Unlike many whose thoughts and feelings on the law exist only in the confines of their head, Norm Pattis’ days are spent in the well doing what lawyers are meant to do.  Norm tries cases.  So when Norm comes up with an idea for change, there are usually two things you can count on: they will be radical and raise an issue that needs to be addressed.  He does so again with his question, what’s wrong with letting jurors talk?

I’ve tried more cases than I can recall, but I know this much is true: A courtroom is all about energy and bounce. Sure, there are the facts and the law. But the facts and the law are merely disconnected pieces of data. Unless they are fitted into a narrative structure, given energy, they are meaningless. And unless that narrative structure is heard by the jury, it is merely sound and fury, signifying nothing.

I’ve watched sometimes as adversaries railed away at the jury, stamping their feet and hissing in rage. When I see the jurors look away, or look down, I know the message is not being delivered. I wonder how many times I have howled into the void.

So I try to listen with my eyes. I want the jurors to tell me they’ve heard. I speak, I look and I listen. And when I see recognition in the eyes of one juror, I move on to another. I talk to each juror in turn, and I know my task is near complete when each has given me the cue that they have heard.

Norm goes on to talk of his summation in the trial he just completed, where his method of using rhetorical questions elicited more than the normal reaction.

The other day, I asked a rhetorical question. I paused. A few jurors nodded. The eyes of another sparkled. I asked another question. A different juror nodded. And then the third question. This time a juror forgot the barriers of the courtroom and answered my question, simply and clearly. He returned the gift I had given.

“You cannot answer counsel,” the judge was quick to interject. Why not?, I almost asked. Why are we not allowed to communicate with the folks who decide our client’s fate?

Why not indeed?  One of the most difficult realizations about trial is that lawyers, as senders of information, cannot determine whether jurors received it.  Or if they did, whether the recognized it as we want them to.  Consider the withering cross, where we finally get the witness to stumble and fall, admit that he was wrong, or better still, lied.  In our minds, we’re killers, heroes, winners.  We want to do with Tiger Woods fist pump, we’re so pleased with ourselves.

Does the jury get it?  Were they even listening?  And if both, do they recognize how significant it is, that the witness who lied about one thing will lie about others?  Or will they shrug and say, so what?  So what if the witness lied about whether it was sunny or overcast.  He still say the defendant pull the trigger, right?

As we talk to a diverse group of twelve, it’s hard if not impossible to know whether our words, meant to say one thing, are understood.  Each juror brings their own ideas to the panel, their own understanding based on their own experiences.  We pretend that we can know them through voir dire, but we can’t.  And the words that resonate with juror number 2 may turn off juror number 11.  We just don’t know.

If a juror gives the gift of caring, why are we forbidden to return the gift with a response? Jurors should be free to speak with their voices during closing argument. Until they have that freedom, we must become adept at listening with our eyes.

But there’s a problem here too.  Just as the criminal defense lawyer would want to engage with the jury, so would the prosecutor.  We want them to nod as we explain the case, the defense.  They want them to nod too.  We want them to feel our arguments, our view of the facts, our reasoning.  So do they.

What would happen if the juror returned the gift of caring, but not to us.  What if he gave the gift to the prosecutor, who received the gift gratefully and went down the road invited, perhaps about the victim, the things that bring tears to everyone’s eyes but do nothing to show the defendant’s guilt.  What if it was a flagrant appeal to prejudice and speculation, exacerbated by the response of a juror that the defendant ought to die for what he did to a child? 

On the one hand, it clarifies our effort to read their eyes, to have a glimpse at what goes through their mind.  Sure, we believe that we’ve mastered the magic of understanding without knowing, but the verdict may well dispel our hubris. 

The alternative is a melee in the courtroom to manipulate the jurors to speak out, to voice their view and understanding.  Maybe like an old-time tent revival, we can get them worked up to the point where they praise the defense and raise their hands to the law.  Or maybe one will do that for the prosecution, and spread their fervor to the others.

One of the things we hope for in the process of closing our cases is to keep the jury’s attention, to hold onto them long enough to make our case as best we can and get our point into their heads.  Whether they will agree with us, vote our way, has yet to be seen, but at least the opportunity to speak was there.  If the jurors feel free to speak their minds in response, before we finished our summation, we may not get the chance to say what we have to say. 

The jury can give us a gift.  They can also take it away and give it to the other side.  We might be worse off that way.