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Friday, November 03, 2006

South Dakotans want to redefine "Hanging Judge"

A radical proposal to enhance judicial accountability was offered in several states, but it only secured the necessary signatures to get on the ballot in South Dakota. Amendment E, the Judicial Accountability Initiative Law (Or J.A.I.L. – I am not making this up, people) would allow citizens to sue judges or other public officials for damages resulting from their decisions.

A special grand jury would be convened, comprised only of people who have

"attained to the age of thirty years, and have been nine years a citizen of the United States, and have been an inhabitant of South Dakota for two years immediately prior to having his/her name drawn."

All lawyers, convicted felons and peace officers are excluded from serving on this grand jury. This grand jury would
"Hav[e] power to judge both law and fact… Their responsibility shall be limited to determining, on an objective standard, whether any civil lawsuit against a judge would be frivolous or harassing, or fall within the exclusions [enumerated above]…, and whether there is probable cause of criminal conduct by the judge complained against."

The acts for which judges (and other judicial and quasi-judicial officials) could be held liable include:

"Any deliberate violation of law, fraud or conspiracy, intentional violation of due process of law, deliberate disregard of material facts, judicial acts without jurisdiction, blocking of a lawful conclusion of a case, or any deliberate violation of the Constitutions of South Dakota or the United States, notwithstanding Common Law, or any other contrary statute."

Presumably, even in South Dakota, these kinds of acts would get a judge in trouble under the current law. What really changes here is that this independent grand jury can force any case against a judge to go to a jury trial.
The grand jurors are to be instructed that:

"All allegations in the complaint are to be liberally construed in favor of the complainant. The jurors … are not to be swayed by the artful presentation of the judge."

At this point, the judge’s challenged conduct would be subject to the whims of a citizen jury, whose appreciation for the subtleties of civil and criminal procedure probably doesn’t rise to that of the judge. The jury would be:

"Instructed that they have power to judge both law and fact… Upon conviction, sentencing shall be the province of the special trial jury, and not that of the selected trial judge."

A judge would be in real peril of being punished for handing down a principled, but unpopular decision. (How is a judge supposed to enforce the exclusionary rule in such an environment?)

We already know that judges in states with judicial elections perform worse than appointed judges on a number of metrics. Directly elected judges are more predictably anti-defendant than even judges who face retention elections. They get reversed on appeal more often, too. The framers of the Constitution clearly believed that judicial responsiveness to public pressure was a bad thing. I tend to agree. As much as I support using lay juries for many types of judicial decisions, and giving them more respect and responsibility than they currently enjoy, this South Dakota proposal is an unambiguously bad idea (and probably unconstitutional, too).

Wednesday, October 25, 2006

New Hampshire Attorney General Seeks Death Penalty for Cop Killer

New Hampshire Attorney General Kelly Ayotte has announced her intention to seek the death penalty against Michael Addison, accused of killing Manchester polics officer, Michael Briggs, in the line of duty. The community's sense of outrage is certainly understandable and one can make a case that capital punishment is justified in this case. This would, however, be the first death sentence in New Hampshire in 67 years.

My problem lies not with the idea of the death penalty for the premeditated murder of a police officer, but rather the system that is in place to decide whether the death penalty is warranted in a particular instance.

When the Supreme Court of the United States imposed a moratorium on capital punishment in the 1972 landmark case of Furman v. Georgia, the rationale set forth by the Court's swing voters (Stewart and White) was NOT that too many defendants were being sentenced to death. The problem, as they saw it, was that there was no rational, predictable way to figure out who would get the death penalty and who wouldn't. The death penalty was too much like a bolt of lightening that would strike rarely and randomly.

Subsequent empirical research demonstrated that the only factor that reliably increased the likelihood of receiving the death penalty was having murdered a white person instead of a black one. Being a black defendant convicted of killing a white victim was the proverbial kiss of death. While much progress has been made in eqalizing treatment of all defendants in the system, recent reports out of Oklahoma, Pennsylvania, New Jersey and Texas continue to show a disparity in capital sentencing by race-of-victim.

So, let's return to the case of Mr. Addison. If guilty, his seems to be a very bad act indeed. But the question is whether this is the single worst murder in New Hampshire in 67 years!!!! Can we truly rely on a jury of ordinary people, presented the case by lawyers who will be as manipulative as possible, to determine whether this is the most reprehensible murder in the state over the better part of a century. If Mr. Addison is given the death penalty, the minimum seven levels of appeal will surely focus on what the Supreme Court refers to as a "proportionality analysis." The Supreme Court has ruled that the Constitution all but requires courts to determine whether a capital sentence is commiserate with past sentencing practices in the state. So, even should a jury want to sentence Mr. Addison to death, it's wishes will be thwarted unless the New Hampshire Supreme Court can somehow distinguish this case from all the ones in which a lesser sentence was imposed.

Frankly, after 67 years of disuse, I do not believe that a capital sentence can Constitutionally be employed in New Hampshire. That is, I think such a sentence fails proportionality analysis by default. New Hampshire seems to have maintained a rather low murder rate without any executions for the last 2/3 of a century. Capital cases are incredibly expensive to undertake, as the state will have to pay for both the prosecution and defense (as well as numerous appeals).

It just seems a wiser, fairer and more prudent course of action to lock away Mr. Briggs' murderer for life.

Wednesday, October 18, 2006

What does a jury consultant do, anyway?

"You're a jury consultant, eh? Just like Gene Hackman in that movie! Hey, did you pick that O.J. jury? Man, you people really screw with the system. By the way, can you help my brother-in-law get out of jury duty?"

If I had a nickel for every conversation on an airplane that started that way.....

OK. Let's get a few things straight. Yes, I can help you choose a jury. That is, I can help you figure out which prospective jurors are likely to be unreceptive, unresponsive or unsymathetic to your case (or will just not understand it). But you should always keep in mind what I tell my clients: In terms of impact on verdict choice, what the jurors see almost always trumps who the jurors are.

This brings me to what I mostly do for clients. I help them present their cases more effectively.

I focus on three key concepts: clarity, coherence and comprehension.

CLARITY: Every part of a lawyer's presentation and a witness's testimony must be clear and concise. It is critical for every juror to understand exactly what each member of your trial team (including your client) is trying to say. Even worse than a lack of comprehension is a miscomprehension. That is, you don't want jurors to think you are saying something you're not.

COHERENCE: People are natural story-tellers. They are most comfortable when they have a complete picture of events and feel like they know what happened. This is especially so during a trial. Don't offer the jury bits and pieces of evidence and testimony. Tell them a compelling story about your client's experience. It must start with opening arguments and continue right through closing. Remember that the other side is trying to get the jurors to internalize a competing story. Make sure yours is better.

COMPREHENSION: When many people think about jury consultants, they think of witch doctors or snake oil salesmen who are trying to twist the minds of the jurors. This is complete nonsense. Unfortunately, jurors are quite capable of twisting their own minds! Especially in complicated cases (which are the ones that go to trial), the biggest obstacle facing any litigator is the ability of the jurors to understand the material presented to them. A smart, well-trained expert does not necessarily make a great witness. Choose good teachers as witnesses. Give them effective visual aids. Make them practice direct- and cross-examination, preferrably before a focus group (or two, or three). A jury can't like your case if it can't understand your case.

Trial consultants come from all kinds of professions and educational backgrounds. They focus on a variety of trial elements. Choose the trial consultant whose approach best fits with your own style and the needs of your case. If you need an effective animation of how blood travels through a heart valve, don't hire a consultant with a background in theater. If you need help with your opening argument, don't hire a statistician. For an excellent overview of the trial consulting industry, as well as a list of consultants from around the country, check out the website of the American Society of Trial Consultants (ASTC) at .

Where do I fit in this odd menagerie of trial consultants? I am trained as a game theorist and a social scientist. I believe in data, statistics and the scientific method. I pride myself in being up-to-date on the latest empirical studies of jury decision-making. I am not a psychic, a magician or a prophet. I don't blow smoke and I'll be the first to tell you when I really don't know how some aspect of your case will go over. But that is what jury research is for. I can design the right survey, focus group or mock-jury study to get you the information you need to choose the right trial strategy.

Now that you know a bit about the profession and a bit about me, I'll be focusing my attention here on interesting trials, interesting jury research and interesting efforts at trial reform. If you really groove on this stuff, feel free to subscribe to my newsletter at

Edward P. Schwartz