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Jury Duty: The Heart of American Government

January 5, 2015 | Robin Frazer Clark

I recently had jury duty in DeKalb County, Georgia, where I have been a resident for 15 years. In 15 years, I have received a summons for jury duty two times. I have never served on an actual trial jury. This is the ironic curse of being a trial lawyer. Most likely, I will never serve on a trial jury although my job involves persuading trial juries to see a case my client’s way. I have been in many, many courts throughout the State of Georgia and I am proud to say as a DeKalb County resident there is no better court experience than DeKalb County, from the deputies who check you through the metal detector, to the jury clerks who handle hundreds of jurors every day, to the courtroom staff of the trial judges, to the judges themselves. It is an extremely pleasant experience and trust me, I have been in many Georgia courthouses where that simply cannot be said.

I believe jury duty is the Heart of American Government. A trial jury is the smallest form of self-government ever conceived. Government by the People for the People, right? Trial by jury was so important to our nation’s Forefathers they enshrined it in the Seventh Amendment to the U.S. Constitution. Said President John Adams about trial by jury: “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.” So with that attitude, I proudly stepped into the DeKalb County Courthouse, with jury summons in hand, not in my usual role as trial lawyer, but in the very important role as potential juror. Awesome! I can’t wait!

I went through the process of jury selection, called Voir Dire in law school and never called that again by me. It sounds too pretentious, doesn’t it? And jury “selection” is a misnomer…it is actually jury “deselection.” Trial Lawyers don’t get to look at the jury venire (another pretentious word for the jurors from whom the trial jury will be struck) and pick who looks best to them. It is the opposite of that. Trial lawyers get (usually) six peremptory strikes to take off the jurors who seem like they would be horrible jurors for their side of the case, for one reason or another. Each side of the trial strikes six jurors and whoever is left is your trial jury who will decide the case. Again, ironically, the jurors who end up deciding the case are usually the jurors you know the least about. They have often never even responded to any of your questions in “jury selection” so there were no red flags in their personal history to make you concerned about how they would see your case given their preconceived notions or their obvious leanings toward one side or the other. There are also strikes the Court (i.e., the trial judge) exercises called “strikes for cause” where it has been demonstrated that a juror could not possibly be impartial because of something that has happened in their lives perhaps so similar to the case to be tried that they have already made up their minds how the case should come out. Or maybe they have such deep religious beliefs that they are forbidden by their particular Faith to judge another human being and so would be incompetent to sit in judgment of another person. I was thinking about jury selection this morning as I was reading about the trial that begins to today in the Boston Marathon bombing. Jury selection in that Federal trial is estimated to take months and the jury venire from which a trial jury of twelve will be struck will consist of 1,200 jurors! Where in the courtroom do they put 1,200 jurors?

If We Go To Trial, Who Will Decide My Case?

August 11, 2014 | Robin Frazer Clark

Today I read a funny article about a jury trial in Florida in which the jury sent the trial judge a note asking for a whiteboard and markers and a “big bottle of wine.” I thought that was pretty cute.

Going to trial is a big decision. Although I have tried many, many trials in many counties in Georgia, most of my clients have never been involved in any trial and the trial of their personal injury case will be the one and only time they will ever step foot in a courtroom and the one and only time the case will be about them. You can imagine this might produce some anxiety.

One of the questions often asked is, if we go to trial, who will decide my case? The answer to that question for all of the cases I try is the jury. I try only jury trials. If a judge decides your case, which can happen in Georgia if no one requests a jury trial (very rare in personal injury cases ) or if both parties consent, it is called a Bench Trial. You may be familiar with the trial of Oscar Pistorius going on right now in South Africa. Mr. Pistorius is being tried for murder in the death of his girlfriend. In South Africa, such a trial will be decided by the very judge who is presiding over the case. Just recently it was announced that the judge will render a verdict in that case on September 11, 2014.

Can a Jury Believe What It Sees?

July 25, 2014 | Robin Frazer Clark

Can a jury believe what it sees? That may seem like a stupid question, but a new study confirms it’s not. G. Daniel Lassiter, Ph.D., of Ohio University, recently conducted a series of experiments using focus groups and videotapes of criminal interrogations. Mock juries were shown exactly the same interrogation, but some saw only the defendant, while others had a wider-angle view that included the interrogator. When the interrogator isn’t shown on camera, jurors are significantly less likely to find an interrogation coercive, and more likely to believe in the truth and accuracy of the confession that they hear — even when the interrogator explicitly threatens the defendant.

Professor Lassiter and other psychologists have consistently shown this “camera perspective bias” across a substantial series of experiments, finding in one study that even professionals like judges and police interrogators are not immune.

Along the same lines we are definitely aware that people confess to crimes they did not commit. This has been proven scientifically time after time. But why?

Did You Think He Was Guilty, Too? The Lesson from the Jim Donnan Trial

May 27, 2014 | Robin Frazer Clark

The recent jury verdict in the Coach Jim Donnan trial surprised me. I thought the jury would find him guilty. That’s because, unlike the jury, I never heard all of the evidence admitted in court. All I heard was the media’s spin on things, which led me, without a doubt in my mind, to believe the jury would convict him.

Not so fast.

Remember innocent until proven guilty? Well, the State of Georgia just never made it that far in this trial. The jury foreman said:

Would You Be Upset If Your Home Were Wrongfully Foreclosed Upon?

May 13, 2014 | Robin Frazer Clark

The easy answer to the question I pose above is an emphatic “Yes!” Right? For any homeowner to have his or her home wrongfully foreclosed upon and scheduled to be sold at auction on the Courthouse steps, as we still do here in Georgia through nonjudicial forclosures ( a topic which deserves it’s own blog), would create enormous, undue emotional stress. Your home is, more than likely, the largest purchase you have ever made and has the highest financial investment value of anything you have ever personally invested in. We call our home our “castle.” So when a corporation wrongfully forecloses on your castle, your home, trying to sell the house right out from under your homeowning feet, don’t you think this would just naturally cause you some undue stress? Worrying whether you would lose your house? Lose your biggest investment? Lose the roof over your and your family’s heads? Should whoever did so wrongfully foreclose on your house have to face justice in the form of a jury?

One would thing so, but when it comes to our ever-increasing conservative Eleventh Circuit Court of Appeals, the answer, unfortunately, seems to be “not so fast.” In a recent 11th Circuit opinion, the Court held although a person in such a position of being wrongfully foreclosed upon may very well have a claim of intentional infliction of emotional distress, the amount of proof one must offer just to get past the judge and get to a jury may be impossible to meet, thus ending the homeowner’s ability to seek redress for the wrong. In Lodge v. Kondaur Capital Corp., et. al, issued on May 8, 2014, the Eleventh Circuit (of which Georgia is a part) held that the plaintiffs, the Lodges, had not offered enough “proof” of emotional distress suffered by them at the thought of their home being wrongfully foreclosed upon. The Lodges, at the time, were in bankruptcy. Federal bankruptcy laws forbid foreclosure upon a home that is in bankruptcy. The Defendants in Lodge willfully violated this law, known as the “Bankruptcy stay” and moved to foreclose upon the Lodges home, even though that was the very reason the Lodges had filed for bankruptcy.

The Court found against the Lodges, denying them the right to have a jury decide their case. The Court said the Lodges hadn’t offered the Court enough proof of emotional distress. But whether there is sufficient proof of a claim should be a question to be decided by a jury, not three appellate judges. As the attorney for the Lodges, Ralph Goldberg, noted in response to this narrow opinion, “I don’t understand why anybody would not think that…hearing that your house is about to be foreclosed upon is significant emotion distress. It seems to me they’re out of touch with how normal people lead their lives.”

Judge or Jury? Which Would You Prefer Decide Your Fate?

March 13, 2014 | Robin Frazer Clark

I have been watching with great interest news reports on the Oscar Pistorius trial that is going on right now in South Africa. Oscar is known as the “Blade Runner” as he runs on prosthetic legs and was the first person with prosthetics to run in the Olympics, not the Para-Olympics. He is, unquestionably, a celebrity in South Africa and hero there. He is widely loved by the citizens there. The Pistorius trial has proven to be South Africa’s “O.J. Simpson” trial, although we don’t know yet if it will have a similar outcome. The Proscecution alleges Pistorius intentionally shot his girlfriend, Reeva Steenkamp, through a closed bathroom door in his home during the middle of the night, killing her. There is no doubt that Oscar killed her; the question is, what was his intent? The issue of a criminal trial is often not who did it, but rather what was going on in the mind of the defendant at the time he did it?

It is an intriguing case. One of the things that interests me is that in South Africa, this case is being tried and will be decided by the judge, not a jury. The case has really put the legal system of South Africa in the spotlight. South Africa abolished jury trials in 1969, while the country was under apartheid, due to fears of racial prejudice by white jurors. Pistorius will be tried in a high court in Pretoria by Thokozile Matilda Masipa — the second black woman appointed to the bench since apartheid ended. This would almost certainly never occur in the United States. A criminal defendant can certainly consent to having a judge decide his fate, known as “bench trial,” but that is extremely rare, given that conventional wisdom says a criminal defendant has a better chance with a jury than a judge.

Likewise, for civil plaintiffs in cases asking for money damages for personal injuries, the kind of case I try, the conventional wisdom is to have the case decided by a jury, not a judge. Again, the parties could, by mutual consent, agree to have the case bench tried by a judge, but that would be highly unusual. One of the biggest risks of a bench trial is having the judge, that one person who decides your entire case, is against you? You lose! It sometimes takes four or five years for a civil case to reach a trial, and in one instant, based on who your judge is, you have lost because it was all or nothing…you had to convince one person and you couldn’t do it.