The Way To A Judge's Heart Is Through His Stomach

Further deepening my growing suspicions that life may best be described as a series of random events comes this news via Discover Magazine, “Justice is served, but more so after lunch: how food-breaks sway the decisions of judges”. Yeah, that’s right, food breaks.

A Ben Gurion University researcher tracked over 1000 parole hearings over a ten month period, and then plotted this graph:

Think of the X-axis(labeled ordinal position) as stretching from 9 am to 5 pm, as the day goes by*. The Y-axis(proportion of favorable decisions**) shows the likelihood of being paroled. The enormous upward spikes that prevent the parole percentages from falling to less than 0%? Well those are the times the judges ate. Snack and lunch breaks were always documented, and the results speak for themselves.

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Identifying Likely State's Preemptory Challenges

I use one of the world’s most complicated and sophisticated voir dire note taking systems, consisting in no small part of adding plus and minus marks in each venire person’s allotted space on my sheets, and sometimes adding short annotations.  It can be from something on the juror sheets, or something they say in voir dire.  Or perhaps a squirm here, a glare there.  I preassigned juror #8 five plus marks for the following answers at impaneling:

  • Injuries Requiring Medical Attention: Yes.
  • Description: Hit over the head by an asshole cop and had to have my head flesh stapled.

Sigh. Must you have made it so obvious? Well, at least they only have two preemps left. (If it had been a felony, it would have been nine left.)

Rip Roaring Rarin' And Ready For Trial

I was set on a jury docket yesterday morning and the case was going to be reached. It was my day to go. Of course, as usual, there were probably 30-40 cases set, but mine was going to be the one. How did I know this?

  • I had taken the case over from another lawyer, about a year after the arrest, so it was old, old, old. And the previous lawyer had used several defense continuances. I burned a few myself after that.
  • After taking over the case, I asked permission to put it back on a contested pretrial docket, and had a pretrial hearing. Significance? If the prosecutors were likely to cut us a deal, it would have been before they had to “do all that work”.
  • I had been contacted by the prosecutors about the case last week, and they re- (or, re-re-re-) iterated their position that they would not offer anything close to what my client would accept – in this case, a reduced charge. The case was not going to settle.
  • Also, the fact that they bothered to contact me at all meant it was high enough up on their radar to be concerned that it was in the top few cases likely to go.
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A More Sophisticated Jury Trial Puzzle: Employees Must Wash Hands

OK, OK, I have provided an update/answer to the riddle in the last post. Such an addendum is unnecessary for my first two commenters, who found the riddle beneath them. I hope they find this one slightly more challenging. At any rate, it’s more difficult than 2 + 0 = 2, which was the solution to the verdict riddle.

Let’s begin. It’s not uncommon when you excuse yourself to the bathroom in a restaurant to find a sign posted somewhere near the sink and soap dispenser that reads:

Employees Must Wash Hands Before Returning To Work

If I ever open a greasy spoon there’s no way that sign will be in the restroom. Why? Because that sign does two things, at least to me.

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Verdict Riddle

Lance Stott and Dax Garvin (disclosure: my professional roommates/suitemates, and personal friends) started two separate jury trials a few months ago on a Monday.

Let me digress a bit, and for the sake of clarity, define separate. Each individual lawyer represented one and only one client. They were not co-defendants. Their charges were not related in any way. They had never met each other.

Their cases were assigned to different courts, with separate prosecutors, judges, court reporters, etc., etc. The fact that both lawyer’s cases started the same day was a complete coincidence. There’s not some hidden secret there that will help explain the puzzle.

By Wednesday afternoon, both trials were finished. Now, to the riddle…

Defense lawyers talk of one-word verdicts (it’s a euphemism for a loss) and two-word verdicts (wooohooo!). AKA, “guilty” and “not guilty” if you want it literally spelled out.

In this instance, if you combined the number of words in all the verdicts in their cases, the total was two. Two words total, when added together. Seems like two bad results from the clients’ perspectives, eh?

Yet neither client was convicted. Solve away… (Answer now provided after the break)

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Qualified For Anything

There are two kinds of reactions to the following statement, made by Andrea Mitchell on Morning Joe, about Elena Kagan’s qualifications to be a Supreme Court Justice:

If you can run Harvard, and the Harvard Law factory, then you can run almost anything.

Reaction number one… nodding head in silent (and unthinking) approval, and reaction number two… “What’s that again?”

Seriously? Anything? As Dean of the law school, she proved adept at fundraising, no doubt. But this qualifies her for almost anything? What about vetting mergers and acquisitions, negotiating a contract, representing someone in a divorce, not to mention running a bakery or a bank…

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We Could Have Stayed There For Another Week

A scene from “Marijuana Inc.: Inside America’s Pot Industry” included a mini-tour of Oaksterdam University, which promotes itself as the first cannabis college, providing entrepreneurs with the “highest quality training” to enter California’s burgeoning marijuana dispensary business. On several walls were large red signs with yellow letters proclaiming:

Jurors Can Not Be Punished For Their Verdicts

An advertisement for jury nullification, albeit when considering the location, most likely preaching to the choir, or viewed more cynically, meant to assuage students’ doubts about the likelihood of a successful federal prosecution.

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Conscious Mendacity

From my recently kindled copy of Eating the Dinosaur, Chuck Klosterman is interviewing Errol Morris, the documentary filmmaker, on the subject of interviewing people:

What’s more interesting to you: someone who lies consciously, someone who lies unconsciously, or someone who tells a relatively mundane version of the truth?

Here’s a snippet of Morris’ answer:

…I read a piece about modern forms of lie detection – methods that go beyond the polygraph. The writer’s idea was that we can actually record activity inside the brain that proves who is or who isn’t lying.

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Arsenic Julep, Motivated Reasoning, 8 Simple Rules, and Pornography

Via an @arsenicjulep tweet of a Newsweek article, “Why We Believe Lies, Even When We Learn The Truth”:

Some people form and cling to false beliefs about health-care reform (or Obama's citizenship) despite overwhelming evidence thanks to a mental phenomenon called motivated reasoning, says sociologist Steven Hoffman, visiting assistant professor at the University at Buffalo.

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Please Violate Our Terms of Service

The jury instructions in U.S. v. Lori Drew read, in part:

In order for the defendant to be found guilty of the lesser crime of accessing a protected computer without authorization or in excess of authorization, the Government must prove each of the following elements beyond a reasonable doubt.

First, the Defendant intentionally accessed a computer without authorization or in excess of authorization.

Second, the Defendant’s accessing of that computer involved an interstate or foreign communication; and

Third, by accessing the computer without authorization or in excess of authorization, the Defendant obtained information from a protected computer.

You remember Lori Drew, don’t you? She’s the woman who set up a MySpace account to harass her teenage daughter’s former friend; her messages no doubt contributed in large part to the eventual suicide.

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If the Jury Asked the Judge a Question...

...and you were the defense lawyer, wouldn't you want to know?

(If this were being litigated in Texas, I'd bet on a harnless error result.)

Jury Blogs

No, I didn’t make my own list of Jury Blogs, I’m just cutting and pasting from Deliberations:

  • The Science of Small Talk, Prof. Sam Sommers writing for Psychology Today.  It’s not always directly about juries (although the current series is), but juries are a large part of his scholarly focus, so it’s relevant even when the word “jury” isn’t used.
  • Thaddeus Hoffmeister’s Juries, steadily strong.
  • Jury consultant Dennis Elias’s JuryVox “micro-blog” on Twitter.  You have to join Twitter to “follow” Dennis there, and there’s no better reason to sign up; nobody delivers more value in 140 characters.
  • The news feed at Jury Experiences, which collects news and blog posts about juries better than anyone else and includes an amazing archive of jurors’ own blog entries.
  • The American Society of Trial ConsultantsThe Jury Expert (bimonthly magazine) and announcements feed (occasional stories of interest).  I praised TJE here yesterday, but should give full disclosure:  I’m on ASTC’s Communications Committee, and will shortly join the board.  So don’t take my word for it, take Mark Bennett’s; TJE is very good.
  • The National Center for State Courts’ Jur-E-Bulletin, an indispensable resource in your E-mail every Friday morning.
  • Edward Schwartz’s The Jury Box blog, where posts are occasional but insightful.
  • Things That Make You Go Hmmm . . . . , Jury Impact Consulting
  • Chris Dominic’s blog at Tsongas Litigation Consulting, one post a month for quite awhile now.
  • Harry Plotkin’s Jury Tip Of The Month newsletter.  There’s no RSS feed for these, and I can’t even find an E-mail subscription form, but if you write to Harry Plotkin (his address is on his site), I’m sure he’ll put you on the list.  The newsletters are excellent.
  • Clay Conrad’s jurygeek, Robert Kelley’s Florida Jury Selection Blog, and Rich Matthews’ Juryology, all quiet in recent months but I stay subscribed just in case.

Thanks Anne. You’ve done the work for me, and my RSS reader is duly updated.

The Criminal Defense Lawyer's Dream Juror

Anne Reed of Deliberations writes about the Fully Informed Jury Association and their core belief that:

The highest and best function of the jury is not, as many think, to dispense punishment to fellow citizens guilty of breaking the law, but rather to protect fellow citizens from tyrannical prosecutions and bad laws imposed by a power-hungry government.

Absolutely it is. In 1735 the Governor of New York jailed John Peter Zenger for daring to publicly criticize him. Seditious Libel was a crime, not a civil tort, and truth was not yet an available defense. 

The defendant was slam-dunk guilty. He had printed his complaints against the Governor. And all that had to be proven for a conviction was that he had criticized the government; not even that his argument lacked merit. So the original Philadelphia lawyer Andrew Hamilton argued – in essence – jury nullification:


Men who injure and oppress the people under their administration provoke them to cry out and complain, and then make that very complaint the foundation for new oppressions and prosecutions…


The question before the court, and you, gentlemen of the jury, is not of small nor private concern; it is not the cause of a poor printer, nor of New York alone, which you are now trying. No! It may, in its consequence, affect every free man that lives under a British government on the main continent of America.


It is the best cause; it is the cause of liberty; and I make no doubt but your upright conduct, this day, will not only entitle you to the love and esteem of your fellow citizen, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and, by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our posterity, and our neighbors that to which nature and the laws of our country have given us a right … the liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.


Not Guilty.

Jury Duty: Washed Out

OK, for those of you that noticed that I just posted while serving on a jury, let me defend myself. I wasn’t picked; in fact, there was no trial at all. We all sat around for about 45 minutes until the bailiff came in to let us know that all the cases had “worked out” and we were to be excused.

On a side note, pro se defendants and lawyers may have picked an especially unfortunate day not to have tried their case to this particular panel. Imagine my surprise when I found out that fellow Austin criminal defense lawyer David Gonzalez, recently featured in Texas Lawyer and named Austin Bar Association 2008 lawyer of the year, was also a potential juror. (Can anyone say **cough cough **“preemptory challenge” **cough cough?)


Small world.

Jury Duty Tomorrow

So I was excited when I get the jury summons in the mail, and almost immediately went to my computer to fill out the new I-Jury online impaneling that Travis County now uses. Right before I clicked the last item to send my information out into the ether that is the internet I chanted, silently, “No civil, no civil, no civil”.

I wanted to be randomly assigned to a criminal case. Here’s the email I received:


You have completed online impaneling. Your status is

Assigned to MUNICIPAL COURT 1 (MU1) on 10/21/2008 at 8:30 AM.

Please be available to serve as a juror between 10/21/2008 and 10/21/2008. Normal hours of court operation are 8AM to 5PM Monday through Friday; however, circumstances may sometimes cause the court to remain in session after 5PM. Please be sure to make alternative arrangements for time-sensitive errands.

Please check your email regularly until you are dismissed or complete your assignment. You must follow through on your court assignment and call or report to the courthouse when scheduled. This assignment is subject to change should the court date need to be rescheduled or other circumstances change.

Thank you for using I-Jury!

For additional information or assistance, please contact the jury office at 512-854-9669


Ouch! Municipal court. I forgot to chant “No civil, no Class C cases, no civil, no Class C cases…”

He's the Guy Sitting Next To the Defense Attorney

At some point in any trial the prosecutor is going to ask a witness to identify the defendant as the person who is accused in the complaint or indictment. A fair amount of the time this witness doesn’t know the defendant personally – may never have met him – especially if it’s a police officer making an on the spot arrest for a crime alleged to have been committed within his presence or view.

Juries probably suspect the rule I’m about to annunciate. Judges, prosecutors and defense lawyers certainly know it:

Sometimes when the police officer says he remembers the defendant, he doesn’t really remember the defendant.

Not really really remember.

Of course there may be a few clues for the officer.

It’s probably the person sitting next to the lawyer. No, not the one next to the prosecutor who is asking the question. Most likely that’s another prosecutor.

The other lawyer at the other table. The guy next to him. Yeah, that’s the defendant.

Which is what makes this next story so interesting. Missouri DWI lawyer Will Worsham advised a client that he may as well try his DWI case instead of taking a plea bargain agreement, because he had nothing to lose.

And then – and for my non-lawyer readers I hate to do it, but I’m going to use the technical legal term for it – a miracle occured:

I advised my client to proceed with trial.  Even though we would likely lose, he really had nothing to lose because pleading guilty provided no benefit.  He agreed. 

Shortly after the trial began the prosecutor asked the Officer if he saw the driver in the courtroom.  Mind you, my client is sitting next to me at counsel table. 

After looking around for about 30 seconds at the 6 or so people in the courtroom.  The officer replies, "Honestly, I can't say that I do." 

I'm surprised, the prosecutor is shocked and the case is shortly thereafter dismissed.

Nice. I guess he didn’t know that whole “sitting next to the defense lawyer” trick that so many officers rely on…

"We're Going to Teach You To Think Like a Lawyer"

…said every professor in every first year class on the first day of law school. (It’s been a while, but somehow that’s how I remember the entire first week of UT Law.)

That and a heavy dose of the Socratic Method may or may not be the best way to teach students how to be lawyers, but for some real time practical advice see jury consultant Patricia Steele of Varinsky Associates and her article "To Deal Better With Juries, Stop Thinking Like A Lawyer!" 

I didn’t feel like emailing the Association of Defense Counsel of Northern California and Nevada for permission to reprint any of it here, so you’ll just have to read the article yourself.

[HatTip: Deliberations – who asked for and received permission to reprint a few snippets.]

The Mind and Criminal Defense

I see that my buddy and noted Texas defense lawyer Mark Bennett is speaking at Center for American and International Law CLE called “The Mind and Criminal Defense”. It’s a one day course on Capital Mitigation and it sure looks interesting, but unfortunately it conflicts with my schedule.

Other defense lawyers – especially those that do death penalty litigation, which I do not – should seriously consider attending if at all possible.

Bennett is giving a talk on “Free Will: What It Is and What We Can Do With It”. I wonder how he feels about being billed as Mark Bennett, Esq.

Intoxication is Not a Defense

But it might get you out of jury duty.

(Or should I have made this post something about having “a jury of your peers”?)

Good Law?

Doug Weathers asks criminal defense lawyers, “Would you rather have Good Facts or Good Law?”:

Every time I am preparing for a trial I deal with the question of do I have good facts or good law. Rarely do you have both because those cases are usually dismissed or never go to trial. Sometimes you have neither good facts or good law and those cases usually plead. In most of the trial cases you will have either good facts or good law.

In my experience as a criminal defense attorney in Texas, there is precious little good law for the defendant.

On Law & Order and other TV shows judges are routinely throwing out cases for undotted i’s and uncrossed t’s, but it ain’t exactly so in real courtrooms. The overwhelming government interest (according to appellate courts) in convicting anyone and everyone when it comes to the War on Drugs has darn near killed the Fourth Amendment.

And then there’s that DWI exception to the Constitution:

In sum, the balance of the State's interest in preventing drunken driving, the extent to which this system can reasonably be said to advance that interest, and the degree of intrusion upon individual motorists who are briefly stopped, weighs in favor of the state program. We therefore hold that [stopping drivers without reasonable suspicion or probable cause**] is consistent with the Fourth Amendment.

[**original wording is “it”. Read the case. My substitution for the word “it” is 100% accurate.]

Good law? Only been practicing a little over ten years. I’ve heard rumors that such a thing existed in the 70’s. And I’ve read plenty of caselaw overturning those well reasoned precedents. 

I’ll go with Good Facts. Medium Facts. Any Facts.

OK. Enough dreaming. Gotta get back to work on some of those “Not So Good Facts/Not So Good Law” cases…

Public Presumption of Guilt Made Enron Prosecutor's Job More Difficult

In researching an upcoming post about Brady violations in Jeffrey Skilling’s trial, I ran across an interesting tidbit.

An MBA student at Cornell named Kristine De Bacco posted a review of sorts of lead Enron prosecutor John Hueston’s speech to her school, where he brags about what a difficult job he had in obtaining the convictions…not because public sentiment was with the defendants, but because it was against them:

[I]n fact, prior to the commencement of the trial, Lay and Skilling had already been convicted in the court of public opinion. To the average person on the street, their guilt seemed a foregone conclusion.

From Mr. Hueston's perspective, however, this made the job of the Enron prosecutors much more difficult. They were expected to win.

Hogwash. Any federal or state prosecutor loves the presumption of guilt. Simply a case of a guy trying to convince folks out there that his job was harder than it really was.

It’s disappointing that no critical thought is put into analyzing this assertion from the former prosecutor. How is it exactly that going into trial with a jury pool that already believes the Government’s case before they have heard it could be harmful to the prosecution?

There may be more pressure on a prosecutor when he is “expected to win”; but when that expectation arises from a playing field tilted in his favor, it’s not a disadvantage.

For example, it might be embarrassing for a number one seed in the NCAA’s to lose in the first round to a small school overmatched opponent that barely scraped their way into the tourney, but it doesn’t change them from favorite to underdog. (And if it did, wouldn’t the 16th seed suddenly become “expected to win”… rinse and repeat?)

Another excerpt about the speech:

Mr. Hueston and his team had been especially concerned that there were few, if any, documents linking Lay and Skilling directly to the fraud - no perfect "smoking gun" to wave in front of the jury.

So, in order to establish guilt beyond a reasonable doubt, Mr. Hueston and his team employed a number of alternate strategies.

Yeah? Looks like one of those alternate strategies may have involved deliberately not turning over impeachment material from the original Fastow interview notes, and either minimizing or deleting them from the 302s turned over to the defense.

More on this coming soon.