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Thursday, October 11, 2007

April, 2007: The Jury Box Newsletter: Real Jurors Speak Out

Vol. 3, No. 1. April, 2007

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Sticking it to the man
The wrong time to play the race card.
Taking Stock of the Enron Verdict
Libby, Libby, Libby labeled a Liar, Liar Liar

Welcome to the first Jury Box tabloid extravaganza! There’s a
lot of jury related funny business going on in high-profile trials
around the country. We’re going to take a whirlwind tour of the
sleazy, desperate, fraudulent and just plain negligent, as I use the
tawdry details of some recent jury trials to highlight some useful
lessons on trial procedure and strategy. Rather than relying on the
speculation of our usual cast of talking heads, we’re going to
hear from the jurors themselves. What did they think of the process?
Which evidence was most important? Why did they vote as they did?

Once again, I am co-hosting the New England Regional meeting of the
American Society of Trial Consultants , to be
held on the morning of April 20, at Bernett Research
in Boston. Sam Sommers
, a psychology
professor at Tufts University, will give a presentation entitled
“Jury Racial Composition: Surprising Lessons from Experimental
Research.” In addition, Sarah Holmes, of PenTec
, will be speaking on “Handwriting:
Reading Between the Lines in Jury Selection.” A limited number
of spaces are available for attorneys who wish to attend. Please
contact me for details.
-- Edward P. Schwartz

Most of the systematic information we have on jury decision-making
comes from mock jury research. This methodology has much to recommend
it, in that researchers can control and monitor the decision-making
environment, allowing confident linkage between behavioral responses
and variables of interest. That said, we are always mindful of issues
related to external validity – how closely do real-world jurors
mirror their experimental counterparts. As such, it’s a good
idea to monitor how jurors make decisions in real cases and compare
what they say with the experimentally generated conventional wisdom.

Sticking it to the man

In the first Vioxx trial, held in Texas, the jury not only held Merck
liable for the death of Robert Ernst, but they also delivered a $229
million punitive award against the drug manufacturer. Punitive
damages are intended to be quasi-criminal, in that they are used to
punish intentional wrongdoing. As such, the typical rationales for
punitive awards are deterrence and retribution. Deterrence requires
jurors to think about how likely the defendant's actions were to cause harm, the expected magnitude
of that harm, and the likelihood that the wrongdoing would be
detected and successfully prosecuted. These calculations allow a
jury, in theory, to set the damages high enough to deter would-be
tort-feasors from similar actions in the future.
Retribution is a more nebulous concept, but the calculation of
"just desserts" presumably requires consideration of both
the amount of harm done and the moral reprehensibility of the illegal
act. So, do jurors set punitive awards in keeping with either of
these objectives?
Consider a quote from juror Rhonda Wade:

"Our award was based on the fact that once they figured out they had
no choice but to make the label change, they chose to stall
it in order to make as much as $229 million. And we don’t want
them to stall. We want them to tell us the truth, and be

Confirmed juror David Webb:

"$229 million was the amount of money Merck would gain if they put
off changing the label."

This fixation on Merck's sales figures highlights a couple of
important points. First, the jury didn’t seem to really think
in terms of either deterrence or retribution. They instead chose to
focus on taking back the illicit fruit of Merck's deception.
Recent experimental research shows pretty definitively that jurors
don't do deterrence calculations, even when their instructions
are specifically designed to encourage it.

The second point involves the use of a particular number. As I have
discussed in earlier issues of the Jury Box, jurors typically employ
an "anchor and adjust" strategy for calculating damages.
They find a plausible number, typically offered by one side or the
other, and work from there. Here, the jurors locked onto a number
that seemed to be in the right ballpark. Where did the jurors get
this number? As juror Stacy Smith reported,

"That was a number that they kept saying over and over. When
you’re sitting there for five weeks and that number kept being
repeated, the number stuck in our minds."

The plaintiff team in this case did an excellent job of providing
the jurors with an anchor. Keep in mind that jurors are always
searching for a useful anchor; don’t let the other side provide
the only one.

The wrong time to play the race card.

In a recent Cape Cod, Massachusetts case, Christopher McCowen, a
black man, was convicted of killing Christa Worthington, a white
woman. After the verdict, three of the twelve jurors filed
affidavits, alleging racism on the part of some of their fellow

According to Roshena Bohanna, one of the three concerned jurors, one
white juror remarked, "Guys, the defendant looked at me. He
scares me." When asked why, she replied, "I don't
know - he's this big black guy, you know. He frightens
Juror racism is normally grounds for a mistrial, especially regarding
a cross-racial crime, but the defendant is almost certain to fail in
his efforts to secure a new trial in this case.

Why? Because the allegations of racism emerged after the verdict was
already in. Federal Rule of Evidence 606 (b) (and its state
counterparts) disallows post-verdict testimony by jurors regarding
deliberations or anything contributing to their states of mind during
deliberations. What could the defense have done in this case? It is
critical that the jury understand that any concerns about improper
juror conduct must be reported promptly to the judge. An attorney who
is worried about such matters should request that the judge instruct
the jury accordingly.

This case also highlights one of the worst-kept dirty little secrets
of our criminal justice system. Unanimous verdicts do not always
reflect unanimous consensus on the jury. When good-faith, rational
deliberation fails to resolve disagreement among jurors, choosing a
verdict becomes a process of bargaining, haggling and sometimes
intimidation. One has to wonder why the jurors who disagreed with the
nature of the deliberations in this case went along with the verdict.
In the end, all twelve of the jurors, including the three dissidents,
did vote guilty. There is a very strong legal presumption (despite all
the evidence to the contrary) that a juror who votes guilty was
actually convinced beyond a reasonable doubt.

How strong is this presumption? Consider the case of Heidi Fleiss,
the notorious Hollywood Madame. Her jury ultimately acquitted her of
several drug distribution and prostitution charges and, instead,
convicted her of the rather innocuous sounding charge of pandering.
Little did the jurors know that pandering is a serious felony
carrying a minimum 3-year prison term. Distraught by Fleiss’s
sentence, the jurors all signed a letter to the judge, indicating
that they were mistaken in their verdict, in light of the
corresponding punishment. The judge refused to reopen the case.

Taking Stock of the Enron Verdict

As I have mentioned in earlier issues, there are two main modes of
jury deliberation: evidence driven and verdict driven. Most juries
experience both at some point in their discussions. Evidence driven
deliberations focus on establishing exactly what happened among the
litigants – who did or said what to whom when. The jury tries
to build a common understanding of events. This type of deliberation
tends to be collegial, egalitarian and thorough; unfortunately, it
can also be inefficient and meandering. By contrast, once a jury
settles into verdict driven deliberations (usually after taking a
straw vote), jurors tend to become more confrontational. Camps form,
spokespersons emerge and civility lags. On the plus side, a verdict
usually follows fairly quickly after the jury goes into this mode.

The jury in the Enron trial appears to have effectively worked in
evidence driven mode for quite some time. According to juror Deborah

"We answered all the questions, we tore the boxes [of
evidence] apart and we looked at all the evidence. We won't
have to worry about this later because we did it right the first

Added juror Wendy Vaughan, "It was like having a 25,000 piece
puzzle dumped on the table." The jury apparently began
deliberations by building their own timeline of events and
statements. These are clearly the actions of jurors who saw their
primary task as figuring out what happened, rather than picking the
right verdict from a limited menu.

Libby, Libby, Libby labeled a Liar, Liar Liar

The jury in the Libby trial appears to have been similarly evidence
driven. According to Denis Collins, a juror and former reporter,

"We had about 34 PostIt pages, I don't mean the little
ones you stick on; they were like two-and-a-half feet by two feet,
and they were filled with all the information that we distilled from
the testimony. We took a long time to do that. We took about a week
just to get all these little building blocks there."

Asked why deliberations took a full ten days, Collins replied,

"We didn't start to do a straw vote right away and say,
"Well, what do you think?". Well, it was too big, it was
too much, it was too important. We just didn’t do that. So,
that’s why it took so long."

Had the jury taken that early straw vote, the deliberations would
have certainly taken a different route. Given the general advantages
of evidence driven deliberation, it is a shame that jurors are not
given any guidance on the timing of straw votes by trial judges.

Another interesting tidbit from the Libby case involves the
definition of "reasonable doubt" On the eighth day of
deliberations (after all the PostIt sheets had presumably been filled
out), the jury sent the following question to the judge.

"We would like clarification of the term ‘reasonable
doubt’. Specifically, is it necessary for the government to
present evidence that it is not humanly possible for someone not to
recall an event in order to find guilt beyond a reasonable doubt."

Jurors often have difficulty interpreting the reasonable doubt
standard. How much doubt is reasonable? Horowitz and Kirkpatrick
(1996) conducted a study on the impact of instruction wording on
self-reported thresholds for reasonable doubt. Clearly, all
reasonable doubt instructions are not created equal. Language about
remaining “firmly convinced” (FC) of the verdict produced
the most demanding reasonable doubt threshold, while language about
doubt that would cause a juror to “waiver or vacillate”
(WV) created a substantially lower threshold. Note that deliberation
only managed to ratchet up the threshold when the “firmly
convinced” language was used. Leaving the definition to the
jurors’ own imaginations (UD) also produces alarming low
reasonable doubt.

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