juries

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won’t change is the fact that the 12 jurors who will hear the case will be bound by the same ancient — and some argue outdated — rules for criminal juries that have changed just a little since King John signed the Magna Carta in 1215.

So, just what are these “outdated” rules?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

Posted by Gideon in criminal law principles

16 comments

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

Posted by Gideon in cheshire

No comments

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.

voir dire

Further thoughts on ISVD

Feb 23rd

Posted by Gideon in ct state law

1 comment

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.

voir dire

Cumbersome bloviating misrepresents

Feb 22nd

Posted by Gideon in cheshire

9 comments

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.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Many, many jurisdictions besides Connecticut permit individual sequestered voir dire. Let’s talk capital cases, because that’s seemingly what precipitated his tirade against ISVD. By a rough informal survey conducted this afternoon, I have been told that the following states permit ISVD in capital cases:

Federal
Alabama (discretionary)
Arizona
California
Colorado (not required but routinely done)
Florida
Georgia
Indiana
Maryland
Kentucky (statutorily required in capital cases)
Louisiana
Missouri
New Mexico
NJ
NY
Ohio
Oklahoma
Oregon
Pennsylvania (required in capital cases; individual, sequestered in discretionary in non-dp cases)
South Carolina
Tennessee
Washington
Texas (statutorily required in capital cases)

That’s 23 jurisdictions besides Connecticut. Almost half the States. Not none. In addition, the results of an informal survey I conducted on Twitter a few weeks ago revealed that more than just CT permit ISVD in non-capital cases.

Norm uses the currently underway Steven Hayes trial in the infamous “Cheshire” case to illustrate his point that ISVD is wasteful, long and useless:

After nine days of jury selection in the Hayes case, four jurors were picked. (Selection of jurors was suspended following an apparent suicide attempt by Hayes.) It is entirely possible that jury selection will proceed at this pace or slower until a panel of 12, plus alternates, is seated. The trial expected to begin in September. Is it necessary to spend months picking a jury?

There’s a bit of disingenuous cherry-picking going on here. Anyone who’s been following Helen Ubinas’ tweets can attest to that. First, let us consider the fact that four jurors were picked. That’s four questioned. Add to that the number of challenges exercised by both sides (10, by my count). So that’s only 14 jurors who could have been seated as jurors over 9 days. The reason that using the Cheshire case an example is a terrible idea is that the case is so polarizing. Only a very small percentage of the panels of 40ish brought in every couple of days was even eligible to be questioned: the rest were excused either for hardship due to the length of the trial and the economy or were simply unwilling to serve due to the nature of the case. So to claim that only 4 jurors were picked after 9 days of jury selection is misleading. In fact, by any honest standard, jury selection in the Cheshire case is chugging along at a fast clip.

Let us not forget that the Connecticut Constitution provides for individual voir dire.

The basis of any argument against ISVD seems to be that it is time consuming and it is costly. Time consuming I will admit, but do we really want to trust juries picked in 30 minutes? And as for cost, voir dire is the least of the money drains. The death penalty itself is a big vacuum that sucks in bundles of money. Better ways to save money would be to trim the fat out of the penal code, get prosecutors to stop overcharging, reduce the lengths of confinement to what is truly needed to punish and rehabilitate and to divert money from the prison industrial complex and “truth in sentencing” to reducing crime. To point at ISVD as one source of wasteful expenditure is rather silly.

Group voir dire is not a panacea. Its problems are well documented. And I shudder all the more when I read articles like this, teaching lawyers how to “make the best of limited voir dire”.You are left to the mercy of judges and juror questionnaires. You are left to the mercy of people willing to admit biases in front of others. You are left to the mercy of people being honest about their opinions and not altering them on-the-fly on the basis of others’ responses.

The point of voir dire, it would seem, is to find jurors who can be fair and impartial, who harbor no hidden biases against certain principles or, heck, your client. I’m not willing to trust that brief questioning in a sea of 40 others will be probative enough to weed out those that are unfit for service.

It boggles the mind that someone who takes the very liberty of another individual into his own hands would be willing to place his faith in a group of individuals, randomly selected within a matter of hours.

Look, there are many people who hold his view. They are all entitled to it. But I’m certainly very curious as to why Norm is choosing this particular moment to launch this one-man assault on the individual voir dire system here in CT.

But instead of taking a good, albeit time consuming, right and turning it into something that is not as desirable for the sole reason of cost, I have a suggestion: next time you’re on trial, just waive the right to individual voir dire. I’m sure the client will understand.

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voir dire

12 really angry men

Feb 16th

Posted by Gideon in judges

5 comments

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.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Here’s how it works: a bunch of potential jurors are brought into a courtroom for voir dire. The judge explains the basics and gives them a time frame. Then the judge asks if anyone cannot serve for family or financial reasons. Those that have legitimate excuses or hardships are summarily excused.

The hardships are only getting worse in these tough economic times and courts are getting more reluctant (at least in some parts of the country) to excuse jurors. That jury duty is an important civic duty is unquestioned. Many people who are summoned want to serve, some because they recognize the need to do so. But no one wants to give up days of their lives if it is at the expense of their livelihood. The longer a trial, the smaller the jury pool.

Here, in CT, your employer is required to give you 5 days pay for jury duty. After that, you receive a stipend of $50 per day. Judging by the numbers quoted in the article above, that’s on the high side. In California, jurors get $15 a day. In Dallas, they used to get $6 before it was sensibly raised to $40. But even that’s a pittance.

Imagine forgoing your income for 7 days in exchange for $350? Not many can and want to do that. Yet, somehow, we have to fill our juries.

Lawyers will agree that the last thing one wants on a jury is a reluctant juror. I shudder inwardly every time a judge hesitates to excuse a juror who claims a hardship, no matter how weak or blatantly made up it is. If it’s not a real hardship, but the juror claims it anyway, it reveals a distinct lack of desire to serve. And if they’re forced to serve, they’ll make poor jurors. Forget fair and impartial. They’re pissed off they’re there and they’ll do something to get back at the system. I don’t want that to be at the expense of my client.

That these two jurors made it onto the jury is telling: the system, the economy, all of it is straining under the pressure of the financial downturn. Finding a suitable jury in a criminal case is difficult enough as it is, having 12 angry men is another burden we don’t need.

I understand that the jury pools are small to begin with and are only getting smaller, for a variety of reasons, but to seat reluctant jurors who might vote based on the facts of the case but also might vote their frustration doesn’t serve the interests of anyone.

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The fruit of the poisonous confession

Jan 1st

Posted by Gideon in confessions

15 comments

fruit of the poisono---oh nevermind

We at this blog, and as a consequence you as an observant reader, have known for quite some time now that false confessions are an underrated scourge in the world of wrongful convictions. Some 15-20% of all exonerations have seen the original convictions brought about by these false confessions. The causes of false confessions have been explored before: mental acuity, extremely long interrogations, psychological manipulation and outright lies.

A new paper soon to be published by Saul Kassin – one of the leading experts on false confessions – and others does a tremendous job of highlighting the history of the law on confessions, their admissibility and challenges to these confessions in US and UK courts. The paper is notable for three reasons: 1) It lays out this legal history, the current state of the research and the history of the development of this research in detail, 2) It offers some reform proposals and most interestingly 3) it posits that a false confession can have an adverse effect on how the jury perceives the remaining evidence in a case. For all of these reasons, it is an absolute must read for all criminal defense lawyers and even those prosecutors who are driven by the interests of justice.

What I want to do in this (extremely lengthy) post is to highlight some of the important and relevant points of the paper, but let me assure you: nothing I write here will be an adequate substitute for you actually reading the paper. It is that good and that important.

The problem with confessions using our current models starts at the beginning: with police interrogation. As opposed to the UK, which uses a “fact-finding” model of interviewing suspects, US police departments for the most part use the “confession” model. The goal of most interrogations in the US is to confirm the suspicion of the interrogator by obtaining a confession. These “trained” interviewers rely essentially on hunches, which are based on flawed beliefs of body language:

Often, however, it is based on a clinical hunch formed during a preinterrogation interview in which special ‘‘behavior-provoking’’ questions are asked (e.g., ‘‘What do you think should happen to the person who committed this crime?’’) and changes are observed in aspects of the suspect’s behavior that allegedly betray lying (e.g., gaze aversion, frozen posture, and fidgety movements). Yet in laboratories all over the world, research has consistently shown that most commonsense behavioral cues are not diagnostic of truth and deception (DePaulo et al., 2003). Hence, it is not surprising as an empirical matter that laypeople on average are only 54% accurate at distinguishing truth and deception; that training does not produce reliable improvement; and that police investigators, judges, customs inspectors, and other professionals perform only slightly better, if at all—albeit with high levels of confidence (for reviews, see Bond & DePaulo, 2006; Meissner & Kassin, 2002; Vrij, 2008).

The most famous of police interrogation techniques is the Reid Nine-step:

A nine-step process then ensues in which an interrogator employs both negative and positive incentives. On one hand, the interrogator confronts the suspect with accusations of guilt, assertions that may be bolstered by evidence, real or manufactured, and refuses to accept alibis and denials. On the other hand, the interrogator offers sympathy and moral justification, introducing ‘‘themes’’ that minimize the crime and lead suspects to see confession as an expedient means of escape.

Compounding the problem of these questionable police interrogation techniques is the apparent contradiction in US courts’ treatment of confessions in the criminal justice system: on one hand, courts recognize the awesome power of a confession and yet on the other seem indifferent to the voluminous research that tends to show that most techniques are coercive and unreliable. Originally governed by the corpus delicti rule, confessions are now viewed through the lens of the “trustworthiness” rule, after Opper v. United States (for a CT discussion see State v. Hafford). This rule is intended to permit the admission of only those confessions that can be independently corroborated. However, in practice, the rule doesn’t provide the benefits it seeks to:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

In practice, however, the rule has not worked to screen out false confessions. Because investigators sometimes suggest and incorporate crime details into a suspect’s confession, whether deliberately or inadvertently, many false confessions appear highly credible to the secondhand observer. Without an electronic recording of the entire interrogation process, courts are thus left to decide a swearing contest between the suspect and the detective over the source of the details contained within the confession. Moreover, the quantum of corroboration in most jurisdictions that apply the trustworthiness doctrine is very low, allowing many unreliable confessions to go before the jury (Leo et al., 2006).

In addition, while courts have taken a hard line stance condemning physically abusive tactics during interrogations, their rulings in the area of psychologically abusive tactics can be best seen as condoning the methods. The psychologically abusive tactics can be briefly categorized as: maximization and minimization, false-evidence ploy and other forms of deception (most notably not objected to in Frazier v. Cupp).

When dealing with a case that involves confessions, it is important to know the different types of false confessions and how they are induced. This paper classifies them into three types (drawing on an earlier taxonomy by Kassin): voluntary, coerced-compliant, and coerced-internalized.

Voluntary false confessions

This is where the subject intentionally confesses to a crime he did not commit. The reasons are varied: notoriety, a breakdown in reality monitoring and most frequently to protect the real perpetrator.

Compliant false confessions

These are the types of false confessions one most frequently associates with this concept. Think of it as acquiescing to the color of authority. This is the kind of false confession that also poses the greatest problem for both defense attorneys and jurors. The prevalent thinking is that one would never confess to a crime they did not commit, no matter how persuasive the interrogator and thus if there is a confession, it must be true. Yet the psychology of the human mind stands at odds with this assumption.

Demonstrating the form of influence observed in classic studies of social influence (e.g., Asch, 1956; Milgram, 1974), this type of confession is an act of mere public compliance by a suspect who knows that he or she is innocent but bows to social pressure, often coming to believe that the short-term benefits of confession relative to denial outweigh the long-term costs. Based on a review of a number of cases, Gudjonsson (2003) identified some very specific incentives for this type of compliance—such as being allowed to sleep, eat, make a phone call, go home, or, in the case of drug addicts, feed a drug habit. The desire to bring the interview to an end and avoid additional confinement may be particularly pressing for people who are young, desperate, socially dependent, or phobic of being locked up in a police station. The pages of legal history are filled with stories of compliant false confessions.

Internalized false confessions

This is third type, where not only does the suspect confess, but also starts to believe that he or she has actually committed the crime in question.

So what causes people to falsely confess? As I mentioned above, it seems incongruous to you and me that a person who knows that he is innocent would nevertheless confess to a crime. The answer begins with basic human psychology: we are highly responsive to reinforcement and subject to the laws of conditioning and of course our behavior is influenced by our perceptions of short-term rather than long-term consequences.

A voluminous body of research has shown that people make choices that they think will maximize their well-being given the constraints they face, making the best of the situation they are in—what Herrnstein has called the ‘‘matching law’’ (Herrnstein, Rachlin, & Laibson, 1997). With respect to a suspect’s response to interrogation, studies on the discounting of rewards and costs show that people tend to be impulsive in their orientation, preferring outcomes that are immediate rather than delayed, with delayed outcomes depreciating over time in their subjective value (Rachlin, 2000).

In addition to the intrinsic factors of human psychology that lead to false confessions, one must also be on the lookout for the external circumstances that can result in these confessions. Kassin breaks them down into two parts, each with subparts: the situational risk factors and the dispositional risk factors.

Situational risk factors include interrogation time, false evidence and minimization. Interrogation time, obviously, is the length of time that a suspect is interrogated. Some fun facts: the average interrogation lasts anywhere from 30 minutes to 2 hours. Interestingly in a 2004 study of 125 proven false confessions,

in cases in which interrogation time was recorded, that 34% lasted 6– 12 hours, that 39% lasted 12–24 hours, and that the mean was 16.3 hours.

When you get into those kinds of numbers, it’s easy to see why one should heed the red flags. Sleep deprivation can lead people to do – and say – almost anything.

False evidence

Once the interrogation has begun, the interrogator will try to convey to the suspect that resistance is futile. Basic psychology tells us that once people see an outcome as inevitable, cognitive and motivational forces conspire to lead people to accept, comply with and even endorse the outcome. Over the years, across a range of subdisciplines, basic research has revealed that misinformation renders people vulnerable to manipulation.

The forensic literature on confessions reinforces and extends this classic point, indicating that presentations of false evidence can lead people to confess to crimes they did not commit

…

That this tactic appears in proven false confession cases makes sense. In self-report studies, actual suspects state that the reason they confessed is that they perceived themselves to be trapped by the weight of evidence (Gudjonsson & Sigurdsson, 1999; Moston, Stephenson, & Williamson, 1992).

Here’s an example via a study conducted by Kassin:

In one study, Kassin and Kiechel (1996) accused college students typing on a keyboard of causing the computer to crash by pressing a key they were instructed to avoid. Despite their innocence and initial denials, subjects were asked to sign a confession. In some sessions but not others, a confederate said she witnessed the subject hit the forbidden key. This false evidence nearly doubled the number of students who signed a written confession, from 48 to 94%.

The most famous real-life example of such a confession is that of Marty Tankleff.

Minimization

The final situational risk factor is one we’ve all seen during interrogations: the officer convinces the suspect that confessing is in his best interest. That he is the suspect’s friend and that he can help him if he just confesses; that the judge and prosecutor will understand why he committed the crime, etc. The ultimately exonerated defendants in the Central Park jogger rape case reported feeling that they would be allowed to go home if they just confessed to the crime. Two core psychological phenomena underlie this factor: us being susceptible to reinforcement and and our eschewing long-term consequences in favor of short-term benefits.

Taken together, basic research showing that people are highly influenced by perceived reinforcements and that people process the pragmatic implications of a communication suggests the possibility that suspects infer leniency in treatment from minimizing remarks that depict the crime as spontaneous, accidental, pressured by others, or otherwise excusable—even in the absence of an explicit promise.

Dispositional risk factors are those that are defendant specific, such as the age and maturity level, the mental and cognitive abilities of a particular defendant and whether the defendant suffers from any psychological disorders. You can easily imagine how any of these (or all) would play a significant role in inducing false confessions.

Interestingly, this paper notes another new and perhaps surprising risk factor: innocence. Yes, it does seem counter intuitive, but apparently recent studies have shown that innocence is a factor that can lead people to falsely confess. This is the “I did nothing wrong, I have nothing to hide” problem which leads innocent people to waive the rights and speak with police, subjecting themselves to the coercive interrogation techniques.

The[...] findings suggest that people have a naive faith in the power of innocence to set them free. This phenomenology was evident in the classic case of Peter Reilly, an 18-year-old who falsely confessed to the murder of his mother. When asked years later why he did not invoke his Miranda rights, Reilly said, ‘‘My state of mind was that I hadn’t done anything wrong and I felt that only a criminal really needed an attorney, and this was all going to come out in the wash’’ (Connery, 1996, p. 93).

The consequences of false confessions are pretty obvious, starting with police inaction. Once the police obtain a confession from someone they already strongly believe to the be the culprit, they close the investigation, don’t follow up on other leads and ignore exculpatory evidence even if the confession is internally inconsistent, contradicted by external evidence, or the product of coercive interrogation. This, the studies seem to show, spill over onto prosecutors as well, who refuse to accept the idea of false confessions.

But there’s another consequence that is even more troubling for you and I. And that is the effect that a confession has on people’s perception of the remainder of the evidence even when told that the confession was coercively obtained and false! The results of studies in this area are extremely frightening and must be given a lot of though going forward:

In a second study, Hasel and Kassin (2009) staged a theft and took photographic identification decisions from a large number of eyewitnesses who were present. One week later, individual witnesses were told that the person they had identified denied guilt, or that he confessed, or that a specific other lineup member confessed. Influenced by this information, many witnesses went on to change their identification decisions, selecting the confessor with confidence, when given the opportunity to do so.

Mock jury studies show essentially the same results. The fact of a confession may be the single most powerful piece of evidence introduced in a trial to begin with. We learn that people (jurors) may not even fully discount the confession if told that it was coerced (going back to the “why would anyone confess if they didn’t do it, so there must be some reliability or some morsel of truth in it” problem).

For example, Kassin and Sukel (1997) presented mock jurors with one of three versions of a murder trial transcript. In a low-pressure version, the defendant was said to have confessed to police immediately upon questioning. In a high-pressure version, participants read that the suspect was in pain and interrogated aggressively by a detective who waved his gun in a menacing manner. A control version contained no confession in evidence. Presented with the high-pressure confession, participants appeared to respond in the legally prescribed manner. They judged the statement to be involuntary and said it did not influence their decisions. Yet when it came to the all-important verdict measure, this confession significantly increased the conviction rate. This increase occurred even in a condition in which subjects were specifically admonished to disregard confessions they found to be coerced.

There are several reasons for this – three, primarily:

that people still have a hard time believing that even coercive techniques result in false confessions because they are more likely to take behavior at face value than to account for situational factors;
that people are terrible at deception detection: both cops and laypeople exhibit accuracy rates that range between 42 and 64% – no better than chance.
that confessions often include content cues presumed to be associated with truthfulness.

As Kassin concludes: Uninformed, however, this spectator mistakes illusion for reality, not realizing that the taped confession is scripted by the police theory of the case, rehearsed during hours of unrecorded questioning, directed by the questioner, and ultimately enacted on paper, tape, or camera by the suspect.

So what is the solution? How do we prevent false confessions from occurring, from being entered into evidence and from jurors continuing to be deceived by them? The single most important reform is videotaping of all custodial interrogations (which I’ve argued for before). Videotaping not only permits an entirely accurate record of everything to be maintained, it permits the jury to see how the confession was obtained, not just the content of the confession itself. It also deters interrogators from using the most blatant and obvious methods of coercion.

While initially meeting with resistance, the police departments whose jurisdictions have adopted videotaping are now strongly in support of it:

Among the collateral benefits they often cited were that recording permitted detectives to focus on the suspect rather than take copious notes, increased accountability, provided an instant replay of the suspect’s statement that sometimes revealed incriminating comments that were initially overlooked, reduced the amount of time detectives spent in court defending their interrogation practices, and increased public trust in law enforcement.

In addition to the videotaping of interrogations, Kassin proposes several others reforms in the method of interrogations: limiting the time of such interrogations, a ban on fabricated evidence but not false assertions (as a compromise), moving from a “confession” model to a “fact finding” model of interviewing suspects and eliminating the use of legal consequence minimization in interrogations.

But the bulwark against false confessions remains the recording of interrogations. While most states do not require the videotaping (only 2 do), several others have lately indicated that such videotaping would be a good idea. In addition to Alaska (Stephan v. State, 1985) and Minnesota (State v. Scales, 1994), seven additional jurisdictions—Illinois, Maine, New Mexico, New Jersey, Wisconsin, North Carolina, and the District of Columbia— have joined in requiring recordings of custodial interrogations in some circumstances (Robertson, 2007; Sullivan, 2004). In several other states, supreme courts have stopped short of requiring recording but either have issued strongly worded opinions endorsing recording—e.g., New Hampshire (State v. Barnett, 2002) and Iowa (State v. Hajtic, 2007)—or, in the case of Massachusetts, held that where law enforcement officers have no excuse for the failure to record interrogation, defendants are entitled to a strongly worded instruction admonishing jurors to treat unrecorded confessions with caution (Commonwealth v. DiGiambattista, 2004).

In Connecticut, however, there is no such requirement. Our Supreme Court recently heard oral argument in State v. Julian Lockhart, in which it is being asked to hold that videotaping interrogations is required under the State constitution. I’m not holding my breath.

In the meantime, however, I strongly urge you to read the entire paper by Kassin and every time you have a case that involves a confession, look closely for the presence of these risk factors. I might even go so far as to say that one should make it a practice to consult with an expert in cases involving confessions.

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false confessions

Preempting peremptories

Dec 29th

Posted by Gideon in criminal law principles

No comments

As I’ve noted before, there are times when I’m staring at a story, thinking about writing a post, when a few days later I come across something else that ties in nicely with the first. I have now concluded this is because of my unusually high midi-chlorian count and the Force is speaking to me.

Nevertheless, a few days ago, I noticed this news article from Mass that reported that the Mass Bar Ass’n is forming a task force (yeah, one of those) to examine the use and efficacy of peremptory challenges:

Chairing the task force is Richard P. Campbell, a bar association vice president and the founder and chairman of Campbell, Campbell, Edwards & Conroy in Boston.

Campbell, [...], said some members of the Trial and Appeals courts and even academics, such as law professors, are questioning the usefulness and relevance of the peremptory challenges.

Right on cue, I stumble across this new academic paper titled “Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts”, which argues essentially that peremptory challenges are useless and states should eliminate them. From the summary:

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Peremptory challenges systematically shift jurors toward the majority view of the population by favoring median jurors over extreme jurors. If the population of potential jurors is skewed in favor of conviction – as empirical evidence suggests is usually the case – then peremptory challenges have the unexpected result of making convictions more likely, rather than promoting reasoned deliberation without prejudice to the result. This is troubling when jurisdictions almost universally award more peremptory challenges in trials involving the most serious crimes. And this effect is magnified when attorneys have more complete information about jurors, suggesting the problem may become worse in the future.

Moreover, juries selected with more peremptory challenges become more ideologically and demographically homogenous, even when attorneys do not engage in discrimination, reducing the accuracy of jury verdicts. Although this second effect has been seen empirically, the results of the models suggest that it is an inevitable result of the peremptory challenge process rather than an effect of discrimination by attorneys.

Naturally intrigued, I began reading the paper in earnest. I had to pause, however, when the author listed the two forms of jury selection: sequential selection (aka strike and replace or jury-box) and the struck-jury method. In that, there is also variance because the methods can be ordered or unordered. I paused because we don’t do either of those here in Connecticut. We, of course, have individual voir dire. Which means we question each juror individually, alone, outside the presence of other potential venirepersons. [See these posts for a previous conversation about the merits and demerits of the various systems as told by, you know, real lawyers.]

The paper talks about the mathematics of selecting jurors in those two methods: do you compare the one venireperson to the known panel in the case of the struck-jury method or do you compare the ones in front of you to the randomly selected ones who might come after? Besides, in most states, jury selection is rather quick and with limited questioning by the attorneys.

In a sense, in CT, we also play the game of comparing the one juror with the unknown jurors to follow, but we have the luxury of spending as much time as necessary with an individual and making a determination of whether we want that particular person regardless of who else might be out there. Frankly, I can’t remember the last time during jury selection that I either used all my challenges or found myself scanning the list of those yet to come to see if I wanted anyone in particular.

The paper also makes some extravagant claims (supposedly backed by data) that show the more homogenous juries are more likely to be skewed toward conviction. I don’t know if that’s true or not, but the one statement I agree with in the paper is that most peremptory challenges are basically guesses made by lawyers.

There’s no such thing as a sure thing in selecting jurors: it is an art, not a science. When we excuse jurors we do it based on gut – a “feeling” that we got. We may have gotten in completely wrong, just as we do when we select someone, from time to time.

Despite my decided lack of interest in this paper, I’m writing about it because it may be useful to others. Let me know if you read it and found it thought-provoking.

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Polluting the jury pool

Dec 16th

Posted by Gideon in criminal law principles

4 comments

In today’s hyper connected world of 24 hours news and in-your-face social media that tweets breaking information before you have time to read it, one of the great concerns among legal professionals is keeping the jury pool free from pollution. As information is more widely and easily available, more and more people are becoming intimately aware of details of even routine criminal cases in their towns.

This presents an added challenge in weeding out those potential jurors who’ve already heard about a case and who might have made up their minds about the guilt or innocence of a defendant. The core right, of course, is the right to trial by an impartial jury.

But there’s another concern, one that not many pay attention to or can do much about: and that’s the post-verdict informational session usually conducted between the judge and the jury. This has happened after every trial to verdict I’ve been a part of: the judge slips into the jury deliberation room, chats with the civic minded people who’ve just discharged their important duty and proceeds to give them the dirty details of the case (and occasionally to answer questions).

Invariably, this discussion comes around to the defendant. And when discussing defendants, there’s nothing juicier than discussing a defendant’s criminal history. The jurors, besotted by curiosity, may ask questions about the defendant – to know what kind of person the defendant is: has he done this before? Does he have a record?

Some judges may choose to ignore such questions and some may not. Some public defender wrote in to the Legal Ethics Forum to ask that very question: what do you do with a judge who reveals the defendant’s criminal history to jurors post-verdict?

This past summer I tried a criminal case in federal court. After the guilty verdict but before the jurors were dismissed, the district court judge told them about my client’s prior bad acts. I would like to write an article and argue that this is wrong because it damages the future jury pool. If it cannot be done in Texas state courts, why should the federal courts be any different? Could you tell me of any articles or periodicals dealing with this issue?

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

I don’t know of any articles on this issue, but I do have some thoughts (surprised?). This is definitely something to be concerned about, but realistically we may be powerless to stop it.

A friend of a friend told me the story of a potential juror during voir dire a few years ago who was the lucky recipient of this “extra” information post-verdict in a trial for which she was a juror a long time ago. During this current voir dire, the story goes, she expressed her reservations about the criminal justice system because of that very fact: that she may not have all the information she’d like. “We found out later that the defendant had a lengthy record for this kind of thing”, she said. “If we’d known about it during the trial…” and her voice trailed off.

We can all finish her sentence, can’t we? “…we’d have convicted with much less deliberation.” There was a certain distrust in her voice, I’m told, about the system and of the defendant. This juror had been contaminated. How could she ever believe the defense? What were they hiding? Was the defendant a really bad guy? There’s no way she’d acquit, is there?

Telling the jury the behind-the-scenes operation of a trial is problematic, in my opinion. There’s a reason why some prior convictions aren’t introduced into evidence: primarily to avoid that very reaction. “Once a criminal, always a criminal” is a sentiment we strive very hard to avoid (unless, of course, you’re a sex offender, in which case, God help you. And even then…). It’s easy to think that once a trial is over, we can conspiratorially reveal the “secrets” of the trial to the jurors, like some piece of gossip we were just dying to reveal.

Doing this places an inordinate amount of importance on the fact of such prior convictions and elevates its function in the equation of guilt or innocence – which is to say it gives prior convictions any place in that equation, where it should have none.

That juror may have already discharged her service for that trial, but just as surely as the Sun rises in the East, she will be called for jury duty again and now, she will no longer be an acceptable juror for any criminal trial.

If that isn’t polluting the jury pool, I don’t know what is. And there’s not a damn thing we can do about it.

Bonus: On a related note, see this amusing story of a judge who served as a juror in the trial of a defendant over whose previous trial on identical charges he had presided. What a clusterf*ck of a sentence.

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The fallacy of the good-hearted informant

Dec 2nd

Posted by Gideon in confessions

3 comments

An all too common scene in trials when a jailhouse snitch testifies is the elaborate song and dance performed by said snitch and the prosecutor to convince everyone (a bit too loudly) that there is no quid pro quo.

“Did you talk to anyone from the prosecutor’s office before coming forward with [insert damning piece of evidence]?”

“No, of course not.”

“Did anyone from the prosecutor’s office promise you anything in exchange for your testimony?”

“Not a damn thing.”

“Have you been told you’d get a reduction in your sentence for co-operating truthfully?”

“I wish I had, but no one has been so kind.”

“Is everything you’ve said been the truth?”

“Do I look like a liar?”

“So why did you come to us with this information?”

“Out of the goodness of my heart.”

That is what I shall henceforth call “the fallacy of the good-hearted informant”. You can picture it now, can’t you? The prosecutor winking, the informant nodding, the defendant eye-rolling, the judge snickering. The jury? Well, that’s the important question.

Does a jury buy this? Does anyone seriously believe that an inmate would testify without any expectation of a reward? Is there any inmate foolish enough to testify without an expectation?

Consider this: information is power in the criminal justice system. Not the truth. Information. When an inmate obtains information, there is but one thought on his mind: how do I use this to my advantage? How do I translate this into a lower sentence?

Sure, the prosecutor and the inmate may never actually utter the words “sentence modification”, but it is an unwritten understanding. That’s part of the game. The State knows it, the inmate knows it. If he cooperates, he will get some consideration. No one wants to be in jail, whether it is for 6 months or 60 years, and any little advantage that can be obtained, will be used. And the State has an incentive to offer modifications, too. If they really do stiff an informant and don’t reduce his sentence, the next guy will hear about it and will be more hesitant to come forward.

Confession is king and a confession to someone who is not law enforcement is even better. So you can bet every penny left in your 401K that three weeks after a conviction in this hypothetical trial, a motion for modification of sentence will be filed and the sentence of the informant will be reduced.

A chilling confession to a heinous crime is worth its weight in years. So, the next time you’re a juror in a criminal case and an informant testifies that he has no expectation of a reduction in his sentence, join the defendant in rolling your eyes and then tell the rest of the panel that he’s full of it during deliberations.

As for the defense attorneys (and in an effort to make this post more than just stating the obvious), what tricks do you find work best in countering this charade? Maybe someone should start keeping track of every time an informant has received a reduction in his/her sentence after testifying in a particular courthouse or with the blessings of a particular prosecutor’s office.

[For more posts on other fallacies and legal fictions, click here.]

I’d probably run

Oct 18th

Posted by Gideon in clients

2 comments

Over the last three months or so, I’ve twice had the experience of riding the elevator with a client. There’s nothing out of the ordinary about riding the elevator with the client, but these two particular times, the proverbial bell was tolling. Both times we were on our way to find out the verdict of a jury of my client’s peers.

Both times, I looked over and stared at the face of a man who had placed his faith in me and in the justice system. Some might call that foolish (I might be one of them) and some might call that rolling the dice. Both times, though, I couldn’t imagine what it felt like to be him.

As any regular readers left out there know, I consider myself able to empathize with the plight of our clients, to have some insight into their world and their though processes. But this…this was a foreign emotion to me. One that I could not duplicate in my own mind.

How, I asked myself, did they have the courage to step off that elevator and into that courtroom, knowing full well that they may never walk out again into those hallways and out those doors?

Maybe my experience with the system is a curse in this regard. I’d never, never (well okay, almost never) risk a jury trial. I’ve come to the conclusion that jury trials are a crapshoot. That you’re always taking an immense risk placing your fate in the hands of 6 (or 12) strangers, who might have their own agenda and their own skewed view of the evidence. That you’re placing your fate in the hands of your lawyer, who may – with the best of intentions – pick the wrong approach to convince your jury.

Everyone knows what the consequences are of going to trial and losing. It’s called the trial tax for a reason.

I’m more convinced than ever that I’d never take that risk. That I’d probably plead to something I didn’t do to spare myself the agony of the Russian roulette that is a jury trial.

I’m sure there are many more like me. Which means there are many, many more innocent people in jail than we currently estimate.

More than anything else, though, those two moments emphasized to me the awesome responsibility we have and the seriousness with which we have to execute our duties. We can get jaded after a while, but we all need to remember that simply by representing someone we are shouldering an awesome burden: the faith of another individual and the delicate fate of their freedom and liberty. This not only means that we have to zealously advocate for them, but to them as well.

I don’t think I’d have the gumption to step off that elevator to hear a jury’s verdict. I’d probably run.

Who is this guy!?!?

Mar 24th

Posted by Gideon in juries

No comments

“Who is this guy?”, an experienced trial attorney recently confided in me, is one of the essences of jury selection and the best we can hope to do. Prospective jurors are faced with a pretty intimidating (and boring) day. “What do you think of the presumption of innocence?” “Do you need to hear both sides of the story?” “Are you racist?” “Have you ever been the victim of a crime?”

They’re subjected to intensely personal questions and constantly asked “tell me more about that”. They’re expected to bare their souls to 3-5 complete strangers, all in a 45 minute span. No one even buys them dinner or drinks first.

Most people in a jury panel aren’t stupid these days, either. They know the drill; they’ve been around. Either they themselves or someone they know has been called to jury duty. They’ve seen enough TV shows and news reports to know the drill. Whether they admit it or not, they know what the correct answers are.

Which makes answering the question so much more difficult. No one wants to seem prejudiced or bigoted in public, in front of complete strangers. This is why, I believe, in a number of cases “rehabilitation” of jurors is a crock of shit. The cat’s out of the bag and now everyone’s trying desperately to shove it back in.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Well, of course, if the judge told me that I couldn’t harbor any bias toward cops, I’d be able to follow the instructions. Very few people are going to admit that they don’t have the sense (or simply don’t care enough) to even pretend to try.

And maybe that’s all we can hope for. That they’ll try. They’ll try not to prejudge the defendant. They’ll try to put their biases aside. They’ll try not to let their first impression color their verdict. In return, we’ll try to pick as many honest triers as we can.

Because voir dire is the only shot we’ll get at figuring out who that guy is. Is he “fair and impartial”? Does he think he is? Does he understand that life isn’t black and white or just say that he understands? And, perhaps more importantly, why is he who he is?

I’m going to sidetrack here: I often stare at complete strangers on the road. Maybe there’s an older gentleman sitting in the car next to mine at a red light. I look at him and I wonder: how did he get here, at this light, sitting in the car next to me. What has he been through? This 6 foot mass of sinew and bone and nerve and blood is the embodiment of this man’s life. Maybe a book could be written about him, with black and white pictures in the beginning, a fresh faced young child playing with the water from sprinklers, then more text with faded yellow pictures, then some faded color pictures, maybe a wedding or two and children and grandchildren. All inevitably leading to the car next to mine.

Or the courtroom. And somewhere on that journey to that courtroom, something happened that caused him to answer a question a certain way. Is it possible to figure out what that event was and to understand it and its progeny? Is it possible to get a glimpse of the inner operations of another human’s mind in 40 minutes and then make a judgment call as to whether that person is one of the 6 or 12 who will decide the fate of another?

They say Connecticut is the slowest jurisdiction in terms of picking juries. I say maybe not slow enough.

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Lie to me: Why thank you, I already am

Feb 18th

Posted by Gideon in juries

5 comments

As if CSI wasn’t enough, lawyers now have another TV show to deal with when it comes to jurors and their ability to make credibility assessments. A new show, starring the inimitible Tim Roth, Lie to Me, purports to bring to the fore the “science” of lie detection through observation. The show does this in rather cheesy ways (the cheesy way that would look good on “Psych”, but not befitting a slick network production), by “highlighting” or zooming in on the subject’s facial tics. This gives Roth (and the viewer) a clue that the subject is acting in a not-so-truthful manner.

The show itself is based on four decades of research by Paul Ekman of the University of California. He serves as a consultant to the show. Ekman has been researching body language and the art (or is it science) of lie detection for a long time, copiously compiling data after research study after research study.

His finding? It doesn’t work. You can’t do it.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Two jurors sitting in a tree, K-I-S-S-I-N-G

Dec 22nd

Posted by Gideon in habeas

12 comments

Okay so it wasn’t so much a tree as it was a hotel room and they weren’t kissing but rather “doin’ it”. Apparently, during the trial of Roberto Dunn, two jurors were “deliberating each other” (euphemisms solely mine) and two deputies who were charged with guarding the jurors were also “taking sexual liberties” (that’s a quote).

The strange part of the story is that this trial was in 2000 and the allegations were made by a fellow juror in a letter sent to the judge shortly after the trial. Dunn’s lawyers allegedly put the under seal and “didn’t do enough” to get a new trial. Now, Dunn’s new lawyer is seeking a new trial for him.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

Dunn was originally charged with a capital felony, which makes these allegations all the more troubling (although he was eventually convicted of second degree murder).

Lisa Stroup, an assistant public defender now on the case, said the trial attorneys should have called the jurors as witnesses and quizzed them about the claims. That’s what Stroup is doing now.

Earlier this month, [Judge] Bush heard testimony from the letter writer, Jennifer Thompson. Other witnesses will be called Jan. 9, when the hearing continues.

…

In her letter, Thompson accused two jurors of having sex with each other during two evenings at a hotel where the panel stayed. She said jurors believed the two sheriff’s deputies assigned to the case were having sex with each other while on duty at the hotel.

“Acts of sex and insubordination were scandalous and unspeakable …” Thompson wrote. She testified in the recent hearing that she heard sexual noises coming from the next hotel room.

Seems like the new proceedings are state habeas corpus proceedings, in which the allegations are ineffective assistance of counsel. In addition to the sexual allegations, there were other improprieties as well. A sheriff’s deputy overheard some jurors commencing deliberations prior to the close of evidence. They were questioned briefly but allowed to stay on the same panel. The appellate court, in reviewing the conviction, blamed the trial attorneys:

The Missouri Court of Appeals upheld the conviction. Court documents say Dunn’s original attorneys declined when given the opportunity to present additional evidence of juror misconduct.

“Because defendant failed to establish that misconduct occurred, the state was not required to show that the jurors were not improperly influenced,” the appeals court decision says.

Dunn is lucky that the appellate court left the door open in this fashion. To see such a comment in a decision in a capital case would be a source of embarassment to the capital attorneys I know. How can one represent a defendant in a death case and not push as hard as possible for a mistrial when evidence of juror misconduct surfaces is beyond me.

Whether it is okay for jurors to have sex during deliberations, in a capital case no less, is probably not a question that courts have wrestled with frequently. But what is disappointing (and troublesome) is that this question may finally be answered 8 years after it should have been.

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Undercover mother: exposing a juror’s lies

Nov 29th

Posted by Gideon in juries

3 comments

undercover mother

When John Giuca was convicted of murder in 2005 and sentenced to 25 years in prison, his mother was unconvinced. The evidence was weak, perhaps politically motivated and she was sure her son was getting railroaded. So he did what every mother would do: she went undercover.

Ms. [Doreen] Giuliano is the mother of John Giuca, a Brooklyn man who was convicted three years ago along with another man in the 2003 killing of Mark Fisher, a college student from New Jersey who was found beaten and shot five times after a night out in New York City. Ms. Giuliano claims her son is innocent and has mounted an unstinting campaign to free him from prison

She recently gave an interview to Vanity Fair, describing the last two years of her life and “the sting” that she performed to bring down one of the jurors in her son’s trial.

It went like this for a long time, Doreen in a daze, doing what needed to be done and feeling hopeless. Then, one day in early 2006, Doreen awoke from her stupor. The jurors, she told herself. Find something on the jurors. It was a desperate thought. She’d watched television cop shows: if you prove a juror engaged in misconduct, it could overturn the case. She obtained the jury sheet, which listed the names and neighborhoods of the jurors. She got her hands on a transcript of the voir dire, the pre-trial review of potential jurors’ fitness to serve on a case. She even managed, through a contact, to come up with a list of some of the jurors’ addresses.

She started trailing jurors, finding out where they lived or work, tried to get close to them.

WHAT THE HELL IS THIS? SHOW ME THE REST OF THE POST!

The first two were duds. Then she happened upon Jason Allo, who, she remembered, seemed familiar to a family friend during the trial. After tracking him for a few months, like the others, she decided to take the plunge and go head in:

“Enough,” she told herself. “I have to move on this guy.” First, she needed to transform her appearance, because Allo might recognize her from the courtroom or from her days tracking him. She went to a tanning salon, got much too dark for her Irish skin. She worked out at a gym, rode her bicycle everywhere she went. She gathered a new wardrobe. “Sexy clothes only,” she says. Short-shorts, tight blouses, push-up bras. She dyed her hair gilded blond.

She went to an espionage-supply store in Manhattan and bought the most expensive kind of hidden recording device she could find. She created a fake ID, set up a fake cell-phone account, rented an apartment

Then she became friendly with Jason, smoking weed with him, flirting with him, getting him drunk and cooking him meals. During all their interactions, she recorded everything he said.

In order to get him to talk, she claimed to be involved with Brooklyn Law School’s Second Look Program (which is real). Slowly but surely, he opened up. He told her he was a juror in a high-profile trial: a murder. He told her that he was the first to decide that Giuca was guilty, and most importantly, that he shouldn’t have been on the jury to begin with:

“I’ll tell you this, but I’d never tell anybody else,” Allo said…“I had some type of information [about the case],” he continued, later adding that he “used to hang out with these guys, not these two exactly. But, like, the clique. I know them since high school.”

“Technically, by law, I shouldn’t have even been in that jury,” Allo said. “Because they ask you in the beginning when you go to jury duty, they read you a list of all the witnesses.… And if you know or are affiliated with these people in any way you have to let them know.” And Allo hadn’t.

In addition, according to Doreen’s affidavit, which attorney Epstein has prepared to file in court, Allo also admitted on tape that he used to hang with members of the Ghetto Mafia (the gang prosecutors contend Giuca belonged to), that Allo’s cousin had dated a woman whose family’s house was used for Ghetto Mafia meetings, and that during the trial this cousin and Allo discussed events related to the case, referring to Giuca as a gang big shot named Slim. “It virtually demands a reversal of the conviction,” says Ezra B. Glaser, a legal adviser to Doreen. “There are New York State and U.S. Supreme Court precedents. He [Allo] knew what he did was improper.”

The standard for getting a new trial based on juror misconduct is clear, but tough. Whether the evidence that Giuca’s defense has now presented meets that standard remains to be seen, but one thing is clear: the criminal justice system should not tolerate convictions where juries consist of people who lie to get on the jury and have affiliations with witnesses.

Giuca may or may not be guilty, but his conviction has now been tainted.

On a side note, there’s this gem in the Vanity Fair article:

Neither Russo [the co-conspirator] nor Giuca gave evidence or testified against the other, behavior indicative of extreme loyalty, ignorance of the events—despite their proximity to the murder—or gang members’ code of silence.

This is just irresponsible reporting. But then again it’s Vanity Fair, so I don’t know if I should be surprised. There’s a more important reason why neither one of them testified or “snitched”: the Constitution. They don’t have to and that cannot be held against them. The burden of proof lies with the State. Learn it, Vanity Fair.

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juries

Good enough for government work

The defendant’s right to trial by jury

Individual Skill-ing

Further thoughts on ISVD

Cumbersome bloviating misrepresents

12 really angry men

The fruit of the poisonous confession

Preempting peremptories

Polluting the jury pool

The fallacy of the good-hearted informant

I’d probably run

Who is this guy!?!?

Lie to me: Why thank you, I already am

Two jurors sitting in a tree, K-I-S-S-I-N-G

Undercover mother: exposing a juror’s lies

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