Not this time,* high court rules

In his speech on race, Barack Obama referenced the OJ Simpson case as an example of race being used as "spectacle."

A good example of the rhetorical power of OJ references came in a Louisiana courtroom, when a prosecutor told an all-white jury that since OJ "got away with it," the jury should impose death on an African American murder defendant. In a parish where a local Ku Klux Klan wizard was a popular figure, the jury obliged.

The U.S. Supreme Court overturned that sentence this week. But the high court's opinion in Snyder v. Louisiana was not based on the OJ reference. Indeed, the court's opinion does not even mention the prosecutor’s inflammatory statement during closing arguments. Rather, the case was overturned because the prosecutor selectively removed all African Americans from the jury.

Under the 1986 Batson rule and subsequent case law, prosecutors must not strike jurors for the purpose of race discrimination. If challenged, they must be able to offer a race-neutral reason for having removed jurors from a certain race.

This leads to some very strained excuses, including the one given by the prosecutor in the Snyder case. He said he exercised a peremptory challenge against black college student Jeffrey Brooks because Brooks looked nervous and was worried about missing classes. The court found that excuse "implausible," in light of more severe hardship claims by white jurors who were not dismissed.

"People can offer compelling explanations for their behavior even when unaware of the factors - such as race - that are actually influential," wrote researchers Samuel Sommers and Michael Norton in a recent article on this phenomenon. "Even if attorneys consciously and strategically consider race during jury selection, they would be unlikely to admit it."

In the case of Snyder, who was convicted of stabbing to death his estranged wife's date, the prosecutor had managed to get rid of all nine blacks in the jury pool of 85.

Not surprisingly, Justices Thomas and Scalia dissented from the majority, saying the trial court's opinion that race was not a factor should not be second-guessed.

The ScotusBlog, Sentencing Law & Policy, and Deliberations blogged about the case and its implications. The case itself can be found here. Related posts of mine are here and here. Photo credit: Tilaneseven

*"Not this time" is a quote from Barack Obama's recent speech, in which he stated: "We have a choice in this country. We can accept a politics that breeds division, and conflict, and cynicism. We can tackle race only as spectacle – as we did in the OJ trial – or in the wake of tragedy, as we did in the aftermath of Katrina - or as fodder for the nightly news.... Or, at this moment, in this election, we can come together and say, 'Not this time.' This time we want to talk about the crumbling schools that are stealing the future of black children and white children and Asian children and Hispanic children and Native American children.... This time we want to talk about how the lines in the Emergency Room are filled with whites and blacks and Hispanics who do not have health care; who don’t have the power on their own to overcome the special interests in Washington, but who can take them on if we do it together. This time we want to talk about the shuttered mills that once provided a decent life for men and women of every race, and the homes for sale that once belonged to Americans from every religion, every region, every walk of life. This time we want to talk about the fact that the real problem is not that someone who doesn't look like you might take your job; it's that the corporation you work for will ship it overseas for nothing more than a profit."

Happy Valentine's Day

It's been a busy week, with little time for blogging. So, without further ado, I present a few highlights from the news media and blogosphere:

Of apes and jurors

You may have heard about this new study; researcher Jennifer Eberhardt and colleagues were shocked to find people subconsciously associated black faces with apes. (It's in the current issue of the Journal of Personality & Social Psychology.) Jury consultant Anne Reed (of the Deliberations blog) has some astute thoughts on how this unconscious bias factors into jury deliberations, and what can be done to combat it. She's also collected some additional resources on the topic; see also my earlier posts and resources on race and juries, here and here.

Trolls evicted

I wrote awhile back about the sex offenders in Florida who had set up an exile community under a freeway overpass because they weren't allowed to live anywhere else. Now, those men are being evicted from their open-air tents. Some men evicted from under another overpass have set up camp in the remote Everglades; maybe the latest evictees will join them.

Religion and child custody

Remember the circumcision battle I blogged about a few months ago, in which one parent characterized the Judaic practice as religious freedom and the other called it sexual abuse? In recent decades, child custody disputes pitting different faiths and religious practices are on the rise due to an increase in interfaith marriages and a broader rise in custody conflicts. Although family court judges try to avoid rulings that favor one faith over another, it doesn't always work. New York Times reporter Neela Banerjee chronicled the complex dilemma yesterday in "Religion Joins Custody Cases, to Judges' Unease."

Bounty hunting: A corrupt American institution

Speaking of religion, have you heard of "Dog the Bounty Hunter"? I happened to catch it on cable TV when I was channel-surfing at a hotel recently. The show glorifies born-again Christian bail bondsman Duane "Dog" Chapman, a foul-mouthed religious convert who brags of capturing 6,000 runaway felons.

But from another perspective, Adam Liptak of the New York Times has written an expose on the bail bonds industry which, as it turns out, is a corrupt and uniquely U.S. institution. "In England, Canada and other countries, agreeing to pay a defendant's bond in exchange for money is a crime akin to witness tampering or bribing a juror - a form of obstruction of justice. Courts in Australia, India and South Africa [have] disciplined lawyers for professional misconduct for setting up commercial bail arrangements," writes Liptak in "American Exception: Illegal Globally, Bail for Profit Remains in U.S."

As Liptak chronicles, bounty hunters have enormous extrajudicial power. In many states, they can legally break into people's homes without warrants, temporarily imprison them, and force them across state lines without an extradition process.

"Most of the legal establishment, including the American Bar Association and the National District Attorneys Association, hates the bail bond business, saying it discriminates against poor and middle-class defendants, does nothing for public safety, and usurps decisions that ought to be made by the justice system," writes Liptak.

The full story is here, along with a short video.

Yet another call for juvenile justice reform

Last but not least, An Illinois group has called for an end of life-without-parole sentences of juveniles, based on interviews with 100-plus prisoners who received such sentences when they were ages 14 to 17. The oldest of the men is now 47. The report, entitled "Categorically less culpable: Children sentenced to life without possibility of parole in Illinois," is here. A press release is here, and The Northwestern Law School website has more resources.

Are juries fair?

Whether you think so may depend on your race, according to the results of a Harris Poll released yesterday.

Not surprisingly, most white respondents said yes. Most African Americans said no.

To some extent, both answers may be right. Whether the jury system is fair may depend a lot on the race of the person being judged. At least that's what an expert witness testified just last week, at an ongoing hearing in Cape Cod, Massachusetts over whether a black man convicted of murder should get a new trial.

Christopher McCowen was convicted of murder by a mainly white jury. Within two weeks of his conviction, three jurors came forward with concerns about allegedly racist remarks made by other jurors. One juror, for example, reportedly argued during deliberations that blacks were more violent.

Sam Sommers, a Tufts University psychology professor who's done some intriguing research on jury deliberations (see my recent post), testified last week that this stereotype of black men as violent is pervasive, even among individuals who believe themselves to be fair-minded.

Sommers' research on jury deliberations helps explain the racial gap found by the Harris pollsters.

The pollsters found some other interesting things:

• Although most Americans have been called for jury duty, fewer than a quarter have actually served.

• More educated people are even less likely to serve.
  

That latter finding (about which the Drug and Device Law blog has more to say) is too bad for scientific expert witnesses, because educated people find it easier to grasp the technical concepts about which we are often called to testify.

Hat tip to the Deliberations blog. More resources on jury deliberations are available at my Jan. 3 post on Sommers' research. The Cape Cod Times has ongoing coverage of the McCowen case.

Colorful juries more competent

At a holiday party, the topic of jury duty came up. Immediately, everyone started competing to tell how they "got out of" serving. That's too bad, I thought. These folks would all make fine jurors.

Last month, I was involved in a trial in which a group of citizens who did not shirk their civic duty voted to free a teenager facing life for a murder he did not commit. The defense attorney described the jury fondly as "colorful."

What's color got to do with it? Quite a bit, as it turns out.

A colorful, or racially diverse, group actually thinks better than a more homogeneous one. In a recent study, mixed-race juries performed better on all areas assessed, including:

• Amount of information considered
• Factual accuracy of deliberations
• Thoroughness of analysis
• Open-mindedness (especially about race)

Traditionally, people have assumed that the difference is because minority jurors bring different life experiences and perspectives to the group. As Supreme Court Justice Thurgood Marshall put it more than 30 years ago, exclusion of "any large and identifiable segment of the community" removes "varieties of human experience" from the mix: "It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude . . . that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case."

But new evidence suggests there is more to it than that: White jurors actually think more efficiently when they are faced with the prospect of being part of a diverse group. It's as if the goal of not being perceived as prejudiced, or of being accepted by others, switches the brain from autopilot to full-concentration mode.

In contrast, all-white juries tended to be lazy, inaccurate, superficial, and unwilling to discuss uncomfortable topics (especially race). At least that's what Samuel Sommers, the author of a recent study, found.

Interestingly, even bringing up the issue of race during voir dire questioning of potential jurors may increase open-mindedness and thoughtfulness, Sommers observed. (Asking questions like, for example, "Do you have any biases or prejudices that might prevent you from judging an African American defendant fairly?")

This makes sense, because modern racism is largely subtle and unconscious. In other words, people behave in biased ways while consciously thinking of themselves as fair-minded. So if you activate race as a salient issue, whites will more likely make conscious efforts to avoid prejudice.

The court-sponsored research used mock jurors who were drawn from actual jury pools in a Michigan county. The jurors were presented with a video of a Court TV case involving an African American man accused of sexually assaulting a white female.

Such research suggesting the superiority of multicultural juries is not likely to dissuade prosecutors from their frequent practice of removing Blacks through peremptory challenges. After all, predominately white juries are more punitive, especially toward non-white defendants. More thorough and efficient deliberations generally work in favor of the accused, especially if he is African American.

That's apparently what happened in the trial I just mentioned. After much deliberation, the "colorful" jury migrated from leaning toward guilt to outright acquittal.

Although I didn't get to be a fly on the wall inside of that deliberation room, I can imagine the scenario based on what I experienced when I served on a similarly colorful jury earlier this year. Unlike in the mock jury study described above, the case in which I was a juror did not explicitly involve race. The defendant, the victim, and the arresting officers all were white. Yet, as Justice Marshall predicted, the jury's diversity provided perspectives that would not otherwise have been considered. Several white jurors walked into the deliberations room ready to cast their vote (for guilty), thinking that the case was cut-and-dried. After a sometimes-heated discussion that lasted for days, they came to realize there was more to the case than initially met the eye. The vast economic and educational range - another great thing about American juries - also increased the range and quality of the deliberations.

I hope the above-described research is extended in the future to cases like this, in which race is not an explicit issue but still broadens (or colors, if you will) the deliberations.

* * * * *

The study is: Samuel Sommers (2006), "On racial diversity and group decision making: Identifying multiple effects in racial composition on jury deliberations," Journal of Personality & Social Psychology, Vol. 90, No. 4, pp. 597-612.

Other resources:

"Racial Bias in Jury Selection is Common Yet Denied, Study Finds"

"Jurors deliberate competently, study finds"

Samuel Sommers & Michael Norton (2006), "Race-based judgments, race-neutral justifications: Experimental examination of peremptory use and the Batson challenge procedure," Law & Human Behavior.

Jury & Democracy Project

"Harmful effects of unintentional racism"

Antonio et al (2004), "Effects of racial diversity on complex thinking in college students," Psychological Science, Vol. 15, pp. 507-510.

Joel Lieberman and Bruce Sales, Scientific Jury Selection (see my review at Amazon.com)

News roundup

Eastern nations importing Western justice practices

I've seen several accounts lately of Asian countries importing Western criminal justice practices. In China, which has a continental (or inquisitorial) model like that used in most of Europe, the Canadian Bar Association is collaborating with Chinese lawyers to advance the adversarial practices used in Canada and the United States. The Lawyers Weekly of Canada has that story. Meanwhile, in Japan, courts are gearing up to implement what for the West is an old standard – jury duty. In preparation for the January 2009 launch date, a former New York Legal Aid attorney is training Japanese defense lawyers in how to address ordinary citizens in court. That story is one of a series of special reports on "Toyko Justice" at New York City's NY1 news service.

New DOJ report: Sexual victimization of prisoners

The U.S. Bureau of Justice Statistics has released findings from a national survey of more than 23,000 prisoners at 146 state and federal institutions. Overall, about 4.5% of prisoners report sexual victimization, more than half committed by staff. The special report, required under the Prison Rape Elimination Act, is available online, as is a summary press release.

$10 million law & neuroscience project

How should the courts respond to new brain-scanning techniques that have potentially far-reaching legal implications?

A $10 million, 3-year grant from the John D. and Catherine T. MacArthur Foundation is bringing scholars together to help answer this question by integrating neuroscience developments into the U.S. legal system.

The project will begin by synthesizing existing research and identifying gaps. Then, studies and conferences will be funded to fill those gaps. One end goal is an educational primer for judges, differentiating evidence-based techniques from those that lack scientific validity and should not be admitted in court.

More information is available at the project's website.

Gory details sway jurors to convict

That's the fascinating finding from new research out of Australia. As reported in today's Sydney Morning Herald:

JURORS given gruesome evidence including pictures of a murder victim or descriptions of torture and mutilation are more than five times more likely to convict than jurors not given gory details, Australian research shows.

Findings from mock criminal trial studies by University of NSW researchers provide the first direct link indicating that juries might be prejudiced by such evidence and might make biased decisions influenced by a desire to punish.

One researcher, a university PhD candidate, David Bright, said both those studies, and a third with similar results involving a mock civil accident damages case, were the first in which "emotional reactions were directly measured in response to gruesome photos which were then shown to have an impact on decisions" of the mock jurors. The results underscore concern expressed more than 20 years ago by the Australian Law Reform Commission that allowing gruesome evidence could be prejudicial to defendants.

Mr Bright, soon to submit his PhD in forensic psychology, said Australian judges were more likely to override defence objections and admit gruesome evidence because its probative value, or ability to prove or disprove a controverted fact, outweighed any potential negative influence.

The story continues here.

Nov. 26 UPDATE: The jury consultation blog DELIBERATIONS has more detail on this topic.

Forensic psychological testimony often ignored, psychologists claim

How much influence do forensic psychologists have on trial outcomes?

Not as much as we'd like, two prominent psychologists assert.

In one study, David Shapiro found that psychological testimony about a defendant's mental illness did not reduce the likelihood of a jury imposing a death sentence. Paradoxically, instead of feeling sympathy for the defendant, judges and juries may perceive mental illness as a threat warranting execution, Shapiro said.

An exception, he found, was testimony regarding prior abuse suffered by the defendant, which may create sympathy and understanding.

At the recent APA convention in San Francisco, psychologist Lenore Walker reported a similar pattern in child custody cases.

According to Walker, judges often ignore psychologists' testimony about who should get custody in high-conflict divorces, trusting their gut feelings over the opinions of experts.

The discounting of expert psychologists is especially likely, both psychologists agreed, in cases of dueling experts. Jurors and judges may have trouble weighing the competing evidence and so just discount all of it.

The psychologists called for greater outreach to courts regarding the potential utility of expert testimony, and how to differentiate good expert evidence from bad.

The full story, in the current issue of the American Psychological Association's news magazine, is available online.

Should special witnesses summarize expert testimony?

Can jurors really understand all of the data presented to them in complex legal cases? Or should a special witness be allowed to summarize the information for them?

That is the issue coming up before the U.S. Supreme Court in Harms v. United States (Docket number 06-990, 442 F.3d 367, 5th Cir.).

In that worker’s compensation case, the prosecution called a summary witness who presented a flow chart of the information that the jury had heard.

A Fifth District appellate court ruled that the case was complex enough to justify this special witness. The testimony was allowable because it was both impartial and accurate, the court ruled.

In this month’s “Judicial Notebook” of the Society for the Psychological Study of Social Issues, attorney/psychologist Jennifer Groscup writes that more psychological research on this topic would better inform the upcoming Supreme Court decision.

The limited empirical research suggests that summary information might help jurors understand information and make better decisions, Dr. Groscup writes. Such summaries might be especially useful to increase understanding of complex testimony by expert witnesses.

Dr. Groscup's article, co-authored by Jennifer Talon, is available online.

Racial Bias in Jury Selection is Common Yet Denied, Study Finds

It is illegal to kick someone off a jury because of his or her race. That’s what the Supreme Court ruled back in 1986, in the case of Batson v. Kentucky. But in the real world, proving such a “Batson violation” is next-to impossible.

Now, researchers have validated this difficulty through laboratory research examining the decision-making of three groups of participants – college students, advanced law students, and practicing attorneys.

Participants were told to assume the role of a prosecutor in a criminal trial involving a Black defendant. Across the board, participants kicked off Black jurors at higher rates than White jurors. But they justified their decisions using race-neutral excuses.

This research finding conforms to a growing body of data on subtle, sometimes unconscious racism.

“People can offer compelling explanations for their behavior even when unaware of the factors – such as race – that are actually influential,” wrote researchers Samuel Sommers and Michael Norton in the current issue of the journal Law & Human Behavior. “Even if attorneys consciously and strategically consider race during jury selection, they would be unlikely to admit it.”

Of course, prosecutors do not have to be closet racists to dismiss African American jurors. Jury research consistently finds that African Americans are less likely than are White jurors to convict, particularly in interracial cases involving African American defendants. Such findings are complicated, however, because real-life juries are complex groups rather than the single individuals used in most of the laboratory studies.

The full article, “Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the Batson Challenge Procedure,” is available on-line.

See also, "How Much Do We Really Know about Race and Juries? A Review of Social Science Theory and Research." S. R. Sommers and Phoebe Ellsworth, Chicago-Kent Law Review, 2003, pp. 997-1031.

Jurors deliberate competently, study finds

As a former legal affairs reporter and criminal investigator who had many an opportunity to observe jury trials and interview jurors, I have always felt that the jury system is one of America's best features. It is one of the few places where people from all social classes and walks of life come together in a meaningful way and to further a common goal. Having just returned from a week of jury service myself (which I found fascinating and gratifying), I was pleased to learn that my experience is the norm.

The June 2007 issue of Small Group Research reports on a study indicating that juries do, indeed, “deliberate at a remarkably high level of competence” and that a direct link exists between the quality of deliberation and juror satisfaction. Not only that, but the jury deliberation process is a “civic education experience” that prompts many jurors to further their civic involvement.

To help understand “how often everyday juries actually engage in meaningful deliberation,” the researchers surveyed 267 municipal court jurists in Seattle regarding their experiences.

The resulting article, “Do Juries Deliberate? A Study of Deliberation, Individual Difference, and Group Member Satisfaction at a Municipal Courthouse,” is available on-line at:

http://depts.washington.edu/jurydem/writings.html