jury duty Tag Archives - Atlanta Injury Lawyer Blog

“Isn’t That a Jury Question?” U. S. Supreme Court Bores Down to the Heart of the Matter in United States v. Tsarnaev

October 13, 2021 | Robin Frazer Clark

“Isn’t that a jury question?” As a trial lawyer who has tried 75 jury trials in Georgia, that is my default position, i.e., a jury should decide each issue of fact. Not a trial judge and certainly not an appellate court. Juries perform this task of finding facts every day, in every courtroom in the United States. It’s what juries do…and it’s the very foundation our system of Justice is built upon.

Yet, too often, we see trial judges, and then even appellate judges, invade the province of the jury and decide the case for herself/himself. This, plain and simply, is not allowed. The Standard of Review of a denial of a motion for summary judgment, for example, requires [an appellate] Court to “view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. And at the summary-judgment stage, we do not resolve disputed facts, reconcile the issues, weigh the evidence, or determine its credibility, as those matters must be submitted to a jury for resolution.” Orr v. SSC Atlanta Operating Co., 860 S.E.2d 217, 222 (Ga. Ct. App. 2021), reconsideration denied (July 14, 2021). It really can’t be any plainer than that.

The United States Supreme Court, the highest appellate Court in the country, rarely, if ever, even discusses issues of fact, much less decides them. You can imagine my surprise, then, when in today’s oral argument in United States v. Tsarnaev I heard Justice Sotomayor ask exactly that question: “Isn’t that for a jury to decide?” Whoa! Wait a minute! What just happened?! A Supreme Court Justice never asks a question like that, does she? And yet I heard it with my own two ears! Interesting.

Whoever Wants To Serve on a Civil Jury Trial During a Pandemic Raise Your Hand~ Part Two

February 17, 2021 | Robin Frazer Clark

I hope many of you read my last blog post “Whoever Wants To Serve on a Civil Jury Trial During a Pandemic Raise Your Hand.” I received some wonderful comments about it, which led me to want to add a bit more to my thoughts on the subject and, hence, this is Part Two of that blog post. I want to add to the list of why it would not be a good thing to start back up civil jury trials right now when only a small percentage of the Georgia population has been vaccinated. That reason is that Covid-19, without dispute, has disproportionately affected African Americans and people of color (BIPOC) than other citizens. Even the CDC admits this. The CDC states:

“There is increasing evidence that some racial and ethnic minority groups are being disproportionately affected by COVID-19.^{[2], [3], [4], [5], [6]}Inequities in the social determinants of health, such as poverty and healthcare access, affecting these groups are interrelated and influence a wide range of health and quality-of-life outcomes and risks.^[1]To achieve health equity, barriers must be removed so that everyone has a fair opportunity to be as healthy as possible.”

And yesterday (February 16, 2021) Georgia tied its highest reported daily deaths of 180 from Covid-19, so that hospitalizations may be going down but the death rate is not.

Jury Duty: Accessible for All

September 24, 2019 | Robin Frazer Clark

A neat thing happened last week in DeKalb County State Court as I was striking a jury. I’m not sure if anyone else noticed it or appreciated it, but I certainly did. The judge had called in 60 potential jurors to go through “voir dire,” or jury selection, in my case. DeKalb jurors are some of the most diverse citizens of any county in Georgia, and that wonderful diversity was in full display during jury selection. What really caught my attention was there was an interpreter for one of the jurors. This juror could not speak English, at least not fluently enough to be able to understand detailed questions about her thoughts and feelings about money damages in civil cases, medical malpractice cases in particular.

It was apparently arranged in advance, because by this woman’s side was an interpreter. The trial court judge needed to swear in the interpreter first, before swearing in the actual juror. The oath an interpreter must take states that she will truthfully and accurately translate from English to whatever language that juror spoke and back again. The trial court, before swearing in the interpreter, asked “It is Amharic? Is that correct?” The answer was yes. And so the judge swore in the interpreter with the oath that she would truly and accurately translate English into Amharic and Amharic into English. That being accomplished, the interpreter then translated not only the juror’s oath to the woman, but also every question asked of the panel.

I was fascinated by the fact that the subject language was Amharic, with which I was not at all familiar. It is spoken principally in the central highlands of the country. Amharic is an Afro-Asiatic language of the Southwest Semitic group and is related to Geʿez, or Ethiopic, the liturgical language of the Ethiopian Orthodox church; it also has affinities with Tigré, Tigrinya, and the South Arabic dialects. This doesn’t surprise me at all, as DeKalb County is Georgia’s most diverse county. DeKalb is primarily a suburban county, and is the second-most-affluent county with an African-American majority in the United States, behind Prince George’s County, Maryland, in suburban Washington, D.C. As of the 2010 United States Census , there were 691,893 people, 271,809 households, and 161,453 families residing in the county. The population density was 2,585.7 inhabitants per square mile (998.3/km²). There were 304,968 housing units at an average density of 1,139.7 per square mile (440.0/km²).The racial makeup of the county was 54.3% black or African American, 33.26% white, 5.12% Asian, 0.4% American Indian, 4.5% from other races, and 2.39% from two or more races. Those of Hispanic or Latino origin made up 9.8% of the population. In terms of ancestry, 5.9% were English , 5.2% were German , and 3.5% were American .

Jurors Want to Know: Why Are We Here?

December 5, 2018 | Robin Frazer Clark

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Jury duty is often the last thing people want to do. It interferes with their jobs, their family schedules and essentially everything people do on a daily basis. No one has jury duty scheduled on their calendar. So, it is often the case once citizens report for jury duty and are actually sitting in a courtroom going through jury selection, particularly in civil cases for money damages, that jurors want to know “Why is this case being tried? Why am I here?” Some people might, wrongly, assume it is because the plaintiff is greedy. But that is almost never the case. Rather, so often, the answer is because the insurance company for the defendant, the party at fault, refuses to be reasonable and refuses to resolve the case before trial. For some unknown reason, that seems to be more and more the answer to the jurors’ questions of “Why are we here?”

Several recent trials in Georgia demonstrate that completely. In a trial in Gwinnett County last month, a jury awarded $17.8 million to the widow of a man who plummeted three stories to his death after trying to close an improperly installed dormer window. No offer of settlement by the insurance company who represented the company at fault was even made until six days before trial. Understand, the trial occurred only after years of depositions, hearings, document exchange…known as discovery. Yet the insurer didn’t even attempt to broach resolution until six days before trial. The plaintiff’s settlement demand had only been $1 Million. Now the insurer is looking at a judgment for $17.8 Million. The insurer could have saved $16.8 Million had it even attempted resolution.

In another case recently tried in Cobb County, the jury returned verdicts for two plaintiffs of $77,000.00 to one plaintiff and $80,000.00 to the other. They also awarded an additional $35,000.00 for property damage. Highest offers prior to trial were $4,000 and $5,000 respectively. Yet the plaintiffs’ medical expenses alone, without even considering pain and suffering, were $12,000 and $9,000 respectively. When an insurer offers half of a plaintiff’s medical expenses it is not really trying to reach a good faith resolution of the case.

Why It’s a Bad Idea to Allow Jurors to Ask Questions at Trial

March 15, 2018 | Robin Frazer Clark

It seems to be in vogue with some trial judges currently to allow jurors to ask questions of witnesses after both sides of the litigation are finished asking their questions. This is currently a hot topic due to the Tex McIver trial, currently being tried in the Fulton County Superior Court in front of Judge Robert McBurney. Judge McBurney, rather famously, permits jurors to ask questions of witnesses after questioning by the prosecution and the defense counsel. Presumably, Judge McBurney allows this practice in civil cases as well as criminal cases, although Superior Court doesn’t see as many civil cases as criminal. All felonies in Georgia must be tried in Superior Court. The practice of Judge McBurney allowing witnesses to ask their own questions was discussed extensively before the trial in a podcast produced by the AJC called Breakdown. It is hosted by veteran legal affairs journalist Bill Rankin and I highly recommend it. In that podcast, defense counsel Bruce Harvey gives his opinion on why it is not only a bad practice to allow jurors to ask questions, but, also, why it is probably unconstitutional. For example, we all know that the 5th Amendment of the Constitution gives a criminal defendant the right to remain silent, even throughout the trial, so that the government must prove guilt beyond a reasonable doubt without any assistance from the defendant. Harvey, rightfully, preposes the hypothetical of a juror asking “Why didn’t the defendant take the stand to tell us what happened?” Of course, the judge is not going to permit that question to be answered, but the jurors (or at least the one juror who asked that question) will know the judge didn’t approve it and wouldn’t permit it to be answered, and the bias that answers “why” is naturally because the defendant must be guilty. So simply by denying that juror’s question, the 5th amendment constitutional right is implicated and violated because it was allowed even to be raised in court.

There has lately been alot of discussion in social media about this among lawyers, too. You can find some of this discussion on Twitter at #texmciver and in the comments on Facebook where WSBTV is livestreaming the trial. If I were to take a poll, I think the vast majority of trial lawyers is against the practice for the reasons stated above. Also, other websites are livestreaming the same WSBTV feed, like wildabouttrial and lawandcrime. Both of these websites have a comments section where viewers can post their comments about the trial. It is pretty fascinating, especially for court enthusiasts like me. On Facebook, there have been some thought-provoking comments about allowing jurors to ask questions of witnesses. Below are just some of the comments I have seen:

“I think there are two questions that judges should ask themselves before considering this. 1). Why would I allow jurors to ask questions? Whatever the answer is (to help the jurors clarify any issues that the holder of the burden of proof has not clarified, etc). 2). If I am am being a neutral, unbiased referee, should that matter to me?”

Jury Duty: The Chance to be a Hero

February 13, 2018 | Robin Frazer Clark

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Yesterday I was in the Chicago O’Hare airport after taking the deposition of a defense expert anesthesiologist at the University of Chicago and sat down for lunch next to a nice couple from the Boston area. We started talking and I, of course, told them I am a plaintiff’s personal injury trial lawyer from Atlanta in Chicago for the purpose of taking an adverse expert witness’s deposition. They were mesmerized. We talked a bit about the case which led, predictably, to their telling me about their personal experiences with both the Criminal and Civil Justice Systems.

The husband of the nice couple told me about his experience in serving on a criminal jury as the foreperson. Like most folks facing jury duty, at first he was upset about missing work, resented being herded around the courtroom like cattle and being kept in the dark about what was happening, and was overall just unhappy about being forced to take part in the entire process. Yet, as the testimony came in and the trial moved on,things, including his attitude, changed. The case was about a man, the defendant, who allegedly had abused his three year old son. The man had taken his son away from the child’s mother’s home but the mother wasn’t even aware of it. The evidence against the father was, apparently, overwhelming. My new buddy, who was telling me about his experience, was picked to be the foreperson of the jury. He immediately felt an enormous weight on his shoulders to do the right thing. Not all of the jurors at first wanted to convict, even though he felt the evidence to do so was overwhelming. Some of the jurors wanted to hear some of the testimony again, some of them wanted to see pieces of evidence again. They wanted to be sure. In the end, the jury voted unanimously to convict. My new friend said that when he read the verdict out loud in the courtroom, he felt an enormous sense of duty and pride. He felt moved to tears. The jurors, to a person, took their duty very seriously and followed the court’s instructions unwaveringly. He felt like he was the little boy’s hero. Now, looking back, he hopes he’ll get the chance to serve on a jury again. Both he and his wife said that if they were ever the parties in a trial, they would want people like themselves serving on their jury.

Fascinating story, but I’m not surprised. This is often the story I hear from people who have served on juries, criminal or civil. The sense of duty is extremely strong. By serving on a jury, you are breathing life into the United States Constitution and doing your part as a citizen to make our judicial system work. Without jurors, the system would collapse and we would cease to be a democratic nation. Jurors ensure that a person’s constitutional rights to a fair trial by a jury of his or her peers is protected. That is not overstating things. And something about being in the formal courtroom, where lives are at stake, where injured plaintiffs seek to have the harms done to them balanced by damages from the wrongdoer, makes that sense of honor and duty to your nation come alive. Jurors are the heroes of victims of crime and of those citizens who are personally injured through no fault of their own. The courtroom is the great Equalizer, where the son of the richest man in America is the equal of a homeless person, and where the smartest graduate of Harvard University is the equal of a high-school drop-out. All persons are treated equally in a court of law.

Why me? How Did I Get Summoned for Jury Duty?

June 6, 2017 | Robin Frazer Clark

As I work at my desk in my office today, I have the voir dire (jury selection) in the retrial of Ray Tensing livestreaming on one of my monitors. Some folks have called jury selection the most boring part of any trial, but it may very well be the most important, because from jury selection comes the group of local citizens who will decide the fate of the parties in the case and really decide what the conscience of the community is regarding the issue being tried. The Ray Tensing case is an excessive force case being tried in Cincinnati, Ohio this week. Tensing is the former University of Cincinnati police officer charged with one count of murder and one count of voluntary manslaughter in connection with the 2015 shooting death of Sam DuBose. The deadly encounter happened during an off-campus traffic stop. Tensing has said he fired his service weapon in self defense. The incident was captured by Tensing’s police-issued body-worn camera. A am watching the criminal trial of Mr. Tensing, who is being tried for on one count of murder and one count of voluntary manslaughter. There has already been a civil case that settled for money damages against the University of Cincinnati, Mr. Tensing’s employer at the time of the killing. It is being tried for a second time because the first trial ended in a mistrial. Watching voir dire or jury selection is helpful to me as a trial lawyer, not only in ideas of potential bias to explore but in hearing how a certain cross-section of our nation feels about jury trials in general. It is interesting that in Ohio, if a lawyer asks the Court to strike a juror for cause, meaning the juror has expressed so much bias about the issues and has stated he doesn’t think he could be fair on the case, the lawyer moves to strike the juror out loud in front of all the other jurors. For example, one juror who the judge struck for cause said in jury selection that he thought Mr. Tensing “deserved a medal” for shooting Mr. Dubose. No wonder why he was struck for cause. In Georgia, we don’t do it that way because of the fear that once the judge strikes one juror for cause, in front of all the other jurors, the rest of the jurors will figure out what to say to get off the jury and then pretty soon all the jurors are gone. So in Georgia we approach the bench and make these sort of motions to the judge at her bench.

Many of the folks in the Tensing jury panel have mentioned the concern and anxiety they had simply upon receiving a juror summons requiring them to be present in court for the jury selection of this case. They have expressed their bewilderment about whey they of all people in Cincinnati received a juror summons, why they have to be there, why they have to take time out of their jobs and lives to be there…in short, why them? Why me?

Interesting question, and with a recent opinion issued by the Supreme Court of Georgia, Ricks v. State, infra, regarding how a jury panel is composed, I thought it merited looking into the issue of jury composition a bit deeper. Georgia has a fairly new Jury Composition Rule that controls the manner in which Georgia citizens will be summoned for jury duty. For use in compiling official lists of potential jurors, the Jury Composition Act directs the Clerks Council to obtain voter registration records from the Secretary of State and driver’s license and identification card records from the Department of Driver Services (“DDS”); the Act also directs the Clerks Council to obtain records on individuals who are ineligible for jury service, including certain records regarding mentally incompetent persons and convicted felons who have not had their civil rights restored. See id. § 1-16 (codified as amended as OCGA § 15-12-40.1 (b), (c)). Ricks v. State, S17A0465, 2017 WL 2061675, (Ga. May 15, 2017)

5 Things To Know About Jury Duty

February 20, 2017 | Robin Frazer Clark

I’ve got jury duty and I can’t wait! Said no one ever (except maybe lawyers who almost never get to serve on a jury). You have just received your jury summons, making an already bad day worse. Now what do you do?

Show up at court. When you receive a juror’s summons, it is an actual summons for you to appear in court. Failure to appear in court at the correct time can place you in contempt of court. Don’t make matters worse by failing to appear. I have seen different courts handle this in different ways, ranging from a mere scolding by the trial court judge to payment of a fine. The trial judge can even hold you in contempt and threaten you with jail (although I have never seen this happen, and state court judges are elected so I doubt it ever will happen). A trial judge in
Virginia recently gave 200 people who had been summoned for jury duty but who had failed to appear a lecture on the importance of the role of the jury in our judicial systems. “Jurors perform a vital role in the American system of justice,” Circuit Judge Jerrauld Jones told him at Friday’s court hearing, noting that the Founding Fathers thought they were so important, they put jury trials in the Bill of Rights. “Jury trials prevent tyranny,” Jones said. Judge Jones was, apparently, in a generous mood as he forgave their $100 fine and several people exclaimed “Thank you!” and “Bless the Lord!” when Jones told them he was dismissing the cases against them.

Jury Duty: The Heart of American Government

January 5, 2015 | Robin Frazer Clark

I recently had jury duty in DeKalb County, Georgia, where I have been a resident for 15 years. In 15 years, I have received a summons for jury duty two times. I have never served on an actual trial jury. This is the ironic curse of being a trial lawyer. Most likely, I will never serve on a trial jury although my job involves persuading trial juries to see a case my client’s way. I have been in many, many courts throughout the State of Georgia and I am proud to say as a DeKalb County resident there is no better court experience than DeKalb County, from the deputies who check you through the metal detector, to the jury clerks who handle hundreds of jurors every day, to the courtroom staff of the trial judges, to the judges themselves. It is an extremely pleasant experience and trust me, I have been in many Georgia courthouses where that simply cannot be said.

I believe jury duty is the Heart of American Government. A trial jury is the smallest form of self-government ever conceived. Government by the People for the People, right? Trial by jury was so important to our nation’s Forefathers they enshrined it in the Seventh Amendment to the U.S. Constitution. Said President John Adams about trial by jury: “Representative government and trial by jury are the heart and lungs of liberty. Without them we have no other fortification against being ridden like horses, fleeced like sheep, worked like cattle and fed and clothed like swine and hounds.” So with that attitude, I proudly stepped into the DeKalb County Courthouse, with jury summons in hand, not in my usual role as trial lawyer, but in the very important role as potential juror. Awesome! I can’t wait!

I went through the process of jury selection, called Voir Dire in law school and never called that again by me. It sounds too pretentious, doesn’t it? And jury “selection” is a misnomer…it is actually jury “deselection.” Trial Lawyers don’t get to look at the jury venire (another pretentious word for the jurors from whom the trial jury will be struck) and pick who looks best to them. It is the opposite of that. Trial lawyers get (usually) six peremptory strikes to take off the jurors who seem like they would be horrible jurors for their side of the case, for one reason or another. Each side of the trial strikes six jurors and whoever is left is your trial jury who will decide the case. Again, ironically, the jurors who end up deciding the case are usually the jurors you know the least about. They have often never even responded to any of your questions in “jury selection” so there were no red flags in their personal history to make you concerned about how they would see your case given their preconceived notions or their obvious leanings toward one side or the other. There are also strikes the Court (i.e., the trial judge) exercises called “strikes for cause” where it has been demonstrated that a juror could not possibly be impartial because of something that has happened in their lives perhaps so similar to the case to be tried that they have already made up their minds how the case should come out. Or maybe they have such deep religious beliefs that they are forbidden by their particular Faith to judge another human being and so would be incompetent to sit in judgment of another person. I was thinking about jury selection this morning as I was reading about the trial that begins to today in the Boston Marathon bombing. Jury selection in that Federal trial is estimated to take months and the jury venire from which a trial jury of twelve will be struck will consist of 1,200 jurors! Where in the courtroom do they put 1,200 jurors?