Thursday, April 16, 2009

Testing the waters...

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.

Friday, April 13, 2007

An Interesting Conversation on Rights, Powers, and Lies

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.

Tuesday, November 21, 2006

Definitional Shift -- Jury Reform Pt. II

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.

Monday, November 06, 2006

The Return of Jurygeek!!!

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.

Thursday, April 27, 2006

Ninth Circuit Recognizes Juror Independence

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?

Saturday, April 08, 2006

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

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.

Friday, April 07, 2006


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.