It is interesting to consider the impact of the Hurricane Katrina disaster on the attitudes and behavior of jurors in the upcoming months and years, especially in the South. It is difficult to determine exactly how any catastrophic event will affect verdict outcomes. The specific facts and issues associated with each case are unique, but generalizations are possible. The terrorist attack of 9-11 provides an interesting example. An Islamic defendant in a criminal case facing ordinary street crime charges may well have experienced some level of bias in how jurors perceived him after the incident, even if the charges were completely unrelated to what we ordinarily consider to be “terrorism.”
Similarly, if predictions concerning the impending conflicts between homeowners and insurance companies come to pass, we may observe attitudes towards insurance companies become even more cynical and suspicious than they are at the present time. In states such as Louisiana, Mississippi, Texas, and Alabama, this could influence verdict outcomes in cases beyond those relating to the immediate disaster. Insurance companies are likely to find themselves even more under the gun, even in ordinary litigation. (Whether jurors in these southern states are biased in favor of or against insurance companies and other defendants is debatable and Clay and I disagree. In support of my position, see, e.g., ATRA’s listing of counties in Texas, Louisiana, and Mississippi [pre-tort reform].) Likewise, negative public opinion about oil companies will come back to haunt them in cases where they sit as defendants. Clay observes that large corporations may serve themselves and the public well by showing a willingness to enter into compromise settlements in disputed claims where a population has been decimated due to the storm. Arguments about whether damage was caused by wind or weather may prove costly in the long-term as cases go to trial. Regardless, lawyers on either side of the aisle will be hard-pressed to consider how potential jurors view the disaster, and how their perceptions might cause them to vote on key case issues.
Philip Monte, Ph.D., J.D.
"I had to write and share this with those who deal with prosecutors every day. I just got lucky and got a two word verdict in the above second degree murder case. Defense was self defense and my client shot the victim twice in the back.
"The judge went back to talk to the jury after the verdict, and the jury indicated to him that they wanted to talk to the lawyers. Usually, I hate to talk to the jury after a verdict, but the prosecutor was faunching at the bit to get back there and berate the jury for finding my client not guilty. So I decided to go on back and talk to them, to let them know that they had done the right thing. As soon as we got back there the following exchange took place between the Presiding Juror and the Prosecutor (who by the way was the Kansas District & County Attorney Association's "Prosecutor of the Year" for 2004, Kevin O'Connor):
"Presiding Juror: (with hand raised) I have a question for the prosecutor, if I may?
"Mr. O'Connor: (Excited that the jury wanted to talk to him and not defense counsel, after his defeat) Well of course you can?
"Presiding Juror: (Very sarcastically) I just wanted to know if you were a jerk all the time, or if it was just in the Courtroom?
"Mr. O'Connor: (Laughing nervously and squirming just a bit) No, most people would say I'm a jerk all the time.
"Presiding Juror: (To other 11 jurors) See, I told you so.
"This exchange between the jury and Mr. O'Connor, coupled with the NOT GUILTY verdict, and my Client going home with his family after spending 9 months in jail waiting for trial, made my day. I decided right then that I had a very astute jury."
Ah, how our self-images vary from reality! How many self-proclaimed legal geniuses have had jurors say similar things about them in the jury room?
A recent case from Columbia County, New York has gotten alot of attention lately. It seems a jury in a robbery case had reported that it had reached a verdict of guilty. Then the defense lawyer, Robert W. Linville, requested that the jury be polled. Juror No. 2 said "not guilty."
So much for the "unanimous" verdict. So what could County Judge Paul Czajka do, but send the jury back for further deliberations?
Several hours, and one jury request for a readback of portions of the record and a definition of reasonable doubt later, and the jury finally reached a verdict - 12-0 for acquittal. This time, the State had the jury polled, and it remained unanimous.
Besides the importance of polling a "unanimous" jury, what can this bizarre turn of events teach us?
First, the jury was unsure what was meant by "proof beyond a reasonable doubt." This isn't unusual. As I have pointed out before, reasonable doubt instructions are inherently contradictory, in that they simultaneously posit that the burden is on the State, while defining not the quantum of proof needed to convict, but the quantum of doubt needed to acquit. Empirical testing demonstrates that juries impose a higher burden when given "clear and convincing evidence" than when given "reasonable doubt" instructions. We focus too much on the doubt, ignoring The Great (proof) Beyond.
So this jury started off, most likely, imposing the burden primarily on the accused. Add to that the fact that jury compromise is, according to Harry Kalven & Hans Zeisel's landmark work The American Jury, pervasive. It is not at all unlikely that the jury in this case misunderstood the burden of proof, and compromised on a verdict without first adequately discussing the evidence. A first vote (based on this ambiguous reasonable doubt standard) leaned towards guilty, and the minority jurors agreed to go along with the majority.
When polled, a minority juror admitted that it was a compromise verdict - "Guilty" did not reflect her judgment. After discussing the case, with further explanations of the standard of proof, and the jurors came to understand that the minority, not the majority, was correct.
This may not be correct as to what occurred - it is certainly speculative. But we do know, from a recent Arizona study of 50 real jury trials and their deliberations, that dissenting jurors are often given short shrift. This study, from civil cases in which juries do not have to be unanimous, may not correlate directly to criminal cases (save in Oregon and Louisiana, states in which criminal juries need not be unanimous) but it may logically indicate that majority jurors may not be very patient with dissenting jurors who refuse to compromise.
As important as the unanimous verdict rule is, it means nothing if dissenting jurors are willing to compromise away their conscientious judgment merely in order to prematurely terminate deliberations. An anti-compromise jury instruction should be routine in criminal cases, warning jurors that if they cannot truly agree, they must vote their own individual judgment regardless of the result. Judges tend to be hostile to such instructions (jury compromise means faster verdicts, thereby maximizing judicial time on the golf course.)
But however you look at it, jury compromise is always jury misconduct. Considering that most cases do end in convictions, compromise is usually jury misconduct of the most harmful type — resulting in the conviction of a person without the prosecution first convincing each and every juror, beyond a reasonable doubt, as to the guilt of the accused. Considering that jury compromise is "pervasive," it is impossible to know how many people rotting away in American prisons were only found guilty as the fruit of jury misconduct.
I am unable to consider this as an abstraction. While I do believe that jurors have the lawful prerogative to nullify if they believe a conviction would be unjust, I do not believe they ever have the lawful prerogative to compromise in order to reach a pseudo-unanimous verdict. While judges have vociferously lambasted jury nullification, they have covertly embraced jury compromise.
Apparently, such compromise nearly led to the conviction of a man who was later acquitted, in Columbia County, New York. At least he is not imprisoned due to jury misconduct. But, as all involved agreed, his case was the exception. It demonstrates, more clearly than anything else, why we must endeavor to change the rule.
I spoke last week to the annual meeting seminar of the National Association of Criminal Defense Lawyers in Portland, Oregon. Part of my talk had to do with the decline in the percentage of cases going to jury trials, and the declining number of jury trials as a whole (an issue I raised in my first blog entry.) While I thought the audience would need a reminder as to these facts, what surprised me was that most of the audience was totally oblivious that this was occurring.
I am reminded of the old recipe for frog soup. You see, if you place a frog in boiling water, it will immediately hop out - stinging, but hardly worse for wear. However, if you place it in lukewarm water, and slowly turn up the heat, the frog will relax in its hot tub, take a nap, and wake up cooked.
So it is with the jury. We attorneys have gradually adapted to measures that reduce the viability or availability of jury trials - from acceptance of responsibility credits for those who plead guilty, to judges who require expensive, time consuming mediation prior to trial. As the jury trial gets rarer, and harder to attain, we adapt to our environment.
To mix culinary metaphors, we need to hop out of the pot before the jury is toast. Too often, we fail to recognize or object to procedures that raise the risk or cost of a jury trial. These mechanisms (and there are more being added practically daily) have become part of the warp and woof of our legal system. Most judges and legislators are not aware of the fact that the jury system is dying, and are not aware that they are contributing to its demise. Many may respond positively once aware of the facts. We should at least give them the chance.
In the meantime, if we don't make ourselves aware (and spread that awareness among others), we become part of this seemingly intractable problem. It is time to break out of this rut and to object to those rules and procedures that act as a tax on the right to a trial by jury — while there are still those who remember why it is important.
Judge Refers to Juries as "Twelve High School Dropouts"
I must thank David Giacalone for making me aware of this little outrage.
It appears that Frank H. Easterbrook, a Seventh Circuit Court of Appeals Judge, doesn't like juries. Well, maybe he loves them. He just thinks they are stupid.
According to Giacalone, during some hearings of the Antitrust Modernization Commission, Judge Easterbrook during his testimony referred to juries as "twelve high school dropouts." Giacalone's article on the topic is here.
Ever since law school, I have complained that law schools fail to teach their students history and context. Instead, they churn out unenlightened technocrats by the bucketful. Can we consider Easterbrook's myopic statement evidence that my complaint is correct? This technocrat may know some law, but he apparently is completely unaware that juries are — far from "twelve high school drop-outs," — on the whole slightly better educated than average Americans, and are nobly taking time out of their lives and performing a public service for little more than parking money.
These people - from whose taxes Judge Easterbrook derives an exorbitant and (judging from this statement) unearned salary -- deserve respect for the integrity, intelligence and perspective they bring to their task. It is sad that Judge Easterbrook does not bring the same wisdom to his comments.
Justice Cardozo is quoted as saying "for the law to be respected, it first must be respectable." The same can be said of a judge. Many judges, unable to earn respect, are content with merely being feared. Easterbrook has apparently built up a reputation as a judicial bully.
Is it surprising that a judicial bully would think jurors (not being appellate court judges) must henceforth be village idiots? Hardly. The elitist judges who denounce jurors without even being aware of the research that shows that most jurors are intelligent and act with integrity continue to fester in our courts. But at least now, thanks to those like David Giacalone, there are some out there to call them on it.
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