Denver Bar Association
November 2007
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A Lawyer’s Lessons Learned at Jury Duty

by James Hardy

Editor’s Note: All names have been changed.

A Surprise Selection

As a rule, it’s not good policy to miss workdays in your first few months in a new job. Only two months into a position with a new firm, I was faced with the prospect of several workdays away from the office. Nonetheless, I had a feeling that jury duty was a valid reason to temporarily excuse myself from my new post as a litigation associate at Brownstein Hyatt Farber Schreck, P.C.

I was confident that my time out of the office would be limited. I expected the "typical" experience — dismissal by midday.

***

Even after clearing the first round and being seated in the jury pool, I expected my answer to the Denver District Court judge’s standard preliminary question inquiring about my profession to result in a quick dismissal. I was quite surprised that both the prosecutor and the private defense attorney trying the case were interested in questioning me further.

Even more surprising was watching other candidates being cut from the jury pool. Each time the number became one fewer, I thought that I was the next to go. But it never came to pass.

Lesson One: Lawyers are not immune to jury service. As my boss, an experienced and successful trial attorney told me, lawyers make good jurors.

A Small Case

We sat for two days of trial and another two of deliberation. The jury — seven males and five females — included people of all ages, ethnicities and backgrounds.

It was a criminal case involving a middle-aged African-American man, Doug Fredrickson, accused of two counts of stalking, two counts of menacing, and various charges related to violating restraining orders. There were eight counts against Fredrickson, but his sentencing exposure was limited. For a case that had reached full-fledged trial, this seemed a small one.

Still, this relatively "small case" involved compelling narratives that touched on everyday issues to which the jury had powerful responses. Every piece of evidence invoked questions of race, gender and age.

Lesson Two: There are no small cases. Few cases that actually reach trial are ever "small" to the parties involved. I realized that the same was true for the jurors.

We watched several witnesses relive stressful and confusing events in their lives. There was a soap opera aspect to the details of the case, but as jurors we were compelled to work toward the right decision. During our deliberations, we put ourselves in the place of both the victim and the defendant. There were several heated discussions that displayed the attachment each juror felt to the case and to a proper determination.

Of Attorneys and Themes

The prosecution did not present a police witness and did not have clear-cut physical or eyewitness evidence that Fredrickson had committed the alleged acts. The prosecution’s theme was twofold: 1) Fredrickson was the only person with a motive and had committed similar acts at the conclusion of a previous relationship, and 2) Fredrickson would have to be the unluckiest person on earth to be facing the circumstantial evidence pointing to him. The defense argued that the investigation and subsequent prosecution had been flawed from the get-go and, consequently, reasonable doubts were rampant.

Lesson Three: Themes matter. The opposing themes resonated in the jury room. The majority of the jurors believed there was a strong probability that Fredrickson had done everything he was accused of doing. However, the jurors also took seriously the defense attorney’s arguments about reasonable doubt.

The jury revisited the judge’s "reasonable doubt" instruction several times and engaged in extended discussions about the concept. Jurors dug into their positions based on the legal definition of "reasonable doubt" and each juror’s gut feeling regarding the concept.

I learned that it is impossible to predict the facts and themes jurors will latch onto, and that jurors will fill in gaps in the narrative that the attorneys fail to explain.

A juror with professional legal experience will recognize that narrative gaps indicate what has gone on between the judge and the attorneys outside the courtroom. Those without such training will spot those gaps and wonder about them. Our jury spent considerable time debating how we were to weigh the lack of evidence on important issues and whether this, too, created reasonable doubt.

The "Key" Evidence

A dramatic moment took place when one of the defendant’s ex-girlfriends, Helen, took the stand. Helen testified that Fredrickson’s acts after their relationship ended were eerily similar to those alleged in this case. Her testimony clearly was viewed by the prosecution as a nail in the defendant’s coffin.

The defense attorney also recognized Helen as a damaging key witness. He spent a great deal of time quizzing us during voir dire about our ability to separate past acts from the character of the defendant and returned to this theme repeatedly. As it turned out, Helen’s appearance had little impact on the jury.

Lesson Four, Part I: Juries follow evidentiary rules. One of the most refreshing and surprising lessons I learned was that jurors really attempt to follow the evidentiary rules, even when following those rules is frustrating or difficult. Helen’s testimony easily could have been interpreted outside the guidelines we were given. However, every time one juror made the point that Helen’s testimony showed that Frederickson previously had committed the same crimes, another juror would speak up to remind us that we couldn’t use past acts as evidence of his character. The jury’s good-faith adherence to the rules was reflected in these healthy debates.

Lesson Four, Part II: The jury will determine the weight it gives the evidence — and it probably won’t agree with the attorneys. In the end, the jury was confused as to what we could do with Helen’s testimony. We could not draw a definitive line between "character" evidence and evidence showing "identity" and "state of mind." Consequently, Helen’s testimony lacked the central role the prosecution desired and the defense feared. Although there likely was much pre-trial wrangling over this evidence, the jury treated it with a collective shrug.

Ultimately, we resolved the case by a split verdict. We found Fredrickson guilty of two counts of stalking, not guilty on the restraining order violations, and we hung on the two counts of menacing.

Despite the many issues in controversy, the crucial issue turned out to be the timeline of the alleged acts. The menacing charges were tied to acts of vandalism on specific dates, and the stalking charges were tied to a pattern of incidents. The evidence was limited to sketchy eyewitness testimony. The prosecution contended that its circumstantial evidence was sufficient to show that Fredrickson had committed all of the acts.

Gradually, the jury became convinced that Fredrickson had committed at least some of the acts alleged. We were not unanimous, however, as to which acts he had committed and whether he had committed all of them.

Lesson Five: Jurors follow jury instructions. During deliberations, we asked the judge for clarification of the term "on or about," referring to dates in the menacing charges. We were told that no further clarification could be provided.

A consensus formed that "on or about" meant on the exact date specified by the charge. Consequently, we found Fredrickson guilty of the stalking charges — the acts that required us to find beyond a reasonable doubt that he had committed a pattern of acts. We hung on the menacing charges, which required certainty beyond a reasonable doubt on particular acts alleged "on or about" particular dates.

Whither the Foreperson

The first question everyone asked me once the trial ended was whether I served as foreperson. The assumption was that I would have assumed the duties because of my professional experience.

In fact, our foreperson was selected by fiat when a juror named Stacey announced as soon as we entered the room to deliberate that "Sheila had taken the most notes during trial" and clearly should be the foreperson. The choice suited me, as I didn’t want to use my professional experience to exert undue influence over the other jurors.

Over the course of our delibe-rations, however, refraining from using my professional experience and understanding of the law to undue effect became a challenge.

Lesson Six: One juror can have an inordinate impact on the jury. Stacey had been relatively soft-spoken and unassuming during voir dire. Once the bully pulpit of the jury room was available to her, however, she came into her own.

Stacey’s outgoing nature became a dominant, if perverse, force in the jury room. She developed convoluted conspiracy theories in which all of the prosecution’s witnesses had played a part in vandalizing their own property to frame Frederickson. She thought Frederickson was guilty of all of the charged acts, but that "something wasn’t right."

My role on the jury became tempering Stacey’s wild pronouncements. Time and again, I advised the jury to stick to the evidence. In doing so, I involuntarily became Stacey’s nemesis. At one point, after a long diatribe detailing another conspiracy theory, she turned to me and said, "Now, tell me why I’m wrong, that’s what you do." I complied, but found myself becoming a prosecution advocate when I didn’t feel overly convinced by their case — all to temper the most aggressive and vocal juror.

Maybe this is how jury deliberations are supposed to work. We brought divergent viewpoints into the jury room and set those against uncertainty and the necessity of reaching a verdict. Without Stacey’s forceful presence on the panel, I may not have thoroughly explored my thoughts and determinations about the case. The two of us served as opposing poles, and the rest of the jurors fell somewhere in the middle-ground. As frustrating as I found it, Stacey’s presence was indispensable to reaching considered group decisions on the charges.

Lesson Seven: Attorneys should welcome the jury experience. I learned more in five days of jury service than I could have gotten from countless CLE lectures. There is no better, more direct experience of ordinary people interacting with legal issues than jury duty. An attorney’s understanding of the law and the everyday experience of it will change considerably.

I came away with a sense that jurors care, they want to do the right thing, and they truly struggle in the jury room with the principles and narratives on which we spend so much time and effort. For me, the experience was a great affirmation of the integrity of the people the system is meant to serve. I left with the hope that the jury I served on was emblematic of the system’s modest — and human — success.


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