That this comes from the Lori Drew case is tangential, as it really aligns more closely with the interests of Anne Reed (ABA Blawg 100 star) at Deliberations in her never-ending battle to convince Philistines like me that there is some rational basis to approach the selection of jurors. Or, in contrast with my views, it ain’t just voodoo.
From Orin Kerr at Volokh, who follows this trial with far greater attention then the WSJ Law Blog (which has just figured out that this case might involve some controversy), an interview from the St. Louis Post Dispatch of jury foreperson, Valentina Kunasz.
Most jurors believed a felony conviction would send a message that Internet sites should be better regulated for fraud, the forewoman, Valentina Kunasz, said in a telephone interview.
“I would have liked to see this lady go to jail to change the way Internet sites are run,” said Kunasz, 25, a former hairdresser who lives in Los Angeles County.
Most messages from 25 year old former hairdressers involve changing appointments for a dye job, but Kunasz seems to have different agenda. According to another interview by Kim Zetter of Wired (also via Orin):
Kunasz said despite all the debate outside the courtroom about the prosecution’s use of an anti-hacking statute to charge Drew for violating a website’s terms of service, jurors never considered whether the statute was appropriate. However, she said she agrees with the idea that users who violate a website’s terms of service should be prosecuted.
“The thing that really bothered me was that [Drew’s] attorney kept claiming that nobody reads the terms of service,” she said. “I always read the terms of service…. If you choose to be lazy and not go though that entire agreement or contract of agreement, then absolutely you should be held liable.”
And there’s the rub. In this case, given its notoriety and attention, the effort to find fair-minded jurors, how did H. Dean Steward end up with the only person in the world who actually reads the terms of service? Worse still, one who has such a chip on their shoulder that they believe anyone who does not read the TOS is lazy and should go to prison for it?
And note that Kunasz thought that “users who violate a website’s terms of service should be prosecuted,” so anyone I find to violate my one rule better hope that she’s not on your jury, because you don’t have a chance with her.
One of the great joys of an investigative press is that we get to hear from jurors who enjoy their 15 minutes post-trial explaining their views on life, hairdressing and the internet. We are left to wonder, however, how these nice folks, performing their civic duty by sitting on a jury, harbor the secret thoughts in their heads that lead them to say things like this.
One would expect, at minimum, that the foreperson of the Lori Drew jury would not be the only living person who never neglects to read a websites TOS, and who is of the view that anyone less diligent than she deserves to be locked away. Wouldn’t something like this be, oh, of interest on voir dire? It certainly strikes me as the sort of thing that everybody would want to know.
So if jury selection, the process in all its art and science, fulfills its purported purpose, how could this have happened? Or is it all just voodoo?
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
I would love to see the transcripts of the jury voir dire after seeing this. Frankly, I find the hairdresser’s statement difficult to credit and possibly some kind of rationalization.
I admit — as an attorney — trying sometimes to read the TOS. Frankly, they bore the crap out of me and I don’t think I’ve ever been able to actually complete the job.
Nevertheless, it seems like there should have been some way to probe for this sort of attitude, even the attitude of being willing to lie about such things as being an avid reader of the TOS before joining websites, using software, etc.
Frankly, this story is the sort of thing that makes me believe that while it may not be voodoo, our jury system is fatally flawed. Maybe we DO need racially-mixed-and-balanced pools of professional jurors, trained in logic and screened for the ability to set aside prejudices.
I have just added Ms. Kunasz to the list of people who are not permitted to use my blog, pursuant to its terms and conditions.
Like Rick, I would like to read the transcript of the voir dire. However, unlike Rick, I do not think the answer is professional jurors.
It is hard to understand why the TOS issue wasn’t raised in voir dire in such a way as to elicit these responses from the juror. Maybe it was and the juror lied. Maybe it was, but was poorly done, and the issue was easily avoided by the juror. It seems from the comments and some of the post-verdict interviews, that this would have been an issue that needed to be confronted head on.
But, without knowing what Mr. Stewart’s exact theory of the case was, there is no real way to know what topics he should have voir dired on. There has to be a context for the voir dire and that context is the theory of defense.
It seems to me that voir dire is only voodoo when it is engaged in by lawyers who are not prepared and who do not have a solid case theory. With a solid case theory, the lawyer should be able to get into all the issues that matter, in such a way as to allow his or her choices for strikes to be made in a logical and well-thought-out way. No need for voodoo or casting rune stones or reading tarot cards.