A questioning jury

Every thinking criminal defense lawyer is, at some point every year, occupied with the idea of improving the jury trial process. Having readily concluded that the lawyer himself is not to blame and is at the peak of his abilities, the focus naturally turns to the only laymen in the room: the jurors. For once, though, the lawyer’s narcissism isn’t misplaced. The jury is, most often, the ultimate arbiter of whatever it is at dispute. Having spent thousands of hours ranting on this blog about how the system is flawed and how jurors are like black boxes and you should ELI5, I can’t pass up the opportunity to comment on something unusual that’s occurring in a high profile trial in Arizona.

Jodi Arias is someone who’s accused of doing something and for some reason the trial is getting a lot of publicity. The interesting thing, from my perspective, is the fact that Arizona seems to be a state that permits juror questioning of witnesses during criminal trials. And so Ms. Arias has spent the last few days answering over 100 questions from the jurors in her case. Much to her supposed dismay, the questions in her case seem to indicate that the jury thinks she’s full of shit.

There’s no doubt in my mind that our system is imperfect and even the jury trial itself could use improvement, but whether jurors should be permitted to ask questions of witnesses at all is a very interesting question that I’ve neglected in the past. I’ve written about proposals permitting questions, among others, and of a proposal to permit Q&A during closing arguments (which I still think is a fabulous idea), but the idea that jurors will get to ask questions of my defendant sends a shiver or two down my spine.

The initial knee-jerk negative reaction stems from the fear of losing control, as evidenced by what’s happening with Arias. Losing control of the defense and perhaps undoing some of the work done to that point and also losing control of the trial itself when jurors ask absurd questions designed solely to disclose their displeasure or incredulity.

On the other hand, the allure of knowing just what the jury is thinking and being given a limited opportunity to address or reinforce their doubts is far too tempting. I’d always want to know, rather than not. I’m the lawyer who hangs out in the courtroom after a verdict so I can talk to jurors, because I want to know why they voted one way or another, so I can learn and put it to good use next time. But that’s merely educational. Wouldn’t it be great to know what they’re thinking while the trial is going on?

This excellent article in The Jury Expert argues just that: that lawyers needs to get over their fear (and indeed they do once they’ve gone through a trial with juror question) and embrace the positives (see also the ABA’s 19 principles to improve jury practice [PDF]). Surprisingly, there is some clinical research on the impact that permitting jurors to ask questions has on trials:

Larry Heuer and Steven Penrod examined the impact of allowing jurors to take notes and ask questions in both civil and criminal trials through two experiments, one conducted in Wisconsin state courts, and the other involving both state and federal courts in 33 states. […] They found that when jurors were allowed to ask questions, jurors felt more informed about the evidence, thought the questioning of witnesses had been thorough, and were more confident they had sufficient information to reach a verdict.

According to judges and attorneys jurors did not ask inappropriate questions, and jurors did not report being embarrassed or angry when their questions were objected to. They also found that jurors did not draw inappropriate inferences from unanswered questions. Jurors remained neutral, rather than becoming advocates, when they were allowed to ask questions, and did not rely more heavily on the answers to their own questions than the rest of the trial evidence. However, jurors, attorneys, and judges did not report increased satisfaction with the trial or verdict when jurors were able to ask questions compared to when they were not.

Attorneys in the study reported that their greatest fears regarding juror questions were not realized: information they deliberately omitted was not brought up, questions did not interfere with their trial strategy or cause them to lose command of their case, nor did they prejudice their client. After the trial, both judges and attorneys in cases where jurors were allowed to ask questions said they were more in favor of allowing jurors to ask questions than did those judges and attorneys on trials where juror questions were not permitted.

Of course, this is not a practice that should be wantonly permitted: there have to regulations on instructions, objections and what, exactly, is the standard that would permit a question to be asked. Do both parties need to consent? These are questions about implementation, not the wisdom of the practice itself.

The idea scares me because I think of the frustration mid-trial when I learn that the jury may be leaning toward convicting my client. But that eventuality exists whether I am aware of it or not. And if I am aware, I may be able to do something about it. In this instance, it might be better to kill Schroedinger’s cat.

Surprisingly, it seems Connecticut may already permit juror questions. See Spitzer v. Haims & Co., 217 Conn. 532 (1991) and see footnote 3 for the jury instruction related to juror questioning. In Spitzer, the CT Supreme Court held:

In examining this issue of first impression in our state, we note that the overwhelming majority of jurisdictions that have considered the issue conclude that, although the practice of juror questions should not be encouraged, it is within the discretion of the trial court to permit such a procedure. The principal risks articulated by the courts are that: (1) counsel may be inhibited from objecting to questions for fear of offending the jurors; People v. McAlister, 167 Cal. App.3d 633, 645, 213 Cal. Rptr. 271 (1985); (2) interruptions by jurors would disrupt courtroom decorum; Sparks v.Daniels, 343 S.W.2d 661, 667-68 (Mo. App. 1961); Superior & Pittsburg Copper Co. v. Tomich, 19 Ariz. 182, 188, 165 P. 1101 (1917); (3) questions asked by the jurors may not be relevant to the issues; State v. Howard, 320 N.C. 718, 725-26, 360 S.E.2d 790 (1987); and (4) asking questions may distort the jurors’ objectivity. People v.McAlister, supra.

In this case, however, the procedure implemented by the trial court operated to avoid most of these risks. The jurors wrote out their questions in the jury room, and the judge and attorneys reviewed them outside the presence of the jury, where the attorneys were allowed to voice their objections. This procedure avoided the risks that an attorney might decline to object for fear of offending the jury and that jurors’ questions would interrupt the court or the attorneys during the trial. Furthermore, the court instructed the jurors at the beginning of the trial that they could not draw any adverse inferences from the fact that a particular question was disallowed. Reviewing and ruling on the questions outside the presence of the jury dispelled any likelihood that an impermissible question would be asked.

For a lengthy list of cases discussing this issue, see footnote 8 of Spitzer. To see if your state permits it, see here. While Spitzer was a civil case, State v. Mejia seems to indicate that the practice would likely be extended to criminal trials as well (approving juror note-taking in criminal trials).

Has anyone out there tried it? I am willing to shed my steady habit for this and take juror questioning for a spin.

See also: Turkewitz’s blog.

Safeword: Get out of my bedroom

One of the questions I deliberately side-stepped while ranting about the fiasco that was the media coverage of the Connecticut Supreme Court’s decision in State v. Fourtin, back in October, was the question of whether people who are disabled and mentally ill can legally have the capacity to consent.

Some of the arguments seemed to indicate that people in the position of the complainant in Fourtin – people with physical and/or mental disabilities – are never able to consent and thus any sexual encounters with them are perforce illegal. I expressed some misgivings at the time and I still do: I think that love and sex are two fundamental aspects of what make us human and just because someone has a mental illness or a physical handicap doesn’t mean that we, as whole and able bodied beings, have the right to legislate away their right to be happy.

And now the CT Supreme Court is back at it again, considering just this issue. In Kortner v. Martise, as best I can tell, the two issues are as follows:

1. Whether the trial court properly let a jury decide whether a woman with mental illnesses could consent to BDSM-type sexual encounters.

2. Whether anyone can consent to BDSM-type sexual encounters.

Essentially what happened is this: there was a woman named Caroline Kortner, who, when she was 24 in 1994 was deemed to be incompetent by a probate court and her mother Mary Kortner was appointed her conservator. Sometime in 2003, she met Martise and the two of them started a relationship that involved BDSM:

the relationship included Martise dragging her daughter by a leash and dog collar, slapping her with his hand and a belt, pinching and twisting body parts, tying and gagging her and dripping burning hot wax on her. [The jury in Stamford ruled there was no proof to the dragging and pinching allegations.]

Some other, more “benign” acts alleged were: slapping her buttocks with his hand and belt during intercourse, dressing her in a crotchless black stocking and cat’s mask (?!), and “repeatedly” showing her pornographic pictures and videos. Mary Kortner was appointed conservator because:

In 1994, a probate court had ruled her incapable of managing her own affairs during a period when she refused to eat.

She had other problems as well:

[She] had been diagnosed with clinical depression, borderline personality disorder, bulimia and anorexia, and she tried to commit suicide twice, according to court documents. She also had a stroke in 2001 that left her partially paralyzed from the waist down and incontinent, court records say.

In 2006, the mother sued Martise, alleging the torts of sexual battery, assault and battery and intentional infliction of emotional harm, seeking $500,000 in damages because she claimed that he had abused her daughter and that because of her daughter’s mental and physical condition, she couldn’t consent to anything. Martise responded that Caroline was an adult woman and could, indeed, consent to sexual activity.

The mother then argued to the judge that because of the conservatorship, Caroline couldn’t legally consent and therefore whether she actually consented was not a question for any jury to determine. The trial court disagreed and let the jury decide whether Caroline had indeed consented. They found that she had and thus, did not render verdict in the mother’s favor. Here [PDF] are the questions posed to the jury and their responses.

[At this juncture, it’s important to note that this was not a criminal trial. I don’t think Martise was charged with a crime. This was a civil trial, a lawsuit filed by the mother against Martise seeking money.]

So this presents an opportunity for an intellectual exercise on the first question and a clear, unequivocal rant on the second question. Can someone be so mentally ill or physically disabled that they cannot, by operation of law, consent to an act? I think the answer has to be yes. There has to be a line at which we say that no consent is knowingly given. But that line, I think, must depend on individual circumstances. And so, by default, the inquiry must be fact-specific.

A jury must determine whether a person with a disability: 1) has, in fact, consented; 2) if they have consented, how intelligent was that consent: in other words, was that consent given with an understanding of the consequences of that consent and a willing participation in the actions that followed that consent.

In that sense, consent given by someone with a mental illness is no different than determining whether someone without a mental illness has consented. The reason, I suspect, why there can’t be a bright line “anyone with mental illness cannot consent” rule is that such a rule would cover well over 70% of the population1 of the United States. It’s got to be on a case-by-case basis. The court may well rule that the conservatorship is a factor to be considered in determining whether the person has the ability to consent and whether consent was actually given, but it won’t be the whole shebang.

As to question number two, which is phrased thusly in the summary: “The plaintiff also argues that, as a matter of public policy, one cannot be deemed to have consented to sexual abuse and degradation.” let me simply say this: get. the. fuck. out. of. my. bedroom.

If I want to whip a consenting adult in my bedroom, it’s none of your damn business. If i want to be tied up and made to squeal like a pig while my lover attaches electrified nipple clamps to my nipples because I like it, I’m going to do it and it’s none of your damn business. If I want to have sex while my lover reads transcripts of my worst moments in court and calls me a public pretender and rules that I provide ineffective assistance of counsel, it’s none of your damn business.

Just because you don’t get off doesn’t mean you get to tell me how I can’t get off. Or you can, but only if I like that sort of thing.


1Not a scientific stat, but based purely on personal experience. You people are fucking nuts.

It can’t happen to me; I’m innocent

From the NYT, a tale of an idiot savant, an impersonation of a model, foolish love and drug smuggling:

[UNC physics professor and theoretical particle physicist] Paul Frampton flew from La Paz to Buenos Aires, crossing the border without incident. He says that he spent the next 40 hours in Ezeiza airport, without sleeping, mainly “doing physics” and checking his e-mail regularly in hopes that an e-ticket to Brussels would arrive. But by the time the ticket materialized, Frampton had gotten a friend to send him a ticket to Raleigh. He had been gone for 15 days and was ready to go home. Because there was always the chance that [Czech model Denise] Milani would come to North Carolina and want her bag, he checked two bags, his and hers, and went to the gate. Soon he heard his name called over the loudspeaker. He thought it must be for an upgrade to first class, but when he arrived at the airline counter, he was greeted by several policemen. Asked to identify his luggage — “That’s my bag,” he said, “the other one’s not my bag, but I checked it in” — he waited while the police tested the contents of a package found in the “Milani” suitcase. Within hours, he was under arrest.


Fidel Schaposnik, a physics professor at the National University of La Plata, which, along with the University of Buenos Aires, had offered Frampton a visiting professorship to help get him released from Devoto while he awaited trial, said of Frampton: “He’s a typical person trained at Oxford. He knows he’s part of an elite and can’t imagine such things would happen to him.” Indeed, Frampton sees academia’s denizens as creative misfits who deserve special protection. “People who are socially inept can nevertheless be the most creative people,” he told me one afternoon on the telephone. “It’s very important that they can’t be fired. This is the genius of tenure.”

The prosecutor in Frampton’s case, Mario Villar — 80 percent of his cases involve drug smuggling — concurred. It is highly improbable, he said, that a person is unaware that he or she is carrying drugs. Frampton acknowledged that this was undoubtedly true — most of the time. Of the other 79 prisoners on his pavilion, he thought none were innocent. “Some people will say they’re innocent, but when I talk to them further, it becomes clear that they were somehow involved. I think people like me are less than 1 percent.”


Maryland court rules sex offender registration cannot be retroactive

Bucking the national trend, Maryland’s Court of Appeals ruled earlier this week [PDF] that requiring an individual to register as a sex offender for a crime committed 12 years before the registry came into existence violates the Maryland Bill of Rights and the ex-post facto clause of the Federal Constitution.

The prohibition against ex post facto laws is rooted in a basic sense of fairness, namely that a person should have “fair warning” of the consequences of his or her actions and that a person should be protected against unjust, oppressive, arbitrary, or vindictive  legislation. See Demby, 390 Md. at 608-09, 890 A.2d at 327 (citations and quotations  omitted) (noting that there are “[t]wo paramount protections” provided by prohibitions  against ex post facto laws; “the assurance that legislative Acts give fair warning of their  effect and permit individuals to rely on their meaning until explicitly changed,” and a  restriction on “governmental power by restraining arbitrary and potentially vindictive  legislation”);

Based on principles of fundamental fairness and the right to fair warning within the  meaning of Article 17, retrospective application of the sex offender registration statute to  Petitioner is unconstitutional.

The whole opinion is quite the read and a great lesson for those interested in how the U.S. Supreme Court has watered down and narrowed the Federal protection against ex-post facto laws, starting with Youngblood and including Smith v. Doe and CT v. Doe.

Connecticut, in turn, through legislation and jurisprudence has taken the opposite view: that sex offender registration is not a punishment and thus cannot violate the ex-post facto clause. State v. Alex Kelly:

The defendant also contends that the trial court further violated the ex post facto clause by imposing a sentence that required him to register as a sex offender in accordance with §§ 54-102r and 54-102s. Those sections, commonly referred to as Megan’s Law, were enacted in 1994 and 1995, respectively, and § 54-102r was amended in 1997. Megan’s Law requires that a sexual offender register with the local chief of police or resident state trooper after establishing residency in the state and notify his or her parole or probation officer whenever he or she changes residence address. In turn, the parole or probation officer is required to notify law enforcement authorities of the change. See General Statutes (Rev. to 1997) § 54-102r (c), as amended by No. 97-183, § 1, of the 1997 Public Acts, and General Statutes (Rev. to 1997) § 54-102s (b). The defendant argues that these provisions are punitive and, therefore, 91*91 the requirement that he register under the statutes violates his constitutional right to be free from the application of ex post facto laws because, at the time he committed the offense, Connecticut did not mandate registration of sex offenders with community law enforcement. We disagree.

Although this court never has specifically addressed the issue, most other state and federal courts have held that registration statutes, similar to our § 54-102r, requiring convicted sex offenders to register with local authorities in the communities in which they reside, are regulatory and not punitive in nature.[35] Those courts have concluded that such regulatory measures do not constitute punishment as proscribed by the ex post facto clause.

There was talk for a long time of sensible sex offender registration reforms in Connecticut, but nothing has happened yet. Maybe it will; maybe it won’t. But I believe it’s time for our courts to revisit this issue.

In Capitalist America, power abuses you

Fellow criminal defense blawger and friend of this blog Rick Horowitz is known for two things: for being an insanely zealous advocate for his clients – especially juveniles – and for being unabashed about his opinions on the state of the system and the abuses therein.

Yesterday, he almost became known for being a victim of those very abuses of power. Rick, you see, wrote a typical Rick post in which he excoriated the “law enforcement” of the Fresno Sheriff’s Department for what he saw as behind-the-scenes puppeteering of a judge that resulted in his client getting screwed. So he wrote something that was offensive; over the line by his own admission, which he has since deleted. We’ve all said stupid things; we’ve all done stupid things, but we (at least the lawyers among us) bask in the warm comfort of the fact that we are lawyers after all, and criminal defense lawyers at that. The worst we’ll get is a longer wait to see our clients. Not Rick:

And then one of them told me it was because of my blog post yesterday. He even specifically referenced the sentence that they found so offensive. “So now you’re a security risk,” I was told.

Because I won’t lie: I did intend to be offensive. What I had experienced — which resulted in yesterday’s post — was offensive. What happens far too often in our courtrooms is offensive. I was very offended, and made offensive statements about what offended me. The Fresno County Sheriff’s Department, however, has proven that I was on the right track. In addition to the above, I went through two more complete searches — basically, every time I left the court, when I returned, I was searched again. They opened my bag, and then opened everything inside my bag, on the pretense that they were looking for “something metal” that showed up in the x-ray machine. What they did today proved that they can be a lawless force which, when it does not get its way, is to be both feared and resisted.

But that’s not all. That is just a logistical harassment. No, the abuse comes next:

Sunday Stupidity: You’re The Man Now, Dog edition

Two mostly independent stories to take you on an emotional rollercoaster this lazy Sunday. First, from the increasingly stupid United States of America, a story of how a teen’s life got flip-turned upside down. You see, he was just on the playground where he spent most of his days, minding his own business. You know, chilling out, maxing, relaxing all cool and sometimes with this friends he liked to be shooting some b-ball outside of the school.

WAIT. DID HE JUST SAY SHOOT AND SCHOOL IN THE SAME SENTENCE? ARREST HIM! Once you’re done laughing, know that that’s exactly what happened to 19-year old Travis Clawson because a doctor’s office called his voicemail to confirm an appointment, heard the above line, thought he was shooting people outside the school and called cops. Who arrested him first, then spent the 20 seconds it takes to realize it’s the theme song from Fresh Prince of Bel-Air. No word on whether Carlton showed up to dance and everyone laughed at him.

[Also: is this a thing now? People leave notes of their criminal intent as voicemail messages? “Hi, you’ve reached my cellphone. I’m unavailable right now because I’m robbing that Stop-n-Go on Orchard and Willard. Leave me a message and I’ll get back to you when I get out in 5-20 years because I’m stupid enough to leave — BEEP.”]

The second story is from the always-slightly-odd-but-not-as-odd-as-the-Japanese-because-those-guys-are-fucking-crazy-am-I-right-with-the-tentacles-and-cartoons-and-stuff-British. Apparently a crime happened, as it often does, and one of the witnesses to the crime was PC Peach. So those industrious prosecutors wrote to the police department asking for Peach’s statement. The police department wrote back, saying it was a typo and PC Peach was actually PD Peach. The prosecutors didn’t really care and demanded that statement. So they were sent this:


PD Peach stands for Police Dog Peach.

Dog, like Will Smith is the Dog Dawg Dogg man.

Justice for society

To be cheeky about it, one could say that the only things in life that are certain are death and crime (there are people who, due to a lack of income, could avoid paying taxes). Crime is one of those things that, for centuries, caused people to try and eliminate it. They have routinely failed. As long as there are societies and laws and rules, there will be crime.

So having established that eliminating crime is a fool’s errand, we must turn to the question of what, exactly, do we do with all this crime that we have mucking about? Reducing it seems to be a fairly agreeable idea and a somewhat attainable one at that, too. There are two directions to approach this from: you stop people before they commit their first crime (with the acknowledgment that you’re going to fail some of the time; see above) or you stop people from committing their second crime.

You do the latter by punishing people for the crime that they have committed to teach them how not to behave: that committing crimes is wrong and socially unacceptable. You also do the latter by teaching those same people how to behave: that integrating into society and being law-abiding is an admirable goal.

What suffices as punishment for crimes that have been committed? Is or should the immediate and long-term loss of liberty and freedom suffice? Or do the conditions and the manner of that deprivation also have to be deplorable it to be considered equitable? And does the manner of that punishment have any bearing on the second approach, i.e., nurturing the better instincts in humans in an effort to aid them in controlling their circumstances and emotions.

One prison in Norway thinks so: that isolation from society is punishment enough and what people do while isolated will shape what they do when they are returned to society. The Bastøy prison is tucked away on a small island and home to 115 prisoners who have committed all manner of crimes – ranging from murder and rape to drug peddling.

From the Guardian article, written by convicted murderer-turned-journalist Erwin James [for more on him, read this]:

I wasn’t sure what to expect on Bastoy. A number of wide-eyed commentators before me have variously described conditions under which the island’s 115 prisoners live as “cushy”, “luxurious” and, the old chestnut, “like a holiday camp”. I’m sceptical of such media reports.

Whether it was as those adjectives described it or not (it’s still a prison, remember) is beside the point. The point is that such descriptors reflect our attitude toward what a prison should be and yet such attitudes are entirely at odds with what is actually productive and beneficial to society.

Says governor of the prison – and clinical psychologist by profession – Arne Nilsen:

In closed prisons we keep them locked up for some years and then let them back out, not having had any real responsibility for working or cooking. In the law, being sent to prison is nothing to do with putting you in a terrible prison to make you suffer. The punishment is that you lose your freedom. If we treat people like animals when they are in prison they are likely to behave like animals. Here we pay attention to you as human beings.

“If we treat people like animals…they are likely to behave like animals” is precisely what a client once said to me. Nilsen concludes:

It is important that when they are released they are less likely to commit more crimes. That is justice for society.

And does it work? Norway has one of the lowest rates of recidivism in the world and Bostoy’s recidivism rate is 16%, compared to anywhere from 40-60% for the United States, where we warehouse prisoners as cattle and treat them like no more than parts on a never-ending assembly line.

It is true that Bastoy accepts transfers from inmates who have shown a true dedication to change. It is true that Norway has maximum security prisons where the worst of the worst can be housed. But it is also true that Norway’s justice system is less interested in retribution and more so in rehabilitation and reintegration and – dare I say it? – justice.

“Do as I say, not as I do” is no way to be a role model for those among us who have succumbed to undesirable instincts and behaviors. Compassion, understanding and help, while simultaneously imposing punishment by depriving an individual of liberty, seems like a measured way to repair the wounds of individual victims and society in general.

As James concludes:

On the ferry back to the mainland I think about what I have seen and heard. Bastoy is no holiday camp. In some ways I feel as if I’ve seen a vision of the future – a penal institution designed to heal rather than harm and to generate hope instead of despair. I believe all societies will always need high-security prisons. But there needs to be a robust filtering procedure along the lines of the Norwegian model, in order that the process is not more damaging than necessary. As Nilsen asserts, justice for society demands that people we release from prison should be less likely to cause further harm or distress to others, and better equipped to live as law-abiding citizens.

Don’t we owe that to ourselves?


Two other things of note:

1. The disparate prison terms in Western Europe and the United States bear remarking. The maximum life sentences in those countries are 20-odd years, whereas here, in the U.S., one can get that much time for simply robbing a store. It is certainly an indicator that we, in the U.S., value life and potential less than elsewhere.

2. Compare the subtle reporting of Erwin James – a former prisoner and engaging writer – with that of the anything-but-subtle-relying-entirely-on-cliches style of this CNN reporter, also reporting on Bastoy. I couldn’t shake the sense that the CNN reporter was reporting with disdain; in that, I think, he lost the point entirely.

H/T: Karen Franklin, whose blog you should be reading.