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CHAIN DRUG REVIEW CATEGORY MANAGEMENT ROUNDTABLE
The changing consumer was top of mind among retailers and suppliers during a recent category management roundtable conducted by Chain Drug Review in conjunction with MPG. Manufacturer and Retailer panelists delved into this, as well as the disruptive changes reshaping the marketplace in both the consumer products and retail sectors.
Category Managers Grapple with Disruptive Changes in Today's Consumer Marketplace
2017 CATEGORY MANAGEMENT ROUNDTABLE
NEW YORK — The changing consumer was top of mind among retailers and suppliers during a recent category management roundtable conducted by Chain Drug Review in conjunction with Market Performance Group (MPG).
Much of the discussion centered on the changing consumer but it also considered the disruptive changes reshaping the marketplace in both consumer products and retail sectors. As the panelists delved into these complex themes they also looked down the road to the future industry landscape, acknowledging the positive shift toward growing consumer confidence — even as more people are shopping a variety of retail outlets and channels, including e-commerce.
The forum also tried to answer the questions "What will category management look like in the future?" and "What will the role of category management be?"
The group addressed other changing strategies as well, such as the future of joint business planning, the alignment process between the customer and seller, and the emerging trends of online shopping and e-commerce.
The panel also tackled such topics as shopper loyalty — how to keep consumers coming back with so many options, both in product and in available shopping channels — and tried to come up with strategies that both retailers and suppliers can employ to drive loyalty toward brands and stores.
The roundtable didn't just touch on change happening from the point of view of the consumer, but discussed how those in the industry can be agents of that change as well.
The retailers taking part in discussing these important and multifaceted topics included:
Bill Bergin, group vice president of health and beauty at Rite Aid Corp.
Tim Buskey, vice president of consumer products at AmerisourceBergen Corp.
Day Gooch, vice president and divisional merchandise manager at The Vitamin Shoppe.
Heather Hughes, divisional vice president and general merchandise manager of seasonal and general merchandise at Walgreens.
Steve Light, vice president of consumer health at Cardinal Health Inc.
Chris Savage, senior director of consumer products at McKesson Corp.
Annie Walker, vice president and divisional merchandise manager of O-T-Cs at Walmart.
Suppliers included in the roundtable were:
Janet Carter Smith, vice president of retail at Molnlycke Health Care.
Michael Law, senior director of customer strategy and planning at Edgewell Personal Care.
Jeff Shirley, vice president of national accounts at iHealth.
Kim Sines, senior vice president of sales at Hello Products.
Kyle Stenzel, senior vice president of sales at Combe Inc.
Kristine Urea, vice president of category management and shopper strategy at The Nature's Bounty Co.
Serving as moderators for the roundtable were Bob Candelora, managing partner at Retail Insights; MPG's managing partner Marc Greenberger, consultant and executive director Kim Russo, executive vice president and client lead Dave Van Howe; and Jeffrey Woldt, vice president and editorial director of CDR publisher Racher Press.
There's a lot of money being spent in retail today, stated Annie Walker, kicking off Chain Drug Review's annual category management roundtable. She cited a rough estimate of $5.5 trillion spent annually in retail — an enormous number that represents enormous opportunities for those who are in the retail industry.
But while this opportunity exists, especially in light of rising disposable incomes, there also exists a disparity in income levels throughout the country, which, as Walker pointed out, requires retailers to better understand their strategy and how they are meeting the needs of today's customer and shopper.
In Walker's view, providing speed and value top the list in meeting the needs of the constantly evolving customer and shopper. But more than delivering value, it's necessary for retailers to understand how customers "define" value, because, as Walker noted during the roundtable, value can be defined in many different ways. So retail outlets need to be able to provide value in those different ways to meet the wide range of needs for customers shopping retail today — and this holds true despite the growing influence of nontraditional shopping channels. Walker emphasized that a significant portion of retail shoppers make their purchases through brick-and-mortar stores. "So being able to sit in the balance of that is important to understand," Walker said, adding that she believes brick-and-mortar will continue to play an important role in the retail space.
For Bill Bergin, gauging the loyalty component of shoppers is highly data driven and less about trying to segment shoppers into groups and more about recognizing that each and every customer is an individual and trying to understanding that individual customer's wants and needs. "So when you send someone an email you don't send them an email for dog food when they don't have a dog," Bergin offered as an example. "Or you really understand their purchase patterns and who are lapsed users, and it can really address each one of our consumers."
From the perspective of an independent pharmacy, however, the scope of customer loyalty is shifting toward the patient, explained Tim Buskey. "Because our stores have very strong relationships with their actual patients," Buskey said. "So for us, from an independent pharmacy perspective, it's really turning that patient into a shopper while they're in the store. "
So, in essence, as moderator Dave Van Howe noted in responding to Buskey, the pharmacist is and has been the linchpin for customer loyalty.
To further establish this relationship between the pharmacist and the customer/patient, Buskey cited a study that showed that 13% of the time a customer/patient would buy a product if recommended by a member of the pharmacy staff. "I think that loyalty and that pharmacist and staff are used to really helping that shopping experience within that pharmacy," Buskey said.
But to really keep the customers coming back with so many choices available to them, retailers have to go above and beyond and establish what Kim Sines referred to as "the delight factor" — whether it's delight by speed or value or by a different experience. "I think that's what P&G are looking for in shoppers today, and that's the difference that the people around the table here make," Sines said.
The variety of brands represented at the roundtable prompted Van Howe to ask how suppliers go about establishing loyalty within their brands.
For Janet Carter Smith, the answer is somewhat tricky, because while clinicians and pharmacists know Molnlycke's brands, consumers don't necessarily know them, unless, Smith pointed out, "they've had an occasion to use us. So it's actually something we've been working on closing the gaps." What's crucial to closing this gap, Smith noted, was thoroughly understanding the consumer and the pathway that led that consumer to the product in the first place. "Understanding the decision points and what goes into making them a consumer of your brand is really key to how do you make sure that those connection points remain. And in our case the pharmacist is a really important part of that delivery," she said. "But also making sure that on the hospital side and the clinician side we're making the connection, too. Where retailers fit into that is all that they're doing in that space to make the connection from a health care perspective."
But with estimates from the National Retail Federation putting loyalty to health and beauty aid products around 25% or 26%, for both brands and retail, it's clear the levels could be higher. So what can retailers do to push up those percentages? According to Michael Law, brand relevance is essential. The retailer, he said, has to have relevance. "I think you have to understand how the consumer really defines value so that you can deliver on that," Law said. "They value convenience, and being close to them may be important, or doing pickup at the store or home delivery may be important, as they really focus on the price. You better have the price in the market because that's 100% transparent now."
Providing an example, Law said that if customers value assortments, then it's paramount to have the right assortments to offer them. "So I think it's really understanding your target consumer and making sure that you're delivering on the value that they're looking for, but it's a battle for relevance right now."
Adding to the difficulty in meeting these consumer challenges, according to Heather Hughes is that today's consumers have so many options, especially with the ability to shop globally via smartphones and mobile devices and have products delivered to the doorstep next day. "So, as a brand, it's really important that connection point happens between you and your core consumer across all those different avenues and making sure that you have the right representation of products for that," Hughes said, adding that hitting all those different points is a struggle that all retailers face in maintaining customer loyalty. "You can get the first capture but then maintaining the repeat in that customer over the course of time is very difficult."
Another dynamic at play in terms of customer loyalty is the rapid pace and evolution of the digital age, which Buskey said brands have not yet caught up with. Growth in brands, in Buskey's view, is to be found in the consumer rather than marketing teams. "What I mean by that is that people have more consumerism in their health care journey, whether it's skin care to more clinical stuff," he said. Buskey gave the example of a customer in her 40s taking care of aging parents as well as her own family. Buskey pointed to a McKinsey study in which the length of time this type of customer spends in a month looking for information on the internet is about seven times more than the average internet user. "She's not going to branded websites, she's going to retail websites," Buskey said. "She's hungry for knowledge about the product and how to use it. So I think brands that start to understand how to raise peoples' health IQ and make them smarter consumers will win."
Bob Candelora jumped on Buskey's point and referenced artificial intelligence and how it is driving consumers to particular brands. "Because of past purchases it's going to start impacting brands, if it hasn't already," Candelora said.
The other challenge brands face, according to Walker, is conveying to the customer the science behind the brand. "Unless the customer truly understands the science behind what you're trying to deliver, it won't work or do," she said. "So a brand can come with some of the best science and the best innovation, but if the packaging and name, the marketing, if how you talk to customers doesn't truly get that across, it just ends up being something that sits on the shelf." Getting this message across to the consumer, along with providing value, equates to power, she said.
Law said Edgewell allocates a lot of its resources to its efforts to find the consumer, but he added that the company would have to put even more resources into the hospital side of the business, because when consumers come out of the hospital they are drawn to make certain purchases. "So finding brand relevance and a consumer that understands what your product will do definitely drives loyalty," he said.
Where loyalty comes into play for Day Gooch is in the experience at the nexus of digital and physical. "So you can have a great personalization program for your CRM [customer relationship management] and so forth, but until you have that experience and you come in-store and drive that loyalty both ways, to me that's where the synergy between those two really occur," Gooch said. "For us it's about a journey; it's a journey with our customers, and does that journey start online or does it start in store? As long as it's synergistic between the two when they come in-store and see the same authenticity that they see online, and that's where we really find our sweet spot."
For retailers such as Walgreens with a wide range of categories, building customer loyalty in terms of not only general merchandise but seasonal merchandise becomes an increasingly more difficult challenge. Loyalty, in Hughes' view, comes from a model of care, of interacting with the customer. "But the care model is changing dramatically too," she said. "Where some of it's in person, some of it may be digital, but we have to deliver the care in the way that the customer is looking for."
What helps Rite Aid drive customer loyalty, according to Bill Bergin, is technology — technology-based solutions at point of purchase. "For example, in vitamins we have a solution where you can tap into your particular needs," Bergin said. "It's a picta-light technology that will actually shine a light on the product." Rite Aid has launched this picta-light technology in hair care as well as vitamins. "I think to be able to come into our store and help me pick the right medicine for me, help a woman select the right beauty product that meets her wants and needs, I think it's very difficult to deliver that across 4,500 stores in a consistent manner," he said. "So somehow I believe there could technological solutions that will help drive those purchase decisions right at the point of purchase, and so we continue to play with different models to try and solve that."
Loyalty is further established through this technology, in Bergin's view, not only because it helps to simplify the shopping experience but in the instantaneous feedback it provides, which then helps the retailer to further meet those customer needs. "So at point of purchase when you're asking questions we can get the feedback about what your particular unmet need was, and then we can send emails and communicate with you directly," he explained.
Customers, in Bergin's experience, appreciate the personal aspect that this technology provides, though the full potential of technology in driving loyalty has not been fully realized. "I don't think we've quite cracked the code, but we have several different tests with several different partners that we're working on today," he said.
But with so much data available, Van Howe presented the panel with the problem of how to gather all of that data practically in order to prioritize it and how to hone in on the customer using the technology to further drive and leverage loyalty.
To that question, Sines said "knowing the shopper" is key, and being able to cut through all the clutter with "rich insights" to communicate effectively with the shopper to meet his or her unique needs. "So by knowing exactly which new insights are going to make that connectivity to stay with the brand and with the retail partners is critical," she said.
But in terms of gathering information on shoppers to help cement customer loyalty, there's a long way to go, in Hughes' estimation. "I think that we spent the last couple of years now really getting a better handle on how much information we can gather about our shoppers and really understanding the shopping behavior, and we know a lot of facts, but then how we effectively market to her, we still have a long way to go with that," she said. "We still need to refine the path to communicate in the best way without overwhelming her. Because there are so many options that I think it's still a work in progress."
Building customer loyalty, however, is not the only practical use of all this data and technology — the result, of course, from getting those customers to back into the store and returning to the brand is that it boosts sales. To do that, said Kyle Stenzel is ensuring the customer has a good experience. "How do we make sure that they're coming back because we've delighted them with the experience and the product that we've delivered to them?" Stenzel asked.
But what exactly is loyalty? How is it defined in terms of the customer's commitment to a brand or store? For Chris Savage, understanding what loyalty looks like is essential. "I think it's important to think about how we define loyalty, because it can be rented and it can be sort of owned," Savage said. "And if you own it, then you've really created a connection with a consumer. If you're just renting it, then it's probably because you're not meeting some other key consumer needs, whether it's a manufacturer or a retailer, but there's a lot of effort against brand switching and loyalty that I think the industry has an opportunity to really think about."
With more shoppers turning to online and e-commerce channels, the panel turned to this growing trend to discuss how brands and retailers can incorporate these increasingly frequent shopping patterns into their business models — in particular how value is defined in this growing digital landscape.
For Hughes, convenience is the foundation. "We live such fast-paced lives nowadays. We have very little time to make those buying decisions, and between our kids and work and parents and taking care of all that, we have so many things pulling us in a million directions," Hughes said. "So if retailers can help me make those choices quick and easy, but make me feel good about what I purchase, to me that's a winning combination, that's the value equation that makes me stay loyal, makes me want to shop at your store."
But each customer responds differently, Walker pointed out, and it's important for retailers and brands to keep that in mind. "You have to understand who you're targeting from a value perspective. Value can be defined in many different ways based on different customers," Walker said. "As a mom with two kids, and a working mom, value to me is to make my life easier and speed it up."
Also important, in Walker's view, is remembering that there are many families in the U.S. living paycheck to paycheck, and for these customers value has a different definition and meaning as well. "So you have to understand what that means to each individual customer and know and understand your strategy and how you meet those needs of the customer," she said.
But how can one company or brand meet the needs of an individual consumer when there are so many different types of consumers? Will there eventually be a one-size-fits-all approach? In other words, one retailer serving one type of customer?
Not in Walker's estimation — because for her, it all comes back to value. "I think if you rewound the clock and you looked backed years and years ago, people would have said, 'Hey, can you sell an Apple iPhone in a Walmart, would your customer buy an Apple iPhone?' Absolutely. If we can sell it for a great value then we absolutely can sell it," she said, adding that it's offering not just value but a great experience. "So we aim for people to have a great experience at the shop and go, 'Wow, I got this iPad or iPhone for this value and I'm super excited.' So, yes."
Millennials are also mixing things up and helping to reshape the retail and product landscape, Sines noted. This younger, and increasingly important demographic grew up differently than preceding generations and they put less emphasis on category segmentation and are more focused on buying products that are good for their families. "While financially they may not have as much money, and jobs are harder to get, they're making different choices, and that's really fundamentally changing the landscape," she said. "But again, it's an interesting shift that that's causing in the retail world in terms of value, and some of it's speed and some of it's great quality products that they're looking for."
But value shouldn't be defined only in terms of dollars, Stenzel said, because for some products may offer a benefit that goes beyond the price tag — for example, a product that might keep a customer away from the doctor. "So if the cost of my product is $X but the cost of going to a doctor for a doctor's visit including a co-pay for something like that is much more, I would put that in perspective to them, to show them that, 'Hey, you're not buying a $5 product, you're buying a preventative care product so you don't have to go pay a $50 co-pay,' " Stenzel said. "So it goes beyond just the value, it's communicating the value in the right way and helping them understand what the trade-off is."
The foundation of value, however, is trust, according to Steve Light. Whatever the value or the shopping experience, the main question that needs to be answered with a yes is the customer asking if the product they purchased works and is safe. "Bottom line," Light said, "everything comes back to trust, with retailers, with product and with portfolios."
Another challenge retailers in particular face is with brick-and-mortar traffic — specifically, converting consumers already in the store when they have so many other options outside of the store.
To add some perspective to this challenge — according to Nielsen data, for every 100 customers who go into a Walgreens, CVS Pharmacy or Rite Aid Corp. store, there is a 94% conversion rate. In other words, a customer going into the pharmacy will also purchase a nonpharmacy item, such as a soft drink or a cosmetic product.
But when those same 100 customers go into one of the estimated 23,000 independent pharmacies across the country to get a prescription, only 56% make a similar front-end purchase. So how do pharmacists, who do not receive front-end training in pharmacy school, achieve a better conversion rate? While part of the answer lies in price optics — having items on sale visible to the customer coming to the pharmacy to fill a script — the responsibility for that conversion rests with the store owner, according to Law.
An example of a retailer hitting high marks on this type of conversion, in Smith's view, is Sephora USA Inc. and its many curated end-cap offerings for lipsticks and mascaras. "From a conversion standpoint you're not looking through all the brands in the store to try to find that lipstick that can just kind of make you a little happier today because you've got a new color to try. They put it all together so that she can shop it, and it makes it easier," Smith said. "I think where we are challenged in the health care space is how do we do that effectively?"
Hughes added to Smith's Sephora example, saying that what Sephora is able to do is inspire. "You come in, you're excited." And that feeling can translate to customers across the board, regardless of product or brand. "You think that you can walk out feeling better," Hughes continued. "And whether that's a diabetes patient who is looking for a quick solution or something to make their life easier or better, a better quality of life. At the end of the day, to cause them to pause, make them feel something inside that inspires them to spend time, even if it's two minutes. You'd have to stop for a quick second to learn more or find a new solution for their life, whether that's across health care or beauty."
The panel also discussed the increasingly important role social media is playing and how this form of communicating is changing the way retailers do business, especially as it relates to marketing. Jeff Shirley said iHealth invests heavily in bloggers, because bloggers talk to other bloggers and those communications can pass along favorable product and brand reviews. Shirley also referenced a report that said 47% of consumers will buy a product if it is suggested by a blogger they read. "So it's very important to select very pointedly who's blogging about your product," Shirley said.
But employing bloggers and having a social media presence isn't enough. Retailers and those trying to reach customers through social media need to stay on top of this digital space not only to be aware of what's being said about them online but to monitor these accounts to get the most out of them.
Shirley added that iHealth connects with its community of independent owners in what he described as "pretty much a free form," allowing them to express themselves freely, which serves to better identify problems that need to be addressed. "If there is something we need to solve, we're just like Walmart, we jump in and we try to solve it," he said. "We also have net promoter scores, and every month I get together with my team and go through them. We rate the scores from 0 to 10. I always look at the bottom scores, zero to 4, and if it's O-T-C-specific I focus on that and go back in and try to correct whatever we've done, or provide a solution to our customers."
Though Walgreens is not live on social media daily, the company does allocate resources to its online presence, according to Hughes. She said this presence is a great resource for understanding consumer needs and seeing needs that aren't necessarily met, or any issue a customer might have with Walgreens' products. "It helps as a part of our innovation process and our product development process, just making sure that we are on point," she said. "So making sure that we are adjusting current products, maybe addressing individual needs if customers have a complaint or something we need to address — just understanding the evolving landscape and what customers are not finding in our products, or what they're seeking. It's a different way the data is used, and it's important to us."
Social media — bloggers, emails — is an avenue that allows the company to reach consumers, and it offers the company the opportunity to question what's effective and what isn't and essentially to analyze what is working and what isn't. "I'd say the challenge is that there are pieces within our control and pieces outside of our control. So when you do reach out and you use bloggers, how much do you control that environment? But it can be really impactful when it is used in the right way."
For Light, however, it all circles back to authenticity. He cited as an example a time when Cardinal Health had a shortage of Edgewell products in Canada, which upset many consumers. "So the team up there decided to own this misstep and apologize, and they took out advertising to apologize and let people know when those products would be coming back in stock," Light recounted. "I think in situations like that if you are authentic and you own it, you can actually improve brand equity. So that was a very good experience for us."
Buskey cited another such example with Domino's when the pizza chain ran an ad campaign asking consumers for feedback to "tell us how bad we are." "It's amazing how that brand has changed in what it is today versus what it was," Buskey said.
But for health care brands, having a social media presence is difficult, according to Smith. "It's hard to react as a health care brand too, but I think going back to authenticity and going back to what Annie [Walker] said earlier, I think consumers are more educated today than they've ever been," Smith said. "So as a branded company you need to help consumers understand the science behind how your product works, and that really goes a long way, because if they're in-aisle and they're looking to make a choice, consumers are searching for your product, and if they can find good education information that helps them understand how everything works, then it makes them feel you're more trusted. The authenticity of your product is there, and I think that's a really big opportunity for branding."
This authenticity is especially apparent with Millennials and younger consumers, according to Sines, who said that brands that fail do so because they do not speak directly to this younger audience in the manner in which they wish to be spoken to — with straight talk.
"You look at a little company like OGX and they hired a roomful of Millennials to reach each one of their shoppers and talk in a voice that they want to be heard in, and, yes, they sold their company for $3 billion to Johnson & Johnson, and that's because they connected and they had a really great product but they also really were marketing that product in a very different way," Sines said, adding that many brands today have one "computer-like" voice that doesn't speak from the heart, which simply will reach younger consumers. "Because there are so many other brands that are being authentic and transparent and direct and speaking their language, not company speak, but really just in a way that they want to be spoken with."
Smith concurred: "I think you have to be absolutely clear that you're telling the honest truth about everything, too." Sines referenced actress Jessica Alba's Honest Company — which settled a class-action lawsuit claiming it misled its buyers on some of its nontoxic, eco-friendly products — as an example of disingenuous marketing. "So if you're going to put it out there, make it be completely what it is, not something that you think the consumer wants to hear.
Marc Greenberger touched on the importance of creating "a trusting relationship with Millennials and younger consumers, especially for the larger companies. "You can see it in their numbers,"Greenberger said. "I mean, it's amazing, and it's not just in health care, it's in beauty as well. The question is can the big companies turn it around? They're slipping so quickly it's scary." The smaller companies, Greenberger added, are more nimble and that's where all the growth is coming from in health care as well as in other parts of the store. "So it's a pretty amazing phenomenon that we're living through right now, and some of us have front-row seats. It's scary when you walk into these board rooms, because I think these companies are paralyzed.
Another important trend raised by Kristine Urea was the growing demand among consumers — younger ones in particular — for natural products and ingredients, "whether it's homeopathy or different avenues for maintaining your health from a natural perspective," Urea said.
Van Howe also raised the issue of clustering stores in certain communities and how best to reach targeted demographics of shoppers. "We talk about this consumer that is incredibly complex and diverse — we've got Millennials, we've got baby boomers, we've got Hispanics — we've got all of these different groups shopping in our stores," Van Howe said. "What's the reality of store clustering. How as a retailer, how as a brand, do you become relevant when you have this diverse population coming into your store? What does store clustering or store in the community look like today and in the future?"
In response, Hughes said it's important to learn from data in order for the cluster model to work. "You really have to hone in to say clustering is really important. How do you determine what's your core that works for all and then cluster in the right places, versus going too deep, too far," she said. "It's too complex for the model to sustain. And then how do you extend and use digital beyond that, but brick-and-mortar still has that great presence to make sure that you serve the community. When you think of community there's the product on your shelf, when you think of how you cluster, there's also still that people component, and you get the touch points in the community, and that goes a long way as well."
Bergin explained that Rite Aid's loyalty program also provides a window into clustering because members have the opportunity to opt in with their age, which provides extremely useful statistics on those using this feature. For instance, Bergin said that because of this data he knows that in Washington, D.C., Rite Aid has more Millennial shoppers than it has in any other market in which the company competes. "I can drill that down further and I can tell you that I have stores where over 50% of the shoppers are Millennials," he said. "I know right down the SKU level, the brand level, I know exactly which brands are over-indexed. I know which SKU is over-indexed. So we are looking at, to your point, the complexity. So we put end-cap recommendations out to stores on a monthly basis."
The specificity of this data also helps Bergin avoid painting one shopping demographic, such as Millennials, with too broad a brush. "I would caution, don't treat Millennials as a single entity, because the data would tell you something very different," he said. "The young Millennial wants red solo cups and energy drinks, but the older Millennial is married, they own a home, they have children, and they have a very different shopping dynamic."
Shirley added iHealth's perspective: "There is a difference, the way a brand has to attack that is we have to know who our consumer is," he said. "And you can't call them by the buckets. So each brand, we work hard to find out who really buys that product, or even that segment of that brand, because we can segment out into the different consumers as well."
But while Millennials are getting so much attention, especially when the conversation turns to digital shopping and clustering, this younger generation is not the only demographic retailers need to be paying attention to, in the view of Gooch, who pointed out that a large number of older consumers still are often overlooked. Gooch cited an AARP study that put the number of Americans 50 years old or older at 111 million, with the number of Millennials at 75 million. Even more telling, over the next few years the population over 60 is going to grow by 16 million, with Millennials only growing by 5 million. "The over-50 spends $3.2 trillion in the U.S. economy; that's bigger than the GDP of Russia, U.K., Brazil and France," Gooch said. "They're 50% of all consumer expenditures in the U.S., and only 10% of the marketing dollars go to that group. As retailers, and as brands, we've gotten so focused on capturing the next generation. With the improvements in health care I think the average age in the United States is about 75, maybe 77 years old. You've got 20 years of relationship with all the buying power in the U.S., and if you look at the data, there's about 32 million people over the age of 65 today; that'll be about 72 million in the next 20 years, it'll be double. That's 6% to 8% growth. Walmart, Walgreens, Rite Aid, our independents, would kill to have it locked in, the 6% to 8% growth. So I think it's interesting that we tend to focus on the Millennials, but we lose where the real dollar is at. It seems like sometimes we chase pennies versus chasing the dollars."
Hughes agreed that the industry has gotten too caught up in the terminology of the next generation, which in many respects has lead to a loss of focus on other important groups, such as baby boomers. In Hughes' view, the important thing is knowing the consumer. "You need the generation of 23 and above, that's a huge group of people that are buying things," she said. "So it needs to go back to knowing your brand and who's buying that brand, and not so much focusing on the next generation, because we are here now."
Gooch added that he tries to convey the message of not overlooking other demographics to other merchants and the bigger chains. "I try to have that dialogue with them. Are you thinking about the boomer generation of America? Are you thinking about the opportunities with that customer? And they don't have a good answer," he said. "I don't know if we presume that we've been there and they're traditional and they'll just keep showing up and we don't have to work hard with them, but when you think about it, people over 50 are living like they're 30. The point is that we have forgotten the youthfulness of our generation — 45, 55, 65 — and I think we want to live more independently."
This lack of focus on older consumers is, in Gooch's view, an element many companies are missing in their strategies, especially in light of consumers in their 50s and 60s being at the age when they more regularly become drug store customers. Unlike Millennials, older consumers take more medication — the primary product for many taking part in the roundtable — so why is there not more focus on these older consumers?
In Gooch's estimation, many brands are lost in an aging paradigm, because they are using methods to go to market that are 30 years old and a new paradigm is needed that is based not only on technology but on the shift in demographics.
Another element, Gooch noted, is today 18% of the U.S. population is Hispanic; in 20 years one out of three Americans will be Hispanic. "You've got to be thinking about that customer's needs, their lifestyle, their interests, how they react to brands — and not just myopically if they're Hispanic, but are they first generation, are they second generation? Because they behave differently, kind of like the Millennials do, based on where they're at in their generation in the United States," Gooch said.
Boomers are the majority of Rite Aid customers, said Bergin. "We've got to be careful where our focus is. From Rite Aid's perspective, if you look at the numbers, just look at ROI data, we're losing in beauty, and the Millennial shopper is where we're just not getting our fair share," he said. "I think as retailers we know that's the customer of the future, and quite honestly, Rite Aid and a lot of other retailers, we're losing with that customer big-time today, especially in the beauty segment. So maybe we're putting more emphasis on it than the ROI we're going to get from it. I think that point is really valid, but I think it's something that we're not going to give up on, in winning that younger consumer, particularly in the beauty segment."
But focusing too much on boomers could mean the losing out on the Millennials, according to MPG's Kim Russo. "Because she will essentially be going to specialty stores," Russo said. "So if you're losing in the beauty category she will essentially be moving into the Sephoras and the Ultas of the world." This observation lead her to ask the question: Is focusing on boomers the right strategy, given that they have an enormous amount of spending — but in doing so are retailers ultimately sacrificing the Millennials, and their potential future bread and butter customers, to these specialty stores? Because, as Russo pointed out, the specialty stores will essentially convert those consumers, which means retailers and brands who failed to focus on them in favor of boomers may have lost out on them for good.
Not necessarily so, according to Smith, who said that drug stores in particular have a huge opportunity to cater to both segments to utilize that pharmacist to build customer loyalty — "because if they're a Millennial, they look to their pharmacist for advice on 'My baby has a fever' or 'What should I give for teething?' "
But when it comes to focusing on boomers and Millennials does it need to be a case of either/or? Not for smart retailers, Gooch said. "As smart retailers and smart brands, with both the Millennial segmentation and the boomer, I think you're figuring out there are intersections to take advantage of resources, but also recognizing that they're distinct populations," Gooch said. "So there's enough assortment and enough footprint of product that we can address both those needs."
Yet it's not just a matter of focusing on both as separate groups but also capturing Millennials now as they represent the generation of the future. "I'm dating myself now, but if you look at what P&G did with Secret years ago, when everyone was coming out with teen deodorants they marketed Secret to 8-year-olds because they knew that they wanted to be like their mom," Candelora said. "They included it in school packets and things like that. Back then if you look at the volume of Secret coming off your shelves you would say that they were pretty successful, that they figured out the customer, the young girl wanted the same deodorant as her mom. If you look at all the types of teen deodorant in that time, they all failed, every single one failed." Looking ahead, Bergin pointed to what he described as a "huge philosophical shift for category managers," because, as he said he tells his teams, "you're not going to win if you don't win with your biggest suppliers, so our joint business planning process unfortunately does not encompass our entire supplier base." Rite Aid, Bergin said, has about 25 suppliers and a very robust joint business planning process that he said would never distill down into the indie brands. "So if our focus is going to be that going forward we're not going to win with the big 25 — which is a horrible thought to think, I'm just coming from a retailer perspective — it would be a very daunting task to figure out how you take that shift and the way we do joint business planning today, and figure that out with 100 very small indie brands."
Suppliers, according to Bergin, "want to win" with the 25 biggest retailers. "If we can win with, I'd say, in any given category, if I can come up with the biggest five suppliers and in a given category, I'm going to make my joint business plan, it's that simple. So it creates a whole different set of challenges to be able to do those roles," he added. But this shifting philosophy with category managers creates a dilemma, because retailers are not getting what they used to get from these larger suppliers — which retailers used to be able to count on to deliver the growth.
"You have to drive your own growth," Bergin added.
In Walker's view, category managers need to think broadly, to think innovative, to think outside the box and to bring fresh, innovative ideas to the segment. "Where suppliers of category managers that don't do that or they just come with the same perspective that their sales side comes with, that's where it becomes very challenging, and as a retailer you have to manage that," she said.
In order for brands to win and grow, in Gooch's view, they have to be more engaged and dynamic in their approach, which he sees taking place. "I am seeing some engagement on the part of the big brands now, because they're hungry for growth. They need it from somewhere, and they're seeing this is a relatively dormant market that's got some opportunity for it," he said.
For Sines, opportunity for growth is also to be found in areas that big companies have so far failed to invest in — smaller opportunities that could become big, focusing on the smaller brands. "True meaningful innovation can really make a difference, I think, for retailers to pick those areas where it's growing, where there's white space, and where there's real meaningful innovation," she said. "And then partnering with the little companies that are going to listen, that are going to be agile, and that are going to customize something for you to take advantage of that opportunity. Because that's what the smaller and medium-size companies do best — they are really listening and partnering in different ways that are reaching that shopper fast."
Speaking to growth, Greenberger pointed out that the larger manufacturers are failing now. He described the current state of the industry as a crisis and questioned whether the ship could be turned around. "If you're running companies like Walmart and Rite Aid and Walgreens, you need growth, because if you're not growing, you're dying," Greenberger said. "It's that simple, and I'm looking at all the 2018 forecasts. It's just crazy."
Russo ended the roundtable by stressing the theme of authenticity, both in messaging and information, one of the themes she believed summed up the discussion. Relevancy was another, Russo said, the question to brands on how to remain relevant — the retailer, the supplier, and really targeting and connecting with the right consumer base to drive growth. "Respect, trust and transparency, constantly being mindful of those factors, and this idea around speed to drive change and make decisions. At the end of the day we've all agreed that the consumer is really in control," she said. "So how do we provide and find actionable insights to really drive the compelling change in order to drive growth?"
And so the discussion continues …


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Consensus 2015: What the Internet Can Teach Blockchain Innovators
Jun 5, 2015 at 4:06 p.m. UTC Updated Jun 10, 2015 at 4:07 p.m. UTC
Digital currencies remain an exciting new technology striving for mainstream adoption, but their struggle is not without precedent – The consumer and technical roadblocks they face are akin to those overcome by key Internet protocols.
Two new Consensus 2015 speakers will look back at the mainstreaming of e-commerce and Internet security, providing a deep dive into the historical lessons that could come to shape the technology's future.
Last April the Heartbleed Bug was uncovered, revealing that the majority of websites on the Internet were vulnerable to information theft.
The bug was caused by a flaw in OpenSSL, a hugely popular cryptographic software library that encrypts data flowing through servers. According to the Netcraft Web Server Survey at the time, more than two-thirds of active Internet sites ran on two widely used open-source servers that relied on OpenSSL.
The news sent bitcoin developers scrambling since the Bitcoin Core at the time used the compromised cryptographic library.
Security pioneer… and Nick Szabo's boss
These are the sorts of Internet-wide events that Christopher Allen has been observing for over 20 years, as a co-author of the reference implementation of the SSL 3.0 protocol.
The SSL protocol and its successor TLS were adopted as a key Internet security standard, enabling applications as diverse as e-commerce and online banking.
Allen is now working on projects in the blockchain space, most recently with Revoke SSL, which was presented at a Blockchain University demo day last month.
By moving into blockchain technologies, Allen is revisiting familiar territory. As the founder of Consensus Development in the 1990s, he counted the pioneering e-money firm DigiCash among his clients. In 2000, after merging his firm with Certicom Corp and becoming chief technology officer there, he hired renowned cryptographer Nick Szabo to work on smart contracts.
"I've been wanting to do smart contracts since before they were called smart contracts," Allen said.
Allen will draw on insights developed from working on SSL and TLS's adoption as protocol standards for the Internet – in the face of competing technologies from companies like Visa, Mastercard and Microsoft – and the lessons for digital currency and blockchain technologies at Consensus 2015.
E-commerce and financial services giant
A key use of the secure data flows enabled by SSL is e-commerce. It's also seen as one of the major growth components of the burgeoning digital currency economy: investment dollars have poured into merchant processors like Coinbase, Bitnet and BitPay.
One firm that holds the distinction of operating one of the world's largest e-commerce platforms is Japan's Rakuten. It reported revenues of $4.8bn last year, putting it ahead of firms like GroupOn, JD.com and Netflix.
Notably, the e-commerce giant also derives nearly 40% of its revenues from financial services, ranging from its own digital bank to life insurance.
Rakuten is putting some of its financial services and marketplace knowhow to work for Bitnet, the merchant payment processor that it invested in last October. The man who led that investment is Oskar Miel, a managing partner at Rakuten FinTech Fund.
Miel's role is to find ways for his portfolio of startups to work with Rakuten's various divisions. He will discuss Rakuten's perspective on the relationship between merchant processors and marketplaces in the mass adoption of digital currencies at Consensus 2015.
Bitcoin ProtocolRakutenMerchantsConsensusBitcoinBitnetBlockchain UniversityNewsConsensus 2015Revoke SSLEvents
First Mover: What's Next for Ethereum After Cryptocurrency Hits All-Time High
Bradley KeounOmkar GodboleSebastian SinclairJan 20, 2021
Blockchain Bites: 'Crowded' Crypto Traders, Ether All-Time High, the Bitcoin Battery Proposal
Brave Becomes First Browser to Offer Native IPFS Integration

redpajama_set_name: RedPajamaCommonCrawl


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Jesse Jackson Jr.'s life shaped by history
By Alan Duke, CNN
(CNN) - Jesse Jackson Jr. grew up in his father's shadow, placing him on history's stage as the Rev. Jesse Jackson Sr. led civil rights campaigns, including Operation PUSH and the Rainbow Coalition.
Jackson was born in 1965, just months before President Lyndon Johnson signed the Voting Rights Act, which forced election changes that opened up the political process for African-Americans in the United States.
Pelosi: Jackson should take all the time he needs
He spent his 21st birthday in a District of Columbia jail cell after being arrested in an anti-apartheid protest at the South African Embassy in 1986, according to the biography on his congressional website.
What do we know about mood disorders
He was on the stage in Cape Town in 1990 when Nelson Mandela delivered his historic speech after his release from 27 years in a South African prison, the biography says.
The younger Jackson earned a Master of Arts degree in theology and then a law degree in 1993.
Filed under: Black in America • History • Politics • Who we are
These " civil rights leaders " aren't elected, they are egotisical self appointed race baiters.
July 14, 2012 at 9:03 am | Report abuse |
Mows
Mental illness is a disqualification for an elected official, famous dad or not.
July 13, 2012 at 7:16 pm | Report abuse |


Pat McGarrity '60 has displayed a lifelong commitment to Caldwell and the Dominican tradition.
If you asked Patricia "Pat" Murphy McGarrity's friends about her, they would all say the same thing: "Pat is the go-to person." Her college classmates remember her as intelligent, reliable and a born leader. The yearbook testifies that she was a member of nearly every club, was awarded the coveted "C" pin, and served as class treasurer for several years.
In addition to pursuing a career in New Jersey social services, Pat married and raised four children. At every stage of life she offered her organizational skills to her community, including the Boy Scouts, the Mental Health Resource Center, and St. Catherine of Siena Parish. As her children finished college, she continued her own education, completing a certificate in public management and a law degree at Rutgers Law School. In retirement, Pat has used her law background to assist family members to execute wills and estate plans.
Pat's commitment to Caldwell and the Dominican tradition has been lifelong. A prayerful person, she has remained an active member of the Third Order, which she joined as a student. She has put her faith into action as a member and trustee of her parish council, as a counselor to women in Rachel's Vineyard retreats and as a member of the board of Cedar Ridge, a senior citizens housing organization. Pat has served on many Caldwell University committees and was a member of the Alumni Board for over 10 years. She has been the rallying force to urge classmates to take trips both national and international, gather for periodic lunches and plan reunions on campus. Pat has shared both time and treasure as a longtime major donor to the University and has included a bequest to the University in her estate plans as well.
Always an avid traveler, Pat continues her treks around the globe and encourages others to join her. She makes a habit of taking grandchildren on Road Scholar trips and is always open to new experiences. No matter where in the world she is, she arranges to be only an e-mail away from her family, friends and members of the Caldwell community who ask her advice on a regular basis.
If you would like to learn about the many ways to support Caldwell University through planned giving like Pat McGarrity did, please contact Lori Funicello at 973-618-3226 or lfunicello@caldwell.edu.


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Unanimity Instruction Required and Not Given, But No harm, Says CCA
By Luke Williams | Jury Trial
Trial Court Failed to Give Unanimity Instruction to the Jury
The Court of Criminal Appeals recently handed down an opinion regarding a unanimity jury instruction in an aggravated sexual assault case. The issue before the Court was whether the trial court erred when it failed to instruct the jury that it must be unanimous in deciding how the sexual contact occurred when there were multiple allegations. The Court of Criminal Appeals found the jury instruction to be erroneous but concluded no harm occurred.
French v. State, (Court of Criminal Appeals 2018).
The Facts—The Defendant Was Convicted for Aggravated Sexual Assault of a Child
The defendant was originally indicted on a single count of aggravated sexual assault of a child. The indictment alleged that the defendant caused the penetration of the child's anus by the defendant's sexual organ. Before trial though, the indictment was amended to add "contact with" and "penetration of" the sexual organ of the child by the defendant's sexual organ. As a result, the indictment presented four options for a conviction: (1) the defendant contacted the child's anus with his sexual organ; (2) the defendant penetrated the child's anus with his sexual organ; (3) the defendant contacted the child's sexual organ with his sexual organ; and/or (4) the defendant penetrated the child's sexual organ with his sexual organ.
At trial, the jury instructions authorized the jury to convict the defendant on any one of the four theories. In addition, the trial court explicitly instructed the jury that they need not all agree on the manner in which the sexual assault was committed. This instruction essentially authorized the jury to convict the defendant without agreeing as to which orifice he had "contacted or penetrated"—even though there was little to no evidence presented that defendant ever contacted or penetrated the child's sexual organ. This prompted the defendant to object and ask the court for a unanimity instruction regarding the manner in which the sexual assault was committed. However, the court overruled the objection and the defendant was subsequently convicted.
The Court of Appeals Reversed the Defendant's Conviction—Holding the Trial Court Erred in Failing to Submit a Proper Instruction Which Caused "Some Harm"
On appeal, the defendant argued that the jury charge failed to follow the juror unanimity requirement because it did not require the jury to agree as to which orifice he contacted and/or penetrated. For double jeopardy purposes, he argued the theories were considered distinct and separate offenses, each of which demanded juror unanimity for a conviction. The court of appeals agreed, and it held that the trial court erred by failing to submit proper instructions. In light of this error, the court of appeals determined that the erroneous jury charge was sufficient to invoke the "some harm" standard under Almanza, which required a reversal.
The Court of Criminal Appeals Reversed the Court of Appeals' Judgment—Finding No Actual Harm Occurred
On petition for discretionary review, the State did not contest the erroneous jury charge. Rather, it argued that any error in the jury charge as to the unanimity requirement did not result in harm to the defendant. The Court of Criminal Appeals agreed.
In analyzing whether there was "some harm," the Court of Criminal Appeals considered the trial court's error with respect to the four factors set out in Almanza: "(1) the entire jury charge, (2) the state of the evidence, (3) the jury arguments, and (4) any other relevant information as revealed by the record as a whole."
The Court of Criminal Appeals noted that in concluding that "some harm" occurred the court of appeals only relied upon the second Almanza factor—the state of the evidence. That court identified there was "some evidence in the record" for the jury to potentially conclude that the defendant penetrated both the child's anus and sexual organ with his own sexual organ. And, since there was "some evidence" it believed that the jury could have regarded itself as authorized to convict different ways without reaching any agreement on a specific theory beyond a reasonable doubt.
However, even considering the above reasoning, the Court of Criminal Appeals determined there was no harm suffered when taking into consideration all four of the Almanza factors. The Court explained that "the risk that a rational juror would have convicted the defendant on the basis that he contacted and/or penetrated the child's sexual organ with his own—and not also on the basis that he contacted and/or penetrated the child's anus—is so 'highly unlikely' as to be 'almost infinitesimal.'" Not only was there overwhelming evidence at trial that suggested anal contact and penetration occurred, there was no encouragement for a specific finding, and the defendant's only defense was that it never happened. All of this supports the Court's conclusion that the harm was merely hypothetical and not actual. As such, the Court reversed and remanded the case even in light of the error.
Can a Judge Grant Deferred Adjudication After a Jury's Guilty Verdict?
By Madeline Pricer Jones | Jury Trial
The Court of Criminal Appeals recently handed down an opinion on a petition for writ of mandamus. The two issues facing the court were (1) the nature of a misdemeanor trial after a defendant pleads guilty to a jury; and, (2) whether a trial court has the ability to defer an adjudication of guilt after a jury finds a defendant guilty. The Court of Criminal Appeals declined to grant mandamus relief on the first issue but, for the reasons discussed below, it granted mandamus relief for the second issue.
Majority Opinion: In re State ex rel. Mau, (Tex. Crim. App. 2018).
The Facts—The Trial Court Instructed the Jury to Return a Verdict of Guilty and Then Entered an Order Deferring Guilt.
The underlying case involved a defendant who was charged with the misdemeanor offense of assault bodily injury of a family member. The defendant did not waive his right to a jury trial for this offense, and the State never gave written consent to waive a jury trial. As a result, the case proceeded to a jury trial upon the defendant's plea of not guilty. During trial, however, the defendant changed his plea to guilty, and the trial court retired the jury with an instruction that it return a verdict of guilty on the basis of the defendant's plea, and it did.
After the defendant was found guilty, the trial court did not submit the issue of punishment to the jury. Instead, it dismissed the jury. There were no objections to the jury's dismissal. However, the State did bring to the court's attention that the defendant had not been properly admonished prior to pleading guilty. At that point, the court admonished the defendant without objection. Only at this point—after the jury had already returned a verdict of guilty—did the defendant waive his right to jury trial. The State, however, never consented in writing, before the entry of the guilty plea, as required by Article 1.13 of the Code of Criminal Procedure. As a result, when the trial court deferred guilt, the state sought a writ of mandamus.
The State argued to the court of appeals that the trial court lacked the authority to defer the adjudication of the defendant's guilt, and the court of appeals denied relief. After being denied, the State, again, sought mandamus relief with the Court of Criminal Appeals.
Court of Criminal Appeals Granted Mandamus Relief—Holding the Trial Court Was Without Authority to Enter an Order of Deferred Adjudication.
In its argument to the Court of Criminal Appeals, the State maintained that the trial court lacked authority to defer guilt and argued that the trial court had a ministerial duty to enter judgment on the jury's verdict. The State explained that by allowing the trial court to defer the defendant's guilt, after the jury had rendered its verdict, would essentially nullify their statutory discretion to consent to a jury waiver.
In maintaining its position, the trial court relied on a court of appeals opinion, State v. Sosa, 830 S.W.2d 204 (Tex. App.—San Antonio 1992, pet. ref'd).
The issue in Sosa was whether the judge, having found the defendant guilty on his plea of not guilty in a bench trial, could thereafter withdraw the courts finding of guilt and assess deferred adjudication. The Court of Criminal Appeals allowed this because there was no authority that barred the trial judge's discretion or the procedure in a bench trial. However, the Court of Criminal Appeals explained that the same could not be said about a jury's verdict of guilty.
"By its very terms, the statutory option authorizing deferred adjudication is limited to defendants who plead guilty or nolo contendere before the trial court after waiving trial by jury."
Here, at the time that the defendant pled guilty to the jury, he did not waive his right to a jury trial nor did the State consent to a waiver. Without such a waiver, the trial court was bound to resolve the issue of guilt by a jury trial and, further, the trial court then had a ministerial duty to enter judgment on the jury's verdict. As a result, the Court of Criminal Appeals granted mandamus relief.
Takeaways . . .
While a defendant can always change his or her plea, the trial court cannot abrogate a jury's finding of guilt by placing a defendant on deferred adjudication. At this point in the trial, the only way to defer guilt would be to grant a motion for new trial. However, this motion for new trial must have a legal basis, and deferred adjudication, alone, is insufficient.
However, a defendant may be placed on deferred adjudication after a jury trial has begun, but before a verdict has been returned if the defendant properly submits to the court, a waiver of his or her right to a jury trial, and the State agrees accordingly. The State may consent, at any time, but the consent must be in writing and filed appropriately. If the defendant waives this right and the State follows the aforementioned steps, then the judge can dismiss the jury, accept the defendant's plea, and subsequently place the defendant on deferred adjudication.
Alcala, J., filed a concurring opinion.
Newell, J., filed a concurring opinion.
Unanimous "Not Guilty" Jury Note was Not a Verdict. Convicted on Retrial
The Court of Criminal Appeals recently handed down an opinion regarding whether a jury can informally acquit based on a unanimous jury note. The issue facing the court was whether a jury note, which provided the jury's voting breakdown of the charged offense and the lesser included offense, could be considered an acquittal for double jeopardy purposes even though a mistrial was later declared because the jury could not reach a unanimous decision.
Traylor v. State, (Court of Criminal Appeals, 2018).
The Facts—The Trial Court Declared a Mistrial After Unanimous Jury Note.
Appellant was on trial for first-degree burglary of a habitation. At the conclusion of his trial, the jury was charged with determining whether Appellant was guilty of first-degree burglary, the charged offense, or second-degree burglary, a lesser-included offense. The difference between the two offenses is that the jury did not have to find that Appellant used a deadly weapon in order to convict him of the lesser included offense.
During deliberations the jury sent out a note stating that it unanimously agreed that Appellant was not guilty of the charged offense but indicated they were deadlocked (5-7) on the issue of guilt for the lesser-included offense. The trial court instructed the jury to keep deliberating before ultimately declaring a mistrial because the jury claimed they still could not reach a unanimous verdict.
Appellant was later re-tried and convicted of first-degree burglary. Appellant appealed this verdict, arguing that the trial court abused its discretion by granting a mistrial without a manifest necessity, and therefore, creating a double jeopardy violation.
The Court of Appeals Agreed with Appellant—Holding Appellant's Subsequent Trial for First-Degree Burglary Was Barred Because The Jury's Note Amounted to an Acquittal.
In agreeing with Appellant, the Court of Appeals cited United States Supreme Court decision, Blueford v. Arkansas, 566 U.S. 599 (2012). The Court of Appeals held the facts in Appellant's case to be significantly distinguishable from Blueford; thus, warranting an acquittal. The Court of Criminal Appeals, however, disagreed and reversed for the reasons discussed below.
The Court of Criminal Appeals Reversed the Court of Appeals' Decision—Holding the Jury Note Was Not a Final Verdict of Acquittal Because it Lacked The "Finality Necessary to Constitute an Acquittal."
Double Jeopardy protects individuals from multiple prosecutions for the same offense. However, a trial may be ended without barring a subsequent prosecution for the same offense when "particular circumstances manifest a necessity" to declare a mistrial. Such circumstances include a jury's inability to reach a verdict. For a jury note regarding the jury's inability to reach a verdict to bar a subsequent prosecution, there must be some indication that the jury had "finally resolved" to acquit the defendant.
In Blueford, the Supreme Court held that the jury's report of the vote count was not finally resolved to acquit the defendant because it lacked the "finality necessary to constitute an acquittal." The Supreme Court noted that the vote count lacked finality because: "(1) the jury was still deadlocked on the lesser-included offense; (2) the jury continued deliberating after the reported vote count; (3) the foreperson gave no further indication that the jury was still unanimous; and (4) nothing in the jury instructions prohibited the jurors from revisiting the prior vote."
Here, the Court of Criminal Appeals held that the jury's note also lacked the "finality necessary to constitute an acquittal" on the charged offense. The Court of Criminal appeals reasoned that the jury note lacked finality because the jury continued deliberating after the unanimous vote count and there was no indication that the vote on the charged offense remained unanimous throughout deliberations. Furthermore, the jury never filled out the Court's verdict forms because, as reported by the jury, they still had "no decision." Thus, while there are circumstances in which a jury can informally acquit a defendant, the facts in this case do not warrant an acquittal.
TAKEAWAY: It appears that the CCA might have come down differently if the jury had returned a 2nd note stating that they were still unanimous that the defendant was not guilty of the greater offense after all deliberations, or if the jury had signed the verdict form indicating such, even if there was ultimately no verdict. If you are faced with a similar circumstance, before the judge declares a mistrial, try to find a way to pin the jury down so that you can use it later if the state decides to try the case a second time.
Murder Conviction Reversed for Prosecutor's Use of Racial Slur
By Brandon Barnett | Jury Trial, Trial Advocacy
Texas Prosecutor Uses the "N" Word During Closing Argument. Court of Appeals Reverses the Conviction.
In December of 2014, Appellant Luis Miguel Hernandez was convicted of the murder of Devin Toler, an African-American man. During the trial, Appellant claimed self-defense, arguing that Toler attacked him and that by killing him, he was defending himself from the attack. The prosecution, however, presented evidence that Appellant provoked Toler by his words, some of them racial slurs. The actual words of the alleged racial slurs were never presented to the jury in the testimony of any witness or otherwise. However, during closing argument, the prosecutor said the following:
"What were the words of provocation? I'll tell you what the words of provocation were. [Appellant] called Devin and his family 'niggas.' That's what it was."
The defense attorney promptly objected to the prosecutor's use of the racial slur as it was inflammatory and outside the evidence in the case. Ultimately, (after a heated bench conference) the judge sustained the objection and instructed the jury to disregard the counsel's comment, but did not specify which counsel or what comment the jury was to disregard. The defense did not move for a mistrial. The jury returned a verdict of guilty and sentenced Appellant to 14 years in prison.
See the majority opinion in Hernandez v. State (2nd Court of Appeals – Fort Worth, 2016)
What is a Proper Jury Argument?
On appeal to the Second Court of Appeals (Fort Worth), the Appellant challenged the judge's failure to declare a mistrial after the prosecutor's use of the "N" word. The court explained:
Proper jury argument falls into one of four areas: (1) summation of the evidence; (2) reasonable deduction from the evidence; (3) an answer to the argument of opposing counsel; and (4) a plea for law enforcement. Generally, error resulting from improper jury argument is subject to a harm analysis.
The appellate court held that not only were the prosecutor's comments in using the "N" word error, but that the prosecutor's comments constituted an "incurably prejudicial argument;" one that required a mistrial.
Is the "Incurably Prejudicial Argument" Waived if the Defendant Does Not Move for a Mistrial?
Texas courts have consistently held that to preserve error for an improper argument, the defendant must do 3 things:
Make a timely and specific objection;
Request and instruction to disregard if the objection is sustained; and
Move for a mistrial if the instruction to disregard is granted.
Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996), cert. denied, 520 U.S. 1173 (1997)
In this case, the defense satisfied 1 and 2, but did not move for a mistrial. The appellate court was then presented with the issue of whether the improper jury argument objection is waived if the defense does not move for a mistrial. Texas precedent says the issue can be waived for failure to move for a mistrial. But the court does not find this to be wise.
"Logically, this position makes no sense. An incurably prejudicial argument requires a mistrial. If the trial court does not grant the mistrial, the court has committed error that requires setting aside the conviction and re-trying the case. Respectfully, if the argument is so prejudicial that it has deprived the defendant of a fair trial, the injury is fundamental."
The court provides further reasoning to depart from precedent, citing the tenuous political atmosphere surrounding race relations in America at the time of the trial.
The impact of the improper statement by the prosecuting attorney must be viewed in the context of the political atmosphere at the time of trial. The trial took place in early December 2014. On February 26, 2012, George Zimmerman, whose mother was from Peru, killed Trayvon Martin. Emotional discussions of Zimmerman's ethnicity filled news commentary. Other killings made headlines. Among them was the death of Eric Garner while he was selling loose cigarettes in New York on July 17, 2014. The officer who killed him was Daniel Pantaleo. On August 9, 2014, Michael Brown was killed in Ferguson, Missouri. On August 11, 2014, Ezell Ford was killed in Los Angeles by two police officers, one of whom was Hispanic. And on November 23, 2014, twelve-year-old Tamir Rice was killed in Cincinnati, Ohio. Additionally, the Black Lives Matter organization was formed in 2013 in response to the acquittal of George Zimmerman in his trial for the murder of Trayvon Martin and was actively involved in protests nationwide.
With that, the Second Court held that the improper jury argument was not cured (and could not have been cured) by the judge's "perfunctory" instruction to disregard and that the error was preserved for appeal. The court then reversed the case and remanded back to the trial court.
Dissent Agrees that the Error Was Prejudicial, But Would Not Depart From Precedent
Justice Sudderth dissented. She is not willing to depart from Court of Criminal Appeals' precedent regarding the formal requirement to move for a mistrial. She writes:
Of all of the words in modern American English usage, including the slang and the vulgar, the "n-word" is of such infamy that it is generally referenced and understood only by its first letter. And with very few exceptions, such racially charged inflammatory language has no place in jury argument.
This is certainly the case when a prosecutor, using that language to secure a conviction, goes outside of the record to introduce it. Therefore, I agree with the majority that the prosecutor's behavior was improper. It was inexcusable. It cannot be condoned. And the trial judge committed error in permitting it. Nevertheless, because we are constrained by precedent of the court of criminal appeals requiring preservation of this type of error, I am compelled to dissent.
It will be interesting to see whether the Court of Criminal Appeals will stick to their previous precedent or take this opportunity to change the law when it comes to an "incurably prejudicial argument" involving racial slurs.
Can One Spouse be Forced to Testify Against the Other?
By Luke Williams | Criminal Defense, Jury Trial
Can My Spouse be Forced to Testify Against Me in a Criminal Trial in Texas?
Everyone knows (or should know) of the attorney-client privilege which prohibits the calling of an attorney to testify as a witness against his client and protects the attorney-client relationship. But what about the husband-wife relationship? Are spouses afforded any protection from having their spouse testify against them in a criminal trial?
Yes. In Texas there are two "Husband-Wife" privileges that apply to the marital relationship: spousal immunity and the marital communication privilege. Many people are aware that certain privileges arise but often do not know exactly what protections these privileges provide. The following article discusses both of the matrimonial privileges in Texas.
See the full text of Texas Rule of Evidence 504 – Spousal Privileges
What is Spousal Immunity? How does Spousal Immunity work in Texas?
Spousal immunity is the privilege that exists in a criminal trial for the defendant's spouse not to be called as a witness in certain situations. Tex. R. Evid. 504(b). This privilege applies to spouses that are married to the defendant during trial and are asked to testify as to matters that occurred during the spouse's marriage to the defendant. The non-defendant spouse holds this privilege; meaning he or she is the one who may invoke the privilege not to testify and it is ultimately his or her decision. Tex. R. Evid. 504(b)(3). Thus, if the spouse wants to voluntarily testify for the State, she may do so regardless of whether the defendant objects to the spouse's testimony.
Spousal immunity does not stop the defendant from calling their current spouse as a witness. If a defendant chooses to do so the spouse cannot assert this privilege and will be required to testify. With that, if the defendant does not call the spouse and surrounding evidence suggests the spouse could testify to relevant matters the State is allowed to comment about that. 504(b)(2).
Exceptions to Spousal Immunity in Texas
There are two exceptions to spousal immunity in Texas.
First, the privilege does not apply in a criminal proceeding in which the defendant has committed against the spouse (e.g. Domestic Violence) or prosecution for bigamy.
Second, the privilege does not apply when the spouse is called to testify about matters that occurred before they were married to the defendant.
What is the Texas Marital Communication Privilege?
Under Texas Rule of Evidence 504(a), spouses have the privilege to prevent testimony of certain communications made during the marriage from one spouse to the other spouse. Unlike the spousal immunity privilege, the marital communication privilege may be invoked by either the defendant or the spouse being called as a witness. Additionally, this privilege survives divorce; meaning it applies whether or not the defendant and the spouse are still married as long as the communications were made while they were married. Tex. R. Evid. 504(a)(2).
This privilege only applies to communications that were intended to be confidential, that is, they were made privately with no intent to disclose to anyone other than the spouse. A communication will still be confidential if someone overheard the conversation if the defendant spouse made the statement without knowledge or intent that the other person would hear the conversation. Basically, the requirement is that the communication made was intended for the spouse's ears only.
Exceptions to the Marital Communications Privilege in Texas
There are two exceptions to the confidential communications privilege.
First, if the communication was made in whole or in part to aid in the commission of a crime the privilege does not apply.
Second, the marital communication privilege does not apply in prosecutions for crimes against the defendant's spouse, any minor child, or a member of the defendant or defendant spouse's household.
In conclusion, there are certain situations where matters occurring between spouses are kept within the sanctity of the marriage and will not come out in court. However, as you can see these privileges are very specific and it is important to be aware of what exactly is privileged and when such privileges apply.
What is Jury Unanimity for Aggregate Theft Cases?
By Brandon Barnett | Jury Trial, Theft
Jury unanimity is required in every jury trial, whether it be felony or misdemeanor. This means that the jury must unanimously agree that the State has proven or failed to prove all elements of an offense beyond a reasonable doubt. If a jury cannot reach a unanimous verdict of guilty or not guilty, then the judge will declare a mistrial. With some offenses, however, it can be a little unclear as to what jury unanimity actually requires. This is specifically so with aggregated theft cases.
What Is Aggregate Theft?
Aggregate theft is an offense where two or more thefts were committed "pursuant to one scheme or continuing course of conduct" and the amounts combined determine the grade of the offense. Tex. Penal Code §31.09. Under Section 31.09, aggregate theft may be and often is considered as one offense. Even though it is considered one offense, each individual underlying theft act (where the amounts are aggregated) is considered an element. The Court of Criminal Appeals of Texas has held that for evidence to be sufficient the state must prove beyond a reasonable doubt that the defendant unlawfully appropriated "enough property to meet the aggregated value alleged." The state is not required to prove each underlying appropriation. However, the Court, until recently has left one question unanswered: Does the jury have to unanimously agree on all underlying theft transactions? Meaning, if the defendant is alleged to have committed 10 separate theft acts (pursuant to a common scheme), do the jury have to agree on each, or some, or none?
Kent v. State—What is the Jury Unanimity requirement in Aggregate Theft cases?
Until recently there had been no holding by the Court of Criminal Appeals of Texas on whether jurors are required to unanimously agree on each underlying transaction that is used to comprise an aggregated theft charge. In Kent v. State the Court finally addressed this exact question.
See the full CCA opinion in Kent..
Kent was a mortgage broker indicted for theft from four complainants in an amount exceeding $200,000. The thefts were alleged to have occurred over a period of time and pursuant to one scheme or continuing course of conduct. At trial, the defense requested a paragraph in the jury instructions that outlined each individual theft allegation and called for a unanimous verdict on each. The trial judge denied the defense request to include this paragraph. The jury found Kent guilty of aggregate theft. On appeal, the Kent complained that the trial judge erred by refusing to include his requested paragraph in the jury instructions. The appellate court reversed and remanded the case for a new trial, holding that the jury should have been instructed that they must unanimously agree beyond a reasonable doubt on each underlying transaction used to comprise an aggregate theft charge.
The State appealed to the Court of Criminal Appeals of Texas to determine whether this was correct. Reversing the lower courts holding, the CCA held that for an aggregated-theft case,
unanimity requires that the jurors agree that the threshold amount has been reached and that all the elements are proven for each specific instance of theft that the individual juror believes to have occurred. Every instance of theft need not be unanimously agreed upon by the jury.
In other words, it is only required that the jurors unanimously agree that two or more thefts pursuant to a common scheme, when combined, exceeded the threshold amount beyond a reasonable doubt, not that they unanimously agree on exactly which thefts were comprised to reach that amount.
Takeaway: When facing aggregated theft charges it is important to know that the jury does not have to unanimously agree that each underlying theft alleged in the indictment has been proven beyond a reasonable doubt. Bottom line, it's the aggregated amount that matters. This is only a brief explanation of how the jury unanimity requirement plays a role in a case and if you should have any more questions contact our Fort Worth criminal defense team.
When the Jury Verdict is Not Authorized by Law
By Brandon Barnett | Jury Trial
What Should the Trial Judge Do When the Jury Returns an Unauthorized Verdict?
At the trial of Reginald Nixon for burglary of a habitation and evading arrest, the jury returned a guilty verdict and sentence of 7 years for the burglary and 9 years for the evading. However, the verdict form contained a handwritten note that read: "*To be served consecutively, not concurrently." A consecutive sentence would mean that the two verdicts are added together to make the actual prison term 16 years. The jury had previously asked the judge whether the sentences would run concurrently and the judge refused to answer them, advising them to simply continue with their deliberations. Without an answer to their question, the jury took the matter into their own hands.
The problem with the jury's verdict of 7 years and 9 years to run consecutively is that it is not an authorized sentence. Under Texas law, the sentences in Nixon's case were required to run concurrently rather than consecutively. As a result, the trial judge refused to accept the sentences and reform them to run concurrently (as he was urged to do by Nixon's counsel). Instead, the judge sent the jury back with a note advising them that the sentences cannot run consecutively. The jury soon returned with new verdicts of 16 years confinement for each offense, which the judge accepted.
Nixon appealed, again urging that the trial judge erred by failing to accept and reform the original jury verdicts. The 2nd Court of Appeals (Fort Worth) affirmed the trial court's judgments and "reasoned that while the judge may have had the authority to reform the verdict under Article 37.10, he also had the authority to refuse the verdict and return the jury to their deliberations pursuant to this Court's opinion in Muniz v. State [573, S.W.2d 792 (Tex. Crim. App. 1978)]."
The Texas Court of Criminal Appeals granted review and now reverses the holding of the 2nd Court of Appeals. The CCA highlighted the changes that were made in 1985 when the legislature enacted Section 37.10(b) of the Texas Code of Criminal Procedure. This change distinguished between "informal" and "unauthorized" verdicts. For unauthorized verdicts, Section 37.10(b) provides:
If the jury assesses punishment in a case and in the verdict assesses both punishment that is authorized by law for the offense and punishment that is not authorized by law for the offense, the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law.
CCA explained that the lower court's reliance on Muniz was misplaced since Section 37.10(b) was not enacted at the time Muniz was decided. Further, the verdict form in Muniz was incomplete, unlike the verdict in this case, which was complete but contained an unauthorized portion.
The CCA concluded by holding:
Although the terms of confinement were 45 authorized punishments, the attempted cumulation was punishment unauthorized by law. Article 37.10(b)'s plain language is clear that, when the jury assesses punishment and returns a verdict assessing punishment that is both authorized and unauthorized by law, "the court shall reform the verdict to show the punishment authorized by law and to omit the punishment not authorized by law." Accordingly, we hold that the judge erred in failing to accept the initial punishment verdicts and omit the jury's unauthorized attempt to stack the terms of confinement.
Judge Alcala and Judge Yeary dissented.
Making a Murderer: The Power of the Jury
By Ashley Gilmore | Jury Trial
Can a Single Juror Make a Difference? Ask Steven Avery.
We, like many of you, have been sucked into the sad, frustrating, and very real tale of the murder trial of Steven Avery in Manitowoc County, Wisconsin brought forth in the Netflix documentary "Making a Murderer." While much has been made of Steven Avery's guilt or innocence, the coerced confession from his nephew Brandon Dassey (see full confession transcript HERE), and the possible foul play of the law enforcement in Manitowoc County, one major key to the case has been largely overlooked – the power of the jury. Without a guilty verdict from the jury, there is no frenzy over a viral documentary and certainly Steven Avery is a free man.
Recently, the filmmakers have reported to the press that a member of the jury now admits that he or she believed Avery was not guilty. This juror, wishing to remain anonymous, claims to have changed their vote to "guilty" after succumbing to fear and pressure. In reality, the juror believed, and still believes, that Avery was framed for murder. Speaking to the filmmakers, the juror said "I'm the reason the justice system failed." Is the juror right?
Criminal Verdicts in Texas Must Be Unanimous. Every Juror Vote Counts.
Jury deliberations are secret, so only the jurors themselves could ever say for sure exactly why they arrive at a certain verdict for a case. In a criminal case, a jury verdict must be unanimous, which ensures that each juror's vote is important and not diluted in a simple majority. If this one juror had summoned the courage to stay true to their "not guilty" vote, it would have caused a mistrial. A mistrial forces authorities to make the difficult decision of whether or not to retry the accused. Who knows what would have happened in a hypothetical second trial of Steven Avery.
For years, this juror has shouldered guilt from this trial, proving that the decisions juries are asked to make are indeed difficult ones. The next time you are on a jury, take a lesson from this case. Stand up for what you believe in and refuse to cave to pressure or fear. Do not be overpowered by the person with the loudest voice in the jury room. Remember, your vote holds the power of incarceration or freedom.
I hope we didn't spoil the documentary for you, but if you haven't watched it, this post does not even scratch the surface of the things you will see in this series. We suggest you watch it and consider the case for yourself. If nothing else, you'll see that there are two sides to every story and you'll understand to importance of having a fair and conscientious jury in a criminal trial.
Winning By Losing in a Jury Trial
Let me make an admission…sometimes we lose at trial. There, I said it. We don't win every case. Sometimes the evidence is not in our favor. Sometimes the State is able to prove every element of the alleged offense. And we typically know that going into it.
It begs the question, "Why take the case to a jury trial if you suspect you are going to lose?" Here's why…because in many situations, going to trial is the only way to get a good result.
For instance, we had a client that was charged with a low level misdemeanor offense. The State was offering a plea bargain of 18 months probation, a $1,250 fine, and numerous classes in exchange for a guilty plea. We considered this offer to be too steep in relation to the alleged offense. Our client agreed. But the State was not willing to budge on the offer. So we set it for trial.
After a hard fought trial, the jury came back with a guilty verdict, which is what we suspected all along. Then we went to the judge for punishment. The State continued to recommend 18 months probation and a $1250 fine. The judge, however, awarded our client 2 days of labor detail and a $750 fine. Two short days later, the entire ordeal was but a fleeting memory for our client. No probation. No monthly reporting. No random drug tests. No classes.
We would have never received such a low punishment offer from the State. We also would have never received such a low sentence from the judge if we hadn't gone to trial and filled her in on the extenuating and mitigating circumstances of the case and our client.
In criminal defense, a moral victory is still a victory and sometimes you win by losing.
Appeals Court Reverses Conviction in 11 Person Jury Trial
12 Persons Required to Serve on Texas Felony Jury Trial – Fort Worth Trial Lawyers
A felony jury trial in Texas requires 12 jurors (with limited exceptions). The defense can waive that requirement under certain circumstances, and jurors can be excused under certain circumstances. But generally, a felony jury panel must have 12. Below, we discuss a case in Denton County where the jury started with 12 and then went to 11 because a juror could not understand the English language well enough to serve.
Stillwell v. State – Opinion issued by the 2nd District Court of Appeals (Fort Worth) on May 28, 2015
Appellant, Eben Stilwell was convicted in the 367th District Court in Denton County by an 11-person jury of indecency with a child and sentenced to 12 years in prison. A jury of 12 was originally empaneled but after three days of testimony, one of the jurors came forward and informed the court that he was having difficulty understanding the proceedings. The juror primarily spoke Spanish and was having difficulty following the proceedings because they were in English.
During the conversation between the judge and the juror, the juror repeatedly said "I understand a little bit" or "I don't understand." Both the defense and state agreed that the juror did not adequately understand the English language and was not completely following what was going on in the courtroom.
The prosecution and defense disagreed, however, as to the legal basis for the juror's removal. The state urged that juror be deemed "disabled" under Tex.Code Crim. Proc. Ann. art. 36.29(a), which would allow the trial to proceed with 11 jurors over defense objection. The defense argued that because the juror was never able to serve, he was disqualified and a trial using 11 jurors could only proceed with the defendant's consent. The defendant did not consent to continuing the trial with only 11 jurors. The trial court followed that state's recommendation and dismissed the juror as disabled, continuing the trial with only 11 jurors.
The 2nd District Court of Appeals (Fort Worth), Justice Sudderth writing the opinion for the court, held that the court could have allowed the juror to remain on the jury because the right to have him excluded due to his inability to understand English had been forfeited. It is always the attorneys' duty to determine that capability and fitness of the jurors during voir dire. Neither party inquired as to ability to understand the English language.
But, once the court determined that the juror should be dismissed, consent of the defendant was required to proceed with 11 jurors. Because appellant did not agree to proceed with 11 jurors, a mistrial was required. The lower court was reversed.
Fort Worth Criminal Trial Lawyers
If you or a loved one have a criminal case in Fort Worth, you need to seek the best criminal defense lawyer to represent you and protect your rights at trial. Call our attorneys today for a Free Consultation of your case.


This trip to Morocco was certainly one of the most rewarding and enriching I have done so far, both for traveling alone and for the magnificent results that I have achieved. I was very lucky with the weather and the people who kindly helped me throughout my stay.
None of it could be done without the outstanding equipment I have used: DSLR Sony A99 and Sony FS700, lent by Sony Spain, and Xlidercam-M, lent by KietaCAM. Therefore I would like to express my deepest gratitude to Javier Agueda, Belen Arronte and Jose Hernandez.


Telluride made its mark on the map because of the amazing ski terrain. Many perceived this as an expert ski area, but with all the new improvements over the years, we really do have terrain for anybody. While the skiing is superb, the summers are beckoning you to get here! Many of us came for the winters, but the summers kept us here!
1. Festivals, Duh! Our outdoor music Festivals are by far the most iconic summer events. Join us for one of the many festivals and see for yourself. The memories last forever. Unless you are at the Grand Beer Tasting Saturday of Blues and Brews. And then you might forget a few memories. Telluride Summer Festivals.
2. Hiking. Yes, we are at nosebleed altitude but after a day or two, most sea level dwellers are able to take in some of the most incredible vistas up and out of the Telluride Valley. Bring lots of water. Strap a backpack to your dog for extra water. Drink lots of water before you go. Do you sense the importance of hydration yet?
3. 4 x 4 Jeep Tours. Getting the begazes scared out of you on some of the mountain passes can make for a thrill you will never forget. Experienced tour guides can take you, or you can brave it in a jeep rental. Either way, you are in for a ride.
4. Wildflowers. You will think you have died and gone to floral heaven in the high alpine hikes. Lupines, Columbines, Bluebells, Indian Paintbrush of all colors, Monkshoods, Fairy Trumpets, and the ever-elusive Monument Plant will fill your sights with beauty at ground level. Then look up! Wow! There you are in paradise.
5. Because Telluride is just cool. Cool vibes, cool locals, and it really is cooler than where you are in the heat. Feel the natural breezes of our high mountain climate. No dripping wet from humidity here! And if it is a bit hotter than you wanted? Go jump in the lake, or the river. Chill out. You are here, the most scenic place in Colorado! Oh, what the heck, on the planet!


In this instalment of "AWS via Haskell", we'll look at how to perform basic tasks with S3. This follows on from my previous post in which I talked about DynamoDB.
The AWSInfo module provided here extracts some of the helper functions from my previous post and generalizes them to all AWS services.
I've gathered this all together into this buildable project. As always, I like to build using Stack.