CBS launched a new show from the apparently forgetful mind of Dr. Phil, that pretends to be about trial consultants. Fiction is great; outright falsehood is not. And in a year in which the American public is being told (correctly, incorrectly, or partially either) that its institutions are rigged – government, financial markets, the media, elections – it is harmful that the public is now also being told that its justice system is rigged. Rigged by a smarmy, cocky, godlike consultant who single-handedly somehow has the power to empanel any jury he wants to achieve any outcome he wants, flouting all laws of procedure, committing crimes, not getting the attorneys who employ him disbarred and on and on. Look, this isn’t like complaining, “That TV surgeon used a clamp instead of forceps,” or a TV mechanic tightening the lugs on a wheel in the wrong order. While annoying, those are errors, not whole-cloth falsehoods that give a dangerously false picture of the legal system.
Join two accomplished trial consultants, myself and Sonia Chopra (ChopraKoonan) as we discuss this show. There might be a little swearing.
CBS has a new tv show entitled Bull which airs tonight at 9. Apparently, the show is based on the early career of Dr. Phil McGraw. Yes, the same Dr. Phil from Oprah. Here is the write up of the show from CBS.
Brilliant, brash and charming, Dr. Bull is the ultimate puppet master as he combines psychology, human intuition and high tech data to learn what makes jurors, attorneys, witnesses and the accused tick. Bull employs an enviable team of experts at Trial Analysis Corporation to shape successful narratives down to the very last detail. They include his quick-witted former brother-in-law, Benny Colón, a lawyer who acts as defense attorney in the company’s mock trials; Marissa Morgan, a cutting-edge neurolinguistics expert from the Department of Homeland Security; former NYPD detective Danny James, the firm’s tough but relatable investigator; haughty millennial hacker Cable McCrory, who is responsible for gathering cyber intelligence; and Chunk Palmer, a fashion-conscious stylist and former All-American lineman who fine tunes clients’ appearances for trial. In high-stakes trials, Bull’s combination of remarkable insight into human nature, three Ph.D.’s and a top-notch staff creates winning strategies that tip the scales of justice in his clients’ favor.
The NY Times has an article about Pena-Rodriguez v. Colorado, a case currently before the U.S. Supreme Court. As some may recall, Pena-Rodriguez involves racial bias in the jury deliberation room. The specific issue before the high court in Pena-Rodriguez is:
[W]hether a no- impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.
Criminal justice debt has aggressively metastasized throughout the criminal system. A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections. As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system’s users, primarily poor or indigent, who often cannot pay their burden. Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into “punishment.” Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury. This Article explores the netherworld of criminal justice debt and analyzes implications for the Sixth Amendment jury trial right, offering a new way to attack the problem. The specter of “cash-register justice,” which overwhelmingly affects the poor and dispossessed, perpetuates hidden inequities within the criminal justice system. I offer solutions rooted in Sixth Amendment jurisprudence.
The Supreme Court’s May 2016 decision in Foster v. Chatman involved smoking-gun evidence that the State of Georgia discriminated against African-Americans in jury selection during Foster’s 1987 capital trial. Foster was decided on the thirtieth anniversary of Batson v. Kentucky, the first in the line of cases to prohibit striking prospective jurors on the basis of their race or gender. But the evidence of discrimination for Batson challenges is rarely so obvious and available as it was in Foster.
Where litigants have struggled to produce evidence of discrimination in individual cases, empirical studies have been able to assess jury selection practices through a broader lens. This Article uses original data gathered from trial transcripts to examine race- and gender-related exclusion of potential jurors during several stages of jury selection in a set of 35 South Carolina cases that resulted in death sentences from 1997 to 2012. It includes observations for over 3,000 venire members for gender and observations for over 1,000 venire members for race. This is one of few studies to examine the use of peremptory strikes in actual trials; no previous studies of this magnitude have examined this topic in South Carolina.
Consistent with comparable studies, this study’s results revealed that white and black potential jurors had substantially different experiences on their path to the jury box, while gender played a subtler role. Findings included that prosecutors used peremptory strikes against 35% of eligible African-American venire members, compared to 12% of eligible white venire members, and that the death-qualification process impeded a substantial number of African-Americans from serving. These disparities contributed to overrepresentation of whites on the juries. The study’s findings implicate the fairness of some of South Carolina’s current death row inmates, in addition to further buttressing the argument that capital conviction and sentencing procedures are incompatible with the need for representative and impartial juries.
In at least one South Carolina courtroom, the answer to that question is "no."
According to the Rock Hill Herald, a South Carolina judge denied a challenge for cause for a female juror who appeared for jury service wearing a Confederate flag t-shirt with the following words: “If this flag offends you, you need a history lesson.”
The challenge was made by an African-American public defender who found the juror's shirt confrontational. According to the public defender, the juror wore the shirt to send a message. The judge, however, saw it differently and relied on the juror's statement that she could be fair and impartial to allow her to avoid being challenged for cause. Once the judge denied the challenge for cause, the public defender exercised a peremptory to have the juror removed.
Unfortunately, this case never went to trial because the defendant pled guilty so we don't know what the appellate court would have done had the judge's decision been appealed. Nonetheless, this case raises several interesting questions worthy of further consideration.
1. Would the judge have made the same ruling if the defendant was African-American? Here, the only African-American in the courtroom was the public defender? What if the victim or key witnesses in the case were African-American.
2. Would the public defender use a peremptory against anyone who wore a Confederate shirt? If the answer is "no" e.g., he would allow an African-American juror to serve who wore the same type of shirt then there might be a Batson problem. Did the public defender in this case strike the juror because of the shirt or because she was a white person wearing the shirt?
The article below discusses using big data to both summon the jury venire and select jurors during voir dire. The article cites a recent law review article by Professor Andrew Ferguson entitled The Big Data Jury.
Abstract: Early in this nation’s history, the civil jury was the most important institutional check on biased and corrupt judges. Recently, concerns about judicial bias, especially in elected state judiciaries, have intensified as new studies demonstrate the extent of that bias. But the jury of Hamilton, Madison, and Jefferson is nowhere to be found. In fact, the civil jury is virtually dead. It is used in less than 1% of all civil cases, and even when it makes a rare appearance, the jury’s powers have been significantly curtailed.
This article argues that we must reimagine the civil jury to match the framework of modern civil litigation and modern civil procedure. Civil litigation in the 21st century revolves around pre-trial practice, including the motion to dismiss and the motion for summary judgment. Today, judges alone decide those dispositive motions. And when the judges deciding these motions are biased, the jury is conspicuously absent. I propose that jurors serve alongside judges to decide fact-intensive dispositive motions on what I call Hybrid Judicial Panels. This proposal restores the jury’s historical power to control biased judges, and offers the people themselves a renewed role in modern civil litigation.