Jury Nullification Requires an Open Door Policy

Mr. Schwartz goes to Woburn

As many of you know, I am very active in the Pro Bono Initiative of the American Society of Trial Consultants. I head up the New England Team and I am working hard to get the word out that there are consultants willing, ready and able to help out with cases involving clients of limited means. As part of this effort, I have arranged with the Middlesex Defense Attorneys (MDA), the folks who administer the Bar Advocates Program for Middlesex County, MA, to hold regular Jury Trial Strategy clinics in Middlesex County courthouses. I hosted the first of these free clinics last week in the Woburn Superior Court. Attendance was great, with lawyers from Suffolk and Worcester Counties, as well as the Middlesex folks.

The cases on which the attorneys wanted advice were quite substantively diverse. They included assault, child molestation, accessory to murder and filing a false police report. One might imagine that this set of cases would have little in common. In fact, there did seem to be a common thread to several cases. While the state had a strong case that the defendant had, in fact, violated the relevant statute, there was something about the defendant, or the circumstances of the crime, that might lead a jury to be reluctant to convict.

The Law vs. The Defendant

That's right, broadly defined, these were nullification cases. Given the broad spectrum of those who read this blog, I should probably define jury nullification. That turns out to be a tricky proposition, in and of itself, and many an academic article, dissertation or book have been dedicated to providing such a definition. Luckily for us, I don't have to convince anyone that my definition of nullification is the best one. It just has to be useful for this blog entry. So, for our purposes, jury nullification is simply a decision by a jury to choose a verdict that is not supported by the facts and the law. Importantly, a jury that is simply mistaken about something is not nullifying. The kind of nullification that most scholars talk about -- and is most relevant here -- involves a jury acquitting a criminal defendant despite its conclusion that the defendant has, in fact, violated the law.

Most legal scholars discuss "jury nullification," which describes the circumstance when an entire jury chooses to acquit a defendant, notwithstanding the evidence to the contrary. Documented cases of jury nullification are few and far between. There are, of course, some famous historical examples. Northern juries often refused to convict people of violating the fugitive slave laws prior to the Civil War. Many juries were reluctant to convict draft card burners during the Vietnam War. Much less well documented, but undoubtedly more common, are instances of "juror nullification," when an individual juror (or several) refuses to vote for conviction. From a defense attorney's perspective, juror nullification is a more realistic goal. It might not be possible to convince an entire jury to show mercy on the defendant, but one can try to give at least a few jurors something to think about.

There are only two states, Maryland and Wisconsin, where an attorney is permitted to mention jury nullification explicitly. This is probably just as well, since most people are very reluctant to admit to themselves that they are circumventing the law, ignoring the judge's instructions and violating their oaths as jurors. Self-perception is a very important part of a person's mental health. No-one likes to think of himself as dishonest, untrustworthy or lawless. As such, if your case turns on your ability to convince jurors to knowingly nullify, you have a very steep uphill battle in front of you.

The Road to Nullification

That said, the situation is not really that dire. Jurors will nullify, so long as you allow them to think they are doing something else. How does this work? Fortunately, criminal law is filled with lots of fuzzy concepts requiring juror interpretation. Which witness was more credible? Did the defendant have the necessary intent? What did the defendant know at the time? Was the defendant under the control of another person? These are just a few examples of the sorts of questions that give jurors a lot of wiggle room. Finally, everything is wrapped up in the concept of "reasonable doubt." Just how sure does a juror have to be to convict? Several studies show that jurors self-report more demanding conceptions of reasonable doubt in cases presented more sympathetically to the defendant. That is, when a juror wants to convict, she employs a fairly lax burden of proof (say, 75% certainty), but when she has reservations, the same juror might employ a much stricter threshold (say, 90%).

So, get out your pencils (or PulsePens or iPhones). Here's what you need to get jurors to nullify (ssshhhhh..... they might hear you):

1) You need a hook.

You'd better have a client or a statute or a case or an extenuating circumstance that is likely to engender reluctance to convict. Whatever hook you have needs to be something you can bring out in court. You can't count on jurors to just assume great things about your client.
Examples of such hooks include:

A) Nothing will be accomplished by sending the defendant to jail.
B) Prosecuting the defendant is unfair, given what has happened to others doing the same things (accomplices perhaps).
C) The defendant is so young that a conviction will ruin his life.
D) The victim is just as responsible (or is a bad person).
E) The state is wasting everyone's time by bringing this case.

2) You need a door.

Now that you have planted the hook, with any luck (and skill on your part), some of the jurors will be looking for a way to escape from convicting your client. The law seems pretty clear and the judge has repeated several times that each juror has sworn an oath to follow the judge's instructions. Whatever is a compassionate juror to do?

You have to provide a way for a juror to find for your client while simultaneously believing that she has done her civic duty to the best of her ability. That is, it is your job to show the juror how to both vote "not guilty" and also go home feeling good about herself. You need to show her the door she can walk through.
Examples of such doors include:

A) A list of forensic evidence that was never collected.
B) The absence of an eyewitness.
C) Inconsistencies in testimony of the victim or other witnesses.
D) Sloppy police work.
E) The importance of any mens rea requirement (No one can know for certain what the defendant was thinking).
F) The ambiguity of language in the statute

All of these elements are meant to introduce uncertainty in the minds of jurors. You have just shown them the door. Now you just need to give them permission to open it. That is where the reasonable doubt requirement (and the burden of proof) comes in. It is essential that you emphasize in closing arguments both that the burden is completely on the state to prove its case and that the reasonable doubt standard is a very demanding one. Be sure to point out that the state must prove every element of the offense beyond a reasonable doubt.

Obviously, a strict liability crime affords fewer "outs" for your sympathetic jurors. Hopefully, the state's case has at least one weak link you can pry at. Your argument only needs to pass the sniff test -- it doesn't have to be persuasive. Your job is to provide ammunition for those jurors who are on your side to begin with.

If you've done your job, a juror who doesn't want to convict your defendant can, with a straight face, explain to her fellow jurors that, while she might think the defendant is guilty, the DA just didn't prove the case beyond a reasonable doubt. "Gee folks, I really want to vote with you, but I just can't do so in a good conscience."

3) Don't push.

Jurors are constantly speculating about things they know nothing about. What else could the police have done? Did that witness get a deal? What was girlfriend's real relationship with the defendant's mother? Would we really be here today if the defendant were white? It is this speculation that allows a defense attorney to encourage nullification just by emphasizing the uncertainty in the process. The more unsure are the jurors, the more they will speculate about things not in evidence.

That said, jurors distinctly resent being told what conclusions to draw from the evidence (or lack thereof). When people believe that their choices are being dictated by others, they tend to experience reactance, which is a tendency to rebel against the perceived loss of autonomy. Suddenly, the options that have been taken away seem more appealing (Just think of any teenager who has been forbidden from doing something).

Now that you have your jurors looking for a way out and you have offered them an exit, you need to resist the temptation to connect the dots for them. A juror might be sympathetic to a high school kid who got caught sharing pot with his friends. That juror might be inclined to use uncertainty about who originally purchased the pot to avoid voting guilty on a distribution charge. But you have to let the juror come to that conclusion on her own. If you tell her to take those specific steps, she will question your motivation. She might feel manipulated. She might face derision from other jurors for having "bought what the defense was selling."

You can show your jurors the door, but they have to walk through it on their own.

Is this really Nullification?

This really boils down to semantics at this point. I helped a lawyer secure a hung jury (with no retrial) in a statutory rape case involving two teenagers. The complaining witness's account was full of holes and inconsistencies. Since statutory rape is a strict liability crime, however, the jury only needed to conclude that the two had sex -- ever -- to find the defendant guilty. Clearly, extralegal factors, such as the defendant's age, the asymmetry of the situation, tepid support for such laws and the absence of violence played a role in the jurors' evaluations of the case. So, that would suggest labeling this a case of jury nullification. On the other hand, had the state's case been ironclad, I am convinced the jury would have voted guilty. So, the verdict was really the result of a delicate interplay of the strength of the case and the jurors' predictable ambivalence about the trial. Our strategic victory was successfully playing one off against the other.

Don't wait for mediation to fail before calling trial consultant

More Great Stuff in The Jury Expert

The most recent issue of The Jury Expert has just come out. For those who are still in the jury trial dark ages, The Jury Expert is the online publication of The American Society of Trial Consultants. It has quickly become the go to source for expertise on jury behavior, jury trial strategy and recent developments in the American Jury system. Any litigator who doesn't subscribe just isn't that interested in winning at trial. 'Nuff said.

How to Win a Mediation

In the November issue, Melissa Gomez has contributed a very nice article on the importance of conducting jury research prior to mediation. Melissa focuses on a particular aspect of jury research -- and a very important one -- figuring out what your case is worth. Any settlement discussion takes place in the shadow of a jury trial. What offer should you make? What counter offer should you accept? The answers depend, of course, on what you think a jury will do. Information is power. If you understand better than your opponent what a jury will do at trial, you will "win" at mediation. To this end, Melissa particularly advocates focus group research targeted at the damage award calculations that jurors will undertake. She also refers to these as "valuation studies."

She points out another advantage of such studies. Sometimes, a lawyer has to convince her own client of what a case is worth. Mediation is only successful if client and attorney walk into the room on the same page. Melissa offers a nice example of a case in which pre-mediation research provided the client with realistic expectations of how a jury would react to a case. This permitted the lawyer to guide the client to a sensible settlement.

Ignore the data at your own peril

Melissa also offers a couple of cautionary tales about litigants who chose to proceed to trial notwithstanding study results that suggested doing so was a bad idea. Remember: It doesn't matter what you think the case is worth. It only matters what a jury thinks the case is worth. This does raise an issue that we trial consultants often encounter. For jury research to be successful, it is important to have buy-in from both litigants and litigators. While numbers are always involved, we are generally dealing with small enough samples that this is qualitative research. The trial consultant's expertise is critical to interpreting those results. If a lawyer, or her client, does not respect that expertise, the time and expense of a jury study will be for naught. If you treat your trial consultant as a glorified project manager, you will be squandering the value of your jury research.

It's not just about the numbers

Melissa has done a nice job of illustrating the value of pre-mediation jury research on case valuation. This is not, however, the be all and end all of trial consulting for mediation. A mediation is not a trial, but it is a legal process. It has its own rules, ebb and flow, and opportunities for information exchange and argument. In the same way that it is critical to have a solid presentation strategy for a jury trial, it is vital to have a game plan for mediation. If you plan to just show up and hear what the other side has to say, you are wasting an opportunity.

Typically, each side has an opportunity for an "opening statement" to the mediator. Each side can bring in exhibits, reports and data. In addition, this is a lawyer's one real opportunity to speak directly to the client on the other side of the case. A good litigator will use that opportunity to her advantage. I discuss how a trial consultant can help a litigator prepare for some of these other aspects of mediation in an article I wrote for Lawyers Weekly. While there is some overlap with the themes in Melissa's Jury Expert article, there are several other nuggets of wisdom, as well. Check it out!

Boston Terrorism case will prove a test of Terror Management Theory

On October 21, Acting U.S. Attorney for Massachusetts, Michael K. Loucks, announced that Tarek Mehanna, a 27 year old Sudbury man, had been arrested on suspicion of terrorism. Last year, Mehannna had been charged with lying to authorities in conjunction with the investigation of another terrorism suspect, Daniel J. Maldonado.

Mehanna and his coconspirators apparently never got particularly close to actually carrying out any terrorist acts. They are alleged to have travelled to several foreign countries in search of training by extremist Islamist groups, but were never accepted. They are also alleged to have failed in their attempts to secure weapons for an attack on U.S. soil. As such, Mehanna's alleged terrorist activities were largely aspirational. U.S. criminal law is very clear in not punishing people for "thinking bad thoughts," regardless of how reprehensible those thoughts might be. Prosecutors are faced with proving that Mehanna actually took specific steps to operationalize concrete terrorist acts. This scenario is almost certain to result in Mehanna's attorneys refusing to accept a plea, insisting instead to take the case to trial.

What then might we expect from a Mehanna terror trial?

One thing is certain: Terror management theory (TMT) will play a major role in how jurors resolve the case.

What is Terror Management Theory?

Pioneered by Ernest Becker in the 1970s, Terror Management Theory (TMT) concerns how people manage fears of their own mortality. Here is TMT theory in a nutshell: Every person has a particular world view, comprised of their beliefs, values, experiences, and choices. Each individual requires periodic confirmation and support for his world view. Such support allows him to feel good about himself and live comfortably with the choices he has made. When a person is confronted by his own mortality, it emphasizes his fragile and limited existence on earth, creating a great sense of unease. Facing such emotional stress, a normal person will require more reassurance than usual and will typically take refuge in the company of those who share his world view. He will defend that world view more rigorously than usual and will view more negatively attitudes and behaviors that conflict with that world view.

An excellent review of Terror Management Theory, and its application to jury trials, by Joel Lieberman and Jamie Arndt, appeared earlier this year in The Jury Expert, the online publication of the American Society of Trial Consultants. Be sure to check out the two commentaries by trial consultants that follow the article. I highly recommend that any litigator read this article, as the theory is relevant across a wide variety of cases. Given what a good job the authors did in explaining TMT, I won't go into much more detail here.

I would only ask my readers to consider Americans' responses to the events of September 11, 2001. People shouted their patriotism from the rooftops. Men and women joined the military in record numbers. Politicians sported American Flag pins and the President's approval ratings skyrocketed. People were terrified and they took every step possible to shore up the element of their world view that had been most threatened: their Americanism. Congress even went so far as to rename French fries Freedom fries in response to perceived inadequate support from the French government. It was the ultimate case of rallying 'round the flag.

The Jury Expert article includes references to dozens of studies confirming the effects of TMT and does a nice job of reviewing a few examples. It is quite remarkable how much a person's behavior can be affected by simply thinking about something morbid for a few minutes.

Terrorism and TMT

I cannot imagine a crime that calls up concerns for one's own mortality more than terrorism. The more that a juror finds herself obsessing about death, in response to the details of a terrorism trial, the more punitive she will likely be to a defendant whose beliefs and actions directly threaten her own world view.

Typically, a change of venue is only granted when a judge is convinced that pervasive pretrial publicity has made it virtually impossible to impanel an impartial jury. While the Mehanna case has certainly received a great deal of publicity already, it will be an uphill struggle for Mehanna's lawyers to secure a change of venue. The U.S. Attorney's office will argue that the publicity has been national in scope, so that the defendant will face similar exposure in other venues. But Mehanna faces a more subtle challenge associated with being tried close to home. When prospective jurors learn of the charges against Mehanna, they will realize that it was their own lives that were in danger. From what I understand, the defendant is accused of planning to bomb local shopping malls. So, every prospective juror will realize that she might have been one of his victims. This will ramp up obsession with mortality and morbid concerns, thereby ratcheting up juror disapproval of Mehanna's world view. As the jurors dig in, in defense of all they hold dear, Mehanna will be seen as an enormous threat. While a jury in some other part of the country would certainly also view these alleged terrorist plans as reprehensible, such jurors would not necessarily experience a similar sense of mortality and dread.

There is one byproduct of TMT that might work in Mehanna's favor. One item that is seen as emblematic of "American Justice" is a firm commitment to fair procedures. Americans identify strongly with the "beyond a reasonable doubt" standard. They believe that one of the things that makes our country great is that we do everything "by the book" and in a "transparent" way -- not like those "crazies" in the Middle East. As such, jurors in this case are likely to be extremely careful to follow all court rules and judicial instructions. Juries in prior terrorism cases have ruled in favor of defendants when they have perceived that those defendants didn't really get a fair trial or when the evidence has been sketchy.

So, while jurors in this case will feel strong psychological pulls to be punitive towards Mr. Mehanna, they will also feel a strong need to dot all their i's and cross all their t's and generally do everything by the book. Because that is the American Way. The only question is whether these conscious efforts cans overcome natural subconscious tendencies to punish a man who has made jurors feel exposed and vulnerable.

What is a defense attorney to do?

This will obviously be a tough case to defend. That said, there a few things Mr. Mehanna's attorneys can do to mitigate the negative consequences of TMT and use its positive features to their advantage.

1. Make sure to ask prospective jurors about their emotional reactions to hearing about the arrest for the first time. Anyone who replies, "I thought, 'Oh my God! That could have been me in one of those malls!'" is of concern.

2. Spend a lot of time in opening and closing emphasizing the dimensions of procedural fairness built into the American criminal justice system. Burden of proof. Evidentiary rules. Reasonable doubt standard.

3. Remind jurors of their obligations as Americans to follow those rules.

4. Characterize the defendant as an "American who was led astray." It is key to convince jurors that the defendant is not the threat. The threat is those who would seek to use someone like the defendant as a tool in their diabolical plans.

5. During the jury selection process, make good use of some authoritarianism index, in an effort to identify those prospective jurors most likely to give vent to their punitive tendencies.

Moving Forward

Mr. Mehanna's most recent court hearing, on his detention status, was postponed until November 12, so that his attorneys could have more time to prepare. I have a feeling that this case will take a long time to move through the trial process. As it does so, I will be sure to provide updates on this blog, along with commentary on any features of the trial that seem noteworthy.