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Tuesday, April 28, 2009

Jury Selection Tricky Guessing Game in MA criminal trials

On Saturday, April 25, I participated in a training session for Massachusetts Bar Advocates, sponsored by the Middlesex Defense Attorneys, Inc. First, let me thank Maryellen Cuthbert for the invitation and for organizing a very interesting program. Diane Levesque and I were the trial consultants charged with introducing the assembled throng to the concepts behind effective supplemental juror questionnaires and attorney conducted voir dire.

The first thing to note is how far in the Dark Ages is Massachusetts when it comes to adopting "best practices" in jury selection. I used the phrase "repressed Puritans" during my remarks, which might not have sat well with everyone. There is just no getting around that Massachusetts is a VERY conservative legal culture.

I put up a slide identifying several dimensions of jury selection procedures, with one column for the "restrictive procedure" and one column for the "expansive procedure." Massachusetts fell in the "restrictive" category FOR EVERY SINGLE DIMENSION. So, the bad news is that jury selection in Massachusetts is about as big a low-information crap shoot as there is going. The good news is that we have nowhere to go but up!

There were approximately 110 attorneys in attendance. I asked how many of them had ever used a trial consultant in any of their cases. (Remember now that most of these folks also handle civil cases). NOT A SINGLE HAND WENT UP. That's right. No one had ever used a trial consultant. So much for the quote, attributed to an attorney in Atlanta more than 10 years ago, that to go to trial without a jury consultant would "border on legal malpractice."

Many of the attorneys, some of whom had decades of trial experience, were very pessimistic about the willingness of Massachusetts judges to open up jury selection, at all. Maryellen had warned me to expect this response. She believes -- rightly so, I think -- that the criminal defense bar must make a concerted effort to change the status quo. The mindsets of Massachusetts judges will only begin to change if all the Bar Advocates start asking for the same procedural accommodations, and offering the same arguments in favor of those accommodations. So, one of my charges was to provide for the attendees a list of advantages to using supplemental juror questionnaires and attorney-conducted voir dire. This list is not targeted at the lawyers alone, but also at the judges whom they must convince to "loosen things up." That is, I tried to provide strategic, practical and legal arguments for employing less restrictive procedures.

To be fair, I have been at several local events at which judges have expressed a willingness to allow attorney conducted voir dire, but they always lament that no one ever asks for it! Hopefully, armed with some of the information and advice Diane and I offered on Saturday, some of these attorneys will get more involved in jury selection.

I have attached my presentation slides below. For articles I have written on supplemental juror questionnaires and voir dire, please follow these links. SJQ article. Voir dire article.

Tuesday, April 21, 2009

"Podcasts killed the radio star" -- what to do about googling jurors.

OK. If anything, podcasts are creating radio stars. Take me, for instance. I was a guest on the latest podcast of "Lawyer2Lawyer," produced by the Legal Talk Network. Along with attorneys Peter Raben and Sean Ellsworth, both of Miami, FL, we were interviewed about the recent spate of mistrials brought on by jurors who conducted unauthorized online research. Peter and Sean were the defense attorneys in the federal drug trial whose mistrial inspired John Schwartz's New York Times article a few weeks ago. When the judge interviewed the jurors to find out how one juror's google search had infected their deliberations, he discovered that eight other jurors had been looking up items related to the case online.

It was fascinating to hear Peter and Sean discuss the various pieces of information the jurors had dug up online. They were quite industrious! In addition to reviewing what happened in their case, we discussed what should be done in the future to reduce the incidence of this kind of behavior by jurors.

You can listen to the mp3 version of the podcast directly by clicking here.

You can go to the Legal Talk Network download site for the podcast by clicking here.

Please leave me comments and let me know what you think of the show. Thanks!

Wednesday, April 01, 2009

Jury aborts attempt to prosecute Kansas doctor

After only 45 minutes of deliberations, a Kansas jury has acquitted Dr. George Tiller on all counts of violating the state law against performing a late-term abortion without a supporting second opinion. To refresh your memories, Tiller is one of the few doctors in America who still performs late-term abortions, what pro-life supporters refer to as "partial birth" abortions. Under Kansas law, a doctor can only perform this procedure after the patient has received a second opinion, concurring in the judgment that the pregnancy is a danger (physical or mental) to the mother. The Kansas law prohibits the doctor issuing the second opinion from having any financial relationship with the doctor performing the procedure. The State, in this case, alleged that Dr. Tiller had close financial ties to the doctor who issued virtually all of his patients' second opinions. According to the prosecution, she was little more than an employee of Dr. Tiller's clinic.

So, while the case incited passions about abortion, with accompanying protests, sit-ins and prayer sessions outside the courthouse, it was really a case about money. Did the jury believe that Dr. Tiller essentially paid Dr. Neuhaus to always agree with his diagnoses so that he could perform abortions? The answer was a resounding "No." Most juries take 45 minutes to choose a foreperson and figure out what to order for lunch. So, this jury seems to have concluded that this case was not a close call.

I find the result of this case encouraging because it provides evidence that jurors, even in a case laced with controversy, emotion, pressure and pre-trial publicity, were able to focus on the relevant facts and applicable laws. This jury clearly did not make this case a referendum on abortion. Rather, they answered the very narrow set of questions given to them by the court about the financial relationship between Drs. Tiller and Neuhaus.

Many pundits rip into juries for being irrational, flighty and beholden to emotion. Such pundits often have little to support their assertions beyond an occasional anecdote or conjecture about why a jury chose a particular verdict. My experience leads me to conclude that most jurors are serious and conscientious. They would rather have a well-defined decision task and clear legal instructions. If the lawyers and judges do their jobs, most jurors can be counted on to do theirs.