A Trial By Jury

I’ve never served on a jury. I’ve come no closer than voir dire and that only once, on a sexual assault case in which defense counsel rejected me. I know of at least 30 students who’ve been called for jury duty since January, yet I’ve not received a jury summons in at least eight years. I’m quite curious about what it would be like to participate on a jury. Recently I experienced it vicariously.

The vehicle for my jury experience was the audio book of A Trial by Jury, D. Graham Burnett’s account of his service as a juror on a New York City murder trial. It’s a fascinating glimpse into the dynamics and deliberations of one particular jury. Burnett is an academic historian who finds himself elevated to jury foreman shortly before jury deliberations begin. His brief and entertaining summary of the trial testimony sets the stage for the heart of the book, the days of discussion, argument, high emotion, and drama that constituted the deliberations.

Burnett states up front that the book is his personal account of what happened on the jury: he did no independent investigation of the evidence and interviewed none of the other jurors. He acknowledges that the other jurors would have quite different stories of how they arrived at their verdict. Viewing this jury trial through his eyes is a revelation. He’s an articulate and exceeding thoughtful–had I been a fellow juror I might have found him maddeningly thoughtful–stranger in a strange land. He began the experience as a legal naif (he studies the history of science) and we learn as he learns.

Burnett doesn’t preach. His stated goal is to turn the trial, the testimony, the jury’s contentious arguments over the defendant’s guilt, into a “text” (his word) that one can return to, again and again, to find meaning. He succeeds. This is an excellent read (or listen–Burnett read the audio book edition) for any one interested in the criminal justice system, or the ways in which non-lawyers understand and engage with the law.

Burnett succeeds in part because of his honesty. I give away neither the story’s tension or its ending if I reveal that Burnett decides early in the trial that a hung jury is his goal. Each time he repeated this goal my frustration increased. As smart as he is, Burnett never seemed aware that ending the trial with a hung jury would pass the buck, most likely putting the expense and burden of deciding the defendant’s guilt on another trial and another jury. Burnett writes that “[a] hung jury would turn our jury duty into a symposium, an intensive discussion group, an interpretive seminar . . . It would mean something different to everyone, like art.” Like art? LIKE ART? Every tiime he wrote in this vein I nearly drove off the road. Yet this is why A Trial By Jury succeeds. As the jury proceeds to its verdict Burnett reasons his way to profound insights about the nature of law and justice, insights that shape the jury’s result. He tells his story honestly and leaves to his readers the search for its meaning.

Go, gray, go

My Introduction to Law students take their first exam today. Many are wondering how to prepare for my multiple-choice, open-book exams–clearly, they reason, such an exam will not consist of definitions.  A recurring theme in yesterday’s discussions during my office hours was the contrast between the “binary thinking” (yes/no, black/white, right/wrong) characteristic of many math, science, and engineering courses and the “maybe this, maybe that” thinking characteristic of legal analysis.  One student said to himself as he stood to leave my office, “think gray.”

Excellent advice for students of the law:  Think Gray.  Just remember that on each multiple-choice question, there will be one answer that is better than the rest.

#51 & #52

In the disappointments of this season, in which the wheels came off the Red Sox bus after hitting a mid-August speed bump in the form of the New York Yankees, David Ortiz’s excellence has been consistent. It was a thrill, then, to be at Fenway tonight to see him break the Red Sox season record with home run #51 on the first pitch he saw in the first inning. He capped his performance with another solo shot in the seventh. This ticket stub I will keep.

Law school will always be there

One unofficially part of my university life involves counseling students about career choices. Students interested in attending law school often ask me whether they should go immediately after graduating from college. My stock answer is no, it is better to wait. These are my reasons:

  • You won’t forget how to perform in school. When you graduate from college you’ve been attending school for 17 consecutive years or more. If you’ve had any success as a student—and if you haven’t, why are you thinking of going to law school?—the rhythms of academia course through your veins. Most people who’ve been good students can return to a student’s life (or, for that matter, adjust to a teacher’s life) after years away from school.
  • Law school, indeed any graduate school, is extremely expensive: in the range of $100-$150,000 all-in for three years. Why not kick the tires more thoroughly before you put yourself in debt, or spend such a large pile of someone else’s money?
  • Law is not for everybody. You don’t have to dig to find lawyers deeply dissatisfied with the practice of law. The legal career you desire with perfect clarity at 22 may lose its luster when you actually work with lawyers and see what we do, or as you watch your friends go through law school.
  • Success as a practicing lawyer is not just about book smarts. Common sense, practical experience, and knowledge of human motivations, are all important in day-to-day practice. Whatever your life experience has been at the time you graduate from college, you’ll have that much more of it after living and working in the real world for a few years.
  • Law school, particularly the first year, requires a huge commitment of time and energy. You need to be prepared to focus exclusively on law school, to immerse yourself in your law school’s community. You may have been the life of your college dorm, but your old friends will roll their eyes when you giggle uncontrollably about the Rule Against Perpetuities and Shephardizing. As unbelievably mature and wise and smart as you are at 22, you will be even wiser, smarter and more mature, and more ready to commit the time and energy required for the first year of law school, when you are, say 24.

Are there considerations–financial, intellectual, logistical–that counter these reasons?  Of course.  This is one-size-fits-all advice.

An expensive lighter?

A few days ago a student sent me an email that raises interesting questions about data privacy. She’s given me permission to post her question and my response here. I’ve edited her email for brevity and anonymity.

I have a law question for you. Last night I was at a bar and these marketing people from Philip Morris are coming around. They scan your license onto their computer to make sure you are 21, then you sign the digital computer they have with them saying you are a smoker and you get a free Zippo lighter, which is worth more than your average lighter. I am not a smoker but my friend said that he had done it all the time and it was fine and that it was just for marketing purposes. I told the promoter I was not a smoker but she said just to say I am and I get the free lighter. I felt uneasy about it but the woman told me it is just for demographics and everything. One of their questions asked what kind of cigarettes I smoke. I said I don’t know, she said “Marlboro Lights” and my friend answered “sure.”

She also gave me a privacy card. Under personal information it says:

We collect information you submit to us and maintain information on your activity with us. We may obtain information from others to verify your age to ensure you are 21 years of age or older. We may obtain additional information about you, such as demographic and lifestyle information, from others.

Under uses it says:

We use the information you submit to add you to our adult smoker mailing list and send you promotional materials, to provide you with items you request from us, to verify the information you have submitted to us, to customize offers to you, and to communicate with you. We do not sell or share information about you with others for their own marketing. We share your information with vendors we’ve hired to perform services for us.

There is a number I can call to take myself off the mailing list where you have to say your name, address, and birth date and I assume they will take you off. I just tried to do it online but I guess my name is not in the system yet.

Other important information says:

We take steps to protect the information you provide against unauthorized access and use. This statement does not apply to pmusa.com, smokersignup.com, or smokerservice.com which have their own privacy statements.

My question to you is did I put myself in serious legal trouble? Can I be screwed out of getting health insurance if I say I am a nonsmoker?

This is my response:

I don’t think you have anything to worry about, but you aren’t crazy for asking these questions.

It is highly unlikely that your response to the “do you smoke” question will wind up in the hands of your insurance company. If it should–a huge if–then just tell them the truth. You answered the question “yes” because you wanted a free lighter. The context in which you answered the question (in a bar, in response to a promotion) is hardly one calculated to produce meaningful, truthful responses that would stand up to cross-examination in court. Keep the lighter and relax.

I agree that this scenario raises very troubling questions. While it is unlikely your answer will wind up with your insurance company, it is not impossible. Bits of our personal data are scattered about among dozens of databases. It’s a small step–lots of computing power, perhaps, but conceptually a small step–to link those bits together. Right now marketing companies are conducting most the data mining that we know of. (The National Security Agency may be compiling our data for other purposes.) Knowing that I own one espresso machine, two dogs, and three fly rods is useful information to Lilly, PetCo, and Orvis. According to the Phillip Morris privacy policy, the company won’t sell your data to third parties for their own marketing purposes, so Bic should not suddenly deluge you with offers to purchase Bic lighters. Phillip Morris has a strong business interest in keeping its list of smokers from insurance companies. We Americans are pretty complacent about the privacy of our personal information, but imagine the response if Phillip Morris, Budweiser, and Krispy Kreme released detailed customer lists to the health insurance industry. You’d see Congress swing into action.

The language you questioned about disclosure required “by law” applies to data disclosure compelled through litigation, or otherwise in response to a subpoena or other legal process. It doesn’t cover requests by insurance companies for customer data, and their curiosity is not sufficient grounds to justify responding to a subpoena.

The Threat of Art

Turkish novelist Elif Shafak must defend herself in court in Istanbul for violating Article 301 of the Turkish Penal Code. The charge? Prosecutors claim that she insulted “Turkishness.” How did she insult Turkishness? In her novel The Bastard of Istanbul a character refers to the deaths of Armenians at the hands of Ottoman Empire in 1915 as genocide. Yes, she is being prosecuted because of the words of a character in her novel. If convicted she could face up to three years in prison. Turkish novelist Orhan Pamuk faced down similar charges in 2005. Coincidentally, Shafak is expecting the birth of her first child this week.

She dodged this charge once, convincing prosecutors earlier this year that statements made by fictional characters were not subject to prosecution. (She said “if there is a thief in a novel it doesn’t make the novelist a thief,” a statement so indubitable that it should end the discussion.) After the charge was dismissed a right-wing group that opposes Turkey’s membership in the European Union succeeded in filing a new complaint and getting the charges reinstated.

The penal code violation Shafak faces is a skirmish in a larger, more fundamental battle. The European Union requires member nations to conform their laws to certain standards, including guaranteeing freedom of expression. A successful prosecution under Article 301 would throw Turkey’s failure to guarantee free expression in the face of those promoting full Turkish membership in the EU. Said Shafak “I believe they want to derail the EU process because that would change many things in the structure of the state and the fabric of Turkish society . . . They would rather have an insular, enclosed, xenophobic society than an open society.”

Isn’t this the primary source of conflict in today’s world?

Viking Penguin will publish an English version of The Bastard of Istanbul in January. Shafak is an assistant professor of of Near Eastern Studies at the University of Arizona in Tucson.

(Source: Susanne Fowler, “Novelist accused of insulting Turkishness,” Boston Sunday Globe, Sep-17 2006, p. A16)

Big Dig, Big Liability?

The Boston Sunday Globe reported yesterday that the original design for the ceiling of the tunnel connecting I-90 to the Ted Williams Tunnel, a portion of which collapsed on July 10 and killed motorist Milena del Valle, called for twice as many anchor bolts to support the ceiling’s heavy concrete panels. (Scott Allen & Sean P. Murphy, “Designer proposed more bolts in Big Dig,” Boston Sunday Globe, Sep-17-06, p. 1) Big Dig construction manager Bechtel/Parsons Brinckerhoff changed the design from 4-bolt to 2-bolt anchors, and tested the bolts’ strength using a method “developed by an obscure Portugal-based group,” the International Society for Rock Mechanics, that was not intended for bolts anchored in concrete roofs. A Globe chart shows that the bolts, each of which carries a load of 2,600 pounds, were tested using a force of 3,250 pounds. A consulting engineer interviewed for the Globe article stated that the rule of thumb was to test bolts at twice their carrying load–in this case, 5,200 pounds. Bolts anchoring the ceiling in the tunnel’s high-occupancy vehicle lane, built at the same time, were tested using a force of 6,350 pounds.* Current standards would require testing the bolts using between 10,000-15,000 pounds of force. The Globe reports that five bolts that passed the 3,250-pound test “came loose shortly after the ceiling was hung from them.”

A grand jury is scheduled to be seated in October to pursue possible criminal charges in del Valle’s death. A central question will be whether Big Dig managers exercised the appropriate duty of care in designing the ceiling. Evidence that (1) the ceiling was originally designed to require more anchor bolts, (2) managers modified the original design because they believed “a 2 bolt anchor plate would be sufficient” to support the multi-ton concrete panels, (3) managers tested the bolts’ strength using standards less rigorous than industry rules-of-thumb, (4) some bolts passed these tests but failed when subjected to their working loads, and (5) managers knew of such failures but didn’t either redesign the ceiling’s anchoring system or more carefully supervise its installation could establish the basis for criminal culpability. Is Bechtel/Parsons Brinckerhoff worried? An unnamed company source (not authorized to discuss its legal strategy**) delivered this quote: “[From] everything I’ve heard from our lawyers, the genuine risk of criminal prosecution or criminal conviction is extraordinarily low.”

The article reports that the ceiling design firm ultimately agreed to the 2 bolt anchor design “assuming proper installation and quality of the product materials.” The article goes on to describe various problems that arose during installation including incorrect mixing of the epoxy components, failure to apply adequate epoxy material, and use of the wrong drill bits for epoxy bolts.

We’ll watch how this unfolds over the coming months. And years.

* One wonders why different safety tests were used on adjacent lanes in the same tunnel built at the same time.

** Of course, no one authorized to discuss legal strategy would produce such a juicy quote.


On September 12 The Wall Street Journal ran an article titled “Will Wikipedia Mean the End Of Traditional Encyclopedias?” It featured a back-and-forth conducted via email between Wikipedia founder Jimmy Wales and Encyclopedia Britannica editor-in-chief Dale Hoiberg. There are no surprises–Hoiberg and Wales defend their respective platforms, with Wales touting Wikipedia’s openness and breadth of contributing community and Hoiberg citing Britannica’s tradition of scholarship and editorial control. It actually becomes fairly testy by the end. One interchange did cause me to spit out my coffee:

Mr. Wales: Artificially excluding good people from the process is not the best way to gather accurate knowledge. Britannica has acknowledged the value of having multiple contributors, although of course because they are proprietary rather than freely licensed they would have a very hard time attracting the kind of talent that we have.

Mr. Hoiberg: I can only assume Mr. Wales is being ironic when he says Britannica would have a hard time attracting the kind of talent that Wikipedia has.

(Emphasis supplied) I’ve yet to be convinced by the Internet-utopian argument that more cooks make for a better meal. I’m not talking about open-source software. Conveying authoritative information is not the same as writing functional code. Wales’ article of faith is that more contributors = more qualified contributors = better quality content. The irony is that Wikipedia is moving towards less openness and more control. The days of “hey, gang, let’s write an encyclopedia” are over. Britannica, on the other hand, is no longer defined by its multi-volume bound encyclodpedia (Hoiberg notes that “we publish principally on the Internet”) and has moved towards greater responsiveness and timeliness.

This is one of those Internet litmus-test issues that determines whether you’ve drunk the Kool-Aid: Wikipedia or Britannica? Open-source all the time or editorial control? A “transparent” or proprietary model? “Transparency” is not always a virtue. Just ask the Emperor in the new clothes.

Losing Face(book)?

The Facebook stepped into trouble this week. It introduced two features, News Feed and Mini-Feed, that allowed users to track their friends’ activities. Join a group, post a photo or comment, break up with a boyfriend or girlfriend, or change your profile and Facebook would notify all of your friends. This is too much transparency even for Facebook users, who immediately protested the features. Within a few days a Facebook group, Students Against Facebook News Feeds, had over 600,000 members, press coverage, and the attention of Facebook’s creators. A Google News search of “facebook privacy protest” a few moments ago produced about 246 news outlet hits. See Facebook Feature Draws Privacy Concerns (NY Times), Facebook Changes Spark Protest (Times of London), Social website hit with privacy protest (Boston.com) for representative coverage.

A short time ago Facebook founder Mark Zuckerberg posted a mea culpa of sorts on the Facebook homepage. It begins “we really messed this one up” and apologizes to users–not for News Feed and Mini-Feed themselves, but for the lack of control over their application. After “coding nonstop for two days” (I could probably retire on what they spent on Red Bull) Facebook rolled out new privacy controls, allowing users to determine which bits of personal news they wish to share with friends. So, for instance, a user could elect to notify friends of changes in relationship status and new wall posts, while withholding notice of profile changes and comments on photos. Zuckerberg hopes, no doubt, to defuse the storm and deflate a user boycott next Tuesday.

I’ll confess that I missed this story until a former privacy-law student grabbed me in Starbucks yesterday evening to tell me about it. He expressed amazement both at Facebook for springing this feature on its community, and at the passion of the protest. In my class last spring many students embraced Scott McNealy’s you-have-no-privacy-so-get-over-it posture. He was surprised and, I think, pleased that so many Facebook users did not roll over on this one.  Whether they were protesting a stalker-esque loss of their privacy, or dreading a deluge of trivial “news” about their friends, I don’t know.

Employees & abortion beliefs

Law.com recently reported on two employment cases involving terminations relating to the respective employee’s positions on abortion. They provide an interesting starting point for a discussion of employers’ right to terminate employees for personal beliefs.

In Curay-Cramer v. The Ursuline Academy of Wilmington, 2006 U.S. App. LEXIS 13956, (3rd. Cir. 2006) English teacher Michele Curay-Cramer sued Ursuline Academy, a private Wilmington, Delaware Catholic school, for employment discrimination under Title VII. The school fired Curay-Cramer after she signed her name to a newspaper advertisement supporting the legal right to an abortion on the 30th anniversary of the Supreme Court’s decision in Roe v. Wade. The school’s principal told Curay-Cramer that she was “deeply troubled by her public support of a position inimical to accepted Catholic doctrine.”

Curay-Cramer relied in part on Title VII’s opposition clause: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees. . . because he has opposed any practice made an unlawful employment practice by this subchapter . . ..” 42 U.S.C. § 2000e-3(a). She argued that the opposition clause “protects any employee who has had an abortion, who contemplates having an abortion, or who supports the rights of women who do so,” but the Third Circuit didn’t reach this argument in ruling for the employer. It held that Curay-Cramer failed to state a claim because her endorsement of the pro-choice advertisement was not a protected activity. “[P]ublic protests or expressions of belief” are not protected in themselves without connection to an employer’s alleged illegal employment practice.

This is what the advertisement said:

Thirty years ago today, the U.S. Supreme Court in Roe v. Wade guaranteed a woman’s right to make her own reproductive choices. That right is under attack. We, the undersigned individuals and organizations, reaffirm our commitment to protecting that right. We believe that each woman should be able to continue to make her own reproductive choices, guided by her conscience, ethical beliefs, medical advice and personal circumstances. We urge all Delawareans and elected officials at every level to be vigilant in the fight to ensure that women now and in the future have the right to choose.

The court stated that the advertisement can’t be construed to comment on the school’s alleged policy of termination the employment of women who have had, contemplated having, or support the right to have an abortion.

In the other (the article provides no citation) a Wisconsin federal district court upheld Wal-Mart’s termination of a Roman Catholic pharmacist who refused to fill birth control prescriptions. The pharmacist, Neil Noesen, argued that the termination violated his First Amendment right to free exercise of his religious beliefs. The court disagreed, holding that Wal-Mart reasonably accommodated Noesen’s belief by assigning other pharmacists to fill birth-control prescriptions and stating, according to the article, that saying Noesen “went too far by putting customers who called about birth control on hold indefinitely and by refusing to get service for those who showed up in person.”

(Shannon P. Duffy, 3rd Circuit Denies Fired Teacher’s Suit Over Support for Abortion Rights, The Legal Intelligencer, 06-08-2006; Ryan J. Foley, Federal Judge Dismisses Suit by Pharmacist Who Refused to Dispense Birth Control, The Associated Press, 06-05-2006)