juries
Conviction by cuteness
Aug 10th
Back in 2009, when I first stumbled across the website (and service) Courthouse Dogs, I was merely amused, thinking in my ’09 naivete that this was such a silly preposterous proposition that it wouldn’t have any legs (let alone 4) and would go away without as much as a woof. Boy, did I bark up the wrong tree (you’re permitted to groan now).
It turns out that this is now a growing trend of sorts and is about to receive its first serious legal challenge in the Empire State:
Rosie, the first judicially approved courtroom dog in New York, was in the witness box here nuzzling a 15-year-old girl who was testifying that her father had raped and impregnated her. Rosie sat by the teenager’s feet. At particularly bad moments, she leaned in.
…
The new role for dogs as testimony enablers can, however, raise thorny legal questions. Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not, and some prosecutors insist that the courtroom dogs can be a crucial comfort to those enduring the ordeal of testifying, especially children.
The new witness-stand role for dogs in several states began in 2003, when the prosecution won permission for a dog named Jeeter with a beige button nose to help in a sexual assault case in Seattle. “Sometimes the dog means the difference between a conviction and an acquittal,” said Ellen O’Neill-Stephens, a prosecutor there who has become a campaigner for the dog-in-court cause.
There are Confrontation Clause implications, to be sure: the dog’s “nudging” the reluctant witness at key moments seems to give the witnesses testimony an added air of credibility and evoke lord knows how much sympathy in the jury for the complainant:
His lawyers, David S. Martin and Steven W. Levine of the public defender’s office, have raised a series of objections that they say seems likely to land the case in New York’s highest court. They argue that as a therapy dog, Rosie responds to people under stress by comforting them, whether the stress comes from confronting a guilty defendant or lying under oath.
But they say jurors are likely to conclude that the dog is helping victims expose the truth. “Every time she stroked the dog,” Mr. Martin said in an interview, “it sent an unconscious message to the jury that she was under stress because she was telling the truth.”
“There was no way for me to cross-examine the dog,” Mr. Martin added.
Ah, but if Mr. Martin had bothered to check the website for Courthouse Dogs, he’d have found this:
An ode to the Kitchens sink: a tragicomedy
Jul 17th
Once upon a time in Connecticut
there was a Court
which, to Constitutional errors,
gave much thought
it matters not, the Court said
if an error wasn’t preserved
if certain conditions are met
we’ll give it the review it deserved
And so the court issued
its seminal holding
in the case of
State v. Monica Golding
The State huffed and puffed
and fumed and schemed
to get the court to ignore these errors
it daily dreamed
In every case
the State cried foul
“but that precise claim wasn’t raised”
it bleated with a scowl
And then the Court changed
as members came and went
the State continued to try
to put in Ms. Golding a dent
And as the years went by
the Court became less receptive
to these pleas of error
the State considered defective
Lo, it finally came to pass
in Kitchens, Akande and Mungroo,
that to instructional error
the Court would now say
“sorry, no can do”
If you do not object
or even stand silently by
as erroneous instructions
the jury must apply
If you do not state
with exacting precision
the specific problems
with the court’s instruction
The court will deem that you have waived
the client’s right
Due Process? Fair trials?
you cannot seek this constitutional might
The court can err
confuse and mislead
but for this Constitutional infirmity
only you will bleed
You must be prescient
You must be attentive
because the Court has become
anal retentive
And now that Ms. Golding’s
been sent to the Kitchens sink
What are we to do?
What are we to think?
Ask for copies
and then ask for time
and if you forget
just remember this rhyme
One thing is certain
One thing is sure
For our clients’ ills
We are the only cure.
And now the prose version for those who either tl;dr-ed the above or who just didn’t understand what the hell it meant:
We the jury…have some questions
Jul 9th
The efficacy of the jury system has provided much fodder for thought here at ‘a public defender’, starting way back in 2008 when Florida proposed giving jurors the right to submit questions to be asked of witnesses, and most recently last year, in a series of posts about the need for unanimity and general ways to improve the jury system (through Q&A during closing arguments or better jury instructions).
I started out with the firm view that any active participation by jurors during a criminal trial was antithetical to the idea of the burden of proof resting squarely on the State. I have softened my stance a bit, as can be seen in the Q&A post, and now I am definitely intrigued by the prospect of a limited trial run wherein jurors can ask questions of the lawyers (but I’m still very hesitant to let jurors pose questions to witnesses).
Michigan has recently introduced some interesting changes to their rules, which have got me even more interested in this idea:
Michigan jurors will be able to pose questions to witnesses; take notes; get mid-trial commentaries from lawyers; in civil cases, discuss the evidence while the case is still in progress, and get a final summation from the judge, according to the 14-page order hammered out after a two-year test period.
Once again with the “pose questions to witnesses”. But let’s skip that for now. The “mid-trial commentaries” seem like an interesting prospect, but have a fatal flaw, especially in a criminal case. No defense attorney would avail of this. Either this “mid-trial commentary” comes before the State has rested, in which case why would a defense attorney comment on the strength of the State’s case up to that point, giving the State ideas about what witnesses they need to call, or if it’s done after the State’s case, there’s little difference between this “mid-trial commentary” and closing argument.
I suppose there might be very rare and specific cases in which the defense could utilize this commentary to set up their case-in-chief, but the risk seems far greater than the reward.
Some of the objections to the other proposals are self-evident: an impartial final summation of the facts from the judge? Talk about an appellate issue nicely wrapped in a bowtie. And frankly, jurors should always have the ability to take notes and should always receive the judge’s final instructions in writing.
I’ve never quite understood the prohibition against jurors discussing the case while evidence is still being presented. What does it prevent, exactly? Do we really believe that if they don’t talk to one another they won’t make up their minds until all the evidence has been presented? That’s naive. In fact, discussing the evidence during the presentation of the evidence may help some jurors better understand the evidence that is subsequently presented: some may have missed a key piece of evidence and thus lose context for a following witnesses testimony. It doesn’t bother me as much.
But this reiteration of the need for some sort of change in the jury system has reinforced the notion in my head that a limited period of dialogue between the jurors and the lawyers after the presentation of all evidence might greatly assist the jury in their decision-making. One of the judges who’s quoted in that Michigan article is right: jurors aren’t children. But as I’ve argued before, the best way to approach them is that they are, and what better way to do that then to let them ask you questions about your case, so you can clearly address their issues with the evidence – or lack thereof? What are the downsides to this? [See this article by Walter Olson in a 2003 issue of Reason for further thought.]
You can’t prepare for Forrest Gump
Jun 6th
we the..uh..deciders..decide that..uh..what are my choices again?
One of the first things I learned as a trial lawyer was to never overestimate a jury. Jury duty is a very odd and strange thing for people to do and no one’s a professional at it, even those who are trained in the law, or who’ve served more than once. The smartest people, when they get on juries, are prone to do the stupidest things. This is a philosophy, which if you think about it, can serve you well as an attorney. If you pretend that the jurors are a bunch of barely-functional 5 year olds, then you’re forced to lay out all the facts and themes in small, simple, easy to remember pieces. It really makes the job of writing cross-examinations and closing arguments easier.
Of course, the jury is a black box. A black box of chocolates; you never know what you’re going to get. And most often you don’t. Until one of them goes and blabs to the press, that is:
Members of the jury that acquitted two NYPD officers of raping a woman in her East Village apartment told DNAinfo that despite the verdict, they believed the cops were guilty.
But they felt a lack of DNA evidence meant they had to acquit — a decision which is causing anguish for some.
“In my heart of hearts, I believe her that the officers did it,” said juror Melinda Hernandez.
Another female juror, who asked not to be named, said of former NYPD officer Kenneth Moreno: “He raped her. There is no doubt in my mind.”
Read that again. “I believe the officers did it”. “No doubt in my mind”. To those of us sitting at home, “no doubt” means “lack of doubt” which also means “beyond a reasonable doubt”. In fact, during jury selection and closing arguments, prosecutors hammer home to the jurors that they are not required to prove the elements beyond all doubt. That the standard isn’t no doubt about the defendant’s guilt, because that would be impossible.
Here, it seems, they achieved the impossible. But the impossible doesn’t account for the CSI effect and befuddled jurors.
All joking aside, this only serves to make the victim feel even worse: having to suffer through a not guilty verdict compounded by the fact that that verdict was brought about only because of a misunderstanding of the law by the jurors has to be a terrible feeling. Of course, our jurisprudence doesn’t permit retrial after acquittal, so that door’s closed on this chapter forever. For the lawyer observing this trainwreck and for tomorrow’s jurors and casual critics or champions of the criminal justice system, however, there are valuable lessons to be learned.
Just as there are cases like this, where a misunderstanding of the law results in an unwarranted acquittal, so are there cases where the same misunderstanding would lead a jury to convict an innocent man and send him to prison.
The CSI effect also seems to be well and alive, and we would be well served to remember that it can cut both ways. Sure we know that these two female jurors believed the complaining witness but “had” to acquit because of the lack of DNA evidence. What of the other 10 (or how many ever NY has on their juries)? What if they didn’t believe the woman, but might have been convinced to vote for guilt simply because DNA evidence existed?
DNA is not omniscient: it cannot tell you when it was deposited or under what circumstances. Jurors need to understand that and it’s our job as lawyers to make sure that they do.
Don’t rely on the judge’s instructions to the jury; write your own. Remember that no matter what jurors say during voir dire, they come to the courtroom with their own preconceived notions and those notions are hard to get rid of. Help them, or you’ll end up like Picard below:
“Undesirable jurors” as euphemism
May 18th
The State of Georgia is such a frustrating contradiction: they have no money and the worst public defender system in the country and then they go and rebuild it and make it extremely effective and then it crumbles under the weight of a few capital appeals and returns to the race to the bottom, turning into a model of what not to do. And then they pass legislation like The Jury Reform Act of 2011 which:
allows court officials to compile a statewide database from a variety of sources – not just from voter registration rolls – to ensure defendants are more likely to be judged by their peers.
The fact that juries are never made up of defendants’ “peers” is a long running sad joke in the criminal justice system. I once naively asked a co-worker why we didn’t see more urban youth in our panels. Because they don’t register to vote, obviously. Voter registration records are where jury pools are typically drawn from, which limits, in a sense, the pool to only those who bother to register to vote. But that eliminates an percentage of the citizenry who do and should have the right to participate in the civic process. And one way to get more people engaged in this civic process is just by getting them to show up.
There will always be people who want to serve and those who don’t. This is true for people who register to vote and those who don’t. No one registers to vote just so they can get on juries, so there may be a number of potential jurors who just don’t give a damn about politics but can feel some sense of responsibility to contribute to their community in this way. The GA bill seeks to do just that – expand the potential jury pool, thereby providing a greater and more accurate cross-section of society from which to choose a representative panel.
“Our legal system is based in large part on the idea that our citizens should be judged by a jury of our peers,” Swingle said. “Whatever steps the law can take, through technology or legislation, to make our juries more accurately reflect the demographic makeup of our communities are important improvements to our courts.”
Citizens can be more confident in the outcome of cases that are decided by juries that more accurately reflect their community’s makeup, Swingle said.
So you’d think that all would in agreement that expanding the pool is a good thing. If you have half a brain cell, you’d already know what’s coming next:
When courts summon everyone who meets the minimum requirements for sitting on a jury – that they are county residents at least 18 years old and not convicted felons – there’s a potential of “diluting” jury pools, said Athens attorney Harry Gordon, who served as district attorney for Clarke and Oconee counties for nearly three decades.
Ready for the next quote? Don’t say I didn’t warn you:
“There’s a possibility (the new law) could open up jury service to every Tom, Dick and Harry, and that could diminish the validity of the jury system,” Gordon said. “If it liberalizes people that get on juries, it’s possible you could find more undesirable jurors, but it’s going to have to be tried because it’s the law, and we’ll just have to wait and see if it works more efficiently or not.”
Every Tom, Dick and Harry, aka law-abiding citizens who have every right to participate in the legal system. Or, to prosecutors, real peers of the defendant who have experienced the same bullshit tactics that police employ, who live in the neighborhoods and communities where crimes are committed, who may be better at holding the State to its high standard and who aren’t as predisposed to convict.
It’s well known that if we had a truly representative cross-section of the community sitting on juries, there’d be fewer convictions, not because “every Tom, Dick & Harry” is more likely to ignore the law, but because they’d be more likely to understand that not everything is black and white:
Athens resident Maureen McLaughlin, a political scientist who has worked as a jury consultant for more than 20 years, is excited about the new law.
“For everything we get in this country, only two things are required from us – pay taxes and serve on juries,” McLaughlin said. “By expanding the list that they use to select the jury pool, you’re going to have a more demographically diverse base from which to select and have a more accurate reflection of the types of people you have in your community.”
…
“You want to have at least someone on the panel who can understand the defendant’s life history, life experiences and those types of things,” she said. “When certain portions of the population are underrepresented, that does a real disservice to the community.”
Here‘s a breakdown of voter registration demographics in GA. Slightly over 60% of registered voters statewide list ‘white’ as their ethnicity. Blacks make up just under 30%, Hispanics barely 1.5%. Blacks, however, represent 61% of all inmates, Whites 33%. And yes, I know this isn’t a totally accurate statistical comparison, but I’m using the figures merely as illustration.
Good luck, Georgia. May the peach no longer be rotten.
H/T: Juries
Reasonable gibberish
Mar 22nd
(alternate tagline: because juries never convict anyone anyway)
“I am convinced, after [fourteen] years of being a judge and many years of practice before that, that the standard reasonable doubt charge in Connecticut is unsatisfactory. It is satisfactory only in the sense that it is routinely upheld by the appellate courts, which is a considerable advantage, to be sure. But over the years I’ve become convinced that jurors’ eyes glaze over when it is given and it is not fully understood and, therefore, does not do adequate justice to the parties and I believe needs to be modernized, simplified, put into plain language but, obviously, appropriate language.
Judge Jon Blue, quoted from State v. Jackson, 283 Conn. 11 (2007). That Judge Blue, a former appellate public defender, would speak his mind and attempt to craft an instruction that may approach the hitherto unthinkable: an explanation of just what those most famous words actually mean, should come as no surprise to those who are familiar with the good judge. What is surprising – and endlessly frustrating – however, is that courts all over the country have been perfectly happy to let the vagueness of that phrase persist, despite the clear knowledge that without clear guidance and definition, reasonable doubt is reduced to an nebulous gut feeling, rather than a precise application of a standard of proof. It has gotten to the point where courts are content to lazily quote the Beatles in all their peace-loving, pipe-smoking glory and implore us to “let it be“.
Before I embark on a vituperative rant, let’s at least look at the current definition of reasonable doubt as given in CT:
The meaning of reasonable doubt can be arrived at by emphasizing the word reasonable. It is not a surmise, a guess or mere conjecture.1 It is not a doubt raised by anyone simply for the sake of raising a doubt. It is such a doubt as, in serious affairs that concern you, you would heed; that is, such a doubt as would cause reasonable men and women to hesitate to act upon it in matters of importance.2 It is not hesitation springing from any feelings of pity or sympathy for the accused or any other person who might be affected by your decision. It is, in other words, a real doubt, an honest doubt, a doubt that has its foundation in the evidence or lack of evidence.3 It is doubt that is honestly entertained and is reasonable in light of the evidence after a fair comparison and careful examination of the entire evidence.4
Proof beyond a reasonable doubt does not mean proof beyond all doubt; the law does not require absolute certainty on the part of the jury before it returns a verdict of guilty.5 The law requires that, after hearing all the evidence, if there is something in the evidence or lack of evidence that leaves in your minds, as reasonable men and women, a reasonable doubt as to the guilt of the accused, then the accused must be given the benefit of that doubt and acquitted. Proof beyond a reasonable doubt is proof that precludes every reasonable hypothesis except guilt and is inconsistent with any other rational conclusion.6
Thank goodness she was awake
Oct 20th
So, I was watching legal show the other day and in it, a defendant was charged with breaking into the home of a woman and violently assaulting her. An anonymous caller informed police that this was occurring, but when the police arrived, he hid with her in the bathroom and kept her silent. When the police left, he resumed his beating until she somehow managed to call relatives who called 911.
The man was on trial – a jury was summarily selected in an afternoon and opening statements were delivered the next day. During the defense attorney’s opening statement – as these things go – a juror unexpectedly blurted out that she couldn’t sit on this case because – wait for it - she was the anonymous caller!
Dun dun dun.
Oh wait, this wasn’t a TV show, this actually happened. In real life.
“She said, ‘I was the (anonymous) person who made the 911 call,’” the assistant prosecutor said.
“She said, ‘It woke me up out of my bed and I saw him beating on her. I thought she must be dead.’”
Her outburst tainted the entire jury because it corroborated statements made by the prosecution and claims made by the victim, [Judge] Ruehlman declared a mistrial.
The new trial begins Wednesday – and [juror-turned-witness] Johnson-Riddle will be called by prosecutors to testify against the man she originally was to sit in judgment against.
The article tries to explain away this amazing turn of events by stating that during jury selection, prospective jurors aren’t given the detailed facts of the case. That may be true, but in every damn case I’ve ever tried (and by now that number is well over a thousand), the judge not only reads the charging document which lists the date, time and location of the offense, but every single juror is asked whether they have any familiarity with the location or the people involved. Another question that’s typically asked is whether the prospective juror knows anyone who’s been a victim of a crime. If nothing else, that question should have triggered her memory.
So what happened here? Did they forget to ask? Did they ask and she wasn’t paying attention? Or did they ask and she lied? Or was it a case of group voir dire not providing an adequate opportunity to properly examine potential jurors? (Yeah, you knew I was going there.)
Whatever the cause, the lesson is clear: people are mercurial and what may seem to be a straightforward question to you and me, may be vague and obscure to another. One can’t rely on a script to weed out the undesirable jurors. You have to assess the juror, analyze him or her and then tailor your questions to fit that juror’s personality.
Of course, it would be a lot easier if you had 20 minutes one-on-one with the juror…
KISS your jury (updated)
Sep 16th
Update: I mean, you could end up looking like this guy
Earlier this week, Scott and I engaged in a mini-discussion of sorts about the tweaking of the format of a trial to better help jurors understand the issues and reach their decisions. The most popular analogy for the decision making process is the black box. You know what goes in, you know what comes out, but you have no clue what the hell goes on inside. In order to alleviate that a bit, I ran with the Windypundit’s idea that jurors be permitted to ask questions of lawyers during closing argument. In that post, I also wrote:
The changes we must make as lawyers and judges, in the way we treat jurors and the way we treat them to the evidence in a case are perhaps best left to another, lengthier post.
What I was referring to then, and what I hope to summarize now, is one change that I fully intend to make in my style. Juxtaposed with this latest study from the UK that 66.67% of jurors don’t understand a damn thing told to them by judges, the idea becomes clear that we’ve got to keep it simple, stupid. (and you thought I was advocating flirting with jurors. Sheesh.)
The two-year study, led by Professor Cheryl Thomas of University College London, analysed 68,000 verdicts across Crown courts in England and Wales, and also staged simulated trials.
In relation to judge’s directions – where a judge gives crucial guidance to jurors about what they have heard – the research team asked jurors at Winchester Crown Court to recall two key questions that the judge gave in a case where a defendant was charged with violence.
Only 31% of jurors accurately identified both questions, it was found.
A further 48% correctly identified one of the two questions, and a fifth did not correctly identify either question.
Researchers found a written summary of the judge’s directions on the law for jurors improved their comprehension of the law.
And by simple, I don’t mean simply picking one issue in the case to pound home (which some lawyers have made a successful career out of), but changing the way we approach cases, the way we structure every word we say when we are in front of that jury.
The legal universe is a complex and intricate one. Experienced lawyers often don’t have straightforward answers to questions. We write voluminous briefs on questions of law; we argue over the syntax of jury instructions. If we don’t get it and can’t agree on definitions and explanations and instructions, how the hell can we expect lay jurors to?
As lawyers, we become invested in our clients’ cases: we live them, we breathe them, we become them. In the heat of the trial battle, we are the client. We know (or should know) the case and the facts like they happened to us. While that’s great for preparing for trial, it’s also our biggest handicap in dealing with jurors. They don’t have that background, that intimate knowledge with every nuance and every event. They don’t know the law, they haven’t argued the motions we have and most importantly, they don’t know our strategy.
It is often said that it is clear if a 5 year old can understand it. While you run the risk of alienating a juror or two, I think there’s a lot to be gained by taking that approach with the jury. Put yourself in their position; pretend that you don’t know anything about the case and commence your examination in that fashion. Ask basic questions, dole out morsels of information at a time. Juries tune out when they see two people – you and the witness – engaged in some protracted battle over semantics and nuances. I should know. I’ve done it and failed miserably.
Wouldn’t it be better if you led them down the path you want to go, but in the manner that they would walk? The law is a complex thing and the application of the law to the facts of a case an even more daunting task. If we want juries to find that reasonable doubt, we must lay it out for them in as simple terms as possible. Forget the drama, forget the yelling, forget the feigned outrage. Keep it simple.
I’m going to try it next time I’m on trial. I’ll let you know how it goes.
Q&A in closing arguments
Sep 12th
In a recent string of posts around the ‘sphere, the jury trial system has come under some scrutiny, mostly in the area of unanimous verdicts. I wrote this post, and then a few days later Volokh had these posts, which prompted Scott to write this.
That the jury trial system is imperfect has been known for ages and commentators have struggled with ways to improve it, if at all. For instance, take a look at this tantalizing teaser of an article written by the great Wigmore in 1929 (I’d love to get my hands on the rest). Here’s a more recent article on the ills plaguing the jury trial system and what can be done about it.
But as Wigmore said in that 1929 piece, the arguments against the jury trial system are either simple problems that can be remedied or are made in the absence of a better alternative. It seems, then, that we’re stuck with this system for the foreseeable future. And one can trumpet the “best legal system in the world” all we want, in some sort of mindless obeisance, but we’d all be better served if we thought of ways to improve the system, tweak it to better fulfill the goals it was established for.
Part of the problem with the jury system, from what I can tell in my limited experience, is not a problem with the system itself, but with how it is utilized. And by that I mean how the players in the system – lawyers and judges – employ the mechanisms. A lot of the common ills: complex laws, jurors voting their gut can be traced or blamed in part to the failure of the participants to understand the nature of the system.
We like to say that people are tried by a jury of their peers. Yet we lawyers treat these peers as if they were our own, not that of the defendant. The language we use is archaic, complicated and downright stupid and confusing. The format of the jury trial is usually a patchwork of testimony that may or may not be tied up in the end by lawyers depending on their level of competence. Sometimes, I watch trials with which I have no connection and marvel at the fact that jurors are able to reach verdicts of any sort at all. A juror must feel like he’s getting a quick glimpse into an intensely technical and complicated and petty world and the first instinct must be to run in the opposite direction as soon as possible. Trials are cumbersome, which only add to the desire to not participate.
The changes we must make as lawyers and judges, in the way we treat jurors and the way we treat them to the evidence in a case are perhaps best left to another, lengthier post.
The point of this one, taken from this comment, is to tweak the system a bit to give jurors additional tools in reaching the correct decision. I’m against permitting jurors to ask questions of witnesses during the pendency of the trial, because in my view it interferes with the State’s burden of proof – at least in criminal trials.
But the idea of permitting jurors to ask questions of the lawyers during closing argument – a la oral argument before an appellate bench – is an intriguing one.
It is often said that you can make or break a case in closing argument: the key piece of evidence left unexplained, the big problem with the defense untouched, leaving jurors no choice but to convict or acquit, simply because you didn’t address it. So why not take the one hour of closing arguments that most courts permit and turn 15 or 20 minutes of that into a free-flowing back and forth between the jurors and the lawyers? Let jurors ask questions about the application of the law to the evidence, explore their doubts about the meaning of evidence presented, clarify their understanding of the import of a particular piece of evidence.
After all, if we want the jurors to decide the case based on the evidence presented to them, then at least let us help them understand the evidence presented.
On the flip side, of course, a defense lawyer like myself may argue that doing so would only permit the State to fill in the gaps left by their case-in-chief and if they haven’t provided enough evidence to the jury, they should be allowed to fall on that omission. But it might also provide an opportunity for the defense lawyer to take that doubt expressed by a juror and exploit it, to drive it home and to further widen that gap in their mind.
A 15-20 minute session of questions and answers and rebuttals may help to clarify the evidence that has been presented to the jury, to focus the closing argument on the issues that the jury is truly wrestling with and it partially lift the shroud of secrecy that surrounds the jury’s decision making process.
Good enough for government work
Sep 2nd
The Blagojevich trial (and subsequent mistrial) has provided plenty of fodder for discussion among the press, the blogosphere and the nation in general. But it seems as though a bit of the madness that allows him to polish his hair using shoe-polish has seeped into the rest of the world as well. Take this Time article for instance, which uses the fact that the government was unable to convince 0.004% of the population of Chicago, to describe the ill that ails our criminal justice system: hung juries
After coming up with only a single conviction on 24 counts of corruption, federal prosecutors eager to send former Illinois governor Rod Blagojevich to prison will in January 2011 begin his second trial with what they hope will be a more effective strategy. What won’t change is the fact that the 12 jurors who will hear the case will be bound by the same ancient — and some argue outdated — rules for criminal juries that have changed just a little since King John signed the Magna Carta in 1215.
So, just what are these “outdated” rules? Jury unanimity, juries not being allowed to take notes or ask questions and jurors not being permitted to discuss the case before all the evidence is complete.
I’ve written about the phenomenon of permitting jurors to ask questions during a trial before and I still disagree with the practice. But how bored are we with the concept of criminal trials – and how convinced are we that those who are arraigned, indicted and tried are guilty – that we are willing to forgo the simple notion that if society is going to convict, condemn and incarcerate on of its own, then it must be done only after a small representative sample of its members agree?
“Much of the elements of jury reform has reflected on the phenomenon of hung juries,” says Chief Justice Randall T. Shepard of the Indiana Supreme Court, a former trial judge in Evansville. “And what happened [in Chicago] is akin to what would have happened in most state courts 15 years ago — but wouldn’t happen in a great many places today.”
Even unanimity, the most cherished rule of all — and the one that spared Blagojevich on the charge that he tried to sell a seat in the U.S. Senate — is open for debate in the states. While the Supreme Court has insisted that federal criminal trials have a unanimous verdict, states have been permitted to experiment. Unless a defendant’s life is on the line, criminal juries in Oregon and Louisiana need only 10 votes or nine, respectively, to convict. “I describe this in general as treating jurors like adults,” says Shepard, who has helped lead major changes in Indiana but credits the states of Arizona and New York with giving momentum to jury reform. “We want to give them room to make decisions like adults typically make decisions.”
That quote made my head spin when I first read it and I’m not sure it’s stopped spinning yet. In other words, Justice Shepard, we can’t be bothered that the State’s evidence is so flimsy that it can’t convince 6 or 12 people of a man’s guilt, but heck, he’s probably guilty anyway, so we’ll take 5, because you really can’t account for that lone crazed juror.
Close enough for government work.
The underlying theme in this non-unanimity movement seems to be that mistrials are an inconvenience. An inconvenience to the court, to the prosecutors, to the staff and to everyone but the one person to whom a trial matters most: the defendant.
How are we to have faith in a system where you are tried by a large governmental entity, your guilt or innocence to be decided by a not-really representative portion of “your” community and then that very government tells the representative portion: it doesn’t matter if you all agree or not, as long as a majority does.
Most of these “reforms” seem to miss the fundamental (and cherished) aspects of our criminal justice system – save perhaps the one about note-taking, which seems like common sense. We require jurors to not deliberate until the end of evidence so they don’t make up their minds in advance, so they can be fair and balanced and consider all the evidence in its entirety. We don’t permit them to ask questions during testimony because it isn’t their burden to prove or disprove anything at all. It is the State’s burden and their burden alone. Jurors are not investigators; they’re arbiters of evidence.
And we ask for unanimity in their decision making because that unanimity reflects the soundness of the decision to prosecute an individual. A conviction and subsequent incarceration is one of the harshest actions taken by the abstract Government against its citizens. If we can’t get a miniscule portion of the citizens that it purports to represent to agree on the guilt of a man, then the government has failed.
It may be close enough for government work, but when it comes to justice, there should be no such thing.
The defendant’s right to trial by jury
May 4th
Article III, Section 2, Clause 3 of the Constitution of the United States states:
The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.
The Sixth Amendment to the Constitution of the United States provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . .
The Sixth Amendment was made applicable to the various states through the Fourteenth Amendment to the Constitution of the United States. The Connecticut Constitution, in Article I, Section 8 states:
In all criminal prosecutions, the accused shall have a right … in all prosecutions by indictment or information, to a speedy, public trial by an impartial jury.
This is further codified in Connecticut law in both the practice book and the general statutes. C.G.S. 54-82b provides:
(a) The party accused in a criminal action in the Superior Court may demand a trial by jury of issues which are triable of right by a jury. [...]
(b) In criminal proceedings the judge shall advise the accused of his right to trial by jury at the time he is put to plea and, if the accused does not then claim a jury, his right thereto shall be deemed waived, but if a judge acting on motion made by the accused within ten days after judgment finds that such waiver was made when the accused was not fully cognizant of his rights or when, in the opinion of the judge, the proper administration of justice requires it, the judge shall vacate the judgment and cause the proceeding to be set for jury trial.
Practice Book Section 42-1 provides:
The defendant in a criminal action may demand a trial by jury of issues which are triable of right by jury. If at the time the defendant is put to plea, he or she elects a trial by the court, the judicial authority shall advise the defendant of his or her right to a trial by jury and that a failure to elect a jury trial at that time may constitute a waiver of that right. If the defendant does not then elect a jury trial, the defendant’s right thereto may be deemed to have been waived.
The reason I mention all of this is that the other day, I was reading Mark Bennett’s series of interesting posts on jury selection in Texas. He was in the courtroom, not as a participant in the process, and reported the entire voir dire conducted by the prosecutor and pro-se defendant. In his final post, I noted this (which is Mark’s narration of the pro-se defendant speaking to the venirepersons):
AP [prosecutor] is new here, and I had agreed to have case before the judge (objection overruled). I was comfortable with the court system. The court called me a week later . . . (objection sustained). (State refused to waive jury? WTF, AP?)
That got me thinking. As evidenced by the Constitutional provisions listed above, I’ve always believed that the right to trial by jury is the defendant’s and defendant’s alone. Was I mistaken? So I tried to locate the relevant jury waiver provision in Texas’ criminal code. This is what I found:
Art. 1.13. WAIVER OF TRIAL BY JURY. (a) The defendant in a criminal prosecution for any offense other than a capital felony case in which the State notifies the court and the defendant that it will seek the death penalty shall have the right, upon entering a plea, to waive the right of trial by jury, conditioned, however, that such waiver must be made in person by the defendant in writing in open court with the consent and approval of the court, and the attorney representing the State. The consent and approval by the court shall be entered of record on the minutes of the court, and the consent and approval of the attorney representing the State shall be in writing, signed by him, and filed in the papers of the cause before the defendant enters his plea.
(b) In a capital felony case in which the attorney representing the State notifies the court and the defendant that it will not seek the death penalty, the defendant may waive the right to trial by jury but only if the attorney representing the State, in writing and in open court, consents to the waiver.
That’s certainly a little strange. What confounds the matter further is the very next provision:
Art. 1.14. WAIVER OF RIGHTS. (a) The defendant in a criminal prosecution for any offense may waive any rights secured him by law except that a defendant in a capital felony case may waive the right of trial by jury only in the manner permitted by Article 1.13(b) of this code.
But what of Article 1.13(a), which lays out the procedure for waiving a jury in a non-capital case? All the language I could find in constitutional jurisprudence assigned the right to a trial by jury to the defendant only. Take, for example, Patton v. United States, a case in which the defense and prosecution agreed to have the defendant tried by 11 instead of 12, after one juror fell sick. Justice Sutherland, for the majority, wrote:
We come, then, to the crucial inquiry: Is the effect of the constitutional provisions in respect of trial by jury to establish a tribunal as a part of the frame of government, or only to guaranty to the accused the right to such a trial? If the former, the question certified by the lower court must, without more, be answered in the negative.
…
In the light of the foregoing it is reasonable to conclude that the framers of the Constitution simply were intent upon preserving the right of trial by jury primarily for the protection of the accused. If not, and their intention went beyond this and included the purpose of establishing the jury for the trial of crimes as an integral and inseparable part of the court, instead of one of its instrumentalities, it is strange that nothing to that effect appears in contemporaneous literature or in any of the debates or innumerable discussions of the time. This is all the more remarkable when we recall the minute scrutiny to which every provision of the proposed Constitution was subjected. The reasonable inference is that the concern of the framers of the Constitution was to make clear that the right of trial by jury should remain inviolable, to which end no language was deemed too imperative. That this was the purpose of the Third Article is rendered highly probable by a consideration of the form of expression used in the Sixth Amendment.
The Court then concludes:
Upon this view of the constitutional provisions we conclude that Article III, Section 2, is not jurisdictional, but was meant to confer a right upon the accused which he may forego at his election. To deny his power to do so, is to convert a privilege into an imperative requirement.
Lending further support to the argument that the right is the defendant’s alone is the court’s discussion of the ability of the defendant to waive any damn right he pleases:
A defendant is supposed to understand his rights, and may be aided, if he so desires, by counsel to advise him. There are many legal provisions for his security and benefit which he may dispense with absolutely, as, for instance, his right to plead guilty and submit to sentence without any trial whatsoever.
So how does one square this core Constitutional right, which by all accounts, seems to be confer the benefit solely on the defendant along with the ability to waive this right if he so chooses, with what appears to be a prohibition in Texas on the waiver of this right without the permission of the State? Have I misread Texas’ statute? Perhaps Mark can chime in here and clarify things. Do other states have a similar requirement?
[Note: I know that caselaw establishes there is no fundamental right to trial by jury where the punishment does not exceed six months and yes, death is different and in capital cases, the consent of all parties is required to waive a jury.]
[Note 2: If nothing else, the Patton case and State v. Gannon - a 1902 Connecticut case - make for fascinating reading. They both explore the deep and rich history of the Constitution and their underpinnings of the right to a jury trial and the process by which that right came to be recognized.]
Individual Skill-ing
Mar 1st
Just when I was on the precipice of not writing any further on the individual voir dire “debate“, I got sucked back in. So here is this half-baked post with some references to studies that you may consider the written equivalent of diarrhea and a few other thoughts that are slightly more well-formed.
First, having already disproven the notion that Connecticut is the only state in the country that conducts individual voir dire, I point you, discerning reader, to some studies that highlight the relative benefits of ISVD. In 1999, then Federal Judge Gregor Mize wrote a paper about an experiment he conducted wherein he questioned jurors individually, regardless of whether they’d self-identified any biases in the “introductory” phase of voir dire. Here is his conclusion:
In view of these results, one cannot help but get a strong sense of the essential and revealing juror data that can be obtained by interviewing citizens who do not initially respond to open-court voir dire questions. The sometimes shocking, and always noteworthy, quality of the statements given above, have caused me to require that I interview all silent venire members. I am convinced that even if individual questioning took up significant amounts of time (which it has not for me), it would be well worth expending the effort in order to avoid juror UFO’s and the consequent danger of mistrials caused by impaneling biased or disabled citizens.
In 2003, he followed it up with another paper: “Be cautious of the quiet ones.” Voir Dire, 10, pp. 1-4.
In Judge Mize’s research, in the criminal trials, 1 in 5 of the silent jurors offered a highly relevant comment in individual voir dire that was withheld during group voir dire; at least one, and up to four, silent jurors were then struck for cause in 27 of the 30 criminal trials. Silent jurors in criminal trials withheld being the defendant’s fiancé, being related to the police, being predisposed toward the police, being predisposed against the police, having self or someone close shot with a gun, having lied in group voir dire, and religious convictions conflicting with duties as a juror.
In the civil trials, 1 in 10 of the silent jurors disclosed a highly relevant comment in individual voir dire, which translates into one significant disclosure for every two civil jury trials. Silent jurors in civil trials withheld having been represented by an attorney in the case, being in an auto accident one month before being called in an auto accident case, overhearing others discussing frivolous lawsuits, predispositions against the plaintiff, and predispositions against the defendant.
In both civil and criminal trials, silent jurors withheld medical conditions/hardship, financial hardship, and limited English proficiency.
The most common excuses jurors gave for failing to answer questions in group voir dire were shyness, embarrassment, and a belief that their answers weren’t very important.
Judge Mize concluded that individual voir dire is an indispensable means of identifying juror bias.
In 2005, Dax Urbszat published another study entitled The challenge for cause: Does it reduce bias in the jury system? I am unable to locate a free copy of the paper on the interwebs, so you’ll have to make do with this excerpt and summary:
Urbszat (2005) recently conducted three studies examining the effectiveness of voir dire in identifying jurors with bias or prejudice in a case. The challenge for cause was found to be ineffective in identifying and rejecting biased jurors. In addition, when the jury pool remains inside the court during voir dire, jury pool members were less likely to admit being prejudiced, and less overall rejections occurred. Individual voir dire, conducted outside the presence of other jurors, increased admissions of prejudice.
In addition, since the original series of posts, I did informally ask several local attorneys who have experience both in the Federal system and in other States, and to a person they all affirmed that they would prefer individual voir dire over group. But that is neither here nor there since I am anonymous/pseudonymous and it is only anecdotal.
However, I may not even have written this post, were it not for oral argument today in Skilling v. United States (transcript) before SCOTUS. There are two issues before the Supreme Court, both interesting in very different ways. The first is of relevance here. Skilling claims that his “trial was unfair” (and I’m paraphrasing) because of the immense pre-trial publicity his case received that rendered it impossible to empanel an impartial jury, especially given the manner in which voir dire was conducted. For a case of this magnitude, an entire jury was selected in just 5 hours, with limited questioning by the judge and even more limited questioning by the attorneys. Their primary reliance was on a 14 page questionnaire that each potential juror had filled out well in advance of jury selection. It is especially important to note that in Skilling, the voir dire was individual voir dire (and this is the much vaunted Federal “quick pick” system).
In Skilling, 60 percent of the jury venire affirmatively acknowledged in the responses to questionnaires that they would be unable to set aside their deep-seated biases or doubted their ability to do so, or that they were angry about Enron’s collapse, an anger that was manifested in the vitriolic terms in which Skilling was referred to repeatedly both in the questionnaires and in the community more generally.
Here, in CT, a similar trial is underway in New Haven. I mentioned this in a previous post and it seems that this trial is the gunpowder that has ignited some calls for doing away with ISVD. Any such reliance on highly-publicized trials is misguided. As with the Skilling trial, there is an overwhelming percentage of people called to serve who immediately are disqualified due to the immense publicity in the press and the overwhelming emotions the case evokes. That, in of itself, takes up a lot of time. In the Hayes case in New Haven, it is my understanding that only 14 jurors have actually been questioned on their suitability, with 4 of them being selected to serve. The rest have either been excused for hardships or for cause.
And yet some would have us pick a jury in a capital case which evokes the strongest of emotions in a matter of hours. I wouldn’t do it if my life were on the line, would you?
And if you cannot answer the above question in the affirmative, then we must stop calling for a truncated process when the lives and freedom in question are of those who trust us with them.
In the vast amounts of time that I have to myself, dragging the wheel as an indentured servant of The Man, I have thought about ISVD. Perhaps it is my feeble mind that cannot escape the conclusion that ISVD is a tool to be cherished by the true believer in the fairness of the system. Perhaps it is the lack of dollar signs impeding my vision that does not let me see reason. Perhaps none has been given.
Further thoughts on ISVD
Feb 23rd
I don’t have time for a pithy title, so pardon me. I just wanted to add a few more thoughts to my post from last night on Norm Pattis’ call for the elimination of ISVD (by the way, Norm responds to my post here).
Here are a few things that still bother me, and this is perhaps at the root of it all. I have yet to see a reason for abandoning individual voir dire in favor of group voir dire other than “ISVD is time consuming and a waste of money”. Fine, reasonable and some not-so-reasonable minds can disagree on that (although I will note that I have seen references in studies to others that have concluded that the statement is not true; I just haven’t been able to locate such studies yet).
What bothers me about this, especially coming from a defense attorney, is this: it is not my job and not my function to point out ways to “speed up” the system. Clamoring that it needs to be done only furthers the perception that some percentage of the public has about the cumbersome (hah) nature of the criminal justice system. Those of us who practice in the criminal courts in Connecticut: prosecutors, judges, defense lawyers, even Norm, know that for the most part, that is simply not the case.
A year is really not a long time for a serious felony case to go to trial. And so to propose a change that may very well inure to the defendant’s detriment seems unseemly coming from a defense lawyer.
Perhaps we have all been at this too long; perhaps we are all jaded. Perhaps we begin to view trials from the lens of our own lives: “I’m on trial for the next month so I have to postpone my vacation”, or “I can’t start trial here, judge, because I’ll be stuck in Tolland for the next two months”.
But for those of us who are the only voice these defendants have against the might of the state to stand up and say, yes, the process that the State employs to accuse, try and convict my client is long and cumbersome is just plain ugly. If the State has chosen to prosecute my client, the cost of that prosecution is not my concern. Let the State pay as much as it takes to meet their burden. And if that involves selection of jurors one by one, then so be it.
If the State legislature, in its wisdom, chooses to abolish ISVD because of cost, then let it be so. I will go along, as I will have to. But I will not be complicit in its abolition for the reason of money.
Let us not forget that while these may be a few weeks out of our time that we feel may be better spent elsewhere, for most clients this is a once in a lifetime event, on the outcome of which hinges their very freedom and liberty. I am incapable of stating to my client, incarcerated awaiting trial, that we won’t be able to question jurors individually to determine if they harbor any biases that would make them unsuitable to judge his actions (or lack thereof) because it takes too long and costs too much. That is not, and cannot be, my function.
Norm says that I am wedded to the idea of ISVD because I have known no other. That I have no experience in Federal Court. I will neither confirm nor deny that, just because I don’t want to. But to reject my argument against group voir dire on the basis on one man’s personal experience in ISVD and group voir dire simply smacks of the pot calling the kettle black.
The framers of Connecticut’s Constitution saw it fit to make the right to question jurors individually inviolate. Perhaps that is because they recognized that the workings of the criminal justice system should not be constrained by questions of cost or time. After all, what is a few weeks when the potential penalties are decades of imprisonment.
No matter how many times you say it, or how many times you reference my mother, you will not change my opinion that individual voir dire, by its nature, can be a more effective tool of jury selection than group voir dire.
Give me a reason to change my mind. But make sure the reason isn’t that it’s too costly or time-consuming. As a criminal defense lawyer, I don’t care and neither should you.
Cumbersome bloviating misrepresents
Feb 22nd
Consider my gears ground. I’ve been resisting jumping in to counter the incessant stream of anti-individual voir dire noise emanating from Norm Pattis over the past month or so. I first saw a post on his blog, which was then reproduced in his column in the Connecticut Law Tribune and finally copied and pasted into this opinion piece in the Courant yesterday.
Norm, for some reason, has been crusading against the “cumbersome” and “wasteful” process of individual voir dire that we employ here in CT. What happens, simply, is this: a jury panel is brought into a courtroom, is read some preliminary instructions by a judge and then members are asked to identify if they have any hardships or other reasons why they cannot serve on a jury. Those who do not identify any such impediments are temporarily asked to retire to a room, while those that raised their hands and quickly individually questioned to determine the reason for their inability to serve. A large percentage of these people are quickly dispensed with and then people are brought out individually from the “able to serve” pool to be questioned to determine their suitability for serving on the particular case.
The length of individual voir dire varies greatly: a simple misdemeanor or less-serious felony jury can picked within a day. Murder juries can take over a week or so. Capital juries naturally take longer.
I have long argued that individual voir dire is preferable to group voir dire. Human nature is such that we are more likely to be honest in our beliefs when we are not being compared to those “similarly situated” to us. Besides, really the only purpose for group voir dire is to indoctrinate jurors and educate the jury, a point which Norm claims is one of the abuses of individual voir dire.
But there are several other problems with his position. He starts with this paragraph:
In every other jurisdiction nationally, juries are selected in a group voir dire. Questions are put to potential panelists to see whether they can be fair and impartial in the case for which they may be selected. The group method permits folks to sit with their peers to answer questions about bias or prejudice. A jury can be picked by this method, even in a case of some complexity, in a matter of hours.
That’s just patently false.
12 really angry men
Feb 16th
Imagine you’re sitting at counsel’s table, ready to start trial. The jury walks in and is seated in the jury box. The judge shuffles his papers, looks over at them and opens his mouth his start instructing the jury.
Suddenly, one of the jurors leans forward and says: “He’s brave enough to go out and get shot at by anyone but he couldn’t handle this?” Another juror pipes in: “I think severe emotional distress is what is happening in Haiti. I don’t think you could have such severe emotional distress from that”.
The case was a suit for emotional distress in the workplace, but that’s irrelevant. What’s relevant – and a little disconcerting – is the anger, resentment and frustration displayed by the jurors. This outward display of vehemence isn’t necessarily caused by the facts of the case; in fact, under other circumstances, they may have made appropriate jurors.
The troublesome matter here is that these jurors made it through voir dire and were selected – over their own objections. Both those jurors above attempted to be excused based on hardship.
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