Respect

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There are two juror stories in the legal blogs today, each illuminating in a different way the level of respect we give to jurors.

"We listened, we thought, we argued, we went on"

First is the story of the juror who asked for respect after the trial was over. He wrote to a federal judge, frustrated because the group's hard work seemed pointless when the defendant's sentence was based on alleged crimes the jury either rejected or never heard about. (Sentencing Law and Policy discussed the story here, and Simple Justice and Legal Blog Watch both picked it up.) The juror's letter describes the American jury at its best, the ideal we all hope for:

[W]e spent 8 months listening to the evidence, filling countless court-supplied notebooks, making summaries of those notes, and even creating card catalogues to keep track of all the witnesses and their statements. We deliberated for over 2 months, 4 days a week, 8 hours a day. We went over everything in detail. If any of our fellow jurors had a doubt, a question, an idea, or just wanted something repeated, we all stopped and made time.

It seems to me a tragedy that one is asked to serve on a jury, serves, but then finds their work may not be given the credit it deserves. We, the jury, all took our charge seriously. We virtually gave up our private lives to devote our time to the cause of justice, and it is a very noble cause as you know, sir. We looked across the table at one another in respect and in sympathy. We listened, we thought, we argued, we got mad and left the room, we broke, we rested that charge until tomorrow, we went on.

I am not a shrew

The other story tells of jurors who got very little respect indeed. It comes via Legal Profession Blog, which picked up this article about Friday's censure of a Kansas judge for yelling at jurors in voir dire. Legal Profession's post title, "Anybody Else Want To Mess With Me?", is a direct quote from Judge Rebecca Pilshaw, daring jurors in a murder trial to say anything that might sound like they wanted to get out of jury duty.

The Kansas story sounded so bad that you had to wonder whether sanctioning the judge was enough. What happened to the defendant, whose name was Dewey Gaither? The 2007 opinion deciding his appeal is here: He was convicted, of murder and other crimes committed in the course of two nasty drug robberies.

The facts of the case were bad, and it's not clear from the supreme court's opinion that Gaither raised any meaningful defense. But the opinion is still striking for its recitation — much longer than the summary in the judicial censure opinion — of what Gaither's jury went through in voir dire.

"Answer me yes or no."

It started when a juror said she wouldn't believe police witnesses. Judge Pilshaw dismissed her — and ordered her to sit through the trial anyway, as punishment:

"THE COURT: No one's asking the life history and the things that bring you to this place, but that's not what you started out saying, ma'am. What you started saying is, because someone has a uniform on, you will dislike them automatically, and you're going to discount their testimony; is that what you're saying?

"PROSPECTIVE JUROR [L]: When I got my driver's license –

"THE COURT: Answer me yes or no.

"PROSPECTIVE JUROR [L]: Yes. I have to really go and think about that a whole lot. I can't just take their word.

"THE COURT: I'm going to excuse you from your jury service, ma'am, but I'm going to require you to sit through this entire trial, so you can get an objective view of how people – of how people do testify. I think that you have – I think there is perhaps some validity to what you have to say, but I think that you – you need an opportunity to be exposed more to our law enforcement personnel, and I think that because this trial will have so many that will be testifying, I want you to – I'm ordering you to sit through this entire trial. It will be considered part of your jury service, and you will be paid at the rate of a jury member. You'll need to take your card back down.

. . . .

"PROSPECTIVE JUROR [L]: Okay.

"THE COURT: If you fail to appear on any day of the trial, that will be considered contempt of court, because this is a direct order."

Hitting the roof

"Anybody else want to mess with me?" she said then, and I don't imagine anyone did, but the next juror still said her religious beliefs made it uncomfortable for her to judge anyone, and also that she believed anyone on trial must be guilty of something. Judge Pilshaw pointed out accurately that the two "beliefs" weren't consistent, and gave a necessary instruction that Gaither was presumed innocent — but her words sounded more like a threat than anything else:

"I think what you're saying – you're contradicting yourself about what you're saying, and we have had Jehovah's witnesses that do sit on juries. I believe it's your personal feelings that you simply don't want to do it, not because it's a long trial, but I believe you don't want to do it. I've got quite a few people that don't want to do it either. But you have said the magic words, so you are released from your jury service. And I feel sorry for the next person that ends up going, because I am going to hit the roof, I think.

. . . .

"[Prospective Juror D] made a comment which is completely wrong. Just because Mr. Gaither is here does not mean he must be guilty of something. That is the antithesis, the opposite of what our judicial system is about.

"Mr. Gaither sits before each and every one of you right now, and he is innocent until there has been evidence sufficient to what I will instruct the jury on to prove him guilty, and that's beyond a reasonable doubt. . . . Nobody here has heard one piece of evidence about anything, and despite what [Prospective Juror D] said in her misguided beliefs about not judging people, that was absolutely wrong. He sits here an innocent man until evidence has been presented – until and if evidence has been presented sufficient to prove that he's guilty. Does everyone here understand that? If you do not understand that, raise your hand right now. I am vehemently serious about that."
Me? I was just scratching my ear . . .

Shortly after, the prosecutor turned to another juror who had raised his hand on the police witnesses question. That juror s
aid he'd now changed his mind and had nothing to report.

Judge Pilshaw started apologizing about then ("I'm really not that bad. I am really not that bad at all, and I want – and you all took an oath, and you must be honest in your answers"), and kept apologizing the next day. After a long explanation trying to set things right, she told the jurors:

"So if I have misled any of you into thinking that I am some angry shrew up here, I am not. I really and truly am not, and if any of you believe for one single minute that you are not free to say what is true in answer to the lawyer's questions, please raise your hand right now, and I will let you go. That is a promise to you. If you feel too intimidated to answer the lawyers' questions honestly, raise your hand right now, and you've just got a free pass out of here, and I won't berate you. I won't be mad. I will be mad only at myself for having caused this environment that you would feel that way, so this is your opportunity. Anybody want to leave?"

Two people took her up on the offer and were excused.

Affirmed.

None of this was enough to convince the Kansas Supreme Court that Gaither should be tried by a new jury that hadn't been harangued into service. The court cited two prior Kansas convictions it had overturned because judges had made improper remarks, but said they didn't apply, because in those cases, "the misconduct polluted the entire trial."

The court said that Judge Pilshaw, by contrast, regained control over her temper, emotions, conduct, and utterances after the first day of the voir dire. She apologized to the jury venire and offered to excuse anyone who felt intimidated. The judge's sincerity was evident when two prospective jurors accepted her offer and were excused without further questions. We believe the judge's apology and offer to excuse prospective jurors purged the taint of the misconduct.

Every trial judge needs to let jurors know that defendants are presumed innocent, and that attitudes manufactured to get out of jury duty aren't okay. But surely Gaither and his lawyers didn't get the voir dire they should have, much less the deeply committed jury described in that other juror's letter to the judge. An apology is a good thing, but more than a year after the Gaither opinion, a taint remains.