Jury Size - Does it Matter?

Posted on August 17, 2011 by Jeff Blackwell

Does the number of jurors on a panel matter?  Does it affect the fairness of the panel in deciding cases?  Moreover, does justice require a unanimous verdict?  Or, asked another way, does justice require that one lone dissenter prevent a jury panel from deciding a case?  These questions have long been debated by legal scholars.  Jury practices vary between different jurisdictions and these questions are not just ones for theoretical debate.  Instead, these questions present an opportunity to discuss our court system and how it will continue to operate in the best manner to administer justice fairly in our community.

Yesterday, the New York Times published an opinion piece on the budget crisis facing state courts throughout the United States.  I have written about Alabama's budget problems on several prior occasions.  I certainly would not advocate altering our jury system simply based on cost.  Justice is too important.  However, if the ends of justice could just as equally be obtained with a 6 person panel as opposed to a 12 person panel, then the issue is one that should be considered.  So, it's an interesting debate.

Recently, the Alabama Association for Justice (AAJ) asked me to write a short statement on the issue.  My memo to the AAJ is too lengthy to include here in its entirety.  But, I did find some interesting statistics and research quotes to get a debate started.  To begin, fixing the number of jurors at 12 is largely traditional and dates from medieval times.  In Alabama, that number appears to have been simply accepted as the correct number with little or no thought.  However, in the 1970's, the U.S. Supreme Court addressed the issue and held that 6 member juries were valid under the U.S. Constitution.  Specifically, the Supreme Court held that

we conclude that a jury of six satisfies the Seventh Amendment's guarantee of trial by a jury in civil cases.

While most states have continued to require 12 member juries for felony cases, this is not the case for civil juries.  By 2004, only 25 states continued to require 12 member juries for civil cases in their general jurisdiction courts.

A separate issue involves the requirement that all jurors be unanimous for the jury to reach a verdict.  We have all heard about trials where one lone person disagreed with all the other jurors, resulting in a mistrial.  Should there be a procedure that allows the jury to reach a decision based on less than a unanimous verdict?  I found a 2006 law review article that addressed this issue:

The unanimity standard, however, has significantly eroded for verdicts in civil cases.  Federal juries must be unanimous, but only eighteen states require unanimity and another three accept a non-unanimous verdict after six hours of deliberation.  The remaining states permit super-majorities of between two-thirds and five-sixths in civil cases.

The statistics I pulled on jury size and unanimity are now a few years old.  It is likely that they have changed.  However, the question remains - Would a change in jury size or the unanimity requirement impact the interests of justice?  If the ends of justice are still served by reducing the jury size or allowing for a verdict over a lone holdout, then it is certainly an issue to consider.  The court system would achieve a greater efficiency in moving cases and reducing costs if the standards were relaxed.  When you raise the topic with most attorneys, they immediately have a strong reaction either positively or negatively.  I would love to hear comments from both lawyers and non-lawyers on this important right that makes our justice system so special.

 


 

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A Reminder of the Danger Posed by Fire Ants in Nursing Homes

Posted on August 11, 2011 by Jeff Blackwell

Recently, I was reading a copy of The Safety Report when I found an article written by attorney Billy Cunningham.  Billy is an excellent attorney with the firm Burns, Cunningham & Mackey in Mobile, Alabama.  In past years, I have had several opportunities to discuss cases with the attorneys in this firm.  They approach every case with a great degree of preparation and skill.

The article was entitled The Danger of Fire Ants.  It provides some interesting history on the spread of fire ants throughout the southern United States.

Fire ants pose a danger to anyone working outdoors.  If you have ever seen fire ants swarm, then you know how quickly this danger can become a real injury.  While fire ants are generally found outside, they can come indoors foraging for food.  This is what presents a special danger to elderly patients in nursing homes.

In recent years, there have been several instances of elderly people being attacked by fire ants.  These vicious attacks have led to severe personal injuries and even deaths.  Several years ago, our firm represented an elderly lady who was viciously attacked by fire ants in her nursing home over the course of two nights.  Early in the morning following the second night of attacks, our client's daughter came for a visit.  What she first saw was a horrible scene of thousands of ants swarming her mother's bed.  She then heard screams and found her elderly mother in the bathroom with one of the facility's attendants desperately trying to clean the stinging ants off of her.  Her injuries were devastating.  However, the attacks could have easily been prevented by the nursing home.

Billy gives some great advice in his article.  Hopefully, he won't mind if I copy it here:

Nursing homes, hospitals and day cares – those places where the vulnerable are located- need to recognize this risk and take appropriate actions to assure the safety of their patients and wards. With appropriate interventions fire ants can be controlled. Consumers need to be aware and look for signs in their loved ones’ rooms or areas. Ask the facility if they are looking out for ants and other animals that could cause injury and who the pest control company is. There is no reason such attacks should occur if proper precautions are made in these areas where persons not able to protect themselves.

I would highly recommend reading Billy's article.

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Alabama Courts Face a Huge Budget Crisis

Posted on August 2, 2011 by Jeff Blackwell

Alabama's courts face a huge crisis that threatens the administration of justice in our state.  This crisis is not the fault of those running our court system.  In fact, these employees have worked very hard to keep the courthouse doors open despite having very few resources to do their jobs.  The administration of justice is one of the most vital functions of government.  Yet, the Alabama legislature and many other state legislatures chronically underfund the system.

Because of this underfunding, Alabama Chief Justice Sue Bell Cobb issued an Administrative Order in April allowing individual courts the option of closing on Friday.  The Chief Justice's Order also allowed local courts the option of cancelling jury trial weeks.  Here, in Madison County, our local Judges have worked very hard to keep the courthouse running.

Despite their efforts, the system statewide faces devastating lay-offs by the end of this month.  According to an article in The Birmingham News, these lay-offs will cause about 1/3 of the remaining employees in the court clerks' offices around the state to lose their jobs.  That is "remaining" employees.  This is not the first round of lay-offs.  Instead, it is a lay-off of even more employees from an already understaffed system.

A recent article from The National Law Journal puts the crisis in perspective.  According to the article:

All told, too many of our judiciaries receive as little as 1% or less of the state budget pie and none more than 3%. In other words, the entire third co-equal branch of government receives, on average, less than some individual executive departments.

You know the crisis in Alabama is especially bad when the same article begins by citing the following example from our state:

When you call a certain family court in Alabama you get a prerecorded message at the courthouse apologizing that no one can take your call. It's not the weekend and it's not off-hours. It's two o'clock in the afternoon on a Tuesday and, as the message explains, budget reductions from the statehouse mean there is no money to staff the line.

This is a family court, where matters at the core of our lives are decided. Marriages are concluded, families are divided and, perhaps most importantly, children are considered. That unanswered call is from a battered spouse trying to get a protection order. It's a parent trying to get information about a custody hearing.

Today, the Huffington Post also published an article on the nationwide crisis facing our state judicial systems.  That article discusses a case in another state that has been pending 10 years without a trial.

Our court system is a vital, necessary part of our government.  The system has functioned with far fewer resources than other government agencies, for years.  If we care about a system of justice that operates for all our citizens, we must insist that the court system receives a fair share of necessary funding at every level.

 

 

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