In January of this year, I was a juror for a homicide trial in Dane County, which includes Madison. As the defense attorney, Dennis Burke
, promised during jury selection, it was indeed an emotionally intense experience. I am still thinking about it. What follows are some observations from jury selection, from the trial itself, and from reflections afterwards.
1) An initial set of 50 potential jurors was sent to the courtroom for jury selection, which took several hours. In the end, 15 were selected (12 jurors and three alternates to allow for illness and other events that might lead jurors to have to leave during the trial). The attrition reflected people trying to come up with excuses, some plausible and some not. I learned that if you say "I think everyone who is arrested is guilty" you will be excused. Hopefully the potential jurors (and there was more than one) who voiced this deeply creepy view do not actually believe it.
2) One thing judges judge is the quality of the reasons offered up by prospective jurors for why they should not get included in the jury. We (the selected jurors) critiqued these choices during some of the breaks. In general, we agreed with them, with the exception of one juror who seemed to have pretty good financial and personal reasons for wanting to avoid a long trial. I think that juror got kept around because (what was not obvious during jury selection) their professional skills were somewhat relevant to the deliberations.
3) I had heard, on many occasions, that having a doctorate provided a "get out of jury duty free" card. This was not correct in our case. As best I could tell, everyone among the 50 with a doctorate (or a professional degree) ended up in the final 15. We had a lot of both teachers and students in the pool because many, including me, had defered their jury call from an earlier date to the long winter break implied by the mid-to-late-January starting date for classes at most Wisconsin colleges. My sense is that there was strong positive selection on years of schooling between the original 50 and the final 15.
4) I came away with a positve impression of judge Jill Karofsky
. She ran an orderly but not severe courtroom and handled the jury selection with confidence.
5) Ismael Ozanne
, the District Attorney (DA) of Dane County, and Tracy McMiller (for whom I could not find a web page I was happy with to link to) of the DA's office, shared prosecutorial duties. Tracy had somehow injured her foot or ankle prior to the trial and hobbled around with a boot on (and, on a couple of occasions, used a single crutch). It appeared to me at least that Tracy was sometimes in non-trivial pain as she moved from her table to the witness stand or to the video screen. I think it was the collective opinion of the jury that the DA should have done a bit more of the walking around and Tracy McMiller a bit less.
6) The DA's team used a very large movable screen for many of their presentations of video and photographs, rather than using the AV equipment built into the wall of the well (and relatively recently) appointed countroom. A side effect of this was that for large chunks of the trial there was a long extension cord connecting the screen, which was placed near the witness stand, to an outlet on the floor near the table at which the DA and his retinue were seated. Said cord was a bit too short for the job to which it was assigned, with the result that it was tightly extended a foot or so off the ground. For some reason, it proved impossible to obtain an extension cord of adequate length even after the first day of the trial. Though the jury anxiously speculated during breaks regarding the potential of a dramatic fall, particularly by Tracy McMiller, one never happened, so the local OSHA office spent its days on other things. Still, the whole setup seemed both a bit amateur and quite unsafe.
7) The testimony of a prison informant provided the most bizarre interlude in the trial, as well as the best opportunity for the defense attorney to show off his courtroom talents (and perhaps to reveal a lack of sufficient coaching of the witness by the DA's team). The defense attorney gets the informant to admit to perjuring himself during his testimony remarkably quickly at the beginning of his cross-examination without appearing to even break a sweat. Things do not get better from there. I still wonder why the state would put up such a singularly unconvincing witness. One hypothesis is that I was not the intended audience for the informant's testimony with the implication that at least some other jurors should have found him more convincing than I did. That was not the case for the jurors I spoke with about it after the trial, but they were not a random sample. Another hypothesis was that the state was thinking like students who answer an essay question by writing down everything that they think they know that is vaguely related to the topic of the question, hoping that the correct answer will be in there somewhere, rather than just writing down the bits they are sure of. I take points off when students do that even if the correct answer is in there somewhere; in this case I thought the prison informant made the state's case as a whole less credible. You can judge the informant's testimony yourself by watching the video
; his part starts at about 19:00.
Here is Radley Balko on prison informants
8) I found the sociology of the jury really fascinating. At the start, everyone sort of kept to themselves. Over the days of the trial, a group that would go out to lunch together every day (to take advantage of the many fine restaurants near the courthouse) developed. It consisted of the intersection of the people on the jury who could afford to eat out for lunch every day with the ones who wanted a distraction during the lunch break rather than an opportunity to commune with their thoughts. More broadly, some people talked a lot during breaks, others not at all. The talking a lot behavior was positively correlated with education and income. I would be very interested in reading an ethnographic study of juries; suggestions very welcome.
9) I remain somewhat puzzled as to why the defense team chose not to have Daniel Lieske testify in his own defense. We received a little lecture about how we should treat the decision as uninformative but, of course, it is potentially informative. One possibility is that the defense thought (incorrectly) that they were winning and did not want to risk having Lieske go off message, which one can pretty easily imagine him doing after watching videos of his interviews with the detectives from the Sun Prairie police department. Another possiblity is that the defense attorney thought that the jury would not find Lieske compelling. I would have liked to listen to the discussions that led to this decision.
10) As noted above, the jury selection process yields a group of 15 people, 12 jurors and three alternates. For obvious reasons, which three of the 15 will serve as alternates (should none of the 15 have to leave the jury during the trial) is not determined until all of the evidence has been presented, at which time the names of the three alternates are selected by the judge out of a basket filled with slips of paper. As it turned out, I was the third of the three alternates selected. Though ex ante I would much rather have spent the trial days in my office working on papers, I had mixed feelings as I quickly gathered my things out of the jury room before deliberations began. The judge spent about an hour with the three alternates immediately after our selection, which provided an opportunity to talk about the thoughts we had about the trial and to ask her questions about some of the things that went on. I found that extraordinarily useful. She also, I am told, met with the jury after they turned in their verdict (as did a couple of the officers involved in the case, which seemed to me less of a good idea).
11) My informants among the jurors tell me that in the end the decision mainly revolved around the evidence related to the timing of the shots. We were told that if there was a break in the shots, that self-defense came to an end. Quite reasonably, once it is clear that the violation of rights has stopped, the right to self-defense goes away. If you take out a gun when someone attacks you, and they run away, shooting them as they run is not self-defense because the appearance of the gun has ended the violation of rights. Thus, the tesimony of the forensic pathologist regarding the timing of the shots, based on the nature and extent of damage and blood loss they caused, mattered, because she argued that some of the shots came when Jason Faber was already nearly dead, and thus meaningfully later than the initial shots. I have no idea of the quality of this forensic analysis - my limited understanding of the literature is that some parts of "forensic science" are rather dubious
(see also numerous pieces by Radley Balko). Had I ended up in the jury room and so been forced to vote on the matter, I likely would have comforted myself with the observation that the defense attorney had not taken the trouble to call an external expert witness to challenge this testimony.
12) It struck me during a dull spot on the second or third day of testimony that the entire enterprise of this trial represented a failure of the principal - namely the taxpayers - to adequately monitor their agent - namely the district attorney. The defendant had either admitted to or was obviously guilty of (in ways that would render a trial unlikely and, if held, short and sweet) numerous counts of lying to law enforcement, numerous offenses related to tampering with evidence, leaving a crime scene, transporting a corpse, and so on, as well as cocaine possession and (not revealed during the trial) cocaine dealing. Dan Lieske is about 60 years old and in, at best, mediocre health. The district attorney could easily have put him away for the rest of his natural life on the combined sentences associated with those offenses. Why then spend a couple hundred thousand dollars (my casual estimate of the value of everyone's time during the trial and during the parts of the investigation not required in the absence of a murder trial) of taxpayer money and jury time on a murder trial? It is hard for me to see much value to the taxpayers here, though perhaps I do not fully understand the institutions at play.
13) There are videos of the entire trial on line (including some periods where the jury is not present in the courtroom). I recommend the closing arguments
in particular. Tracy McMiller shines best here in my view, and the defense attorney delivers some TV-quality theatrics. The first six minutes or so, which take place without the jury in the room, support the view that the state did not think that their case was as strong as it turned out to be.
Here is the coverage of the verdict from the Wisconsin State Journal
Addendum: the sentencing of Daniel Lieske's live-in partner Michelle Goss