As lawyers, we should be used to the notion that there may not always be absolutely right or wrong answers. Such is the case with this topic: There are no right or wrong answers to be seen here—just move along. I am compelled to tell you, in the interest of self-disclosure, that occasionally I allow my life to be at least informed, if not completely governed, by pop culture. Perhaps that makes me ill-suited to address even-handedly this topic in the context1 of punishment retrials.2 At issue is how best to deal with the prior conviction and the new jury: hide it or hang it all out?3
I am reminded of a scene in the 1994 Harrison Ford film “Clear and Present Danger” where it is revealed that the fictional character, Peter Hardin, was laundering money for Colombian drug cartels before his murder. The U.S. president had been friends with Hardin, and his closest advisors counsel him to minimize his acquaintance with Hardin, suggesting that the relationship might not become public, and even if it did, they could effectively downplay the president’s association with Hardin.
Responding to the suggestions that the press won’t find out, the president says: “They will. They always do.” Ryan recommends a different approach: Asked if he and the victim were friends, the president should say they were good friends; asked if they were good friends, the president should say they were lifelong friends. Ryan’s reasoning? “There’s no sense defusing a bomb after it’s already gone off.”
That incredibly powerful statement resonated with me in 1994, especially in light of real-world presidential politics at the time. Almost 20 years later, it still does. There is a certain beauty in owning mistakes and flaws, and it’s something that celebrities constantly fail to understand, advised by people who’ve likely never worked in journalism. If you’re guilty and you’ve been sussed out, admit it. Take the sting out of the issue. There’s no more story after that, and the media moves on.
I suggest the same thing can be true within a limited framework in the context of a punishment retrial. That limited framework is the degree of disclosure we choose to make with respect to prior proceedings: 1) full disclosure, 2) limited disclosure, or 3) no disclosure?
Does counsel pretend that nothing has happened before?
Proponents of #3—the zero disclosure approach—will presumably argue that fear of tainting the jury prohibits disclosure of any prior trial or sentence. Like TEX. R. EVID. 404(b), the jury should be prohibited from deciding the case on anything extraneous—such as a pesky prior trial and death sentence. If the jury is not told about the prior trial and/or death sentence, then they won’t be biased by that knowledge. We cannot risk the jury being predisposed to arrive at a death sentence simply because a prior jury arrived at the same result.
This reminds me of my long-deceased Italian greyhound, Sophie. Sophie was an eminently graceful creature under all circumstances. She was apparently under the misimpression that if she could not see me, then obviously I could not see her. Sophie was never accused of being a particularly bright dog. Needless to say, in any situation where Sophie turned up deserving of discipline, all I ever saw was her backside—not in flight, mind you, but rather simply standing in front of me studiously averting her gaze and avoiding any form of eye contact whatsoever.4
Pretending nothing ever happened was an incredibly dangerous approach for Sophie, because just as entertaining and perplexing as her approach initially was under those circumstances, eventually so, too, was it also enraging. The same thing can and will happen with jurors. Whatever ill certain members of the bar might think of them, the jury is not completely dumb. Even if they don’t know during voir dire why there’s only a punishment hearing and a tremendous time lag between the offense enumerated in the indictment and the trial, they will have figured out the reason by the time they begin deliberations, because during the punishment hearing they will almost always hear evidence of the client’s behavior on death row. Which is as it should be.
Pretending nothing ever happened invites curious jurors to salacious inference. Trust that such inferences will be invariably bad for our client. For example, obviously our client has been on death row for all those other murders he committed, and the State is just finally trying this last one. Or, death row is just where they keep people who might murder witnesses until the State is ready for the trial. Any of a variety of other [bad, bad bad]5 things can and will be inferred.
In addition, we must face the fact that most potential jurors are predisposed toward a death sentence when they walk into the courtroom regardless of what any prior jury decided. If anything, the only way to move them from that position is to accept and explain the fact of the prior sentence. I confess, to me it is difficult to understand or justify no disclosure under any circumstance. The dangers are simply too great, and at the length truth will out.6
Nevertheless, I trust there may be varying opinions.
Where did my client spend the night last night and why?
There is no question that prison is seen as severe punishment by most people.7 For those who do not see it that way, it is our task as capital litigators to root out such beliefs, eliminate them from our case, and see that no person of such beliefs sits in judgment of our client. The more important question tends to be whether or not prison is an effective (i.e., sufficient) punishment.8 In that case, our task becomes to persuade that, yes, under all circumstances following a finding of guilt, prison is sufficient punishment.9
The fact that our client has spent the last x number of years in prison, up to and including last night, is a potential mitigating factor in the eyes of some jurors. We are entitled to discuss those issues with potential jurors, to determine their abilities to consider our individual client’s mitigation case.10 From a practical perspective, incapacitation could also be important to a particular juror; they need to be reassured they will not run into our client at Wal-Mart tonight.
Dealing with the “Googling” juror
My gut-reaction to the potential Googling juror would be to litigate. As a very young lawyer in the not-so-distant past, I was awaiting an elevator on the fourth floor of the Potter County Courts Building and was appalled to overhear jurors in an ongoing personal injury case discuss exactly what they thought of the case and how they would vote. My naïveté showed, and in righteous indignation, I accosted the trial lawyers to apprise them of my tale of misconduct. They asked me to inform the judge, and we proceeded to have a full-blown hearing.
The Judge questioned each juror individually-on the record, in the presence of trial counsel, with me there, too. “Mr./Mrs. Juror, I advised and ordered you at the beginning of the proceeding not to discuss this case with anyone, including your fellow jurors, prior to deliberation. I need to ask you if you think you might have done anything against what I asked you to do?” What happened was telling: out of the four jurors I identified, two completely denied having the conversation I witnessed. One admitted misconduct and was appropriately contrite. The last, because of the way the Court phrased the question, immediately pulled out his cell phone and offered it up with the explanation, “Yes, Judge, I have sent some inappropriate text messages about the proceeding.”11
Wow, and that wasn’t even what he was being asked about! That experience, along with a particularly bad one involving a juror and a Bible in the deliberation room, have led me to litigate in advance of trial the issue of potential outside influences, requesting that jurors leave at home everything they might ordinarily be inclined to travel with on a day-to-day basis. After all, many jurors who are used to Googling, texting and Tweeting all day find it hard to change their behavior while on jury duty, and a fair trial would seem to demand that jurors leave their online habits at the courtroom door.12
There are some creative ways to deal with the Googling juror that might be effective. For example, experimental jury charges and instructions, extended voir dire questions, and jury empowerment all seem to be valid and potentially effective methods to mitigate the Googling juror.13
However, as I was trying to track down some of the entertaining stories about Googling jurors14 with which to keep you engaged, I had an epiphany, thanks to a blogger from Massachusetts named Edward P. Schwartz. Schwartz rooted out my hypocrisy. It is fear which leads to the conclusion that pretrial measures should be taken to “unplug” jurors-an idea that is inconsistent with my personal philosophy.15
Schwartz suggests a different approach:
Jurors swarm the net
Recent entry for the smallest surprise of the year award: jurors are online.
Everyone is online. So, of course, people summoned for jury duty are, too. Jury duty can be very tedious. There is a lot of sitting around waiting for things to happen. The local sports page can keep you occupied for only so long. So, whip out your iPhone or Blackberry and see what’s what. Google the defendant. Google the lawyer. Google the judge! Post a tweet (Most juror posts run along the lines of “I’m stuck on jury duty and boy am I bored.”).
The problem has become so prevalent that there was a front page story about it in today’s New York Times. So, what are we going to do about it?
Anyone who understands psychology at all knows that the solution is NOT to take away juror’s toys and slap their hands with rulers if they disobey. We know from decades of research about judicial instructions (particularly the limiting kind) that judicial admonitions without proper reasoning tends to incite “reactance” on the part of jurors. That is, when jurors’ freedom to act is taken away by the court, those jurors tend to rebel and engage in the prohibited behavior more than had they not been warned in the first place. So, the key is to accompany whatever solution is chosen with careful, logical and respectful explanations to the jurors.
With these considerations in mind, there seem to be fairly straightforward solutions to the two main types of juror internet activity that concern lawyers and judges.
Juror Twittering and Blogging
There is nothing wrong with a juror wanting to chronicle her experience on jury duty. The problem is when she posts her experiences while the trial is ongoing. Outgoing messages don’t pose too great a risk of contaminating the trial, unless one is concerned that the desire to post something sensational will cause the juror to alter her behavior in the jury room. The bigger problem is the possibility that such posts will generate online responses, providing the juror with extra-legal contact with facts and opinions not in evidence. Another emerging problem is the ability of an attorney to read the posts of jurors in her own cases during the trial.
General pre-trial jury instructions and those ever-entertaining “What is a juror?” videos should be edited to make it clear to those called for jury duty that they are not permitted to post information about their experiences online until after their service has ended. These instructions should make it clear that this prohibition is consistent with the one against discussing a case with others. My educated guess is that most juror bloggers do not realize that their behavior is inappropriate. Very few people need to blog so badly that they will do so after being told by a bailiff not to. These instructions should also make it clear that jurors are, of course, permitted to write whatever they choose about their experiences after their jury service is over.
Online research by serving jurors
Six hundred years ago this would not have been a problem (not just because there were no computers). During the early period of the Anglo-American jury system, jurors were selected from the locality of an alleged crime or dispute precisely so that they could come to court with local knowledge about the events in dispute. If the jurors did not feel that they understood the case well enough, they were expected to investigate it on their own! They were to ask other villagers about what they saw or heard. There were rarely witnesses at trial, so the jurors had to be “self-informing.”
Well, we have now almost come full circle. We live in a world full of people skeptical of the motives of everyone involved in the law. We don’t trust the parties. We don’t trust the lawyers. We don’t even trust the judges to be impartial anymore. Given the instant availability of information online, it is no wonder that jurors are tempted to “fact check” their cases on Google. In a recent Florida case that resulted in a mistrial, the judge discovered that a juror had conducted unauthorized online research. He then voir dired the rest of the jurors to find out who had been exposed to what this juror had found out. To the judge’s amazement and horror, he discovered that eight other jurors had also conducted research online. He had no choice but to declare a mistrial.
What should we do? Well, first of all, every single judge should pre-instruct every single jury not to conduct online research. Such an instruction must be accompanied by a well-crafted explanation of why such a rule is necessary. Second, lawyers should do their homework. If the attorneys in a case cross all their t’s and dot all their i’s, they can substantially reduce the temptation for jurors to look elsewhere for answers. Do some pre-trial research. Find out what is likely to matter to jurors. Find out what is likely to confuse them. Give them the answers they need.
This brings me to a procedural “innovation” that I think can mitigate the temptation for jurors to conduct unauthorized online research. More and more jurisdictions allow jurors to ask questions of witnesses during trial. Judges should not grudgingly accept this intrusion into their total control of the courtroom. Rather, judges should welcome this as an opportunity to satisfy the curiosities of jurors within the confines of the courtroom. Better to let the parties address jurors’ questions during the trial than risk those jurors searching for answers elsewhere.
So, at the same time that the judge tells the jurors not to consult any outside sources regarding the trial, she should encourage them to bring any outstanding questions to her attention. The message should be “We are here to help you make the best-informed decision possible. We’ll get you the answers you need.”
I think that jurors who hear that message will be more likely to stay off Google during trial. Afterwards…. well, that’s another topic for another day.
The Schwartz approach16 appears to me to be a novel one, which deals with the issue directly and has the potential to take some of the sting out of what jurors might otherwise find out on their own, regardless of the level of prior remonstration. It is an approach that embraces our fears, and, therefore, I commend it to you as an alternative possibility to the “take no prisoners” approach to unplugging jurors-potential or otherwise.
Specific voir dire themes and questions
I suggest spending significant time in advance of trial developing voir dire themes consistent with the approach of disclosure. For example, I recommend pushing truth, justice, the American way, mom and apple pie. Seriously. The virtues of the justice system are long extolled, and one of the greatest things about the justice system in our society is the mechanism to right great wrongs. This is our jury’s opportunity to be a part of that process-to correct a mistake.17
An endless number of general themes can be developed consistent with sending the message that a prior jury arrived at the wrong result.18
The Colorado Method of Jury Selection lends itself nicely to a theory consistent with disclosure. Under the Colorado Method, the goal is to select jurors strictly based upon their views of the death penalty. Inherent in that goal is to challenge successfully as many disqualified jurors as possible. Given that goal-to get rid of as many “bad” veniremen as possible-the punishment retrial case can and should be made it sound as bad as possible. Each potential juror must know and understand that twelve (12) of their “peers” previously heard the same guilt/innocence evidence and voted for death. The potential juror should know our client has been on death row for “X” years since then. If knowledge of either factor biases them toward a death sentence, challenge for cause.
Alternatively, in consideration of mitigation, we can try to get agreement that good behavior while in prison (Skipper evidence) during this time is not something they would meaningfully consider to determine an appropriate sentence. Pressure the district attorney and/or the Judge to emphasize to jurors that this type of information is something they must be able to consider. If we can secure agreement from a potential juror that because twelve (12) of their “peers” believed death was the appropriate sentence, so death will also be their default sentence unless the defendant convinces them otherwise, we can challenge for cause. The district attorney and/or the Judge should be pressured to require that potential jurors be able to decide the appropriate sentence with no preconceived notions.
By the way, lack of disclosure forfeits these valuable challenges for cause.
Are these jurors able to tell the first jury they got it wrong?
Again, consistent with the Colorado Method, jurors should be sought with moral courage and the ability to arrive at their own individual, personal moral judgments, regardless of whether that judgment conforms to another jury that previously decided the case; that jury got it wrong. We demand a different result of them. Make no secret about it; instead, trumpet it from the rooftops.
I apologize if any of the positions I take in this article offend anyone. Originally, it was intended as a point-counterpoint piece. However, as I wrote, it evolved into a position paper. I freely admit I could be completely wrong and will gladly listen to, and include in future iterations of this article, differing viewpoints or other ideas favoring non-disclosure not addressed herein—should you choose to contact me to discuss them. In the meantime, I suggest we swing wide the doors of Munoz19 and embrace the power of an urgently spastic bladder.20
Isn’t disclosure powerful?
1. Muniz v. State, 851 S.W.2d 238, 259 (Tex. Crim. App. 1993).
2. My personal motto is “Take it, own it, take it to the next level”—a version of “lemons to lemonade” on steroids. Given lemons, let’s make Limoncello.
3. It should be noted at the outset that in a completely informal, non-scientific survey conducted by the author of approximately sixty (60) mostly non-capital public defenders at a seminar in conjunction with Rusty Duncan in June 2010, an overwhelming majority favored non-disclosure of any prior trial and sentence.
4. A better pop-culture reference: Simply because the Wizard pretends he is not behind the curtain does not mean he isn’t behind the curtain.
5. R.I.P. crab-boat Cornelia Marie Captain Phil Harris.
6. Shakespeare’s The Merchant of Venice, 1596.
7. Stuart Henry, “On the Effectiveness of Prison as Punishment,” Incarceration Nation: The Warehousing of America’s Poor, October 24, 2003.
9. For the purposes of brevity, and in lieu of devolving into a purely philosophical pedagogical exercise, we deal in this section strictly with the case of the client for whom evidence of guilt is not scarce.
10. Tennard v. Dretke, 124 S. Ct. 2562, 2570 (2004).
11. Nothing happened to any of the offending jurors—the trial proceeded; justice was served.
12. Susan Macpherson & Beth Bonora, “The Wired Juror, Unplugged,” Trial, November 2010, at 40.
14. See, e.g., Ken Strutin, Juror Behavior in the Information Age, LLRX.COM (http://www.llrx.com/features/jurorbehavior.htm), December 26, 2010.
15. See n.2, supra.
16. Reprinted here in its entirety by permission from: http://juryboxblog
17. “Is the justice system perfect?” “Is it important to correct mistakes?” “How do you feel about that?” etc.
18. Here is where disclosure works to our advantage whether you are a strict proponent of the Colorado Method of Jury Selection or somewhere in between. General questions to develop case-specific retrial themes can be asked quite effectively in conjunction with insulation/isolation questions to teach respect.
19. See n.1 supra.
20. Gerry Spence, Win Your Case 50 (2005).