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.
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