Bigfoot and jurors

One of my guilty pleasures is watching Finding Bigfoot on Sunday nights. If you haven't seen the show it's about four bigfoot "investigators" who travel across the country looking for evidence that bigfoots (or is that "bigfeet") exist.

The group's leader is named Matt. He's the head of the Bigfoot Research Organization. Another group member is Ranae who is a biologist. Cliff and Bobo are the other members of the team.

Being the scientist, Ranae is skeptical of the existence of bigfoot. Whenever the teams speaks to folks who say they have had encounters with a bigfoot, Ranae looks for some other explanation while the other members step all over themselves expressing how much they think whatever the person saw or heard was a bigfoot.

As I watched the other day I couldn't help but think of jury panels. Ideally the members of the jury panel would be skeptics. After all their job is to determine whether or not the prosecutor has proven his or her case beyond all reasonable doubt. That means they should treat trial like a scientist would treat an experiment - a chance to prove the hypothesis wrong.

After all that's what the scientific method is all about. You develop a hypothesis and design tests to disprove it. If, after conducting all of your experiments, the hypothesis hasn't been disproven, it stands to reason that it might be true.

But that's not how jurors seem to think. Most jurors don't understand what's behind the scientific method. They look at trial (and experiments) as a way of proving up a hypothesis. In other words, instead of forcing the prosecutor to prove each and every element (being skeptical of the charge), they force the defendant to disprove the state's theory. This backward approach means that instead of forcing the state to prove up each and every element of its case beyond all reasonable doubt that they are forcing the defendant to point out reasonable doubt as the case moves along.

And along with such a mindset comes a complete discounting of the presumption of innocence.

Just like the three members of the team who start off with the assumption that bigfoot is real, jurors who miss the point of the scientific method are looking out for any evidence that supports the state's theory of the case without applying the skepticism that is a hallmark of science.

Roger and me

Whenever a jury is picked for a case the judge will admonish the panelists that their decision is to be made based solely on the evidence presented in the courtroom. She will warn them not to conduct any research or investigations on their own.
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Do jurors listen and follow the admonishments of the court? Who the hell knows. As one colleague of mine up in the Dallas area would say - most of them probably do because they're a bunch of rule followers. And where does she come up with that notion? Well, let's see, they received a piece of paper asking them to show up and they answer a bunch of personal questions asked by a couple of strangers. Being that, at least in Harris County, only about one in five folks show up for jury duty, it's a pretty good bet that most of the folks that do are obsessed with following rules.

But not everyone heeds the warnings. Let's face it, if they did, there would be no reason to warn them so many times, and in so many ways, to follow the law.

Chris Green of Harris County was one of those folks who didn't do a very good job of following the rules. He was one of 13 jurors (one was an alternate) selected to hear the capital murder case of Jorge Amezquita. Now I'm not going to get into the facts of what Mr. Amezquita is accused of because it isn't germane to this piece.

Even though during the voir dire process, the judge and the attorneys would have talked about what capital murder is and what the possible range of punishment is (dying in prison or being murdered in prison), Mr. Green was still confused when he went home for the day. Instead of asking questions during the selection process, he waited until he got home and typed "capital murder" into his search box. What he found out must have knocked him senseless.

He was so worried that, due to the seriousness of the charge, that someone might be a tad bit upset should Mr. Amezquita be convicted and that that someone might come after members of the jury. He then mailed a letter to district judge Maria Jackson expressing his concerns.

But that wasn't all. Mr. Green then spoke to the other members of the panel, as well as the alternate, and convinced them that their identities should be kept confidential. He then persuaded his fellow jurors to put their signatures on a revised letter that asked the judge to do just that.

Now this might come as a bit of a surprise to Mr. Green and his fellow jurors, but our jury system is one of the most important forms of democracy. Everyone who is charged with a crime, whether they be wealthy or dirt poor, black or white, male or female or any other distinction you wish to make, is entitled to have their case heard by a group of their fellow citizens (forget about that "jury of you peers" nonsense, however). And these folks, with little or no legal training, will make a decision that is binding on everyone in the courtroom.

But a defendant has a right to know who is deciding his case. We can't have secret jury panels making those decisions because then there is no accountability. The system depends upon transparency. Making sausage can be a nasty business, but it's best to do it in the light in front of people so that everyone knows what's going through that grinder.

If Mr. Green didn't feel that he would be a good juror on a murder case, he should have told the judge, the prosecutor or the defense attorneys. He had the perfect opportunity to do so - and no one would have thought any lesser of him had he expressed his concerns at that time.

And I can guarantee y'all that Mr. Green wasn't the only juror that day who wasn't entirely honest during voir dire. I can guarantee he wasn't the only one who didn't express his concerns about his ability to sit in judgment in a particular case. He's just the one who's conduct was outrageous enough to merit attention.

After she received the letter, Judge Jackson ordered a hearing to determine whether Mr. Green could remain on the jury. And that's when things got even weirder. It turns out that Mr. Green wrote the letter after he spoke with a family friend about his concerns about serving on the jury. That family friend was a former state district judge. That family friend lost his bench during the Democratic landslide in 2008. That family friend took a position as the top assistant to then-District Attorney Pat Lykos.

That family friend was Roger Bridgwater.

And now the jury selection process begins anew. Judge Jackson will once again admonish a panel of jurors to base their decision solely on the evidence presented in court and not to conduct any outside investigation of the facts of the case. And someone else will be tempted to type some words into a search box, but this time we won't hear about it.

Anyone interested in testifying?

All I can say is "Thank God for New York." Texas may be known as the Killing Fields for the number of inmates we murder year in and year out, but at least defendants in Texas courts don't get screwed the way those facing trial in New York do when it comes to jury instructions.

Sure, juries down here want to hear your client testify just as much as they do up in New York. I once had a juror tell me she kept on waiting for us to put on some evidence but, because we didn't, she felt she had no choice but to convict. I just shook my head and stuck my fingers in my ears to keep the blood from spilling out.

At least when our client takes the stand to testify we don't get the instruction they use up in Scott Greenfield's neck of the woods.

Ironically, if a defendant does testify, the prosecution then gets an instruction about his interest. 

Interest/Lack of InterestYou may consider whether a witness has any interest in the outcome of the case, or instead, whether the witness has no such interest. 

[Note: Add if appropriate:
A defendant who testifies is a person who has an interest in the outcome of the case.] 

In other words, it's up to the jury to decide whether every other witness has an interest in the outcome of the case. The jury is instructed that the defendant, on the other hand, alone, is an interested witness.  The defendant, alone, has a motive to lie.  The jury s told that defendant, alone, is the only witness whose testimony is inherently biased. 

Down in the Lone Star State that would be a comment from the bench about the weight of the evidence - and that's a big no-no. Well, that is if the comment would be beneficial to the defense.

Sounds like you're damned if you do and you're damned if you don't up there.

The decision to put your client on the stand is one of the most difficult decisions we have to make. Sometimes it can be the difference between a one- and a two-word verdict. But, if it goes wrong there is almost no way to fix the damage.

You can prepare a client all you want but you can't make them pay attention to what the other witnesses are saying and you can't prevent them from falling into the prosecutor's trap.

I once had a client who insisted on testifying. He had been charged with driving while intoxicated. He told the officer he had had seven or eight beers over the course of the evening. That, of course, was enough for Deputy Fife to slap the cuffs on him and take him downtown.

One Sunday morning I had a friend of mine come to the office so we could let my client get a taste of cross-examination. My friend lobbed the softballs for the defense. I was going to throw the nasty stuff as the prosecutor.

Somewhere between "have you ever drank to the point that you were intoxicated before?" and "would you drink seven or eight beers and then go pick your daughter up from school?" he decided that taking the stand wasn't the best idea in the world.

He just wanted to tell his side of the story - like most defendants new to the drill do. What he didn't realize is that you don't get to tell your side of the story in isolation. Once you take the stand you have to deal with the prosecutor who knows the trap questions to ask.

So why does the court insist on such a prejudicial instruction should the defendant take the stand? The arresting officer has an incentive to lie. He can feel free to exaggerate all he wants because he knows what's on that video and what's not. He can tell the jury the defendant exhibited all six clues on the HGN test because no one can see his eyes. He can tell the jury the defendant reeked of alcohol or that his eyes were glassy. There's no one to contradict it. Was he speeding? Did he change lanes without signalling his intention to turn? Was he weaving? Hell, we don't know. But there's the officer testifying to the dangerous way in which your client was driving.

Nope. He doesn't have a motive to lie. But there are times you can catch him in a lie. They don't come often, but they are sweet. And, once the jury realizes the officer was lying, there's no stopping that runaway train.

Poor, petty, pitiful you

I witnessed something this past week that seemed more appropriate for a smoke-filled back room than a PTA meeting. It's been written here in the blawgosphere that when you hand someone a job with very little authority, pettiness often follows. Take a look at parking lot attendants, TSA screeners and municipal court judges, for example.

My wife served on the board of the PTA at our daughter's school for the past year as treasurer. As it turned out there were some clashes of personality among the board members since not everyone wanted to do everything the same way.

Last week, however, took the cake. It was election time once again for the PTA. For the last month or two board members were firing incendiary e-mails back and forth across the listserv at one another. For an added measure of thoughtlessness, the school's principal was following the exchange on the listserv.

Thursday night was the big night. All during the day the e-mail bombs kept falling. I, on the other hand, was just looking forward to some warm pizza and a Dr Pepper at the end of the day. As it turned out, one of the board members brought her mom, who signed up as a member, to the meeting, along with a dozen or so brand new members. Some of the new members' kids wouldn't even be students at the school until next year.

At that point the fix was in. As soon as my wife figured out what was happening she pulled her name off the ballot. She was in shock at what had happened. She was dumbfounded that someone would pack a meeting just to keep her "opponents" off the board.

Meanwhile I went to the music room where my daughters were hanging out and watched Mary Poppins.

What I found remarkable is that we were talking about the PTA board. The PTA has no voice in the running of the school. It exists solely for fundraising and to create the illusion that the parents have some say in the way the school operates. Few people are confused about this.

These little petty tyrants are everywhere. You'll find them at the DMV, with the homeowners' association and on your jury panel.

School's in session

There are many ways to poison a jury pool.

Prosecutors can tweet the names of people arrested for DWI or post their photos on Facebook. Prosecutors can castigate jurors after an acquittal and give them information the judge ruled inadmissible at trial. Prosecutors can leak information to reporters about high-profile cases.

But the Dallas County District Attorney's Office has come up with an ingenuous way to poison potential jurors. It's called the Citizen Prosecutor Academy. It's an "intensive" ten-week course offered in both the spring and fall twice a week to teach citizens how the system malfunctions "works."

"Unless an individual has served on a jury or unfortunately been a victim of a crime, the average citizen simply does not know how the system works," said Dallas County District Attorney Craig Watkins . "Last fall, we were approached by James Tate, a graduate student in the Master of Public Policy program at the University of Texas at Dallas, about starting a Citizen Prosecutor Academy in Dallas County. Mr. Tate had participated in a similar program in another county and after he shared his experience with us we were inspired to create our own academy. The curriculum is being developed by a diverse team of seasoned prosecutors, so we are optimistic it will be a success. Our primary goal is for participants to graduate from the program with a realistic and informed perspective of the inner workings of the district attorney's office that we hope they will share with others."

A "realistic and informed perspective" of how the DA's Office works? Really?

The mission of the Dallas County District Attorney’s Citizen Prosecutor Academy is to enable Dallas County residents to be exposed to the numerous procedures within the Dallas County District Attorney’s Office.  This will provide Dallas County residents the opportunity to engage in open dialogue with prosecutors and leaders in the community, and discover the practices and methods of the judicial process.  Our goal is to inform citizens who will share their experience with neighbors, friends, and family in their communities.

Now I will give Mr. Watkins his just due. His office has been at the forefront of exonerating wrongly convicted inmates through the use of DNA testing. In fact, since 2001, there have been more DNA exonerations out of Dallas County (21) than out of any other county in the country.

But, back to the indoctrination course...

According to the press release:

Each week, participants will hear from guest speakers including assistant district attorneys within various divisions/units of the DA's office, and other key personnel in Dallas County's criminal justice system.

There's nothing in the press release about speakers from the criminal defense bar. Now, maybe that was just an oversight. Maybe "other key personnel" refers to criminal defense lawyers. But I doubt it.

I'm sure the folks who sign up for the academy won't hear much about illegal and repressive bond conditions, the abuses indigent defendants face in the courts, how junk science is used to obtain convictions or the ways in which Brady material is either hidden or never disclosed.

A master and his craft

The other day I was stuck in the Harris County Criminal (In)justice Center a bit longer than anticipated. There was a trial going on in the 232nd - a young man was charged with murdering another young man. The young man was convicted. The punishment hearing happened to be going on the day I was in there.

The young man was represented by my esteemed colleague, Tyrone Moncriffe. I've seen Mr. Moncriffe give a couple of presentations at CLE seminars I've attended over the years. I hadn't, however, had the opportunity to watch him in person. What I saw amazed me.

His closing argument was eloquent. He stood before the jury and told them that he felt he had let his client down. He told the jury that he wasn't mad at them for their verdict - he was mad at himself. He also told the jury that he was afraid of them.

He pointed out that his client had no criminal history and that no one who took the witness stand had anything bad to say about him. He told the jury that what happened that night was out of character and he asked them to keep that in mind when they retired to the jury room.

He told the jury that they didn't know his client. They only saw him a few hours a day sitting at counsel table. He told them that he sat beside his client. He had met with his client's family and friends. He pointed out that once the jurors had rendered their decision that they could walk away from the case and forget all about it. But, the one thing that would stay with them was their decision.

It was a very powerful close. He never once raised his voice. He expressed his sorrow for the victim's family.

But, more than that, he expressed the feelings that all of us in the defense bar experience. There are few things harder than standing beside your client and hearing a jury declare him guilty.

Mr. Moncriffe's client was sentenced to 10 years in prison.

That's ten years of asking yourself if there was anything else you could have done.

UPDATE:

I spoke with Mr. Moncriffe this morning about his close and he told me the last offer from the prosecutor was 45 years. I would consider that a good outcome.

Some more jury math

This past week I tried a DWI case in Harris County (that ended in an acquittal) and we used a series of scaled questions to obtain information from each of the jurors. The questions ranged from the jurors' attitudes toward police witnesses to their views on whether order is more important than liberty. Some of the questions pertain directly to trying the case and others seek to determine whether the juror is more individual-oriented or state-oriented.

The panel consisted of 20 people. The judge struck three for cause on his own motion (and made it quite clear during voir dire who they were). He told one juror that she was not going to be on the panel before I ever asked my first question. The judge also sustained an objection to my first question and pretty much instructed the panel how to answer it. Therefore, the results are based on 19 jurors answering five questions.

The panel consisted of 10 women and 9 men. Eleven of the panelists were white, six were Hispanic and two were African-American. There were three panelists in their 20's, three in their 30's, three in their 40's, three in their 50's and eight panelists were over the age of 60. On the actual jury there were five women and one man. Four of the jurors were white, one was Hispanic and one was African-American. Four of the actual jurors were over the age of 60, one was in his 30's and one was in her 40's.

A little word of warning - there were a few jurors whom I think answered with 5's for the last two questions because that seemed to be a reasonable position to take (in the middle).

The first question asked jurors to rate (on a scale of 0-10) how much weight they would give the testimony of a police officer solely because he wears a badge. The higher the number, the more weight they would give the officer's testimony.

The panel as a whole averaged a 0.2. The three jurors we struck, and the three jurors the state struck, averaged a 0.0. The six people (one man, five women) who heard the case averaged a 0.0.

The next question asked jurors to rate (on a scale of 0-10) whether they would hold it against my client if he didn't testify. The higher the number, the more they would hold it against him.

The panel as a whole averaged a 1.8. The three jurors we struck averaged a 1.3. The three jurors the state struck averaged a 3.0. The average for the actual jury members was a 1.7.

The third question asked jurors to rate (on a scale of 0-10) how much they agreed that it was better for 10 guilty men to go free than for one innocent man to be convicted. The lower the number, the more they agreed with the statement and the stronger they adhered to the presumption of innocence.

The panel as a whole averaged a 0.7. The three jurors we struck averaged a 1.0. The three jurors the state struck averaged a 0.0. The average for the actual jury members was a 1.3.

The fourth question asked jurors to rate (on a scale of 0-10) whether they felt that liberty or order was more important. The higher the number, the more they believed that order was paramount; therefore, the more state-oriented was the juror.

The panel as a whole averaged a 4.9. The three jurors we struck, as well as the three jurors the state struck, averaged a 5.0. The average for the actual jury was 5.0.

The final question asked the jurors to rate (on a scale of 0-10) which was a greater danger to liberty: overzealous law enforcement or criminals. The lower the number, the more they believed that overzealous law enforcement was the greater threat and the more individual-oriented was the juror.

The panel as a whole averaged a 5.6. The three jurors we struck averaged a 7.7. The three jurors the state struck averaged a 5.0. The average for the actual jury was 6.0.

The average answer for the panel as a whole (to all five questions) was 2.7. The average answer the three jurors we struck was 3.0. The average for the three the state struck was 2.6. The average for the six who sat on the jury was 2.8. Two of the actual jurors had previously served on a criminal jury. The foreperson indicated to me afterward that she found it harder to make a decision in this case case than in a murder case.

Both the panel as a whole and the six folks who served on the jury indicated that they wouldn't give a police officer "head start" and that there was little likelihood that they would hold my client's silence against him. They also indicated that they had no problem releasing a guilty man in order to avoid convicting an innocent man. The questions also indicated that this panel was a bit more state-oriented than individual-oriented.

Our decisions on strikes had more to do with the answers to other questions than they did with the answers to the scaled questions. In fact, we pretty much decided on our strikes before even considering the answers to the scaled questions.

When going back and doing the math, the panel was actually more favorable to our side than it seemed at the time.

Peeing in the pool

"Well I just can't believe you bunch of ignoramuses just voted to find that piece of shit defendant not guilty! Would y'all have voted the same way if I told you all the stuff the judge said I couldn't? Do y'all want to know just what this little SOB has done in the past?"

Okay, that's probably not how it goes down. It's more subtle than that. The prosecutor, still bothered that a jury acquitted a defendant, wants them to know what a bad decision they actually made. He wants them to know that there's a whole lot of stuff that mean ol' judge wouldn't let him talk about. So he lets loose with a tasty morsel of two.

Problem?

You bet.

Why would he do that?

Because he knows that the jurors have family, friends, neighbors and co-workers. He knows those jurors are going to talk about the case once it's over. He knows those jurors are going to tell everyone to be wary because they won't be getting the whole story. In short, he's doing his best to poison a little bitty piece of that jury pool.

In Wednesday's Houston Chronicle, Houston appellate attorney Brian Wice fired a shot across the bow of the Harris County District Attorney's Office when he publicly castigated the prosecutors who decided to pee in the pool after a famed Houston doctor, Michael Brown, was acquitted of assaulting his wife. 

Apropos of nothing, the junior prosecutor who had handled almost all of the most important parts of the trial announced that he wanted the jury to know all about "the real Michael Brown." In a matter of moments, and over DeGuerin's objection, the prosecutor tainted the jury with the details surrounding Brown's plea of no contest and his deferred adjudication for assaulting his third wife in 2003 that made this case a felony, not to mention a number of assertions disputed by the defense disparaging Brown's character and reputation - the very evidence Judge Wallace had properly excluded from trial. But the prosecutor was not quite through. By repeating these reckless allegations to the battery of cameras, microphones and notepads outside the courtroom, the prosecutor took a backhanded slap at Judge Wallace for following the law and the jurors for following their oaths.

Simply put, in my opinion the prosecutor's comments crossed the line on both a personal and professional level. A former high-ranking member of the Committee for Lawyer Discipline said she thought these remarks violated State Bar Disciplinary Rule 3.06, which prohibits any lawyer from making any post-verdict comments to a juror "calculated merely to harass or embarrass the juror or to influence his actions in future jury service." By informing the jury about evidence that was clearly inadmissible in a thinly veiled attempt to make the jury feel badly about its verdict, the prosecutor's comments were calculated to influence not just the 12 folks who had acquitted Brown, but any of their friends with whom they might share the prosecutor's remarks, and who might find themselves on juries in the future.

There is little doubt what the prosecutor was attempting to do - and what he was attempting to do was unethical. He was caught red-handed standing in the yellow end of the pool.

Mr. Wice could have called out the prosecutor by name - but he chose not to. He was upset about what happened after the verdict was read and he voiced his displeasure in an op/ed piece. He was not interested in humiliating or embarrassing a prosecutor.

But it didn't take long for Nathan Hennigan, our antagonist, to make himself known.

I am the "out of line" prosecutor. My name is Nathan Hennigan. Wice didn't want to call me by name, but I feel a necessity to respond, as most don't know who I am, due to his subterfuge, but I am proud to say,,. Brian Wice is an appellate attorney. He is a good appellate attorney, but he isn't a trial attorney. That is because he is not a likable person in the least. He actually reminnds me of the weasels from "Who Framed Roger Rabbit." Uncanny. What happened in the jury room is as follows...Dick Deguerin went on a 5 minute rant on what a psycho the complainant was. I wanted just to answer questions, but, I felt it was my duty to explain the truth. The truth was Michael Brown beat Darlina with a bedpost while she was 7 months pregnant. The truth was he is probably the worst person I've ever dealt with, (and that includes an MS13 Gang member I locked up for life). I offer no apologies to Wice, DeGuerin, or anyone else. I am proud to stand up for the Harris County District Attorney's Office and fight for what is right. Even if it isn't easy.

It's a shame that Mr. Hennigan couldn't have shown the same class that Mr. Wice did. Instead of a reasoned defense of his actions, Mr. Hennigan chose to resort to name-calling. He couldn't defend his actions so he attacked those who spoke against him. Mr. Hennigan is a true believer and he has gulped down the koolaid on the 6th floor of the Harris County Criminal (In)justice Center.

My colleague, Murray Newman, weighed in on Mr. Wice's op/ed piece yesterday. I like Murray. He's a good guy. I'd buy him a beer (or even give him one of my home-brewed brown or English ales). But Murray still has a place in his heart for the DA's office. I think there are times he loses a little bit of perspective -- and this one of them.

Mr. Wice pointed out a problem that we have been dealing with for years. It's a practice that's been allowed to continue because we haven't stood up and fought to change it. Jury members are exposed to the bias of the state from the minute they enter the Jury Assembly Room. Bailiffs make comments that cast aspersions on the defense. Judges conduct a voir dire that, in some cases, comes right out of the prosecutor's manual.  The citizen accused is not called by his name during the proceedings, he is labeled as "the defendant" in an attempt to dehumanize him. And then prosecutors do their bit after the verdict.

It all adds up to chipping away at the very presumption of innocence -- the only presumption you are allowed to make in a criminal courtroom. I don't know if Mr. Hennigan had "malice aforethought" before he spoke to the jurors. I don't know Mr. Hennigan. From what I've been told he's a nice guy. And I'm sure he is.

But just because he's a nice guy doesn't mean that he didn't do anything wrong.

We're at such a disadvantage from the beginning that the last thing we can afford to do is to allow the state to poison the jury pool any further. That's what Mr. Hennigan did. And that's what we've got to stop.

See also:

"A sore loser" Simple Justice (Sept. 29, 2011)

Googling our brains

A new study indicates that the internet has changed the way we remember things. It appears that if we know we can access the information on the computer (or internet) that we have less ability to recall the actual information -- though we certainly can remember where to find it.

Sparrow says her movie trivia failure reminded her of a concept called transactive memory, proposed 30 years ago by her Ph.D. adviser Daniel Wegner. According to the theory, people divide the labor of remembering certain types of shared information. For example, a husband might rely on his wife to remember significant dates, while she relies on him to remember the names of distant friends and family—and this frees both from duplicating the memories in their own brains. Sparrow wondered if the Internet is filling this role for everyone, representing an enormous collective act of transactive memory.

To test this idea, Sparrow devised a series of offline experiments to catch people in the act of relying on future access to information—say, a Google search—rather than memorizing the information themselves. “I didn't want them to actually have access to the information but just think that they would,” she says. For the first set of experiments, which involved 106 Harvard undergraduates working on desktop computers, Sparrow tested whether people thought of the Internet as soon as they were posed true-false questions such as, “An ostrich's eye is bigger than its brain.” She employed a psychological method called a Stroop task. After the trivia questions were posed, various colored words would appear on the screen. When those words matched topics that people were already thinking about, they tended to react more slowly when asked to name the words' colors. And indeed, when the colored words were Internet-related, such as Google or Yahoo, the students answered more slowly, indicating that they were already considering going online for answers.

Then Sparrow played a trick on her subjects. She presented 40 different trivia statements to the students and had them type the factoids on the computer. She told half of the group in advance that the computer would save what they had written so they could see it later; she told the other half that the computer would erase it. Then all of the students were challenged to write down the statements from memory. Those who had been told that the computer would erase their notes had by far the best memory of the statements, as if their brains had made an emergency backup. Those who were expecting to retrieve the information later performed more poorly.

"Transactive memory" is the phenomenon that Dr. Daniel Wegner says he seems with long-term couples. According to his research, couples who have been together a long time tend to rely on each other to remember things. You can think these long-term couples as parallel computers. One partner might be best at remembering the day-to-day activities of life while the other partner is the "encyclopedia."

So the concept isn't new, but what does it mean?

Does "transactive memory" affect jurors? Is it something that we need to be aware of during jury selection? Are jurors more or less likely to go home and do their own research? Or is this all much ado about nothing?

Is the internet just our instant library? When we went to school we certainly didn't memorize everything we were taught. We memorized our alphabet and our multiplication tables as well as some rules in geometry. But what we really learned was how to find the answer to a problem. Dr. Roddy Roediger at Washington University in St. Louis doesn't find the results to be all that alarming.

The study is “convincing,” and “there is no doubt that our strategies are shifting in learning,” says Roddy Roediger, a psychologist at Washington University in St. Louis, Missouri. “Why remember something if I know I can look it up again? In some sense, with Google and other search engines, we can offload some of our memory demands onto machines.” But Roediger says this trend started long before the Internet. “When I was a student, many years ago, we consulted books and encyclopedias to write papers. Now students can do it at home on computers. Is that a bad thing? I don't think so.”

Said Dr. Sparrow:

"I don't think Google is making us stupid - we're just changing the way that we're remembering things... If you can find stuff online even while you're walking down the street these days, then the skill to have, the thing to remember, is where to go to find the information. It's just like it would be with people - the skill to have is to remember who to go see about [particular topics]."

Might this be a reason to request that jurors be allowed to take notes during trial? If we are better able to process where to find the information rather than remember the information, would it be a benefit for jurors to write down their thoughts and observations during trial, rather than try to remember what they saw and heard afterward?

Or would it prove more of a distraction? Would jurors spend so much time taking notes that they miss the essence of the testimony or evidence presented? Would jurors then rely on other people's notes back in the jury room during deliberations?

Just a little something to think about.

Today on candid camera...

I guess sometimes the ol' eyes in the sky work to the benefit of the folks getting arrested.



Angela Horton, who was relieved of her duties as a police officer for the City of Houston, said she regrets hitting a suspect in the face while he was handcuffed. Ms. Horton's attorney said she let her emotions get to her when she slugged the suspect in full view of the camera in a news helicopter. Of course, she also wants us to know that  police officers must make split-second decisions out on the street.

I'm not sure that hitting a defenseless man in the face is one of those decisions.

Now for anyone who doesn't think police officers succumb to high levels of adrenaline following a chase, think again. For anyone who doesn't think that suspects are beaten by police, think again.

Judges, juries and prosecutors don't want to believe that the boys (and girls) in blue ever cross the line in doing their jobs. Judges, juries and prosecutors are wrong. It's just that most of the time it happens off camera. And if there's no video -- no one believes the defendant.

We are trained from a young age to trust the police. And, no matter what anyone on the panel says, jurors are going to give more credibility to the word of a police officer than to your client. We all know it. But we play the charade that something's that been burned into someone's brain can be erased by the judge saying a few words.

No one should be shocked by what Officer Horton did that night. We should only be shocked that someone got it on camera.

Juror sentenced for using Facebook during trial

Joanne Fraill of Manchester, England (probably a Man U. fan), found out the hard way that Facebook and jury duty don't mix well.

On Thursday, Ms. Fraill was sentenced to eight months in prison after being found in contempt of court. It would seem that, while serving on the jury, Ms. Fraill "friended" -- and the use of that word as a verb should itself be a criminal act -- one Jamie Stewart, a defendant in a felony drug case, on Facebook. While the jury was deliberating, Ms. Fraill made contact with Ms. Stewart and discussed the case with her. She even provided Ms. Stewart with details of the jury's deliberations.

Sentencing Fraill, Lord Judge said in a written ruling: "Her conduct in visiting the internet repeatedly was directly contrary to her oath as a juror, and her contact with the acquitted defendant, as well as her repeated searches on the internet, constituted flagrant breaches of the orders made by the judge for the proper conduct of the trial."

Interestingly enough, the shenanigans occurred after the jury had informed the court that it was deadlocked. The court then gave the jury the option of deciding the case by a majority vote, rather than a unanimous vote.

Ms. Stewart, who was acquitted, was given a suspended sentence for her role in the online communications.

The widespread use of Facebook and Twitter (and other social media sites) is straining this artificial construct we call the trial. Unless we are going to sequester every jury in every case, someone is going to do a little "research" on the internet about the case. It may be pulling up maps of the scene of an accident. It may be looking at the online profiles of the attorneys involved. Someone might look for the defendant on Facebook or Twitter. Someone's going to go to Google to find out about the breath test machine or DNA testing or some other field of forensic (pseudo-)science.

The information they find might be helpful to the defense. It might be harmful to the defense. It won't, however, be subject to cross-examination. It won't be subject to relevancy or hearsay objections.

Most of us won't have to worry about it too much because most of our trials last no more than a day or two and none of the details of the case ever make it to the local paper.

But one thing is certain - technology has (once again) outpaced our legal constructions and conventions. I don't know what the answer is. Jurors may say they won't do any research outside the courtroom -- but jurors also state they won't allow their own biases to prevent them from being fair (even after they've admitted they will hold it against your client if she doesn't take the stand in her own defense).

The hidden agenda

How anyone can think it is appropriate in any way shape or form for counties to place displays in front of their courthouses for crime victims is beyond me. The latest one comes from a reader by the name of Kirk who sent me a link to the display in Henderson County.

According to this article in the Tyler (Texas) Morning Telegraph, it's not laundry day on the square in Athens, it's a memorial to the victims of crime, primarily domestic or sexual assault.

I understand the need for cathartic therapy. I understand that someone who has been sexually assaulted must deal with unseen scars long after the assault is over.

But I also understand that everyone criminal defendant who walks into the Henderson County Courthouse is presumed innocent unless the state is able to prove each and every element of its case beyond all reasonable doubt. Every potential juror in Henderson County will walk right past this display every day that it's up. The display was approved by the County Judge and Commissioner's Court. (For those of y'all not familiar with the way we do things in Texas, those are the folks who rule supreme in the county.)

Criminal cases are tried in the name of the state. That's the government, folks. The government approved the placing of the display on the courthouse grounds. The government is bringing charges against people for allegedly breaking the law.

Each and every one of these displays across the state violates the rights of a defendant in a criminal case. Each and every one of these displays is put up with the purpose of influencing jurors. It is part of the ongoing assault on the Bill of Rights and our constitutional protections.

See these previous posts:

"Presumption of innocence? What presumption of innocence?" (Oct. 5, 2009)
"Not a good week to be on trial in Montgomery County" (Apr. 11, 2011)

Not a good week to be on trial in Montgomery County

By proclamation of our dear leader, the fair-haired one, Governor Rick Perry, the week of April 10-16, 2011 is "The Defendant's Not Deserving of a Fair Trial Week."

We all have the right to be free from unreasonable search and seizure at the hand of the state. Those accused of breaking the law have the right to remain silent and the right to consult with an attorney. Defendants at trial have the right to trial by jury and due process rights, including the right of confrontation.

The state has the right to notice of certain items as well as the right to demand a trial by jury.

The complaining witness (the alleged victim) has no rights in criminal court. The complaining witness is not a party to the litigation.This notion that "victims" have rights assumes that a crime was committed and is used as a front for attacking the Bill of Rights and a criminal defendant's due process rights.

Up in Montgomery County they take that notion to an extreme with a banner across the courthouse entrance and a "Crime Victim Memorial Wall" in the courthouse. Nothing like walking a jury passed those displays and then expecting them to sit in judgment of another without being influenced by it.

When a person sits at the defense table facing a jury of his peers, he deserves a jury that is going to make its decision solely on the facts of his case, not a jury that's going to base its decision on the fact that someone thinks a message must be sent or that a statement must be made.

Now I'm sure there are plenty of folks who don't see the problem with these proclamations and displays - and I understand that attitude. After all, most of us will never set foot in a courtroom accused by the state of committing a criminal act. But in the event that someone you know finds himself or herself in that position, would you want a jury who would presume them innocent unless proven guilty or a jury that was exposed to pro-prosecution propaganda on the way into the courthouse?

That's the real issue here.

What is reasonable doubt?

Why is it necessary for a jury to be unanimous in order for a defendant to be acquitted?

If "we are asking jurors to decide a person's fate based on imperfect information," then should every criminal defendant be acquitted on grounds that imperfect information necessarily generates a reasonable doubt? -- Comment from Randy, Does social media threaten the jury system?

Isn't the very fact that six, or twelve, jurors can't come to an agreement that a person is guilty evidence of reasonable doubt? After all, the burden of proof in a criminal case is on the state, not the defendant. If the state can't convince a panel of citizens in the courtroom that the defendant did something bad, why should the defendant have to go through the time and expense of another trial?

Scott Greenfield at Simple Justice touched on this topic back in September:

In Oregon (anywhere else?), a verdict of 9 for conviction is apparently sufficient to convict, whereas it's a hung jury elsewhere.  Not having tried a case in Oregon, this came as news to me.  Shocking news.  Of a twelve person jury, the fact that one of four jurors found that the evidence failed to prove guilt beyond a reasonable doubt means nothing.  Close enough for government work.  And a conviction.  Next case. 

* In the State of Oregon it takes 10 jurors to convict of any crime short of murder; it takes 11 to convict for murder. A comment to the post pointed out that Johnson v. Louisiana spoke to 9-3 verdicts.

Still, the question remains why the State of Oregon finds a non-unanimous jury verdict acceptable to convict.  Putting aside its rejection of the historical common law understanding that a jury verdict be unanimous for conviction, it seems incomprehensible that a state would believe the rejection of a quarter of a jury that the evidence proved guilt beyond a reasonable doubt to be an acceptable, no less good, idea.  It may be my bias, but it strikes me as barbaric.

In Johnson v. Louisiana, the U.S. Supreme Court held that the Sixth Amendment did not require unanimous jury verdicts in state criminal trials. The Court found that it was perfectly logical for a man to be convicted of a crime if 75% of the jurors thought he was guilty. The very notion is absurd on its face.

How many of us would trust a doctor if he were only 75% certain of his diagnosis? But that's enough certainty in Louisiana to lock someone up in the penitentiary in Angola.

But back to the original question -- what interest is served by ordering a mistrial whenever the jury is hung? We are all considered innocent unless, and until, proven otherwise beyond a reasonable doubt. If the jury cannot all agree that the defendant is guilty as charged, then the state has failed to prove its case beyond all reasonable doubt. That logically means the defendant is not guilty and should be allowed to go about his or her business. Why should the state get another bite at the apple?

Of course logic and law don't always go together.

My daughter the juror

I think my seven-year-old daughter would make an ideal juror in a criminal case.

The other day we were driving to the park and came to an intersection with a left turn lane. There was no protected left turn. There was a sign, however, overhead that warned drivers turning left to yield to oncoming traffic.

My daughter asked me what "yield" meant. I explained to her that it meant if you saw anyone coming toward you, you had to stop and wait until they passed before you could turn left. I thought, somewhat misguidedly, that I had cleared it up with my response. My daughter then let loose with a barrage of questions.

"What if there was someone behind you?"


"What if the car coming toward you was stopped?"


"What if the car was backing up?"


"What if...?"

As frustrating as it was to try to answer every little scenario her brain could imagine, I was impressed that she was being inquisitive and creative. A pat answer was no good for her. She wanted to apply the rule to things she imagined would happen on the street.

She was curious and willing to think outside the box.

It's a wonderful trait our children have. It's a wonderful trait that most of us had at one time in our lives. And it made me wonder what happens to our curiosity. What is it about our society that causes people to label folks who think outside the box as crackpots?

It's that curiosity and willingness to look at problems in different ways that opens us up to new possibilities - including reasonable doubt.

Does social media threaten the jury system?

The top judge in England and Wales, the Lord Chief Justice, Lord Judge (I'm not making this up) has added his voice to those concerned about the risks social media poses to the jury system.

"We cannot stop people tweeting, but if jurors look at such material, the risks to the fairness of the trial will be very serious, and ultimately the openness of the trial process on which we all rely, would be damaged." -- Lord Judge

He noted during his lecture that some jurors in a rape case used the internet to conduct research during the trial. He also pointed out an incident in Manchester where a judge had to dismiss the jury and restart the trial because a juror posted details of the trial on her Facebook page and asked her friends "did he do it?"

"If it is not addressed, the misuse of the internet represents a threat to the jury system which depends, and rightly depends, on evidence provided in court which the defendant can hear and if necessary challenge." -- Lord Judge

We also have a case in California where a judge ruled that a plaintiff had waived some privileged communications with her attorney by posting information on her blog while the case was pending.

Jurors know that what they see and hear in the courtroom is not the whole truth. The rules of evidence under which we operate serve to keep information away from jurors. If you have a multi-day trial, you can be assured that your jurors are going to do some research of their own on the internet - despite the admonitions of the judge.  Is explicitly banning the use of social media by jurors a Luddite reaction or the only way to preserve the jury system?

The larger question isn't whether social media will make the jury system obsolete, but whether it will change our traditional view of trials.  Isn't the notion that we can bring in six or twelve disinterested people who can listen to testimony and decide the fate of someone based solely upon that evidence a bit naive? In every arena outside the courtroom we strive to gain as much knowledge about a subject as possible. Imperfect information is the enemy of efficiency - yet we are asking jurors to decide a person's fate based on imperfect information.

If you choose to ignore this reality and bury your head in the sand, you do so at your own peril.

Thin slicing and jury selection

Chocolate covered bacon.


Grilled cow's brains.


Cockroaches.

Be honest. What was your first reaction when you read the words? Chances are that's how you feel about them. Now, upon further reflection you might change your mind. You might modify your opinion so as not to offend someone.

But nothing can change that initial reaction - your gut reaction. In his book Blink, Malcolm Gladwell talks of "thin-slicing." That's the process of jumping to a conclusion based on a small sample size - but, remarkably, that gut reaction is oftentimes correct. It works because we are able to take the pattern of what we saw or heard and compare it with other patterns we've experienced during our lives.

Ask a young child a question and you will get an honest answer - because the child hasn't learned to filter his or her opinions. I have a three year-old daughter and there are situations that my wife and I dread because we have no idea what's going to come out of her mouth.

I believe that jurors are the same. I always ask jurors a series of scaled questions designed to identify their attitudes (and to ensure I speak to everyone). When I ask a juror to rank on a scale of 0-10 whether they think my client is guilty, I get answers all over the board. The same thing happens when I ask the panel to rate their feelings on whether my client testifies or not. I use those answers to strike jurors for cause.

When the juror is brought before the bench I stand and listen while the prosecutor, and even the judge, attempt to rehabilitate him. At that point the juror has had time to think over his or her answer and is now standing face to face with an authority figure sitting on high with a black robe. Of course that juror is going to say "yes" when the judge asks him if he can follow the law - despite the honest answer he gave during voir dire.

That answer doesn't mean that the bias or prejudice is gone - it just means that the juror felt pressured by the situation to rethink his or her initial reaction in order to please an authority figure.

See also:

"'Thin slices' of life" Monitor, March 2005, vol. 36, no. 3
"Very first impressions" Emotions, 2006, vol. 6, no. 2
"First impressions surprisingly accurate" WebMD, Nov. 6, 2009

More jury analysis

Back in August I posted this article evaluating the attitudes of a jury pool in a case regarding the alleged violation of a municipal ordinance. I said the scaled questions we used were meant to determine where the jurors fell on the continuum between egalitarianism and totalitarianism. After thinking about it for a while, I don't think that's the right matrix for this analysis. I think the correct way to look at these results are on a continuum between defense-oriented and state-oriented.

This past Monday we finished trying a case that had been continued for almost three weeks because witnesses had not complied with subpoenas requesting documents related to the case.

During voir dire I asked the following five scaled questions in order to determine whether a juror was more defense-oriented or state-oriented:

1. How would you rate your feelings about whether the defendant, as he sits up here today, is guilty?

2. How would you rate the weight you'd give the testimony of a person wearing a badge, without regard to training, but solely out of respect for the badge?

3. This Court will instruct you that the State has the entire burden of proof in this case. How would you feel in the defendant didn't testify?

4. Do you agree that it is better that ten guilty men go free than that one innocent man suffer?

5. Do you agree that in the long run, order is more important that liberty?

As an aside, I never used the term "defendant" at trial. I always referred to my client by his given name.

Each of these questions were to be answered on a scale of 0-10, with 0 being very defense-oriented and 10 being very state-oriented.

As a whole, the panel averaged a 1.6 on Question No. 1; a 1.9 on Question No. 2; a 2.9 on Question No. 3; a 4.8 on Question No. 4 and a 5.5 on Question No. 5. The overall average was 3.3.

The prosecutor struck four jurors for cause. Those jurors averaged a 5 on Question No. 1; a 1.5 on Question No. 2; a 4.8 on Question No. 3; a 5 on Question No. 4 and a 6.3 on Question No. 5. The overall average was 4.5.

The prosecutor used two peremptory strikes. Those jurors averaged a 0 on Question No. 1; a 1.5 on Question No. 2; a 2 on Question No. 3; and 6.5 on Question No. 4 and a 3 on Question No. 5. The overall average was 2.6.

We struck nine jurors for cause. Those jurors averaged a 1.7 on Question No. 1; a 3.1 on Question No. 2; a 3.9 on Question No. 3; a 5.2 on Question No. 4 and a 6 on Question No. 5. Most of the jurors we struck were struck because of their answers to Question Nos. 1 and 2. The overall average was 3.9.

We used three peremptory strikes. Those jurors averaged a 0 on Question No. 1; a .3 on Question No. 2; a .3 on Question No. 3; a 5 on Question No. 4 and a 7.7 on Question No. 5. The overall average 2 was 2.7.

The six jurors remaining averaged a .7 on Question No. 1; a 1.2 on Question No. 2; a 1.8 on Question No. 3; a 3.3 on Question No. 4 and a 4.2 on Question No. 5. The overall average for the panel was 2.2.

The panel was made up of three white males, one black male, one black female and one Hispanic female.

Although we had what appeared to be a very defense-oriented panel, we did not receive a favorable verdict. Whether we were hurt by a faulty methodology, bad analysis, the facts of the case or the nearly three weeks off during the middle of the trial, I don't know.

I do know that our use of the scaled questions allowed us to strike nine jurors for cause and gave us a tool to use when trying to decide on whom to use our peremptories. This method also gives us the opportunity to get feedback from the entire panel so that we aren't stuck with someone who kept their mouth shut during voir dire.

The news cycle rolls on

The day after the Houston Texans upset the Indianapolis Colts, callers to SportsTalk 790 in Houston were ready to buy their Super Bowl tickets. The day after the Texans were stomped by the (evil) Dallas Cowboys, those same callers were ready to fire the coach.

Yesterday a mudslide swallowed the Mexican town of Santa Maria Tlahuitoltepec. Initial accounts listed the probable death toll at 1,000. As it turned out, the actual death toll was seven.

With cable and satellite television, talk radio, the internet, Twitter and Facebook accessible to so many people, the news cycle has shrunk from 24 hours to mere minutes. Rumors grow legs and become news. Overreaction is commonplace.

This is the world in which our jurors live. They are bombarded constantly with information - some of it useful and some of it just noise. By tomorrow, today's big story will be but a memory as some new catastrophe will take its place.

What the first witness said will be overshadowed by what each subsequent witness says - and everything those witnesses say will be overshadowed by what the jurors can actually see.

New article looks at juror's decision-making biases

Earlier this month Keene Trial Consulting's Douglas Keene reviewed an article on countering juror's decision making biases by Tarika Daftary-Kapur, Rafaele Dumas and Steven Penrod. The article focused on pre-trial publicity, jury instructions, inadmissible evidence and scientific evidence.

I wanted to focus on jury instructions and inadmissible evidence. The authors point out that a good many jurors are simply confused by the array of instructions they are read by the judge at the end of the trial. The instructions are unwieldy and poorly worded - no matter how much we try to rewrite them in plain English. Of course what else would you expect when a bunch of lawyers get together to try to "simplify" something -- who do you think mangled the language in the first place?

Mr. Keene's "takeway" from the authors' observation is that attorneys should consider introducing flow charts into evidence - thereby giving the jurors what would amount to a decision map. Texas Rule of Evidence 1006 allows for the introduction of summaries, charts or calculations when it is impracticable to introduce the contents of otherwise admissible writings into evidence. The same rule may be used to admit summaries of testimony into evidence.

If nothing else, prepare a flow chart as a demonstrative aid during your closing argument. You can walk the jurors through the decision-making process and leave them with a visual in mind.

The authors also observe that jurors have a hard time disregarding evidence once they have been exposed to it. We all know is damn near impossible to stuff the genie back into the bottle after the fact. Mr. Keene suggests asking the judge for an instruction as to why the evidence was deemed inadmissible. The authors suggest that attorneys think before objecting to certain evidence as their research indicates an increase in guilty verdicts when evidence is ruled inadmissible over cases in which the evidence is allowed in.

While I agree that objecting to something tends to focus the jurors' minds on it, there is a need to make a good record in the event your client wishes to pursue an appeal. To be an effective trial attorney you must think ahead to what an appellate attorney may need if the jury comes back with a one word verdict.

Here's the cite for the article:

Daftary-Kapur, T., Dumas, R. and Penrod, S.D. (2010). Jury decision-making biases and methods to counter them. Legal and Criminological Psychology, 15, 133-154.