« Deep thoughts | Main | Misunderestimated again »
September 01, 2006
Tales from the Jury Room
Prosecutors -- hell, all trial attorneys -- always wonder what exactly goes on in the minds of jurors during a case, and how twelve strangers arrive at some of the odd results we see when the verdict is read.
Although high-paid jury consultants have carved out a lucrative niche for themselves, applying their "expertise" to the arcane process of winnowing out "bad" jurors, most D.A.s don't have the resources to retain such professionals. And so we muddle through the process of voir dire, following the advice of our peers and professional organizations to ask open-ended questions, engage in a conversation with jurors, try to get a feeling for their ability to play well with others, their prejudices and biases, and whether or not they'd be good company to shoot the breeze with over drinks after work.
Because, after all, what Hollywood screenwriter William Goldman (Butch Cassidy & the Sundance Kid; Marathon Man; All the President's Men) said about the film biz picking blockbuster hits applies as well to jury selection: "Nobody knows anything."
There are all sorts of general bromides that get passed along: Never keep an engineer on a DUI; no social workers, teachers or church workers if the defendant is young and poor; young adults and slackers make terrible jurors for the prosecution 'cause they take nothing seriously.
Sometimes I've followed the "rules," other times I've trusted my gut feeling about a juror. In one case I kept a heavily tattooed, multiply-pierced twenty-something guy on the panel, much to the dismay of the wizened major crimes attorney watching me and taking notes for a recommendation to the boss on whether or not to keep me around.
During a break in jury selection, he asked why I'd kept the guy, instead of using one of my peremptory challenges to boot him out of the jury box. I replied that I simply had a good feeling about the fellow, notwithstanding his ink, youth, inappropriate courtroom attire and junk hanging from his face.
My evaluator smiled and shrugged, telling me, "It's your funeral," and the trial resumed.
The jury convicted the defendant -- I think it was a residential burglary -- and as is often the case, the jurors didn't spend much time chatting with the attorneys afterwards. But a week or two later, I received a memo from the front office, with a note from the District Attorney, attached to a letter from a juror in my last case, praising our office for the way the case had been handled.
It was from Tattoo Boy.
Which goes to show that you never really know.
Anyhow, L.A. prosecutor Patterico posed a question to his readers.
I am a prosecutor. I will never be on a criminal jury.I want to hear from those you who have been.
Tell me about your criminal jury experience. What was the charge? What was the result? What was your vote? What did the jury talk about?
I may ask you questions. I’m on a Treo, so my questions will be appended to the end of your comments. Please watch for them.
I’ll be polite.
Even if you’re a lurker, please answer. I’ll learn a lot from the answers.
Thanks for participating.
P.S. I’m interested in stories about civil juries as well.
The responses have been interesting. Juries sometimes ignore the clear-as-mud instructions read to them by the judge, fixate on minor issues that the attorney never imagined would be pivotal, and simply lie about themselves and their ability to be fair and impartial.
This comment caught my eye, because it's in my courthouse, and I suspect the identity of the witness will be known to all in my office . . . .
I sat on a drunk driving trial in Ventura many years ago. The cops had bagged the defendant driving erratically as she was pulling out of a Mexican restaurant where she’d been knocking back margaritas. She failed field sobriety and Alcosensor, and then the breathalyzer once they booked her. I don’t understand why she didn’t plead out since she was clearly caught red handed.
The thing I remember most was the prosecution’s expert witness who testified for hours in the most monotonous, droning voice you could imagine, and in detail you’d have to be in his field to appreciate. It was a Herculean challenge to stay awake through his testimony.
The thing about DUI trials is that the experts testify over and over and over and over and over again, using the same stories and anecdotes, and the judges, attorneys and court staff hear the same testimony over and over; only the jurors get a fresh presentation. When the expert starts talking it takes a real effort to focus on his voice, and not have it morph into the honkings and bleatings of the adults in a Charlie Brown cartoon: "Wah wah. Wah wah wah wah. Wah wah wah."
Imagine how dry it had to be to have this effect on a first-time listener.
One juror says of his experience:
Most striking things? How well most of the jury behaved: they listened to the judge’s instructions, paid attention to other viewpoints, and in general really did pretty much what was asked of them. Second most striking was that while you know intellectually how some people can cling to views that might charitably be described as “whacko,” it’s a real shock to encounter it face to face and damned frustrating to try to reason with them.
A few lengthy excerpts from Patterico's commenters about other trials follow below.
Criminal case, marijuana smuggling. The defendant was a 50ish guy caught trying to bring about 100 pounds of marijuana into the US via a border checkpoint. The goods were wrapped in plastic wrap (about 34 bundles, if I recall) and hidden in various compartments within the extended cab of his pickup truck and the locked truck bed toolbox just behind the cab.
The lone defendant claimed that he was unaware of the presence of the marijuana –- he was in Mexico with a friend visiting a dentist (recommended by this friend) since he needed to get better fitting dentures. The defendant claimed his ill-fitting dentures had been an embarrassment for him for several years prior, and he had had to resort to gumming his food and was thus entirely unable to eat in social settings.
Supposedly while the defendant visited the dentist, the friend had borrowed the truck for several hours. On the return trip back to the US, the friend had claimed he needed to use a restroom and left the defendant to cross the border solo in the truck, claiming he would walk through and rejoin him later. The entire defense strategy could be summarized as “the friend did it, my client was unaware of anything”.
On the stand during cross-examination, the defendant was asked the name of the dentist, the gender of the dentist, where the dentist was located, if the dentist had offered a good price for dentures, when and if a followup visit was scheduled, etc…
The defendant basically answered “I don’t remember” to all of these questions. He was also asked if he had thought it odd that the contents of his truck bed toolbox (a pretty large amount of storage) had migrated to his cab after his friend had borrowed his truck, and did he ask his friend why all of his stuff was now on his backseat? His answer was “I don’t remember”.
There was other testimony that I don’t recall–none of which was favorable to the defendant. My thinking at this point was that this was pretty much open and shut.
I was shocked to death by our initial vote: 9 guilty, 3 not guilty. We flipped two of the holdouts within 2 hours -– they’d somehow mistakenly gotten the impression that the guy had provided reasonable dentist/toolbox-related answers. The last holdout was a much tougher nut to crack–she insisted that the guy couldn’t possibly be guilty, and gave the following reasons:
1) “he doesn’t look like someone who would do something like this”
2) “he reminds me of my grandfather, so kind and gentle-looking”
3) “when he said that he couldn’t eat publicly, I almost cried”
4) “the prosecution hasn’t proved that the other guy didn’t do it”We finally flipped her after another 2 days … even then, she hesitated for a scary 2-3 seconds when the defense polled the jury after our guilty verdict.
Miss Holdout was about 25, with a bachelor’s degree (Biology, IIRC). She was reasonably cute and seemed to be an otherwise level-headed and intelligent person. This was my only experience on a jury, and largely due to Miss Holdout, I dread serving on another.
Patterico then asked the commenter what advice he could offer to beleagured prosecutors trying to get rid of prospective jurors like the one mentioned above. The juror's reply is interesting.
Trying to convince this woman was like talking to a brick wall -– we would point out evidence, she would “refute” it with non sequiturs and wishful thinking: ”how can we be POSITIVE he really doesn’t remember?” “We could be sending an innocent grandfather to jail for something he didn’t do.”
I was somehow elected foreman, and prior to her finally flipping I was very tempted to send a note to the judge noting that Miss Holdout was disregarding evidence and jury instructions.
During voir dire this woman seemed normal enough … a bit on the mousy, shy side, but she gave no indication that she was so emotionally fixated.
While we were deliberating, she gave an indication that she was “playing possum” during voir dire -– she linked the “gentle-looking grandfather” and “doesn’t look like someone who would do something like this” quotes to her very first sighting of the defendant, and even said something along the lines of “I knew I needed to try to give him another chance” (via serving on his jury, I assumed). At this point I realized that her behavior during voir dire (fidgeting and excessive nervousness) was probably an indication that she was being deceptive in her statements to the court.
Miss Holdout somehow managed to take what little testimony/evidence that she couldn’t entirely disregard and use it to reinforce her preconceived notion of the defendant’s lack of guilt. It’s frightening to consider how many other Miss Holdouts are out there in the juror pool.
As to avoiding such jurors, I would guess that asking more questions of them during voir dire could help weed out some of the Miss Holdouts -– my guess is the average juror during this trial was asked no more than 10 questions during voir dire. I am far from an expert on body language, but I’m assuming that it would be much more difficult for someone to be successfully deceptive during say, 30-40 questions. Of course, this would slow down the procedure by quite a bit.
This next one is a perfect example of how a commonsense juror can save a trial from an eleven-to-one mistrial.
Snohomish County, Washington about 12 years ago; 4th degree assault.
Two-man construction company working on a kitchen/garage remodel out in a rural area. Helper is a bit on the dim side, boss has a temper problem. The day hasn’t been going well, and boss has already tossed helper’s tools into the bushes because he’s pissed.
Boss is up on a ladder with a nail gun, asks helper to go get something. Helper comes back with something else entirely. Boss gets down off ladder and proceeds to berate helper close up. Boss uses nail gun to punch helper in chest for emphasis.
Nail gun goes off.
Boss and helper are now looking at the head of a 3.5″ framing nail which is pinning helper’s shirt to his chest -- it’s ALL the way in. Both panic -- any resemblance to Bluto and D-Day after the horse had the heart attack is purely coincidental, I’m sure -- and run to boss’s pickup and drive over the crappy roads in the Clearview area to get to the hospital at Monroe where a cardiac cutter removes the nail from helper. Fortunately, they didn’t hit any really big bumps on the way in or the nail would have ripped helper’s heart in two.
Charge is 4th degree (reckless) assault. Boss has hired a well-known, very effective local lawyer who is pretty much willing to do any criminal case where the defendant has cash.
Prosecutor lays out what happened; calls the surgeon who testifies about just how serious the injury really was. Defense calls the helper; points out that helper is cooperating with prosecutor because a guilty verdict will help the civil lawsuit the helper has already filed (no fooling). Defense further goes on that this was just an accident, just two guys fooling around and it turned out badly.
Jury goes out. We elect a foreman. I figure maybe 30 minutes tops. Foreman polls. 10-2 for guilty. I’m stunned.
Foreman - very politely - asks #1 hold out why. She says that she knows he did it, but doesn’t think he should go to prison because he didn’t intend to do it. I comment to the effect that a conviction on 4th degree is -- per the judge -- a conviction for RECKLESS disregard and does not involve premeditation. In other words, the motivation doesn’t matter but what does is whether an average person would consider whacking someone in the chest with a live nail gun to be reckless. It doesn’t mean that he’s necessarily going to prison.
“Oh. He’s guilty then”.
Great. One down, one to go. Still pretty much on schedule for that 30 minute deliberation.
#2 is an older guy. He’s convinced that this is just horseplay and that your average construction worker engages in this sort of thing a lot (I have subsequently tested that assertion on various people who’ve been building houses for us and reactions range from horror to ridicule). We go round and round and round and round.
Lunch break. I figured we’d be done by now. No such luck.
Back from lunch. 2 more hours of “No, they’re just goofing around, construction guys do this all the time”. I’m desperate -- the last thing I want to do is spend another day in the jury room with this guy. But if we don’t resolve in the next 30 minutes or so, that’s what’s in the cards.
So I try a last shot. “Carleton,” I say (his name wasn’t Carleton, but there was a character on “Wings” by that name that sounded just like this guy), “Carleton, I’d like you to try a little thought experiment here. I give you an air compressor and a nail gun -- no nails -- and the world’s longest extension cord. You go over to Colby Avenue and walk up to the first dozen guys that look like construction workers and slap that nail gun to their chests. I will give you $1000 for every time you do NOT pick yourself up off the sidewalk. At the end of the day, how much money do you think you’d have?”
Silence for 30 seconds.
“Aw, f**k it, he’s guilty.”
Yay! Back in, verdict to the judge, defense guy polls to force us each onto the record. We stay unanimous. Judge gives the boss a short sentence to be served on weekends and a trip to the anger management class.
Most striking things? How well most of the jury behaved: they listened to the judge’s instructions, paid attention to other viewpoints, and in general really did pretty much what was asked of them. Second most striking was that while you know intellectually how some people can cling to views that might charitably be described as “whacko”, it’s a real shock to encounter it face to face and damned frustrating to try to reason with them.
Been called for selection a couple of times since, but always a bridesmaid and not the bride. Carleton must have passed the word about me.
Like I said, nobody knows anything. But every trial attorney I know has a story about a juror who somehow neglected to reveal that he had some rather enormous reasons why he shouldn't be on a case, reasons that just didn't get mentioned until after the jury hung -- or the defendant walked.
Ah, the mysteries of the jury room.
If this topic is as fascinating to you as it is to me, head over to Pat's site and read the rest of the comments.
Posted by Mike Lief at September 1, 2006 08:32 AM
| TrackBack
Comments
It is an interesting thread, huh?
I'm also very interested to hear your thoughts about my proposal to do away with the rules of evidence. It's the top post at my site now.
Most lawyers say I'm crazy.
Posted by: Patterico at September 1, 2006 08:40 AM
"Never keep an engineer on a DUI." Why is that?
Posted by: Sean at September 2, 2006 10:28 AM
Sean --
The thinking is that engineers tend to pick apart the design and accuracy of the AlcoSensor and Intoxilyzer, second-guessing the validity of the results. They're not supposed to do that. Any questions about the admissibility of the test results is litigated before the trial, and the reliability of the machines has been dealt with many times in a 402 hearing, outside the presence of the jury.
As long as the necessary maintenance and calibrations have been conducted properly -- and testified to -- the results should not be the subject of a juryroom Mr. Wizard arguing outside the evidence.
This is one of the "rules" that actually works pretty well; engineers have been -- in general -- pretty bad about all the ways they'd have designed and built a better DUI-catching mousetrap.
Posted by: Mike Lief at September 2, 2006 11:51 AM
You so very rarely share anything of personal worth, and I found this very enjoyable. It's good to look outside of yourself and see people as they are, despite tatoos (did I spell that right?) or disabilities, or general goofiness.
I'm really pleased to see that you looked at someone beyond their surface. I know it's a challenge for you, but I also know that you are up for the challenge.
Posted by: Dawn at September 10, 2006 07:49 PM