Inside the Criminal Case: Race, talking to jurors and impeachment

In a typical courtroom in Colorado, a jury found a defendant guilty of unlawful sexual contact with two teenaged girls. Pena-Rodriguez v. Colorado, 15-606, 2017 WL 855760 *5 (U.S. Mar. 6, 2017). As is custom in some areas, the lawyers for the case were permitted to speak with the jury after it returned its verdict. The group chatted, and as most of the jurors exited after the post-trial huddle, two hung back to inform the attorneys about one of the juror’s “anti-Hispanic bias toward” the defendant.

Specifically, this juror (who will be forever known in the history of jurisprudence as H.C.) stated that he “believed the defendant was guilty because, in [H.C.’s] experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.” Id. H.C. also expressed during deliberations that “I think he did it because he’s Mexican and Mexican men take whatever they want.” Id. 

With the judge’s supervision, these jurors prepared affidavits and submitted them to the trial court. While acknowledging H.C.’s bias, the trial court denied a motion for a new trial based on the fact that Rule 606(b) of Colorado’s Rules of Evidence (which is similar to Indiana’s Rule 606(b)) prohibited a juror from testifying “as to any matter or statement occurring during the course of the jury’s deliberations.” Id. at *6. As is typical in these articles, nine years of hard work by attorneys is summarized in three paragraphs and some writer like me says, “eventually this case landed before the United States Supreme Court.”

The Supreme Court noted that a “[g]eneral rule” called the “no-impeachment rule” had “evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict is entered, it will not later be called into question.” Id. at *4. The specific issue raised in this case was “whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.” Id. at *4.

Noting that “[i]t must become the heritage of our Nation to rise above racial classifications that are so inconsistent with our commitment to the equal dignity of all persons,” the Supreme Court eventually held that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Id. at * 11, 14.

Here are a few takeaways from this holding:

1. The post-conviction flood gates are likely not open. It is hard to imagine many cases that are unaffected somehow by the issue of race. When I first read this case, I began to wonder if this ruling would affect every jury verdict in Indiana history. I worried that our friends at the Post Office would not be able to carry the mail that goes to our colleagues who handle post-conviction work. But in delivering the majority opinion, Justice Anthony Kennedy noted that “[n]ot every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar.” Id. The bar is set much higher and “[t]o qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.” Id. 

2. Always talk to jurors if you get the chance. In the Pena-Rodriguez case, the information that led to this ruling fell into the lawyers’ laps. They spoke to the jurors after the case, probably to learn how they can do better in the future (and probably in hopes of hearing how great they were). If not for this discussion, they probably would not have learned what H.C. said behind closed doors. Information like this is difficult to compel. Justice Kennedy stated that the “practical mechanics of acquiring and presenting such evidence will no doubt be shaped and guided by state rules of professional ethics and local court rules, both of which often limit counsel’s post-trial contact with jurors.” Id. So check your local rules and review Rule 3.5 of the Indiana Rules of Professional Conduct before you go knocking on jurors’ doors. Please note “A lawyer shall not … communicate with a juror … after discharge of the jury if … the juror has made known to the lawyer a desire not to communicate.” Ind. R. Prof. Conduct Rule 3.5(c)(2).

3. Courts need to know prospective jurors’ views on race. How many times has a juror made comments in deliberations like the ones made by H.C. and no court ever learned about it? How many times has race affected a verdict but the H.C.-like juror never made statements that could be used to impeach the verdict? In the Pena-Rodriguez case, “[n]one of the empaneled jurors expressed any reservations based on racial or any other bias.” Pena-Rodriguez, 2017 WL 855760 at * 4. Justice Kennedy noted in his opinion that the “stigma that attends racial bias may make it difficult for a juror to report inappropriate statements during the course of juror deliberations.” Id. at * 13. If it is difficult to tell on a fellow juror, it will be really difficult for a juror to tell on her or himself in crowded jury selection room full of strangers. If lawyers and courts can create more settings or utilize mechanisms (like questionnaires) where jurors can be honest about their opinions, the more likely the justice system will “rise above [the] racial classifications” that Justice Kennedy wrote about in Pena-Rodriguez. Id. at * 13•

Note: This article first appeared in the March 22, 2017 edition of The Indiana Lawyer.

How Do You Win a Lawsuit?

Q: How do you get to Carnegie Hall?

A: Practice, Practice, Practice.

In its excellent Jury Expert blog, the American Society of Trial Consultants offers good advice for trial lawyers:

Rehearse. A lot.

As the authors explain:

Experienced trial attorneys make it look easy. Rest assured, those attorneys are the ones who rehearse the most, privately and publicly. “Off the cuff,” is a romantic ideal, but is not a method for experienced trial attorneys. Attorneys who do not rehearse use the stress related adrenaline rush as a means of creating energy for last minute preparation. Feverishly finalizing content and supporting visuals throughout the night does not produce a persuasive performance.

The article is long for a blog post, but it's definitely worth reading.

How to Strike a Biased Juror for Cause

If you represent a defendant and you want to strike a juror for cause because he or she is predisposed against your client, here's a quick and easy way to do it:

Q: Mr. Smith, you indicated on your questionnaire that you're familiar with this trial from the media coverage?

A: Yes.

Q: Have you formed any opinions about my client's guilt or innocence?

A: Yes. I think he's probably guilty.

Q: But you told the judge that you could set aside your opinion and decide the case based only on the evidence, right?

A: Yes.

Q: Does that mean that I would have to show you some evidence of innocence to change your mind?

A: Yes.

By asking if the defense would have to show this potential juror evidence of innocence to change his mind, you are making a record that he does not presume the defendant to be innocent, but rather that the defendant starts from a position of guilt and the defense would have to prove otherwise to justify an acquittal.

Through this very simple exchange, and without embarrassing or angering the juror, you've just made your record to justify a challenge for cause.

Why "Made to Stick" is a Must-Read for Lawyers

Made to Stick, by Chip Heath and Dan Heath, is not written by lawyers, about lawyers, or for lawyers. But it is one of the most important books that any lawyer can ever read.

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The book is about why some ideas and messages "stick" in the minds of an audience and some don't. A "sticky" idea is memorable, effective, and persuasive. The authors explain the psychology of persuasion in plain English, and they offer dozens of examples of ideas that stick, and ideas that don't. They talk about using stories and concrete examples to make complicated concepts and abstract notions seem tangible and easily grasped. The book is short and it's a quick read.

This is incredibly valuable stuff for people who have to persuade skeptical strangers for a living, e.g. litigators.

Vincent Gambini, Cross-Examiner Extraordinaire

In my humble opinion, the cross-examinations by Vinnie Gambini in My Cousin Vinny represent just about the finest courtroom advocacy ever depicted in cinema. For example:

Q. Hey, Mr. Crane, what are these pictures of?

A. My house and stuff.

Q. Your house and stuff. And what is this brown stuff on the windows?

A. Dirt.

Q: Dirt? What is this rusty, dusty, dirty-looking thing over your window?

A: It's a screen.

Q: A screen? It's a screen. And what are these big things right in the middle of your view, from the middle of your window to the Sack O' Suds? What do we call these big things?

A: Trees?

Q: Trees, that's right. Don't be afraid. Just shout 'em right out when you know 'em. Now, what are these thousands of little things that are on trees?

A: Leaves?

Q: And these bushy things between the trees?

A: Bushes?

Q: Bushes, right. So, Mr. Crane, you could positively identify the defendants for a moment of two seconds looking through this dirty window, this crud-covered screen, these trees with all these leaves on them, and I don't know how many bushes.

A: Looks like five.

Q: Ah ah, don't forget this one and this one.

A: Seven bushes.

Q: So, what do you think? Do you think it's possible you just saw two guys in a green convertible, and not necessarily these two particular guys?

A: I suppose.

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This is textbook cross-examination. He asks short leading questions, one fact at a time, using plain English, and he keeps building by adding one additional fact per question until his grand finale. He doesn't yell at the witness, and he even uses demonstrative exhibits effectively. The last question may have been one too many, but it worked in the movie.

"Work E-Mail Not Protected by Attorney-Client Privilege, Court Says"

Wired Magazine reports on a ruling from a California court that an employee's emails from a work computer to his or her lawyer are not covered by the attorney-client privilege:

… [T]he e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer’s conference room, in a loud voice, with the door open, so that any reasonable person would expect that their discussion of her complaints about her employer would be overheard[.]

Interesting development with pretty wide ramifications.

USA Today: "iPad brings new connection to lawyers, clients."

Interesting piece in USA Today on how a personal injury firm is making creative use of iPads:

The tablet PCs — which are given back to the law firm when a case is over — are used as so-called "red phones" that allow clients to contact either attorney if they have a question or want more information about their case. The iPads also help the attorneys build high-tech presentations that they use to help settle cases before they end up in court, the lawyers say.

Are you using iPads in your practice?

What the Most Successful People Do Before Breakfast

Mornings are a great time for getting things done. You’re less likely to be interrupted than you are later in the day. Your supply of willpower is fresh after a good night’s sleep. That makes it possible to turn personal priorities like exercise or strategic thinking into reality.

Good article in Fast Company about making the most of your mornings. Important for lawyers who spend their 9 to 5 putting out fires and returning calls/emails.