Friday, December 11, 2009

Twelve Texans, good and true - some Q & A.

A new reader to the blog asked some insightful questions about juries, specifically my thoughts and opinions. Since Friday is typically my day to discuss such matters, here goes:

You undoubtedly have more jury experience than I do, so my sample size is considerably smaller, but I've not been impressed as a general matter.

Go on....

Juries seem to fixate on small, unimportant details in making their decisions.

I shall quibble with you here, just a little. You are right that individual jurors can fixate on irrelevant details, I have spoken to every jury I have tried a case in front of, and there's no doubt that's true. But, my experience has been that in almost every instance, the one juror who is going off the reservation gets pulled back in by the other eleven. That's the beauty of having a dozen of 'em. You see, judges can fixate too. All of us can, and I'd argue that the more professional or experienced or knowledgeable we are in a field, the more entrenched we become in our fixations. But when you have twelve lay people who are not sure of the law, not masters of forensic science, they can bend and sway with the input of other people, i.e. their fellow jurors. Ever tried telling a judge he's wrong about something? No, me neither, and for good reason.

I would also argue that if a jury gets so hung up on an irrelevant point that a decision is not reached, or a wrong one reached, then that's our failing as lawyers. Throughout the trial we need to be explaining what matters and what doesn't, and we can do this explicitly in opening statements (to a great degree) and most definitely in closing argument.

Here's something else, too, and relates to your (one?) trial experience. And for all of you reading this, I know the gentleman poster and he and I tried that case together. He does relate the facts correctly but think about it from a juror's point of view, and in the back of your mind think about what we want jurors to do (hint: a. Follow the law, and b. Justice). We put on evidence that:
  • a convicted and currently incarcerated drug dealer
  • kidnapped his girlfriend and held her hostage
  • that in clearing the house after she was let go, some SWAT officers in all their gear broke about $300 worth of stuff
  • and that dealer wanted one cop to pay him for that stuff (which was his mother's)
  • and that one cop never went into the house and wasn't calling the shots.
Now, I don't know what the jury focused on but when they came back after.. what was it? Six minutes? When they came back we knew they would reject the claim for damages, and so they did. Was justice served in that case? Hmmmm? Methinks yes.

Jury instructions seem to confuse the issue as frequently as they enlighten it (if not more frequently).

I agree that jury instructions can seem like gobbledygook at first. But in a recent murder trial, jurors afterwards told me that the instructions were key to keeping them on track. They had gone off and explored all kinds of things, raised all manner of questions about the facts and evidence but in the end they sat around the table and said, "Hey, we've been told to discuss what's in here, and only what's in here." So they did. And reached a decision accordingly.

So while I can see how instructions might, in some cases, be confusing, my experience has been that they are more likely to be of great help. And, again, it's our job as lawyers to know the instructions that are being given and, if we think they need clarification, we should discuss them during closing argument.

Does it not cause you some unease to know that the interests of the State of Texas are in the hands of twelve (or however many) registered voters?

Nope. Twenty-four hands, technically. I make a point of picking jurors I think are intelligent, and it's not hard to tell who those people are. I'm not practicing rocket science, either, so the intellect side of the issue is not a concern, or at least can be dealt with. For the rest of my answer, see below....

Particularly when most people don't want to serve in the first place?

You are right that reluctance to serve is commonly expressed. But I also know from experience that once selected, jurors are diligent and attentive. They are reluctant, in some cases, because they don't want the responsibility but the flip side of that is that once given the responsibility they work extra hard to ensure they carry it out properly. They don't want to do it because they don't want to get it wrong, but once doing it they make sure they do it right. I like that.

I'm also not sure of a better way to do it. One judge always deciding? Three judges? Roving panels of professional jurors?


  1. I wish I'd picked a different name under which to post my original comment, but oh well....

    I'll start at the end - I like the idea of expert juries, sort of like arbitration panels. You'd get whatever appropriate number of people who have some experience in the matter being tried. This system would, however, suffer from two likely insurmountable hurdles. First, where would these people come from? Second, how on earth could that system be tailored to the criminal justice system? There's no real answer to either question, so it just wouldn't work. BUT - I'm comfortable (I think) with the judge being the sole fact finder, which is an easily administered system for both civil and criminal matters.

    I appreciate your thoughts on the subject. Knowing that somebody who works with jurors so frequently (and who's opinion I trust and respect) generally believes in the system is extremely comforting to me. I will probably always have misgivings, but I'm glad to have read what you've written.

    For what it's worth, we didn't put on evidence that our client had kidnapped and held his girlfriend hostage - we put on evidence directly to the contrary. And the defendant, according to the judge, was calling the shots at least enough to stand trial. I'm not saying it was a great case or anything, but still....

    Oh, and I've had five trials, that you very much! :)

  2. This is a really good post DAC, but I am curious about one particular statement:

    “I make a point of picking jurors I think are intelligent, and it's not hard to tell who those people are.”

    Maybe there is a part of the procedure that we are never told about, but (perhaps behind closed doors) are you actually allowed peremptory picks besides peremptory strikes? Aren’t you obligated to impanel in numerical order by randomly assigned juror number once the disqualifications and peremptory strikes have narrowed the field?

    You know it might not be such a bad idea to have each side alternate picking jurors from among those remaining after strikes rather than have some sort of computerized random sequencing do the job. But then of course you might not end up with a jury that reflects the demographics of the community at large or a jury of a defendant’s “peers”, particularly if picks are all made based on one specific attribute such as “perceived intelligence”.

  3. I'm not so sure one can always correctly guess the intelligence level of any given prospective juror. I'm not a lawyer and I've never played one on TV. And I've only been called for jury service once, and only picked once. Admittedly, I paid little attention to the other potential jurors during the selection process so I can't really say who may or may not have seemed intelligent. However, this was my experience:

    The case was in federal court. Attempted bank robbery and conspiracy. Once sent to deliberation, it became quickly apparent there was a full range of intelligence, attitude and desire. The desire part relating to either see that justice was as adequately served as the letter and spirit of the law would allow or to make a decision as expediently as possible and go home.

    But a curious thing happened. By day two of the three day deliberation even the most recalcitrant of the lets return a guilty and go home was participating in the discussions in a thoughtful, insightful and meaningful way. End the end, the defendants were acquitted. My opinion is that the 'attitude' (and, I'll admit... the less than fully educated manner of speaking) of a few jurors gave the impression of lack of intelligence. But - when they saw the degree of seriousness with which the rest of the panel took the responsibility, they too, became interested and even solid contributors to the discussion.

    I'm not saying I think every jury will, would, might take on the same degree of character and ability. I think what I am saying is that I would not go into another jury room making the same generalizations about intelligence, intent, genuineness, etc. (or lack thereof) as I did the first time.

    I think you should - generally speaking - give your juries a much greater benefit of the doubt with regard to taking the job seriously and giving full, relevant and appropriate consideration to the "right" things.

    PS. It won't let me review or edit, so hopefully my grammar and typing is not to unintelligent.

  4. Be careful about characterizing the jury charge as "gobbledy-gook." Sam Sparks recently held an assistant AG in contempt for calling the instructions "mumbo-jumbo" in her closing. :-)

    (But between you and me....)

  5. You are right Donald... of course I was being tongue-in-cheek and not referring to any particular charge. Honest. :)

    Shilling - I assess a juror's intelligence in a couple of ways. First, we get information sheets on them, that they themselves fill out. They tell is a little something -- I can assume someone with an advanced degree is going to be intelligent (I don't always make the opposite assumption, after all education isn't a perfect proxy for intelligence).
    Second, I talk to them. During voir dire. We are pretty adept at assessing our fellow human beings and it doesn't take long when you talk to someone to know whether they will or won't get a concept. But I am very glad that every single member of your jury got so heavily involved and tried to do the right thing.

    Anonymous, you are right in that we don't actively "pick" jurors. What I do is exercise my peremptory strikes to deselect those I think will have a hard time following the law (as opposed to what they think the law should be, or some other emotional leader). I'm not saying I get it right, I can think of several instances where I absolutely didn't!
    But as to your notion of affirmatively picking jurors (rather than deselecting), maybe we should. Let me think about it.

    Justice Miscarried - I have thought about the jury panel concept. My worry is that they would become cynical, one way or the other, and you'd develop consistent divisions within a panel along ideological lines. Or just individuals (would they be elected? How chosen?) who would hold a lot of power and not be accountable (like juries now, yes, but it's not the same people over and over).

  6. As a defense attorney, I wish that we picked juries the way we pick baseball teams, one person at a time. The Judge flips a coin to see who goes first and then both sides alternate until the jury is picked. No peremptory challenges, just challenges for cause. I would prefer this to the de-selection process we have now. Of course the mistrial rate would go through the roof!

  7. Alex,
    I'm probably being slow, but why would there be more mistrials? At first blush, I like your idea.
    I think...!

  8. D.A. Well, us defense lawyers would pick all the screwballs!! Or at least I would anyway.

  9. Ahhhh.. I had more faith in you than that! I guess that's true, you probably would. The trick would be making sure they are "screwball-y" in your favor, of course. :)


Comments posted to this blog are NOT the opinion of the Travis County D.A.'s office, under any circumstances. They are only the personal, non-representative opinion of D.A. Confidential if posted under his name.
I welcome all comments, as long as they are expressed with politeness and respect. I will delete all comments that I deem to be personal attacks, or that are posted merely to antagonize or insult.