Picking a jury when the judge looks like the walking dead

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From the TV series Walking Dead

In a day and a half (this Monday) I will pick a jury in a civil case. As you may remember, my jury orientation is close and personal.

I am absolutely committed to spending an hour with the jury in the courtroom before trial begins so they can become comfortable with me and the process. I tell them exactly what will happen from the beginning of the trial to the end of the trial and their deliberations. I tell them why things are done the way they are.

We walk together around the courtroom. We go up on the bench, sit in the jury box and the counsel tables, sit in the witness-box, tour the jury deliberation room, reveal all the electronic stuff, and so forth. All the time, I am walking with the prospective jurors.

OK, now examine how I look:

IMG_0583 (1)

I have decided to be completely frank with the jury.  I will tell them the whole story about how I got to my present unpleasant looks. I will assure them that I can’t communicate shingles to them.

The virus cannot go air bound. The only way it can be transmitted is by intimate physical contact. Even then, I will stress that those who have had chicken pox or the vaccination (virtually everyone) would be immune anyway.

I don’t embarrass easily. I have paraded around in front of a jury not knowing my fly was open and just laughed it off when I later found out. But this “walking dead” visage?

RGK

* I confess something else to you. Joan and I watch The Walking Dead. What’s worse, we like it.

A terrific and wry letter on jury service–federal trial lawyers and federal trial judges take note!

One of the unexpected joys of writing this blog is the correspondence I receive from smart (and funny) lay persons who have have served as jurors or who  have been called to jury service.  In this post, I reprint, with the writer’s permission, an insightful and wry account from one such person, who also happens to be a good writer.

The only significant edits I have made is to redact the names of the writer and his son, and I do so because the writer’s son (a brilliant kid who just graduated from the University of Chicago law school) is beginning a federal district court clerkship this summer.  Because some federal judges would prefer that their clerks remain totally anonymous, I thought it best that I redact names.

With that by way introduction, here is an e-mail (really a letter) on jury service that every federal trial lawyer and every federal trial judge ought to read with care.

Dear Judge RGK,

Executive Summary: Even the most rote and routine parts of a trial can seem confusing and out of place to jurors who have never seen a real trial. Help these jurors to put questions/answers into a context.

I’ve been reading for a couple of months. I somehow found your blog via my son who is graduating from law school this June.

Your article* about how you handle jurors impressed me as every time I’ve been called, it’s like being cattle herded through airport security, with the occasional, and too well practiced, “Thank you for your service.” Is that the judicial version of “Have a nice day.”?

The case was a simple drug possession case. The defendant ran a red light. Patrol cop pulled him over. The cop saw a gun in the car, then searched the defendant and found drugs.

At the trial, the first witness was the patrol officer. The D.A. established the officer as an on duty police office, then went into this line of questioning.

“You stopped the car at the intersection of Broadway and Dobson?”
“Is that intersection in the City of Mesa?”
“Is that intersection in the County of Maricopa?”
“Is that intersection in the State of Arizona?”

The D.A. then moved on to a different line of questioning, but I was asking myself what were those questions about. I must admit I ignored the proceedings for a few minutes until it finally dawned on me the D.A. was establishing the jurisdiction. Establishing the jurisdiction is probably a routine part of every trial, but for me, a virgin juror, the questions seemed almost random.

What I wanted to say to the D.A. was tell me what the questions are all about so I can put them into context. Where are you headed? What are the following questions supposed to answer.

Thanks for your columns. Your thoughts on the legal system will help me understand where my son is headed. He will be clerking for a Federal District Judge in Sacramento starting in September. Know any Circuit Court judges who need a clerk in Sept. 2015? Sorry just being a pushy father.

. . .

If you’re busy, stop reading here. The following was my rant to my son about my prior visit to the court house.

Not Getting Selected

21 prospective jurors sat scattered behind 8 long tables facing a lectern flanked by the U.S. and the Arizona state flag. Nothing was being shared among the strangers. Simple uncomfortable quiet conquered any innate friendliness.

The jury wrangler, Lisa, opened with a joke about her inability to make coffee, “So if your drink it and it’s terrible, I warned you.” Only, a few laughs followed. Her general overview of the forms to fill out, location of the bath rooms, and admonishments to not wander the halls filled the room but created little interest. Heads looked around and counts were quickly assessed when Lisa said only 7 jurors would be impaneled that day. The few prospects that survived high school math got the exact probability of being selected but everyone had hope of not being impaneled. As if on cue, the presiding judge entered as Lisa completed her performance.

The judge with a spare tire belly, grey curly hair with a pronounced bald spot began with a usual, “Good morning.” With no response, he added, “You can do better than that.” and amped up the next, “Good morning!” following with, “Let me tell you why this is really a great morning.” Having said he had been a judge for 30 years and a presiding judge for 10, his speech was well presented but unorganized. The speech covered: why our country is great; was great because each defendant can be granted a jury trial; how everything thing the courtroom was aimed at us, “the judges”; and how we, “the judges”, were the most important part of any courtroom proceedings.

His term of “judge” instead of juror was jarring initially, but became accepted like how your friend always mispronounces certain words.

He then reiterated how important we were and how the entire system created here was to make the absolute best use of our time. Delays would be at a minimum and we would be moving into the courtroom in less than 30 minutes.

He rambled on about these facilities compared to other city courthouses. How courtrooms cost over $200 per square foot to construct. That this jury room was fairly nice. He talked about even the smallest courts in the smallest towns held justice and jurors to the same high standards as every other city in the land.

When the judge didn’t get the hook and no one came to his rescue, he wrapped it up with the usual how important everyone here was and for what seemed like the 100th time, thanks for our service. He departed.

Lisa returned and assigned us numbers. I got number 13. We lined up by numbers and filed chain gang style into the small courtroom. The 21 of us filled the guest area in the back of the court room. The only person not standing for our arrival was the judge. The only person not well dressed was the defendant. He wore a dark T shirt and blue jeans. Everyone else stood in suits and ties.

Each future juror was to answer the following: name; type of current job; marital status; number of children; and if ever served on a jury: which court; what type, civil or criminal; how long ago; what was the verdict.

The judge’s role in all of these proceedings was to repeat the pat phrase: “Would that whatever effect your ability to render a fair and impartial verdict in the case before you?” By the time the judge got to me, I had to force myself to listen to each question. One answer was supposed to be “yes” and the other was to be “no”. I had forgotten to memorize the correct order so I had to actually listen. I was able to answer correctly and got the judge’s approval with a “Thank you.”

Back to the jury waiting room while some people got special one on one time with the judge back in the courtroom. I wasn’t special and simply waited.

After 20 minutes while others came and went, we were again chain ganged back to the court room. Seven juror numbers were called but my mine wasn’t one of them. After arriving at 7:15, I left at 11.

Having protected the American Judiciary, I had an early lunch and Pete’s Fish and Chips.

My take away.  We trial lawyers and trial judges can do better.  Jurors need practical and actionable information.  For both the trial lawyer and the trial judge this takes thought and extra effort, but it is doable without a great deal of difficulty. Platitudes don’t impress jurors.  Questions that poke around obscure points of law without explanation are not only confusing but annoying. Jurors take their duties very seriously, and they expect us to spend the time that is necessary to give them the information as well as the background that any rational person would want before they are selected and thereafter. Finally, being nice is nice, but that is not enough. Jurors want concrete direction and information, and they want the jury orientation, voir dire and trial questioning to provide that concrete direction and information in a timely and efficient manner. Jurors sense rote bullshit and they are turned off by it. All of us “old hands” can and must do better.

RGK

I believe the author is referring to earlier blog posts about how I conduct jury orientation and then voir dire. For example, see here and here.

UPDATE:  The new Chicago law grad and future law clerk “outed”himself on Twitter.  So, I shall too, with my hearty congratulations to Channing for his past and future success and kudos to his father Robert for being a “cool dad.” See Channing Turner ‏@ChanningTurner @JudgeKopf of “Hercules and the umpire” posted a letter about jury selection written by my dad!!! #SoProud #CoolDads http://bit.ly/1qBumIl

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

 

Pulling aside the curtain to reveal how the wizard works

This will begin an intermittent series of posts regarding jury trials.   The posts will hopefully provide some food for thought on what really goes on with regard to jury trials in the federal courts.

Let’s start before the lawyers arrive to select the jury.  In virtually all federal courts, there is some sort of orientation, although how the orientations are conducted varies widely.  Over the last several decades, I have taken a very hands-on approach to jury orientation, and some might think my approach is unusual.   Anyway, here’s how I do it.

Initially, the prospective jurors see personnel from the Clerk’s office and are checked in.  They receive a briefing on practical things–like where to park–and sometimes are shown a video.  Then, they are brought to me.

I conduct my orientations in the courtroom where the trial will be held.   The lawyers are welcome to attend, but not participate.  The session is entirely informal and relaxed, and no recording is made.

I begin the orientation with a short talk.  I try to answer these questions:  What’s the constitutional reason for your being here?  How did you get on the list?  How is the typical jury trial conducted?  I explain voir dire, opening statements, witness examinations, and closing arguments.  I explain the burden of proof, who goes first and last and why that is so.  I tell the jurors not to worry about their safety, and explain that my name, telephone number and address are in the telephone book.  I explain what would happen if we had a security concern.  I explain how long they will serve, and our hours of work during trial.  I then have the jurors get up and walk with me into the middle of the courtroom.

We gather around the lawyers’ tables and peek into the computer hook ups, we examine the video screens, and push the “on” and “off” buttons on the microphones.  The jurors are told about interpreters and shown how the interpreters use the equipment situated next to the defense table.

The jurors will then see where the Marshals will sit if we are trying a criminal case.  We also talk about the roving Court Security Officers who will periodically enter the back of the courtroom and the fact that the CSO’s have earphones.

We show the jurors the camera that the United States Marshals Service uses to monitor the courtroom.  We also explain that since we are a pilot court for video recording, we have the capacity to video record trials.  Since the cameras are apparent, we tell the jurors whether the trial will be recorded or not.  If a video recording of a civil trial was expected, we would go into detail about camera angles, juror privacy and the uploading process.  We would turn on the video equipment and show the prospective jurors what a recording looks like.

Colleen, our courtroom deputy supervisor, sits in the witness box to illustrate to the prospective panel how the equipment works.  The prospective jury panel members gather around her as she illustrates and I yap.

Colleen, our courtroom deputy supervisor, sits in the witness-box to illustrate to the prospective jurors how the equipment works. The prospective jury panel gathers around her as she illustrates.  I yap.

Next, we walk over to and look into the witness-box.  The courtroom deputy (CRD) serves as a model and sits in the witness chair.  She manipulates the flat screen that permits the witness to draw things and display the drawing to the jury, the CRD explains the need for the witness to be close to the microphone, and she illustrates how the video presentation equipment (adjacent to the witness-box) can be used by the witness and a lawyer.

We then walk over to the locked door where the Marshals will bring in prisoners.  The jurors are told about the holding cells that are maintained in the middle of the building.

After that, we walk onto the clerk’s bench.  The CRD then shows the jurors her computer equipment, her timing equipment, her digital audio monitoring equipment and so forth.  Juror are told that we can provide them with battery operated headphones during trial to better hear soft-spoken people.  The head phones are demonstrated.  Digital audio recording rather than a court reporter is explained.

Colleen, our courtroom deputy supervisor, shows prospective jurors the equipment she operates during trial.  This is pretty much the view that the prospective jurors get when the walk onto the clerk's bench.

Colleen, our courtroom deputy supervisor, shows prospective jurors the equipment she operates during trial. This is pretty much the view that the prospective jurors get when they walk onto the clerk’s bench.

After that, 14 jurors are asked to sit in the jury-box to “test out the chairs.”   Use of the flat screens in the box as well as a large additional flat screen is explained.  The other prospective panel members gather around the jury-box.

We then walk up the stairs to the judge’s bench.  We can accommodate 17 jurors at a time.  The CRD sits in my seat and shows the jurors the computer equipment, panic alarm button, and toggle switches for the lights.  We talk about bench conferences, the reasons for them, and the “white noise” that will be pumped in when a bench conference occurs.

View from the judge's bench.   The prospective jurors go up on the bench during orientation and see what I see.

View from the judge’s bench.  All the prospective jurors go up on the bench during orientation and see what I see.

 

 

 

 

 

 

 

 

 

 

 

After all the jurors have gone up on the bench and looked around, we then go through the recessed door in the wood paneling where I enter and exit the bench.  We go down the steps behind the courtroom and into the jury deliberation room.

In the jury deliberation room, we talk about coffee, the refrigerator and the microwave, where the restrooms are located, the need for jurors to wear their identification badges while in the courthouse, use of the telephone and other practical things.  I explain why I don’t allow jurors to ask questions of witnesses during the trial whether orally or in writing.  We then proceed single file into the courtroom through the “jury’s door” just as they would go if trial were in session.

Colleen, our courtroom deputy supervisor, sits in judge's chair on the bench.  She shows the"panic alarm" and other "secrets" to prospective jurors while I provide the narrative.

Colleen, our courtroom deputy supervisor, sits in the judge’s chair on the bench. She shows the”panic alarm” and other “secrets” to prospective jurors while I provide the narrative.  Every prospective panel member goes onto the judge’s bench.

During all this time, I provide a running narrative of what the jurors are seeing and why they are seeing it.  I try to keep the talk light, and humorous but informative.  My mission is to make sure that when jury selection and the trial begin that the jurors are concentrating on important stuff rather than their physical surroundings.

In short, that’s how I do a jury orientation.  Is it worth the time and effort?   I know this, after I discharge jurors following the trial, I meet with them privately.  I have conducted these interviews for every jury trial I have ever conducted over the last 26 years or so.  I always ask how I could do a better job.   Almost without exception, jurors tell me that the “walk about” was the highlight and I should never drop it.  They say it reassured them, helped them understand and visualize the process and made them feel comfortable.

RGK

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