" would necessarily get to know each other, and to have somewhat similar backgrounds - they all would have been hired by the same office, and they've self-selected by applying for the position in the first place. This homogeneity would impoverish deliberations, and would create a system in which complex evidence would almost never be understood - few "professional jurors" would be engineers, doctors, or CPAs. They would be bureaucrats - with all the training that low level government employees usually have.

Moreover, professional jurors would not improve, but would get worse, with experience. We all know that routine jobs rarely get the attention of once in a lifetime opportunities. Professional jurors would take a "oh, another case like the last one..." approach, and fail to give each case the unique attention it deserves. Furthermore, they would become jaded: sending that first man to prison is difficult; sending the 33rd or 330th is easy. Some jobs should never become easy.

One of the beauties of the jury is that it is not beholden to the court or to the government. Juries can nullify if they believe that the law is unjust, or that it is being unfairly applied. This provides an essential feedback mechanism; laws that are frequently nullified are laws that should change. Professional jurors would become immune to the unfairness and injustice, and we would lose this invaluable safety-valve. That alone is reason to abandon this pipe-dream of the professional jury.

And, finally, let's not forget the admonishment of de Toqueville, that jury service gives to the citizen a habit of thinking with a judicious perspective, and a training in how the laws are administered, which he can get almost nowhere else. This is perhaps why those who have served on juries have a better impression of the institution than those who have not. To lose that would be to further divorce the government from the citizenry.

While those who like to think loosely, without having to confront the unintended consequences, legal, constitutional, and political, of their proposals, the professional jury will always retain a certain lure. Fortunately for the rest of us, the professional jury remains, and likely will remain, nothing but idle chatter. The professional jury would be nothing more than a group of bad, second-rate judges: something we've got far too many of as it is.

Wanted: Fellow Jurygeek

2005-07-26T18:30:00.000-07:00

I must apologize to my readers (assuming there are some) for the infrequency of blog entries as of late. I have been rather sidetracked as the law firm I've worked for since 1997 is dissolving, and I am forming a new firm with trial lawyer Paul C. Looney. Same address, same phone number, but Lamson & Looney is giving way to Looney & Conrad.

While I wend my way through the vicious trials and tribulations of launching a semi-new law practice, my blog entries may be sparse. If there is another jurygeek interested in contributing to this blog, please contact me.

Are Jury Consultants Worth the Money?

2005-07-25T17:18:00.000-07:00

Jury consultants came into vogue during the 1970's. They have been controversial ever since. Some of the big-name jury consultants, like Jo-Ellan Dimitrius, Robert Hirschhorn, and Andrew Sheldon can bring in tens (if not hundreds) of thousands of dollars a case. Are they worth it?

There is even an organization for jury consultants: The American Society of Trial Consultants [ASTC]. ASTC puts out an excellent publication called The Jury Expert, which is available at a subscription rate to non-members.

Most jury consultants are social scientists, many with Ph.D.s, but there is no single field of study that prepares one for a career as a jury consultant. Psychology (experimental, social, and otherwise), sociology, theatre, linguistics, political science, statistics, law, communications, graphics design, advertising, etc. all open the door into the high-paying world of jury consultants. ASTC does not have any academic or professional requirements for membership.

Is it all just smoke and mirrors?

Probably not. Jury consultants do far more than pick juries. They are involved in venue and community attitude surveys, focus group and mock jury studies, assisting attorneys in presenting their cases more persuasively and understandably, and witness preparation, in addition to other things. Some of these may be enormously valuable - but expensive.

But there are alot of bad jury consultants out there. There are alot of jury consultants who are unqualified, or under-qualified, or who, while competent in some areas of jury consulting, venture outside of their area of competence on a regular basis.

Often, lawyers hire jury consultants so they'll have someone to blame when they lose. That is not a service clients should be asked to pay for. Poorly chosen jury consultants, and lawyers who don't know what they want out of a jury consultant, will nearly always lead to bad results.

A good jury consultant can make a huge difference in case presentation, jury selection, and persuasion. But perhaps more than in any other field of the law, hiring a jury consultant requires the buyer to beware. The selection of what services the lawyer wants help with should be made first - and then a jury consultant with specific expertise in that area should be selected.

The Inherent Bias of Death Qualification

2005-07-17T08:22:00.000-07:00

In light of the fact that Errol Morris' documentary on a Texas death penalty case is due to be released on DVD next week, I thought that death qualification was an issue I should discuss here.

There are roughly four thousand people on death rows across America as this is published. Some, undoubtedly, are guilty. Some are certainly innocent, and we as citizens can only hope their innocence will be proven while there is still time. But, sadly, not one of the people on death row in this country has received a trial before a jury fairly representative of the community in which they were tried. And there is evidence that in each and every case, the juries who tried these defendants were biased against them.

The justification for these statements is found in the unique jury selection procedures employed in capital cases. In a capital case, every individual with qualms about imposing death as a penalty for crime is disqualified from jury duty. This is called “death qualification.” While until 1986, only those jurors who would never vote for death were disqualified, since that time any juror whose judgment would be affected by the sentence involved could be removed.

While many Americans favor the death penalty, many do not, and few believe the death penalty should be used as widely as it is. Many people - including the most conscientious members of society - approach the death penalty only with fear, trepidation and hesitation. Even former Illinois governor George Ryan, a Republican, had enough doubts about the death penalty that he imposed a moratorium on executions in his state. Indeed, prosecutorial misconduct and harmful attorney errors occur in roughly two/thirds of all capital cases. Knowing this, many people who support the death penalty in theory may be removed from a capital jury in practice, because of their extraordinary caution at imposing the ultimate penalty. It takes a great deal of courtroom time, and some pretty intrusive voir dire, to remove any juror who would be so affected.

Because of this, jury selection in capital cases often takes weeks, if not months, as the “death qualified” jurors are isolated by the State. Women and minorities are eliminated at a much higher rate than are white males. (Perhaps as a result of this, capital juries are about 43% more likely to sentence a killer to die if his victim is white.) Death qualified jurors are more concerned about crime, more cynical of defense lawyers, and more likely to be punitive, than society at large. Numerous studies have shown that those who survive the death qualification process are inherently biased towards conviction. People who have no qualms about the death penalty favor the State. They would be more likely to convict in a jay-walking case.

The Supreme Court in the 1986 case of Lockhart v. McCree ruled that the interest of the State in carrying out its death penalty trumps the rights of the accused to a jury fairly representative of the community. The Court believed that the interest of the accused in being tried before an unbiased jury of his or her peers had to give way to the State’s interest in carrying out its death penalty. If those with qualms about the death penalty were allowed to serve on the jury, the logic went, the death penalty would seldom if ever be invoked. Juries would nullify the death penalty, refusing to sentence people to die for reasons the State did not consider adequate.

Hence, because a fairly selected jury would not sentence people to die as reliably as the State would like, the Court allowed States to stack juries against the accused. The jury - historically referred to as the “conscience of the community” - has now been turned on its head. Only those who support the State are allowed to serve - no critics need apply. You have doubts that the death penalty is just? You think the death penalty may be over-used? You think that the death penalty requires extraordinary caution? The Supreme Court not only does not want to hear your opinion - the Court does not even want to allow you to speak. At least, not on a jury, where your opinion would mean the most.

Modern death-penalty law revolves around guiding jury discretion into approved channels. To prevent jury nullification, courts have deprived capital defendants of an impartial jury selected from a fair cross-section of the community, and from a determination of guilt and punishment in accordance with the conscience of the community. Moreover, many prosecutors, as Miller-El shows, are willing to use racism and prejudice, ignoring the Constitution in the process, to further their chances of getting a capital verdict.

Restricting capital jury service to those elements of society who are most inclined to convict hardly provides a balanced or impartial judging of the case. We have excluded any points of view save those of the jurors most likely to convict and sentence a person to die. Then we imagine that the resulting verdict represents the judgment of the community as a whole. Nothing could be farther from the truth.

It is impossible to preserve the core values of the criminal justice system while concentrating jury selection procedures entirely on the prevention of jury nullification, at the expense of a fairly selected jury. Have we really reached a point in this country where we are willing to allow human beings to be executed after a trial before a biased jury, stacked against them and sworn to execute? Apparently so.

If You Teach It, Will They Come?: Why Plans to Teach About the Jury System Won't Work

2005-07-08T19:28:00.000-07:00

In recent years, a huge number of organizations have created programs designed to teach kids about the jury system. The American Bar Association's American Jury Initiative has such a program. The American Board of Trial Advocates spent $400,000 designing a program, titled Justice by the People, intended for use in middle schools. The Federal judges have a program, called Courts to Classes, complete with a teaching guide and handout. The Texas Young Lawyer's Association has a program, entitled We the Jury.. The American Jury Institute is developing a PowerPoint presentation for use in classrooms. The National Center for State Courts has a long list of similar programs on their web site.

The limited success of these programs was dramatically underscored in an article in the May Texas Bar Journal. Recently appointed U.S. District Judge Lee Yeakel and two lawyers visited an honors class and spent an hour talking about the jury system, after which the judge remarked the class was "now ahead of 95 percent of the population in knowledge of the jury system." With so many programs being developed, so much good material available, why are 95% of students not receiving an education on the branch of government they are most likely to personally participate in?

The answer is obvious: the jury system is not mentioned in the standardized achievement tests mandated by the No Child Left Behind act. As Bob Berkowitz, an educator with over thirty years of experience, notes "Teachers are narrowing their curriculum to teach to the test. School administrators are becoming score obsessed." In this narrower curriculum, there just isn't much time to teach extraneous stuff.

This leads to two ineluctable conclusions: first, current efforts to get high school and middle school students educated as to the importance and functioning of the jury system are doomed to have only spotty and temporary successes, because every classroom hour spent on the jury is "wasted," so far as achieving higher standardized test results is concerned.

And secondly, the only way to ensure that American students generally have a functional understanding of the jury is to include a module on the jury system in the standardized test questions on American history and government.

This second point presents perhaps a worthier use of some of the energies that have gone into developing jury-studies programs that are redundant, and will not be widely used anyway. If American students do not understand the history, role, and purpose of the jury system, they will not, as adults, be inspired to preserve, participate in, or respect the decisions of, that institution - the cornerstone of American legal culture. Surely, we are all failing if that isn't made part of the test.

My Final Chapter on the Tort Reform Debate

2005-07-04T06:35:00.000-07:00

It is increasingly apparent that Wilson's interest in continuing this debate is only to push his book. While it is understandable that would be his interest, it is not mine.

First, I should point out that, contrary to Wilson's claim, I am not a trial lawyer (a term he considers a pejorative.) As the bio on this blog, and my bio on my firm's web site, clearly show, I am an appellate attorney. I do both civil and criminal appeals and complex drafting.

Wilson repeats himself ad nauseum, without contributing much in the way of new ideas. Instead, he takes issues I have not discussed and says "Conrad does not dispute xxx." Of course, what I have not discussed I have neither disputed nor conceded.

Other Cases are Okay for Juries to Consider

Wilson's argument relies wholly on one case - State Farm v. Campbell, which he reads selectively. State Farm involved an insurance company which falsified records and refused to offer policy limits in a case in which its insured was undeniably at fault in an accident which left one person dead and another permanently disabled. It was shown that State Farm had a national policy of denying liability as much as possible, regardless of the facts, in order to minimize recovery. (This is an oversimplification, but it will do for our purposes.) Campbell sued State Farm for bad faith, and the jury awarded $2.6 million in actual damages, and $145 million in punitive damages. The trial court judge reduced this to $1 million and $25 million. The Utah appellate courts reinstated the $145 million.

Wilson claims that State Farm prohibits a jury from considering a corporation's conducts in other cases. He ignores the fact that State Farm was a Utah case. The Supreme Court said that because a State cannot punish a defendant for conduct that may have been lawful where it occurred, a State court cannot consider a corporate defendant's conduct in other states. If this was a federal case, involving a violation of federal law, the "other states" rule would not apply.

What is relevant, however, is that the Court explicitly authorized juries to consider other cases. The Court said that one factor in determining the reprehensibility of a defendant's conduct is whether that conduct involved repeated actions or was an isolated incident. Thus, a jury can properly consider how often and how regularly the complained-of tortious acts takes place when assessing punitive damages, within the jurisdiction of the applicable sovereign - in this case, Utah.

Not Economically Efficient

Moreover, the Supreme Court eschews any claim that punitive damages should provide "economically efficient deterrence of corporate misconduct" -- a concept Wilson claims as a given. According to State Farm, punitive damages are to provide both deterrence AND retribution. (Of course, the possibility of retribution in itself deters.) Never did the Court say that punitive damages need be, should be, or should attempt to be, economically efficient. Retribution is never economically efficient.

In fact, State Farm not only permits, but logically requires, juries to consider exactly the factors I stated juries consider: the wealth of the defendant and the likelihood of the harm being repeated. Clearly, the wealth of the defendant is important, as the deterrence value of the award varies depending on the wealth of the defendant. (The risk of a $100,000 punitive damages award may not deter Bill Gates one iota, while it may dramatically effect my conduct.) Moreover, because juries ARE to consider whether the conduct involved repeated actions, they must also determine whether the conduct is continuing. (If not, there is nothing left to deter, and retribution becomes the only determining factor. And again, the degree of retribution should be judged against that particular defendant; Gates would scoff at a $100,000 retribution award; I would probably cower before it.)

Wilson claims that economically efficient deterrence of misconduct is THE goal of punitive damages. The Supreme Court disagrees, in the case Wilson relies on. Seems rather like the end of the story on that one.

Comparisons with Criminal Cases

It appears that Wilson has no experience with criminal cases. Here, I am at an advantage: I do criminal and civil appeals. For example, he claims that we have elaborate safeguards to prevent criminal juries from imposing unjust sentences. In most states and in federal courts, juries do not impose sentences at all save in capital cases; in those in which juries routinely impose sentences, they are free to impose any sentence from the minimum to the statutory maximum.

Wilson bizarrely claims that criminal defendants have discovery rights greater than those that civil defendants have. Even more bizarrely, he claims that the exclusionary rule is a discovery right. First, the exclusionary rule is not about discovery at all; secondly, criminal defendants have very, very limited discovery rights and (in all but a very small number of states) no rights to conduct depositions, see witness statements before trial, no right to know exactly what theory the prosecution is going to trial on, etc. He gets the indictment, and little else.

Moreover, jury selection in criminal and civil cases proceed by the same rules. While the Sixth Amendment guarantees an "impartial jury" in criminal cases, and the Seventh guarantees only a "jury" in civil cases, this distinction has been erased through statute and court practice.

Excessive Litigation is a Myth

Wilson then claims that tort reform is about limiting frivolous lawsuits, not about capping damages in substantive suits. This is a frivolous defense of the tort reformers. Frivolous lawsuits are by definition losers; what Wilson is complaining about are substantive suits with small economic damages that he considers, in his words, "silly." Such suits cannot economically be litigated without the possibility of punitive and non-economic damages. And that is what the tort reformers want to eliminate.

What Wilson depends upon is a fictitious claim that there is some sort of "litigation lottery" going on. For that, consider the words of Prof. Nancy S. Marder, from her excellent article "Introduction to the Jury at a Crossroad: The American Experience," from the Chicago-Kent Law Review, Vol. 78, pg. 909 (2003):

"Although the McDonald's jury became emblematic in the press for much that was wrong with the civil jury system, this jury was not alone in receiving condemnation for its damage award. Numerous other cases in which the jury awarded damages that the press depicted as excessive contributed to this view of the civil jury as having gone awry. Indeed, if one were to read only newspaper accounts of civil jury trials, one would conclude that most juries award excessive damages, and that they do so because they sympathize with the plaintiffs at the expense of corporations. Coverage of cases involving tobacco, asbestos, and other types of product liability paint this picture. Yet, empirical studies indicate otherwise."

What? EMPIRICAL STUDIES INDICATE OTHERWISE? Public perception, as influenced by the sensation-seeking media, give a false impression of a litigation lottery? Exactly.

Perhaps Wilson should pay some close attention to these empirical studies (and perhaps should also read his own case, State Farm v. Campbell, less selectively). Juries are, perhaps more than any other actors in the American legal system, acting conscientiously and responsibly. This doesn't make good headline news. It is, however, backed up by close examination. It is the truth.

Are Jurors Overly Obedient to Authority?

2005-06-29T16:50:00.000-07:00

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.

BILATERAL DEHUMANIZATION
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 ABOUT THE JURY?
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.

Tort Reform: A Myopic Vision

2005-06-26T09:45:00.000-07:00

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.

Did Legal Formalism Mortally Wound the Independent Jury?

2005-06-23T05:48:00.000-07:00

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.

What Lawyers Should Know About the Jury System

2005-06-20T17:34:00.000-07:00

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.

Tort Reform or Jury Elimination: Redux

2005-06-17T19:15:00.000-07:00

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?

Batson with Teeth: Examining Miller-El

2005-06-15T16:53:00.000-07:00

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.

The Importance of Losing Gracefully

2005-06-14T17:12:00.000-07:00

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.

Tort Reform or Jury Elimination: Pt. II

2005-06-11T14:59:00.000-07:00

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.

Medical Marijuana: Is Jury Nullification the Next Step?

2005-06-10T18:48:00.000-07:00

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.

JURY NULLIFICATION FOLLOWING ROSENTHAL
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.

Tort Reform or Jury Elimination?

2005-06-09T19:06:00.000-07:00

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.

Are Jurors Competent to Do Their Job?

2005-06-08T17:54:00.000-07:00

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.

Sour Grapes from California

2005-06-07T18:55:00.000-07:00

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?

Spectacle of the Decade

2005-06-04T19:29:00.000-07:00

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.

A Judicial Bully In Philadelphia

2005-06-03T18:59:00.000-07:00

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."

First Day of Blogging

2005-06-02T18:49:00.000-07:00

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.