March 14th, 2008

Jury Duty in New York: A Guest Blog

My brother Dan, a screenwriter, sat jury duty this week in New York. He live-blogged the experience, for publication when it was over:
—————————————————–
Tales From The Juror
Thoughts, observations, and ramblings, from the jury room at 111 Centre Street.

8 AM
In an effort to make sure I’m there on time, I get there before the building is even open. Big mistake. Have to wait out on the sidewalk. The day is not off to a good start.

9 AM
In my seat in the holding pen, verify that there is indeed free wifi access. The day gets slightly better.

9:30 AM
The woman running the show, giving instructions:

“You’ll notice, on my right, are vending machines, where you can buy snacks. We do not own these vending machines, so if you put your money in, and your snack does not come out, we are not responsible. And there is no number on the machine for you to call. But if it happens, we do allow you to shake the machines a little.”

9:45 AM
Ed Bradley (who died 16 months ago), and Diane Sawyer narrate the introduction film, which is supposed to make us feel better about being here. But it’s March 12, and half the people here are sniffling, wheezing and coughing. It’ll be a miracle if I get out of here alive. I think it was jury duty that did in Bradley.

10:00 AM
There is a severe lack of hot-looking women in this room. All those years of watching courtroom based TV shows, I was lied to! How could TV let me down so badly? There will be no amusing stories to tell my children years from now about how I met their mother while we sent some guy to the chair. (Do we still use Old Sparky in this state?)

If I get picked on a criminal case, and the A.D.A. isn’t smokin’ hot, I’m going to kick Dick Wolf’s ass.

(For those, like my brother, who probably don’t know who he is, Dick Wolf is the creator of “Law & Order,” a show which usually features an actress playing an A.D.A who looks like she was cast from a Victoria’s Secret catalog.)

10:05 AM
My brother e-mails me the following note:

“DO NOT TELL ME ANYTHING ABOUT DETAILS OF THE CASE IF YOU ARE PICKED UNTIL IT IS DONE!”

Apparently my brother thinks I’m an idiot. I’d find him guilty so fast.

10:16 AM
First call for criminal jury selection.

10:18 AM
I didn’t get called. Bastards.

10:23 AM
A cell phone goes off in the room. We were told to turn them off. The offender doesn’t get yelled at. Damn. I thought it might be the first chance at some drama here.

10:28 AM
Civil selection call.

10:33 AM
Not called

10:35 AM
Next call. This group is going to another building. 60 Centre Street.

10:39 AM
Not called. Good. Don’t feel like moving. If I’m going to be asked to hand out justice, let me do it without having to put my coat on.

10:40 AM
The guy behind me is loudly crunching through a bag of potato chips. He’s driving me nuts!

10:41 AM
Civil panel being called.

10:45 AM
Not called again.

God help me if I every have to rely on some of these folks to decide my fate.

10:53 AM
My bit to help the system run smoothly includes instant messaging with my 18 year-old niece on spring break in Florida. How did people ever stand jury duty without computers?

11:17 AM
Working on my latest screenplay. The guy behind me is starting to read over my shoulder. He thinks I don’t notice, but I do. Time to cause a scene? Humm…how bored am I?

11:21 AM
Taking a break from writing to do what jury duty is truly useful for: preparing for my upcoming rotisserie baseball draft!

11:29 AM
Another criminal panel call.

11:31 AM
I’m picked!!!

1:53 PM
Back from lunch. It’s amazing how easy it is to get out of serving. The judge asks “is there anyone here who can’t be impartial?” and 1/4 of the people raise their hands. All they have to do is say their name and declare “I can’t be impartial,” and they’re gone. Wow. Of course most of them are full of it. You end up hoping those people get arrested for something and have to rely on a jury some day.

There is one prosecutor, and he is not hot. Dick Wolf, watch your ass.

11:00 PM
Home.
So I was sitting there in the voir dire, one of 16 in the box, and we find out what the case is. It’s a drug case. Two Hispanic males from Harlem are caught in an apartment with 20 kilos of cocaine. That’s a lot of coke. There’s also an unloaded gun and a minor in the apartment, both of which add to the charges. Some jurors have already been chosen, they’re looking for more.

All the lawyers seem determined to remind us this isn’t CSI or Law & Order, it’s real life. I’m not sure if they’re being prudent or treating us all like idiots.

When the two defense attorneys started to question us, I was toast. One was hung up on the concept of using “entrapment” as a defense. Do we think it’s a legit defense? My response was, it’s meaningless as long as the cops followed all the rules they’re supposed to follow, and didn’t break any laws. At the end of the day, each person, no matter what situation they find themselves in, gets to decide if they’re going to be honest and law abiding, or dishonest and crooked. I pretty much knew that would get me tossed. Not that it was my goal to get tossed, I just didn’t like this guys’ angle, and felt like speaking my mind. The other defense lawyer was pushing the line that the cops went in without a warrant, how did we feel about that. Of course it was mentioned that this was an issue for the judge to decide, that if he says the cops didn’t need a warrant, then it was OK. But he got some people to say they felt funny about it.

Midway through the questioning, one of the court officers, an older gentleman, dozes off, with his hand on his gun. It did not inspire confidence. A few of us joked about it at lunch break, while waiting to go back in.

In the end, of the 16 of us questioned first, two were selected. I was not among them. So it’s back to the holding pen tomorrow.

The good news is, we don’t have to show up till 10 AM. Hot damn!

Day 2

9:50 AM
The holding pen is packed, but I find a seat in the front row. Time to sit and wait. Finally finish off the Sunday Times Magazine.

10:22 AM
They take attendance.

10:26 AM
Attendance over. They didn’t call me, and a bunch of others who were in my voir dire yesterday. The woman says they’ll try and track down our juror ballots. You do that.

10:45 AM
The missing juror ballots are found. I am now officially here. Oh boy.

10:54 AM
Casting my first jury duty vote: Snickers or M&M’s?

10:56 AM
Rotoworld.com says Orioles pitcher Adam Loewen was scratched from his scheduled start Friday because of a sore shoulder. The team president says it’s a normal result of his having undergone elbow surgery 9 months ago. I don’t care, I’m still not going to buy him at the draft.

Such is the excitement of jury duty.

11:01 AM
It’s amazing how quiet a room with well over 100 people can get. Reminds me of taking tests back in college.

The first day of jury duty, you actually look forward to getting selected. (at least I did) A little bit of excitement. A chance to do your civic duty. A chance to throw a bad guy in the slammer, or decide who really cheated who in some business deal gone bad.

The second day, all that crap goes out the window. Please, oh please don’t call my name. Just let the clock run out and let me go home.

11:36 AM
First panel called. 19 people. Not me. Good.

2:25 PM
Back from lunch. The immediate area definitely needs a better selection of eateries.

Only a couple of hours to go, and my time as a good citizen is over. Which is great, as the guy behind me in the packed jury holding pen is snoring something fierce.

4:00 PM
It’s over! With only one panel called all day, they’ve decided to cut us all loose. The guy setting us free decides to work on his standup routine.

“Some of you will be sad to be going home. (big laughs) Some of you will be glad. Just remember this: the last two days you had two-hour lunches. Tomorrow, it’s back to grabbing a sandwich at your desk. Today, you strolled in at 10. Tomorrow, it”s back to getting up at 7 AM.”

So there it is. My two-day odyssey through our judicial system has come to a close. I didn’t get to send any bad guys to the old gray-bar hotel, like I hoped. Nor did I set free any wrongly accused innocents, as my brother reminded me was also a possibility. No courthouse romances, no shootouts, nobody in handcuffs, no weeping family members, no mobs of reporters looking for courthouse steps sound bites. No courthouse steps, for that matter, at 111 Centre Street. All in all a thoroughly boring two days, interrupted briefly by a quick story about 20 kilos of coke.

And to think; sometime soon, some lucky jurors will get to sit in the box and hear about the ex-governor’s whoring around. I bet that won’t be a boring jury duty experience. Why couldn’t I get called then?

January 22nd, 2008

Who Sits Jury Duty? (The Turkewitz Beer Test)

Over at the Drug and Device Blog, Beck/Herrmann have a theory that they want tested with a scientific study:

It strikes us that the plaintiffs in pharmaceutical product liability cases are always striking the educated jurors.

They go on to state that if a health care professional, who they’d love to keep on the jury, survived the preliminary screening, then the plaintiff inevitably strikes that person. Their sense is that “plaintiffs typically prefer less-educated juries, and, in particular, routinely strike health care professionals from serving on juries in pharmaceutical and medical device product liability cases.”

While most of my experience is in the medical malpractice field, that is close enough for me to answer, and it comes from someone who has picked a few dozen medical malpractice juries in addition to picking juries and trying cases in many other personal injury matters.

So here is my take on jury selection, New York style. While the rules change from county to county, one of the “popular” methods is called the “struck method” used in New York County in which 30 jurors are questioned for an hour. Yes, a whole hour for 30 people. That gives you all of two minutes per person, inclusive of your canned spiel. The other side goes, then you step out of the room to strike people from the entire panel. Each side gets just three peremptory challenges, where no cause needs to be identified. The first six left after all challenges (for cause or not) become jurors, and the next two to four are alternates.

As you can clearly see, this is not exactly an atmosphere conducive to delving deep into backgrounds. When I get a doctor, nurse or other medical practitioner, I approach it like this:

Jurors pick themselves. Some medical personnel feel they can’t sit on these kinds of cases, and others have no problem. How do you feel about it?
If you found for the plaintiff, how would you feel telling your co-workers after it was all over?

While they answer you watch the body language to see if they are comfortable or not with the issue. Some are, some aren’t. (I asked the same question, by the way, to Dr. Rob “Flea” Lindeman in a recent interview.) Many medical workers see bad things at work and know that all is not peachy with their profession. Simply being in the profession doesn’t disqualify them.

If you have one that looks uncomfortable, you then compare that person to the blue collar guy sitting there with his arms folded across his chest scowling at you and the very idea of your complaining client, but claiming he can be fair. I’ll take the waffling doctor over the scowling steelworker every day of the week.

Jury selection isn’t really about selecting individuals you like, but trying to find the few people in the room trying to subvert the process due to their prejudices without telling you, and getting rid of them. Anne Reed and Scott Greenfield both addressed this issue recently in discussing the limitations of the science (or voodoo) of jury selection.

Beck/Herrmann over at Drug and Device seek out empirical evidence to support their thesis that plaintiffs simply bounce doctors or the educated without delving further, but it escapes me as to how such a test could even be created, because jurors are necessarily measured only against the person next to them. That guy with the scowl doesn’t appear in empirical data in any manner, shape or form.

My gold standard is The Turkewitz Beer Test: Whether I would be comfortable sitting down and having a beer with the person and talking. If the answer is no, I try to get rid of them. Human beings are far too complex to pigeonhole based solely on occupation or eduction.

Blawgers In The Jury Box

Blawg Review #127 is up at Anne Reed’s jury-related Deliberations. In what it surely one of the best round-ups of the year, she gives us the “17 Best Tips For Voir Dire.”

To get to those tips, she brilliantly analyzes individual law bloggers to see what kind of jurors they, or their subjects, would make.

When they hand out Rookie of the Year honors for 2007, Anne will be a top contender.

September 18th, 2007

Jury Duty Stamps — Get ‘Em While They’re Hot!!

Credit New York Chief Judge Judith Kaye for the idea. Last week the United States Postal Service unveiled, at the New York County Courthouse where I picked my first jury and tried my first case, Jury Duty stamps.

Now it’s been a few years since I’ve used stamps in the office, finally buckling to using the utterly boring Pitney Bowes stamping machine. But mine is a small practice and I get to make the rules, so now the stamps will be coming back for some uses.

I feel pretty strongly about the jury system. After all, other than the draft it is the only time the government asks you to drop what you are doing and check in for mandatory civil service. In New York, everyone is called for jury duty, no exceptions. The idea of empowering a select group of robed politicians to make decisions that affect liberty, or to decide who was right or wrong in a civil dispute, was too much for our nation’s founders. Anyone who read about the crying Anna Nicole Smith judge and the very deliberative Scooter Libby jury can appreciate this concept.

So we have not one, but two parts of the Bill of Rights that guarantee those rights: The Sixth Amendment to protect those charged with crimes and the Seventh Amendment to guarantee juries in civil trials:

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

And this is important because there is no shortage of big business type folks looking for ways to strip that right away, either by forcing arbitration without jurors, or creating some kind of “health courts” or other devices to let the biased decide matters instead of the unbiased.

Of course, there are always some who want to avoid jury duty at all costs. (No doubt they would feel differently if they were the ones in the middle of it all.) But sticking in my brain is a story of one of the greatest juries of all time: The one that tried William Penn in the 1600s, which I recounted back in February while pulling together some quotes on jury nullification.

Perhaps these stamps, if widely used, will be one tiny way to remind recipients of one of the cornerstones of our country’s liberty: Power shall not rest with the few but with the many. And that is what jury duty is all about.

You can buy the stamps here. And attorneys, more so than anyone else, should be using them.

(Eric Turkewitz is a personal injury attorney in New York)

August 7th, 2007

Mayor Bloomberg Sitting Jury Duty

It wasn’t always this way. Automatic exemptions from jury duty in New York went to many different professions , including attorneys, doctors, and cops. Until it changed in 1995. Mayor Rudy Giuliani famously sat jury duty in 1999 (and was picked for a civil case). Chief Judge Kaye was not-so-famously called the same year (and was not picked). I was called (and picked in a criminal case), in 1997. Celebrity jurors are routine.

Now it is Mayor Mike Bloomberg’s turn, as the New York Times reports. He showed up yesterday, in the same historic Manhattan Court that I tried my first case and a few others. He showed up in room 452. He waited. He was dismissed at the end of the day, unchosen. Today, he is there again.

According to the Daily News:

“I’d be one voice out of six, but I have a strong personality,” Bloomberg said. “You’d have to ask the other jurors what they’d think.”

And the question every trial attorney asks: Would you keep Hizzoner or bounce him?

Update: Mayor Bloomberg was dismissed today after serving two days. He was not selected.