After the verdict, attorneys have learning opportunity

September 23, 2015

On July 14, jurors in the Richmond Hill house explosion trial found defendant Mark Leonard guilty of all 53 charges, including murder. When defense attorney David Shircliff looks back on that day, he recalls the aftermath of the trial being chaotic, leaving no time for what he considers one of the most important steps of a trial: jury feedback.

Shircliff Shircliff

“The judge in Richmond Hill said, ‘I will go back and talk to the jurors and thank them and let them know they don’t have to talk to anybody they don’t want to,’” recalls Shircliff, an attorney and trainer at the Marion County Public Defender Agency and professor at IU Robert H. McKinney School of Law. “When the judge was done talking, prosecutors, police and families of the victims (were) outside the jury room, and it was more like a wedding reception as opposed to a time for feedback. There wasn’t a place to do that where we thought we could have good interaction from (the jury).”

In both federal and state courts, jury feedback occurs after a trial is over. It allows trial attorneys to get a critique of their performance in the courtroom and provides jurors with the opportunity to express any confusion or pinpoint moments of being persuaded during a trial. Despite how helpful attorneys may find this additional time for exchanges, though, it isn’t always part of the process.

willis-mary-mug.jpg Willis

“Jury feedback is something that’s (left) within the judge’s discretion,” said Henry Circuit Court Judge Mary Willis. “It depends on the trial. They (jurors) are under no obligation to discuss their decision with anyone. The judges balance the desire to protect jurors based on how tense the trial was. In some cases it’s a great idea, in others it’s not.”

“I can see why some judges may choose not to” include feedback, added Marion Superior Court Judge Mark Stoner. “I was a trial lawyer for 12 years — I was used to dealing with the press and with jurors, (but) fewer and fewer people do it.”

stoner-mark-mugBW Stoner

When a judge decides to include time for jury feedback, the discussion between attorney and juror can take place either in person after a trial or over the phone at some point later on.

“Sometimes I’ve asked other members of my firm to make calls to jurors afterward in hopes (I’ll) get more candid and constructive criticism,” said attorney Bryce Bennett, a partner at Riley Bennett & Egloff LLP.

smith Smith

But according to Donald Smith, also a partner at Riley Bennett & Egloff LLP, some jurors might consider such calls an intrusion, which leaves lawyers walking a fine line. Jurors are already giving time to serve during a trial, and deciding whether to ask them to extend their service to include a time for feedback or follow-up conversation raises questions. Lawyers must be careful not to abuse the privilege, Smith said.

Shircliff pointed to an example.

“I think back in maybe 2010 or 2008, I was involved (in a case) where the prosecutor basically shamed the jury because they found the client not guilty,” he said. “I know one of the things that happened was the prosecutor said, ‘Let me tell you what we couldn’t present.’ The jurors might walk away feeling like crap.”

bennett-bryce.jpg Bennett

Despite such incidents, Bennett, Shircliff and Smith still see positive aspects stemming from the inclusion of jury feedback. It not only provides lawyers with an inside look at their overall presentation for one case, but prepares them for likelier success in future cases.

“My first couple of cases (were) most helpful,” Bennett said. “I won them and indicated my position to the trial. Later on in my career I think I tried 17 or 18 cases before I first lost one. It kind of hurts to hear they didn’t agree with your witness (or) your case, but it’s always helpful because you see what’s in the heads of the jurors.”

“You learn all kinds of things about how juries process information — what things they hear and don’t hear,” added Shircliff.

Smith recalls jury feedback being especially helpful following a past case in federal court.

“I found out that it was crucial to the case that the jurors felt every time my witness was answering my questions, she was very definite in her answers — but with the defense attorney, she’d trail off. I had no idea that was happening,” Smith said.

According to Willis, jury feedback is most often included in property cases and civil cases, with a primary outlier being highly emotional cases. When a trial includes graphic, disturbing evidence or testimonies that are traumatic, by the end jurors can be emotionally exhausted.

However, Smith believes jury feedback could be beneficial not just in emotionally tense trials, but in all types of trials.

“I think it would apply any time there’s a jury. ... My practice is employment law, and it would be absolutely wonderful if we could find out what the jurors are thinking.”

While the inclusion of jury feedback varies among judges, Bennett recommends that attorneys make the initial effort.

“Unless the judge orders that you not talk to the jurors, a lot of times you can hang out in the hallway, win or lose, and wait for the jury so you can talk to them. I can’t imagine not trying to do that.”

And besides, many jurors might encourage it.

“A lot of jurors are really excited about the verdict. They want to talk about it. It’s their chance to really sound off,” Bennett said.•


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