No Skeptics on the Jury, Please

[JayUtah]

At least in Indiana, we still use foreign juries occasionally. * * * [The judge] chose to bring in a jury from Allen County, because all the witnesses and evidence were located in Carroll County.

That is a common solution to venue complications in many states including mine, which contains many sparsely populated counties. We host spacecraft plummeting from orbit, if that's an indication of our desolation.

However that's not what is meant classically by a "foreign jury." At the height of the plural jury system in England, you had :—

• The Gentleman Jury – a jury composed of prominent property-holders in the district. The idea is that these would be reasonably well-educated men whose judgment and experience arising from their success in commerce would convey trust in their decisions. There was usually a minimum net-worth requirement. In Fay v. New York (1947) we find that New York still had a property-holdings requirement for jury service: $250.
• The Struck Jury – a jury of 24 men selected from a pool of 48 men selected by the chancellor or clerk of the court. Juror candidates could be "struck" alternately by the parties, but only upon preremptory challenge. This is the closest representation of U.S. juries today.
• A Professional Jury – a jury of indeterminate size and standing composed of men deemed skilled in the special matters that the court would consider. These would be invoked or impaneled as needed.
• A Foreign Jury – A jury composed of fellow-citizens or nationals of the defendant in the case where the defendant is from another country. For example, if I as an American were arrested in Sweden under such a system, I could request a jury of Americans who would be sympathetic to any cultural norms or beliefs that might affect a determination of guilt.

As in many such systems, the verdicts of these juries (and there may be more than one in a case) are recommendations to the magistrate, judge, or justice who can accept them or reject them. This judicial power over juries still exists in the American system in the form of a directed verdict. And this actually occurs in the case of hung juries. There was at least one case involving a hung jury following a lengthy, complicate trial. Rather than declare a mistrial immediately, the judge interviewed each juror individually and discovered that the lay jury was simply not able to understand the complicated evidence presented at trial. The judge directed a verdict for the defendant and wrote in his opinion how the plaintiff should change his presentation of the case should he wish to refile.

I pointed out that he probably would have been challenged for cause anyway, as our other brother is a reserve deputy sheriff.

I just realized I've been on call for jury service this month. The notice came back in November, and I sent in the questionnaire. But so far I have not been called up. Given that I live in the most populous judicial district in my state, I might want to call the court clerk's office tomorrow.

But I also realize that given my familiarity with most of the lawyers in this district, a challenge for cause is almost inevitable.

 

[theprestige]

The jury trial I have been referring to was... get this... whether a defendant had violated a gag order. The gist of it was that the defendant, during an earlier prosecution, was ordered by the presiding judge not to publicize an undercover agent's personal medical records (the defendant was a doctor who was being accused of giving out Oxy like party favors and the county set up a sting on him). The judge later read from a select portion of the protected medical records in open court, and the defendant quoted the judge on his personal blog.

It was that simple. We were in there for over a week, arguing about whether quoting a judge who spoke in open court (and was published in local news coverage) constituted violating the gag order. {Eta: the undercover agent actually had a history of back problems that the doctor said were observable. Yes, the county actually sent in an undercover agent with legitimate pain-inducing back problems to bust a doctor for unnecessarily prescribing pain killers}

By comparison, I was an expert witness (construction stuff) for a $1.3 million dollar suit involving years of murky contractual agreements and shady money hustles left and right by all parties. Resolved that bad boy in binding arbitration in about 6 hours.

Right? Reintroduce dueling and dockets would be cleared nationwide.

Seems to me that gag order question was one well worth debating at length.

 

[Thermal]

Seems to me that gag order question was one well worth debating at length.

Interestingly, both sides glossed over it. The prosecution basically was retrying the original case, even playing back literal hours of previous testimony "so that the jury has context for why it was ordered". Note that why it was ordered had exactly squat to do with us, as the order itself was not being challenged; the defendant/doctor agreed that the agent's personal medical history should not be found "blowing down the street" as the judge put it.

The bottom line was that the defendant was specifically instructed not to publicize the agent's private medical history. By quoting the judge who spoke in open court (and was quoted in the news), we believed the information was no longer private, but part of the public sphere. Essentially, no more private than her name and age, although those were technically part of her medical records too.

{Eta: and the defendant did not reveal anything from the medical history. He solely quoted the judges own words, verbatim}

We asked the judge several questions via the bailiff regarding the limits and lifting of gag orders, and related precedents. We were answered that the court could not provide that to us.

 

[theprestige]

Interestingly, both sides glossed over it. The prosecution basically was retrying the original case, even playing back literal hours of previous testimony "so that the jury has context for why it was ordered". Note that why it was ordered had exactly squat to do with us, as the order itself was not being challenged; the defendant/doctor agreed that the agent's personal medical history should not be found "blowing down the street" as the judge put it.

The bottom line was that the defendant was specifically instructed not to publicize the agent's private medical history. By quoting the judge who spoke in open court (and was quoted in the news), we believed the information was no longer private, but part of the public sphere. Essentially, no more private than her name and age, although those were technically part of her medical records too.

{Eta: and the defendant did not reveal anything from the medical history. He solely quoted the judges own words, verbatim}

We asked the judge several questions via the bailiff regarding the limits and lifting of gag orders, and related precedents. We were answered that the court could not provide that to us.

See, I'd argue that absent a ruling that the judge's violations of privacy were lawful, and voided the right to privacy, the defendant had no authority to rule that quoting the judge didn't violate the gag order.

 

[Thermal]

See, I'd argue that absent a ruling that the judge's violations of privacy were lawful, and voided the right to privacy, the defendant had no authority to rule that quoting the judge didn't violate the gag order.

What the judge revealed was very materially relevant to the case. The agent had a recent spinal injury, which the defense argued was recognizable as pain inducing, warranting the request for pain management medication from Dr Defendant.

Dr Defendant didn't reveal or "rule" anything that you couldn't read in the local papers/news sites. The agent herself didn't even object, although she had earlier acknowledged that maybe she should have mentioned to her bosses the recent spinal damage before posing as a patient with no damage who was trying to score some dope.

 

[theprestige]

What the judge revealed was very materially relevant to the case. The agent had a recent spinal injury, which the defense argued was recognizable as pain inducing, warranting the request for pain management medication from Dr Defendant.

Dr Defendant didn't reveal or "rule" anything that you couldn't read in the local papers/news sites. The agent herself didn't even object, although she had earlier acknowledged that maybe she should have mentioned to her bosses the recent spinal damage before posing as a patient with no damage who was trying to score some dope.

Yeah I see broad grounds for debate on this question. Obviously I'm not going to spend a week debating it with you. I'm just saying your example doesn't convince me that such debate supports the claim that a jury of your peers doesn't know what to do with this question.

 

[Safe-Keeper]

Interestingly, here in Norway we recently did away with juries altogether, as far as I remember, reason being the jury members too often let their ignorance and personal prejudices colour their decision-making. We still have lay judges assisting the actual judges, though.

 

[Darat]

Interestingly, here in Norway we recently did away with juries altogether, as far as I remember, reason being the jury members too often let their ignorance and personal prejudices colour their decision-making. We still have lay judges assisting the actual judges, though.

Most court cases in the UK aren't trial by jury, if I recall correctly that is the case for the USA as well.

 

[Gulliver Foyle]

During my years of litigation (both as a 1986-1987 defendant and from 1994-2012 as the Plaintiff) with psychic actress Noreen Renier, my litigation was across more than a dozen courts including many different state courts, and six federal courts. There are various court standards where both attorneys for the Plaintiff and Defendant can select to dismiss a potential jury member. Even the number and type of rejections varies. In one case we found the process of selecting a jury very difficult as the judge himself rejected almost as many potential jury members as either legal team. When potential jurors responded that they would be skeptical of claims to communicate with the dead, or several other pseudoscience claims, the judge himself would reject that potential juror. One potential juror admitted in answering that she would consider a person a fraud if they claimed to communicate back and forth with trees, and would reject any claims that trees could be considered eye witnesses. The judge rejected that juror as "not being open to factors still outside of science" and therefore unable to make an unbiased decision as a juror. In the same court three potential jurors who were identified as reading only one "newspaper" -- the National Enquirer grocery-line tabloid -- were, in his view, open to selecting media that carried 'new and different' views. Two of those were ultimately selected to be on the jury as my attorney had already rejected our limit. It was the only jury case --- in a small county court with a six member jury --- that I lost. And my appeal in part on that court process was rejected. Even today science and facts continue to be far less exciting than fantastic paranormal tales inside a court room.

That case you described, where the judge openly perverted the trial should have been an automatic win on appeal, with the judge facing severe civil and criminal penalties.

 

[CarbShark]

Not to get too far off topic, but has anybody been selected for a grand jury? The ones where it's not about guilt/innocence but whether there is enough evidence to move forward with an indictment. You hear that phrase "you can indict a ham sandwich" and there are different rules for those juries in terms of what can't or won't be presented.

My understanding is that those juries are selected from the same pool, but never met anyone who was a part of one.

My stepfater served on a Grand Jury twice, each for a year, about three years apart. The first met once or twice a month. The second about half-way into their term had several complicated cases one after another and met four or five days a week for a couple months.

He's the only person I've know to be on a Grand Jury. He said it paid a lot better than regular jury service.

 

[arthwollipot]

I didn't get paid for jury service. I did get paid time off work, though.

 

[PitPat]

In the 90s we got $10 per day. Fortunately my employer at the time also recognized the importance of that duty and still got paid.

Then I got summoned on a small municipal case but was dismissed early in the morning. I could have gone back to work, but I spent the rest of the day enjoying a lovely spring day downtown.

 

[dudalb]

Most court cases in the UK aren't trial by jury, if I recall correctly that is the case for the USA as well.

That is the case, but the defendent or either party in a civil suit has the right to demand a trial by jury.

 

[dudalb]

Interestingly, here in Norway we recently did away with juries altogether, as far as I remember, reason being the jury members too often let their ignorance and personal prejudices colour their decision-making. We still have lay judges assisting the actual judges, though.

Judges have been known to have biases also.
I am just uneasy about leaving everything to judges.

 

[PitPat]

That is the case, but the defendent or either party in a civil suit has the right to demand a trial by jury.

I might be mistaken about what Darat meant, but the reason that most cases in US aren't resolved in a jury trial is plea bargaining.

 

[dudalb]

MY sister who is a practicing attonrey has been called for Jury Duty a couple of times, but as soon as she states her prefesssion she is usually excused. That seems to be pretty much common place; lawyers do not like other lawyers serving on a jury.

 

[dudalb]

I might be mistaken about what Darat meant, but the reason that most cases in US aren't resolved in a jury trial is plea bargaining.

The vast majority of misdemenor offenses do not go before a jury.

 

[theprestige]

I might be mistaken about what Darat meant, but the reason that most cases in US aren't resolved in a jury trial is plea bargaining.

They call it an agreement these days. The state invites the defendant to agree to certain lesser charges, or else go to trial and take their chances with the evidence.

There's a lot of American court proceedings online. You should watch some videos and then see what you think about commonplace plea agreements.

 

[PitPat]

They call it an agreement these days. The state invites the defendant to agree to certain lesser charges, or else go to trial and take their chances with the evidence.

There's a lot of American court proceedings online. You should watch some videos and then see what you think about commonplace plea agreements.

Yeah, I love watching criminal court trials. It's the Order part of Law & Order. Cha ching. Judges have a difficult job and think they basically just go with the agreement to get it off their docket and move along.

Then there are parole boards, which is probably a different topic. There's some murkiness of who gets to be on them, and it's an important role lest you be returned to society and commit a worse crime.

In my state, "Angry" Doug Baldwin (a former wide receiver for the Seahawks) is on the board and shows up in Zoom meetings wearing a hooded sweatshirt. I think the situation demands more respect.

 

[steenkh]

I am worried about plea bargaining, or agreements. It seems to me that they are used to pressure innocent people to plead guilty, or criminals to go off more lightly than they should.

But then it will not matter if there are skeptics in the jury

 

[Darat]

I am worried about plea bargaining, or agreements. It seems to me that they are used to pressure innocent people to plead guilty, or criminals to go off more lightly than they should.

But then it will not matter if there are skeptics in the jury

The USA justice would implode if plea bargaining wasn't allowed. It is totally predicated on most charges (that end up in court) being dealt with by a plea agreement. Judges will now ask the state and defence have they got an agreement. Seen many cases where a judge will say to a defendant that the offer is very generous and ask, "are you sure you aren't going to take it?"

 

[The Common Potato]

I'm a bit of a fan of miscarriages of justice and recently re-read Punishment Without Trial: Why Plea Bargaining Is a Bad Deal by Carissa Byrne Hessick.

In the UK, we tend to get guilty pleas (and no trial) because the defendant is aware of the evidence against him or her. In the US, it comes across as being more like some horrendous parlour game.

 

[Puppycow]

By quoting the judge who spoke in open court (and was quoted in the news), we believed the information was no longer private, but part of the public sphere.

That is it. I assume that you found not guilty? And I might have added a sarcastic "And thanks for wasting our time!"

Perhaps the judge should have found himself guilty.

 

[Puppycow]

In the 90s we got $10 per day. Fortunately my employer at the time also recognized the importance of that duty and still got paid.

I think that's more considered a reimbursement for the cost of gas (or whatever means of transportation you use) and such. It's less than minimum wage, isn't it? It's easier to just give every juror a fixed amount rather than have each one itemize their costs.
I seem to remember that we also got to order lunch.

I served on one regular jury. My late mother did serve on a grand jury and dealt with a really horrible murder case. A whole family was murdered in a home invasion. I didn't know them personally but I drove by their house on a regular basis. So I heard a little bit about that second hand.

 

[Spektator]

The times I served on a jury we got a princely $12 a day, but the money went to our employers because, hey, they were already paying us, so the court was just sort of renting us.

 

[Thermal]

That is it. I assume that you found not guilty? And I might have added a sarcastic "And thanks for wasting our time!"

Perhaps the judge should have found himself guilty.

We did, but had to deliberate for literally days. A few jurors (and one guy in particular) could not get it through their heads that the gag ordered the defendant to not publicly discuss the agent's private medical information, but what he discussed was the judge's public release. The defendant wasn't releasing medical records, he was quoting public records from.the very judge who made the distinction between what was public and what was private.

Theprestige, upthread, sees a valid argument. I see the point, but remain unpersusuaded that the defendant violated the order by quoting the same judge's public speech.

 

[JayUtah]

We did, but had to deliberate for literally days. A few jurors (and one guy in particular) could not get it through their heads that the gag ordered the defendant to not publicly discuss the agent's private medical information, but what he discussed was the judge's public release. The defendant wasn't releasing medical records, he was quoting public records from.the very judge who made the distinction between what was public and what was private.

Theprestige, upthread, sees a valid argument. I see the point, but remain unpersusuaded that the defendant violated the order by quoting the same judge's public speech.

Well, the law can be dumb in many ways. For example, what makes something private may be defined by its essential nature, not whether it has leaked and is being discussed in public. In HIPAA, for example, the definition of private health information is given in the law and doesn't have anything to do with who already knows it. And judicial orders are often individual. A protective order makes it unlawful for you to do something, even if someone else can freely do it. This is often how lawyers and judges see the law.

But then this is why we have juries. If a jury understands that there is no point in enforcing a protective order against behavior that has already occurred, and that the judge's misbehavior in this case nullifies the intent of the order, that's how they should find. One of the things a jury can do is prevent a "Well, technically..." argument from causing disproportionate harm.

 

[theprestige]

I am worried about plea bargaining, or agreements. It seems to me that they are used to pressure innocent people to plead guilty, or criminals to go off more lightly than they should.

I watch a lot of court proceedings these days. I have yet to see a seemingly innocent person railroaded by a plea deal. What I have seen a lot of is guilty people pleading to a lesser charge and getting a lesser sentence. My general assessment is this:

In some jurisdictions, probation *sucks*. If you're pleading down from any kind of even remotely serious charge, you'll get conditions like:

• No alcohol, no marijuana (except as prescribed)
• Regular drug and alcohol testing, and/or random testing, and/or an alcohol monitor
• Regular and random probation office check-ins
• Various kinds of classes
• GPS tether
• A *real* job
• No contact with other parties
• Regular AA/NA etc. meetings
• Etc.

Basically a lot of legal stuff you can't do, and your time is so occupied with classes and meetings and getting/keeping a job that you barely have any slack left over except to sleep.

Aside from that, it seems like a lot of times a person has to try really, *really* hard, to actually score a prison sentence. All in all, I think I prefer the lenience. People get a lot of second and third chances, in our system.

 

[theprestige]

We did, but had to deliberate for literally days. A few jurors (and one guy in particular) could not get it through their heads that the gag ordered the defendant to not publicly discuss the agent's private medical information, but what he discussed was the judge's public release. The defendant wasn't releasing medical records, he was quoting public records from.the very judge who made the distinction between what was public and what was private.

Theprestige, upthread, sees a valid argument. I see the point, but remain unpersusuaded that the defendant violated the order by quoting the same judge's public speech.

The question I see here is not whether the defendant violated the order, but whether the jury was reasonable to debate it at length. Maybe not a whole week, but I see a lot worth unpacking, in the scenario described.