The Fifth Amendment vs. The Third Degree

Edward Fleury declines to testify in his own defense

Massachussens, parents and gun advocates have all been following closely the trial of Edward Fleury, a retired police chief, who is on trial for involuntary manslaughter in conjunction with a gun show he organized and promoted. At the show, Christopher Bezilj, age 8, accidently shot himself to death while firing an Uzi machine gun. My earlier posts on this trial can be found here and here.

The prosecution recently rested its case, confronting Rosemary Scapicchio, Flery's defense lawyer, with some difficult strategic decisions. One that faces almost every criminal defense team is whether the defendant should testify in his own defense. In the end, Ms. Scapicchio opted not to put her client on the stand.

When should a defendant testify?

There are a few main factors that a defense attorney must consider when deciding whether to put her client on the stand.

The first question is whether the case is predominantly about "who did what to whom when" (factual dispute) or whether the defendant's conduct was, in fact, criminal (interpretive dispute).  When the dispute is factual, the defendant might very well be in a position to shed light on important questions. It might be very important to the defense for the jury to hear "his side" of the story.

This implicates the next question. Will the probative value of the defendant's testimony outweigh the costs associated with his testimony? Is there another defense witness available to testify to the defense version of events? Is the defendant belligerent? Does he seem shifty or untrustworthy? Does he look threatening? Can he be trusted not to start inventing things on the stand? All of these factors must be taken into account as part of the cost-benefit analysis associated with deciding to have the defendant testify.

The Fleury trial is fairly unique in that almost all of the questions to be resolved by the jury are interpretive ones. With respect to the manslaughter charge, the jury must decide whether running a gun show at which children were permitted to fire machine guns is intrinsically so risky as to be criminally negligent.

Even the three charges of providing a machine gun to minors rest on an interpretive question. There is an exception to the prohibition for when the child is supervised by an adult with a machine gun license. The jury must decide what exactly constitutes "suprevision," as Fleury was licensed and present, but not directly involved in handling the guns.

Mr. Fleury has no particular expertise with respect to these interpretive questions. While he might have been able to testify as to whether he thought he was "supervising" the children firing the machine guns, it seems counterproductive to have him take more responsibility for what was happening at the gun show. Putting Mr. Fleury on the stand therefore offered a variety of dangers, but not much positive value.

The defense rests... completely

In the end, Ms. Scapicchio chose to mount no defense at all. She called no witnesses, relying instead on the strength of her cross-examinations to introduce reasonable doubt into the minds of the jurors.

I admit to finding this strategy a bit baffling. While there might not have been much she could do to counter the factual case presented by the prosecution, those pesky interpretive questions were left hanging. Might she not have called some expert on gun shows to testify that it is quite common to allow children to fire machine guns? Isn't there some sort of NRA guideline regarding parental responsibility for firearm safety when children are involved?

While I certainly understand the defense decision not to put Mr. Fleury on the stand, I think it might have been unwise not to mount any defense at all.

In my earlier posts, I discussed the importance of deflecting blame away from Mr. Fleury, even if that strategy required the risky move of blaming the victim's father for his death. Early in the trial, Ms. Scapicchio seemed to be following this path. Somewhat surprisingly, in her closing arguments, she asserted that the death had been a tragic accident, nothing more. She chose not to directly implicate the father. It will be interesting to see how this strategy plays out.

Blame Avoidance v. Blame Deflection: The Gun Show Uzi trial

Gun show Uzi trial highlights emotional impact of tragedy

The manslaughter trial of Edward Fleury, a retired Police Chief, finally got underway in Springfield, MA this week. The trial stems from a fatal accident at a gun show organized by Mr. Fleury, at which an 8-year-old boy, Christopher Bizilj, fatally shot himself with a lightweight Uzi submachine gun.

Prior to the original start date for the trial (which was delayed for over a month), I wrote a blog post in which I speculated about the kind of strategy the defense would have to employ in this case. Both Fleury and the two men who supplied the gun in question (who face similar charges in a separate trial) can mount legitimate defenses to the charges against them. While the boy’s death was certainly tragic and preventable, it is not clear that any of these men violated any laws that resulted in the accident.

In the earlier post, I suggested that it would be insufficient in such a emotionally charged case to simply demonstrate to the jury that the defendant’s conduct was not criminal. Terror management theory (TMT) is a psychological framework for understanding how people cope with the feelings of vulnerability and fear associated with tragic events beyond their own control. You can read more about how TMT applies to jury decision-making here. According to TMT, one of the strongest impulses in the aftermath of a tragedy is to assign responsibility or blame for what happened. Psychologically, we all want to avoid either (1) taking personal responsibility for a catastrophic event or (2) accepting that such horrific occurrences could really be random and uncontrollable.

Blame deflection v. blame avoidance

In light of these forces, I suggested that Fleury’s defense team would need to actually deflect blame onto someone else. This would allow the jury to find him not-guilty while still holding someone responsible. In the earlier post, I suggested that the safest option would be to find some government agency or inspector who had dropped the ball, in terms of allowing the boy to shoot the fatal weapon. People are more than happy in most circumstances to conclude that the “government” is at fault (Just look at the Tea Party success). The problems with such a strategy in this case are two-fold. First, this tragic event involved the direct participation of several identifiable individuals. In addition, the boy’s father videotaped the whole thing, adding to the intensely personal nature of the accident. The jury can actually see who was there when the bullets flew (Compare this with the case of the ceiling collapse in the Big Dig tunnel). As such, the jurors will be reluctant to assign blame to someone who wasn’t anywhere near the scene.

The second problem with such a strategy is that there is a lot of blame to go around. This poor boy shot his own head off in front of his whole family. Even if jurors were inclined to blame the state agency responsible for certifying gun shows and the person who permitted this one, they would still have plenty of anger left over for Mr. Fleury.

Given the unlikelihood of success from blaming a faceless bureaucracy for the boy’s death, Mr. Fleury’s defense team had little choice but to adopt the more dramatic – and risky – strategy of blaming the boy’s father for signing his 8-year-old son up to shoot the Uzi in the first place. The message has to be, “What kind of man gives his own little boy a submachine gun if the kid has no idea how to use it?” The entire defense strategy is that everyone at the gun show only did what Mr. Bizilj asked them to. He – the father – was in control of the situation at all times.

Fleury Defense Team reaches for the brass ring

The trial has been going on for a few days now and, unsurprisingly, Mr. Fleury’s defense attorney, Rosemary Scapicchio, has adopted precisely this strategy. She highlighted in her opening statement that every discretionary decision at the gun show regarding Christopher Bizilj was made by his father. In cross-examining prosecution witnesses, she has emphasized the normalcy of the gun show prior to Chistopher picking up the fatal gun. She is trying to emphasize that everything at the show was running smoothly until Mr. Bizilj encouraged his son to take the uzi.

This strategy is fraught with danger, however. Beyond the obvious backlash associated with “blaming the victim,” Ms. Scapicchio would be wise to worry about reactance from jurors. Reactance is an instinctual response to having one’s autonomy threatened. The jurors might not like being told whom to hold responsible.

I have worked on several cases (both criminal and civil) in which a victim’s parent, or parents, might have been considered at least partially responsible for a child’s harm. My experience with such circumstances suggests that jurors are often quite willing to blame a parent for negligently supervising a child. That said, jurors show a greater reluctance to do so when told to by one side or the other. The key is to give jurors everything they need to draw inferences implicating the parents without actually accusing them directly.

So far, Ms. Scapicchio has not been shy about blaming Mr. Bizilj directly. Perhaps this will set up a contest of sorts between Fleury and Bizilj, whereby the jury will vote not-guilty if they decide the father is more at fault. Just today, the fifteen-year-old boy who was supervising the uzi shooting booth testified that he twice asked Mr. Bizilj to consider a less powerful gun for his young son. I would only be concerned that the jurors will resent being asked to blame the father for his own son’s death. If they feel manipulated into a false choice between the defendant and the father, they might just convict out of spite against the defense team.

We’ll just have to wait and find out with everyone else.

The Hung Jury: American Exceptionalism Strikes Again

Hung Juries: Judicial Flukes or Systemic Problem?

The American juridical system is one of the few in the world that allows for the possibility of a hung jury. All of the "mixed" systems of Europe and South America, wherein a group of laypersons deliberates with a small group of judges, use decision rules that preclude hung juries. A supermajority might be required for a conviction (like 8 votes out of 13), but a failure to secure that many guilty votes always results in an acquittal.

Even those countries that inherited the British Common Law system have largely moved away from voting procedures that encourage hung juries. England abandoned unanimity in 1974, allowing 10 votes out of 12 to determine a verdict. most Australian states have adopted some form of supermajority rule. Only the United States, and our neighbor to the north, Canada, insist on unanimity in jury verdicts.

As such, the hung jury is a fairly uniquely American phenomenon. Estimates of the frequency of hung juries vary quite a lot. Most scholars use an estimate of about 7% of criminal trials. The number is higher for felony trials and higher still for felony trials in ethnically diverse communities, such as New York, Chicago or Los Angeles. Recent estimates for felony trials in Los Angeles put the hung jury rate at over 20%.

An understudied phenomenon

There has not been a great deal of scholarly attention paid to the hung jury. Occasionally, some group or another will try to measure the hung jury rate in some locality or another. It is difficult to get a handle on why some juries hang and others do not because jurors are not obligated to discuss their deliberations with the public.

As followers of The Jury Box Blog know, I am extremely interested in consequences of maintaining the unanimity requirement in criminal trials in the United States. We allegedly celebrate our diversity of opinions and values and yet we insist that everyone on a jury reach the same conclusions.

As one small step in the direction of understanding the hung jury situation in the united States, I have started a new Twitter feed, called HungJuries, dedicated to exploring the frequency of American hung juries, as well as the causes and consequences of juries failing to reach unanimous consensus.

I am hoping that you will find the news articles and scholarly pieces I link to from this account of interest for your own practice. Please feel free to retweet anything you see there and tell your friends about the new HungJuries twitter feed.