Juror trauma

Much of this blog is a never-ending whine about what a tough job federal judges and federal trial lawyers perform. More particularly, we frequently discuss the death of jury trials in the federal courts and lament that “our way of life” is going the way of the mediator or the plea bargain. Cue the choir!

If we are honest, we must admit that we spend almost no time thinking about who makes the jury trial system work–jurors. They get hailed into court on pain of a jail sentence if they refuse. Indeed, I have held very public hearings threatening recalcitrant jurors who failed to show up with both a fine and a jail sentence until they publicly apologized for telling us to pound sand. In federal court, they can be required to travel hundreds of miles and sometimes through dangerously inclement weather. Sometimes, we also treat them like cattle and shuffle them around just like you would expect from some terrible airline that just cancelled a flight. We pay them (in the federal system) $40 a day plus minimal subsistence.  Their employers can’t fire them for jury service, but there is no federal law requiring employers to make up the pay difference. And all that is just the beginning.

I want you to imagine sitting through a trial as a juror. Derived from one of my cases, the basic facts are these:

A white street punk, with a pretty face, who was followed around by two young teenage boys (about 13), made a deal for $500 dollars worth of grass. A black guy and a native guy, who were both savvy cons, agreed to sell the dope to the punk with the pretty face but they wanted their money first. Money paid, but no dope forthcoming. Punk, with sweet face, returns to the apartment, and executes the black guy and the native guy with a rifle and with the clean-up assistance of the two young teenagers. Blood all over. Bullets in the belly and head as the victims each tried to crawl away. To make a point, the white street punk, with the pretty face, blows off the balls of one of his victims. That perfectly punctuates the encounter.

It is summer. The bodies are left to swelter in the small apartment for two weeks. When it is finally entered, the stench is overpowering and there are literally hundreds of thousands of flies that grew from the maggots that begin to invade the bodies shortly after death. The autopsy photos look like something a deranged person would print from a mythical snuff video. All of the foregoing is shown in vivid color on big photos blown up and placed on poster board so no juror will miss any detail. The only saving grace is that the feds took the death penalty off the table at the last moment.

Deb Gilg, a really good gal and our United States Attorney, has written a wonderful piece about the impact of trials on jurors. It is attached here: juror.stress.gilg. I urge you to read it, and if you truly care about the vaunted jury trial right, think about how all of us could help jurors live through the ordeal of a jury trial whether it be civil or criminal.

By the way, here are two things I do now to try to lessen jury trauma in both civil and criminal cases:

  • I spend an hour with the prospective panel before jury selection. I have described my orientation in a previous detailed post, but it essentially turns upon a physical orientation to the courtroom and a relaxed and informal give and take with the jurors about what and when they will see particular things during the trial and why they are seeing such things. Jurors have repeatedly told me that this orientation relaxed them and made them “feel safe.”
  • Following every jury trial for the last 25 years, and after I have officially excused the jurors, I return, with my courtroom deputy, to the jury room.  By this time, the courtroom deputy has become very close with the jurors and they see her as a extraordinarily helpful and non-threatening ally. I knock and walk in, and then I physically shake hands with each and every juror and I thank them for their service. I tell them that they can ask me any question they want, and that I will give them straight and honest answers if can. And, that is exactly what I do. If they ask me whether they did the right thing, most of the time, I say “yes” because most of the time I agree with them. I will also stress that I would not have given them the case unless their verdict (whatever it was) could fairly be viewed as both proper and correct. If they ask about sentencing in a criminal case, I will honestly describe the process and estimate the probable sentence. If they have concerns for their safety, I will deal in very practical terms with their concerns and I have sometimes brought in the room US Marshals to help me explain specific procedures and tactics. In short, I will spend as much time (sometimes well over an hour) answering questions and reassuring the jurors that they have nothing to worry about, that they have done a service of incalculable value, and that they should be very proud of themselves.  And, I end by telling them not to have second thoughts.

Deb Gilg has done a real service reminding us of the emotional needs of jurors. Federal trial judges should take her reminder to heart.

RGK

 Subsequent clarification:

I always excuse the jurors before I talk to them. They are free to talk to me or not. I am also circumspect in how exactly I answer the “did we do the right thing” question. To be perfectly clear, I never prejudge post verdict motions and never commit myself on such matters when I debrief the jury. Moreover, I never inquire into, and do not discuss, their internal deliberations.

May 8, 2014 at 3:19 PM

RGK

 

20 responses

  1. A few years ago to my surprise as a lawyer I was chosen to serve on a civil jury in a medical malpractice case in state court. It was an amazing experience to be a juror, especially as a lawyer. I was surprised at how exhausting jury duty was and impressed with the seriousness with which my fellow jurors considered the case. One juror even said one day he had been ill the previous night thinking about the responsibility we had. I am grateful for the experience.

  2. The State of Texas passed a law in 2009 that allows for the funding of counseling for jurors after certain graphic criminal trials. Kind of a nice law, though limited. Also, it would appear to be up to the individual counties to fund it (“The Commissioners Court may…”), so it would be interesting to see if this is done in practice in counties.

    (f) The commissioners court may approve a program in which the crime victim liaison or victim assistance coordinator may offer not more than 10 hours of posttrial psychological counseling for a person who serves as a juror or an alternate juror in a criminal trial involving graphic evidence or testimony and who requests the posttrial psychological counseling not later than the 180th day after the date on which the jury in the trial is dismissed. The crime victim liaison or victim assistance coordinator may provide the counseling using a provider that assists local criminal justice agencies in providing similar services to victims.

    Texas Code of Criminal Procedure 56.04(f)

  3. I served on a criminal trial, and even though we got bored and annoyed at the long waits in the jury room and commented on the witnesses not always too kindly, we took our duty in pronouncing the verdict VERY seriously. The jurors discussed the facts and talked through every charge in great detail. We had some debate but ultimately agreed. Even though I think we were all confident in the verdict, it was still very difficult. We knew we were not supposed to consider the sentence, but it was impossible to ignore that.

    Afterward, the judge did exactly as you describe. She came in with her bailiff, sincerely thanked us for our service, made sure to talk to each of us, and told us in a general sense that we did the right thing (without revealing what she personally thought). Her bailiff made a rather more blunt comment that he probably shouldn’t have, but it was reassuring. Anyway, having her come in and talk to us for probably half an hour was really helpful and gave a sense of closure that we needed after announcing the verdict. I know some of the jurors were pretty emotional, and she was a steadying presence.

  4. chocolatetort,

    Thank you very much for providing your real life experience. It is consistent with my experience.

    Although I did not make this clear, at least in the criminal context, jurors worry a lot even about routine cases. After all, they see the defendant sitting there day in and day out and that physical presence brings home to them the consequential nature of their decision.

    I could make a principled policy argument that we ought to dump the Seventh Amendment for civil cases, although, in truth, my heart would not be in it. My argument would be along the lines that the effort and consequence of trying civil cases is not worth the direct and indirect costs to our society. On the other hand, your experience confirms why I could never make such an argument in the criminal context.

    All the best.

    RGK

  5. Mary,

    Let me ask you for a favor. Please write a short narrative of your jury service from voir dire to verdict. (No more than 1000 words.) Take your time, no hurry. And, then permit me to post it as a guest blog post. (This blog platform can handle Word, but not WordPerfect.)

    If this is too much trouble, don’t fret. Just tell me.

    All the best.

    RGK

    PS to Readers: Mary was the first law clerk I hired. Trained as a linguist she was responsible for the “English as a Second Language” program at Creighton University. Then, she went to law school, served as an editor on the law review and clerked for me when I was a magistrate judge. Later, she clerked for two of our Chief Judges in between stints as a federal public defender. Mary is a wonderful person and a very serious person.

  6. Ron,

    What a great idea. It is important that post-trial help be offered. Counseling during trial or grand jury deliberations has all sorts of legal problems.

    Just this once, maybe the feds ought to follow Texas. Boy, I never thought I would write that sentence.

    All the best.

    RGK

  7. I have never understood the substantive justification for being so stingy on juror compensation. Especially in the Federal system, where the number of jurors is quite small in absolute terms, and the resources of the Treasury are quite vast, it seems like we should pay at least minimum wage.

    Yes, I know the courts budget is a tiny portion of Federal spending (as it basically everything other than Social Security, Medicare, Medicaid, and the military), but we demand a lot from jurors, and barring the overturning of Butler v. Perry, 240 U.S. 328 (1916), the United States ought to treat those it conscripts at least as well as it demands McDonald’s treat its employees.

  8. It’s not easy being a juror. It is burdensome and inconvenient.

    Yeah, and? Life is burdensome and inconvenient. We’re all, every one of us, born in terror, lead short brutish lives, and die alone and in misery. Deal with it.

    Many civil trials involve complex theories of law not to mention listening to conflicting expert witnesses expound on difficult scientific, technical or medical testimony. This can lead to difficulty and frustration in understanding the testimony which may affect the outcome of the trial.

    Yeah. Because Americans are either too dumb or too childish for rational thought. How very Progressive.

    Most of the necessary things in life have deucedly inconvenient components. Jury duty is one of the more necessary things.

    [J]urors may be exposed to gruesome, graphic crime scene visuals. Emotionally disturbing testimony by victims and witnesses may be heard.

    Never mind the graphic scenes or emotionally disturbing events the victims underwent–many of whom didn’t survive the adventure.

    Yeah. I’m not overly sympathetic.

    Eric Hines

  9. Peter H.,

    Got me. If it were up to me, I would pay jurors the same hourly rate I would pay CJA appointed counsel.

    All the best.

    RGK

  10. Speaking only for myself, I’ve never had a problem with my employer or my jury pay.

    Well, I did have one problem: the city of Plano has no mechanism for us to donate our jury pay like all the other jurisdictions in which I’ve served on juries did.

    Eric Hines

  11. “And, I end by telling them not to have second thoughts.”

    Why? Don’t you have second thoughts about the tough decisions you’ve made that could have gone the other way? I know I do. I think I’m a better lawyer and a better person for the second thoughts I have.

    I agree that we make jury duty way too hard, and I think it is criminal what we pay jurors to give up their lives for a week, or month, or more. Where I practice, jurors get a magnanimous $6 per day plus 7 cents per mile, so you know they’re all thrilled to be there. I would change many things about jury duty if I were king for a day, but I don’t have any problem with a juror occasionally waking up twenty years after jury duty and wondering if the guy who is still in prison under his verdict really belongs there.

  12. Roger,

    I understand your point and, in the main, agree with it. However, to be more precise, I try to tell them to be at peace with themselves and to believe that they did the best they could at the time with what the lawyers gave them and with what the judge told them to do. While I use simple words, I believe that more precise meaning comes across clearly. Hope that helps.

    All the best.

    RGK

  13. Eric,

    Not often, but we do have problems with employers both (1) implying that jury duty will cost a juror a job and, much more frequently, (2) docking pay (or vacation time). I deal quickly and bluntly with the first issue by contacting the employer with the assistance of an AUSA if necessary. The second problem is not within my control.

    As for donating jury pay, good for the City of Plano for paying you. I suppose you could always turn around and donate the jury compensation to some local charity. Incidentally, jurors get 1099s if the pay is over some minimal amount.

    All the best.

    RGK

  14. I guess it’s a little different for me being essentially self-employed. Time spent on a jury is time my clients won’t pay me for – and there’s no way the government can (or should!) mandate they do. Likewise, being self employed, or working at a very small business, there may be nobody capable of picking up the workload left behind when someone has jury duty.

  15. Judge:
    In the 1990s the New York State Legislature did away with the exemptions that had previously kept lawyers (among other professions) off juries. As a result, since that time I have sat on several juries and have been deeply impressed by how seriously jurors took their oaths.
    Not to be obsequious but your taking the time to do your shtick with jurors in your courtroom sounds like it’s worth its weight in gold. Bravo to you & keep it up.
    Robert

  16. I did a trial here in Texas recently and after the trial, the state district judge did something similar. She invited the jury to discuss the trial afterward with both lawyers present. It was very helpful to the jury to discuss what had happened and why, more or less. But, more importantly, the discussion lets the jury know they are important and critical to the success of the jury system.

  17. Tom,

    I am have done the same thing but only in civil cases. I am always willing to do that if both counsel agree and that it is “off the record.” I make some other restrictions, but you get the picture. I think this is a good practice, but perhaps it benefits the lawyers more than the jurors.

    All the best.

    RGK

  18. Robert,

    Thanks very much. Since I am a bit of a ham, I actually enjoy it. Once in a while, it also makes me feel like a lawyer and that feels especially good.

    All the best.

    RGK

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