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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.