Lowering the Bar

More Lessons in Avoiding Jury Duty

Thankfully, the Chicago Tribune is providing "gavel-to-gavel" coverage of the R. Kelly trial in Cook County, and though this trial will probably teach us many important lessons, the first of them has to do with jury service.

Reporter Stacy St. Clair writes today (May 15) that she has already learned "12 ways to get kicked out of the jury pool."  Some of these we already know, but others are more intriguing, for example:

• Suggesting (especially given the facts of the R. Kelly case) that the age of consent should be lowered to puberty, as "nature" intended;
• Pausing for a sufficiently long period of time after being asked if you could give the defendant a fair trial;
• Praising the defendant, such as by calling him a "musical genius."  (Asked to come up with something negative about R., this potential juror could only say, "Um, he and Jay-Z don't get along?")
• Stating, in what was called a "perfectly worded response," that "I believe Mr. Kelly is guilty of the charges due to what I have read in the papers, and the fact that he was indicted by the grand jury further validates my beliefs."  Not coincidentally, this potential juror is a legal secretary.
• Best: combining the suggestion that you would never convict with a reference to 9-11: "R. Kelly may have led the Taliban in attacking us on 9-11, but you can't prove it."  Well, I could if I had it on film, I think.

All of the above happened during just one day of voir dire, during which not a single potential juror was chosen for the panel.

Link: Chicago Tribune

Accused Robber Gets New Trial After Jurors Find New Evidence in Coat

Note to self: if a coat is going to be admitted into evidence and sent to the jury room, check the pockets first.

A defendant in Hagerstown, Maryland, was granted a new trial on December 12 after jurors found new evidence in the coat when they were examining it during deliberations.  The coat had allegedly been worn during an armed robbery and was presumably offered as an exhibit for purposes of identifying the defendant.

Someone forgot an extremely important rule of evidence: If Clothing Is Sent to the Jury Room, Jurors Will Go Through the Pockets.  In this case, the jurors found a rubber glove, a bandage, and more importantly, a money roll totalling $1300.

The state's attorney insisted that he (or, more specifically, his assistant state's attorney) had in fact gone through the pockets before using the coat at trial, but he had difficulty explaining why they didn't find the money if that was true.  He speculated that it "must have been in hidden pockets or in holes in the pockets" of the defendant's parka.  Maybe, although even if the money roll was made up entirely of twenties, an unscientific experiment I conducted just now by taking a bunch of money out of my wallet here at the coffee shop and loudly saying "I wonder how big a money roll all these twenties would make,"  in what was really not so much an experiment as a sad and desperate effort to get these models to  notice me, suggested that a roll of that size would be at least a couple of inches wide and therefore sort of hard to miss even if it was in a "hidden pocket."

The jurors, at least, were unsure how the stuff could have been missed.  "You would think," said one, "that with all the law enforcement people that had been involved with the case that everything would have been gone over with a fine-toothed comb - and then that fine-toothed comb would have had another fine-toothed comb going over it." Sounds to me like somebody owns a fine-toothed-comb company and is trying to double her profits.  You could always say there should have been "just one more fine-toothed comb" combing the previous combs, but in the real world, budgets and combs are limited.

The jury convicted the man in October, but Judge Theresa Adams granted the defense's motion for a new trial this week because of the evidentiary issue.  Though getting a new trial is good for him, it may not make a lot of difference if the money and glove are admissible the next time around.  According to the report, the defense arguments centered on the inability of the police to find any cash or fingerprints.

Link: Asbury Park Press (New Jersey)

Latest Way to Get Out of Jury Duty

Bring a sword.

Police in New York reported Monday that a 40-year-old man reporting for jury duty at Brooklyn Supreme Court was arrested after he tried to pass through security with a 30-inch sword and a 6-inch dagger.  The sword was part of one of those sword canes that is so totally cool that if you ever had to use a cane, you'd absolutely want it to have a sword in it, but is also the kind that you shouldn't take to jury duty.  It was not clear whether the dagger was part of the set, like this totally awesome dual-blade sword-and-dagger cane set that would completely rock someone's world, or was just a dagger.

The chief of courthouse security, Maj. Luz Bryan, said that his officers spotted the sword cane right away because it "had two metal bands" around it, an "indication that something is concealed."  (Note to self: if disabled, do not get cane with metal bands, sword or no sword.)  They detained the man, who pleaded ignorance.  "He kept saying that he didn't know it was illegal," Bryan said.  Turns out it is.

Link: AP via FindLaw.com

How to Avoid Jury Duty by Going to Jail Instead

Nobody really likes jury duty, but probably nobody doesn't like it as much as Daniel Ellis.  Ellis was absolutely determined not to serve on a Massachusetts grand jury, apparently so determined that he wanted to go to jail instead.

Ellis apparently had heard somewhere that potential jurors are sometimes excused for bias, but does not seem to have been entirely clear on what that means.  So he wrote on his jury questionnaire (reviewed by the judge and attorneys as the first step in deciding who should serve) that he was biased against (for example) homosexuals and blacks.  The article didn't say whether that necessarily has anything to do with the case, not that it really matters.

This was successful in getting Ellis an interview with the judge.

Judge Gary Nickerson told Ellis, "In 32 years of service in courtrooms, as a prosecutor, as a defense attorney and now as a judge, I have quite frankly never confronted such a brazen situation of an individual attempting to avoid juror service."  The article didn't say whether that was at the beginning or the end of the interview, not that it really matters.  But if it came first, it should have provided Ellis with a clue that his strategy wasn't working well, yet he stuck by his questionnaire, in an exchange that went like this:

JUDGE: “You say on your form that you’re not a fan of homosexuals."

ELLIS (interrupting, hoping to be jailed more quickly):  “[And t]hat I’m a racist."

ELLIS (finding himself still not in jail yet): “I’m frequently found to be a liar, too. I can’t really help it."

JUDGE: “I’m sorry?”

ELLIS:  “I said I’m frequently found to be a liar."

NICKERSON: “So, are you lying to me now?”

ELLIS: “Well, I don’t know. I might be."

Here, of course, Ellis was invoking the Epimenides Paradox, named after the Greek philosopher from the isle of Crete who made the statement, "All Cretans are liars."  Since he himself was a Cretan, the truth or falsity of his statement cannot be determined:

If one interprets the word "liar" to mean that every statement made by a liar is necessarily false, then the statement "All Cretans are liars," if uttered by the Cretan Epimenides, cannot be consistently true.  Several interpretations and analyses are available, if the statement is considered false. It might be contended that the truth-value "false" can be consistently assigned to the simple proposition that "All Cretans are liars," so that this statement by itself, when deemed false, is not, strictly speaking, paradoxical. Thus, if there ever existed a Cretan (not Epimenides in this instance) who even once spoke the truth, the categorical statement "All Cretans are (always) liars," would be false, and Epimenides might be simply regarded as having made a false statement himself. But if Epimenides' statement is understood as in essence asserting its own falsehood, then the statement cannot consistently be false, either, because its falsehood would imply the truth of its self-asserted falsehood.

This was likely exactly what was going through Ellis's mind when he claimed that he might be lying about being a liar, apparently in a last-ditch attempt to escape jury duty and/or punishment by causing the judge's head to explode.  If so, it failed, as Judge Nickerson evaded Ellis's ploy by cutting directly to the chase:

JUDGE: “I have the distinct impression that you’re intentionally trying to avoid jury service."

ELLIS: “That’s true."

Judge Nickerson ordered Ellis taken into custody.  Ellis was later released but could well face charges of perjury, among other things.

I'm sorry to disappoint those of you who were waiting for the easy joke about Ellis being a "cretin."  That one has been around at least since Theodore of Antioch used it in 418.  I generally stick with original stuff here.

Link: MSNBC.com

Six-Figure Award in Case of Golf Cart v. Chevy Cavalier

Madison County, Illinois, is not the lawsuit-lottery capital of the world like it used to be, but juries seem to still be pretty generous.  Last week, a jury awarded William Clawson over $111,000 for injuries he suffered after he drove a golf cart in front of a car.

If that seems odd, consider that it was also his own car he was hit by.

Apparently, there was someone else in it, although the facts were disputed and/or so poorly set out in the article that it's hard to figure out just what happened.  But Clawson admitted that he drove his golf cart into the path of his own car, when he saw it driving away.  Clawson claimed he thought it was being stolen, and so he may have been attempting a daring, Road-Warrior-style assault on the vehicle when he was injured.  (As seen here, except replace souped-up-feral-Wasteland-gang car with electric golf cart.)

In fact, it was being repossessed.  After Clawson was injured, his golf cart having surprisingly failed to bring the much heavier car to a halt, he sued the tow shop who employed the repo man who was driving the car.  He also sued GMAC, claiming that it never told him it was going to have the car repossessed, and also that it later failed to tell the tow shop it had changed its mind.  Among the things this article doesn't explain is why GMAC would have changed its mind about the repossession without any involvement or payment from Mr. Clawson.  Maybe the Ghosts of Christmas Past, Present, and Yet to Come appeared to GMAC and showed it the error of its heartless ways, and it decided to return the Clawson Cavalier with a big fat Christmas goose in the trunk.

Anyway, Clawson claimed he didn't know about any repossession, which explained his maneuver, and that the repo man had used an unreasonable amount of repo force in taking possession of the car.  GMAC claimed Clawson was the bad guy, saying he had  threatened Jack Turner, the repo man, and his wife with bodily injury -- Turner evidently having taken his wife along on a repossession date -- and then hit Turner with the golf cart, although Turner doesn't seem to have been injured.  GMAC also said Clawson wasn't really injured, and that if he was injured it was only because Turner was defending himself against an assault.  By hitting the assaulting golfer with a car.

I guess the facts in this article make about as much sense as the verdict.

Whatever really happened, the jury awarded Clawson $111,118.64.  The jury did find Clawson 48.35% responsible for his injuries, apportioning the remainder between the tow shop and GMAC (25.35% each), apparently having consulted Steven Hawking in order to determine causation down to two decimal places of precision (although he left before doing the addition because it doesn't add up to 100%).  Clawson thus received almost $57,000 for being hit by his own car after driving in front of it in a golf cart.

Link: Madison County Record

Defendant Continually Surprised By Failure of Jury-Attacking Strategy

Defense attorneys and pro se defendants, you may want to add this to your short list of jury arguments to avoid:  "Ladies and gentlemen of the jury, I'll kill all of you."

Also the closing argument, "That goes for your family, too."

An aggressive strategy, but one that failed for Richard Glawson, who, surprisingly, was convicted in May of multiple charges by the jurors he threatened to kill.  Specifically, prosecutors (who indicted Glawson this month with jury-intimidation charges) said that Glawson told the jury "Ladies and gentlemen of the jury, I’ll kill all of you if you find me guilty of any one charge, and that goes for your family, too."  The story did not say why whether Glawson was represented by an attorney during that trial, which was based on a "weeklong crime spree" in 2001.  (If so, bad choice to let him address the jury, sir.)  Glawson was sentenced to a possible 45 years in prison based on those charges by a judge who Glawson apparently forgot to threaten to murder.

Innovative legal thinker
Richard Glawson

The jury-attack strategy is not a new one for Glawson, who was also indicted on intimidation and battery charges for actually punching out a juror in another one of his trials.  I'm sure that juror still did his civic duty to carefully and impartially consider the evidence in the case, but Glawson was still convicted.  Glawson also is charged with kicking a Superior Court officer in the leg, which I guess for him would constitute thinking outside the box, and with "using restraints to break a window in the court cell where he made mosaic art out of two bologna and cheese sandwiches."

If Glawson is convicted by the jury he threatens in his upcoming trial on the juror-punching charge, that sentence will start to run after the 45 years he got for his conviction by the jury he threatened to kill in May.

One of my favorite Onion stories of all-time is "Jury Selection Proving Difficult in Trial of 'The Jury Killer,'" but I never thought life would so closely imitate art.

Link: BostonHerald.com

Deer Season Cited As Basis for Motion to Continue Trial Date

To the list of possible reasons for seeking a continuance, you can now add the start of deer-hunting season, at least if you live in Arkansas.  John Hall, the attorney for Bobby Junior Cox (not "Bobby Cox, Jr.," but "Bobby Junior Cox"), argued in a motion filed this week that the trial of his client, currently scheduled for November 8, 2006, should be continued on the grounds that it will be impossible to get a jury to reflect a fair cross-section of the community on that date, as it is just before the start of deer season.

Based on Game and Fish Commission records and the 2000 census, Hall calculates that approximately "ten percent of the population of the State will be deer hunting when this trial is going on."  The motion concedes that "deer season" is not a statutorily recognized exemption from jury duty, but argues nonetheless that many deer hunters will make excuses or "just refuse to show up" because they "would rather be hunting than stuck in a courtroom in Cabot[, Arkansas]."  He says that means that any venire summoned during that time would not reflect a "fair cross-section of the community" as the Sixth Amendment requires. 

The copy of the motion I received was not signed, but local newspapers reported the story as well.  The reports noted that Cox would likely be on trial for several weeks, as he and his codefendants are accused of operating a "continuing criminal organization" involving "illegal drugs, illicit sex and abuse of an inmate-labor program," which sounds charming, as does the fact that the codefendants include the former police chief and his wife.  The long trial would cause jurors to miss deer season.  Still, court personnel in counties that have many more hunters than Lonoke County, where the motion was filed, said they had never heard of a trial being rescheduled because of deer season.  A Commission spokesperson said that people typically planned their vacations and even their weddings around it, but he had no idea whether a judge would postpone a trial.

Although Hall's percentage numbers are correct, one flaw in his argument may be that November 11-December 17 is only the season for hunters using modern guns.  My research team has learned that the season for hunting with muzzleloaders is entirely different (October 14-22 and December 29-31), so maybe an accommodation can be made that would allow the Cox jury to take advantage of that.  The use of muzzle-loading guns is actually pretty common in Arkansas, apparently, as the State's figures show that almost fourteen thousand deer were killed with them last year.  That number is down 24% from the year before, though, presumably due to the new breech-loading technology spreading throughout the state.

Link: Motion to Continue Due to Deer Season (PDF)
Link: Arkansas Democrat-Gazette
Link: Arkansas Game and Fish Commission

"Do You Hate Me" Found to Be Useful Voir Dire Question

Things appear to be going quite pleasantly in the latest celebrity legal proceeding, namely the civil wrongful-death case against Robert Blake.  This of course follows Blake's acquittal on charges of murdering his wife, Bonny Lee Bakley, after deploying the ironclad alibi "I was on my way to get my gun when the victim was shot."  The wrongful-death case has been filed on behalf of Bakley's children.

Voir dire was conducted Monday and Tuesday, and according to CNN an "unusually acrimonious tone" developed from the outset.  Responding to questions from plaintiffs' attorney Eric Dubin, one prospective juror announced "I have a rather highly tuned [expletive deleted by CNN, but believed to be "bullshit"] detector and it's been going off big time since you started . . . If I were sitting next to you, I would not want you to be representing me."

"Wow," said Dubin, who "appeared taken aback."  But he quickly rallied and followed up with, "Do you think your dislike for me could affect the children I represent?"  "No," lied the man.  Which led to a further followup question that I think most attorneys would hope not to ask during their entire legal career: "Have you ever hated a lawyer as much as me?"

"No," the man said.  He was excused.

The same prospective juror also claimed that the suit was a "second swing at Mr. Blake," which it is, although he did not explain why he thought that was necessarily illegitimate; and also that Blake was being deprived of the right to "confront his accusers," apparently because the plaintiffs were not in the courtroom for voir dire, which makes no sense.  Several other prospective jurors were excused after objecting that the civil trial was "double jeopardy," which it isn't.

Maybe repeated marathon viewings of "Law and Order" and "C.S.I." are not helping where the jury system is concerned.  People seem to be learning just enough to be dangerous.

The Jury Pool From Hell

Actually, from Memphis, or maybe from a trailer park outside it.

The AP reported this week on a difficult group of prospective jurors who made for an interesting voir dire proceeding in a Tennessee assault case.   One man immediately left, announcing he was "on morphine and . . . higher than a kite." Another responded to questions about prior convictions by revealing he had been arrested for threatening his nephew with a gun when the nephew "just would not come out from under the bed." Yet another (and this one sounds apocryphal, but the AP would never make something up) said he had been arrested for soliciting sex from a woman who turned out to be an undercover officer -- he allegedly told the court "I should have known something was up. She had all her teeth."

The defendant, charged with hitting her brother's girlfriend in the face with a brick, was acquitted. It's a little hard to tell from the story whether she ended up with a jury of her peers or not.

CNN.com