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It's In There!

Posted in Jury on Thursday January 17 2013 @ 6:48am

What's in the Constitution?

The funny thing about the U.S. Constitution -- everybody seems to want to dismantle it. Only, they can't agree on which parts to dismantle. Maybe the lack of bipartisanship is a good thing, come to think of it.

Is there any Amendment that is better than the others? We have been partial to the Seventh here, at times, but mainly due to its tendency to disappear silently. You don't see exciting rallies or organizations backing it, and most people don't really think about it -- odd, because it is the one that the average person would (or should we say will?) miss the most. The right to a jury trial in civil cases is the foundation of our political and legal system.

Ask any colonist -- what's in there is there to protect citizens from state intrusion. Our homes, property, bodies, liberty -- the defense of all of these is insured and assured by the Bill of Rights.

Various rights are sexier than others, and thus more newsworthy. Second Amendment! It's in there! Why? Well, the jury (ha) is out, but unless you are a strict constructionist, you will not buy that colonial militia/musket argument any more than you think there's no right to reproductive freedom because the founding fathers thought women were incompetent and couldn't possibly predict the existence of these people. If we pay attention to caselaw, as we all must, then Heller carries the same weight as Roe v. Wade.

No special exceptions for religious healthcare providers? Letting mean people speak out in public? By golly, it's all in there!

But oooohhhhh, noooooo, you are a proudly political [insert label here]! Like Hall and Oates, you can't go for that, no can do! What to do? Blame someone! Pick a group of unpopular weirdoes (gays, women, gun owners, people with mental illnesses, criminal defendants, the overly litigious, artists, union members, journalists, or all of the above if possible) on which to foist regulations that curb rights. This is a very good move, because nobody can defend the curbing without simultaneously defending the unpopular people. As we all learned in junior high, defending the unpopular is *not* what you want to be caught doing.

Anyone who has spent even five seconds as a public defender, or who has been perceived as such (when we worked at Legal Aid in the 90s, a Christian broadcaster wanted to do an expose on how we helped defend drug dealers -- odd, since we never took criminal cases), has had to respond to this question from family, friends, and passers-by: How can you defend THOSE people? One helpful way to explain yourselves, you public defenders who already have had a worse day than almost anyone else, is to hand out a little pocket-sized copy of the Constitution. Say, "It's in there!" Do it in your best faux Italian accent, like the Prego commercial. This will not only educate others, but also stir warm memories of store-bought spaghetti sauce and classic 80s tv ads.

We love the saying, Even a blind pig finds an acorn once in awhile. Tea Partiers in Ohio and elsewhere proposed a Very Special Rule that schools must teach the Constitution. Was this a good idea? Yes (except for the annotations and additions in the Tea Party special versions)! We think everyone, even (especially) those hell-bent on dismantling this crucial document from whatever point of view, should read the Constitution. Just read it, already, kids! Leave a copy on the coffee table at home. Maybe your parents, curious but afraid to ask, will pick it up and peruse it themselves.

What's in there? Your rights. Be careful with them, or you, too, may one day find that you've become a gay woman artsy journalist in a union suffering from depression, accused of throwing a sno-cone and/or other menacing projectile weaponry (why bother to define it?), wanting to sue someone.

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Voir Dire, Oh Dear

Posted in Jury on Thursday June 14 2012 @ 7:05am

How do you pronounce voir dire? It sounds like tee em eye to some people.

A recent prospective juror said TMI to the summons questionnaire, and refused to fill it out. Wife's maiden name? Your insurance company? See Juror: Court Questionnaire Too Invasive, Lindsay Field, Marietta Daily Journal (June 11, 2012).

We know of at least one South Carolinian who likewise refused to fill out a questionnaire asking prospective jurors which news programs they watched or listened to, the titles of periodicals to which they subscribed, and what bumper stickers were on their vehicles. In the end, it didn't matter, because this fine citizen could otherwise claim an age exemption (which he did).

Meanwhile, a Houstonite asks whether these questions must be answered. See Lipman: Prospective Juror Objects to Nosy Questions, Ronald Lipman, Houston Chronicle (June 9, 2012). The answer, of course, is yes.

Jurors in the Edwards trial had to tell the court how long they had lived at their current residence, all addresses and employment history for the past ten years, employment status (including options such as on strike or other labor stoppage), supervisory experience, reason for leaving for any job in the past ten years, public employment (including schools, government, etc.) of anyone close to you, occupations of all people with whom they currently lived, and whether any member of the household had a blog. Thaddeus Hoffmeister has a copy of the questionnaire, along with several others from recent high-profile cases, on his blog.

Meanwhile a Straight Dope reader asks Is it possible to not have contempt for the US Judiciary? The answer, again, appears to be yes.

How much is too much? Asking jurors about past prescription drug use seems like too much. OTOH, it could be relevant if it was, say, for the trial of people accused of providing drugs to Anna Nicole Smith. See Judge Orders Jurors to Disclose Prescription Drug History, Jeralyn, TalkLeft (July 20, 2010). Did it work? Kinda, sorta. See 2 Guilty of Conspiracy, 1 Acquitted in Anna Nicole Smith Drug Case, Mike von Fremd and Sarah Netter, ABC News (October 28, 2010).

Over-nosiness is the court system's loss. Many if not most of these cases involve civic-minded people who would have enjoyed the experience, but for their initial horror. Receiving an overly broad questionnaire on court letterhead, with the threat of contempt and fines for not answering in full, is not a good experience, particularly in this age of privacy concerns, on social media, via locational data, and as students. Hat-tip to maura for the expert links.

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Unpopularity

Posted in Jury on Friday June 08 2012 @ 8:13am

How brave are jurors? If you've ever seen the hilariously apt Order in the Classroom video with the professor explaining their task to a class of jurors -- the professor is often mistaken for Judge Dann -- you know that jurors are given very few tools with which to perform their job. (For the record, we are pretty sure Judge Dann is not the professor, although it is true we've never seen the two of them in a room together.)

Jurors may have to roll up their pantlegs and don their snake-proof boots to wade through throngs of campers on the courthouse steps each day. Talking to the media about a job you've probably never done before takes a measure of courage. In the alternative, telling the media to scram (which is any juror's right) is another exercise in bravery.

Jurors' bravest moment of all, though, comes from the reality of public opinion when the case is over. A jury in Buffalo recently convicted a local doctor of a misdemeanor, driving while intoxicated. They acquitted him on several other charges, including felony manslaughter and evidence-tampering.

The public was displeased with the result. In response, one juror released a statement explaining jurors' reasoning. And, the local bar stepped in to defend and thank jurors. See Bar Group Lauds Juror Recap on Corasanti, Patrick Lakamp, Buffalo News (June 8, 2012).

Real change might come from amending current leaving-the-scene laws to omit the scienter requirement. See Corasanti Verdict Inspires Proposed Change in Law, Ed Reilly, WKBW (June 7, 2012).

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This Is Your Brain On A Jury

Posted in Jury on Monday April 09 2012 @ 7:40am

What can we learn about the brains of jurors?

A new study claims to be able to predict the amount of sympathy to expect by looking at a juror's brain scan.

See Brain Scans May Predict Jurors' Decisions, J.D. Velasco, San Gabriel Valley Tribune (April 7, 2012). The article also contains good references to Japan's new-ish jury system, something we haven't heard much about lately. (What ever happened to our poster?)

Meanwhile, over in the Land of Lincoln, jurors will soon be able to ask questions. See Jurors May Be Allowed to Question Some Witnesses, Jennifer Wheeler, Register-Mail (April 5, 2012).

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Swimming in a Jury Pool

Posted in Jury on Thursday March 01 2012 @ 8:10am

by Jeremy Flannery

Part 9: Check's in the Mail

The employees of the Hamilton County Courthouse (which houses both municipal and common pleas courts) were very accommodating to the people serving on the jury. I cannot think of any suggestion that would improve the courthouse's services and treatment of jurors.

Jury duty pays $19 per day that a juror or potential juror serves. Checks are mailed out on Friday. I received both checks in Saturday's mail.

It was an honor and humbling experience for me to serve as a juror. As a U.S. citizen, I am thankful for this life experience. I would also like to thank my fellow jurors for using logic, rational thinking, and discussion, and for respecting each other's statements and views about the case in order to reach the verdict.

[p.s. court-o-rama.org thanks JF!!!]

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Swimming in a Jury Pool

Posted in Jury on Thursday March 01 2012 @ 7:31am

by Jeremy Flannery

Part 8: Veni, Vidi, Verdict

The jurors signed their names to two sheets of paper: one for not guilty of disorderly conduct, and the other for not guilty of resisting arrest. The foreperson buzzed for the bailiff to inform her that we had reached a verdict.

The bailiff informed the court that the jury reached a verdict. She escorted all eight jurors from the deliberation room to the courtroom, where anxiety hung in the air like humidity on a Cincinnati summer afternoon. Both attorneys and the defendant were looking at the jurors' faces for any sign of the verdict before it was read aloud to the court. I did my best to keep a straight face for the sake of the seriousness of my duties, and to show impartiality until the verdict was read.

The verdict was read to the court. First came the verdict on the disorderly conduct charge, then for the resisting arrest charge. Once the court heard Not guilty for both charges, the defendant jumped from his chair and hugged his attorney. The judge told the defendant he was free to leave. The defendant smiled and whispered Thank you to the jury, exited the courtroom, and cheered to the people waiting in the hallway.

The judge thanked the jurors for our service. She informed the jurors that she would like to speak to us in the deliberations room with the prosecutor and defense attorney. For the sake of curiosity, they wanted to know how we reached our verdict. This was a voluntary option, and all jurors decided to meet with them.

One juror asked the prosecutor why he did not recall the arresting officer back to the stand to rebut the testimonies of the defense witnesses. He said there was no rebuttal to make; they had told the truth according to the evidence he was aware of. The attorneys also revealed other evidence that was inadmissible in court. This evidence would have swayed these jurors' opnions about the case. This shows how important the rules of evidence are in court.

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Swimming in a Jury Pool

Posted in Jury on Monday February 27 2012 @ 8:03am

by Jeremy Flannery

Part 7: Beyond a Reasonable Doubt

One juror still holding onto a guilty verdict stated that she believed the defendant to be guilty, but could not prove it to herself beyond a reasonable doubt. She then agreed to not guilty for disorderly conduct.

The seven jurors next needed to discuss what would change her mind with the final juror holding onto guilty, or how she could change everyone else's. She, too, eventually agreed with not guilty because she could not prove the disorderly conduct charge to herself beyond a reasonable doubt. She still believed the defendant to be guilty, and it was respectfully and reasonably her right to have that perception.

Therefore, around 2:30 p.m. that Friday afternoon, the eight jurors firmly stated to each other that the defendant was not guilty of either charge.

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Swimming in A Jury Pool

Posted in Jury on Wednesday February 22 2012 @ 7:43am

by Jeremy Flannery

Part 6: Defining Moments

Deliberations started with electing the foreperson. One juror asked the others who would like to be the foreperson. We all elected her because she spoke first. She accepted after stalling for about five minutes.

The foreperson is considered an equal, but has the duty of keeping order during deliberations, ensuring that each juror has a chance to speak about the case, while the others pay careful attention.

We began learning the legal definition of beyond a reasonable doubt and the criminal charges of disorderly conduct and resisting arrest. Patience is needed from all the jurors to ensure each is clear about the definitions. This discussion took about two hours.

After reviewing the definitions of the charges, we decided that the resisting arrest charge could only be considered if the disorderly conduct charge was rendered as a guilty verdict. We decided that a lawful arrest by a police officer would require that the defendant committed a crime requiring an arrest. Otherwise, it would be an unlawful arrest, and therefore a not guilty verdict.

It was about 5:00 p.m. by this time, and we decided to recess until 8:30 a.m. the next morning to discuss the disorderly conduct charge.

We reconvened the next morning by walking straight into the deliberations room and waiting for everyone to arrive. Deliberations for the disorderly conduct charge took about six hours. The majority of the discussion concerned what the crime of disorderly conduct is in Ohio.

The question we sought to answer was how the defendant would have recklessly caused inconvenience, annoyance, or alarm against the public peace for the officer to arrest him.

Two jurors perceived the defendant as possibly guilty of disorderly conduct because of how he acted on the witness stand. Under the rules of evidence. the defendant did not follow procedure on the stand by answering questions from the attorneys with questions. The defendant appeared to be eager to tell his story; maybe too eager. He eventually became upset because the questioning was not allowing him to tell his side as he wanted. He argued with the judge when instructed to follow the rules, such as to directly answer the questions being asked. Eventually, he said he would not answer any more questions because he thought the court was not interested in listening to him, and said he pleads the fifth. The judge then ordered the jury to leave the courtroom and requested that the attorneys meet her in chambers.

So, it was a reasonable suspicion for the two jurors to hold. The defendant lost his temper on the witness stand, and the two jurors said during deliberations that they could see him losing his temper with the arresting officer.

At this point, six of us (including this writer) firmly agreed upon not guilty on the disorderly conduct charge. Ultimately, these six decided there was not enough evidence to prove the defendant committed disorderly conduct during the incident in question.

The arresting officer testified that fifteen people had gathered around the scene due to the defendant's conduct, therefore the defendant was disturbing the public peace through his conduct. The three defense witnesses, including the defendant, testified that only one person came to the scene. No other witnesses were called, and the prosecution did not recall the arresting officer to rebut this testimony.

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Swimming in A Jury Pool

Posted in Jury on Sunday February 12 2012 @ 8:59pm

by Jeremy Flannery

Part 5: Questions Permitted

Some questions might spark in a juror's mind upon entering the deliberation room with fellow jurors:

  • What are these people thinking about the case?

  • Are they taking their duties seriously?

  • Did one of them notice a detail in the evidence that I missed?

  • Could such a detail shape my idea of what the verdict should be?

The deliberation room was small. It contained a small, ellipse-shaped table with cushioned chairs placed close together. Perhaps the closeness was intentional, to keep jurors from shying away from discussion. The room also contained a small refrigerator, coffee machine, and closet to hang one's coat.

The bailiff escorts jurors from the courtroom to the deliberation room, and provides instructions. First, the jurors are informed to take all the time needed to understand the legal definitions, review evidence, and work together respectfully to render a verdict. We were told not to allow pressure from another juror change one's verdict if one considers one's verdict to be correct. Jurors were told that if any one needed to exit the room for any reason, we would have to stop discussing the case until the person returned.

The bailiff instructed us that if we needed clarification of charges or evidence, we should write down direct questions. This could be an explanation of the abbreviations in the transcript of the police dispatch calls, for example. However, we were told that no question could create evidence. We could not seek more information than was admitted as evidence in court.

A buzzer on the wall could be used to inform the bailiff that we had a request, such as a question of the court, or to ask for a recess until the next day because a juror's son needed a ride home from school. If jurors ask a question to the court about the trial, the bailiff would deliver it to the judge. The judge would review the question with the prosecutor and defense attorney to decide whether the answer would follow the rules of evidence.

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Swimming in A Jury Pool

Posted in Jury on Friday February 10 2012 @ 12:01pm

by Jeremy Flannery

Part 4: Selection

A potential juror will not know what case he is about to hear until the judge presiding over it introduces it as criminal or civil.

Hamilton County jurors are called over the intercom to assemble in the lobby of the jury commissioner's office. As people assemble, the jury commissioner, or the deputy of the office, does a roll call of potential jurors. If anyone is not present, the administrator reviews a list to see if one or more is still outside the waiting room. After the best knowledge of attendance is established, the administrator instructs potential jurors that they are about to face jury selection for a trial. One potential juror did not show up for roll call in my trial; it is unclear what consequences the person faced.

The bailiff escorts potential jurors to the doorway of the courtroom, assembling the approximately 24 potential jurors in a line according to a sequence. The first eight potential jurors for municipal court, or twelve for common pleas, will be seated in the jury box. The others are seated as alternates in the front row of the courtroom's audience seating. This writer was called to be potential juror number two out of eight for a trial.

The judge introduces the case as a civil or criminal case, the matter of the case (the criminal charge, e.g.), and explains how jury selection works.

Potential jurors first seated in the jury box are the first to face the volley of questions from the attorneys. The judge explains that attorneys for the plaintiff and defense have two options to challenge a potential juror's position in the jury box. The first type of challenge is for cause: the potential juror has a circumstance that the court recognizes as affecting that person's impartiality. This could be due to personal knowledge of a fellow potential juror, attorneys, or the defendant. It could be due to a prejudice the potential juror holds: racism, not accepting the concept that the defendant is innocent unless proven guilty, e.g. Or, this type of challenge could be issued if the potential juror has an important job function or vacation coming within the time required to finish the case. A juror cannot feel pressured to render a verdict quickly in order to attend a nephew's wedding, for example.

One potential juror was excuse for cause in my case. Her answers for both attorneys during the for cause portion showed she held a prejudice toward the defendant for being arrested for a crime. She presumed the defendant was guilty because the defendant was arrested by a police officer. The judge asked if an explanation about the presumption of innocence would change her mind. She said it would not, and was excused. This is one way out of jury duty, but please remember our courts need jurors willing to use logic with the evidence to apply the law -- you could be that person.

The second challenge is a peremptory challenge. Either attorney may chose to excuse a potential juror without providing a reason. Each side has a limited number of these challenges. Two jurors were excused via peremptory challenge from the defense in this case. One appeared to be because the potential juror stated that she is a friend of employees in the prosecutor's office.

When a potential juror is excused from the jury box, an alternate steps in, and the cycle of questioning is renewed (usually only directed at the alternate). Both attorneys ask questions again for each type of challenge.

In the end, each attorney will state that the jury is accepted, and the judge will excuse the rest of the potential jurors not seated in the jury box. Being excused any time during this process does not mean jury duty has ended. Excused potential jurors must report back to the jury commissioner's office. One potential juror told me he was excused from a previous case, but became the alternate for my case. He would hear the trial as a juror, but not be part of deliberations unless one of the eight jurors was unavailable at some point during the trial. Hopefully, accidents never happen.

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