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Ad-Dressing the Jury
The most fascinating people I’ve ever met are jurors. Over the past 34 years, I’ve tried more than 100 jury trials, and invariably, the jurors I’ve met have both impressed and mystified me.
They’ve impressed me because jurors really do work very hard to reach the right result, and most of the time, they do! But they also mystify me because they do some really strange things. While they listen carefully to the witnesses, they often come up with their own set of facts, sometimes from phantom witnesses who do not even appear at the trial.
While they listen to the judge when he or she instructs them as to the law, they often come up with their own law.
In recent years, there have been a lot of scholarly articles written in legal publications about “jury nullification.” This is a law professor term for jurors disregarding the court’s instructions as to the law and coming up with their own laws. The professors who write these articles make it sound like this is some stunning new development in jury trials. My reaction to so-called jury nullification is like Claude Raines in Casablanca when he was told there was gambling going on at Rick’s Café. “I’m shocked! Shocked, I tell you!”
Almost every jury I have ever seen has applied its own law, specifically the Law of Common Sense.
For me, the most fascinating part of a jury trial comes after the verdict has been rendered, and with the court’s permission, we trial lawyers get a chance to talk to the jurors before they leave the courthouse.
We trial lawyers can be a cocky bunch. When we win a jury verdict, we think we’re the second coming of Clarence Darrow, and we strut like a peacock. Conversely, when we lose, we take it as a personal rejection. It seldom occurs to us trial lawyers that maybe the jury verdict was based on justice and has nothing whatsoever to do with our courtroom advocacy.
But whenever I talk to the jurors after I win a jury trial, they always bring me back down to earth. In 34 years as a trial lawyer, I’ve never had one juror tell me that my client won the trial because of something I said in opening statement or closing argument or did in some brilliant Perry Mason-like cross-examination of an adverse witness. Instead, more often than not, these jurors come up with theories I never even advanced.
On many occasions, jurors have told me that they based their decision on things that didn’t even happen inside the courtroom. For example, several years ago, jurors in a wrongful death trial told me that they returned a verdict for my client, the defendant, because the plaintiff widow was observed in the courtroom hallway laughing, just moments after she had been crying on the witness stand in the courtroom.
Juries often also invoke the missing witness rule, even when they have not been instructed by the judge that it applies. Jurors will say things to me like, “That lawyer kept talking about Mr. Jones, and then Mr. Jones never testified!”
They also invoke a rule you will not find in Don Paine’s treatises on Tennessee Evidence: the missing question rule (“That lawyer never asked that witness …”).
And whenever I lose a trial (and unlike Perry Mason, I do lose trials from time to time), jurors always make me feel a little bit better since they never blame me.
No doubt about it, when we talk to jurors after a verdict, we trial lawyers realize that maybe we’re not as important as we think we are. It reminds me of the ending of my all-time favorite Christmas film, Miracle on 34th Street. Attorney Fred Gayley is bragging to his girlfriend about how he just persuaded a New York trial judge that his client, Kris Kringle, is Santa Claus. And then it hits Gayley that he didn’t win the trial because he convinced the judge that his client was Santa Claus. He won the trial because his client really was Santa Claus.
The truth of the legal matter is the juries are the 800-pound gorilla of the American legal system. They sleep where they want to sleep, often in the jury box.
But while I’ve seen Tennessee jurors do some strange things, I’ve never seen 12 jurors show up for trial in matching color-coordinated outfits.
That’s exactly what happened earlier this fall in a murder trial in Joliet, Illinois.
For over a month, jurors heard the proof in a sensational murder trial of a suburban Chicago police officer, Drew Peterson, charged with the homicide of his former wife, Kathleen.
On the first morning after they were impaneled, the Joliet jury did something unprecedented in the history of American jury trials. They filed into the jury box all wearing coordinated outfits. For a month thereafter, they reported to trial each day dressed for jury success. One day they all wore yellow. The next day they all wore blue. And the next day they all wore green.
On one day, in a patriotic spirit, they walked in wearing alternating red, white and blue.
On another day, they all came in wearing business suits. And then —showing their team spirit — they walked into the jury box one day all wearing jerseys from their favorite sports teams — the Chicago Bears and the Chicago White Sox.
There was apparently not one Cubs fan on the jury. This is a topic that definitely should been covered in voir dire.
Judge Edward Burmila found no problem with the jury’s coordinated attire. A devoted White Sox fan, he loved jury team spirit day, telling a Chicago reporter that the jurors were “obviously intelligent, because none of them are Cubs fans.”
Some courtroom critics expressed concern over the “wardrobe stunts” of the jury, believing it conveyed a lack of seriousness. But defense counsel Lisa Lopez saw no problem. “If they came in wearing t-shirts saying ‘Drew’s guilty’, it would be different. I think it just means they are unified about coming to a decision.”
Attorney Lopez was right. The jury came to a unanimous decision, but not the one she and her client hoped for.
After a marathon trial, the fashion show came to an end. The jury reached a unanimous verdict not only on their attire, but also on the defendant: Guilty.
Defendant Peterson should have seen it coming. When the jury members marched in to announce their verdict, they were all wearing matching orange jumpsuits.
Well, I’m not a criminal defense lawyer, and I don’t play one on TV. But as a civil trial lawyer, the color coordinated jury has taught me something. In all future jury trials, during voir dire, I’m going to ask the prospective jurors to tell me their favorite colors. And then, for the rest of the trial, my client and I will dress accordingly.
BILL HALTOM is a partner with the Memphis firm of Thomason, Hendrix, Harvey, Johnson & Mitchell. He is past president of the Tennessee Bar Association and is a past president of the Memphis Bar Association.