TBA Law Blog

Posted by: Steven Eisen on Mar 19, 2010

Journal Issue Date: Apr 2010

Journal Name: April 2010 - Vol. 46, No. 4

Don't worry. You'll be back in the office by lunch. Lawyers always get excused from the jury box during voir dire. WRONG! Maybe the seventh time is the charm. At least, it used to be my lucky number. After being called for jury duty twice in the last 10 years (once civil, once criminal), and being excused from six juries, they finally got me.

It was already 5:30 p.m., and the first degree murder case had been trying to seat the jury all day. I already had been excused from another murder trial jury that afternoon, but a number of us from the other trial had been sent in as reinforcements. Probably, the attorneys had used up their strikes or else they were so tired at that point that just about anyone would be sufficient. When my name was called to take a seat in the jury box, very few questions were asked other than the basic request that I be fair and not interject my 28-year-old criminal law class knowledge. Then I was chosen, and they did not even know I was one of the "Chosen People."

After the jury was selected, we were allowed to go home for the night, but we were to pack our bags for a three- to four-night stay. We were told not to discuss the case with anyone or to read local news or watch local television. I acquiesced by watching Sports Center, although with all the criminals in professional sports, I am not sure this was appropriate. We were asked to be driven by a friend or relative to a meeting place near the courthouse the next morning at 8 a.m.

Knowing we were going to be together in close quarters for a number of days, the jurors began to get to know each other, asking about jobs and family. Other lawyers, judges, and people I knew walked by our group gathered on the sidewalk, and they were very curious why I was there and were surprised I even knew where the courthouse was located (me, too).


We were told that this particular judge had not chosen to sequester a jury in six years. For all of the criminal courts of the county, this was only the third sequestered jury of the calendar year. After the trial was over, I learned that the judge was asked to sequester the jury by defense counsel, who was concerned about the media exposure to the case.

Once we were sequestered and after the first day of trial, we were brought in vans that were labeled "Criminal Court" or "Drug Court" on the sides (not very undercover) to a secret hotel, where we were instructed that the rooms would not contain any news or other contacts with the outside world, including no televisions, telephones, clock radios, computers with e-mail access, or Bibles. There was a refrigerator and a microwave oven, the latter of which did have a clock. I burned popcorn every night. The hotel did have flat screen televisions, but they were all disconnected. It is interesting that about half of the jurors tried to turn the televisions on anyway even though they were told they were not to watch television.

We were allowed to bring reading materials, although we were told that all reading materials needed to be reviewed by a court officer to make sure they did not discuss legal issues, or more particularly, the specific case. The court officers did bring some DVD movies, but they were all chick flicks, and none of the jurors bothered to watch them. I think some of the male court officers watched them after we went to bed.

At night when we went to bed (usually at 10 p.m.), a motion detector was set up in the hallway, which would set off an alarm if anyone tried to leave their room. I do not know if this was to prevent our escape, our going to another juror's room, or to keep foreign persons out. Somehow, it was supposedly turned off before the court officers banged on our doors at 6 a.m. the next morning and had to see our face before banging on the next door.

I did learn a new card game from one of the court officers. The game was called Tonk, which is similar to gin rummy in that you were dealt five cards, and then had to draw one on each of your turns. The purpose was to decide when to show your cards (a "Tonk") where you would have the lowest total number of cards based upon the face value of the cards in your hand. Any time you had three of a kind or three in a row of a particular suit, you could lay those cards down. Also, you could lay a card on someone else's pile. If someone laid a card on your pile, you could Tonk on your next turn. The court officer who was teaching us the game kept introducing new rules all night, which is contrary to what the judge told us to do in our deliberations of the case.

One of the outsourced court officers who stayed with us at the hotel each night was a woman who took her job very seriously. While the other officers were more laid back, she was very concerned about anyone seeing us enter the hotel, any juror joking about the case, waking up at 5:30 each morning (although the judge overruled this decision), and always carrying her gun in its holster exposed to us. At one point when she fell asleep on the couch reading a book while the rest of us were playing cards, I joked with another juror about trying to take her gun while she was asleep, and he told me I should not even try or I might get shot. On another occasion, when we entered an elevator to go to breakfast with her, some jurors and a hotel employee, I joked with the hotel employee that I appreciated his turning our televisions back on the night before so that we could watch the news; he suggested that was all he could do for us having been cooped up all week (obviously going along with the joke). As the female officer was turning bright red and about to pull her gun on us, I had to tell her "just kidding."

We had plenty of food during the week. Bowls of unhealthy snacks were always in the jury room and at the hotel. Fruit was also available for those inclined. The judge kept checking on us to make sure we were being treated well, and noticing the many snacks, he referred to his marine corps days where such snacks were referred to as "pogey bait," another tidbit of knowledge learned during the experience.

Voir Dire

Before being selected for any jury, the typical discussion among potential jurors was the numerous ways people had thought to answer questions in order not to be selected, but once jurors were placed in the box and voir dire began, everyone seemed to answer the questions extremely honestly. Of all the jurors whom I heard questioned, only one juror kept saying that he felt everyone deserved a second chance, and obviously he was removed from any jury. Ninety-nine percent of the potential jurors exhibited their civic duty and honored their oath to answer the questions honestly and to do the right thing. After being selected for a jury, every juror worked extremely hard to understand the case and make the best decision he or she could.

There were many questions asked during voir dire, which obviously were not intended to elicit an answer, but to make a point. For example, we continuously were asked if we could follow the judge's instructions. Another question was whether the defendant deciding not to testify might taint our view of the defendant. Another question was whether we would be swayed toward a guilty verdict just because the grand jury had decided to indict the defendant.

During voir dire, the attorney for the defense, who happened to be African American, was asking questions of two particular potential jurors, one black and the other white. The attorney prefaced her question with the comment that she hates to have to ask this question in today's world, but she wanted to know if the fact that the defendant was black and the decedents were white would make a difference in the juror's decision. The attorney asked this question of the white juror, who answered that it would not affect her decision. The attorney did not ask this question of the black juror, which I found to be discriminatory in and of itself.

After sitting through voir dire in two separate courtrooms, it is interesting to note that the same district attorney's office used two different methods of asking the questions of the jurors. In the first courtroom, the attorney verbally asked each juror the same basic questions about their background. In the second trial, the attorney presented seven questions on a computer screen and asked each juror to answer the seven questions, which was much more efficient since the attorney did not have to repeat the questions out loud.

Another interesting observation from being in two separate voir dires was how attorneys working for the same district attorney's office referred to themselves. In the first trial, the state's attorneys referred to their co-counsel as "General" so-and-so, which suggested some more official status or expertise. In the other trial, the state's attorneys never used the words "General" but referred to their co-counsel by their full names, which suggested a more personal touch. Ironically, in the second case, the defense counsel referred to the state's attorneys as "General."

During the voir dire, certain potential jurors were set free by the judge on account of their need to be available to run small businesses or be caregivers. Did not these potential jurors read the original jury subpoena which said they could be excused for "undue or extreme physical or financial hardship?" One gentleman was a dentist who had four employees sitting idle while he attended jury duty; another was the wife of a blind man who needed to go to the doctor and was preparing for eye surgery; another was the sole caregiver for a man who had diabetes and was somewhat incompetent to handle his care, and she was afraid that if she were not with him, he might do something which would cause him to have to go to the hospital. One potential juror, though, did mention a dog she had to feed, and the judge suggested she probably could get someone else to feed the dog, although the judge did ask her about the breed of the dog and indicated he knew this breed since a relative of his had the same type of dog.

Trial Tactics

If you want to waste some time and put jurors, court officers, and maybe even the judge in the praying position (i.e., to sleep), show hours of surveillance tapes with similar scenes but where only 30 to 60 seconds of each of the numerous 15-minute tapes had any relevant activity. Having a crime scene investigator describe how many dollar bills are lying around the floor and how many feet they are from various reference points, none of which ever become relevant to the case, seemed another waste of everyone's time.

The state's attorneys spent two days bringing in numerous police officers, showing us videos, reviewing interrogations, and presenting other information about the actual murders. The defense never contested that the murders occurred, so this seemed to be just the sensationalism that the state was attempting to use to influence the jurors. I believe this was counter-productive because the jurors felt that their intelligence was insulted by this process, and the fact that more time was not spent on showing how the defendant was actually guilty of a specific offense suggested that they did not have good evidence to prove their case.

Much time was wasted bringing in experts on handguns. While I learned more than I ever wanted to know about the difference between revolvers and semi-automatic weapons, none of us on the jury ever understood the purpose of this discussion, other than another attempt to try to appeal to our emotions, which again I believe actually backfired on the state.

One time during the trial while the state's attorneys were showing the jury some evidence using their personal laptop computer, which was connected to monitors in the jury box, an e-mail message from another district attorney to the district attorney in the courtroom popped up with a "re line" that said "Congratulations on another guilty verdict." The attorney seemed very embarrassed and immediately deleted the e-mail and turned off her e-mail monitoring.

I think the attorneys watch too much TV. They interject additional drama by making objections that again serve no real purpose. When a police officer was asked to identify the defendant, he pointed to the defense table and said, "He is the gentleman at that table" (pointing to the table). Defense counsel objected to his being too vague just referencing the table. The other counsel suggested the witness get up and go over and point at the defendant. The judge interjected that the witness could just describe which of the four persons at the table was the defendant.

While some of these objections were attempts to prevent evidence from being presented to the jury, probably 80 percent were attempts by each side to either disrupt the train of thought of the other attorney or raise trivial or irrelevant issues. For example, when one of the witnesses could not remember her address (by the way, she has been in prison for almost two years), the attorney suggested the address to the witness. The other side objected for "leading the witness." The judge said that while this might be leading the witness, it was okay; obviously, he realized that it was really irrelevant where she lived anyway.

Defense counsel continued to interrupt the state's attorney with other objections to questions asked of police officers. Usually, the witness was just verifying documents for use as evidence, and from my perspective, the detailed questions were a way to speed the process of validation. The judge almost always overruled the objections, obviously understanding that the objections served no purpose, and I appreciated his efforts to move the process along. I do not know the intricacies of the Rules of Court, but as far as I am concerned, the parties could have just agreed in advance to the validation of the evidence and saved everyone a lot of time.

On the second day of the trial, after being warned numerous times not to discuss the case amongst the jury, one juror while in the jury box asked a clarifying question to another juror. Although the other juror did not respond, after objections by defense counsel and an hour of conversations in the judge's chambers, the first juror was relieved of his duties, and guess who was the first alternate juror who took his place " me! I was moved from the front row, with my good view of all the activity in the courtroom, to the back row.


When we began deliberations, the first order of business was to select a foreman. Before we voted, I suggested that it might look bad if I were selected because there might be an inference that I was swaying the jury. After my big speech, instead of a written ballot, all 11 other jurors pointed at me as their vote to elect me as foreman. Well, at least the next time we took our seats in the courtroom, they moved me again to the front row, but this time it was so everyone else in the courtroom had a good view of me.

I noticed that our deliberation room contained both an American flag and a Tennessee flag. I pointed out to court officers on a couple of occasions that the flags were backwards, since the American flag, unless presented on a stage, should be in the right corner with the Tennessee flag in the left corner. When we finally left for the final time, the flags still were wrong.

While the situation was very intense, I did try to interject some humor to break the ice. During a heated discussion in the jury room while deliberating the verdict, I went over to the evidence table and picked up the revolver used in the murders. At that time, the court officer came into the room and asked if we needed anything (probably hearing the raising of voices), and I asked him for some bullets.

One of the jurors, who was very fashionable in her attire (she brought six pairs of shoes for the occasion), indicated that she had a chill in the deliberation room. I proceeded to the evidence table and pulled out a sweatshirt allegedly owned by the defendant and which had the depictions of guns, stabbings, and other bloody activities, and offered the sweatshirt to the juror to keep her warm. As I pretended to place the sweatshirt on her shoulders, I never saw anyone jump so fast.

On the second day of deliberations, as we were nearing lunchtime, I asked one of the court officers to order lunch because I felt we were still going to be there for awhile. At 11:45 a.m., I told him to give us 30 minutes before he brought in lunch. By 12:15, the jury actually was getting close to a consensus, so the task master in me held off allowing the lunches in the room, and with stomachs growling, we had a verdict by 12:45.

Being very hungry myself and already sick of pogey bait, I then asked for our lunches, but after delivering the message to the judge that "we have decided," the court officer held back our lunches so the judge could call court to order and bring us in to announce the verdict. I am not the only task master. This still took another 45 minutes, and while waiting, our diabetic juror dosed off in his chair. I asked someone to make sure he was awake, and after being shaken a few times and with eyes closed, he still did not move. After heightened anxiety by other jurors, he awoke, and we made sure he at least ate his lunch before being called back into court. I almost killed a juror!

What's Next

According to the Jury Summons I received calling me to jury duty, I can only be excused if I have been called in the last two years. Well, for all you lawyers out there, I might see you in the box in 2011.

STEVEN J. EISEN is a partner in the Nashville office of Baker, Donelson, Bearman, Caldwell & Berkowitz PC. His experience includes corporate representation, securities offerings, intellectual property, and representation of financial institutions throughout the Southeast. Eisen holds a bachelor's degree in economics from Northwestern University in Evanston, Ill., and a law degree and masters of business administration from Vanderbilt University. Before the case discussed in this article, Eisen had no clue about trial practice or criminal law (actually, most of the jurors knew more about this type of law than he did, since they, at least, watch all those lawyer and crime shows on television).