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Monday, December 12, 2011

Can Tarek Mehanna Take the Fifth... and the First?

The Protected Free Speech Defense

The terrorism trial of Tarek Mehanna has been going on in Federal District Court in Boston for about a month now. (Find my prior blog posts on the trial here.) Jay Carney, Jr., and the rest of the defense team, have built their defense to charges of supporting Al Qaeda around the First Amendment right to free speech. While the defendant might have said, written, posted, blogged and translated some items that most Americans would find repugnant, the Bill of Rights specifically protects the right of any American to do just that. The defense contends that none of these ideas were ever put into action and therefore can't constitute criminal conduct.

I will admit that, when the trial first started, I thought this defense was a long-shot. Surely the prosecution would present evidence of actual deeds that would puncture the credibility of the free speech defense. As the trial progressed, however, I was struck by just how little of the government's evidence went beyond texts, translations and conversations. Maybe they could pull off this defense, after all.

There is the sticky situation of Mehanna's trip to Yemen, allegedly to receive terrorist training. The defense that he was simply seeking to further his religious studies rings quite hollow. There doesn't seem to be much more than this, though, in the "smoking gun" department. It seems as if the authorities only managed to pulled off of his computer text files and emails. That is, they have a seemingly endless  supply of hateful and desperate speech... but it's still all speech.

Was the Speech Dangerous?

The protections of speech, even political speech, do have their limits. If the speech was intended to and/or could reasonably be expected to incite violence, the state interest in preventing that violence trumps the right to the speech. While the burden is on the prosecution to prove that the speech in this case was too dangerous to permit, the true burden is not so cut-and-dried. The easy solution for the jury is to accept the prosecution's assertion that this kind of vitriolic America-bashing is dangerous and should not be permitted. As such, it is incumbent upon the defense to reassure the jurors that there is no link between this kind of speech and an actual threat to their lives, their safety and their way of life.

That is, the defense needs the jurors to conclude that this speech is not dangerous. The defense needs the jurors to understand that Tarek Mehanna can believe everything he wrote and said and still not be a threat.

Should the Defendant Take the Stand?

This brings us to the very tricky question of whether Tarek Mehanna should take the stand in his own defense. The last time I wrote about this question, it was in the context of the Edward Fleury trial (Fleury had organized a gun show at which a young boy had accidentally shot himself to death with an Uzi submachine gun). There is an added twist to this strategic decision in the Mehanna trial. The whole defense is premised on the proposition that nothing Mehanna has said is dangerous. He need not renounce any of his writings because the Constitution protects his right to express his views. Most importantly, those views did not spur either Mehanna or his compatriots to violence. That is, the defense needs the jury to conclude that Mehanna's speech is innocuous.

While a jury is always instructed not to conclude anything about a defendant's guilt or innocence from his choice not to testify, we know from ample empirical research that jurors always draw inferences from this decision. It will be particularly difficult for jurors in this case to ignore a decision by Mehanna's defense team to have him not testify in his own defense. How is a juror to conclude that Mehanna's speech is harmless if he is not willing to take the stand and defend that speech himself? If Mehanna is afraid of the consequences of speaking his views in open court, perhaps the jurors have reason to fear that speech, too.

So, the defense confronts a very real dilemma. Can the defendant simultaneously assert his FIrst Amendment right to free speech and his Fifth Amendment right not to speak at all?

According to media sources, the defense is scheduled to rest its case later this week. That suggests to me that Mehanna will not testify in his own defense. Such a choice is a gamble in this case -- perhaps more so than in a typical case -- but I can certainly understand the defense team going in that direction. Perhaps it is a better bet that jurors will properly internalize the burden of proof on the government here than that Mr. Mehanna can avoid saying something incriminating on the stand under cross-examination. The remainder of the case certainly holds its share of suspense.

Monday, October 31, 2011

Jurors as Interpreters: When Facts Aren't Facts

The Interpretive Role of the Jury

The Tarek Mehanna Terrorism trial is compelling drama, revealing about our homeland security efforts, and instructive about America's uneasy relationship with Islam. It is also a case that implicates some of the more fascinating and troubling aspects of the American Jury System.

In our USC Interdisciplinary Law Review article, "And So Say Some of Us...: What to do When Jurors Disagree," we begin with the premise that, in a large number of criminal cases that actually go to trial, material questions are put to jurors about which reasonable people could disagree. That is, the failure to reach unanimous consensus does not represent a failure of comprehension or duty on the part of jurors, but rather follows naturally from the fact that jurors are often asked to resolve difficult interpretive questions, to which there are no right answers.

The most obvious and ubiquitous of these questions is whether the state has proved its case beyond a reasonable doubt. Because there exists no objective definition of reasonable doubt, and the courts have steadfastly refused to provide one, each juror is free to decide for herself how much doubt is reasonable. In addition, even for those jurors who share interpretations of this standard, their natural inclinations to weigh evidence differently, and view witnesses as more or less credible, can result in differing conclusions about whether the state's burden of proof has been met.

This is, however, only one example of the kind of interpretive question jurors are asked to resolve as part of "finding the facts." Mens Rea requirements provide another obvious example, as jurors are asked to decide, as ostensibly a factual matter, whether the defendant possessed a certain state of mind at the time of the commission of an unlawful act. Was there "malice aforethought"? Was the assailant "reasonably" afraid for his own life? Was he "under the substantial influence or control" of another person? Were the consequences of his actions "reasonably foreseeable" by the defendant? These are all interpretive questions. Any two people who hear testimony in the same case could reasonably disagree about the "right" answers to such questions.

When is Free Speech Too Costly?

There are two major interpretive questions facing jurors in the Tarek Mehanna trial. The first one is whether the kind of material being posted on Mehanna's website, and being espoused by the defendant in direct conversations with others, is protected by the First Amendment's free speech provision. On the one hand, it is clearly political speech, which entitles it to heightened consideration for protection. On the other hand, we all have heard that the First Amendment does not provide the right to cry "Fire!" in a crowded movie house. That is, one is not Constitutionally permitted to use speech to endanger the public safety. The question in this case might be summed up succinctly by asking whether it is Constitutionally permissible to cry "Jihad" in a crowded mosque.

The defense team in the Mehanna case has requested that the jury be instructed about First Amendment free speech rights in advance of trial testimony. Their proposed instruction includes language about this fine line between political dissent and a call to arms:

"[T]he right to free speech includes the right to advocate force or violence, unless the speech is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action."

To the extent that the jury is willing to see this case as a referendum on free speech (Let's not forget that Mehanna is also accused of plotting a terrorist attack on a U.S. shopping mall and seeking jihadist training in Yemen), the jurors will have to wrestle with several concepts without obvious objective meanings. What does it mean to "direct" someone to violence? Does it have to be targeted at a specific person or group of persons? Does the "director" have to advocate a particular form of violence, or is general approbation of violence sufficient? What constitutes "imminent" lawless action? Within a week? A month? A year? Does it matter if the perpetrator knows whether his words will actually convince anyone to do anything?

Finally, there is the very open-ended question of how "likely" his words are to incite actual action. Each juror would seem free to decide for herself how effective Mehanna's words would have to have been in order to nullify his First Amendment protection. If there were a 5% chance that someone would engage in criminal behavior as a result of Mehanna's exhorting, has he crossed the line? A 1% chance? A 25% chance? How likely is "likely"? Is it a sliding scale, depending on how devastating we fear the "incited action" might be?

Is there such a thing as Immaterial Support?

The second major interpretive question facing the jury in the Tarek Mehanna trial is whether speech can constitute "material support"? Everyone agrees that arming a terrorist organization, providing manpower for its efforts, or giving it money all count as providing that organization with material support.

The prosecution in this case contends, however, that Mehanna provided material support to the recruiting and propaganda efforts of Al Qaeda, simply by translating documents into English and posting them on his website.

In the jury instruction on material support, requested by the defense, material support can be in the form of  "... service, including ... expert advice or assistance..." According to the requested instruction,

"To constitute a crime, the material support must be provided at the direction of the terrorist group, or in coordination with the terrorist group, or as a service provided directly to the terrorist group at its request."

I would imagine that the prosecution would vigorously dispute this interpretation of the statute. I do not know how Judge O'Toole has ruled on this question.

Even should this wording be used, there remains an open question of whether Mehanna's efforts were pursued "in coordination with" Al Qaeda. While it is not clear that Mehanna had direct contact with Al Qaeda members, he does seem to have had a great deal of contact with people who were themselves connected to Al Qaeda. So, how orchestrated must Mehanna's efforts have been to be considered "in coordination with" Al Qaeda?
Consider the question of approval. Suppose the prosecution could show that approval for Mehanna's efforts were posted on official Al Qaeda websites. Once Mehanna knows that Al Qaeda is aware of his actions, does he consider them coordinated?

The Law/Fact Distinction: A Convenient Legal Fiction

I have identified above two clearly interpretive questions that the jury in the Mehanna case must address as it considers its verdicts. While the questions in this case are particularly "juicy", such interpretive issues permeate all the jurors do. While it is convenient to characterize the jury as the "arbiters of the facts" and the judge as the "arbiter of the law," the distinction really does not exist. Judges make factual determinations as "rulings of law" all the time. Similarly, jurors are constantly asked to give meaning to legal terms that are ambiguous, at best.

This is not a bad thing. It provided the avenue through which a jury can act as the "conscience of the community." The jurors interpret the legal language through the lenses of the times and circumstances in which they are living.

Such a realistic understanding of what jurors do should also inform our appreciation for what jury consultants do. Some would argue (never anyone who has worked with one of us, of course) that we try to "twist the minds" of jurors. We "pervert the facts" and "manipulate the process." This is utter nonsense.

We are not lawyers. As such, we need not give even lip service to the artificial law/fact distinction. As students of human behavior, we have always understood that jurors are engaged in a difficult, sometimes subtle, and poorly guided interpretive process. With a wide spectrum of legitimate interpretations from which to choose, a juror is constantly looking for clues, for guidance, for help in understanding how to best do her job. Sometimes, her first question is simply, "How do I begin?"

We trial consultants work for clients. We try to help our clients win their cases. So, none of us would argue that we don't have an interest in the outcome of a case. I can't speak for other members of the profession, but, I can confidently say that I have never worked on a case where I thought my client shouldn't win. This is because every case is a close call. Every case relies on jurors' interpretation of testimony and evidence and the meaning of the laws they are asked to apply. In every single case I have worked on, there was a very plausible interpretation of these factors that favored my client. And, of course, in very many of them, there was a plausible set of interpretations that favored the other side.

That is why we were in court, in the first place.

What will the Mehanna jurors do?

I know how I would probably resolve the interpretive issues in the Mehanna case, although I allow for the possibility that I might feel differently were I on the jury, seeing only what the jury sees. For reasons I have enumerated before, many having to do with Terror Management Theory, I also have expectations about what the final verdict will be in this case. That said, I don't know with any certainty how the individual jurors will handle the specific interpretive questions I identify here. There are no right answers, only opinions. And juror opinions never cease to surprise me.

It is very unfortunate that parties are not permitted to interview jurors in Massachusetts after they have rendered verdicts. I think it would be fascinating to learn how these jurors tackle their interpretive dilemmas. Which words will they key in on? Which definitions will prove compelling? Will they reach the same verdict for different reasons? Will the task simply prove too big for some of them?

I only hope that Judge O'Toole will treat their task with great respect. I hope that when they seek guidance, he does not simply resort to rereading the jury instructions to them. I hope that, maybe just for once, the law/fact distinction can be set aside in the interest of justice.

Wednesday, October 26, 2011

Challenging Jury Selection in Tarek Mehanna Trial

Followers of The Jury Box Blog know that I have been following closely the case of Tarek Mehanna, since he was arrested and arraigned nearly two years ago. Mehanna, a pharmacist from Sudbury, MA, is accused of engaging in terrorist activities and "providing material support" for Al Qaeda. In addition to have allegedly attempted (unsuccessfully) to receive jihadist training in Yemen and plan the bombing of an American shopping mall, Mehanna is accused of translating into English and posting to websites hundreds of pro-Al Qaeda documents. His case then presents a very difficult question. Can publishing propaganda be considered "providing material support"? Mehanna's defense team desperately wants to turn this into a First Amendment case, while the prosecution aims to prove that the defendants efforts were all aimed at actually furthering the destructive efforts of a terrorist organization.

Tarek Mehanna
You can review my earlier blog posts about the case here. In addition, I gave a talk about Terror Management Theory at Harvard Law School in September, where I focused in on the challenges presented by the Mehanna case. Finally, as the trial got started this week, I was interviewed by WBZ-TV news (the CBS affiliate in Boston) about the challenges associated with picking a jury in this highly charged case. A brief snippet of that interview can be found in the video embedded in this page.) In previous blog posts, as well as the TV interview, I addressed the fact that the default jury selection rules in federal court are ill-suited to handling the myriad problems of intrinsic bias in this case. Having the judge conduct group voir dire in open court is a recipe for disaster. Judge O'Toole, who is presiding over the case, is not exactly known as an innovator on the bench. 

Judge George O'Toole
Jury selection did begin on Monday of this week and we have learned just a few things about how it is proceeding. 

  1. The initial panel of prospective jurors numbered only 60. Given that this could be a two-month trial, this seems to be a really small number. It suggests that the judge is not going to be particularly accommodating with respect to challenges for cause, based either on personal beliefs and experiences, or exposure to pre-trial publicity about the case. 
  2. The group voir dire was pretty much by the book. Everyone was asked a series of yes-or-no questions to which they had to respond affirmatively by raising their hands. Much research on this topic suggests that prospective jurors very often "lie through omission" in this setting, especially with respect to sensitive or controversial topics.
  3. Judge O'Toole did have the good sense to conduct the ensuing individualized voir dire in his chambers. That is, rather than having a prospective juror come up to side-bar for a whispered conversation, with a courtroom full of spectators, fellow jurors and reporters trying to eavesdrop, O'Toole elected to have these conversations in private. Only the judge, a court reporter, the attorneys and the defendant have been permitted into chambers for this part of the voir dire. This should help people feel slightly more comfortable and hopefully forthcoming, as well.
  4. Despite much research that shows that jurors tend to be more open, honest and forthcoming when questioned by attorneys, Judge O'Toole is insisting on conducting the voir dire himself. In addition to the general intimidation factor, this runs the risk of jurors trying to anticipate the "right" answers to his questions, or trying to please him with their responses. 
  5. The other major problem with this judge-conducted voir dire is the insistence of judges to ask the "Can you be fair?" question. "Notwithstanding the fact that you have read 30 or 40 stories about the defendant in the Boston Herald over the past two years, Mr. Smith, do you think you can put aside any opinions you've encountered and be fair?" Research on this shows that people who confidently answer "yes" to such a question consistently exhibit more bias against defendants than people who admit that their exposure to pretrial publicity might have compromised their impartiality. Self-reflective jurors just tend to be more conscientious.
  6. We have learned a few things about what each side has asked to be included in the voir dire questions. Mehanna’s lawyers asked the judge to question prospective jurors about whether they have any family or close personal friends who were directly affected by Sept. 11 and if they attended any memorial service commemorating Sept. 11. This is a reasonable question, given that it is experiential, rather than opinion-based.
  7. The defense also asked for prospective jurors to be questioned about whether evidence that Mehanna greatly admired bin Laden would make it difficult for them to be impartial. This question is poorly worded, in that it asks for a level of self-reflection and self-evaluation unattainable by most people. Responses to such a question just aren't remotely reliable.
  8. Mehanna’s lawyers also want the judge to ask jurors whether they could be impartial after hearing evidence that Mehanna, an American-born Muslim, supported the destruction of the World Trade Center. This question suffers from the maladies as the previous one. The defense team is really in a quandary here because they are forced to phrase questions as yes-or-no and the judge will insist on wording about impartiality.
  9. Prosecutors, meanwhile, focused their proposed questions on attitudes about how some evidence against Mehanna was collected. They asked the judge to question jurors on whether they believe the use of electronic wiretaps is unfair and would make them unable to be impartial in evaluating the evidence against Mehanna. Again, the form of this question is terrible. It would be much better to just ask each prospective juror to talk a little bit about her views on the weighing of civil liberties against national security. Open-ended questions always work much better.
  10. The government also wants the judge to ask if jurors have any “fixed feelings or impressions” about Arabs or Muslims that would make it difficult for them to listen to the evidence with an open mind. My sense is that the only people who will answer in the affirmative here are folks trying to get out of serving.
To sum up then, the decision to hold individual voir dire in chambers should increase the willingness of prospective jurors to be candid and forthcoming. The public may never learn how these interviews have been conducted. I only hope that Judge O'Toole, outside of the media spotlight, will treat this voir dire as an opportunity to have more of a conversation with jurors, rather than peppering them with the traditional barrage of challenging questions.

Attorney John W. Carney, Jr.
Perhaps there is hope, given how upbeat Mehanna's defense attorney, John Carney, was at the end of Tuesday's session. He told reporters, "We're very pleased with the thoroughness with which Judge O'Toole is questioning prospective jurors. We are optimistic that we will get a fair and thoughtful jury in this case."

I wonder if the prosecutor is as sanguine....

Wednesday, October 05, 2011

Ferdaus Arrest complicates Mehanna trial

When did Massachusetts move from the Northeast to the Middle East?
Rezwan Ferdaus

Massachusetts residents awoke last week to the disturbing news that yet another resident of the Commonwealth had been arrested for Al Qaeda inspired terrorist activity. Rezwan Ferdaus is alleged to have concocted an elaborate plot to fly drone airplanes, loaded with explosives, into the U.S. Capitol, and then have snipers located nearby to shoot officials fleeing the explosions. Mr. Ferdaus is an American citizen with an engineering degree from Northeastern University, located right in the heart of Boston. 

Tarek Mehanna
It will be several years before Mr. Ferdaus is tried for his alleged crimes. That does not mean, however, that the effects of his arrest won't be felt around here much sooner. Tarek Mehanna, whose case I have discussed in earlier blog posts (09/03/11 post, 11/03/09 post), was originally scheduled to go on trial for similar terrorist planning activities on Monday of this week, only a few days after Ferdaus was arrested. Mehanna's trial has now been postponed until later this month, but the shock of Ferdaus' audacious plan will undoubtedly still be fresh in the minds of Massachusetts jurors.

As I have discussed in the previous posts about the Mehanna case, Terror Management Theory (TMT) has a lot to say about how jurors react to evidence and make decisions in trials involving allegations of terrorism. The constant reminders of death and mortal vulnerability triggers fear-induced intensification of one's commitment to one's world view. Jurors will feel threatened and they will respond by vigorously defending their values and chosen way of life against that perceived threat. Logic and common sense  often give way to emotional reactions and the need to feel safer at any cost.

It was going to be very, very hard for Mehanna to receive a fair trial in Massachusetts anyway. The 10th anniversary of 9/11 was very recent. Massachusetts residents have not forgotten that the planes that hit the twin towers originated here and carried many friends and loved ones. The default jury selection rules in Federal District Court do not provide many opportunities for lawyers to identify those jurors most likely to have their decision-making hijacked by emotional concerns.

Now, along comes another "home-grown terrorist." Undoubtedly, jurors will be more terrified than ever and want, more than anything else, to make it all stop -- to regain their safety and security. The emotionally-driven temptation to throw the book at Mehanna may prove too much to bear.

I gave a talk to the Harvard Law School Student Association of Law and Mind Sciences (SALMS) last month, where I discussed Terror Management Theory, and its application to the Mehanna case. (You can view my slides here.) A student asked whether I was at all optimistic that some of the defense strategies I suggested in my talk might actually help Mehanna get a fair trial. I couldn't express much optimism at the time and I am afraid that recent developments only make it more difficult for him to get a fair trial here in the new hotbed of domestic terrorism.

Tuesday, September 06, 2011

Facing the Fearful Jury: Terror Management Theory in the Courtroom

A few years ago, a collection of scholars at Harvard realized that there existed a great deal of psychological, neurological and sociological research on human cognition and behavior with profound implications for the practice of law. In order to explore these implications in a systematic way, they started the Harvard Project on Law and Mind Sciences, (PLMS) housed at Harvard Law School.

The founders launched several initiatives at once. They established The Situationalist, a blog devoted to the intersection of mind sciences and legal institutions. Rather than having the blog written by the same person all the time, The Situationalist invites contributions from dozens of scholars from all over. The result is an ecclectic and fascinating overview of exciting developments in this field.

PLMS has also run four conferences exploring psychological aspects of the law. The 2011 conference focused on causes and consequences of inequality. The 2010 conference dealt with the heavy-duty challenge of what, if anything, neuroscience can tell us about morality.

There is also a student group, The Student Association for Law and Mind Sciences (SALMS), which publishes its own blog and also sponsors a speaker series at the Law School. These talks, which are open to the public, cover a fascinating and diverse set of topics. The Fall schedule is now posted on the SALMS website.

I have the honor of delivering the first presentation of this semester. My talk, entitled "Facing the Fearful Jury: Terror Management Theory in the Courtroom," will be on Tuesday, September 13, at Noon, in 101 Pound Hall at Harvard Law School. The presentation, including time for questions, will last about one hour.

For those of you who are curious about what exactly Terror Management Theory (TMT) is, I would point you to two resources. First, there is an excellent review article, by Lieberman and Arndt, in The Jury Expert, the online journal of the American Society of Trial Consultants (ASTC). Second, you can review an earlier posting to The Jury Box Blog about the arrest of Tarek Mehanna, a pharmacist from Sudbury, MA who faces trial this fall on terrorism-related charges. In that earlier blog post, I anticipated that Terror Management Theory would have a lot to do with how this case would ultimately be resolved. As the eve of trial approaches, I will return to Mehanna's case during my upcoming talk.

It will have escaped the attention of few of you that my talk falls very near to the 10th anniversary of 9/11. This is no accident, in that the SALMS organizers have made a concerted effort to use this year's speaker series to reflect on the consequences of that fateful day for how we think, feel and react to the law. I know that we all remember where we were on that morning. As it so happens, I was sitting in Bill Eskridge's Civil Procedure class at Yale Law School, in a classroom not-so-different from the one where I will be giving my presentation 3654 days later. I know that those events affect me psychologically -- emotionally -- even today. Imagine what must go through the minds of jurors who are forced to face those fears head-on while deciding the fate of someone accused of plotting new terrorist acts. And so we have TMT in a nutshell.

I hope that those of you who are local will join me for what should be a very interesting discussion on Tuesday. For those who cannot attend, I will be sure to post here, and on my Twitter Feed, where one can watch the recorded talk online, once it is posted.

Monday, July 18, 2011

Clemens Hit by Pitch: Prosecutor gets Tossed

All Part of the Game

In baseball, there are a lot of things against the rules that players engage in all the time (Ironically, for a while there, I guess Steroid use was one of them). Pitchers try to doctor balls. Base-runners steal signs. Hitters obliterate the line at the back of the batter's box so that they can stand further behind home plate. Runners take out opposing fielders with hard slides, with no apparent effort to actually reach the base to which they were running. Pitchers throw at opposing batters, in retaliation for some real or imagined infraction against a teammate earlier in the game. All of these actions are technically against the rules, but typically are overlooked as "gamesmanship." Apologists remind us that ball players have been doing these things for over a century now. They're as ingrained in baseball as chewing tobacco and crotch-scratching.

In addition to being tolerated, many of these "transgressions" are celebrated as being evidence that a player is "hard-nosed," "old-school," or "playing the game right." I am always impressed by how accurately Jerry Remy can predict when a pitcher is going to hit a batter with a pitch. WIthout necessarily being able to articulate the unwritten rules of bean balls, Jerry nonetheless understands them intuitively. I am sure this comes from his decades in the game, first as a player, and then as an announcer for the Red Sox. Jerry has this uncanny ability to predict not only what kind of transgression will engender a retaliatory bean ball, but when it will come, against which player and even where on his body he's going to get hit

"That hard slide has Joe Maddon (the manager of the Tampa Bay Rays) pretty steamed. If this game gets out of hand, I wouldn't be surprised to see some reliever in the 8th inning knock down Youkilis or Pedroia. They won't go for his head or anything. Just a purpose pitch to let the Red Sox know the Rays don't appreciate what happened and they aren't going to forget it anytime soon." 

Sure enough, some scrub, who's just been called up from Triple-A, takes the mound in the 8th inning and plunks Pedroia right in the ass. And here's the weird part. Pedroia knows it's coming, too. And most of the time, that's OK. He calmly drops his bat, glares at the mound for a few seconds, and trots to first base. It's all part of the game.

Jury trials have their own rules

Litigation operates under its own set of rules. They are codified in the rules of civil procedure and very rarely does an experienced litigator do something impermissible in court without realizing he has broken the rules. That is, there are very few honest mistakes.

Just as in baseball, however, crafty trial attorneys understand the rules that aren't in the rules. One lawyer doesn't completely comply with all discovery requests the first time around. "Oh, Your Honor, I didn't realize counsel wanted those old emails, too. Gee, let me put my assistant right on it and we'll see if we can put our hands on them."

A witness will be slipped in at the last minute, despite numerous pre-trial conferences at which the lawyers are asked if the witness lists are complete. "We hadn't received Dr. Jones's report until last week, Your Honor, and we were fairly certain he wouldn't be available to testify."

Even though attorneys aren't supposed to argue the merits of the case during voir dire, a good trial lawyer will try to plant the seeds of her case by asking questions in a particular way. "Do you think it's possible that people make more typos when sending emails than when sending letters, so that an email might be less reliable as evidence?" A great question if the dollar amount included in an email will be used as evidence against your client; but, probably not completely kosher for voir dire.

Perhaps the place where this gamesmanship pops up most often is in the revelation of inadmissible evidence or testimony by a witness on the stand, prompted by a lawyer's question. Did the lawyer actually ask the question to elicit the verboten response? Did the witness know it was coming? Was the witness looking for an opportunity to "inadvertently" blurt out the information? Most of the time, it is pretty hard to tell.

Taking Control of the Game

When any of these transgressions occur, the judge has to figure out how to handle things. If the trial has started, the judge usually doesn't want to overreact. A mistrial is a royal pain in the ass for everyone involved. Sometimes, that is exactly what the offending party is looking for. So, the judge doesn't want to reward bad behavior. The first time something goes awry like this at trial, the judge will usually warn both sides to knock off the shenanigans. It's very much like a baseball umpire warning both benches.

If the offending behavior continues, the judge finds himself with the unenviable job of punishing one side or the other. Occasionally, a judge will make unavailable a particular line of inquiry that had previously been ruled in play. "That's it counselor. I've had just about enough. The inquiry about the secretary's salary is now off the table. Move to your next witness." This is akin to an umpire tossing a player from the game (or the manager). It limits a team's options and might reduce its chance of winning the game.

If the bad lawyer is recalcitrant and won't behave, the judge has the ability to impose sanctions that apply beyond the current case. Often, the matter will be taken up by the jurisdiction's board of bar discipline. Professional baseball players are subject to disciplinary actions by Major League Baseball, including fines and suspensions, the same sorts of punishments facing offending lawyers. Roger Clemens was suspended multiple times for intentionally throwing at hitters, and was famously fined $50,000 for "unintentionally" throwing a jagged piece of a shattered bat at Mike Piazza during the 2000 World Series.

The Last Resort: When to Call the Game

On occasion, the damage done to the trial process is considered so severe that a judge feels he has little choice but to declare a mistrial and dismiss the jury. A new trial date has to be set and a new panel of prospective jurors has to be convened. In a high profile case, this outcome is particularly problematic because one presumably wants to find new jurors who don't know much about what just happened in the first trial. 

The case law governing when to declare a mistrial is actually fairly sensible, if vague enough to allow a judge to ultimately do whatever she wants. At least, judges are directed to look at the right questions. For example, if a witness mentions something inadmissible during testimony, the judge is instructed to consider the following: (See Peyton v. US 709 A.2d 65).

  1. Was the inadmissible information uttered once or repeated? (Did the pitcher throw at the batter multiple times?)
  2. Was the statement inadvertent or solicited? (Did the manager tell the pitcher to hit the batter?)
  3. How important to the case is this witness's testimony? (Did the pitcher just plunk the other team's best hitter?)
  4. How significant is the inadmissible information and how will jurors interpret it? (How hard did you hit the guy, and can he stay in the game?)
  5. Is there other evidence that would have gotten the jury to the same place? (Is this game already out of hand?)
  6. Did the witness draw any conclusions about the inadmissible item or just mention it? (I guess this is sort of like the distinction between brushing a batter back and actually drilling him.)
These questions are intended to help the judge determine just how much damage was done as a result of the inadmissible testimony. In determining whether a mistrial should be declared, this damage has to be balanced against the likely effectiveness of a judge's instruction to the jury to disregard the inadmissible evidence. This is where the case law gets a little less sensible (big surprise there). The treatment in Peyton, however, is not bad.

Taken as a whole, the judge's instruction was not a pro forma and self- defeating admonition not to think about a pink elephant. On the contrary, the judge explained to the jurors, in rational and persuasive terms, why speculation about any hypothetical polygraph test would be unfair and unwarranted. A juror who, notwithstanding the judge's admonition, might have attempted to argue for conviction during deliberations on the basis of the stricken polygraph evidence would surely have faced a skeptical reception from his or her colleagues on the jury.
There is an excellent article by Lieberman and Arndt on what behavioral research tells us about the effectiveness of these limiting instructions. It is generally a pretty pessimistic story. In "Understanding The Limits of Limiting Instructions" (6 Psychol. Pub. Pol'y & L. 677), the authors analyze their own studies, as well as those of others in the field, to conclude that such admonitions very often do more harm than good. The "pink elephant" problem is a real one, as is "reactance", the natural inclination to rebel against limitations on one's freedom that have not been satisfactorily explained (Think about the behavior of any moody teenager).
While the authors offer several suggestions for improving the performance of limiting instructions where they might be used effectively, they reluctantly conclude that, in most instances, there simply isn't anyway to unring the bell.

Laura Pettitte makes a Surprise Appearance out of the Bullpen

This brings us back to what happened last week in the Roger Clemens trial. Judge Reggie Walton declared a mistrial on Thursday when video of Clemens's Congressional testimony, being shown to the jury, included a quotation by a Congressman of a sworn statement by Laura Pettitte, about a conversation she had shared with Andy Pettitte, regarding Roger talking about using Human Growth Hormone. It was third-degree hearsay and Judge Walton had very clearly ruled out its use by prosecutors.

Prosecutor Steven Durham tried to argue that, notwithstanding the judge's ruling on the matter, the particular video clip had been admitted into evidence without objection. This is a little like George Brett complaining that Billy Martin only challenged the pine tar on his bat after Brett had hit a home run with it, even though Brett had been using it all game. This is an interesting point, because it is quite possible that Clemens's lawyer, Rusty Hardin, didn't object to the clip precisely so that it would get played at trial, knowing full well that it would get the judge irate. This is, however, well within Hardin's rights. He need not object again to something that had already been categorically ruled out by the judge.

So, why didn't Judge Walton just admonish the jurors to disregard the reference to Laura Pettitte's statement? After all, it was very early in the trial. Andy Pettitte was likely to testify himself about the very same conversation. The reason that an admonition to disregard (limiting instruction) won't work in this case is that there is no way to explain to a jury why this statement shouldn't matter. The whole case is about credibility. Who said what to whom when? Who is credible and who is likely lying. Clemens needs to successfully challenge Andy Pettitte's recollection of conversations they had about performance enhancing drugs. He famously told Congress that Pettitte "must have misremembered." A jury is unlikely to buy this argument if they believe that Andy Pettitte related the whole conversation to his wife shortly thereafter.

With respect to the Peyton criteria outlined above, this case takes a big header on Number 4 and there is no way to explain to jurors why they should ignore Laura Pettitte's sworn statement. Sure, the judge can explain why, as a matter of law, they should ignore it; but, he'll never successfully explain why they should, as a matter of logic, or common sense. It is probative, and therefore prejudicial. This is the precise reason why it is impossible to convince a jury to ignore credible evidence that has been excluded on 4th Amendment grounds. The exclusion has everything to do with how the evidence was obtained and nothing to do with how useful it might be in reaching a verdict. Jurors can't turn off their brains that easily (and research shows that judges don't do it very well, either).

In light of the nature of the prosecution's transgression, and the difficulty in really convincing a jury to disregard it, Judge Walton probably made the right call in declaring a mistrial in this case. I guess the rest of us will just have to wait a few months more to see Clemens's smug face try to hide his contempt for the jurors who will decide his fate. His next start has been pushed back a few days.

The mistrial is probably better for Clemens than for Durham. Clemens has taken every opportunity available to delay this trial. Every day that goes by, the government gets a little more in debt and the public cares a little less about steroids in baseball. Now, in early September, Judge Walton will decide whether there will be a retrial, and, if so, under what evidentiary rules. That is, the ump has to decide whether to default the game or reschedule it (maybe as part of a double header with the Barry Bonds retrial).

In this game, Roger took one for the team. But that's OK, he owns the team.

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Friday, June 24, 2011

Can Whitey Bulger Get a Fair Trial in Massachusetts?

Interview on WBZ Radio 1030

This morning, I was interviewed by Carl Stevens of WBZ Radio 1030, the major all-news radio station here in the Boston area. Carl wanted to know what I thought were the challenges associated with seating an impartial jury to try someone so locally notorious.

I talked a bit about how important it will be to handle jury selection properly from a procedural perspective. The list of jury panel members must be made available to the attorneys well in advance. There must be a very extensive supplemental juror questionnaire (SJQ). Finally, there must be meaningful voir dire, ideally conducted by the attorneys, not the judge.

I also speculated a bit about the importance of young people and recent Massachusetts transplants, who aren't so familiar with Whitey Bulger's history in the Commonwealth.
I'll be sure to blog about developments as they seem important.

Thursday, June 23, 2011

ASTC Pro Bono Initiative helping bring Baby Doc to justice

Not a Pediatric Medical Malpractice Case

The Baby Doc in question is none other than Jean Claude "Baby Doc" Duvalier, former dictator of Haiti (1971-1986), following the death of his father, Francois "Papa Doc" Duvalier. Amid the chaos following the devastating earthquake in Haiti, and the mess that was the Haitian presidential elections, Baby Doc Duvalier somehow managed to fly from France to Haiti, not withstanding the absence of a valid passport. There is a lot of speculation and uncertainty surrounding his decision to return to Haiti. Duvalier, of course, claims that he returned to help his country recover. Most outside observers ascribe to him more pedestrian and self-serving motives. Among other things, there is a bank account frozen in Switzerland containing $6 million in Duvalier's name. It is possible that returning to Haiti might have facilitated Duvalier's access to that money.

Regardless of his reasons for returning to the country he ruled so corruptly and violently, Duvalier was was not met with many open arms, aside from those of the local constabulary. Baby Doc was promptly arrested and questioned by the police. While he was soon released to return to his swanky hotel room, Duvalier's papers were seized, precluding him from leaving the country. Government prosecutors are now assembling a case against him on two broad fronts. The first involves financial crimes against the country, including absconding with many millions of dollars that belonged to the Haitian Treasury or private Haitian citizens. The second set of offenses involve human rights violations, including kidnapping, false imprisonment, torture and murder.

Of course, he'll soon be tried in open court and made to answer for his crimes, right? Not so fast, kimosabe. This is, after all, Haiti we're talking about. The country's political history of colonization, exploitation, coup and revolution is Exhibit A of how not to run a country. (BBC has a nice timeline of the country's history here.) Add to this shaky foundation a major natural disaster and a Presidential election fraught with "irregularities" and you have a recipe unlikely to yield smooth transition and peaceful reconciliation.

Where are we now?

In March of this year, Michel Martelly, the Snoop Dog of Haitian politics, was elected President in a run-off election against Mirlande Manigat (despite the fact that Martelly appeared to have finished third in the original vote). All accounts suggest that this is the outcome preferred by (if not engineered by) the United States, despite Martelly's former ties to the Duvalier family and its regime. As a teenager, Martelly was a member of the "Tonton Macoutes," the Hitler Youth of Duvalier's regime. These teenagers were organized into roaming bands of thugs tasked with intimidating opponents of the regime.

As a young adult, Martelly ran an exclusive Haitian nightclub that catered to members of the Duvalier clan and their supporters. Given this history, those pressing for a full and complete prosecution of Baby Doc (including Human Rights Watch, which published a white paper about how important this case is) have reason to worry about the support they will receive from the new government.

Recent events present even more reason for alarm. The investigating judge in the case recently filed charges against Duvalier without questioning him in open court, in open violation of Haitian law. While Baby Doc is largely to blame for this situation, by checking himself into hospital with "Strongman Flu" every time he had a court date, this procedural shortcoming provides straightforward grounds for an automatic appeal. That is, the case is on very shaky grounds before it even begins. Add to this the fact that the judge then visited Duvalier in his hotel suite and one has reason to doubt the sincere desire of the judge to bring the defendant to justice.

Where does the ASTC fit in?

A few months ago, I was contacted by Brian Concannon, the Director of the Institute for Justice and Democracy in Haiti. Brian's organization, and the lawyers affiliated with it, are helping the government lawyers down in Haiti prepare to prosecute Duvalier. I connected with Brian because he was looking for some trial consulting assistance as they helped pull together the "ordinance," the Haitian version of an indictment. They had a lot of documents to review and code and they wanted to generate an interactive timeline linking Duvalier's regime to the various human and financial crimes committed during his rule.

At the time, I introduced Brian to some vendors that might be able to help out with document management. In addition, his assistant, Cory, and I went down to Hartford for a crash tutorial on timeline software from Marie Mullaney of Litigation Solutions, an ASTC member and New England pro bono team member. The first major contribution by ASTC will be for a member firm to step in and take over this timeline project. Several folks have already expressed interest in taking on this task.

Even though Haiti inherited its Civil Law system from France, complete with its inquisitorial (as opposed to adversarial) criminal procedures, the country has adopted some rather uniques practices over the years.

First of all, it is possible to attach private complaints to criminal matters, allowing the criminal and civil trials to take place simultaneously. The attorneys for the civil plaintiffs work right along side the government prosecutor to prepare and try the case. This is how Brian Concannon and his fellow IJDH attorneys can continue to be involved in the case. Brian is currently identifying expatriate Haitians, with claims against Duvalier, to serve as plaintiffs in the case. Depositions and witness preparation will be much easier for plaintiffs who live in the U.S.

The second surprising feature of the Haitian system is that this might very well be a full-blown jury trial, as we would recognize here in the U.S. Not a mixed panel of judges and lay-persons, but 12 ordinary Haitian citizens sitting in judgment. This is where ASTC trial consultants will really be able to make a difference. It might feel like an 18th century jury trial, but a jury trial all the same. Over the next couple of years, as the case develops, ASTC members will be at the ready to help with case strategy, thematic development, demonstrative evidence production, witness preparation and jury selection strategy.

The lawyers and courageous citizens of Haiti, who are trying to make a brutal dictator answer for his crimes, have a tremendously difficulty road ahead of them. Many forces seem aligned against their efforts. I only hope that the combined efforts of the ASTC membership can help level the playing field just a bit.

We are, as an organization, tremendously proud of the work that Beth Bonora and Andy Sheldon did for the Ray Killen prosecution, as revealed in the excellent documentary, Neshoba: The Price of Freedom, as we are of the pro bono efforts of all our members. This extremely important effort to bring Baby Doc Duvalier to justice, after all these years of suffering in his country, is an exciting new chapter in the ongoing pro bono history of the American Society of Trial Consultants.

Tuesday, April 05, 2011

An Oldie but a Goodie: Tips for Voir Dire

In reviewing the traffic on my website recently, I was struck by how much more often one particular article was accessed than any other. I used to write a column on trial strategy for Lawyers USA (formerly Lawyers Weekly USA), and this particular article on voir dire strategy from 2006 seems to be very popular, even today. So, in the spirit of giving the public what it wants, here is that article in its entirety.


Indirect Questions Reap Most Information in 
Oral Voir Dire 
By Edward P. Schwartz 
October 9, 2006 

In my last column, I discussed many of the advantages of using a 
supplemental juror questionnaire as part of jury selection – the primary 
advantage being that jurors tend to be more truthful in their responses on a 
written form than they are when questioned orally in open court.  
But the written form – at least in courts that allow traditional voir dire – should 
only be seen as a supplement to oral questioning conducted in both a group and 
an individualized setting.  

Group voir dire 

By necessity, group voir dire questions are typically framed as “yes or no” 
inquiries. Jurors are asked to raise their hands if they answer any question in the 
affirmative. Each party notes who raised a hand in response to each question 
and then follows up with questions either in open court, at sidebar or in the 
judge’s chambers, depending on the court’s prevailing practices. 

My first word of advice is not to expect to learn very much from group voir 
dire. The need to ask “yes or no” questions, coupled with the public setting, 
conspire to limit how much information you can get from potential jurors. The 
studies cited in my last column all reveal that jurors lie during group voir dire – a 
lot. Most of these lies stem from an unwillingness to volunteer information about 
private and/or sensitive subjects. 

My second bit of advice is to treat group voir dire as an entrĂ©e into 
individualized voir dire. The more often a juror raises her hand, the more 
individual questions she will have to answer. Since these follow-up questions are 
where the action is, craft your group voir dire questions in a way that prompts as 
many people to respond as possible. Instead of asking whether “you or a loved- 
one has ever been a party in a law suit,” ask whether “you know anyone who has 
participated in a lawsuit.” Many panel members will construe a question as 
narrowly as possible in order to avoid raising their hand and setting themselves 
up for additional questions.   

Ask each juror whether he or she has ever been in a courthouse before. 
Almost everyone has been at some point or another. Whether it concerns traffic 
court, small claims court or family court, you should try to learn something about 
each juror’s experience with the legal system.  

Try to keep your list of group voir dire questions short. The jurors don’t want 
to raise their hands anyway. The longer the process lasts, the less inclined 
anyone will be to volunteer information.  

I recently consulted on a trial for which the group voir dire lasted 1½ hours. 
For the last 10 minutes, not a single juror raised his or her hand. Fortunately, the 
questions from my team had been asked at the beginning. 

Some jurors are forthcoming, while others won’t raise their hands unless they 
absolutely have to. These jurors can slip through voir dire because questions are 
almost always phrased so that it is the jurors who raise their hands who are 
asked additional questions. To avoid this, I recommend that you phrase some of 
your questions so that it is the jurors who don’t raise their hands who are subject 
to individualized voir dire. So instead of asking, “Who has a relative who works in 
the health field?,” ask “Who doesn’t have a relative who works in the health 
field?” Even if the voir dire will be conducted entirely by the judge, try requesting 
that the judge mix it up in this way. 

Finally, it is a complete waste of time to ask jurors directly whether there is 
anything that would prevent them from being impartial in the case. Most people 
who answer affirmatively are just trying to get out of jury duty. The people whose 
biases are really a source of concern are rarely self-aware enough to recognize 
the problem. Finally, such questions are usually so poorly worded, and cluttered 
with negatives and dependant clauses, that jurors can’t decipher them in time to 
volunteer a response. 

Individual voir dire 

A good question in a written juror questionnaire typically does not make a 
good voir dire question. The main reason is that while people hate to write, they 
love to talk. An open-ended question on a written questionnaire is an invitation to 
leave a blank space. As I discuss in my last column, multiple-choice and sliding- 
scale questions are preferable on a written form.  

But in oral voir dire, open-ended questions provide an opportunity for jurors to 
tell you who they really are. The goal is to get potential jurors to want to tell you 
about themselves in their own words. 

Don’t ask leading or challenging questions. If you try to put words in jurors’ 
mouths, they will either repeat them back to you or clam up, depending on 
whether they like what you are saying on their behalf. So, if you ask a juror what 
she thinks about the “torts crisis” in America, she will either tell you that she 
thinks it is a “crisis” or that she doesn’t have much of an opinion about it. Such a 
question will not get her to tell you about her own experience (or those of her 
friends and family) with the civil justice system, which is what you really want to 
learn about.  

Instead, ask the juror about the most interesting court case she has ever 
heard about. What case she chooses, along with her take on the outcome, will be 
much more informative than some canned response about “fairness” or “justice.” 
Prospective jurors will instinctively try to figure out why a lawyer is asking a 
particular question. The more sensitive the topic – and the more the question 
reflects the fundamental controversy of the case – the more likely a juror is to try 
to “game” the process. One way to avoid this is to ask jurors to tell stories about 
themselves, as I mention above. Another is to ask questions about topics that 
proxy well for what you are really interested in.  

For example, I recently worked on a case involving the purchase of a firearm 
by someone who was mentally ill. We wanted to learn whether jurors were 
sensitive to the plight of people facing mental challenges and whether they 
believed society is responsible for keeping such people safe.  

To get at these attitudes, we asked a very open-ended question about each 
juror’s recollection of the Columbine tragedy. If a juror did not offer an opinion on 
her own about who was responsible, we followed up with a question about the 
juror’s initial thoughts about who was to blame.  

Some jurors blamed only the shooters. Others expressed frustration with the 
parents. A few articulated the position that everyone (parents, school, 
government, media, etc.) has a responsibility to look out for the well-being of our 
children. The jurors were generally willing to talk about Columbine because it did 
not have a direct bearing on our case. 

Another ripe area to explore is people’s relations with those close to them. 
People love to talk about their children. Rather than ask prospective jurors about 
religious preferences, ask where their kids go to school. To get a sense of how a 
juror feels about people in different professions, ask what their children want to 
be when they grow up. If one answers, “Joey, my 6-year-old, wants to be a 
policeman,” you can follow up with, “How do you and your wife feel about that?” 
A person whose son is on the debate team or who plays in the orchestra is likely 
to have different attitudes than one whose son plays on the football team and has 
joined ROTC. A person who is self-conscious about their own life can still be 
expansive about her children; use this to your advantage. 

There is another advantage to “asking around the topic.” If the other side has 
not thought through the voir dire process as thoroughly, the jurors’ responses will 
be more useful to you than they will be to your opponents. 

Be Prepared for any jury 

I have devoted the last two columns to jury selection strategies. I don’t want 
you to get the idea, however, that choosing a jury is the only, or even the most 
important, opportunity for you to improve your chances of winning at trial. As I 
always tell my clients, in terms of impact on verdict choice, who the jurors are is 
almost always swamped by what the jurors see. By all means, do all you can to 
identify and strike jurors who really will be unfair to your client; but, make sure to 
concentrate  your energy and resources on presenting your case in its most 
favorable light. 

Tuesday, February 01, 2011

Evidence Driven Deliberations enhance accuracy and consensus

A Missouri jury is confronted with a cold case

In 1976, Becky Doisy disappeared. A man named Johnny Wright was wanted for questioning in the case. The problem was that Johnny Wright was nowhere to be found. More than thirty years later, Johnny Wright was discovered living as Errol Edwards is Georgia and then Texas. 

The state's case depended on the testimony from Wright's former roommate, Harry Moore, as well as that of William Simmons, a man who knew Wright and Moore from a local methadone clinic. So, the jury was faced with deciding a murder case, based upon little more than the decades-old recollections of two shaky witnesses who had their own problems with the law.

A Conscientious Deliberation

Melissa Spain was the foreperson of the jury. In an interview with The Missourian, she discusses how she realized that the jury had a difficult job and needed to be very careful about how they interpreted the evidence. The first thing that Ms. Spain did was review the 12 pages of jury instructions with her jury in detail, taking as long as necessary for everyone to understand what was required of them.

The jury then turned to the evidence in the case, reviewing the testimonies of Moore and Simmons in detail. Each juror was asked to volunteer any ideas and questions. According to Ms. Spain, “It was a room full of logical, open-minded people just really taking it seriously and looking at every possible angle.” 

Importantly, the jury did not take a vote on any of the verdicts until it had thoroughly reviewed all the evidence. After six hours, the jury returned a guilty verdict.

Evidence-driven vs. Verdict-driven deliberations

The story Ms. Spain tells highlights the advantages of evidence-driven deliberations. Juries sometimes focus on the questions of who did what to whom when -- the evidence -- reserving for later the issue of what their answers mean from a legal perspective. Other juries immediately take votes about which verdict is the right one. This tends to turn deliberations into a competition between two camps to see which can "convince" the other to change its vote. 

Ultimately, of course, a jury needs to take a vote. So, deliberations will eventually become verdict-driven. Delaying a vote, however, and keeping the jury in evidence-driven mode has several advantages.
  1. More material and relevant evidence enters the deliberations and fewer factual errors go uncorrected.
  2. A larger number of jurors participate actively in the discussion.
  3. The tenor of deliberation is more inclusive, polite and respectful.
  4. Jury instructions receive greater attention and adherence.
  5. Jurors report greater satisfaction with both deliberations and the final verdict.
I have seen judges suggest to juries that they not rush to take a vote, which seems to me a sensible idea. As a litigator, you can request that the judge offer such advice to your next jury. If you don't think that the judge is likely to adhere to such a request, you might consider including language in your closing argument that hints at keeping deliberations in a evidence-driven mode as long as possible: "As you review the evidence in this case, combing through the testimony and exhibits, before you know how your fellow jurors will vote, I hope that you will consider..." 

If a thorough jury is a good jury for your case, try to keep them out of verdict-driven mode as long as possible.