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/.

Samsung Hard-pressed to Get Second Bite at Apple

Samsung Digs Up Grounds for Appeal

This past week, it was revealed that Samsung had filed an appeal of the verdicts of of patent infringement in the celebrated case filed by Apple. Given the enormity of the verdict and its potential consequences for Samsung's ability to compete in the mobile phone and tablet market going forward, no-one is surprised that an appeal was filed, and filed quickly. What has surprised some is the grounds for the appeal: namely that at least one juror in the case was guilty of misconduct. Much of the focus has been on the jury foreman, Velvin Hogan, against whom Samsung has lodged two major complaints.

First, Samsung argues that Hogan failed to disclose his part in a lawsuit against his former employer, Seagate Systems (Samsung is the single largest shareholder of Seagate). Hogan's defense to these charges is that he answered every question truthfully on his written questionnaire and during voir dire. The questionnaire only asked about litigation participation in the past 10 years (Seagate case was 10 years ago). During voir dire, when asked to volunteer experience with litigation, Hogan raised his had in the affirmative. Samsung's lawyers then questioned him about the first lawsuit he mentioned. They neglected to ask him whether there were any additional cases to discuss and moved on to the next juror. Samsung's position seems to be that Mr. Hogan had an affirmative obligation to alert the court to his Seagate lawsuit, notwithstanding the fact that no-one asked him about it.

The second complaint against Mr. Hogan, and potentially a few of his fellow jurors, is more interesting from a doctrinal pespective. Samsun argues that Mr. Hogan acted as an unsworn expert witness, by bringing to bear during deliberations his own knowledge of computer technology and patent law.

Does "Impartial" Mean "Stupid"?

At the risk of honking my own horn, allow me to quote an email I sent to my TrialGraphix colleagues on August 27, immediately after the first interview with Mr. Hogan was published:

It is worth checking out this brief article about the engineering and legal expertise of jurors on the Apple-Samsung jury. As a general rule, jurors are not permitted to act as "unsworn witnesses" bringing to bear personal experience and expertise during deliberations. The line defining what it permissible is, of course, quite fuzzy. But there is quite a bit of appellate law on this matter and verdicts have certainly been reversed for less than appears to have taken place in this instance. I am considering writing a blog post on this topic, with an eye towards having something topical that could be distributed to potential clients.

Well, OK, I admit my horn is a bit tarnished, given that I didn't get around to writing that blog post until now. But I'll give myself a wee pat on the back for seeing this coming.
The appellate law on this topic is not really in Samsung's corner. Let's consider a few things working against the appellant here.

First, almost every opinion regarding prior  juror knowledge affecting deliberations begins with some language about how jurors "are not required to leave common sense at the courtroom door, nor are they expected to lay aside matters of common knowledge or their own observations and experience of the affairs of life, but, on the contrary, to apply them to the facts at hand, to the end that their action may be intelligent and their conclusions correct." (State v. Jennings, supra, 125 Conn.App. at 811). As such, the fact that some of the jurors, residing in Silicon Valley, knew something about technology and patent law does not preclude them from rendering an impartial verdict.

To hold otherwise would require absolute ignorance among jurors. Henny Youngman's old joke about "12 people too stupid to get out of jury duty" would be painfully true and officially endorsed by the judiciary. Judges have not been willing to go quite this far. It has been a difficult tight rope act to preserve the illusion of an impartial jury as one comprised of "impartial jurors."

Samsung Needs to Look in the Mirror (or Facetime with itself)

Second, the attorneys in this case were given the opportunity to both submit and evaluate a supplemental juror questionnaire (SJQ) and partake in attorney-conducted voir dire. It appears that these methods did elicit quite a bit of information about all of the prospective jurors. That said, the jury was ultimately chosen in one day, with each side only having 20 minutes to conduct voir dire after the judge had concluded her questioning.

Samsung appears to have dropped the ball when questioning Mr. Hogan. To be entitled to relief, they would have to argue that, but for the time restrictions on voir dire imposed by the court, their lawyers would have uncovered Mr. Hogan's dark (and prejudicial) past. In addition, I imagine Samsung would have to show that the time restriction was imposed over its objections.

As one of my colleagues replied to that initial email, "I think Samsung should sue its jury consultant."

Has Samsung Finally Invented Something New?  

Third, almost all of the appellate decisions reversing a verdict on the grounds that a juror acted as an unsworn witness involve criminal cases. While the stakes were certainly very high in this case ($1 billion plus effects on future competition), the courts typically treat a criminal matter as qualitatively different, in that a person's liberty is in jeopardy. The seriousness of a conviction, embodied in the elevated burden of proof, carries over to "miscarriage of justice" analysis that follows a conviction. There are scant appellate opinions in civil cases in support of Samsung's position. In fact, acursory search hasn't turned up any. Certainly, all of the cases I assign in my law school seminar, "Trial by Jury," on this topic involve criminal verdicts.  

This is not to say that the lessons from the criminal arena cannot be applied to a civil case. Only that a judge who wants to distinguish this case from others where relief was granted will have an easier time doing so, due to the derth of applicable civil cases.  

It's not like the jurors were drunk or high  

Fourth, the issue of jurors serving as unsworn expert witnesses straddles the border between "extrinsic influences" on jurors and "internal thoughts processes" of jurors. To the extent that a court views this as a question of internal jury decision-making and deliberations, FRE 606(b) (and the state equivilants) preclude asking jurors to testify on the question. It seems impossible for Samsung to make its case that some jurors improperly influenced the verdict without digging into the deliberations themselves, a topic that is verbotten under 606(b). The court would have to determine that this juror expertise is an "extrinsic influence" to open up Pandora's box. Clearly, appellants have cleared this hurdle in a few criminal cases; it remains to be seen whether Samsung can do so in a civil matter.  

It should be noted that the courts have found creative ways to construe things as instrinsic (cocaine use, sleeping, drunkeness, mental retardation) in order to avoid authorizing hearings about jury deliberations to impune verdicts. A judge who wants to dodge this issue can certainly find precedent for not interpreting what happened in the Apple-Samsung jury as an "extrinsic influence."  

Verdict 2.0?  

From a doctrinal perspective, I think that Samsung is on shaky ground and its appeal is a long-shot. That said, this area of law is sufficiently squishy that a creative judge could probably find a way to grant Samsung's appeal if she wanted to. But, in the U.S., what judge will really want to? Apple is the darling of U.S. industry. Without Apple, Google (and arguably Microsoft), it feels as if the United States has ceded technological production (if not innovation) to other countries. While a judge would be unlikely to admit that she wants Apple to win this one, any social-psychologist will tell you that judges aren't immune to implicit bias any more than the rest of us.  

The breadth of the verdict does seem to be a bit extreme. Apple was granted ownership over every single aspect of its product, including the "rounded rectangle" shape. I would not be surprised to see some appellate court limit the scope of the verdict and reduce the damage award dramatically. If this happens, however, it won't be because someone on the jury claimed to know something about patent law.

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.

Exciting News!

Dear Followers of the The Jury Box,

It is with great excitement and anticipation that I write today to tell you all that I have recently accepted a position with TrialGraphix, the nation's premier full-service litigation consulting firm. The company website can be found at trialgraphix.com.

TrialGraphix, as its name would imply, is known for unparalleled design and execution of courtroom graphics and animation. Many of you know my views on the importance of visual learning among jurors, so I am thrilled to be associated with a firm at the cutting edge of that field. Now, I can not only make recommendations to my clients about demonstratives, but I can offer those clients the talent and resources at TrialGraphix to make those demonstratives come to life.

TrialGraphix is also at the forefront of trial technology, providing the expertise and technical solutions for any litigator's courtroom needs.

Of particular interest to me -- and you, too, I hope -- is TrialGraphix's long track record as one of the country's most respected jury consulting firms. One reason I agreed to join TrialGraphix is the tremendous respect I have for the jury consultants who are already there. I can't wait to work with them and to introduce them all to you.

For those of you who have worked with me in the past, rest assured that I remain committed to serving the needs of my existing clients. I will be running the jury consulting practice in the New York City office, which is a big change for me, but I will be in Boston often. This position provides me with the best of both worlds: the opportunity to continue to serve my New England clients and the potential to help future clients all over the country.

Since I have subscribers to the Jury Box from all over the country (and even other parts of the world), I want you to know that there is probably a TrialGraphix office near you. The company has offices is San Francisco, Los Angeles, Chicago, Houston, Minneapolis, Miami, Washington and New York. By all means, feel free to contact me directly with any jury issues that come up, but know that we have experience working in every state.

I plan to continue to publish the Jury Box Blog in much the way I have always done so. I apologize for the recent dearth of posts, but I have been quite busy preparing for my new job. I expect that the logo will change to reflect my association with TrialGraphix, but otherwise it will remain pretty much as is. I hope to get some of my new colleagues to contribute guest posts for time to time, especially in the courtroom graphics and trial technology fields.

Thank you all for your continued support of the Jury Box Blog and, by all means, look me up the next time you are in The Big Apple!

-Edward

What's brewing with Tea Party Jurors?

But What About my Needs?

Back in the fall, I was running focus group research in an undisclosed location, in preparation for an undisclosed case, scheduled for an undisclosed trial date. (See how I did that? I just made my completely mundane case seem much more interesting by refusing to tell you anything about it.) Truth be told, the case details are irrelevant for the purposes of this post, except for the fact that it involves a consumer protection dispute.

I always have my focus group participants complete an extensive written questionnaire before the study begins. Think of the supplemental juror questionnaire (SJQ) you'd use if you were arguing your case before a really enlightened, curious and slightly whimsical judge. It's kind of like that. The general information section contains pretty standard stuff about occupation and home ownership, mixed in with the usual pot porri of inquiries about tattoos and home schooling.

As I was finishing up the questions for this section, I noticed I had some white space before the next section on "Experience with the Legal System," so I decided to add another question. "What do you think of the Tea Party Movement?" Mostly, I was curious about what people would be willing to write down about something that had engendered so much anger, confusion, frustration and passion in the general public.

I consider myself a pretty astute student of politics. I did teach in the Government Department at Harvard for ten years. I watch the Daily Show every night. I have RealPolitics.com bookmarked on my browser. But I have to admit that the Tea Party Movement has me stumped. It is easy to be really cynical about this group, blanketing them with a categorical label of "Angry Whackos." Such a characterization, however, would be dismissive of the very real appeal that the movement has for a lot of people. There has to be a "there" there; or, at least something that actually unites the people who identify themselves as Tea Party supporters.

From a professional perspective, it is even more important for us to get a handle on what is driving the decision-making of Tea Party sympathizers. Tea Partiers are active in politics. They register to vote and go to rallies, so we should expect them to show up for jury duty when summoned.

This begs the question: What will Tea Partiers do in the jury box?

Hell hath no fury like a Tea Partier Scorned

On the surface, a typical tea party juror looks pretty good for the defense. They tend to believe in personal responsibility. They are more likely than your average respondent to think that there is a torts crisis and that frivolous law suits pose a real problem. Tea Partiers object to many entitlement programs and believe that too many Americans expect a free hand-out at every turn.

At our study in October, we had one such participant. Let's call her Sally (not her real name). In response to the Tea Party question, Sally had written, "Actually, I think they're great!" During an early part of the study, when I had the moderator pose hypothetical scenarios to the group, to see how they perceived situations similar to what we faced at trial, Sally rolled her eyes at one point, saying, "Oh, she'll probably pick up the phone and call her lawyer. That's what's wrong with America. Everyone immediately thinks about suing somebody when anything goes wrong." At this point, Sally sure seemed like a good defense juror.

The problem with the Tea Party paradigm, however, is its profound inconsistency and hypocrisy. What seems to unite Tea Party supporters is a profound lack of empathy for people unlike themselves, along with an almost hysterical need to have their own grievances heard and attended to. As such, when contemplating a Tea Party supporter as a juror, it is absolutely critical to gather a great deal of information about that person's life to make sure that your case doesn't push any of their hot buttons.

Turns out Sally had a hot button. WIthout giving away too much about the case, let's say that it involves a relatively minor nuisance which the federal government had seen fit to penalize with extremely high mandatory civil penalties. As such, a thriving cottage industry has popped up of attorneys whose entire practice is to cobble together plaintiffs and sue under this one statute. After spending hours bemoaning the litigiousness of American society, Sally and her fellow respondents were finally introduced to the facts of our little case.

Well, wouldn't you know it, Sally had actually experienced the same problem as the plaintiffs in our case. Ironically, Sally had hired one of the companies who had inconvenienced her in violation of the statute and had been quite pleased with their work. Despite her prior rantings against suing in similar circumstances, and chiding from fellow respondents about the inconsistency of her position, Sally wanted to hang the defendants by their thumbs and drive them out of business. Sally constructed an entire fantasy about exactly how the defendant company operated, in order to justify her position that they, unlike the companies in the hypotheticals she had just finished discussing, deserved the most punitive treatment available.

Normally, this kind of argument would hold little sway with other jurors. The problem we faced in this case is that no-one else on the panel had any personal experience with the circumstances surrounding the case. So, while most subjects could easily dismiss Sally's arguments as convoluted, several were willing to defer to her on the grounds that she had relevant experience they did not. That is, Sally was a self-professed expert and that was enough for them.

Tea for Two

I found my experience with Sally profoundly troubling. Many commentators have discussed the erosion of empathy, civil discourse and reason-based argument in America over the past fifteen years. Clearly, this transition was manifesting itself in jury rooms, as well as campaign trails and voting booths. So, my Tea Party question became standard for all of my jury research. Just a simple question, "What do you think of the Tea Party movement?"

Just this past month, I ran a multi-panel focus group study for a case involving one of Boston's many universities. Again, without going into details about the case, I will divulge that the main witness for the defense was a very smart professor at the university. What makes this case potentially problematic, from a defense perspective, is that it is quite complicated and involves inner workings of a university with which most jurors will be quite unfamiliar. As such, the defense team wanted to make sure it could do a good job of getting jurors to actually understand how things work and who has responsibility for what.

We presented our treatment to the respondents and were pleased to see that, for the most part, they "got it." That is, we had done a good job of conveying a lot of esoteric and complicated information in a way that ordinary people could understand. As it turned out, however, we weren't out of the woods. There were two respondents who had decided that the university was not only wrong, but also evil and malicious. One of them wanted the university officials to be criminally prosecuted.

Reviewing their initial questionnaires, I didn't find any real red flags. They both have degrees from local colleges, although not particularly good ones. One is a payroll manager and the other is a "self-employed" ticket broker and "public speaker." The payroll manager, however, answered the Tea Party question, "They have some important ideas." I decided to dig a little deeper.

Both of these respondents listed Fox News as a major source for news coverage. They also both read The Herald, and not The Globe. In addition, our ticket broker is from Revere and the payroll manager is from Winthrop. These are two blue-collar, mostly white, communities north of Boston. They are also the only two towns in Suffolk County that went for Scott Brown in his Senatorial contest with MA Attorney General Martha Coakley. While Ms. Coakley won 70% of the vote in Boston, she won 46% and 44% in Revere and Winthrop, respectively. Confirming Senator Brown's appeal among blue-collar white voters, the only parts of Boston he won were South Boston, West Roxbury and the majority white neighborhoods of Dorchester.

One mainstay of the Tea Party movement and the Fox News propaganda is a rabid anti-intellectualism. They regularly vilify East Coast Liberal Elites and preach adherence to faith over science. Followers of this dogma are trained to be inherently suspicious of major research universities. Such universities are the homes of those perpetrating the global warming hoax and foisting evolution on unsuspecting school children who should be taught only creationism. In short, a professor at a major Boston university is immediately and automatically suspect, regardless of what he or she has to say.

Always Dig Deeper

In addition to asking about preferred sources for news, I ask respondents to tell me about social media usage. Our ticket broker has a Twitter account. He doesn't tweet much, but he did post extremely religious messages on Christmas. He follows both Scott Brown and Fox News on Twitter. In short, he is a Christian Conservative living within a stone's throw of Boston.

There were fewer overt signs of political preference for our payroll manager. I did, however, pull up her LinkedIn profile. After many years at the same company, she changed jobs last June. She lasted only six months at the new company and only found work at a third firm after a few months without a job. While we will never know exactly what happened that caused her to leave her new job after such a short stint, it is not hard to imagine that she had some sort of negative experience working there. Because Tea Party sympathizers weight so heavily their own experiences and concerns, her extreme negative reaction to our case might have been triggered by her own lingering hostility towards her last employer. They are a big corporation and a university is a big corporation.

Our ticket broker is obviously struggling to make ends meet. He has a college degree and thinks of himself as very intelligent and articulate. He would raise his voice to be heard and was the one participant who regularly cut people off or spoke over them. He had all the characteristics of an inferiority complex and could reliably be counted on to disparage the testimony of some fancy-pants professor.

Handling Tea Partiers During Voir Dire

If you practice in a jurisdiction with real attorney-conducted voir dire and/or regular use of supplemental juror questionnaires, you can probably tease out the tea party supporters. You can ask them questions about their experiences and make sure they have no negative associations with the topic of your case.

Life is much trickier in a jurisdiction with limited voir dire. Standard practice in Massachusetts, for example, is for the judge to ask all the questions, with limited input on question content from the attorneys. The main round of questioning is done as a group in open court, so all of the questions must be phrased to accommodate yes or no answers. The judge decides how deeply to dig into any topics at sidebar for any subsequent individualized voir dire and the lawyers are not permitted to speak directly to any of the prospective jurors.

One byproduct of this arrangement is that judges typically ask extremely direct and pointed questions, but not ones that a student of juror psychology would suggest. A Massachusetts judge would never ask a prospective juror about her views on the Tea Party unless the case were specifically about something a Tea Party leader had done. So, in a world of limited voir dire, it is very difficult to explore these tracers for attitudinal tendencies. And, without attorney-conducted voir dire, it is pretty much impossible to get information about attitudes directly. In short, we're screwed.

In the case involving the local university, we will try to use the demographic information to our advantage. We will keep an eye out for blue collar, white jurors, without major university credentials, from pro-Scott Brown communities. This is, unfortunately, a third-order proxy for what we really want to know about these people, but it is the best we can do in such a low information environment.

My main advice for anyone facing the prospect of Tea Party followers in the jury pool is to be extremely careful to identify them and gather as much information as possible. My experience is that such individuals can be unpredictable and capricious. Equally important, they like to talk and believe that what they have to say is profoundly important. One characteristic that seems to be shared by many Tea Party adherents is sense that their voice is not being heard by those in power. They are loud, persistent and desperate to be heard. As such, you must anticipate that a tea party juror will be an active juror, a persistent juror, and an incalcitrant juror. You had better know in advance exactly what they want and what their hot button issues are. If you don't I recommend that you burn a peremptory strike and move along to the next person in the box.

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.

An Oldie but a Goodie: Tips for Voir Dire

In reviewing the traffic on my website recently, I was struck by how much more often one particular article was accessed than any other. I used to write a column on trial strategy for Lawyers USA (formerly Lawyers Weekly USA), and this particular article on voir dire strategy from 2006 seems to be very popular, even today. So, in the spirit of giving the public what it wants, here is that article in its entirety.

Enjoy!

Indirect Questions Reap Most Information in 

Oral Voir Dire 

By Edward P. Schwartz 

October 9, 2006 

In my last column, I discussed many of the advantages of using a 

supplemental juror questionnaire as part of jury selection – the primary 

advantage being that jurors tend to be more truthful in their responses on a 

written form than they are when questioned orally in open court.  

But the written form – at least in courts that allow traditional voir dire – should 

only be seen as a supplement to oral questioning conducted in both a group and 

an individualized setting.  

Group voir dire 

By necessity, group voir dire questions are typically framed as “yes or no” 

inquiries. Jurors are asked to raise their hands if they answer any question in the 

affirmative. Each party notes who raised a hand in response to each question 

and then follows up with questions either in open court, at sidebar or in the 

judge’s chambers, depending on the court’s prevailing practices. 

My first word of advice is not to expect to learn very much from group voir 

dire. The need to ask “yes or no” questions, coupled with the public setting, 

conspire to limit how much information you can get from potential jurors. The 

studies cited in my last column all reveal that jurors lie during group voir dire – a 

lot. Most of these lies stem from an unwillingness to volunteer information about 

private and/or sensitive subjects. 

My second bit of advice is to treat group voir dire as an entrée into 

individualized voir dire. The more often a juror raises her hand, the more 

individual questions she will have to answer. Since these follow-up questions are 

where the action is, craft your group voir dire questions in a way that prompts as 

many people to respond as possible. Instead of asking whether “you or a loved- 

one has ever been a party in a law suit,” ask whether “you know anyone who has 

participated in a lawsuit.” Many panel members will construe a question as 

narrowly as possible in order to avoid raising their hand and setting themselves 

up for additional questions.   

Ask each juror whether he or she has ever been in a courthouse before. 

Almost everyone has been at some point or another. Whether it concerns traffic 

court, small claims court or family court, you should try to learn something about 

each juror’s experience with the legal system.  

Try to keep your list of group voir dire questions short. The jurors don’t want 

to raise their hands anyway. The longer the process lasts, the less inclined 

anyone will be to volunteer information.  

I recently consulted on a trial for which the group voir dire lasted 1½ hours. 

For the last 10 minutes, not a single juror raised his or her hand. Fortunately, the 

questions from my team had been asked at the beginning. 

Some jurors are forthcoming, while others won’t raise their hands unless they 

absolutely have to. These jurors can slip through voir dire because questions are 

almost always phrased so that it is the jurors who raise their hands who are 

asked additional questions. To avoid this, I recommend that you phrase some of 

your questions so that it is the jurors who don’t raise their hands who are subject 

to individualized voir dire. So instead of asking, “Who has a relative who works in 

the health field?,” ask “Who doesn’t have a relative who works in the health 

field?” Even if the voir dire will be conducted entirely by the judge, try requesting 

that the judge mix it up in this way. 

Finally, it is a complete waste of time to ask jurors directly whether there is 

anything that would prevent them from being impartial in the case. Most people 

who answer affirmatively are just trying to get out of jury duty. The people whose 

biases are really a source of concern are rarely self-aware enough to recognize 

the problem. Finally, such questions are usually so poorly worded, and cluttered 

with negatives and dependant clauses, that jurors can’t decipher them in time to 

volunteer a response. 

Individual voir dire 

A good question in a written juror questionnaire typically does not make a 

good voir dire question. The main reason is that while people hate to write, they 

love to talk. An open-ended question on a written questionnaire is an invitation to 

leave a blank space. As I discuss in my last column, multiple-choice and sliding- 

scale questions are preferable on a written form.  

But in oral voir dire, open-ended questions provide an opportunity for jurors to 

tell you who they really are. The goal is to get potential jurors to want to tell you 

about themselves in their own words. 

Don’t ask leading or challenging questions. If you try to put words in jurors’ 

mouths, they will either repeat them back to you or clam up, depending on 

whether they like what you are saying on their behalf. So, if you ask a juror what 

she thinks about the “torts crisis” in America, she will either tell you that she 

thinks it is a “crisis” or that she doesn’t have much of an opinion about it. Such a 

question will not get her to tell you about her own experience (or those of her 

friends and family) with the civil justice system, which is what you really want to 

learn about.  

Instead, ask the juror about the most interesting court case she has ever 

heard about. What case she chooses, along with her take on the outcome, will be 

much more informative than some canned response about “fairness” or “justice.” 

Prospective jurors will instinctively try to figure out why a lawyer is asking a 

particular question. The more sensitive the topic – and the more the question 

reflects the fundamental controversy of the case – the more likely a juror is to try 

to “game” the process. One way to avoid this is to ask jurors to tell stories about 

themselves, as I mention above. Another is to ask questions about topics that 

proxy well for what you are really interested in.  

For example, I recently worked on a case involving the purchase of a firearm 

by someone who was mentally ill. We wanted to learn whether jurors were 

sensitive to the plight of people facing mental challenges and whether they 

believed society is responsible for keeping such people safe.  

To get at these attitudes, we asked a very open-ended question about each 

juror’s recollection of the Columbine tragedy. If a juror did not offer an opinion on 

her own about who was responsible, we followed up with a question about the 

juror’s initial thoughts about who was to blame.  

Some jurors blamed only the shooters. Others expressed frustration with the 

parents. A few articulated the position that everyone (parents, school, 

government, media, etc.) has a responsibility to look out for the well-being of our 

children. The jurors were generally willing to talk about Columbine because it did 

not have a direct bearing on our case. 

Another ripe area to explore is people’s relations with those close to them. 

People love to talk about their children. Rather than ask prospective jurors about 

religious preferences, ask where their kids go to school. To get a sense of how a 

juror feels about people in different professions, ask what their children want to 

be when they grow up. If one answers, “Joey, my 6-year-old, wants to be a 

policeman,” you can follow up with, “How do you and your wife feel about that?” 

A person whose son is on the debate team or who plays in the orchestra is likely 

to have different attitudes than one whose son plays on the football team and has 

joined ROTC. A person who is self-conscious about their own life can still be 

expansive about her children; use this to your advantage. 

There is another advantage to “asking around the topic.” If the other side has 

not thought through the voir dire process as thoroughly, the jurors’ responses will 

be more useful to you than they will be to your opponents. 

Be Prepared for any jury 

I have devoted the last two columns to jury selection strategies. I don’t want 

you to get the idea, however, that choosing a jury is the only, or even the most 

important, opportunity for you to improve your chances of winning at trial. As I 

always tell my clients, in terms of impact on verdict choice, who the jurors are is 

almost always swamped by what the jurors see. By all means, do all you can to 

identify and strike jurors who really will be unfair to your client; but, make sure to 

concentrate  your energy and resources on presenting your case in its most 

favorable light. 

The Dissenters Dilemma: Holdout jurors face hostility and threats

One holdout's harrowing tale

JoAnn Chiakulas was a juror on the trial of former Illinois Governor Rod Blagojevich, charged with many counts of corruption, stemming, in part, from his alleged attempt to sell President Obama's former Senate seat for cash and political considerations. In the end, the jury hung with respect to 24 of 25 counts, finding him guilty only of lying to federal agents.

Despite an apparent agreement among the jurors to simply return home after the trial, eschewing interviews with the press, Ms. Chiakulas found herself "outed" as the holdout juror almost immediately. Forewarned that her house had been surrounded by press, she sought refuge at her daughters house and tried to ignore the incessant ringing of her cell phone. In an interview with Ira Glass on PRI's This American Life, she discusses at length the reasoning behind her position on Blagojevich's guilt, as well as the environment of hostility to which she was subjected by the other jurors. The interview is fascinating and well worth a listen.

Interpretation, Intensity and Isolation

According to Ms. Chiakulas, she was not the only juror to have doubts about whether the state had made its case against Blagojevich. Since no money or favors ever changed hands, all of the evidence against the Governor was circumstantial and open to interpretation. Among the open questions,

What exactly was he asking for?

Was this kind of posturing and horse-trading common among politicians?

Given how emotional and irrational the Governor seemed to be, was he just "talking trash?" 

Again, according to Ms. Chiakulas, the vast majority of the jury had decided by the end of the trial that Blagojevich was guilty of pretty much everything he had been charged with, making deliberations a mere formality. In addition, the jurors discussed openly the pressure they felt from the public to punish Blagojevich for his transgressions. It was, then, through this "fait accompli" lens that most of the jurors viewed Ms. Chiakulas' reluctance to convict.

While the jurors were apparently cordial enough at the beginning, things turned sour when it became clear that Ms. Chiakulas wasn't going to "come around." Pretty soon, she felt as if she were under siege. Pleasant conversation turned to insults and accusations. Her rationality and emotional soundness were questioned, as were her motives. Some of the jurors sent a note to the judge, asking that she be removed from the jury, on the grounds that she wasn't deliberating in "good faith."

When chiding, challenging and pleading failed to change her mind, certain jurors turned to intimidation in order to change her vote. Ms. Chiakulas tells one rather haunting story of a juror who had been sitting at another part of the table for several days. Finally fed up with Ms. Chiakulas' recalcitrance, this juror moved to directly opposite her and spent hours intently glaring directly at her.

Most holdouts buckle

Regardless of whether you agree with the way in which Ms. Chiakulas interpreted the evidence in this case, you have to applaud her resolve under such withering scrutiny. She was the target of intense hostility and bullying, without any way to escape, and she stuck to her guns. Most of us would not hold up so well.

Don't flatter yourself in thinking that you would hold out under such attacks. The data say otherwise. As I reported in a Jury Box Blog posting last year, Nicole Waters and Valerie Hans, as part of the National Center for State Courts project on hung juries, gave out post-trial surveys to almost 4000 jurors across 4 states and got back completed forms from almost 3500. This covered 367 trials. Among the questions they asked was: "If it were entirely up to you as a one-person jury, what would your verdict have been in this case?" It is important to appreciate that all of these verdicts were unanimous, in that all the jurors officially voted for it. Therefore, each "conforming dissenter" (Authors' term) is someone who voted for a verdict she thought was wrong.

The numbers were staggering. Clearly Ms. Chiakulas is pretty unique in refusing to cave in to majority pressure. Here is how I summarized the study's findings in that earlier post:

Remember that estimates of hung jury rates range around 7%. These are the cases with a dissenter who refused to conform. In the Waters and Hans study, 38% of juries contained at least one juror who disagreed with the general outcome of the case but voted for it anyway (conviction or acquittal). This is the most conservative measure of dissent. Juries are often faced with multiple charges against the defendant or a choice among lesser-included-offenses. So, it is possible that a defendant can be convicted, but not of the charge that a juror thought was most appropriate. Taking this into account, 54% of juries contained at least one juror who disagreed with the jury's verdict on at least one charge. That is, more than half of the juries contained at least one juror who voted insincerely. Nearly half of the juries (46%) contained at least one juror who disagreed with the verdict for the most serious charge facing the defendant.

So, when deliberations in criminal cases fail to generate unanimous consensus, the last holdout is more than five times more likely to give up and vote with the majority than to hang the jury. Given the sort of behavior Ms. Chiakulas describes, can we really be surprised by this statistic?

The Solution? Unanimity has to go.

It is important to realize that the majority jurors in the Blagojevich case weren't "wrong." Neither was Ms. Chiakulas. With so much discretion in the hands of a jury, from interpreting the credibility of witnesses, to balancing the relative importance of competing evidence, to resolving "mens rea" issues, reasonable people can -- and do -- disagree. Even when twelve disparate people do succeed in agreeing about who did what to whom when, there is always the thorny issue of "reasonable doubt", a term without a definition. Each juror is free to impose her own threshold. We know from experimental research that there is huge variation in how certain people need to be in a defendant's guilt to vote for conviction.

So, the problem is not that the jurors in the Blagojevich trial could not all agree. The problem is that the criminal justice system forces them all to vote the same way to deliver a verdict. The usual rationale for this requirement is that it instills confidence in the correctness of the verdict. But, as the Waters and Hans study clearly shows,

The "unanimity" of criminal verdicts is an illusion!

Legal scholars are trumpeting something that does not exist. Criminal verdicts are just as likely to be the result of bullying, intimidation, compromise, fear and just plain exhaustion as real unanimous consensus. In difficult cases, where reasonable people can disagree about the correct verdict, real unanimous consensus seems almost completely absent, with verdicts always dependent on some jurors voting against their true beliefs.

Here is what we do know about a system that requires a unanimous verdict.

1. There is a huge premium placed on jury selection, to avoid the possibility that "ouliers" will end up on the jury. This is critical because such outliers are most likely to reach different conclusions than their peers, endangering unanimous consensus. This is really the only argument propping up the morally, ethically and legally bankrupt practice of peremptory challenges.
2. The extensive use of peremptory challenges, along with judicial sensitivity to jurors who might be "biased," results in juries that fail miserably in any effort to reflect a fair cross-section of the community from which they are drawn. Essentially, anyone with strong views on topics relevant to the case at hand will be dismissed. This has a detrimental impact on the completeness and inclusivity of jury deliberations.
3. Jurors who reach conclusions that differ from the majority of other jurors come to be seen as obstructionist. Their views are resented because they interfere with the delivery of a verdict. Many jurors who find themselves in the minority choose to remain silent for fear of the reactions their opinions might engender.
4. Jurors in the majority are placed in the unenviable position of being asked to convert any dissenters by whatever means possible. The judiciary has declared that it does want to know how the jury verdict sausage is made. As such, juries are simply told to do whatever it takes to return a unanimous verdict. Even jurors who don't really want to resort to bullying and cajoling may feel forced to do so in order to satisfy the Court.
5. Lots and lots of jurors in criminal case in the United States are lying to us. When asked by a judge, "So say you all?," the foreman replies, "So say we all." And it's all a big lie that everyone knows about but no one is willing to expose. Why should we endorse a system that forces jurors to take an oath to vote sincerely and then imposes a voting requirement that begs them to violate that very oath?
6. England abandoned unanimity for jury trials in 1968. Did you hear about the riots? That's because there weren't any. Oregon and Louisiana have used non-unanimous verdicts in criminal cases for centuries. No riots there either. In Australia, the states that still have unanimity are under pressure from the public to move away from unanimity.

The solution is to move away from unanimity to a more reasonable voting system for criminal trials. For instance, we could require 8 guilty votes for a conviction. Absent that number, the defendant is acquitted. This would, of course, also eliminate the wasteful spending associated with retrials following hung juries. I do believe that that concern that a majority will simply vote for a conviction and refuse to listen to dissent is a real one. There are two possible solutions to this concern. First, one could impose a minimum deliberation time (which would presumably increase with the seriousness of the offense). Alternatively, one could impose a unanimity requirement for the decision to stop deliberating. So, if the jurors are not unanimous as to the correct verdict, but they are unanimous in thinking that further discussion will not be productive, they can vote to end deliberations and render a verdict.

Smart, sullen and deadly: Jury must wrest with Asperger's in MA murder case

Another Tragedy Grips a High School


John Odgren was enrolled in a class on forensic science at his high school, in one of Boston's bucolic suburbs. Always awkward with his classmates, John had started wearing a trench coat and fedora to school. Students who tried to befriend him were put off by his obsession with knives and common discussion of violence. During one class session, John outlined his plan for the perfect murder, which involved luring a trusting acquaintance to a remote location and using a knife to kill him. Classmates were freaked out by John's seemingly cold-hearted calculation and devious planning. As it turned out, they had every reason to be.


Not long afterwards, John Odgren followed a shy sophomore, new to the school, into a bathroom and stabbed him to death with a long knife he had brought to school. Odgren told investigators that he had brought the knife in for protection, convinced by the symbolism in a Stephen King novel that something horrible would happen to him that day. Another student, who just happened to be in one of the stalls, heard the victim call out, "Ow! You're hurting me! Why are you doing this?" The student emerged to find John Odgen sitting on the bathroom floor, knees pulled up to his chest, holding the bloody knife.


As horrifying as this scene is, there would seem to be little remarkable about it from a criminal justice perspective. One person committed a completely unprovoked act of violence against another. The outcome would seem to be clear.


The Psychology of Intent


There is, however, one significant wrinkle to this story. John Odgren has been diagnosed with Asperger's Syndrome, which lies along the autism scale. Asperger's sufferers are usually characterized by normal to high intelligence (Odgren allegedly has an IQ of 140), but the inability to experience the empathy necessary to form emotional bonds with others. This disability is often manifested in, among other things, the inability to recognize emotional expressions in others. That is, while you or I can distinguish a smile from a frown (and what each implies), someone with Asperger's Syndrome cannot.


In Massachusetts, the mens rea requirement for first-degree murder is "deliberate and premeditated malice." For second-degree murder, a killer must have experienced "malice aforethought."


Malice aforethought is generally defined as: "the conscious intent to cause death or great bodily harm to another person before a person commits the crime." Note that it must be a conscious intent. So, if a person forms the intent in a hallucinogenic haze, it does not suffice for malice aforethought. 


John Odgren is employing an insanity defense to the murder charge, claiming that his psychological condition (He also has ADHD, a bipolar disorder and possibly OCD) precluded his ability to consciously form the necessary intent to commit murder. Massachusetts has adopted the Model Penal Code definition of "legal insanity." Under this test, "a person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law."


Jury must determine criminal culpability


This murder case then will boil down to a jury's collective decision about whether John Odgren did or did not appreciate the wrongfulness of his actions on the day that he stabbed that fellow student. The trial itself is now complete. The arguments followed fairly predictable lines. The DA emphasized the calculating nature of the crime and its similarities to what John Odgren seems to have been considering for weeks. The defense focused on Odgren's myriad psychological problems, constant harassment at school and increasing obsession with violent books, movies and video games. The defense presented three psychologists who testified that Odgren committed the violent act while essentially in an obsessive trance. They concluded that he was essentially shocked back to reality by observing the horrific consequences of his actions. The DA presented a rebuttal expert who, while not disputing the general diagnoses of Odgren's conditions, concluded he was nonetheless capable of discerning right from wrong.


There are actually two questions to be answered. Even if the jury determines that John Odgren understood the criminality of his actions, the jurors must wrestle with the question of whether he was psychologically capable of resisting his persistent violent urges and compulsions. The final item presented by the DA during closing arguments was an audio recording of Odgren laughing about what investigators found while searching his bedroom. This is intended to show a lack of remorse and an arrogance by Odgren about his ability to get away with the crime. Such callousness can cut both ways, however, as jurors might conclude that anyone who could react that way while in prison for murder must be out of touch with reality.


The need to make sense out of chaos


I believe that the defense strategy in this case was incomplete.


The defense team did a fairly good job of portraying Odgren as a thoroughly disturbed teenager with a  history of mental problems. This is an important linchpin of the case, as it provides an opportunity for those jurors who don't want to hold him responsible to make their arguments. A "not guilty by reason of insanity" vote passes the proverbial sniff test.


Unfortunately, this only provides jurors with half of what they need to achieve emotional satisfaction from a not guilty vote. People need order in their lives. They need to be able to make sense of the world around them. They need to feel some control over their environment. Without this sense of control, life becomes unbearable. This explains, in part, people's visceral fear of the unknown. It also explains attachments to rituals, customs, religions and other systems that preserve the status quo. 


The tragic death at the center of this case -- violent, senseless, seemingly random -- must seriously disturb the jurors' need for order and control. It is a parent's worst nightmare -- the loss of a child in a way that no parent can anticipate. The natural response of the jurors in this case will be to try to impose order on the situation. The idea that this was a freakish, unanticipated, random tragedy, for which no-one is really responsible, will be a completely unbearable option for the jurors. It just won't do.


So, the defense has provided the jurors with reasons not to blame John Odgren for this tragedy. What the defense has failed to do is provide them with someone else to blame. Trust me on this one: the jurors will need to blame someone. The only question is whether they will blame John Odgren or someone else.


had I been advising the defense team in this case, I would have recommended telling a somewhat different story. This is the narrative I would have crafted:


There are two victims in this crime. The dead boy and John Odgren were both failed by a system that too often shuffles emotionally ill children from program to program, treating them like human guinea pigs, testing out their most recent theories of mainstreaming or immersive learning. The so-called experts in this case didn't protect John Odgren from the bullies. They didn't protect John Odgren from the demons in his head. They didn't protect him from himself. And because of their failures, one boy is dead and another might as well be, ruined for life by a disaster that didn't have to happen. The signs were there for years. The thoughts of suicide. The absence of emotional control. The inability to feel any emotions but fear and anger and hate. The psychologists and teachers and school administrators weren't in that bathroom on that terrible, fateful day, but they might as well have been, handing John Odgren his knife.


Would this argument have worked in this case? We will never know (although I suppose we could run some focus group research in other parts of the country). What I do know is that these jurors need a way to direct their grief and their fear and their anger, someone to hold responsible. They need to be able to wrap their brains around the case and conclude that they have identified the villain. The defense had a responsibility to their client to give the jury someone else to blame.


Jurors will speculate about lots of things. Nothing precludes them from assigning blame all over the map in this case, regardless of whether the defense has pointed its finger at any particular candidates. Perhaps the jurors will find their own way to sparing John Odgren in this case. If they do -- if they find him not guilty -- I fully expect to discover that they did so by assigning blame elsewhere. 


As the verdict comes in, I will be sure to report it here on my blog. I'll offer some post-trial comments and I'll keep you abreast of any juror interviews that appear in the press.