Jury duty for me!

I have jury duty tomorrow!  And it's at the federal courthouse, so there's an outside chance I will get to serve (if it's a civil case, rather than criminal).

It's been so long since I've been herded around like I'm a sheep, it'll be interesting.  Of course, we'll see if it's like the state criminal courts, where there's a LOT of waiting around.

In case it is, I'll bring my book.

And yes, I'll let you know when it's all over what it's like.

Fingers crossed!

** Update **

Well, ridiculous optimism appears to contain no power.  No go on the jury today, though an inside look at the way they do things in federal court was absolutely worthwhile.

The major difference appears to be that the judge conducts much of the voir dire, he gave the lawyers about 15 to 20  minutes each.  Far more efficient.  And while it took up all morning, I wouldn't say there was a whole lot of waiting about.  Here's roughly how the morning went:

8 - 8:30: we're in the main jury room, not the courtroom, and get a welcome and powerpoint talk by the jury coordinator, telling about the Western District of Texas and a little about the process.

8:30 - 9: a video, snippets of Supreme Court justices and former jurors talking about the importance of jury duty.

9:30 - 10:30 - after a break, we go into the courtroom and Judge Yeakel gives us a thank you and introduction to the case and parties.  He then asks the kinds of questions that, in State court, the lawyers ask.  He is considerably less long-winded.

10:30 - 11- the lawyers have their turn, seem prepared and knows our names even.

11:30 - 11:45 - we take another break while the strikes are made and the jury settled upon, and this is done quickly and without fuss.  We're done and dusted by lunch time.

I imagine the process was accelerated partly because there were just 26 of us in the panel - they were picking eight people for a civil trial. 

One I would have loved to have jurored.  Maybe next time?

Don't worry, I managed to cheer myself up with an offense report back at the office.  Some kid had stolen a pair of sneakers from a man's car.  A pair of size 16 sneakers.

Don't you pick those up and think, "Errr, yeah, I'm not stealing from this dude.  If he catches me...."

And. . . I'm back!

Here I am, in the flesh, back from vacation. Two weeks of crime-free wonder, no thought of good guys, bad guys, or those (like most of us) stuck somewhere in between.

But now it's back into the fray. Three pages of emails, some of which I'd love to share but can't, most of which got binned immediately. None titled "You Screwed Up," which was a relief.

I thought I'd ease myself back in here with a couple of replies to comments left while I was away.

First, and several people have asked this, someone asked how to find out about trials other than the bare details I post. The truth is, "With difficulty." If the media cover the case, you can get info there. If it's more than idle curiosity, you could always try calling the defense lawyer or the prosecutor to see if they will answer your question(s). We're pretty good about being open and accessible, though you'll have to understand that there are some things we can't answer or provide. But we're friendly folks, so no harm in asking if you need to.

Second, this comment after my guest blogger Mackie's post about being on a jury:

I have also served several times on a jury, with similar sentiments afterward. Important duty, and interesting to be involved. Financial impact for others, though, is extreme and a six or seven month trial would destroy, or at least completely rearrange, anyone's life. Would be interested in DAC's opinions on this.

Well, my opinion is that I agree. It can be a huge imposition on people. Which is why we see people bucking to get out of it, and rolling their eyes when picked. But I think it's important to point out that most trials (certainly criminal ones) last less than one week. And you get a whole $60 a day!!I've wondered about having professional jurors who travel around hearing cases. But there's something wonderful (not to mention Constitutional) about having twelve people from the very community in which the crime was committed as the judges of the facts in a case.

I'm also trying to remember one single juror who has said they regret serving, and I can't come up with one. Yes, it's an inconvenience and, sometimes, pretty boring. But (not to sound like a Communist) when we live in a society we sometimes have to sacrifice our immediate best interests for those in our community. Like helping an old lady across the street when you weren't planning to cross. Okay, so it's a very large street and takes a few days to cross. (Hmmm, I wonder if that chicken could do it -- help the old lady, not be a juror -- you know, the one that's always crossing the road.)

So, bottom line, I agree it's an imposition. But it's almost always a brief one and one that is so important to our society I wouldn't advocate changing it. I might increase the remuneration a little but that might mean a tax increase, and we sure as heck know how people feel about that!
Third of all, some pics from where I was recently.

Now, just because it's my blog and I can: first, my parents' house, where we spent the first week.Next, the second house we stayed at, and its view:And no trip to France is complete without seeing the most wonderful city in the world, Paris:
And I just love this picture, the curious look on his face, the fact that he's covering up my triple chins... (yes, he's the lad in the picture at the top of the blog, growing up, isn't he?!)

Guest blog: the view from Travis County juror seats 30, 11 and 7

Yes, I'm still on vacation, but today you get a wonderful piece of insight into the jury process from regular reader and commenter "Mackie." He offered to write something after my request at the end of this post, a couple of weeks ago.

I'll intersperse my own comments within the body of his post, just to answer questions, address issues, and be generally disruptive.

So, who is this "Mackie," if that is, in fact, his real name? Which it isn't. Obviously.

I have pretty much lived in Austin since 1972 as a result of my father retiring from the United States Air Force. That places me as being here since my sophomore year in High School, and graduation from The University of Texas. As a result the first sixteen years of my life were spent in two year cycles at various military installations around the world as a dependent. I hold a middle management appointment at a major three letter Software and Services firm which I have worked for the last thirty years. I mention that as a brief piece of background yet it works it's way into what I will share as to serving as a member of two juries and not being selected for a third. I have been married slightly longer than my current employment and have three children in various fields ranging in age from 22 to 27. An initial comment is that none of my children have ever received a jury summons nor has my wife who obtained her United States citizenship after immigrating from Argentina with family social photos inclusive of people such as Peron, feel free to fill in the rest with your imagination although I mention this as her view of the United States legal system is very positive I assure you.

As I transition from the discussion to my personal background I will leave the guest blog title to DAC to expand upon. It is one of perhaps subtle impact yet feel his view might be a better one as to that particular aspect and what it means as to which potential members are asked to remain or are excused from service.

The three times I have been asked to appear seem to be a bit out of the ordinary as I hear others discuss their summons. My first (which I was selected) was criminal in nature (a contested DWI charge). My second was a dispute as to rent and responsibilities of a landlord (which no one was selected, more later). The third was a civil case regarding an individual that had contracted mesothelioma and had less than a year to live (I was selected for that jury).

In terms of what amount of time was required on my part ranged from five days for the first, a morning for the second and ten days for the third. This has significance to those selected in ways that many might not imagine. As a professional of a Fortune 50 company that bites the bullet, I served with normal pay and benefits although someone back at the office had to pick up my duties to the extent possible. On the third there were some like myself, some retired, and some hourly employees. The impact on the hourly people was significant as when they were not working they were only receiving the very very small daily stipend from the County. I believe some had to take off shifts to pay their bills while giving up free and sleep time to participate. I did not get a warm fuzzy they were happy to have been chosen. In fact during selection there were many one-on-one conversations between those asked to be excused, some of which could be overheard. I have since read that there has been some discussion in the legal profession whether a jury composed of your peers can truly be selected in today's time and setting. What I mean is, if only people who are not put in financial hardship by serving are selected, then juries take on a certain personality, perhaps one of only college graduates or along those lines. I wonder as to the impact on the seeking of truth. Perhaps another opportunity for DAC to comment from the legal profession. I agree, it is a financial hardship for many and I wish we could pay better to counteract that negative impact on jurors. I really don't know what a good solution is, frankly.

On to the details of the three trials.

I will start with the second. As I recall only six members were being sought and about thirty minutes into the voir dire (I am not sure this was the term used in this situation unlike the others, maybe, yet do not recall hearing it) one of the parties requested that the parties be allowed to confer which was granted. They both left the room and were not seen by the candidate pool again. The Justice of the Peace stated our services would no longer be required and we were free to go. A number of those that had sacrificed a morning did not appreciate not being provided any information other than “thank you for showing up”. The assumption was that they settled in some form after they called each others bluff by showing up. I would bet good money that's exactly what happened. I have mixed emotions on how the 'system' appeared as to this encounter. The physical location was also different, it appeared to be just a room in a retail center and had suffered some wear-and-tear, as opposed to being a 'real courtroom' downtown, as the other two were. I felt a little like a pawn in a game after this encounter. I get the impression that this is a common feeling, at least until the individual is selected for the petit jury.

Let's chat about my first trial at this point. This one went pretty much as to script almost to the point of a television show with a few added points of interest. We were asked to show up relatively early in the morning (around 9am) yet there must have been two hundred people in the room. As I recall it was pretty much like airplane boarding, with groups of about 40 created with instructions as to when and where to show up. My covey proceeded to a court room and were seated in what I would call the spectator section although I am sure there is a better name. What I mean is that there were far more of us at this point than the twelve seats that were used in the trial. The questions came from both sides with topics from A to Z. Some that seem relevant to the trial to be conducted and some I have no idea why they would be asked. I was in seat 30 (a clue for those trying to decipher my guest blog title). I was not asked a single question in the three hours.

At the conclusion of what seemed to be a time limit, what I would refer to as an OJ Simpson like 'side bar' occurred and shortly thereafter twelve names were called and to my surprise I was one of them. If there were any alternates selected it was not handled in any manner I could figure out. We were told to be back the next morning and Monday was over. Off to the car with the parking ticket attached that was 'taken care of by the court' the next morning and each of the following days (we were not allowed to feed the meters, of course, and everyone had a ticket each morning).

The trial began the next day with what I would again describe as what you would expect from television, with each side presenting their required portions, counters and such. The State had just two or three people to question which as I recall included the police officer, a lab technician and one other that slips my mind at this point. The defense on the other hand had at least ten people take the stand. These ranged from employees of the bar that had been the place of the pre-party, the friend that had the after-party, and various guests and coworkers that had attended the gathering.

The only real notable point, which turned into a Perry Mason-type of event, was a slip of the tongue by the Executive Director who employed the defendant: she mentioned that the mixed drinks were wonderful and were known to cause a 'buzz' with only a single beverage. The prosecutor took the appropriate time to create a pregnant pause and asked her to repeat the comment which came out in an interesting 'wish I had not said that' tone.

During one of the early breaks we had been asked to be thinking about a foreperson to be designated for duties later in the trial. I was asked to be that person yet another juror wanted the role. No one seemed to know what to do and a vote was taken and I was selected by a vote of all but one. I have no idea why, other than I suppose the others in the room felt if someone was seeking the role they likely had a reason and thus should not be the person. Regardless, the duties simply turned out to be a facilitator of discussions during deliberations, a recorder of the vote and the person to stand and announce the findings of the jury. Again with no idea as to real process (which was not the case in the third trial which I will discuss next) the only issue that came up was that I had made a note that there had been mention of some type of document offered to the defendant as to refusal of a breath test although we were not told what happened in the court room setting. I asked if anyone else felt that was of interest and as a result asked for that document to be brought to the deliberation room. It took some time, but eventually was provided with the point of note that the defendant had not only refused a test had also refused to even acknowledge the refusal. We found the defendant guilty and returned to the court and I was called upon to state our findings. There were some procedural items discussed, the jury was asked if they had truly come to the conclusion I had announced as the defense attorney asked for a poll.

At the end of trial each team of attorneys came to have a chat with us along the lines of DAC’s comment of not having a chance to do that in his most recent trial. I wondered if it was a chat or gathering of intelligence data to be smarter in the next trial, or a trolling to look for a reason to have the verdict thrown out on appeal of some type. Probably a combination of those things, actually. Minds do wonder in situations that are foreign. In hindsight I also wonder why the big fight on behalf of the defendant as this never was exposed to us. Perhaps this was not his first DWI, perhaps his employment was at risk, perhaps he just was in denial or had what I envision a lot of money to fight the case or liked the drama. No idea.

On to the civil case.

This one started much like the encounter I just described although no platooning of panels. It did however have about fifty to sixty potential candidates on day one. We were presented a high level overview of what the case would be about and how much time it would take (remember my earlier comments). We were then provided a set of documents to fill out overnight that had in excess of 150 questions. The questions ranged from education level to personal medical history and family medical history. I am not sure how this would be handled today in light of HIPAA. As to my personal responsibilities I would likely to need to consult one of my Corporate attorneys as to how to answer some of the questions in light of SOX although perhaps this is handled in another manner should this trial had been held today. We were sent home to fill these forms out, returned the next morning to turn them in and then sat for a couple of hours as I assume they were reviewed. Seems a bit arcane in the times of the Internet yet I am sure there are complexities beyond belief if these were to be filled out by those with computers and broadband and those without, the list would go on and on.

Eventually the legal teams returned to conduct voir dire. I estimate maybe 25% of the potential jurors were excused as a result of something in their written submissions. An interesting point that popped up on day two was a team of four or five people sitting in the juror box taking notes during the truth telling. We learned after the trial they were making notes of candidates as they answered questions, awaited their turn or stared out the window thinking about lunch or their dinner plans.

Another point of note, perhaps coming from my background, was the use of Powerpoint and other technology by the complainant legal team. Although initially impressed that these guys were not relics of the Stone Age it also hinted at the amount of money being thrown at winning this action. The real reason I mention this however is that there must not be much training on the use of these tools in Law School as it was near comical to the point of distraction with them not being able to navigate their own set of slides, make the audio visual equipment show us what they intended instead of their notes or email and such. Hopefully there are actions in play to address these items in the court today. The action I take to address those matters is to avoid technology as far as possible, and practice before trial when I have to!

The process eventually resulted in the panel although more than one alternate was selected. If I recall correctly we had fifteen people seated as jurors and only when we were sent to deliberate were the three alternates informed. I assume this was so that they paid attention as no one knew who was ending up voting. It was interesting to see two of the three sitting as spectators when the results were announced yet I can see how after sitting for two weeks they sought closure.

As part of the questioning it had come up that I had been a foreperson on a criminal case and the early days of the trial was approached by my peers if I would do that again, to which I said yes. I also explained that it had been a criminal trial and had no idea if the duties would be the same here. It turned out they were nearly identical, except that a finding for the complainant would require calculating financial damages, which would not have been an easy task with such a variety of backgrounds on the jury.

As you can likely infer we found against the plaintiff and thus did not get to that part. The legal teams’ chat were of a similar theme although questions were thrown to us as to when in the trial we took a dislike to the New Jersey accent of one of the complainants legal team which no one had said anything about! Perhaps again a place for DAC to comment here as the chat terminated almost immediately after the question. You'd be amazed about the assumptions lawyers make about jurors. We try and read faces, body language, looks. We are so desperate to know what you are thinking that we have to make stuff up, like not liking an accent. Then when we ask jurors about that, they look at us like we're mad!

As to the details of this trial it was a parade of expert witness after expert witness. Corporate executive after corporate executive along with their handlers and entourages. University researchers, doctors, other legal teams as to who knew what and when. Microbiologists, mining engineers from other countries, and we learned later that many of these people had testified in virtually the same case in various jurisdictions and the complainant had won many judgments already.

I will mention however the gentlemen was genuinely ill as his obituary was in the Statesman within a year of the Travis County case. The chat with the lawyers also revealed that Travis County had been selected with the belief that a finding for the complainant was more likely here, as opposed to other parts of the State. I have no idea how many different trials occurred, clearly a great many: it was evident that each team had a very good feel as to what was going to come up, and as to what had worked and not worked in previous trials.

As I mentioned, there was a tremendous amount of material presented and some jurors asked to keep notes and were provided notebooks. They had to be surrendered at the end of the trial and had to be left at the court house overnight. By the end of the trial I am not sure how much use they were as this was a very complex set of events and data points, some of which were clearly played for emotional appeal in my opinion as a two week dipping into this level of medical cause and effect seemed to almost become a non-issue and the jury really made the decision as to if the complainant could actually prove he was exposed to asbestos by the company being sued in excess of an event alleged thirty years previous. Obviously a high bar to hurdle.

I will conclude with what I am guessing might bring up more questions than answers, although am happy to share what I experienced and subject to counsel by DAC will take questions on anything you might want my view of as a result of the post.

In summary I found the experiences to be very rewarding. I learned many things, was exposed to many practices in real life as opposed to television or second-hand, and felt I contributed to society by doing the best I could to support the system. Not that a juror has much say whether they on a civil or criminal matter. Also, my thoughts drift to aspects of personal safety should one be selected for a high profile case, perhaps involving drugs, as opposed to more civil proceedings. I felt the people on the jury did the best they could although clearly a huge financial burden for some that needs to be addressed in my opinion, budget be damned. I would encourage anyone asked to participate to stop, take a deep breath and participate. I think it would be a positive experience with life-long benefits.

Jury follow-up

Now a couple of quick responses to one reader's questions about juries.

Would you please explain the reasons why, the reasons and thought process behind reason, someone is "struck" from being picked to serve on a jury?

I believe this post answers this question, mostly anyway, but if not let me know where it's deficient. The bottom line, though, is that we try and find people who will give us a fair shake.


Also, how many "strikes" does each side get and if both sides agree someone should not serve, does it count against their "strike" limit?

In felony court each sides gets ten peremptory strikes, which is a strike for any reason we want (as long as it's not based on a discriminatory reason, like race or gender). If both sides agree, which happens in most trials, then no, it won't count. Usually it's someone who is obviously unable to be fair to both sides (technical term: nutter) and so the judge strikes them "for cause," which means they are out of the pool by the time the parties disappear to their small closets to consider their peremptories.

It had to happen sooner or later...

We joke in our court about our probation officer, Ben, who always seems to be in the right place at the right time to spot one of his probationers doing something they shouldn't -- shoplifting, getting drunk, driving when they don't have a license. It helps that he apparently has a photographic memory for people's faces and their crimes, but it's still uncanny the way he's always Johnny-on-the-spot. (Hmmm... maybe a little too uncanny...)

Anyway, I've always known that it would happen to me, too: I'd be out and about minding my own business and I'd run into someone who will recognize me from the courtroom. My only hope was that I'd recognize them first, but not having Ben's memory that was never likely.

And so it was, on Saturday, I was at a public playscape with my wife and kids when a man, there with his young daughter, looks over and says, "Excuse me, but do you recognize me?"

My first thought was to adopt a lisp and a Texan accent, or act lost and start speaking in French. But I didn't want my wife to have me committed, so I just said, "No, sorry."

Well, turns out the man was a juror on my first trial of 2009, back in April. All the way back in April. Long time ago, April. Plus he had grown a beard, so no way I could be expected to recognize him. But as our kids played, we had a nice chat about the case, about his memories of it and how the experience was for him. It had been eye-opening, he said, and while it wasn't something he'd initially been thrilled about doing, I got the impression he was very happy to have served on that jury.

For me, I was very interested to know that he and the other jurors saw the evidence and witnesses much the way we did. For example, there were four or five witnesses who one might say had credibility issues. And I'm talking about witnesses for the defense and prosecution - as a lawyer, you don't get to pick and choose your witnesses. If the person was there and saw something relevant, they have to testify. We trust our jurors to sort the wheat from the chaff and in my view, this juror was extremely astute in his analysis. I was also pleased that the jurors put so much stock in the hard work on an investigator who explained (in exceptional detail) his work. I told him afterwards he talked too much, didn't wait for my questions, but the jurors felt like he was explaining his work to them. Shows what I know.

During our chat the juror started asking me questions about the job generally. So I pointed him, of course, to this blog.

I tell you all this to back up what I've said before: it may not be your first choice,spending the week with a bunch of strangers, deciding matters of guilt and innocence, but it's a hugely rewarding experience when you do get the label of "Juror" thrust upon you. Kind of like when you're at the store and an old guy, one who smokes two packs a day and hasn't brushed his teeth in three weeks, collapses and you're the only one who knows CPR. It's not like you want to put your mouth on his but, well, people are watching. You have to.

Imagine, then, how you feel when that old man coughs and splutters his way back to life. Pretty good, right? Sure you do, and once you've rinsed your mouth out with gasoline you're going to look back on the experience and recommend it. Or, at the very least, be proud that you did your best at that moment.

And when you meet that old man at a public playscape and shake his hand, you won't mind that he says, "No, sorry, I don't remember you" you won't even mind that much. After all, he was unconscious while your mouth was on him. Hopefully. And at the end of the day, because it's what you did that matters, not whether he remembers who did it.

That said, if you do run into him at that playscape, your next duty will be to keep an eye on him. Not only may he keel over again, you gotta wonder why an old man is lurking around a playscape.

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?

Would YOU want to serve?

As I mentioned Wednesday, I was supposed to have a trial next week but because we pled the case out, the trial was canceled.

When that happens I take a deep breath to relax before being reminded that 60 citizens of Travis County are still planning on fighting their way into downtown Austin on the coming Monday, finding parking somewhere in a twelve-block radius, and then marching into court for a long day of not being chosen for anything.

So, when we plead out a case the week before trial, the ADAs and Judge Lynch's court coordinator Melissa divide up the jury list and spend time calling the jurors and letting them know they are not needed, that they can have their Monday (and maybe their week) back.

That's what I did yesterday, and every time I do it I am amazed at how relieved jurors sound. If I make twenty calls, maybe two people will express disappointment whereas most are happy, and some are downright ecstatic.

I've posted before about why jurors may not like serving, so that's not my issue today. Today I just want you to click on the poll and tell me if you yourself would mind showing up for jury selection, and then serving on the final jury.

Be honest - most people would like to do it in theory, but imagine you are actually faced with the trek into court on Monday, your life potentially on hold for a week. Too much of a pain? This is an anonymous poll, so Civil Responsibility points will not be deducted from the secret DA files we have on all of you. Oh wait, maybe that's supposed to be a secret...

Jurors and note-taking - yea or nay?

I would love to get some feedback on this issue, as it's one that we face every time we have a jury trial:

Should jurors be allowed to take notes?

I'll lay out a few thoughts and let me know what you think in return -- my first poll is --->

Yes to note-taking:

• do we really expect jurors to remember everything witnesses say? A whole week of testimony and they just have to sit there and memorize it?
• what a great way for a juror to summarize or note the most important details from each witness
• writing something down helps you remember it. Which is a good thing.

No to note-taking:

• don't we want jurors looking at and evaluating witnesses, listening to them rather than scribbling down every word?
• what happens when two jurors write down opposite "facts"? Hung jury?
• instead of deliberation, does the jury room discussion become a test of who took the best notes? If so, we end up with 12 people relying on one person's transcription of testimony, rather than 12 people's independent memory and evaluation of that testimony
  
• it may not be obvious at the time what the most salient points are, so why waste time writing down irrelevant stuff?

Here's one view in favor, from a criminal court judge. And the American Bar Association seems to agree:

"During the trial of the case, the jurors should be permitted to make notes and keep these notes with them when they retire for their deliberations.

(a) The notes should be used by the juror solely for the juror's purposes during the jury deliberations, and should be made available to other jurors solely at the discretion of the juror taking the notes. No person, other than the juror taking the notes, should have the right to view the notes.

(b) The jurors should be informed at the beginning of the trial that, at the close of the deliberations, all jurors' notes will be collected by the court and destroyed."

Our Judge tends to allow it in trials that are longer or more complicated, but not in the shorter and less complex ones. The murder trial we recently completed, for example, was only three days long but we had over 20 witnesses, and the judge allowed jurors to take notes. Shame I forgot to ask them if it helped!

It does seem the move is towards note-taking - are there any really good reasons against it?

Not just a jury, a GRAND jury

I suppose it's appropriate that on "Jury Friday" today I will be presenting a murder case to the grand jury.

"The what?" you ask. "What's so grand about it?"

Well, nothing really. But here's a little bit about grand juries.

A grand jury is made up of twelve citizens, much like a trial jury, and they meet several times a week. All that they do is done in secret, but they have one main function:

To review cases and decide whether to "true bill" or "no bill" them. That means indict or not indict.

Basically, an ADA presents information about a case, talks about the defendant, why he or she was arrested, giving the facts based on the police report. This is a one-sided process, the defense doesn't get to say, "Hold on, but what really happened was..." The idea is that these twelve people are saying, "Fine, you have enough to proceed with a formal charge." So they don't decide guilt or innocence, they decide whether there is enough evidence to warrant a trial.

In making their decision, a grand jury has certain powers, the chief one being the power to subpoena witnesses or evidence. So if an ADA presents a serious case and the grand jurors think, "Hmmm, maybe.. but we want to hear from Witness X," or "We need to see medical records," then those can be obtained.

The one-sided nature of the process has led to some criticism. For example, Sol Wachtler, the former Chief Judge of New York State, jokingly observed that a prosecutor could persuade a grand jury to "indict a ham sandwich."

Now that would be an interesting test.

However, I'm not indicting a ham sandwich today. I'd tell you more but then I'd have to... well, break the Vow of Grand Jury Silence.

What do we know about you?

I thought I'd go back in time, as far as the process of picking a jury, to the day (or two, or three) before trial.

I have mentioned before how jurors are picked, and how they are required to fill out certain information, which they can do online. Name, address, interests, etc. Everyone gets to fill out the same form, and both the prosecution and defense are given copies of the responses in the week before trial.

Given those forms, what do we look for?

As a prosecutor I look for someone who might be obviously biased against me - the girl whose email address started with "420friendly" indicated a chance of bias, for example. Or the person who lists his hobby as "anarchy" might not be inclined to abide by the laws of our fair state.

Likewise, defense lawyers might look at the section asking whether the panelist has relatives in law enforcement.

I also look at the section that says whether they have been a victim or witness in a criminal case. Likewise whether the person has been a defendant. I don't assume bias against the state in the latter case, as you might think. It's been my experience that someone who, for example, pled guilty to an offense, say DWI, believes somewhat in personal responsibility and isn't about to let someone off the hook automatically. This biggest danger with picking a jury is thinking you more about someone than you do, and this is why we try so hard to get panel members to talk during the voir dire process.

One of the last sections on the form, which I'm not sure I see the purpose of for criminal juries, asks whether the panelist or a family member has ever been seriously injured and required treatment. You get the usual car accident or "as a kid I fell of my bike" responses. But sometimes you get answers that make you go "Huh?"

Like a recent panel member, responding to the question about being injured replied:

"Stepped on a fish, injured my foot."

Sounds like the premise for an interesting short story, if you ask me...

The Quick-Pick Jury. But it'll never happen.

So, I've blogged before about how we pick a jury for trial: here.

Too lazy to click and read? Here's a recap: Sixty people show up, most grudgingly, and sit for between two and Lord-knows-how-many hours while the lawyers try and figure out who can be fair, and who might be best and worst for their case.

And it takes a while. The judge talks for 45 minutes letting the panel know what they are in for and what their responsibilities are. Then the prosecutor talks for anywhere from 45 minutes to two hours, after which a much-needed bathroom break is awarded. Then the defense lawyer gets to his feet and has a go.

When he's finally done the judge calls up jurors who have issues and can't or don't want to serve. Then another break while the lawyers excerise their peremptory strikes and choose which jurors they want.

And then, when the dust settles and the carnage is over, twelve people good and true are impanelled as jurors and both sets of lawyers are left second-guessing their picks.

A waste of a good afternoon, if you ask me: it starts at 1:30 PM and we're rarely done before 5:30 PM. Four long hours where sixty people have to sit still and pay attention. I've tried an entire felony case in four hours.

So how about we do it this way: just one question from the Judge and the first twelve who answer "yes" get seated as jurors. That question: "Can you give a fair hearing to both the prosecution and the defendant?"

This is, after all, what we are looking for, isn't it?

It'll never happen because (a) it'd put a lot of jury consultants out of business (guess how Dr. Phil became famous?) and (b) it would result in lawyers feeling less in control, which would be sacrilege.

The thing is, that's what happens in England, the place from whence much of our law comes. And there's not talk of changing it there. There, the judge asks: "Can you give a fair hearing to both the Crown and the defence*?" Say yes, you're on board. There are some exceptions allowing challenge for cause, but not peremptory challenges.

Some advantages:

1. A more random, and hopefully representative, selection process. Know how many doctors, lawyers, professors etc end up on juries here? Almost none. They know how to get out of it, they are allowed to get out of it, and are frequently deselected by the lawyers. But don't we want smart, educated people on there?

2. Less easy to manipulate, by lawyers and prospective jurors. That's good for integrity.

3. Time. Instead of wasting an entire afternoon, jury selection could take minutes. We'd have to call fewer people to the courthouse, too, making it less of a burden on the 48 people who show up but don't get seated. (And that also means more downtown parking for the rest of us.)

4. Money. Everyone saves money. The clients paying for their lawyer's time, the county paying for my time, the panelists missing work, etc. Knocking jury selection down to thirty minutes might even allow us to try two cases in a week, speeding up the justice system as a whole.

Just a thought.

* They spell it that way when they talk, too. Funny Brits.

From 60 to 12 - jury picking

So, everyone knows what a jury trial is.

It's a trial.

With a jury.

Brilliant.

But how do those twelve lucky people get picked? Why them?

Glad you asked. Here's how it works:

Sixty people get notices in the mail saying they are required for jury service. They scratch their heads for a minute, think "Me? Again?" then follow the instructions and enter a few details about themselves online and then start asking their boss for that week off and wondering what the heck they're supposed to wear for jury duty.

On the appointed day, they show up to the courthouse and shuffle into the courtroom, looking slightly lost but grateful for the bailiff who tells them where to sit and what their juror number is. They eye the two tables of lawyers and, they correctly assume, one defendant, and wait.

The judge comes in and explains the system and everyone sits there and thinks, "Wow, he's a judge? He seems so nice." The longer he (or she) talks, the nicer he (or she) seems, and the more comfortable the jurors get. And by "comfortable" I mean "sleepy."

When the judge is done, the prosecutor and then the defense lawyer get a chance to talk. They are supposed to talk WITH jurors, not at them, but it's very interesting how some jury panels are chatty as can be, and others are not. Like lawyers, I suppose.

What do they talk about? Well, plenty but here's a few of the essentials: how a trial works, who the participants are, the rights of the defendant, and the elements of the charged crime.

Really, the bottom line and what the lawyers are trying to do, is find twelve people who will be fair. Sure, coming into the trial they may have a few preconceived biases or perhaps they lean slightly one way or the other with regard to defense/prosecution. After all, we're human and carry these biases with us. But what we ask, what the law asks, is that each juror puts those preconceived notions on hold for the duration of the trial and wait to make up their minds until they have heard all the evidence. The end game, really is to end up with twelve people who will be fair to both the prosecution and the defense. Twelve people who will follow the law that will be given them by the judge at the of the case, and who will apply the law to the facts presented during the trial.

And twelve people who will reach a verdict.

That's all.

Fairness.

Jury Friday

Friday is going to be jury day, partly because I like structure and knowing I need to write about the same thing every week helps, and partly because I love jury trials and think they are wonderful tools for justice (except when I lose).

So.

Who doesn't like a good gossip? Come on, be honest. Not necessarily a mean one, maybe even a fair and analytical one, but fess up: rendering judgment on a colleague or nosy neighbor is satisfying. Almost as satisfying as passing judgment on the phone-talking, arm-waving drongo in the lane next to you, yabbering away while her turn signal indicates a desire to drive off the freeway into the concrete retaining wall.

So why is jury duty, the ultimate in passing judgment on one's fellow man, so shunned? Why do we see, on every panel, a slew of upstanding citizens doing and saying all they can to be released and sent home?

I can think of several possibilities:

1. It's an interruption, it messes with our carefully-planned and scheduled lives.

Fair enough, we do tend to live within a routine, I get that. But there's got to be more to it than that. If, for example, I dragged you away from work to present you with a check for ten grand, the interruption would be forgiven. (Unless you are a lawyer for a large, civil law firm where you earn that every day just sitting behind a desk.)

2. It's intimidating because we don't know what's expected of us, or how long it'll be expected of us (whatever it is).

Maybe. But that's why we have Law & Order, to teach us how the process works, right? Okay, not really. Jury service is certainly an unknown -- you could be hearing a traffic ticket dispute, a fight between two corporations over intellectual property, or a murder case. But that's more like a Christmas stocking filled with surprises than a sack of snakes on your doorstep. Isn't it? And once you have rearranged your schedule and are here, wouldn't you want to stay? After all, if you do watch Law & Order, you'll probably find it pretty interesting. (see point 4., below)

3. We just don't care.

This one I refuse to believe, though several fellow lawyers have mentioned it as a possibility. I don't believe it because EVERY jury I have had, every single one of them, has taken the case incredibly seriously. I have never seen a rushed decision, a flippant attitude, or a coin-flip for a decision. Quite the opposite, I've seen jurors take cases very personally. And I saw twelve people sit stony-faced as they heard a prosecutor promise "hard evidence" and a "blow-by-blow" account of a transvestite prostitute's offenses. Seriously, not a giggle amongst them.

4. It'll be boring.

Several people in my informal poll came up with this one. I don't think, though, that anyone coming to a felony courtroom will expect to be bored. In fact, I suspect they might actually BE bored on occasion - it really isn't like Law & Order. But if you show up to felony court, you must have some expectation of a serious (and therefore interesting) case. And yet, at that late stage, people still try to get out of it...

More questions than not answers, sorry. But if you want to know why being on a jury makes you awesome, check back next week. I got THAT scoop.