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/.

Federal Courts Address Wave of Online Jurors

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 here. 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 why 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.

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 here.

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.

Take a look.

Wednesday, March 18, 2009

Remedy for the Googling juror? Just ask!


Jurors swarm the net

Recent entry for the smallest surprise of the year award: jurors are online.

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.").

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?

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.

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.

Juror Tweeting and Blogging

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.

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.

Online research by serving jurors

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."

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.

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.

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.

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."

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.

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.