tag:blogger.com,1999:blog-361179232024-02-28T05:22:59.699-05:00The Jury Box BlogThis is the blog of Edward P. Schwartz, a jury consultant from Massachusetts. I will post occasional comments on interesting jury trials, legislative reform efforts and jury-related research. For more detailed information about jury decision-making, see my website: http://www.eps-consulting.com. You can contact me there about help for your case, too.Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.comBlogger83125tag:blogger.com,1999:blog-36117923.post-27858822931052610532013-01-25T13:42:00.000-05:002013-01-25T13:42:30.624-05:00Jury Selection in Mattapan Massacre CaseStarting in the summer of 2012, I was retained by attorney John Amabile to assist him with jury related issues in the retrial of Dwayne Moore, accused of killing four people and seriously wounding a fifth in a drug-related shooting in Mattapan, Massachusetts (a neighborhood of Boston). One of the victims was a two-year old boy and the victims were marched outside naked before they were shot, execution-style. Needless to say, the case engendered an enormous amount of publicity.<br />
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One of the initial co-defendants cut a deal with the district attorney's office, in return for his testimony. This man, Kimani Washington, testified at the initial trial, in February of 2012, that he had left the scene before the shooting started and pointed the finger at Dwayne Moore. The jury in the initial trial hung with respect to the murder charges against Moore (11-1 as it happened), resulting in a mistrial. Mr. Moore was retried starting in October, 2012.<br />
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Given the emotionally charged and continuing media coverage of the case, Mr. Amabile was able to successfully move the Court to award funds to cover the cost of a jury consultant to assist with jury selection and other matters. With Judge Locke's order, Mr. Amabile was in a position to pay me with funds from the Committee for Public Counsel Services (CPCS).<br />
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The case was fascinating in many respects. Between the two trials, Marcus Hurd, the lone surviving victim, claimed to have experienced an epiphany with respect to his ability to identify the shooter (He had not done so at the first trial). There was a hearing about this, where his former fiancee contradicted his testimony about being able to make an ID. The judge ultimately allowed him to testify about this at court, but then the D.A. opted not to ask him to do so. We successfully moved for a change of venue to escape the Boston media market, so Judge Locke decided to select a jury from Worcester County (which turned out very much NOT to be outside the Boston media market) and bus the jurors to Boston every day for trial. We successfully petitioned the court for individualized, sequestered voir dire, as well as a supplemental juror questionnaire (SJQ) to be completed by every prospective juror. As a result, the jury pool was questioned to a degree probably unprecedented in the criminal courts of the Commonwealth of Massachusetts. Jury selection took two weeks.<br />
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In early January, I was interviewed by <a href="http://claxtonlegal.com/" target="_blank">Corine Claxton</a>, the co-host of Mass Law Radio (<a href="http://masslawradio.org/" target="_blank">MassLawRadio.org </a>and <a href="http://twitter.com/masslawradio" target="_blank">@MassLawRadio</a>), which airs weekly on WCUW in Worcester (<a href="http://wcuw.org/">WCUW.org</a>), about my participation in the Mattapan Massacre case. The 1 hour interview has been divided into two parts, that aired on January 18th and 25th respectively. It was a wide-ranging discussion of juror psychology, deliberation dynamics, handling pretrial publicity, the role of a jury consultant, the effects of racial diversity in criminal cases and many other topics.<br />
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Listen to Part 1 of the interview by going to <a href="http://masslawradio.org/mattapan-massacre-murder-1/">http://masslawradio.org/mattapan-massacre-murder-1/</a>.<br />
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<br /><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com0tag:blogger.com,1999:blog-36117923.post-15819172301283214732012-10-08T14:46:00.000-04:002012-10-08T14:46:15.316-04:00Samsung Hard-pressed to Get Second Bite at Apple<span style="font-family: Arial, Helvetica, sans-serif;"><strong>Samsung Digs Up Grounds for Appeal</strong></span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">This past week, it was revealed that Samsung had filed an </span><a href="http://www.huffingtonpost.com/2012/10/02/samsung-apple-jury-foreman_n_1934288.html?ir=Technology" target="_blank"><span style="font-family: Arial, Helvetica, sans-serif;">appeal of the verdicts</span></a><span style="font-family: Arial, Helvetica, sans-serif;"> of of patent infringement in the celebrated case filed by Apple. Given the enormity of the verdict and its potential consequences for Samsung's ability to compete in the mobile phone and tablet market going forward, no-one is surprised that an appeal was filed, and filed quickly. What has surprised some is the grounds for the appeal: namely that at least one juror in the case was guilty of misconduct. Much of the focus has been on the jury foreman, Velvin Hogan, against whom Samsung has lodged two major complaints. </span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">First, Samsung argues that Hogan failed to disclose his part in a lawsuit against his former employer, Seagate Systems (Samsung is the single largest shareholder of Seagate). Hogan's defense to these charges is that he answered every question truthfully on his written questionnaire and during voir dire. The questionnaire only asked about litigation participation in the past 10 years (Seagate case was 10 years ago). During voir dire, when asked to volunteer experience with litigation, Hogan raised his had in the affirmative. Samsung's lawyers then questioned him about the first lawsuit he mentioned. They neglected to ask him whether there were any additional cases to discuss and moved on to the next juror. Samsung's position seems to be that Mr. Hogan had an affirmative obligation to alert the court to his Seagate lawsuit, notwithstanding the fact that no-one asked him about it. </span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">The second complaint against Mr. Hogan, and potentially a few of his fellow jurors, is more interesting from a doctrinal pespective. Samsun argues that Mr. Hogan acted as an unsworn expert witness, by bringing to bear during deliberations his own knowledge of computer technology and patent law. </span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;"><strong>Does "Impartial" Mean "Stupid"?</strong></span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">At the risk of honking my own horn, allow me to quote an email I sent to my TrialGraphix colleagues on August 27, immediately after the first interview with Mr. Hogan was published:</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;"><blockquote class="tr_bq">
<span style="font-family: Arial, Helvetica, sans-serif;">It is worth checking out this <a href="http://www.abajournal.com/news/article/jury_foreman_in_1b_apple_case_told_of_desire_to_award_painful_but_not_unrea/?utm_source=dlvr.it&utm_medium=twitter" target="_blank">brief article</a> about the engineering and legal expertise of jurors on the Apple-Samsung jury. </span><span style="font-family: Arial, Helvetica, sans-serif;">As a general rule, jurors are not permitted to act as "unsworn witnesses" bringing to bear personal experience and expertise during deliberations. The line defining what it permissible is, of course, quite fuzzy. But there is quite a bit of appellate law on this matter and verdicts have certainly been reversed for less than appears to have taken place in this instance. I am considering writing a blog post on this topic, with an eye towards having something topical that could be distributed to potential clients. </span></blockquote>
</span><span style="font-family: Arial, Helvetica, sans-serif;">Well, OK, I admit my horn is a bit tarnished, given that I didn't get around to writing that blog post until now. But I'll give myself a wee pat on the back for seeing this coming. </span><br />
<span style="font-family: Arial, Helvetica, sans-serif;">The appellate law on this topic is not really in Samsung's corner. Let's consider a few things working against the appellant here.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">First, almost every opinion regarding prior juror knowledge affecting deliberations begins with some language about how jurors "are not required to leave common sense at the courtroom door, nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts at hand, to the end that their action may be intelligent and their conclusions correct." (State v. Jennings, supra, 125 Conn.App. at 811). As such, the fact that some of the jurors, residing in Silicon Valley, knew something about technology and patent law does not preclude them from rendering an impartial verdict.</span><br />
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<span style="font-family: Arial;">To hold otherwise would require absolute ignorance among jurors. Henny Youngman's old joke about "12 people too stupid to get out of jury duty" would be painfully true and officially endorsed by the judiciary. Judges have not been willing to go quite this far. It has been a difficult tight rope act to preserve the illusion of an impartial jury as one comprised of "impartial jurors."</span><br />
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<span style="font-family: Arial;"><strong>Samsung Needs to Look in the Mirror (or Facetime with itself)</strong></span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Second, the attorneys in this case were given the opportunity to both submit and evaluate a supplemental juror questionnaire (SJQ) and partake in attorney-conducted voir dire. It appears that these methods did elicit quite a bit of information about all of the prospective jurors. That said, the jury was ultimately chosen in one day, with each side only having 20 minutes to conduct voir dire after the judge had concluded her questioning. </span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Samsung appears to have dropped the ball when questioning Mr. Hogan. To be entitled to relief, they would have to argue that, but for the time restrictions on voir dire imposed by the court, their lawyers would have uncovered Mr. Hogan's dark (and prejudicial) past. In addition, I imagine Samsung would have to show that the time restriction was imposed over its objections.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">As one of my colleagues replied to that initial email, "I think Samsung should sue its jury consultant."</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;"><strong>Has Samsung Finally Invented Something New?</strong></span> <span style="font-family: Arial, Helvetica, sans-serif;"><strong></strong></span> <br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Third, almost all of the appellate decisions reversing a verdict on the grounds that a juror acted as an unsworn witness involve criminal cases. While the stakes were certainly very high in this case ($1 billion plus effects on future competition), the courts typically treat a criminal matter as qualitatively different, in that a person's liberty is in jeopardy. The seriousness of a conviction, embodied in the elevated burden of proof, carries over to "miscarriage of justice" analysis that follows a conviction. There are scant appellate opinions in civil cases in support of Samsung's position. In fact, acursory search hasn't turned up any. Certainly, all of the cases I assign in my law school seminar, "Trial by Jury," on this topic involve criminal verdicts.</span> <span style="font-family: Arial;"></span> <br />
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<span style="font-family: Arial;">This is not to say that the lessons from the criminal arena cannot be applied to a civil case. Only that a judge who wants to distinguish this case from others where relief was granted will have an easier time doing so, due to the derth of applicable civil cases.</span> <span style="font-family: Arial;"></span> <br />
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<span style="font-family: Arial;"><strong>It's not like the jurors were drunk or high</strong></span> <span style="font-family: Arial;"></span> <br />
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<span style="font-family: Arial;">Fourth, the issue of jurors serving as unsworn expert witnesses straddles the border between "extrinsic influences" on jurors and "internal thoughts processes" of jurors. To the extent that a court views this as a question of internal jury decision-making and deliberations, FRE 606(b) (and the state equivilants) preclude asking jurors to testify on the question. It seems impossible for Samsung to make its case that some jurors improperly influenced the verdict without digging into the deliberations themselves, a topic that is verbotten under 606(b). The court would have to determine that this juror expertise is an "extrinsic influence" to open up Pandora's box. Clearly, appellants have cleared this hurdle in a few criminal cases; it remains to be seen whether Samsung can do so in a civil matter.</span> <span style="font-family: Arial;"></span> <br />
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<span style="font-family: Arial;">It should be noted that the courts have found creative ways to construe things as instrinsic (cocaine use, sleeping, drunkeness, mental retardation) in order to avoid authorizing hearings about jury deliberations to impune verdicts. A judge who wants to dodge this issue can certainly find precedent for not interpreting what happened in the Apple-Samsung jury as an "extrinsic influence."</span> <span style="font-family: Arial;"></span> <br />
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<span style="font-family: Arial;"><strong>Verdict 2.0?</strong></span> <span style="font-family: Arial;"></span> <br />
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<span style="font-family: Arial;">From a doctrinal perspective, I think that Samsung is on shaky ground and its appeal is a long-shot. That said, this area of law is sufficiently squishy that a creative judge could probably find a way to grant Samsung's appeal if she wanted to. But, in the U.S., what judge will really want to? Apple is the darling of U.S. industry. Without Apple, Google (and arguably Microsoft), it feels as if the United States has ceded technological production (if not innovation) to other countries. While a judge would be unlikely to admit that she <em>wants</em> Apple to win this one, any social-psychologist will tell you that judges aren't immune to implicit bias any more than the rest of us.</span> <span style="font-family: Arial;"></span> <br />
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<span style="font-family: Arial;">The breadth of the verdict does seem to be a bit extreme. Apple was granted ownership over every single aspect of its product, including the "rounded rectangle" shape. I would not be surprised to see some appellate court limit the scope of the verdict and reduce the damage award dramatically. If this happens, however, it won't be because someone on the jury claimed to know something about patent law.</span><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com1tag:blogger.com,1999:blog-36117923.post-84182746743428492212012-08-30T10:32:00.000-04:002012-08-30T10:32:42.290-04:00Federal Courts Address Wave of Online Jurors<span style="font-family: Arial, Helvetica, sans-serif;">This past week, the new model jury instructions about online research and social media communication by jurors were released. You can read the new instructions <a href="http://www.uscourts.gov/uscourts/News/2012/jury-instructions.pdf" target="_blank">here</a>. While they are quite explicit and forceful, they are weak on an important element. Research into the effectiveness of limiting jury instructions has shown that such instructions can only work if jurors are given a rational (but not condescending) explanation for <em>why</em> the instructions are in place. This is why instructions to disregard evidence of a lie detector test (the science is just not very reliable yet) tend to be heeded, while instructions to disregard evidence from an inappropriate search (Well, you see, we have this thing called the 4th Amendment...) tend not to be.</span><br />
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<span style="font-family: Arial;">Other courts have fashioned instructions regarding online activity by jurors well before the Federal Judiciary got in the game and some of these earlier instructions are frankly just better, particularly with respect to explaining why information obtained from outside sources is inappropriate to use. I particularly like the combination of patient explanation and forceful admonition embedded in the New Jersey model instructions. You can find these <a href="http://www.judiciary.state.nj.us/civil/charges/1.11C.pdf" target="_blank">here</a>.</span><br />
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<span style="font-family: Arial;">While the problem of online activity has gotten more serious and more prevalent in the past few years, mostly due to the proliferation of high speed internet access and smart phone usage in the population, the issues remain very much as they were when this problem first reared its ugly digital head. I wrote a somewhat speculative post about this topic back in 2009 and the themes I covered still resonate today.</span><br />
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<span style="font-family: Arial;">Take a look.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Wednesday, March 18, 2009</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;"><strong><span style="font-size: large;">Remedy for the Googling juror? Just ask!</span></strong> </span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;"><strong>Jurors swarm the net</strong></span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Recent entry for the smallest surprise of the year award: jurors are online.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Everyone is online. So, of course, people summoned for jury duty are, too. Jury duty can be very tedious. There is a lot of sitting around waiting for things to happen. The local sports page can keep you occupied for only so long. So, whip out your iPhone or Blackberry and see what's what. Google the defendant. Google the lawyer. Google the judge! Post a tweet (Most juror posts run along the lines of "I'm stuck on jury duty and boy am I bored.").</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">The problem has become so prevalent that there was a front page story about it in today's New York Times. So, what are we going to do about it?</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Anyone who understands psychology at all knows that the solution is NOT to take away juror's toys and slap their hands with rulers if they disobey. We know from decades of research about judicial instructions (particularly the limiting kind) that judicial admonitions without proper reasoning tends to incite "reactance" on the part of jurors. That is, when jurors' freedom to act is taken away by the court, those jurors tend to rebel and engage in the prohibited behavior more than had they not been warned in the first place. So, the key is to accompany whatever solution is chosen with careful, logical and respectful explanations to the jurors. </span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">With these considerations in mind, there seem to be fairly straightforward solutions to the two main types of juror internet activity that concern lawyers and judges.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;"><strong>Juror Tweeting and Blogging</strong></span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">There is nothing wrong with a juror wanting to chronicle her experience on jury duty. The problem is when she posts her experiences while the trial is ongoing. Outgoing messages don't pose too great a risk of contaminating the trial, unless one is concerned that the desire to post something sensational will cause the juror to alter her behavior in the jury room. The bigger problem is the possibility that such posts will generate online responses, providing the juror with extra-legal contact with facts and opinions not in evidence. Another emerging problem is the ability of an attorney to read the posts of jurors in her own cases during the trial.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">General pre-trial jury instructions and those ever-entertaining "What is a juror?" videos should be edited to make it clear to those called for jury duty that they are not permitted to post information about their experiences online until after their service has ended. These instructions should make it clear that this prohibition is consistent with the one against discussing a case with others. My educated guess is that most juror bloggers do not realize that their behavior is inappropriate. Very few people need to blog so badly that they will do so after being told by a bailiff not to. These instructions should also make it clear that jurors are, of course, permitted to write whatever they choose about their experiences after their jury service is over.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;"><strong>Online research by serving jurors</strong></span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Six hundred years ago this would not have been a problem (not just because there were no computers). During the early period of the Anglo-American jury system, jurors were selected from the locality of an alleged crime or dispute precisely so that they could come to court with local knowledge about the events in dispute. If the jurors did not feel that they understood the case well enough, they were expected to investigate it on their own! They were to ask other villagers about what they saw or heard. There were rarely witnesses at trial, so the jurors had to be "self-informing."</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">Well, we have now almost come full circle. We live in a world full of people skeptical of the motives of everyone involved in the law. We don't trust the parties. We don't trust the lawyers. We don't even trust the judges to be impartial anymore. Given the instant availability of information online, it is no wonder that jurors are tempted to "fact check" their cases on Google. In a recent Florida case that resulted in a mistrial, the judge discovered that a juror had conducted unauthorized online research. He then voir dired the rest of the jurors to find out who had been exposed to what this juror had found out. To the judge's amazement and horror, he discovered that eight other jurors had also conducted research online. He had no choice but to declare a mistrial.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">What should we do? Well, first of all, every single judge should pre-instruct every single jury not to conduct online research. Such an instruction must be accompanied by a well-crafted explanation of why such a rule is necessary. Second, lawyers should do their homework. If the attorneys in a case cross all their t's and dot all their i's, they can substantially reduce the temptation for jurors to look elsewhere for answers. Do some pre-trial research. Find out what is likely to matter to jurors. Find out what is likely to confuse them. Give them the answers they need.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">This brings me to a procedural "innovation" that I think can mitigate the temptation for jurors to conduct unauthorized online research. More and more jurisdictions allow jurors to ask questions of witnesses during trial. Judges should not grudgingly accept this intrusion into their total control of the courtroom. Rather, judges should welcome this as an opportunity to satisfy the curiosities of jurors within the confines of the courtroom. Better to let the parties address jurors' questions during the trial than risk those jurors searching for answers elsewhere.</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">So, at the same time that the judge tells the jurors not to consult any outside sources regarding the trial, she should encourage them to bring any outstanding questions to her attention. The message should be "We are here to help you make the best-informed decision possible. We'll get you the answers you need."</span><br />
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<span style="font-family: Arial, Helvetica, sans-serif;">I think that jurors who hear that message will be more likely to stay off google during trial. Afterwards.... well, that's another topic for another day. </span><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com1tag:blogger.com,1999:blog-36117923.post-37690496233129251542012-08-29T12:12:00.001-04:002012-08-29T12:12:07.699-04:00Will Wonders Never Cease?<strong>Jury Consulting in Criminal Cases</strong><br />
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Traditionally, only a select few criminal defendants have employed jury consultants. Those who have typically fall into three distinct categories.<br />
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1) Really rich people and celebrities (who are usually really rich). These folks can afford to hire the most expensive lawyers and also pay for a variety of trial support services. If ever you needed proof that jury consulting is valuable, pay close attention to the fact that every criminal defendant who <em>can</em> pay for it <em>does</em> pay for it. <br />
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2) Accused murderers facing the death penalty. Because judges receognize that the stakes are very high in capital cases, as well as the particular stress on jury selection created by the death qualification process, public funds are most likely to be awarded for jury consulting services in these cases. The presumption is that the jury consultant will be used exclusively for jury selection (now that change of venue motions have become essentially hopeless).<br />
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3) White collar criminal defendants. OK. This is really a subset of the really rich people, but the issues are different enough to warrant its own category. Unlike the washed-up actor who strangles his girlfriend, the corporate accountant accused of cooking the books is facing a trial that feels somewhat more like a civil trial. The case revolves around money and common business practices. The victims are often also rich and generally no violence was involved. Defendants in these cases tend to employ jury consultants for a variety of services, from thematic development to witness prep to pretrial jury research to jury selection. <br />
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<strong>What about the Little Guy?</strong><br />
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But what about the people who could use our help the most? What about the indigent criminal defendant with an overworked, underpaid and inexperienced and/or jaded public defender? Do these folks use jury consulting services? Well, the answer used to be a resounding "no" but the landscape is changing. <br />
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Despite the wording of the Massachusetts statute regarding the allocation of funds for trial support services, which authorizes funding whenever a similarly situated non-indigent defendant would be willing to pay for the service, the Massachusetts courts have been loathe to even consider paying for jury consulting services. Part of this reluctance stems from the way in which such funds are allocated in Massachusetts. Most public defenders are actually "bar advocates," private attorneys who sign up to get assigned cases involving indigent criminal defendants. The state agency that oversees this process, the Committee for Public Counsel Services (CPCS) has a budget, but no authority to spend any of it on trial services. Each attorney must petition the court for the authorization to hire a psychologist, investigator or expert witness. Given the very modest budget for CPCS, combined with the fact that no judge knows how other judges are spending the money, the judiciary as a whole tends to be very stingy for all but obviously necessary expenses. <br />
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As I reported in this blog a few years ago, the attorneys for Neil Entwistle, whose case received non-stop pretrial publicity for months leading up to trial, petitioned the court for $1,000 for help from a jury consultant in crafting voir dire questions. The judge denied the request without argument or comment. The default position is clearly, "No dice!"<br />
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The good news is that the dam is starting to crack. Over the past few years, attorneys have successfully petitioned the court for small sums of money to retain my services. I lowered my hourly rate very dramatically in order to increase the likelihood that such petitions might have a chance. Recently, I accepted a position with TrialGraphix, a large, national litigation consulting firm. I could no longer work the CPCS cases for peanuts. While management at TrialGraphix was willing to let me work these criminal cases at a substantial discount, a court was going to have to authorize real money to pay for my services.<br />
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Recently, I was approached by an attorney concerning a criminal matter for an indigent defendant. I explained that he would have to submit his motion with my new hourly rate. In addition, the case is very complicated and the attorney needed help with several jury-related matters. So, he was going to have to ask for a pretty hefty sum -- several times more than the court had ever awarded me before. We held our breath -- and the judge said "OK." <br />
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Perhaps the judiciary is finally becoming enlightened with respect to the difficulties confronted by those facing jury trials for serious criminal charges. Maybe the judge wanted to cover himself against a possible appeal. Maybe I have now developed enough of a track record that judges take these motions seriously. Whatever the reason, I can now say to anyone representing an indigent criminal defendant in Massachusetts, "Don't assume that you can't hire a jury consultant to help you." The door has been opened; it's time to walk through it.<br />
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<strong>What the Future May Hold</strong><br />
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I am less familiar with how funds are allocated for jury consulting services in other states. I know that most states have real public defender offices, with discretionary (although small) budgets. In such a system, court approval is not required to pay for support services. Massachusetts is moving in this direction, which might provide further momentum for these efforts.<br />
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I have worked for the Federal Public Defenders Office in Boston and they only require internal authorization to pay for my services. I bill them just like a regular law firm. I can only hope that the CPCS system will evolve into something closer to this model.<br />
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A criminal defense attorney whose motion for funds for jury consulting services has been denied need not despair. I have written in this blog many times about the Pro Bono Initiative of the American Society of Trial Consultants (ASTC). I remain the Chair of our Pro Bono Committee and we are more committed than ever to making jury consulting services available to those representing clients of limited means. <br />
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Earlier this month, I connected a non-profit legal aid organization in Chicago with a ASTC member consultant to help with thematic development and jury selection. When it was determined that they needed help with graphics and video editing, we found another ASTC member to help with that. So, if you need help, please don't hesitate to contact me or visit the <a href="http://astcweb.org/public/article.cfm/Pro-Bono-Publico-and-Awards-Committee" target="_blank">Pro Bono Committee's homepage</a>.<div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com0tag:blogger.com,1999:blog-36117923.post-23975377473602770702012-06-15T16:15:00.000-04:002012-06-15T16:15:54.070-04:00Exciting News!Dear Followers of the The Jury Box,<br />
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It is with great excitement and anticipation that I write today to tell you all that I have recently accepted a position with TrialGraphix, the nation's premier full-service litigation consulting firm. The company website can be found at <a href="http://trialgraphix.com/">trialgraphix.com</a>.<br />
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TrialGraphix, as its name would imply, is known for unparalleled design and execution of courtroom graphics and animation. Many of you know my views on the importance of visual learning among jurors, so I am thrilled to be associated with a firm at the cutting edge of that field. Now, I can not only make recommendations to my clients about demonstratives, but I can offer those clients the talent and resources at TrialGraphix to make those demonstratives come to life.<br />
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TrialGraphix is also at the forefront of trial technology, providing the expertise and technical solutions for any litigator's courtroom needs.<br />
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Of particular interest to me -- and you, too, I hope -- is TrialGraphix's long track record as one of the country's most respected jury consulting firms. One reason I agreed to join TrialGraphix is the tremendous respect I have for the jury consultants who are already there. I can't wait to work with them and to introduce them all to you.<br />
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For those of you who have worked with me in the past, rest assured that I remain committed to serving the needs of my existing clients. I will be running the jury consulting practice in the New York City office, which is a big change for me, but I will be in Boston often. This position provides me with the best of both worlds: the opportunity to continue to serve my New England clients and the potential to help future clients all over the country.<br />
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Since I have subscribers to the Jury Box from all over the country (and even other parts of the world), I want you to know that there is probably a TrialGraphix office near you. The company has offices is San Francisco, Los Angeles, Chicago, Houston, Minneapolis, Miami, Washington and New York. By all means, feel free to contact me directly with any jury issues that come up, but know that we have experience working in every state.<br />
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I plan to continue to publish the Jury Box Blog in much the way I have always done so. I apologize for the recent dearth of posts, but I have been quite busy preparing for my new job. I expect that the logo will change to reflect my association with TrialGraphix, but otherwise it will remain pretty much as is. I hope to get some of my new colleagues to contribute guest posts for time to time, especially in the courtroom graphics and trial technology fields.<br />
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Thank you all for your continued support of the Jury Box Blog and, by all means, look me up the next time you are in The Big Apple!<br />
<br />
-Edward<br />
<br /><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com0tag:blogger.com,1999:blog-36117923.post-62242303589091410622012-04-12T10:28:00.000-04:002012-04-12T10:28:10.923-04:00Who should sentence Tarek Mehanna?Today, Judge George O'Toole holds a hearing to determine the appropriate sentence for Tarek Mehanna, the Sudbury man convicted in January of providing material support to Al Qaeda and seeking terrorist training in Yemen.<br />
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<a href="http://b.globe.com/HKVQE6" target="_blank">Read the Boston Globe story about the sentencing hearing here</a>.<br />
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This case is fascinating on many levels and I have written multiple blog entries about it over the past two years. (Find Jury Box Blog posts on the case <a href="http://juryboxblog.blogspot.com/search?q=mehanna&max-results=20&by-date=true" target="_blank">here</a>). The jury determined that posting pro-Al Qaeda material online could constitute "material support" and that the dangers associated therewith overrode any Free Speech protections. It is important to remember, however, that Mr. Mehanna never raised a finger in violence against anyone. He gave no money to our enemies and his support for jihadist violence was equivocal, at best. So, what kind of punishment is appropriate for his crimes?<br />
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The defense is asking for a lenient sentence of fewer than 7 years in prison. The prosecution, however, is seeking a sentence of 25 years. Since federal sentencing guidelines are no longer binding, the judge will have a great deal of discretion over Mr. Mehanna's fate. But should he?<br />
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One of the fundamental rationales for using citizen juries in our criminal justice system is to allow them to serve as the "conscience of the community." Unlike the judge, who is embedded in the governmental structure for life tenure and who can be removed from "the word on the street," jurors are living in the community, with experiences that better reflect shared values about public safety, culpability and morality. Nowhere is this more strongly reflected than in the absolute right of the jury to nullify in the rare instance where justice and the law do not correspond.<br />
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It is odd, then, that our system has evolved so that jurors are asked to determine guilt or innocence and judges are asked to determine sentence. (Capital punishment offers the best known exception to this allocation of responsibilities.) This arrangement really handcuffs the ability of jurors to exercise their duty as the conscience of the community. We provide them with the most blunt instrument available, a simple "yes or no" vote on the defendant's guilt. Where there are multiple charges or lesser included offenses, jurors are afforded slightly more flexibility to craft a verdict that reflects their evaluations of the defendant's culpability.<br />
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The real discretion sits with the person who decide's the defendant's sentence. Ultimately, the sentence is the person't fate. The jury's verdict on guilt only hands off this decision to the judge.<br />
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I can think of no case that better illustrates the wisdom of allowing jurors to decide sentencing than that of Tarek Mehanna. There is a wide range of available alternatives. Reasonable people will certainly disagree about which sentence would be best, as well as what opportunities Mr. Mehanna should be afforded to reduce his sentence through good behavior or restitution. One's judgment regarding what punishment would be most appropriate in this case comes down to an evaluation of the defendant's culpability and how much danger his actions created. Given the uniqueness of this case, the multiple issues that need to be considered and the diversity of opinion in society on these issues, the final disposition of this case could certainly benefit from a lively and representative deliberation.<br />
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The rest of the world will view Mr. Mehanna's sentence as a reflection of our society's values and priorities. Maybe we should structure our system so this would actually be true.<br />
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<br /><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com2tag:blogger.com,1999:blog-36117923.post-68756390940173006532012-04-10T10:49:00.000-04:002012-04-10T10:49:45.319-04:00What's brewing with Tea Party Jurors?<b>But What About my Needs?</b><br />
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Back in the fall, I was running focus group research in an undisclosed location, in preparation for an undisclosed case, scheduled for an undisclosed trial date. (See how I did that? I just made my completely mundane case seem much more interesting by refusing to tell you anything about it.) Truth be told, the case details are irrelevant for the purposes of this post, except for the fact that it involves a consumer protection dispute.<br />
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I always have my focus group participants complete an extensive written questionnaire before the study begins. Think of the supplemental juror questionnaire (SJQ) you'd use if you were arguing your case before a really enlightened, curious and slightly whimsical judge. It's kind of like that. The general information section contains pretty standard stuff about occupation and home ownership, mixed in with the usual pot porri of inquiries about tattoos and home schooling.<br />
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As I was finishing up the questions for this section, I noticed I had some white space before the next section on "Experience with the Legal System," so I decided to add another question. "What do you think of the Tea Party Movement?" Mostly, I was curious about what people would be willing to write down about something that had engendered so much anger, confusion, frustration and passion in the general public.<br />
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I consider myself a pretty astute student of politics. I did teach in the Government Department at Harvard for ten years. I watch the Daily Show every night. I have RealPolitics.com bookmarked on my browser. But I have to admit that the Tea Party Movement has me stumped. It is easy to be really cynical about this group, blanketing them with a categorical label of "Angry Whackos." Such a characterization, however, would be dismissive of the very real appeal that the movement has for a lot of people. There has to be a "there" there; or, at least something that actually unites the people who identify themselves as Tea Party supporters.<br />
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From a professional perspective, it is even more important for us to get a handle on what is driving the decision-making of Tea Party sympathizers. Tea Partiers are active in politics. They register to vote and go to rallies, so we should expect them to show up for jury duty when summoned.<br />
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This begs the question: What will Tea Partiers do in the jury box?<br />
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<b>Hell hath no fury like a Tea Partier Scorned</b><br />
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On the surface, a typical tea party juror looks pretty good for the defense. They tend to believe in personal responsibility. They are more likely than your average respondent to think that there is a torts crisis and that frivolous law suits pose a real problem. Tea Partiers object to many entitlement programs and believe that too many Americans expect a free hand-out at every turn.<br />
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At our study in October, we had one such participant. Let's call her Sally (not her real name). In response to the Tea Party question, Sally had written, "Actually, I think they're great!" During an early part of the study, when I had the moderator pose hypothetical scenarios to the group, to see how they perceived situations similar to what we faced at trial, Sally rolled her eyes at one point, saying, "Oh, she'll probably pick up the phone and call her lawyer. That's what's wrong with America. Everyone immediately thinks about suing somebody when anything goes wrong." At this point, Sally sure seemed like a good defense juror.<br />
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The problem with the Tea Party paradigm, however, is its profound inconsistency and hypocrisy. What seems to unite Tea Party supporters is a profound lack of empathy for people unlike themselves, along with an almost hysterical need to have their own grievances heard and attended to. As such, when contemplating a Tea Party supporter as a juror, it is absolutely critical to gather a great deal of information about that person's life to make sure that your case doesn't push any of their hot buttons.<br />
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Turns out Sally had a hot button. WIthout giving away too much about the case, let's say that it involves a relatively minor nuisance which the federal government had seen fit to penalize with extremely high mandatory civil penalties. As such, a thriving cottage industry has popped up of attorneys whose entire practice is to cobble together plaintiffs and sue under this one statute. After spending hours bemoaning the litigiousness of American society, Sally and her fellow respondents were finally introduced to the facts of our little case.<br />
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Well, wouldn't you know it, Sally had actually experienced the same problem as the plaintiffs in our case. Ironically, Sally had hired one of the companies who had inconvenienced her in violation of the statute and had been quite pleased with their work. Despite her prior rantings against suing in similar circumstances, and chiding from fellow respondents about the inconsistency of her position, Sally wanted to hang the defendants by their thumbs and drive them out of business. Sally constructed an entire fantasy about exactly how the defendant company operated, in order to justify her position that they, unlike the companies in the hypotheticals she had just finished discussing, deserved the most punitive treatment available.<br />
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Normally, this kind of argument would hold little sway with other jurors. The problem we faced in this case is that no-one else on the panel had any personal experience with the circumstances surrounding the case. So, while most subjects could easily dismiss Sally's arguments as convoluted, several were willing to defer to her on the grounds that she had relevant experience they did not. That is, Sally was a self-professed expert and that was enough for them.<br />
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<b>Tea for Two</b><br />
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I found my experience with Sally profoundly troubling. Many commentators have discussed the erosion of empathy, civil discourse and reason-based argument in America over the past fifteen years. Clearly, this transition was manifesting itself in jury rooms, as well as campaign trails and voting booths. So, my Tea Party question became standard for all of my jury research. Just a simple question, "What do you think of the Tea Party movement?"<br />
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Just this past month, I ran a multi-panel focus group study for a case involving one of Boston's many universities. Again, without going into details about the case, I will divulge that the main witness for the defense was a very smart professor at the university. What makes this case potentially problematic, from a defense perspective, is that it is quite complicated and involves inner workings of a university with which most jurors will be quite unfamiliar. As such, the defense team wanted to make sure it could do a good job of getting jurors to actually understand how things work and who has responsibility for what.<br />
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We presented our treatment to the respondents and were pleased to see that, for the most part, they "got it." That is, we had done a good job of conveying a lot of esoteric and complicated information in a way that ordinary people could understand. As it turned out, however, we weren't out of the woods. There were two respondents who had decided that the university was not only wrong, but also evil and malicious. One of them wanted the university officials to be criminally prosecuted.<br />
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Reviewing their initial questionnaires, I didn't find any real red flags. They both have degrees from local colleges, although not particularly good ones. One is a payroll manager and the other is a "self-employed" ticket broker and "public speaker." The payroll manager, however, answered the Tea Party question, "They have some important ideas." I decided to dig a little deeper.<br />
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Both of these respondents listed Fox News as a major source for news coverage. They also both read The Herald, and not The Globe. In addition, our ticket broker is from Revere and the payroll manager is from Winthrop. These are two blue-collar, mostly white, communities north of Boston. They are also the only two towns in Suffolk County that went for Scott Brown in his Senatorial contest with MA Attorney General Martha Coakley. While Ms. Coakley won 70% of the vote in Boston, she won 46% and 44% in Revere and Winthrop, respectively. Confirming Senator Brown's appeal among blue-collar white voters, the only parts of Boston he won were South Boston, West Roxbury and the majority white neighborhoods of Dorchester.<br />
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One mainstay of the Tea Party movement and the Fox News propaganda is a rabid anti-intellectualism. They regularly vilify East Coast Liberal Elites and preach adherence to faith over science. Followers of this dogma are trained to be inherently suspicious of major research universities. Such universities are the homes of those perpetrating the global warming hoax and foisting evolution on unsuspecting school children who should be taught only creationism. In short, a professor at a major Boston university is immediately and automatically suspect, regardless of what he or she has to say.<br />
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<b>Always Dig Deeper</b><br />
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In addition to asking about preferred sources for news, I ask respondents to tell me about social media usage. Our ticket broker has a Twitter account. He doesn't tweet much, but he did post extremely religious messages on Christmas. He follows both Scott Brown and Fox News on Twitter. In short, he is a Christian Conservative living within a stone's throw of Boston.<br />
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There were fewer overt signs of political preference for our payroll manager. I did, however, pull up her LinkedIn profile. After many years at the same company, she changed jobs last June. She lasted only six months at the new company and only found work at a third firm after a few months without a job. While we will never know exactly what happened that caused her to leave her new job after such a short stint, it is not hard to imagine that she had some sort of negative experience working there. Because Tea Party sympathizers weight so heavily their own experiences and concerns, her extreme negative reaction to our case might have been triggered by her own lingering hostility towards her last employer. They are a big corporation and a university is a big corporation.<br />
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Our ticket broker is obviously struggling to make ends meet. He has a college degree and thinks of himself as very intelligent and articulate. He would raise his voice to be heard and was the one participant who regularly cut people off or spoke over them. He had all the characteristics of an inferiority complex and could reliably be counted on to disparage the testimony of some fancy-pants professor.<br />
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<b>Handling Tea Partiers During Voir Dire</b><br />
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If you practice in a jurisdiction with real attorney-conducted voir dire and/or regular use of supplemental juror questionnaires, you can probably tease out the tea party supporters. You can ask them questions about their experiences and make sure they have no negative associations with the topic of your case.<br />
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Life is much trickier in a jurisdiction with limited voir dire. Standard practice in Massachusetts, for example, is for the judge to ask all the questions, with limited input on question content from the attorneys. The main round of questioning is done as a group in open court, so all of the questions must be phrased to accommodate yes or no answers. The judge decides how deeply to dig into any topics at sidebar for any subsequent individualized voir dire and the lawyers are not permitted to speak directly to any of the prospective jurors.<br />
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One byproduct of this arrangement is that judges typically ask extremely direct and pointed questions, but not ones that a student of juror psychology would suggest. A Massachusetts judge would never ask a prospective juror about her views on the Tea Party unless the case were specifically about something a Tea Party leader had done. So, in a world of limited voir dire, it is very difficult to explore these tracers for attitudinal tendencies. And, without attorney-conducted voir dire, it is pretty much impossible to get information about attitudes directly. In short, we're screwed.<br />
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In the case involving the local university, we will try to use the demographic information to our advantage. We will keep an eye out for blue collar, white jurors, without major university credentials, from pro-Scott Brown communities. This is, unfortunately, a third-order proxy for what we really want to know about these people, but it is the best we can do in such a low information environment.<br />
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My main advice for anyone facing the prospect of Tea Party followers in the jury pool is to be extremely careful to identify them and gather as much information as possible. My experience is that such individuals can be unpredictable and capricious. Equally important, they like to talk and believe that what they have to say is profoundly important. One characteristic that seems to be shared by many Tea Party adherents is sense that their voice is not being heard by those in power. They are loud, persistent and desperate to be heard. As such, you must anticipate that a tea party juror will be an active juror, a persistent juror, and an incalcitrant juror. You had better know in advance exactly what they want and what their hot button issues are. If you don't I recommend that you burn a peremptory strike and move along to the next person in the box.<br />
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<br /><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com4tag:blogger.com,1999:blog-36117923.post-41761840525411730472012-01-05T16:14:00.000-05:002012-01-05T16:04:30.207-05:00The Weaponization of Belief: Tarek Mehanna Guilty on 7 Terrorism Charges<b>Guilty on All Counts</b><br />
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Late last month, a federal jury in Boston, after only 10 hours of deliberations, found Tarek Mehanna guilty on all seven counts for which he had been charged. They included conspiracy to kill Americans abroad, lying to federal investigators and, most controversially, providing material support to a terrorist organization (Al Qaeda).<br />
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Two sets of acts proved central to the case against Mehanna. The first was a trip he took with another man to Yemen in 2004, allegedly to seek training at a terrorist camp. His companion continued on to Iraq and remains at large. The second was a series of documents and videos Mehanna translated from Arabic into English and posted to the internet. As most of these files were seen as serving propaganda purposes for Al Qaeda, they formed the basis for the "material support" charge.<br />
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Defense attorneys for Mehanna had requested that Judge O'Toole give the jury a special verdict form, so that the jurors would have to specify whether the elements for any charge were satisfied by the Yemen trip, the web postings, or both. The rationale for such a request was a recognition that no U.S. appellate court had yet ruled on the Constitutional question of whether speech alone could qualify as material support, as defined by the antiterrorism statute. Only by learning whether any particular conviction rested on the internet postings could the defense preserve this question for appeal. Judge O'Toole, however, failed to see the need for the special verdict form and allowed the jury to return a general verdict on all counts.<br />
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<b>Retaliatory Prosecution?</b><br />
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Tarek Mehanna's brother, Tamir, was interviewed on WBUR (Boston's NPR affiliate) on the day following the verdict. <a href="http://bit.ly/tw1A36" target="_blank">In that interview</a>, he paints a picture of his brother's development as an American and a Muslim quite at odds with what prosecutors told the jury. He remains convinced that the government only prosecuted his brother so aggressively because Tarek refused to become an informant for the justice department in 2004.<br />
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Many legal scholars have now weighed in on the First Amendment implications of Mehanna's conviction, suggesting that it has struck a devastating blow against free political speech in America. The verdict sends a message to those who would criticize our government that their words can, in fact, be used against them in a court of law.<br />
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I wonder, however, if the verdict has not sent an even more potent message regarding the 4th, 5th and 6th Amendments. When it comes to issues of national security, if you assert your rights not to cooperate with an ongoing investigation, the consequences will be dire. Suspects have long been pressured into cooperating with the government in order to avoid particularly harsh treatment. Investigators and prosecutors regularly depend on informants and coconspirators to make their cases. This case, however, feels a bit different. The government really piled on here... and they won. I am not sure that federal authorities thought that Mehanna himself was particularly dangerous. They might have thought that a culture where dissidents feel free to blow off the Feds would be particularly dangerous.<br />
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<b>Credibility can be Key</b><br />
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In many of <a href="http://juryboxblog.blogspot.com/search?q=mehanna" target="_blank">my prior posts</a> about this case, I identified major challenges facing the defense, including poor timing, archaic jury selection procedures, adverse evidentiary rulings and the emotional climate created by any reference to terrorism.<br />
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Against all of this, I was very impressed with the defense mounted by Mehanna's team. In particular, I thought they did an excellent job of reminding the jury at every turn that almost everything cited as evidence by the prosecution turned out to be spoken or written words. The First Amendment defense, which seemed rather far-fetched as the trial opened, gained traction as the case went along.<br />
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There proved to be one major problem. Mehanna's trip to Yemen, at a time when no sane person would go there other than to be in the middle of a war, was clearly not mere talk. It was a very concrete act of someone who was clearly trying to accomplish something more than he could at home. The defense explanation was that he was seeking further Islamic education. There was scant evidence to support this contention and it frankly didn't pass the sniff test (even if it were true).<br />
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The perceived need to shoehorn this event into the free-speech-based defense strategy probably did not serve Mehanna well. I have not heard or read interviews with any of the jurors yet, but I wonder if the implausibility of this particular defense hurt the defense team's credibility with respect to the rest of the charges. If jurors thought the defense was trying to snow them about the trip to Yemen, they likely became suspicious of the rest of the defense story.<br />
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Hindsight is 20-20 (or at least usually less myopic than the present), so it is easy to speculate about "what ifs". I am sure that Mr. Carney and his team did what they thought would be most effective for their client at the time, and I do not mean to suggest that I somehow know better. The post-game analysis, however, tends to speculate about how things might have gone differently. In that spirit, I do wonder what might have happened, had Mr. Mehanna essentially fallen on his sword with respect to the ill-fated trip to Yemen.<br />
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Rather than defending the trip as an educational venture, the defense might have admitted that the trip was a stupid idea of an immature and angry young man. They might have been able to spin the story, to suggest that finding himself in the Middle East opened Mehanna's eyes to the very real conflict in the region. He came home because he realized that violence in the name of God is wrong. This story does seem to dovetail a bit better with Mehanna's subsequent decision to take his fight to the web, rather than the battlefield.<br />
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<b>It's always the cover-up</b><br />
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Americans are, as a rule, very forgiving people. I am often amazed at the transgressions we are willing to overlook. The one thing that we seem to have virtually no tolerance for, however, is anyone thinking they are bigger than the system, above the law, or not subject to the same rules as the rest of us.<br />
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Juries punish arrogance. Just ask Martha Stewart. Just ask Conrad Murray. Just ask Rod Blagojevich. Just ask Raj Rajarratman.When you get caught, throw yourself on the mercy of the court and jurors will treat you fairly. Act like you are smarter or tougher or better than everyone else and they will punish you.<br />
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It is for this reason that I am so concerned that the defense of Mehanna's trip to Yemen as a pilgrimage of Islamic learning came across as arrogant. It was borderline contemptuous of the jury. I worry that some of the jurors thought, "Just how gullible do you think we are?"<br />
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Alas, it will always be relegated to speculation what might have happened had the defense team taken a different tact with respect to this one particular act. Would the jury have been more sympathetic to the free speech defense of Mehanna's other activities? Would they have deliberated longer than 10 hours? We will never know.<div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com2tag:blogger.com,1999:blog-36117923.post-53424914986734378802011-12-12T18:21:00.001-05:002011-12-12T18:21:52.057-05:00Can Tarek Mehanna Take the Fifth... and the First?<b>The Protected Free Speech Defense</b><br />
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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 <a href="http://juryboxblog.blogspot.com/search?q=mehanna">here</a>.) 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.<br />
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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.<br />
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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.<br />
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<b>Was the Speech Dangerous?</b><br />
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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 <i>easy</i> 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.<br />
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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.<br />
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<b>Should the Defendant Take the Stand?</b><br />
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This brings us to the very tricky question of whether Tarek Mehanna should take the stand in his own defense. The <a href="http://juryboxblog.blogspot.com/2011/01/fifth-amendment-vs-third-degree.html">last time I wrote about this question</a>, it was in the context of the <a href="http://juryboxblog.blogspot.com/2011/01/fifth-amendment-vs-third-degree.html">Edward Fleury trial</a> (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.<br />
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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.<br />
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So, the defense confronts a very real dilemma. <i>Can the defendant simultaneously assert his FIrst Amendment right to free speech and his Fifth Amendment right not to speak at all?</i><br />
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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.<div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com2tag:blogger.com,1999:blog-36117923.post-78052937965716108292011-10-31T17:36:00.001-04:002011-10-31T17:36:27.926-04:00Jurors as Interpreters: When Facts Aren't Facts<b>The Interpretive Role of the Jury</b><br />
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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.<br />
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In our USC Interdisciplinary Law Review article, "<a href="http://www.eps-consulting.com/media/pdf/schwartz2000.pdf">And So Say Some of Us...: What to do When Jurors Disagree</a>," 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 <i>right</i> answers.<br />
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The most obvious and ubiquitous of these questions is whether the state has proved its case <i>beyond a reasonable doubt</i>. 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 <i>reasonable</i>. 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.<br />
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This is, however, only one example of the kind of interpretive question jurors are asked to resolve as part of "finding the facts." <i>Mens Rea</i> 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.<br />
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<b>When is Free Speech Too Costly?</b><br />
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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.<br />
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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:<br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif; font-size: small;">"[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."</span></blockquote>
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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?<br />
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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?<br />
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<b>Is there such a thing as Immaterial Support?</b><br />
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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.<br />
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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.<br />
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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,<br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif; font-size: small;">"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."</span></blockquote>
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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.<br />
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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?<br />
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 <i>he</i> consider them coordinated?<br />
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<b>The Law/Fact Distinction: A Convenient Legal Fiction</b><br />
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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.<br />
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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.<br />
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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.<br />
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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?"<br />
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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.<br />
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That is why we were in court, in the first place.<br />
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<b>What will the Mehanna jurors do?</b><br />
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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.<br />
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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?<br />
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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.<br />
<br /><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com1tag:blogger.com,1999:blog-36117923.post-33466038437442706812011-10-26T16:42:00.001-04:002011-10-26T16:42:42.313-04:00Challenging Jury Selection in Tarek Mehanna Trial<br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></div>
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif; font-size: small;">Tarek Mehanna</span></div>
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">You can review my earlier blog posts about the case <a href="http://juryboxblog.blogspot.com/search?q=mehanna">here</a>. In addition, I gave a <a href="http://slidesha.re/oIKnel">talk about Terror Management Theory</a> 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 <a href="http://boston.cbslocal.com/2011/10/24/jury-selection-in-terror-trial-of-sudbury-man-begins/">this page</a>.) 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. </span></div>
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">Jury selection did begin on Monday of this week and we have learned just a few things about how it is proceeding. </span></div>
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<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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. </span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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. </span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></li>
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<span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></span></div>
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif; font-size: small;">Attorney John W. Carney, Jr.</span></div>
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<span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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."</span></span></div>
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</div><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com0tag:blogger.com,1999:blog-36117923.post-68237140023935352572011-10-05T10:47:00.001-04:002011-10-05T10:47:59.961-04:00Ferdaus Arrest complicates Mehanna trial<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><b>When did Massachusetts move from the Northeast to the Middle East?</b></span><br />
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<tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjdN5Bn3AWSl6XsgNR9IlzvwZzwtNBPhYc8w-tRN7Fook8j9ExNgOFbhOdjqXgBKvZYzhCy40_K4_Fxq0f0cZJ3Q5P9OA0E5ogmowZWqmpgZbL24Jjw6rIHN6vhFhcqJL69T1rR/s1600/ferdaus.jpg" imageanchor="1" style="clear: right; margin-bottom: 1em; margin-left: auto; margin-right: auto;"><img border="0" height="200" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjdN5Bn3AWSl6XsgNR9IlzvwZzwtNBPhYc8w-tRN7Fook8j9ExNgOFbhOdjqXgBKvZYzhCy40_K4_Fxq0f0cZJ3Q5P9OA0E5ogmowZWqmpgZbL24Jjw6rIHN6vhFhcqJL69T1rR/s200/ferdaus.jpg" width="172" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">Rezwan Ferdaus</td></tr>
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">Massachusetts residents awoke last week to the <a href="http://articles.latimes.com/2011/sep/28/news/la-pn-congress-terror-plot-20110928">disturbing news</a> that yet another resident of the Commonwealth had been arrested for Al Qaeda inspired terrorist activity. <span class="Apple-style-span" style="line-height: 20px;">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. </span></span><br />
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<tr><td class="tr-caption" style="text-align: center;">Tarek Mehanna</td></tr>
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 20px;">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 (<a href="http://juryboxblog.blogspot.com/2011/09/facing-fearful-jury-terror-management.html">09/03/11 post</a>, <a href="http://juryboxblog.blogspot.com/2009/11/boston-terrorism-case-will-prove-test.html">11/03/09 post</a>), was originally scheduled to go on trial for similar terrorist planning activities on Monday of this week, <i>only a few days after Ferdaus was arrested</i>. 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.</span></span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 20px;">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.</span></span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 20px;">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.</span></span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 20px;">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.</span></span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 20px;">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 <a href="http://slidesha.re/oIKnel">here</a>.) 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.</span></span><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com0tag:blogger.com,1999:blog-36117923.post-60135606241019463012011-09-06T11:14:00.001-04:002011-09-06T17:15:36.178-04:00Facing the Fearful Jury: Terror Management Theory in the CourtroomA 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 <a href="http://isites.harvard.edu/icb/icb.do?keyword=k13943&pageid=icb.page63708">Harvard Project on Law and Mind Sciences</a>, (PLMS) housed at Harvard Law School.<br />
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The founders launched several initiatives at once. They established The <a href="http://thesituationist.wordpress.com/">Situationalist</a>, 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.<br />
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PLMS has also run four conferences exploring psychological aspects of the law. <a href="http://isites.harvard.edu/icb/icb.do?keyword=k13943&tabgroupid=icb.tabgroup119727">The 2011 conference</a> focused on causes and consequences of inequality. <a href="http://isites.harvard.edu/icb/icb.do?keyword=k13943&tabgroupid=icb.tabgroup104940">The 2010 conference</a> dealt with the heavy-duty challenge of what, if anything, neuroscience can tell us about morality.<br />
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There is also a student group, <a href="http://hlsorgs.com/salms/">The Student Association for Law and Mind Sciences</a> (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 <a href="http://hlsorgs.com/salms/2011/08/03/sched/">Fall schedule</a> is now posted on the SALMS website.<br />
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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 <a href="http://www.law.harvard.edu/about/administration/facilities/buildings/pound.html">Pound Hall</a> at Harvard Law School. The presentation, including time for questions, will last about one hour.<br />
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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 <a href="http://www.thejuryexpert.com/2009/07/terror-management-theory-and-jury-decision-making/">excellent review article</a>, by Lieberman and Arndt, in <a href="http://www.thejuryexpert.com/">The Jury Expert</a>, the online journal of the <a href="http://www.astcweb.org/">American Society of Trial Consultants</a> (ASTC). Second, you can review an <a href="http://juryboxblog.blogspot.com/2009/11/boston-terrorism-case-will-prove-test.html">earlier posting</a> 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.<br />
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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.<br />
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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 <a href="http://www.twitter.com/EPSConsulting">Twitter Feed</a>, where one can watch the recorded talk online, once it is posted.<div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com3tag:blogger.com,1999:blog-36117923.post-55393881172449790432011-07-18T10:54:00.000-04:002012-01-26T17:03:23.741-05:00Clemens Hit by Pitch: Prosecutor gets Tossed<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><b>All Part of the Game</b></span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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 </span><i><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">even where on his body he's going to get hit</span></i><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">. </span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">"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." </span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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. I</span><i><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">t's all part of the game</span></i><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">.</span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><b>Jury trials have their own rules</b></span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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 </span><i><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">those</span></i><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"> old emails, too. Gee, let me put my assistant right on it and we'll see if we can put our hands on them."</span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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."</span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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 </span><i><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">verboten</span></i><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"> 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.</span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><b>Taking Control of the Game</b></span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span><br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgANVT7xAnTrwIeWstmOpKTd1N-Llpgwkl6Ljiq-wC-laoG3WhNu-9nEOIJ62bLZj38jAyycICPyE39o7YTxCiwhPoBQlvy3DflKtBUOFSOC2gFwgVC5FiCxVwylAUL5tqUSPv3/s1600/clemens-piazza.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="228" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgANVT7xAnTrwIeWstmOpKTd1N-Llpgwkl6Ljiq-wC-laoG3WhNu-9nEOIJ62bLZj38jAyycICPyE39o7YTxCiwhPoBQlvy3DflKtBUOFSOC2gFwgVC5FiCxVwylAUL5tqUSPv3/s320/clemens-piazza.jpg" width="320" /></a><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><b>The Last Resort: When to Call the Game</b></span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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. </span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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).</span><br />
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<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">Was the inadmissible information uttered once or repeated? (Did the pitcher throw at the batter multiple times?)</span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">Was the statement inadvertent or solicited? (Did the manager tell the pitcher to hit the batter?)</span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">How important to the case is this witness's testimony? (Did the pitcher just plunk the other team's best hitter?)</span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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?)</span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">Is there other evidence that would have gotten the jury to the same place? (Is this game already out of hand?)</span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.)</span></li>
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span><br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></blockquote>
<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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).<br />
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.<br />
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<b>Laura Pettitte makes a Surprise Appearance out of the Bullpen</b><br />
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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.<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjryDx2HFpA_a8LRJdF-3JyrzQNI2w7WwQTXNhUkxner-m6rN_wUdpXRK5niAawg3crnoKQkwkATUfi6KCCDG7W0xp-71G_yZBHtFMQvSnheVe4wRglQ52qzEb5JgBLWI-9aNjo/s1600/brett-pine-tar-300x168.jpg" imageanchor="1" style="clear: left; float: left; margin-bottom: 1em; margin-right: 1em;"><img border="0" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjryDx2HFpA_a8LRJdF-3JyrzQNI2w7WwQTXNhUkxner-m6rN_wUdpXRK5niAawg3crnoKQkwkATUfi6KCCDG7W0xp-71G_yZBHtFMQvSnheVe4wRglQ52qzEb5JgBLWI-9aNjo/s1600/brett-pine-tar-300x168.jpg" /></a>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 <i>after</i> 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 <i>would</i> 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.<br />
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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.<br />
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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, <i>as a matter of law,</i> they should ignore it; but, he'll never successfully explain why they should, <i>as a matter of logic</i>, or common sense. It <i>is</i> 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).<br />
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<a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjyVnYnh2jgEsVhh5tMvmcBco8_8iNGrnP7h4ABnhG1x63M9x2UBZwI-5WvozKQzGnBSRa8FQ2XqF5ZMugq4R0yE6bXDd2U_IgzpQCm81uoGcgbE4ZYhPq6jWrz64jY2kiSQHBe/s1600/clemens-smug.jpg" imageanchor="1" style="clear: right; float: right; margin-bottom: 1em; margin-left: 1em;"><img border="0" height="180" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjyVnYnh2jgEsVhh5tMvmcBco8_8iNGrnP7h4ABnhG1x63M9x2UBZwI-5WvozKQzGnBSRa8FQ2XqF5ZMugq4R0yE6bXDd2U_IgzpQCm81uoGcgbE4ZYhPq6jWrz64jY2kiSQHBe/s320/clemens-smug.jpg" width="320" /></a></div>
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.<br />
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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).<br />
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In this game, Roger took one for the team. But that's OK, he owns the team.<br />
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<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><br /></span></div><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com4tag:blogger.com,1999:blog-36117923.post-8263998240230039772011-06-24T10:24:00.000-04:002011-06-24T10:24:06.917-04:00Can Whitey Bulger Get a Fair Trial in Massachusetts?<b>Interview on WBZ Radio 1030</b><br />
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This morning, I was interviewed by Carl Stevens of <a href="http://boston.cbslocal.com/category/watch-listen/">WBZ Radio 1030</a>, 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.<br />
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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.<br />
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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.<br />
I'll be sure to blog about developments as they seem important.<div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com3tag:blogger.com,1999:blog-36117923.post-64145734830357268822011-06-23T21:02:00.000-04:002011-06-23T21:02:29.193-04:00ASTC Pro Bono Initiative helping bring Baby Doc to justice<b>Not a Pediatric Medical Malpractice Case</b><br />
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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.<br />
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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.<br />
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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 <a href="http://news.bbc.co.uk/2/hi/americas/1202857.stm">here</a>.) 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.<br />
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<b>Where are we now?</b><br />
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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.<br />
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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 <a href="http://www.hrw.org/en/news/2011/04/14/haiti-duvalier-prosecution-rendezvous-history">white paper</a> about how important this case is) have reason to worry about the support they will receive from the new government.<br />
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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.<br />
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<b>Where does the <a href="http://www.astcweb.net/">ASTC</a> fit in?</b><br />
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A few months ago, I was contacted by Brian Concannon, the Director of the <a href="http://www.ijdh.org/">Institute for Justice and Democracy in Haiti</a>. 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.<br />
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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 <a href="http://www.litigationsolutions.com/">Litigation Solutions</a>, 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.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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, <a href="http://www.neshobafilm.com/">Neshoba: The Price of Freedom</a>, 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.<div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com0tag:blogger.com,1999:blog-36117923.post-63297400282572014172011-04-05T10:54:00.000-04:002011-04-05T10:54:23.780-04:00An Oldie but a Goodie: Tips for Voir Dire<i>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.</i><br />
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Enjoy!<br />
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<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhkk2wU5EQT0QlWY5JZJ2qTVBJ5FPuAAUxNZIgZBmErSjszX_yCcJsKAbhmYIofEgNuZlK_WVka7T-jYtlRw4R_iqzW2n4KmtrL2oQlMHp0VOP0PWApUjz0THWAWkS6A4w-9loN/s1600/usamasthead.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="55" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhkk2wU5EQT0QlWY5JZJ2qTVBJ5FPuAAUxNZIgZBmErSjszX_yCcJsKAbhmYIofEgNuZlK_WVka7T-jYtlRw4R_iqzW2n4KmtrL2oQlMHp0VOP0PWApUjz0THWAWkS6A4w-9loN/s320/usamasthead.jpg" width="320" /></a></div><br />
<div style="font: 22.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">Indirect Questions Reap Most Information in </div><div style="font: 22.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">Oral <i>Voir Dire</i> </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><b>By Edward P. Schwartz </b></div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">October 9, 2006 </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">In my last column, I discussed many of the advantages of using a </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">supplemental juror questionnaire as part of jury selection – the primary </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">advantage being that jurors tend to be more truthful in their responses on a </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">written form than they are when questioned orally in open court. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">But the written form – at least in courts that allow traditional voir dire – should </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">only be seen as a supplement to oral questioning conducted in both a group and </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">an individualized setting. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><b>Group voir dire </b></div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><b><br />
</b></div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">By necessity, group voir dire questions are typically framed as “yes or no” </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">inquiries. Jurors are asked to raise their hands if they answer any question in the </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">affirmative. Each party notes who raised a hand in response to each question </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">and then follows up with questions either in open court, at sidebar or in the </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">judge’s chambers, depending on the court’s prevailing practices. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">My first word of advice is not to expect to learn very much from group voir </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">dire. The need to ask “yes or no” questions, coupled with the public setting, </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">conspire to limit how much information you can get from potential jurors. The </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">studies cited in my last column all reveal that jurors lie during group voir dire – a </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">lot. Most of these lies stem from an unwillingness to volunteer information about </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">private and/or sensitive subjects. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">My second bit of advice is to treat group voir dire as an entrée into </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">individualized voir dire. The more often a juror raises her hand, the more </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">individual questions she will have to answer. Since these follow-up questions are </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">where the action is, craft your group voir dire questions in a way that prompts as </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">many people to respond as possible. Instead of asking whether “you or a loved-<span style="font: 12.0px Helvetica;"> </span></div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">one has ever been a party in a law suit,” ask whether “you know anyone who has </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">participated in a lawsuit.” Many panel members will construe a question as </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">narrowly as possible in order to avoid raising their hand and setting themselves </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">up for additional questions. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">Ask each juror whether he or she has ever been in a courthouse before. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">Almost everyone has been at some point or another. Whether it concerns traffic </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">court, small claims court or family court, you should try to learn something about </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">each juror’s experience with the legal system. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">Try to keep your list of group voir dire questions short. The jurors don’t want </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">to raise their hands anyway. The longer the process lasts, the less inclined </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">anyone will be to volunteer information. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">I recently consulted on a trial for which the group voir dire lasted 1½ hours. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">For the last 10 minutes, not a single juror raised his or her hand. Fortunately, the </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">questions from my team had been asked at the beginning. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div></div><div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">Some jurors are forthcoming, while others won’t raise their hands unless they </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">absolutely have to. These jurors can slip through voir dire because questions are </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">almost always phrased so that it is the jurors who raise their hands who are </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">asked additional questions. To avoid this, I recommend that you phrase some of </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">your questions so that it is the jurors who don’t raise their hands who are subject </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">to individualized voir dire. So instead of asking, “Who has a relative who works in </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">the health field?,” ask “Who <i>doesn’t </i>have a relative who works in the health </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">field?” Even if the voir dire will be conducted entirely by the judge, try requesting </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">that the judge mix it up in this way. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">Finally, it is a complete waste of time to ask jurors directly whether there is </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">anything that would prevent them from being impartial in the case. Most people </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">who answer affirmatively are just trying to get out of jury duty. The people whose </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">biases are really a source of concern are rarely self-aware enough to recognize </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">the problem. Finally, such questions are usually so poorly worded, and cluttered </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">with negatives and dependant clauses, that jurors can’t decipher them in time to </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">volunteer a response. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><b>Individual voir dire </b></div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><b><br />
</b></div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">A good question in a written juror questionnaire typically does not make a </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">good voir dire question. The main reason is that while people hate to write, they </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">love to talk. An open-ended question on a written questionnaire is an invitation to </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">leave a blank space. As I discuss in my last column, multiple-choice and sliding-<span style="font: 12.0px Helvetica;"> </span></div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">scale questions are preferable on a written form. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">But in oral voir dire, open-ended questions provide an opportunity for jurors to </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">tell you who they really are. The goal is to get potential jurors to want to tell you </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">about themselves in their own words. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">Don’t ask leading or challenging questions. If you try to put words in jurors’ </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">mouths, they will either repeat them back to you or clam up, depending on </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">whether they like what you are saying on their behalf. So, if you ask a juror what </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">she thinks about the “torts crisis” in America, she will either tell you that she </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">thinks it is a “crisis” or that she doesn’t have much of an opinion about it. Such a </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">question will not get her to tell you about her own experience (or those of her </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">friends and family) with the civil justice system, which is what you really want to </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">learn about. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"></div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">Instead, ask the juror about the most interesting court case she has ever </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">heard about. What case she chooses, along with her take on the outcome, will be </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">much more informative than some canned response about “fairness” or “justice.” </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">Prospective jurors will instinctively try to figure out why a lawyer is asking a </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">particular question. The more sensitive the topic – and the more the question </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">reflects the fundamental controversy of the case – the more likely a juror is to try </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">to “game” the process. One way to avoid this is to ask jurors to tell stories about </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">themselves, as I mention above. Another is to ask questions about topics that </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">proxy well for what you are really interested in. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">For example, I recently worked on a case involving the purchase of a firearm </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">by someone who was mentally ill. We wanted to learn whether jurors were </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">sensitive to the plight of people facing mental challenges and whether they </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">believed society is responsible for keeping such people safe. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">To get at these attitudes, we asked a very open-ended question about each </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">juror’s recollection of the Columbine tragedy. If a juror did not offer an opinion on </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">her own about who was responsible, we followed up with a question about the </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">juror’s initial thoughts about who was to blame. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">Some jurors blamed only the shooters. Others expressed frustration with the </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">parents. A few articulated the position that everyone (parents, school, </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">government, media, etc.) has a responsibility to look out for the well-being of our </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">children. The jurors were generally willing to talk about Columbine because it did </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">not have a direct bearing on our case. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">Another ripe area to explore is people’s relations with those close to them. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">People love to talk about their children. Rather than ask prospective jurors about </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">religious preferences, ask where their kids go to school. To get a sense of how a </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">juror feels about people in different professions, ask what their children want to </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">be when they grow up. If one answers, “Joey, my 6-year-old, wants to be a </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">policeman,” you can follow up with, “How do you and your wife feel about that?” </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">A person whose son is on the debate team or who plays in the orchestra is likely </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">to have different attitudes than one whose son plays on the football team and has </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">joined ROTC. A person who is self-conscious about their own life can still be </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">expansive about her children; use this to your advantage. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">There is another advantage to “asking around the topic.” If the other side has </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">not thought through the voir dire process as thoroughly, the jurors’ responses will </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">be more useful to you than they will be to your opponents. </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><br />
</div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><b>Be Prepared for any jury </b></div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;"><b><br />
</b></div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">I have devoted the last two columns to jury selection strategies. I don’t want </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">you to get the idea, however, that choosing a jury is the only, or even the most </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">important, opportunity for you to improve your chances of winning at trial. As I </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">always tell my clients, in terms of impact on verdict choice, who the jurors are is </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">almost always swamped by what the jurors see. By all means, do all you can to </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">identify and strike jurors who really will be unfair to your client; but, make sure to </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">concentrate your energy and resources on <i>presenting </i>your case in its most </div><div style="font: 12.0px Arial; margin: 0.0px 0.0px 0.0px 0.0px;">favorable light. </div></div><div><br />
</div></div><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com0tag:blogger.com,1999:blog-36117923.post-61033941253420070732011-02-01T10:49:00.000-05:002011-02-01T10:49:42.960-05:00Evidence Driven Deliberations enhance accuracy and consensus<div style="text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"></span><br />
<span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><b>A Missouri jury is confronted with a cold case</b></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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. </span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><b><br />
</b></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><b>A Conscientious Deliberation</b></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">Melissa Spain was the foreperson of the jury. In </span><a href="http://www.columbiamissourian.com/stories/2011/01/30/juror-doisy-trial-explains-decision/"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="color: black;">an interview</span></span></a><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"> 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.</span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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, </span><span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">“It was a room full of logical, open-minded people just really taking it seriously and looking at every possible angle.” </span></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><b><br />
</b></span></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><b>Evidence-driven vs. Verdict-driven deliberations</b></span></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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. </span></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="line-height: 24px;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">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.</span></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"></div><ol><li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 24px;">More material and relevant evidence enters the deliberations and fewer factual errors go uncorrected.</span></span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 24px;">A larger number of jurors participate actively in the discussion.</span></span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 24px;">The tenor of deliberation is more inclusive, polite and respectful.</span></span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 24px;">Jury instructions receive greater attention and adherence.</span></span></li>
<li><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 24px;">Jurors report greater satisfaction with both deliberations and the final verdict.</span></span></li>
</ol><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 24px;">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..." </span></span><br />
<div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 24px;"><br />
</span></span></div><div style="font-family: Arial; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: justify;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 24px;">If a thorough jury is a good jury for your case, try to keep them out of verdict-driven mode as long as possible.</span></span></div></span></div><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com1tag:blogger.com,1999:blog-36117923.post-26015580170173022672011-01-14T13:52:00.000-05:002011-01-14T13:52:13.620-05:00The Fifth Amendment vs. The Third Degree<b>Edward Fleury declines to testify in his own defense</b><br />
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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 <a href="http://juryboxblog.blogspot.com/2010/11/tragedy-hindsight-bias-and-blame-game.html">here</a> and <a href="http://juryboxblog.blogspot.com/2011/01/blame-avoidance-v-blame-deflection-gun.html">here</a>.<br />
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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.<br />
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<b>When should a defendant testify?</b><br />
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There are a few main factors that a defense attorney must consider when deciding whether to put her client on the stand.<br />
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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.<br />
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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.<br />
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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.<br />
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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.<br />
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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 <i>more</i> 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.<br />
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<b>The defense rests... completely</b><br />
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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.<br />
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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?<br />
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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.<br />
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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.<div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com2tag:blogger.com,1999:blog-36117923.post-53609074434801999952011-01-07T15:06:00.002-05:002011-01-07T15:14:37.564-05:00Blame Avoidance v. Blame Deflection: The Gun Show Uzi trial<div style="font: 12.0px Helvetica; margin: 0.0px 0.0px 0.0px 0.0px;"></div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;"><b>Gun show Uzi trial highlights emotional impact of tragedy</b></div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;"><a href="http://abcnews.go.com/US/father-christopher-bizilj-died-firing-uzi-urged-son/story?id=12565132">The manslaughter trial of Edward Fleury</a>, 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.</div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;">Prior to the original start date for the trial (which was delayed for over a month), I wrote a <a href="http://juryboxblog.blogspot.com/2010/11/tragedy-hindsight-bias-and-blame-game.html">blog post</a> 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.</div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;">In the <a href="http://juryboxblog.blogspot.com/2010/11/tragedy-hindsight-bias-and-blame-game.html">earlier post</a>, 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 <a href="http://juryboxblog.blogspot.com/2009/11/boston-terrorism-case-will-prove-test.html">here</a>. 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. </div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;"><b>Blame deflection v. blame avoidance</b></div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;">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.</div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;">The second problem with such a strategy is that there is <i>a lot</i><span style="font-style: normal;"> 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. </span></div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;">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.</div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;"><b>Fleury Defense Team reaches for the brass ring</b></div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;">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.</div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;">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.</div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;">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.</div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;">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 <i>more</i><span style="font-style: normal;"> 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. </span></div><div class="MsoNormal" style="margin-top: 6.0pt; text-align: justify;">We’ll just have to wait and find out with everyone else.<o:p></o:p></div><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com0tag:blogger.com,1999:blog-36117923.post-78522250648305968522011-01-03T11:34:00.000-05:002011-01-03T11:34:08.846-05:00The Hung Jury: American Exceptionalism Strikes Again<b>Hung Juries: Judicial Flukes or Systemic Problem?</b><br />
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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.<br />
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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.<br />
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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%.<br />
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<b>An understudied phenomenon</b><br />
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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.<br />
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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.<br />
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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 <a href="http://twitter.com/HungJuries">HungJuries</a>, dedicated to exploring the frequency of American hung juries, as well as the causes and consequences of juries failing to reach unanimous consensus.<br />
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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.<div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com0tag:blogger.com,1999:blog-36117923.post-74543306850737993052010-12-16T13:19:00.001-05:002010-12-16T13:28:44.708-05:00Post-verdict Correction for Racial Animus in the Jury Room: Can it be done?<span class="Apple-style-span" style="font-family: Tahoma; font-size: 12px; line-height: 15px;"></span><br />
<div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;"><span style="font-size: small;"><strong><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">The McCowen Case in Massachusetts</span></strong></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;"><span style="font-size: small;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;"><span style="font-size: small;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">Earlier this month, the Supreme Judicial Court of Massachusetts <a href="http://caselaw.findlaw.com/ma-supreme-judicial-court/1547834.html">unanimously rejected the appeal</a> of Christopeher McCowen, who was convicted of murdering Christa Worthington on Cape Cod. The major grounds for McCowen's appeal was that jurors revealed, after the trial was over, that the deliberations had been peppered by racially insensitive remarks and hurt feelings over perceived racial animus.</span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;"><span style="font-size: small;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;"><span style="font-size: small;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">While the Federal Rules of Evidence, and most state counterparts, preclude jurors testifying about their deliberations after the fact, Massachusetts has an exception carved out for alleged racial prejudice. McCowen's appeal was allowed under this exception. Ultimately, the Supreme Judicial Court found arguments that racial animus affected the final verdict unpersuasive. New Chief Justice, Roderick Ireland, wrote in his concurrence that he wished the trial judge had conducted a more thorough voir dire of the jurors before making his initial ruling.</span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;"><span style="font-size: small;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><br />
</span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;"><span style="font-size: small;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;">Ireland's opinion suggests some optimism that a post-verdict investigation of jury deliberations can be a successful method of reducing the influence of racial prejudice in the criminal justice system. This view is shared by Colin Miller, a professor at The John Marshall Law School, who wrote a piece, entitled <span class="Apple-style-span" style="line-height: 15px;"><a href="http://www.astcweb.org/public/publication/article.cfm/1/22/2/Using-the-Right-to-Present-a-Defense-to-Allow-for-Jury-Impeachment-on-Bias">Without Bias: How Attorneys Can Use The Right to Present a Defense to Allow for Jury Impeachment Regarding Juror Racial, Religious, or Other Bias</a> for The Jury Expert, in March of this year.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;"><span style="font-size: small;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="line-height: 15px;"><br />
</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;"><span class="Apple-style-span" style="font-family: Arial, Helvetica, sans-serif;"><span class="Apple-style-span" style="font-size: small;">I was one of the commenters on Miller's article for The Jury Expert. I am not so sanguine about the efficacy of post-verdict juror interviews, as a tool of reducing the influence of racial animus among jurors. I reproduce my response below. Comments are, of course, welcome.</span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: left;"><span style="font-size: small;"><span style="font-family: Verdana;"><strong><u><br />
</u></strong></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px; text-align: center;"><span style="font-size: small;"><span style="font-family: Verdana;"><strong><u><span class="Apple-style-span" style="color: #666666;">The Hollow Promise of Post-Verdict Juror Testimony: Circumventing FRE 606(b) won't overcome racial prejudice</span></u></strong></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">I have read with great interest Professor Miller's article, outlining an argument in favor of loosening the restriction on juror testimony to impeach criminal verdicts, where racial prejudice is alleged. I must say that I am not entirely persuaded that his approach can circumvent the logic of FRE 606(b). Of particular concern is a recognition that any effort at post-conviction relief begins a completely new phase of the judicial process, with new procedures, presumptions and burdens of proof. As such, one cannot easily analogize from forms of trial testimony to juror post-verdict testimony. That is, the jurors are most assuredly not testifying at the defendant's trial. Secondly, I seem to place a higher value on the interests being protected by 606(b) - namely the rights of jurors to deliberate free from state intervention or recrimination - than does Professor Miller.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">Even were one able to loosen the bonds of 606(b), I am concerned that holding more post-verdict hearings, complete with juror testimony, wouldn't accomplish very much. This is a very blunt, unwieldy instrument for correcting the ills of racial animus. I outline below why I believe this to be so.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><strong><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">The 606(b) Exception Exception - The Massachusetts Rule</span></span></span></strong></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">Reading the language of FRE 606(b) (and the state counterparts, which generally include the same language), there does not appear to be any room for impeaching a verdict based on racial animus infecting jury deliberations. Clearly, such animus falls squarely within the "mental processes" language and any jury discussion of racial issues falls under the "deliberations" prohibition.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">Many impediments to impartial deliberations that would seem to be much more "extraneous" or "outside" have been interpreted to fall under the prohibitions of FRE 606(b). Verdicts have been allowed to stand despite the extreme depression, schizophrenia and mental retardation of jurors. The most famous case testing 606(b), Tanner v. U.S. (1978), involved a jury that got drunk and took cocaine together during deliberations. If cocaine and mental retardation don't qualify as "extraneous" influences, it is hard to think how racism might.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">I was very surprised then to hear that a Massachusetts trial judge was conducting a hearing to investigate the verdict in the case of Christopher McCowen. McCowen, a black sanitation worker, had been convicted of murdering Christa Worthington, a white woman who lived on his route. A few days later, three jurors contacted the defense attorney to report racially charged irregularities in the deliberations.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">I discovered that the Massachusetts Supreme Judicial Court has carved out a specific exception to 606(b) when racial animus is alleged. Although evidence that a juror made ethnically or racially prejudiced remarks during deliberations is not evidence of an "extraneous matter," the Supreme Judicial Court has held that a judge has authority to inquire into such matters because the existence of such remarks may deprive a defendant of the right to be tried by an impartial jury. </span><em><span class="Apple-style-span" style="color: #666666;">Commonwealth v. Laguer</span></em><span class="Apple-style-span" style="color: #666666;"> (1991).</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">So, Mr. McCowen got his hearing (</span><em><span class="Apple-style-span" style="color: #666666;">Commonwealth v. McCowen</span></em><span class="Apple-style-span" style="color: #666666;">, Barstable Superior Ct., April 4, 2008). All the jurors were interviewed. A few racially insensitive remarks were recalled, as were several apologies. In the end, Judge Gary Nickerson was not convinced that racial animus infected the deliberations, something the defendant had the burden of proving by a preponderance of the evidence. So, even in a state with the most liberal standard available for reinvestigating a verdict due to racial prejudice, admitted instances of racially insensitive remarks were insufficient to bring the defendant relief.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><strong><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">So, you secured a hearing - now what?</span></span></span></strong></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><img align="right" alt="" src="http://www.astcweb.org/userfiles/tje/ads/miller%20schwartz%20response.gif" /><span class="Apple-style-span" style="color: #666666;">I would strongly advise against relying too heavily on 606(b) exceptions to overcome racial bias in the jury room. There are just too many things working against you. First of all, while some states like Massachusetts have carved out "racial animus" exceptions to the prohibition against juror testimony on matters relating to deliberations, not many of those exceptions were enthusiastically embraced by the state Supreme Courts. A state's official position on this topic could change tomorrow.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">Second, all the exception gets you is a hearing (provided you've got solid affidavits from some jurors). Convincing a judge that the verdict was the result of racial prejudice is going to be a bear. The main reason for this, of course, is that the very same jurors complaining about the verdict voted </span><em><span class="Apple-style-span" style="color: #666666;">for the verdict</span></em><span class="Apple-style-span" style="color: #666666;"> themselves (except in Oregon and Louisiana, where criminal verdicts need not be unanimous).</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">Imagine that you were an African American juror, sitting on a case with racial overtones. One or two of your fellow jurors start uttering remarks that are racially insensitive, maybe even inflammatory. Will that make you more likely to vote guilty? I don't think so. So, the first question any sensible judge will have for a juror who alleges that a verdict was tainted by racial animus is, "Then, why did you vote for it?"</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">The most likely scenario, leading to a juror contacting a defense attorney and complaining about the racial tension in the jury room, is that the juror experiences regret about the verdict for some reason. That is, after the fact, she comes to wish that she had voted differently. Most likely, she reads about the case in the newspaper, or hears about it on television, and learns some things that did not come out at trial.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">The exceptions to 606(b) are not intended, however, to circumvent the other rules of evidence. Judges know this and no good judge will allow juror regret to impeach a verdict. As the judge in the McCowen appeal wrote, "The oft-expressed second thoughts of a conscientious juror do not necessitate a new trial."</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">Consider the final paragraph in the opinion denying McCowen's motion for a new trial:</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><blockquote><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><em><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">"One final observation is in order. For over thirty years, this author has witnessed the delivery of verdicts in serious criminal cases. Watching jurors being polled has shown in many instances, a trembling hand, a tear trickling down, or the word "Guilty" getting caught in a juror's throat. The polling of the jury in this case was extraordinary. After eight days of deliberations, not one juror trembled, or shed a tear or choked on his or her words. Unfettered unanimity was obvious from the conduct of the jurors as well as from the words they spoke as they were individually polled."</span></span></em></span></div></blockquote><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><strong><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">Avoiding racial prejudice in the jury room</span></span></strong></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">While Professor Miller spends the bulk of his article articulating his attack on FRE 606(b), he ends with a list of sensible suggestions for minimizing the likelihood that racial animus will contaminate a jury's deliberations.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">Remember that 606(b) only applies after the verdict has been rendered. If you wait until then to try to rectify problems with your jury, the horse has already left the proverbial barn. The key is to be vigilant with respect to racial issues throughout the entire trial process.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">By all means, follow Professor Miller's advice with respect to jury selection, but I would pay particular attention to his admonition to request a jury instruction regarding the reporting of juror misconduct. While it might not be prudent to mention racial prejudice explicitly, it is critical that the jurors are made aware that the judge is available to help with any issues that come up during the trial and deliberations. The judge should let each juror know that she should immediately come forward if she is at all concerned that she, or any other juror, has seen, heard or done anything that she believes might not be appropriate.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">With any luck, you will have a judge who can couch such an instruction in a non-threatening way. In order to avoid reactance on the part of jurors, they must perceive this admonition as a genuine offer to help them work through any issues that might emerge.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><span style="font-size: small;"><span style="font-family: Verdana;"><span class="Apple-style-span" style="color: #666666;">Such an instruction can be critical because the prohibition against voir dire for the jurors does not apply until after a verdict is rendered. So, if jurors come forward during any point of the trial or deliberations, a proper investigation into possible racial prejudice can be conducted.</span></span></span></div><div style="font-size: 12px; font: normal normal normal 12px/normal Helvetica; margin-bottom: 0px; margin-left: 0px; margin-right: 0px; margin-top: 0px;"><br />
</div><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com0tag:blogger.com,1999:blog-36117923.post-37938138684337448422010-12-08T14:15:00.001-05:002010-12-08T14:22:27.169-05:00The Dissenters Dilemma: Holdout jurors face hostility and threats<b><span class="Apple-style-span" style="font-size: large;">One holdout's harrowing tale</span></b><br />
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JoAnn Chiakulas was a juror on the trial of former Illinois Governor Rod Blagojevich, charged with many counts of corruption, stemming, in part, from his alleged attempt to sell President Obama's former Senate seat for cash and political considerations. In the end, the jury hung with respect to 24 of 25 counts, finding him guilty only of lying to federal agents.<br />
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Despite an apparent agreement among the jurors to simply return home after the trial, eschewing interviews with the press, Ms. Chiakulas found herself "outed" as the holdout juror almost immediately. Forewarned that her house had been surrounded by press, she sought refuge at her daughters house and tried to ignore the incessant ringing of her cell phone. In an interview with Ira Glass on PRI's <a href="http://bit.ly/gnXwsF">This American Life</a>, she discusses at length the reasoning behind her position on Blagojevich's guilt, as well as the environment of hostility to which she was subjected by the other jurors. The interview is fascinating and well worth a listen.<br />
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<b><span class="Apple-style-span" style="font-size: large;">Interpretation, Intensity and Isolation</span></b><br />
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According to Ms. Chiakulas, she was not the only juror to have doubts about whether the state had made its case against Blagojevich. Since no money or favors ever changed hands, all of the evidence against the Governor was circumstantial and open to interpretation. Among the open questions,<br />
<blockquote>What exactly was he asking for?</blockquote><blockquote>Was this kind of posturing and horse-trading common among politicians?</blockquote><blockquote>Given how emotional and irrational the Governor seemed to be, was he just "talking trash?" </blockquote>Again, according to Ms. Chiakulas, the vast majority of the jury had decided by the end of the trial that Blagojevich was guilty of pretty much everything he had been charged with, making deliberations a mere formality. In addition, the jurors discussed openly the pressure they felt from the public to punish Blagojevich for his transgressions. It was, then, through this "fait accompli" lens that most of the jurors viewed Ms. Chiakulas' reluctance to convict.<br />
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While the jurors were apparently cordial enough at the beginning, things turned sour when it became clear that Ms. Chiakulas wasn't going to "come around." Pretty soon, she felt as if she were under siege. Pleasant conversation turned to insults and accusations. Her rationality and emotional soundness were questioned, as were her motives. Some of the jurors sent a note to the judge, asking that she be removed from the jury, on the grounds that she wasn't deliberating in "good faith."<br />
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When chiding, challenging and pleading failed to change her mind, certain jurors turned to intimidation in order to change her vote. Ms. Chiakulas tells one rather haunting story of a juror who had been sitting at another part of the table for several days. Finally fed up with Ms. Chiakulas' recalcitrance, this juror moved to directly opposite her and spent hours intently glaring directly at her.<br />
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<b><span class="Apple-style-span" style="font-size: large;">Most holdouts buckle</span></b><br />
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Regardless of whether you agree with the way in which Ms. Chiakulas interpreted the evidence in this case, you have to applaud her resolve under such withering scrutiny. She was the target of intense hostility and bullying, without any way to escape, and she stuck to her guns. Most of us would not hold up so well.<br />
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Don't flatter yourself in thinking that you would hold out under such attacks. The data say otherwise. As I reported in a <a href="http://juryboxblog.blogspot.com/2009/09/criminal-jury-verdicts-arent-really.html">Jury Box Blog posting</a> last year, <span class="Apple-style-span" style="color: #222222; font-family: Arial, Tahoma, Helvetica, FreeSans, sans-serif; line-height: 18px;">Nicole Waters and Valerie Hans, as part of the National Center for State Courts project on hung juries, gave out post-trial surveys to almost 4000 jurors across 4 states and got back completed forms from almost 3500. This covered 367 trials. Among the questions they asked was: "If it were entirely up to you as a one-person jury, what would your verdict have been in this case?" It is important to appreciate that all of these verdicts were unanimous, in that all the jurors officially voted for it. Therefore, each "conforming dissenter" (Authors' term) is someone who voted for a verdict she thought was wrong.</span><br />
<span class="Apple-style-span" style="color: #222222; font-family: Arial, Tahoma, Helvetica, FreeSans, sans-serif; line-height: 18px;"><br />
</span><span class="Apple-style-span" style="color: #222222; font-family: Arial, Tahoma, Helvetica, FreeSans, sans-serif; line-height: 18px;">The numbers were staggering. Clearly Ms. Chiakulas is pretty unique in refusing to cave in to majority pressure. Here is how I summarized the study's findings in that earlier post:</span><br />
<div><blockquote>Remember that estimates of hung jury rates range around 7%. These are the cases with a dissenter who refused to conform. In the <span class="Apple-style-span" style="color: black;"><a href="http://scholarship.law.cornell.edu/lsrp_papers/114">Waters and Hans study</a></span>, 38% of juries contained at least one juror who disagreed with the general outcome of the case but voted for it anyway (conviction or acquittal). This is the most conservative measure of dissent. Juries are often faced with multiple charges against the defendant or a choice among lesser-included-offenses. So, it is possible that a defendant can be convicted, but not of the charge that a juror thought was most appropriate. Taking this into account, 54% of juries contained at least one juror who disagreed with the jury's verdict on at least one charge. That is, more than half of the juries contained at least one juror who voted insincerely. Nearly half of the juries (46%) contained at least one juror who disagreed with the verdict for the most serious charge facing the defendant.</blockquote>So, when deliberations in criminal cases fail to generate unanimous consensus, <i>the last holdout is more than five times more likely to give up and vote with the majority than to hang the jury</i>. Given the sort of behavior Ms. Chiakulas describes, can we really be surprised by this statistic?<br />
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<b><span class="Apple-style-span" style="font-size: large;">The Solution? Unanimity has to go.</span></b><br />
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It is important to realize that the majority jurors in the Blagojevich case weren't "wrong." Neither was Ms. Chiakulas. With so much discretion in the hands of a jury, from interpreting the credibility of witnesses, to balancing the relative importance of competing evidence, to resolving "mens rea" issues, reasonable people can -- and do -- disagree. Even when twelve disparate people do succeed in agreeing about who did what to whom when, there is always the thorny issue of "reasonable doubt", a term without a definition. Each juror is free to impose her own threshold. We know from experimental research that there is huge variation in how certain people need to be in a defendant's guilt to vote for conviction.<br />
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So, the problem is not that the jurors in the Blagojevich trial could not all agree. The problem is that the criminal justice system forces them all to <i>vote the same way</i> to deliver a verdict. The usual rationale for this requirement is that it instills confidence in the correctness of the verdict. But, as the Waters and Hans study clearly shows,<br />
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<b>The "unanimity" of criminal verdicts is an illusion!</b><br />
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Legal scholars are trumpeting something that does not exist. Criminal verdicts are just as likely to be the result of bullying, intimidation, compromise, fear and just plain exhaustion as real unanimous consensus. In difficult cases, where reasonable people can disagree about the correct verdict, real unanimous consensus seems almost completely absent, with verdicts always dependent on some jurors voting against their true beliefs.<br />
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Here is what we do know about a system that requires a unanimous verdict.<br />
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<ol><li>There is a huge premium placed on jury selection, to avoid the possibility that "ouliers" will end up on the jury. This is critical because such outliers are most likely to reach different conclusions than their peers, endangering unanimous consensus. This is really the only argument propping up the morally, ethically and legally bankrupt practice of peremptory challenges.</li>
<li>The extensive use of peremptory challenges, along with judicial sensitivity to jurors who might be "biased," results in juries that fail miserably in any effort to reflect a fair cross-section of the community from which they are drawn. Essentially, anyone with strong views on topics relevant to the case at hand will be dismissed. This has a detrimental impact on the completeness and inclusivity of jury deliberations.</li>
<li>Jurors who reach conclusions that differ from the majority of other jurors come to be seen as obstructionist. Their views are resented because they interfere with the delivery of a verdict. Many jurors who find themselves in the minority choose to remain silent for fear of the reactions their opinions might engender.</li>
<li>Jurors in the majority are placed in the unenviable position of being asked to convert any dissenters by whatever means possible. The judiciary has declared that it does want to know how the jury verdict sausage is made. As such, juries are simply told to do whatever it takes to return a unanimous verdict. Even jurors who don't really want to resort to bullying and cajoling may feel forced to do so in order to satisfy the Court.</li>
<li>Lots and lots of jurors in criminal case in the United States are lying to us. When asked by a judge, "So say you all?," the foreman replies, "So say we all." And it's all a big lie that everyone knows about but no one is willing to expose. Why should we endorse a system that forces jurors to take an oath to vote sincerely and then imposes a voting requirement that begs them to violate that very oath?</li>
<li>England abandoned unanimity for jury trials in 1968. Did you hear about the riots? That's because there weren't any. Oregon and Louisiana have used non-unanimous verdicts in criminal cases for centuries. No riots there either. In Australia, the states that still have unanimity are under pressure from the public to <i>move away</i> from unanimity.</li>
</ol>The solution is to move away from unanimity to a more reasonable voting system for criminal trials. For instance, we could require 8 guilty votes for a conviction. Absent that number, the defendant is acquitted. This would, of course, also eliminate the wasteful spending associated with retrials following hung juries. I do believe that that concern that a majority will simply vote for a conviction and refuse to listen to dissent is a real one. There are two possible solutions to this concern. First, one could impose a minimum deliberation time (which would presumably increase with the seriousness of the offense). Alternatively, one could impose a unanimity requirement for the decision to stop deliberating. So, if the jurors are not unanimous as to the correct verdict, but they are unanimous in thinking that further discussion will not be productive, they can vote to end deliberations and render a verdict.<br />
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</div><div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com1tag:blogger.com,1999:blog-36117923.post-16152539892593908282010-11-15T13:39:00.000-05:002010-11-15T13:39:27.238-05:00Tragedy, Hindsight Bias and the Blame Game<b><u>A Tragic Spray of Bullets</u></b><br />
At a gun show in Westfield, Massachusetts, organized by a former police chief, Chistopher Bizilj (age 8) lost his life. Among the guns that two men brought to the show was a small Uzi submachine gun. They handed the gun to Bizilj, who started to fire the gun, lost control, and accidentally and fatally shot himself.<br />
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Now, the event organizer and two weapons providers are <a href="http://bit.ly/bW7eao">on trial for involuntary manslaughter</a> in the boy's death. Originally scheduled for trial this month, the case has been continued until December.<br />
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<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjP9oQOjsMTGvJIJvlgbS8SoOYm7B4wReeYUjY6zBs10WFU-aUOK5KZmzUd7w9cdG_5WvHhK3tygtXO7Rr7P-Mw18R8l3T4ppqElZvyI9vswss2ucLb6quHwYLywJe0LQp898vX/s1600/uzi.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="239" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjP9oQOjsMTGvJIJvlgbS8SoOYm7B4wReeYUjY6zBs10WFU-aUOK5KZmzUd7w9cdG_5WvHhK3tygtXO7Rr7P-Mw18R8l3T4ppqElZvyI9vswss2ucLb6quHwYLywJe0LQp898vX/s320/uzi.jpg" width="320" /></a></div>The three defendants will certainly attempt to defend their actions as inherently safe and reasonable. Their defense will be that this was a horrible, unforeseeable accident. Such a defense might have difficulty holding sway even among a group of philosophers and legal scholars, sitting around a conference table. The odds are even longer in an emotionally charged courtroom.<br />
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<b><u>No Such Thing as an Accident?</u></b><br />
One major obstacle facing the defense is "hindsight bias," a term that I have discussed multiple times in other Jury Box posts. In short, hindsight bias refers to the tendency of people to perceive a highly unlikely, or freakish, event as having been more likely than it was, just because it happened. For instance, if someone gets struck by lightening in your home town, you might come to believe that this is a much more common occurrence than it actually is.<br />
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<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEicVPQMABnWcABgDF9JxN-hnawh42iDt8vHJ_0FXK6mZg90LxKt063u-lvva16RWNZXl0nFE88SL0SHI2YhCxDRiLDWZsmniYCROtRFALdimqcfb9Jt7Ea7aYN5-o5qUdhYYSBp/s1600/lightning.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="320" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEicVPQMABnWcABgDF9JxN-hnawh42iDt8vHJ_0FXK6mZg90LxKt063u-lvva16RWNZXl0nFE88SL0SHI2YhCxDRiLDWZsmniYCROtRFALdimqcfb9Jt7Ea7aYN5-o5qUdhYYSBp/s320/lightning.jpg" width="229" /></a></div>Hindsight Bias tends to lead jurors down a path of irrational inferences. Because people don't like the idea of life being beyond their own abilities to control it, they tend also to overestimate the likelihood that someone is actually responsible for a freakish occurrence, especially a dangerous one. The crazier and more improbable the circumstances, the more uncomfortable it makes people feel. They feel increasingly compelled to assign blame to someone. This results in a rather perverse relationship between the randomness of an event and the need of people to hold someone responsible for it. (This is actually the nexus of hindsight bias and terror management theory.)<br />
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One of the greatest fears facing any parent is the prospect of losing a child to senseless violence. A juror will internally resist seeing this event as an accident because doing so only highlights the vulnerability of their own children. While the defense might hope for some support among jurors who are gun advocates, such people are likely to try to differentiate themselves from the defendants. "Oh, a responsible gun owner would never handle a weapon that way. I always lock my guns when children are around. I'd never hand a loaded weapon to a small boy. That's just what the left-wing loonies think we do all the time."<br />
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<b><u>From Blame Avoidance to Blame Shifting</u></b><br />
In light of the issues identified above, it will be very difficult for the defendants in this case to convince a jury that the boy's death was simply the result of a tragic accident. The desire to hold someone accountable will just be too strong. The defendants would do well to try to shift the blame elsewhere. This strategy is not without risk and might engender some resentment among jurors. But it also just might work.<br />
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<div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiOSs5HzWssDhPojVB2uW3XFrs-sQtTU-8T6qthaJVLlC3Zya-FBpZF8bRuY2KiblXo0oQYEKx3b_qLZ8zPEVw3dpnfk6FOeS1BHiQFGkN_A71ZNbr9aZBry3K0ZGf05aM0NsWp/s1600/pointing-fingers.jpg" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" height="212" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiOSs5HzWssDhPojVB2uW3XFrs-sQtTU-8T6qthaJVLlC3Zya-FBpZF8bRuY2KiblXo0oQYEKx3b_qLZ8zPEVw3dpnfk6FOeS1BHiQFGkN_A71ZNbr9aZBry3K0ZGf05aM0NsWp/s320/pointing-fingers.jpg" width="320" /></a></div>The major difficulty here might be finding someone else to point the finger at. One obvious possibility is the boy's parents. What were they doing taking an 8-year old to a gun show? Did his father really let him just take the gun? Had they ever taught him about gun safety? The danger of such a strategy, however, is self-evident. Because the parents have just suffered such a terrible loss, the defendants would face major resentment for "blaming the victim."<br />
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Perhaps the event organizer can point to regulations that precluded him from keeping children out of the event. Perhaps the suppliers can point to manufacturer guidelines that identify the gun as suitable for use by youngsters. The gun suppliers have already claimed that Fleury, the event organizer, incorrectly assured them that it was legal in Massachusetts for a minor to fire an Uzi. In addition, the gun club that hosted the event has already settled its criminal charges. This provides an opportunity to assign blame to a party that won't be in the courtroom to defend itself.<br />
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Over all, I believe that the defendants in this case will have a very difficult time overcoming the effects of hindsight bias. I fully expect plea deals to be struck before the jury ever gets charged.<div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com0tag:blogger.com,1999:blog-36117923.post-49246343379094333762010-11-08T10:45:00.000-05:002010-11-08T10:45:14.423-05:00Saving Chuck Turner from Himself: The value of witness prep focus groupsChuck Turner, a longtime Boston City Counsellor, was <a href="http://bit.ly/cnj5nG">convicted last week of taking bribes</a>. He was arrested after the FBI conducted a sting operation, employing one of Turner's associates as an informant. Ronald Wilburn was sent into Turner's office to ask for help obtaining a liquor license. While there, Wilburn slipped Turner $1000 in cash during a handshake, all of which was caught on FBI surveillance video.<br />
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There are a couple of noteworthy features of the trial. First, the video is very grainy. So, while it is clear that something changed hands, and that it was almost certainly money, there is no way to tell how much. Secondly, Mr. Wilburn was overtly hostile to the FBI during his testimony. While he generally corroborated the FBI's account of what went down, he greatly resented having been forced to participate in the sting operation and did not try to hide his contempt for the Feds in court.<br />
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So, after the Prosecution rested, things did not look good for Chuck Turner. There was, however, some hope that some jurors might have been upset with the way in which the FBI agents conducted themselves. While I rather doubt that any of them would have voted to acquit, I could have envisioned them settling on a verdict centered around minor charges.(Obstruction of justice).<br />
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Then Chuck Turner opened his mouth. Despite his attorney begging him not to take the stand, and one supporter literally trying to drag him back to his seat by his suit cuff, Turner insisted on testifying in his own defense. Turner took the stand and proceeded to hem and haw and fail to remember things. He denied small things that had been well-documented and claimed amnesia when convenient. In short, he came across as a smug, contemptuous liar, who believed that he could wiggle out of any situation on the strength of his own charm and guile. Needless to say, the jury didn't buy it.<br />
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Any experienced litigator has had a client who just didn't know when to keep his mouth shut. Either the person has insisted on testifying when he shouldn't have, or he insisted on giving a long, convoluted answer to a straightforward question. So, what can be done about a client who insists on talking himself into an adverse verdict?<br />
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Typically, such a client has a poor sense about how his testimony will be perceived. Either he simply does not appreciate how he comes across in public, or he fails to anticipate how poorly his style will translate into a courtroom setting. Since many such people are in positions of authority, they are not used to taking directions about message from others. So, how do you convince someone like this to do what's in his own best interest?<br />
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This is where videotaped witness preparation can really save the day. Rather than having a hypothetical discussion with your client about what to do on the stand, it is critical to submit the client to a realistic direct and cross examination. Make sure that the attorney you have recruited to act as opposing counsel is very well-versed in your case and really goes after your client. Exploit his weaknesses, trap him in contradictions and let him hang himself.<br />
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Once the session is over, review the videotape with your client. In most cases, the witness will quickly come to appreciate his deficiencies on the stand. Where the person continues to be obtuse (or insists he can fix things with a snap of his fingers), the next step is to assemble a small focus group of jury eligible people from the relevant jurisdiction. Show the practice testimony to these subjects and have a moderator lead a discussion about their reactions.<br />
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If Chuck Turner's defense team had conducted this simple exercise, I am pretty confident that his lawyers would have been able to convince him not to take the stand at his trial. While he might have still been convicted of some crime, he would not have created a permanent record of himself lying under oath in a court of law.<br />
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The lesson: Sometimes it is not enough to tell your client what to expect at trial -- You have to show him.<div class="blogger-post-footer">By posting to The Jury Box Blog, you agree to allow Edward P. Schwartz Consulting to use your material for educational and promotional purposes. Contact us at info@eps-consulting.com with any questions.</div>Edward P. Schwartzhttp://www.blogger.com/profile/07608025606172215048noreply@blogger.com0