Jury duty. A cornerstone of the American justice system brings together complete strangers with almost no context to dispense justice. Being called to your civic duty as a juror can be confusing, like taking a class you never meant to sign up for.
In this episode, we take you behind the scenes in courthouses across the country to reveal the inner workings of how juries operate. Fans of true crime and “Law & Order” create new perspectives. Social media is now an unavoidable part of the process. And now, remote juries are adding a contemporary element to the selection process.
We detail how you make the final cut or get out of a jury summons. It's not always an easy process, even if you are Samuel L. Jackson. Some of the best stories about juries, however, can't be predicted or avoided with all the preparation and analysis in the world.
This episode was produced by Kirk McDaniel. Intro music by The Dead Pens.
Editorial staff is Bill Dotinga, Sean Duffy and Jamie Ross.
Kirk McDaniel: The cornerstone of the American justice system is being judged by a jury of your peers. Sounds nice, doesn't it? If you've ever been on a jury or have talked to someone who has, they are sure to tell you about their … unique experience dispensing justice. Look, the truth we all know but don't often say aloud is that juries are weird. Welcome to Sidebar, a podcast by Courthouse News. I'm your host and Sidebar's producer Kirk McDaniel. In this episode, reporter Nina Pullano takes us behind the scenes in courthouses across the country to reveal the inner workings of the American jury from how you get selected or get out of a jury summons to the unpredictable nature of a group of people contained in a room together. Nina explores it all. Make sure to save your parking ticket, we can validate it, and don't worry, lunch will be provided.
Jury Audio: Thank you for coming now. I realize that you were summoned to this class without signing up for it, and you haven't even been told what this class is about. Nevertheless, let me tell you what the rules and procedures are. This course could take a few days or a few weeks. I'm not sure. This course could be taught by 10 or 20 different teachers, and it will involve a subject you know nothing about. In fact, if you knew something about the subject to be taught, you couldn't take the class. Each teacher will give you relevant information about the…
Nina Pullano: Jury duty. One of the most important parts of our justice system is also arguably the most random. It brings together complete strangers with almost no context and asks them to do something that we as humans have trouble doing in general: agree. The clip you just heard is from the International Association of Defense Counsel. It makes the point that, yeah, being called as a juror can be a super confusing process, like going to a class that you never signed up for. The video is from 1998; since then, we've seen a lot of changes in the courtroom and in society. More and more attorneys use consultants when they're picking juries to cut down on the total randomness. Fans of true crime or “Law & Order” are coming in with new perspectives. Social media, both what jurors are exposed to and what they post, is now an unavoidable part of the process. And especially during the pandemic, remote juries are adding a new element to the selection process. Some of the best stories about jurors, though, can't be predicted or avoided with all the preparation and analysis in the world.
Kayla Goggin: I'm Kayla Goggin. I'm a reporter for Courthouse News based in Atlanta, Georgia. One of the main courts that I cover is the 11th Circuit Court of Appeals.
NP: Kayla covered a trial in 2017, prosecuting a Democratic congresswoman in Florida named Corrine Brown. She was convicted for siphoning off money from a charity that was supposed to give scholarships to low-income students, was sentenced to five years in prison and ordered to pay more than half a million dollars in restitution.
KG: She quickly appealed her conviction, and about a year after she started serving her prison sentence, her case made its way to the 11th Circuit. But Brown wasn't just challenging the fairness of her sentence. She argued that her conviction should be overturned because of something unusual that happened during jury deliberations. Soon after the jury was sent into a room to deliberate, a juror identified in court documents as juror number 13 told his fellow jurors that the Holy Spirit told him that Corrine Brown was not guilty on all charges. He said that he received the information from his father in Heaven, and he told his fellow jurors, I trust the Holy Ghost.
NP: Another juror reported this to the courtroom deputy who told the judge, and they brought in juror number 13 for questioning.
KG: He said that he prayed for guidance, looked at the information presented during trial, and then received guidance from his father in Heaven about how to proceed. But juror number 13 was still dismissed by the trial judge who ruled that the juror was injecting religious beliefs that were inconsistent with the court's instructions. According to the judge, the distinction was that juror number 13 wasn't just praying for guidance to be enlightened. He was someone who was being told what disposition of the charges should be made by the Holy Spirit, and this was a violation of the court's instructions to base the decision only on the law and the facts at trial.
NP: That decision was ultimately reversed in the 11th Circuit in a split decision, 6 to 4.
KG: So, the 11th Circuit ruled that this was basically the same as a secular juror saying that his gut told him that Brown wasn't guilty. And that's how Brown got a new trial.
NP: Corrine Brown recently struck a deal on just one of the charges and avoided that second trial. The rest of the charges were dropped, and she was sentenced to time served.
KG: After the plea hearing ended, Brown and her attorney walked to Jacksonville City Hall, which is about a block away. And she joined a prayer rally where local pastors were addressing the speed of gun violence. In her speech, she said, ‘God is good. I'm a living witness that he will show up and show out.’
NP: Okay. So, people seeking advice from the entity they pray to is not exactly new and neither is this legal tradition. Your right to a trial by jury is guaranteed in the Declaration of Independence, the Constitution, and the Bill of Rights. But the first jury trial in what would eventually be the United States was even earlier, back in 1630. It was a murder trial where a man named John Billington earned the title of being America's first murderer. He was convicted and executed by hanging for shooting and killing a fellow colonist who was on the Mayflower. John Billington's fate was sealed by a group of strangers talking it out, just the same as today, but picking juries has gotten a lot more technical in the intervening years. If you ask experts when that happened a lot will tell you it dates back to another infamous American trial.
News Clip: O.J. Simpson.
News Clip: O.J. Simpson.
Clip from O.J. Simpson Trial: Mr. Simpson, would you please stand and face the jury?
NP: The O.J. Simpson trial was a landmark moment in the mid-90s in law, in sports, in our culture. I talked with Jo-Ellan Dimitrius, who was the trial consultant that helped O.J.'s defense team pick the jury that ultimately acquitted him. Jo-Ellan got into the field by accident. She wanted to go into academia after getting her Ph.D. and writing a dissertation about the representative nature of juries in Los Angeles County. Then, NBC did a story on her dissertation and the calls started coming in.
Jo-Ellan Dimitrius: Hi, how are you?
NP: I'm all right. How are you?
NP: Thanks for chatting. I'm excited. You're like a jury consultant legend.
JD: I don't know about that.
NP: Yeah, I thought, you know, given your experience, you'd be sort of the perfect person to comment.
JD: The first high-profile case, I'm trying to think, was the McMartin preschool case in which the founder of the preschool and all of the teachers were all charged with child molestation, and I ended up working with the mother, the woman who was head of the preschool. She ultimately was acquitted. That was kind of my first foray into a high-profile case.
NP: I'm sure you still get asked about O.J. to this day.
JD: Oh, absolutely. It's the number one question I get.
NP: Well, I'm gonna give it to you again, I'm sorry to say.
JD: The field has been around actually since the Vietnam war era. It was out there, it just wasn’t known by the population. Obviously, in O.J., people knew who I was, they knew what my role was. And so, it became, much more acceptable and certainly my profession, it was fascinating because, after O.J., there were so many corporate executives and corporations that decided that, you know, perhaps this was a field that they needed to introduce their legal teams to. So, it really expanded greatly as a result of O.J. because it was really the first time that it became public. Prior to that, there certainly was a sentiment that it kind of needed to be secret and behind the scenes. You know, I was very fortunate to have a trial team that wanted me to be somewhat of a mouthpiece for what was going on. The other thing that I have found as a result of O.J. is that prosecutors around the country realize the value of what we bring to the picture. And, after O.J., I was actually, and have been, retained by multiple prosecutorial entities, everybody from the Department of Justice in the Enron cases to the Rampart police action in Los Angeles and one I can't go into right now that I'm working on as well. So, prosecutors realized that this was an area that they needed to pay more attention to and so we've now seen county budgets, state budgets are beginning to be kicked in for services like a consultant can offer.
NP: I'm just curious, what other kinds of consulting you do that's not related to the legal system?
JD: Well, I was really fortunate after O.J. in that I had publishers approach me about writing a book and I didn't wanna write one about, you know, about the case like everybody else did. I wanted to be able to teach people how to read people, you know, because now with technology, the way that it is and internet, we all have the ability to read people, but we've gotten out of the habit of it because we have to make decisions like this and we don't have the in-person time to really be able to see the small body language cues and clues if you will. And so, I wrote ‘Reading People’ and as a result, what's been really quite interesting and actually very fun for me is to step out of the realm of the judicial system and to be able to offer assistance to psychiatrists about how to better evaluate a patient when they come in. Plastic surgeons as well. I'm working with a large restaurant group right now in training their staff and human resources folks in how to evaluate people in this crazy day and age now where so many interviews are like what we're doing right now with Zoom. I did a program a while back on speed dating and I had to evaluate what was happening as people went around the room and they moved from table to table to talk to different people. It was really, it was quite fascinating.
NP: We've been talking now for about 30 minutes. Is there anything you've noticed about me that, you know, if I were a juror you would, you would pick up on.
JD: Nothing at all.
NP: My stoic reporter face on.
JD: No, no, no. Not at all.
KM: What do you think a jury consultant would think about you? Does the way you dress or talk give insight into your thoughts and opinions? What if the next time you get a jury summons, you become someone else to get out of it? No one has tried that yet, right?
NP: For a lot of potential jurors, getting that summons in the mail begs one question, how am I going to get out of this? Maybe you try to answer the judge or attorneys' questions in a certain way, express concerns with child care, or tell the judge you work as a freelancer, and you'll go broke if you take weeks off in the gig economy. A judge may keep you on a jury despite those excuses, but sometimes it is enough just to make a little bit of a stink.
Edvard Pettersson: I'm Edvard Pettersson. I'm the legal reporter for Courthouse News in Los Angeles.
NP: Edvard covered the trial of a gang leader in South LA where a juror decided to try to get out of jury duty after he'd already been picked.
EP: And he was kind of a youngish guy, you know, I would say like mid-20s maybe, a little trendy, leather jacket, nice haircut. And apparently, he had sent a note to the judge saying that, you know, he wasn't comfortable being part of this high-profile trial. So, they just wanted to ask him about this and you know, what makes you uncomfortable? And the guy sort of, you know, didn't really have a good answer, basically says, yeah, I don't know, I'm just uncomfortable. That's all he was gonna say because he had nothing else to say. And so, the judge has the dilemma. The trial was about to start and basically ended up having to excuse the guy because you know, it was a little back and forth with the lawyers, sense was, you know, they ended up not wanting him in the jury pool because if he's like, you know, kind of a rotten apple who sort of like doesn't wanna be there and starts infecting the rest of the jurors, you know, you can have bad situations. So, they decided like, well, let's cut our losses.
NP: In cases like that, dismissal can seem kind of arbitrary, just another hard-to-predict aspect of juries and selection. Here's another story that's a little less straightforward from Courthouse News reporter Hillel Aron. He's also based in Los Angeles and his job as a legal reporter still didn't get him out of jury duty.
Hillel Aron: I definitely tried to get out. This was October 2015. I had always, actually wanted to be on a jury. So, I was excited when I got the thing. So, you go to Stanley Mosk and you sit in this big bullpen room and they call your name. And in the bullpen room, I noticed right away that Samuel L. Jackson was there, the actor, and he had this like personal assistant there. I thought that was like a pretty good, pretty good Stanley Mosk celebrity sighting. It's always cooler when you see celebrities in court, you know, everyone's the same level in a courthouse. It was like 50 or 70 people in this courtroom. And they tell us about the case and that it's a wrongful death case involving a experimental drug and that this trial was gonna last for a month. And so, everyone was just like, oh shit, everyone was trying to get out of it. I was definitely trying to get out of it. I was really looking forward to it because you know, I'm kind of into the civic participation thing, just like I really like voting. I really wanted to participate in it, but I did not wanna participate in it for a month.
NP: So, Hillel is in the courtroom with Samuel L. Jackson and dozens of other prospective jurors.
HA: The judge was sort of culling people. Was like, you know, get in line if you want to be excused. So, like everyone gets in line, tells 'em why they should be excused. And I, I can't remember what some of the ones that worked were, but it was kind of like, does your schedule allow it and do you think you can be impartial? And I was just like, ‘Hey man, you know, I'm a reporter. I cover the courts. I cover cops. You know, I can't, I can't be impartial,’ basically. The judge was this very, like, very kind avuncular, you know, grandfatherly guy. And he just looks at me and he goes, ‘Well, do you think you could try or something like that?’ And I was like, ‘Yeah.’ So, there was also this guy there who was a Wolverine impersonator at, Mann’s Chinese theater. And he said, I wrote it down, he said something like, ‘I hate pharmaceutical companies, so I can't be impartial.’ So, Samuel Jackson also tried to get off and he was like, ‘Hey man, I gotta, I gotta shoot a movie coming up.’ And the judge was like, ‘Well, you know, we'll talk about it.’ So, the second day everyone comes back, and the second day is like all the people that hadn't been excused by the judge, but now like the lawyers are gonna do the voir dire and Wolverine shows up day one. It was like, you could tell what he was doing because of his facial hair. But day two, he showed up in full Wolverine costume, like this big leather suit thing, very bulky and just strutting down the courthouse hallway, like he knew what he was doing. And I just remember saying to someone like, wow, he really went for it. And so, he got off. Samuel Jackson showed up with a letter from a producer saying like, if Samuel L. Jackson gets jury duty, this shoot is gonna be canceled and everyone's gonna lose their jobs. So, he got off.
NP: That story kind of proves there's nothing like jury selection, where even celebrities need a letter from work to get out of jury. I had to ask Hillel if anyone took the chance to chat with Mr. Jackson. And you better believe that Wolverine did.
HA: One of the first things he did when we were waiting outside the courtroom on day one, he went and sat right next to Samuel L. Jackson and just stuck at his hand and was like, ‘Hey, Sam.’
NP: Hillel chatted with the actor too, said he seemed like a nice guy.
HA: I can't even remember what we said to each other, but I remember as he was leaving, the judge dismissed him, and he walked away, and he had kind of a smile on his face, like, you know, dodged a bullet. I just remember he turned to me and goes, ‘Write a good story.’
NP: Okay, let's get back to the other side of jury selection. Denise De la Rue is a jury and trial consultant based in Atlanta, Georgia. Like Jo-Ellan Dimitrius, she sort of fell into the field.
Denise De la Rue: I happened to have a law degree, but I got that after I already decided I wanted to be a consultant because I knew I could get it faster than a Ph.D. with no dissertation. Well, jury selection is, as some people say, the most important part of the trial. That's what lawyers who hire me, tell me until they win the case. And then it was their closing argument or their cross-examination. But, I always say. I don't know that there are that many cases you actually win in jury selection. I think I can only think of one in my career that I think we won there, but you sure as heck can lose it there.
NP: That case had to do with protests at the restaurant chain Cracker Barrel. Activists said the chain was refusing to hire gay employees.
DD: I just felt like I knew when that case started, not because of anything that went on that was any monkey business, but you just knew enough about those people on the jury that I had a feeling then there is no way that we're gonna lose this issue with these people. That's the only one I can point to and say, I don't think the other side had a chance. Once they were in the box, it's usually not that cut and dry.
NP: Denise has been consulting for around 30 years.
DD: The work's gotten a lot more sophisticated. There are people that have a much more sophisticated practice than I do in terms of analytics and things like that. Here's how it's changed, sure. There's software for jury selection. There are apps that you can actually use in trial to help you with your jury selection writing. And then I, as I said, it's not the way my brain works, so I don't use it, but that shows how much more common it is for these things to even exist, right?
NP: Speaking of technology, the pandemic brought something totally new into the equation. Virtual jury selection. Arizona, California, Florida, Georgia, New Jersey, New York, Oregon, Texas and Washington, they've all piloted virtual programs. In some cases, jurors will just appear online for orientation and then head to the courthouse for the trial itself. Other states have held entire jury trials online. That comes with pros and cons.
DD: In some ways, it might be a little harder because you're, you know, they're not in front of you and who knows what kind of rapport you can develop. On the other hand, maybe there are some bonuses because some of these folks will be like, we are, in their home or office and who knows what you get to see in the background, or if they're more relaxed to talk then they would be in a courtroom setting. Everybody in a courtroom's nervous. You never wanna be there. You know, unless you're a lawyer, right? So, and some people have been there with unpleasant experiences. They are, their family members have been incarcerated or they've had divorces or civil cases that are been, you know, emotional. So, maybe they'll be a little more relaxed. I'm interested. I'm interested to see about that.
NP: Over the past few decades, Denise has had plenty of other surprises.
DD: I do a good bit of death penalty defense work. I'd like to be out of a job in that regard one day, but it was in a rural area and we had a potential juror who was a 32-year-old white female who was a grandmother at 32. Her hobby was deer hunting and her favorite movie was ‘Lethal Weapon 3.’ I don't know what was not so great about one or two, but three was the one that she picked, and I just thought, oh my goodness, this woman I thought had to be hard. You know, I just thought she's had a hard life. She likes to shoot deer. You know, she likes this kind of movie. I just couldn't imagine. So, I said to the lawyer I was working with, if she's on the jury, I will go home. You know, if I've somehow let this, not having seen her, that was just her questionnaire. So, guess who juror number one was? And she presented differently than I expected. And she was actually seemed to have a very soft and empathetic side and spoke of our client whose name she knew, with, you know, with respect, you know, it's nice to know which I am always preaching. People are not one-dimensional. You've gotta look beyond the outside to see what else is there. So, I still remember that as a pretty big surprise about jurors. They say very funny things, which is just, you know, I have a little collection that I just make myself laugh with. One of the questions we could sometimes get to ask is when do you consider yourself a leader and when do you consider yourself a follower? And this one juror writes, when you consider yourself a leader, he says when deciding where to go eat or another one in a, this was a long time ago and it was a high-profile case, and the question was, what did you think or feel when you got your jury summons and you learned it was about this case? And this juror writes out, Larry King, here I come. Well, he hadn't even been picked or talked to anybody, but so it's funny when they'll just reveal things about themselves. They honestly don't know they’re revealing, you know, but you appreciate the honesty.
NP: So, when we're called for jury duty, we reveal ourselves unintentionally and people like Denise De la Rue and Jo-Ellan Dimitrius are there to catch us in those moments. But there's a more intentional way we give ourselves away: social media.
Mark Drummond: We had a juror in one of my trials where it was brought to my attention by the attorney that the juror was posting daily comments as to what was going on in court. My name is Mark Drummond, for 20 years I was a trial lawyer and then 20 years after that I was a trial judge in state court. Even though at the beginning, I told the jurors to not be communicating with anyone about the case, but there are, you know, some people who have a constitutional inability to not post about everything that's going on in their lives, you know, line is long at my Starbucks sad face, and this juror simply could not stay away from social media. I warn them at the beginning that, you know, ladies and gentlemen do not post, do not tweet, do not go on Facebook, any electronic communication. And I tell them the consequences of this, and one of the consequences is that these parties have been waiting for a long time to get to court, and if I do not or they do not have enough jurors to decide this case and someone is excused because they violated this rule, then everybody will have to do this over again.
NP: Judge Drummond is now the executive director of the Civil Jury Project at New York University. He teaches at the National Institute for Trial Advocacy. In addition to how it affects trial, Judge Drummond pointed out that jurors themselves can face consequences for ignoring rules about social media.
MD: I would tell them ultimately, and I don't mean to threaten people, but if you violate this, this could be contempt of court and you could be punished for going on social media and writing about the case.
NP: On the flip side, there's the question of what jurors are exposed to through our phones. Jurors are told not to read news reports about the case they're assigned to, but sometimes that's truly unavoidable. A few months ago in New York City, jurors were deliberating in former Alaska Governor Sarah Palin's defamation suit against The New York Times when in between their actual deliberations some of them got a push notification on their phones announcing that the judge had decided to toss out the very lawsuit that they were discussing. The judge hadn't predicted that possibility. In fact, he admitted, he wasn't even aware of what a push notification was until that moment. I asked Judge Drummond if there's anything that can be done about that tricky situation in high-profile trials.
MD: For example, my New York Times subscription, I get about 12 a day, sometimes more. Now, I automatically look down to see if it's a, you know, a text from my wife or one of the children. So, we're being now fed this information. It's easy for us to tell jurors to turn off your push notification, however, if you would tell me to turn off mine, oh my gosh, it might take me a half an hour to figure out how to do that. As I sit here right now, I don't know how to do that. So, in these high-profile cases, I think judges are gonna have to be more proactive and perhaps have court personnel help the people turn off these push notifications. I know we're, you know, using their own phones, but in order to be certain that this doesn't happen, I think that is a safeguard that might need to be implemented.
NP: Another relatively new consideration is what we're exposed to through entertainment. True crime documentaries and series have grown in a big way in the past few years, and then there are fictional shows like ‘Law & Order’ that take some serious liberties with legal proceedings and how evidence is presented at trial. Judge Drummond is a big fan of true crime himself, but he talks about where TV chooses drama over accuracy.
MD: Oh, I love talking about ‘Law & Order.’ I always say that in ‘Law & Order,’ any motion hearing is never held in court with a court reporter as we do. The motion hearings are always held walking up or downstairs, down hallways and one of the characters has to be eating or drinking something during the hearing.
NP: Yeah, not exactly how it happens in the court. Judge Drummond says it's something lawyers really have to address, especially in civil cases.
MD: That show has changed or should change the way that the civil attorneys talk about the burden to make sure everybody knows that it's not the higher criminal standard.
NP: Okay, so how about criminal cases? When the goal of a crime show is entertainment, the extent of science fiction knows no boundaries.
MD: I believe it's almost malpractice for a criminal attorney, prosecutor to not voir dire on the ‘CSI’ effect. There was a ‘CSI’ episode where the CSI investigators go in and it's the murder of a partner at one of these silk-stocking law firms. And they go, and the partner is lying beneath this, you know, mahogany polished conference table. And they’re processing it. And all of a sudden, one of them sees a mosquito that is on the table and they take a glass and put it over the mosquito, take it back to the laboratory. And lo and behold extract the blood and it has both the DNA of the dead partner and also the DNA of the person who killed the dead partner. Now it gets better than that. Why did the mosquito not fly off the conference room table when they were trying to put the glass over it? Because the GSR gunshot residue coated the mosquitos’ wings and prevented it from flying off the table. Millions of people have seen this episode. Millions of people have seen it on reruns, millions of potential jurors who are gonna be asking in murder cases where's the mosquito?
NP: The system is modernizing from using data and social science and jury selection to jurors looking for that mosquito in the evidence to trials taking place fully online. But one thing hasn't changed from the Mayflower murderer to O.J. Simpson's trial to now, no matter how much you prepare, juries are unpredictable and they're also just plain weird. People are complex. We're opinionated. We get distracted and cranky and some of us even show up in costume to do our civic duty. It only makes sense that juries have stayed just as strange. And even though people try to get out of jury duty in various, sometimes outlandish ways. Judge Drummond says for the most part, people are happy they did it.
MD: People absolutely report back to us that they love the experience. They realize it was something important. It was important for the court system and everyone that was in the courthouse. In addition to the judiciary being so politicized these days, I believe that the jury system is even more important. It is one of the most apolitical systems we have. It's essential that we keep the jury system.
KM: We humans are complex creatures tasked with great responsibility toward one another. Our legal system is no different. Could it be that in a country of over 300 million people, we just never expect to be tasked with such power of serving on a jury and deciding a party's fate. Maybe that's where all the weirdness comes from. Thankfully in between all the weirdness, there is a method to the madness. Thank you for listening. To stay up to date on the latest legal news, check us out at courthousenews.com, follow us on Twitter @CourthouseNews and @SidebarCNS and if you love us, we'd appreciate your support in nabbing a Podcast Award. Visit podcastawards.com and vote for Sidebar by Courthouse News under the politics and news category. Sidebar will be on a summer holiday until September. When we return, I'll take a look into rap music being used as evidence against rappers in criminal cases, and the implications of using art against the artist. ‘Til then, stay weird.