Jury Selection in Mattapan Massacre Case

Starting 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.

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.

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).

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.

In early January, I was interviewed by Corine Claxton, the co-host of Mass Law Radio (MassLawRadio.org and @MassLawRadio), which airs weekly on WCUW in Worcester (WCUW.org), 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.

Listen to Part 1 of the interview by going to http://masslawradio.org/mattapan-massacre-murder-1/.

Will Wonders Never Cease?

Jury Consulting in Criminal Cases

Traditionally, only a select few criminal defendants have employed jury consultants. Those who have typically fall into three distinct categories.

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 can pay for it does pay for it.

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).

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.

What about the Little Guy?

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.

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.

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!"

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.

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."

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.

What the Future May Hold

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.

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.

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.

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 Pro Bono Committee's homepage.

Who 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.

Read the Boston Globe story about the sentencing hearing here.

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 here). 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?

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?

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.

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.

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.

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.

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.

The Weaponization of Belief: Tarek Mehanna Guilty on 7 Terrorism Charges

Guilty on All Counts

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).

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.

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.

Retaliatory Prosecution?

Tarek Mehanna's brother, Tamir, was interviewed on WBUR (Boston's NPR affiliate) on the day following the verdict. In that interview, 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.

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.

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.

Credibility can be Key

In many of my prior posts 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.

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.

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).

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.

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.

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.

It's always the cover-up

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.

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.

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?"

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.

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

The Protected Free Speech Defense

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

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

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

Was the Speech Dangerous?

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

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

Should the Defendant Take the Stand?

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

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

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

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

Jurors as Interpreters: When Facts Aren't Facts

The Interpretive Role of the Jury

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

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

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

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

When is Free Speech Too Costly?

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

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

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

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

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

Is there such a thing as Immaterial Support?

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

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

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

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

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

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

The Law/Fact Distinction: A Convenient Legal Fiction

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

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

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

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

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

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

What will the Mehanna jurors do?

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

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

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

Challenging Jury Selection in Tarek Mehanna Trial

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

Tarek Mehanna

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

Judge George O'Toole

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

1. The initial panel of prospective jurors numbered only 60. Given that this could be a two-month trial, this seems to be a really small number. It suggests that the judge is not going to be particularly accommodating with respect to challenges for cause, based either on personal beliefs and experiences, or exposure to pre-trial publicity about the case. 
2. The group voir dire was pretty much by the book. Everyone was asked a series of yes-or-no questions to which they had to respond affirmatively by raising their hands. Much research on this topic suggests that prospective jurors very often "lie through omission" in this setting, especially with respect to sensitive or controversial topics.
3. Judge O'Toole did have the good sense to conduct the ensuing individualized voir dire in his chambers. That is, rather than having a prospective juror come up to side-bar for a whispered conversation, with a courtroom full of spectators, fellow jurors and reporters trying to eavesdrop, O'Toole elected to have these conversations in private. Only the judge, a court reporter, the attorneys and the defendant have been permitted into chambers for this part of the voir dire. This should help people feel slightly more comfortable and hopefully forthcoming, as well.
4. Despite much research that shows that jurors tend to be more open, honest and forthcoming when questioned by attorneys, Judge O'Toole is insisting on conducting the voir dire himself. In addition to the general intimidation factor, this runs the risk of jurors trying to anticipate the "right" answers to his questions, or trying to please him with their responses. 
5. The other major problem with this judge-conducted voir dire is the insistence of judges to ask the "Can you be fair?" question. "Notwithstanding the fact that you have read 30 or 40 stories about the defendant in the Boston Herald over the past two years, Mr. Smith, do you think you can put aside any opinions you've encountered and be fair?" Research on this shows that people who confidently answer "yes" to such a question consistently exhibit more bias against defendants than people who admit that their exposure to pretrial publicity might have compromised their impartiality. Self-reflective jurors just tend to be more conscientious.
6. We have learned a few things about what each side has asked to be included in the voir dire questions. Mehanna’s lawyers asked the judge to question prospective jurors about whether they have any family or close personal friends who were directly affected by Sept. 11 and if they attended any memorial service commemorating Sept. 11. This is a reasonable question, given that it is experiential, rather than opinion-based.
7. The defense also asked for prospective jurors to be questioned about whether evidence that Mehanna greatly admired bin Laden would make it difficult for them to be impartial. This question is poorly worded, in that it asks for a level of self-reflection and self-evaluation unattainable by most people. Responses to such a question just aren't remotely reliable.
8. Mehanna’s lawyers also want the judge to ask jurors whether they could be impartial after hearing evidence that Mehanna, an American-born Muslim, supported the destruction of the World Trade Center. This question suffers from the maladies as the previous one. The defense team is really in a quandary here because they are forced to phrase questions as yes-or-no and the judge will insist on wording about impartiality.
9. Prosecutors, meanwhile, focused their proposed questions on attitudes about how some evidence against Mehanna was collected. They asked the judge to question jurors on whether they believe the use of electronic wiretaps is unfair and would make them unable to be impartial in evaluating the evidence against Mehanna. Again, the form of this question is terrible. It would be much better to just ask each prospective juror to talk a little bit about her views on the weighing of civil liberties against national security. Open-ended questions always work much better.
10. The government also wants the judge to ask if jurors have any “fixed feelings or impressions” about Arabs or Muslims that would make it difficult for them to listen to the evidence with an open mind. My sense is that the only people who will answer in the affirmative here are folks trying to get out of serving.

To sum up then, the decision to hold individual voir dire in chambers should increase the willingness of prospective jurors to be candid and forthcoming. The public may never learn how these interviews have been conducted. I only hope that Judge O'Toole, outside of the media spotlight, will treat this voir dire as an opportunity to have more of a conversation with jurors, rather than peppering them with the traditional barrage of challenging questions.

Attorney John W. Carney, Jr.

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

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

Ferdaus Arrest complicates Mehanna trial

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

Rezwan Ferdaus

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

Tarek Mehanna

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


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


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


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


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

Facing the Fearful Jury: Terror Management Theory in the Courtroom

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

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

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

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

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

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

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

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

The Fifth Amendment vs. The Third Degree

Edward Fleury declines to testify in his own defense

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

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

When should a defendant testify?

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

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

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

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

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

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

The defense rests... completely

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

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

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

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

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

Gun show Uzi trial highlights emotional impact of tragedy

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

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

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

Blame deflection v. blame avoidance

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

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

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

Fleury Defense Team reaches for the brass ring

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

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

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

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

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

The Hung Jury: American Exceptionalism Strikes Again

Hung Juries: Judicial Flukes or Systemic Problem?

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

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

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

An understudied phenomenon

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

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

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

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

Post-verdict Correction for Racial Animus in the Jury Room: Can it be done?

The McCowen Case in Massachusetts

Earlier this month, the Supreme Judicial Court of Massachusetts unanimously rejected the appeal 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.

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.

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 Without Bias: How Attorneys Can Use The Right to Present a Defense to Allow for Jury Impeachment Regarding Juror Racial, Religious, or Other Bias for The Jury Expert, in March of this year.

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.

The Hollow Promise of Post-Verdict Juror Testimony: Circumventing FRE 606(b) won't overcome racial prejudice

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.

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.

The 606(b) Exception Exception - The Massachusetts Rule

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.

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.

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.

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. Commonwealth v. Laguer (1991).

So, Mr. McCowen got his hearing (Commonwealth v. McCowen, 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.

So, you secured a hearing - now what?

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.

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 for the verdict themselves (except in Oregon and Louisiana, where criminal verdicts need not be unanimous).

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?"

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.

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."

Consider the final paragraph in the opinion denying McCowen's motion for a new trial:

"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."

Avoiding racial prejudice in the jury room

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.

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.

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.

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.

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.