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.
Recent Jury Box Blog Entries
Showing posts with label massachusetts. Show all posts
Showing posts with label massachusetts. Show all posts
Wednesday, August 29, 2012
Monday, October 31, 2011
Jurors as Interpreters: When Facts Aren't Facts
The Interpretive Role of the Jury
The Tarek Mehanna Terrorism trial is compelling drama, revealing about our homeland security efforts, and instructive about America's uneasy relationship with Islam. It is also a case that implicates some of the more fascinating and troubling aspects of the American Jury System.
In our USC Interdisciplinary Law Review article, "And So Say Some of Us...: What to do When Jurors Disagree," we begin with the premise that, in a large number of criminal cases that actually go to trial, material questions are put to jurors about which reasonable people could disagree. That is, the failure to reach unanimous consensus does not represent a failure of comprehension or duty on the part of jurors, but rather follows naturally from the fact that jurors are often asked to resolve difficult interpretive questions, to which there are no right answers.
The most obvious and ubiquitous of these questions is whether the state has proved its case beyond a reasonable doubt. Because there exists no objective definition of reasonable doubt, and the courts have steadfastly refused to provide one, each juror is free to decide for herself how much doubt is reasonable. In addition, even for those jurors who share interpretations of this standard, their natural inclinations to weigh evidence differently, and view witnesses as more or less credible, can result in differing conclusions about whether the state's burden of proof has been met.
This is, however, only one example of the kind of interpretive question jurors are asked to resolve as part of "finding the facts." Mens Rea requirements provide another obvious example, as jurors are asked to decide, as ostensibly a factual matter, whether the defendant possessed a certain state of mind at the time of the commission of an unlawful act. Was there "malice aforethought"? Was the assailant "reasonably" afraid for his own life? Was he "under the substantial influence or control" of another person? Were the consequences of his actions "reasonably foreseeable" by the defendant? These are all interpretive questions. Any two people who hear testimony in the same case could reasonably disagree about the "right" answers to such questions.
When is Free Speech Too Costly?
There are two major interpretive questions facing jurors in the Tarek Mehanna trial. The first one is whether the kind of material being posted on Mehanna's website, and being espoused by the defendant in direct conversations with others, is protected by the First Amendment's free speech provision. On the one hand, it is clearly political speech, which entitles it to heightened consideration for protection. On the other hand, we all have heard that the First Amendment does not provide the right to cry "Fire!" in a crowded movie house. That is, one is not Constitutionally permitted to use speech to endanger the public safety. The question in this case might be summed up succinctly by asking whether it is Constitutionally permissible to cry "Jihad" in a crowded mosque.
The defense team in the Mehanna case has requested that the jury be instructed about First Amendment free speech rights in advance of trial testimony. Their proposed instruction includes language about this fine line between political dissent and a call to arms:
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,
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.
The Tarek Mehanna Terrorism trial is compelling drama, revealing about our homeland security efforts, and instructive about America's uneasy relationship with Islam. It is also a case that implicates some of the more fascinating and troubling aspects of the American Jury System.
In our USC Interdisciplinary Law Review article, "And So Say Some of Us...: What to do When Jurors Disagree," we begin with the premise that, in a large number of criminal cases that actually go to trial, material questions are put to jurors about which reasonable people could disagree. That is, the failure to reach unanimous consensus does not represent a failure of comprehension or duty on the part of jurors, but rather follows naturally from the fact that jurors are often asked to resolve difficult interpretive questions, to which there are no right answers.
The most obvious and ubiquitous of these questions is whether the state has proved its case beyond a reasonable doubt. Because there exists no objective definition of reasonable doubt, and the courts have steadfastly refused to provide one, each juror is free to decide for herself how much doubt is reasonable. In addition, even for those jurors who share interpretations of this standard, their natural inclinations to weigh evidence differently, and view witnesses as more or less credible, can result in differing conclusions about whether the state's burden of proof has been met.
This is, however, only one example of the kind of interpretive question jurors are asked to resolve as part of "finding the facts." Mens Rea requirements provide another obvious example, as jurors are asked to decide, as ostensibly a factual matter, whether the defendant possessed a certain state of mind at the time of the commission of an unlawful act. Was there "malice aforethought"? Was the assailant "reasonably" afraid for his own life? Was he "under the substantial influence or control" of another person? Were the consequences of his actions "reasonably foreseeable" by the defendant? These are all interpretive questions. Any two people who hear testimony in the same case could reasonably disagree about the "right" answers to such questions.
When is Free Speech Too Costly?
There are two major interpretive questions facing jurors in the Tarek Mehanna trial. The first one is whether the kind of material being posted on Mehanna's website, and being espoused by the defendant in direct conversations with others, is protected by the First Amendment's free speech provision. On the one hand, it is clearly political speech, which entitles it to heightened consideration for protection. On the other hand, we all have heard that the First Amendment does not provide the right to cry "Fire!" in a crowded movie house. That is, one is not Constitutionally permitted to use speech to endanger the public safety. The question in this case might be summed up succinctly by asking whether it is Constitutionally permissible to cry "Jihad" in a crowded mosque.
The defense team in the Mehanna case has requested that the jury be instructed about First Amendment free speech rights in advance of trial testimony. Their proposed instruction includes language about this fine line between political dissent and a call to arms:
"[T]he right to free speech includes the right to advocate force or violence, unless the speech is directed to inciting or producing imminent lawless action, and is likely to incite or produce such action."
To the extent that the jury is willing to see this case as a referendum on free speech (Let's not forget that Mehanna is also accused of plotting a terrorist attack on a U.S. shopping mall and seeking jihadist training in Yemen), the jurors will have to wrestle with several concepts without obvious objective meanings. What does it mean to "direct" someone to violence? Does it have to be targeted at a specific person or group of persons? Does the "director" have to advocate a particular form of violence, or is general approbation of violence sufficient? What constitutes "imminent" lawless action? Within a week? A month? A year? Does it matter if the perpetrator knows whether his words will actually convince anyone to do anything?
Finally, there is the very open-ended question of how "likely" his words are to incite actual action. Each juror would seem free to decide for herself how effective Mehanna's words would have to have been in order to nullify his First Amendment protection. If there were a 5% chance that someone would engage in criminal behavior as a result of Mehanna's exhorting, has he crossed the line? A 1% chance? A 25% chance? How likely is "likely"? Is it a sliding scale, depending on how devastating we fear the "incited action" might be?
Is there such a thing as Immaterial Support?
The second major interpretive question facing the jury in the Tarek Mehanna trial is whether speech can constitute "material support"? Everyone agrees that arming a terrorist organization, providing manpower for its efforts, or giving it money all count as providing that organization with material support.
The prosecution in this case contends, however, that Mehanna provided material support to the recruiting and propaganda efforts of Al Qaeda, simply by translating documents into English and posting them on his website.
In the jury instruction on material support, requested by the defense, material support can be in the form of "... service, including ... expert advice or assistance..." According to the requested instruction,
"To constitute a crime, the material support must be provided at the direction of the terrorist group, or in coordination with the terrorist group, or as a service provided directly to the terrorist group at its request."
I would imagine that the prosecution would vigorously dispute this interpretation of the statute. I do not know how Judge O'Toole has ruled on this question.
Even should this wording be used, there remains an open question of whether Mehanna's efforts were pursued "in coordination with" Al Qaeda. While it is not clear that Mehanna had direct contact with Al Qaeda members, he does seem to have had a great deal of contact with people who were themselves connected to Al Qaeda. So, how orchestrated must Mehanna's efforts have been to be considered "in coordination with" Al Qaeda?
Consider the question of approval. Suppose the prosecution could show that approval for Mehanna's efforts were posted on official Al Qaeda websites. Once Mehanna knows that Al Qaeda is aware of his actions, does he consider them coordinated?
The Law/Fact Distinction: A Convenient Legal Fiction
I have identified above two clearly interpretive questions that the jury in the Mehanna case must address as it considers its verdicts. While the questions in this case are particularly "juicy", such interpretive issues permeate all the jurors do. While it is convenient to characterize the jury as the "arbiters of the facts" and the judge as the "arbiter of the law," the distinction really does not exist. Judges make factual determinations as "rulings of law" all the time. Similarly, jurors are constantly asked to give meaning to legal terms that are ambiguous, at best.
This is not a bad thing. It provided the avenue through which a jury can act as the "conscience of the community." The jurors interpret the legal language through the lenses of the times and circumstances in which they are living.
Such a realistic understanding of what jurors do should also inform our appreciation for what jury consultants do. Some would argue (never anyone who has worked with one of us, of course) that we try to "twist the minds" of jurors. We "pervert the facts" and "manipulate the process." This is utter nonsense.
We are not lawyers. As such, we need not give even lip service to the artificial law/fact distinction. As students of human behavior, we have always understood that jurors are engaged in a difficult, sometimes subtle, and poorly guided interpretive process. With a wide spectrum of legitimate interpretations from which to choose, a juror is constantly looking for clues, for guidance, for help in understanding how to best do her job. Sometimes, her first question is simply, "How do I begin?"
We trial consultants work for clients. We try to help our clients win their cases. So, none of us would argue that we don't have an interest in the outcome of a case. I can't speak for other members of the profession, but, I can confidently say that I have never worked on a case where I thought my client shouldn't win. This is because every case is a close call. Every case relies on jurors' interpretation of testimony and evidence and the meaning of the laws they are asked to apply. In every single case I have worked on, there was a very plausible interpretation of these factors that favored my client. And, of course, in very many of them, there was a plausible set of interpretations that favored the other side.
That is why we were in court, in the first place.
What will the Mehanna jurors do?
I know how I would probably resolve the interpretive issues in the Mehanna case, although I allow for the possibility that I might feel differently were I on the jury, seeing only what the jury sees. For reasons I have enumerated before, many having to do with Terror Management Theory, I also have expectations about what the final verdict will be in this case. That said, I don't know with any certainty how the individual jurors will handle the specific interpretive questions I identify here. There are no right answers, only opinions. And juror opinions never cease to surprise me.
It is very unfortunate that parties are not permitted to interview jurors in Massachusetts after they have rendered verdicts. I think it would be fascinating to learn how these jurors tackle their interpretive dilemmas. Which words will they key in on? Which definitions will prove compelling? Will they reach the same verdict for different reasons? Will the task simply prove too big for some of them?
I only hope that Judge O'Toole will treat their task with great respect. I hope that when they seek guidance, he does not simply resort to rereading the jury instructions to them. I hope that, maybe just for once, the law/fact distinction can be set aside in the interest of justice.
Wednesday, October 05, 2011
Ferdaus Arrest complicates Mehanna trial
When did Massachusetts move from the Northeast to the Middle East?
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.
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.
 |
| 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 |
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.
Wednesday, April 28, 2010
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.
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.
Monday, August 03, 2009
Baby Steps along the Freedom Trail
As I have mentioned in previous posts, Massachusetts is not exactly on the cutting edge when it comes to enlightened procedural rules for jury trials. The default rules call for judge-conducted group voir dire in open court. This is not a recipe for a lot of information revelation by jurors. When Diane Levesque and I conducted a workshop for Massachusetts Bar Advocates this Spring on jury selection techniques, there were lots of old-timer naysayers in the audience who were convinced that no judge would ever let them try any of the things we were advocating. It should be noted, however, that several of the Commonwealth's more noted judges were expressing a willingness to try attorney-conducted voir dire, if only someone would request it. It was clear that we were stuck in a bad equilibrium.
Maryellen Cuthbert, a board member of Middlesex Defense Attorneys, Inc., is the person who invited Diane and myself to conduct our workshop back in April. In light of the reaction we received to that program, we decided that someone needed to lead the way, showing that modern jury selection techniques could be effectively applied in Massachusetts. So, Maryellen brought me on board for a tricky statutory rape case she was defending. The case involved an alleged sexual incident between a 19 year-old recent high school graduate and a 15 year-old high school Sophomore. Due to inconsistencies in the complaining witness's story, as well as the absence of any physical evidence, the Commonwealth dropped any charges involving consent and tried only the statutory count.
I have been helping Maryellen develop presentation strategies for opening and closing statements, as well as strategies for cross-examining an alleged victim in a delicate matter -- and one in which the outcome rests entirely on the credibility of her testimony. Much of my time and input has been dedicated to jury selection.
The first order of business was to get the judge in the case to adopt procedures that had some hope of eliciting some relevant information about jurors' experiences and attitudes. In this case, we had a bit of a head start because both the nature of the charge and the fact that the defendant and complaining witness were of different races triggered some individualized voir dire. It was still up to the judge, however, to decide which questions would be asked, who would ask them, and exactly which procedures would be used. We employed a multi-pronged attack with respect to motions:
1) We submitted a request for attorney-conducted voir dire, to which we attached citations to several studies that showed empirically (a) that jurors were more forthcoming when attorneys asked questions than when judges did, and (b) that jurors often revealed pertinent information during individualized voir dire that they declined to reveal during group voir dire.
2) We submitted a list of questions to be asked by the judge during both group and individual voir dire, should our request for attorney-conducted voir dire be denied. The individual voir dire questions were generally worded in an open-ended fashion, so as to elicit detailed responses, rather than just "yeses" and "nos." Here too, we submitted a list of studies showing the superiority of open-ended questions for eliciting relevant information.
3) Given the infrequency with which jury consultants are used in Massachusetts, especially for criminal trials, I suggested to Maryellen that she inform the judge in advance that I would be sitting at counsel table for jury selection. In addition, Maryellen impressed on the judge how important it would be for me to attend sidebar sessions during voir dire, so that I would be able to evaluate the words and demeanors of prospective jurors. The judge didn't seem to know what to do with this idea, so she took it under advisement and invited both sides to submit additional material regarding such a procedure. This is the point at which the ASTC membership really came through for me. The American Society of Trial Consultants maintains a very active listserve for its members. On a Friday afternoon, I sent out a plaintiff call for lists of cases in which consultants had been permitted both at counsel table and sidebar during jury selection. Several ASTC members combed through their files over the weekend and sent me lists of cases. I put them in a nice table and Maryellen sent them to the judge on Monday morning.
4) Maryellen requested a struck method for exercising peremptory challenges. This particular charge allows each side 12 peremptory challenges in Massachusetts. Given that we were also seating alternates, each side actually had 14 strikes. We would certainly be able to emply them more efficiently if we could wait until the entire panel had been voir dired.
In the end, here's what we got:
First, the good news. I was permitted to sit at counsel table during all of jury selection. In order to work around the sidebar issue, the judge sent the entire jury panel away immediately after group voir dire. She then brought them in one-by-one for individual voir dire. The juror would sit in the witness box and the judge would explain that we were using this procedure to protect the privacy of the juror. This set of procedures was excellent from our prospective. Jurors were generally forthcoming and we had time to consult between jurors as one would leave and the next one would come in.
Now, the less good news. The judge insisted on asking all of the questions. While she did ask a few questions based on items we had submitted, she tended to revert to non-productive question structure. That is, she asked yes-or-no questions that required jurors to evaluate their own attitudes of prejudices. For instance, she asked each juror, "Do you believe that the presumption of innocence should apply equally to all races?" Obviously, no-one is going to answer "no" to such a question. There were several prospective jurors whose answers ended up being nothing more than a predictable series of "yeses" and "nos". To her credit, the judge did seem to pick up on this problem fairly early on. Unfortunately, her typical method of getting jurors to talk about themselves was to ask them about their jobs. Not generally relevant to our case. When a juror did reveal information that was directly on point, such as having a sibling who had been the victim of sexual abuse, the judge was fairly adept at getting the juror to discuss his or her feelings about the experience. The judge also required the attorneys to exercise their peremptory challenges on a juror-by-juror basis. This only hamstrung us a little. I think that we only let on one juror that we might have challenged using a struck system.
I think that the judge was actually fairly pleased with how jury selection proceeded. It went more quickly than she had feared. She also noted that several jurors who had failed to raise a hand in response to a particular group voir dire question ultimately revealed during individual voir dire that he had been holding something back. As a result, on the second day of jury selection, she asked each prospective juror whether, in thinking about the questions over night, he or she might want to change an answer. Many of them did volunteer information at this time, typically about experience with violent crime or sexual abuse. Since pretty much every person who had some experience with such abuse was excused for cause, the increased candor associated with individual voir dire definitely worked in our favor.
This case is about to go to closing arguments. So, I don't know whether we will win. I am confident, however, that we have selected a jury whose members will actually have a meaningful conversation about the relevant issues in the case. I don't think we can ask more much more than that.
I did also score a big victory on another front. While I took on this case as part of the ASTC Pro Bono Initiative, I asked Maryellen to petition the court for state funds for my services (at a substantially reduced rate). The judge actually approved the request. So, to the best of my knowledge, I am the very first trial consultant to receive state funds in Massachusetts. So, if you have a tough case for an indigent client, and you need the help of someone like me, the precedent has been set! Of course, even should the request for funds be denied, our pro bono team is still here to help.
I have two more criminal cases in the pipeline and I'll be sure to report on any progress in bringing Massachusetts criminal procedure into the 21st century.
Maryellen Cuthbert, a board member of Middlesex Defense Attorneys, Inc., is the person who invited Diane and myself to conduct our workshop back in April. In light of the reaction we received to that program, we decided that someone needed to lead the way, showing that modern jury selection techniques could be effectively applied in Massachusetts. So, Maryellen brought me on board for a tricky statutory rape case she was defending. The case involved an alleged sexual incident between a 19 year-old recent high school graduate and a 15 year-old high school Sophomore. Due to inconsistencies in the complaining witness's story, as well as the absence of any physical evidence, the Commonwealth dropped any charges involving consent and tried only the statutory count.
I have been helping Maryellen develop presentation strategies for opening and closing statements, as well as strategies for cross-examining an alleged victim in a delicate matter -- and one in which the outcome rests entirely on the credibility of her testimony. Much of my time and input has been dedicated to jury selection.
The first order of business was to get the judge in the case to adopt procedures that had some hope of eliciting some relevant information about jurors' experiences and attitudes. In this case, we had a bit of a head start because both the nature of the charge and the fact that the defendant and complaining witness were of different races triggered some individualized voir dire. It was still up to the judge, however, to decide which questions would be asked, who would ask them, and exactly which procedures would be used. We employed a multi-pronged attack with respect to motions:
1) We submitted a request for attorney-conducted voir dire, to which we attached citations to several studies that showed empirically (a) that jurors were more forthcoming when attorneys asked questions than when judges did, and (b) that jurors often revealed pertinent information during individualized voir dire that they declined to reveal during group voir dire.
2) We submitted a list of questions to be asked by the judge during both group and individual voir dire, should our request for attorney-conducted voir dire be denied. The individual voir dire questions were generally worded in an open-ended fashion, so as to elicit detailed responses, rather than just "yeses" and "nos." Here too, we submitted a list of studies showing the superiority of open-ended questions for eliciting relevant information.
3) Given the infrequency with which jury consultants are used in Massachusetts, especially for criminal trials, I suggested to Maryellen that she inform the judge in advance that I would be sitting at counsel table for jury selection. In addition, Maryellen impressed on the judge how important it would be for me to attend sidebar sessions during voir dire, so that I would be able to evaluate the words and demeanors of prospective jurors. The judge didn't seem to know what to do with this idea, so she took it under advisement and invited both sides to submit additional material regarding such a procedure. This is the point at which the ASTC membership really came through for me. The American Society of Trial Consultants maintains a very active listserve for its members. On a Friday afternoon, I sent out a plaintiff call for lists of cases in which consultants had been permitted both at counsel table and sidebar during jury selection. Several ASTC members combed through their files over the weekend and sent me lists of cases. I put them in a nice table and Maryellen sent them to the judge on Monday morning.
4) Maryellen requested a struck method for exercising peremptory challenges. This particular charge allows each side 12 peremptory challenges in Massachusetts. Given that we were also seating alternates, each side actually had 14 strikes. We would certainly be able to emply them more efficiently if we could wait until the entire panel had been voir dired.
In the end, here's what we got:
First, the good news. I was permitted to sit at counsel table during all of jury selection. In order to work around the sidebar issue, the judge sent the entire jury panel away immediately after group voir dire. She then brought them in one-by-one for individual voir dire. The juror would sit in the witness box and the judge would explain that we were using this procedure to protect the privacy of the juror. This set of procedures was excellent from our prospective. Jurors were generally forthcoming and we had time to consult between jurors as one would leave and the next one would come in.
Now, the less good news. The judge insisted on asking all of the questions. While she did ask a few questions based on items we had submitted, she tended to revert to non-productive question structure. That is, she asked yes-or-no questions that required jurors to evaluate their own attitudes of prejudices. For instance, she asked each juror, "Do you believe that the presumption of innocence should apply equally to all races?" Obviously, no-one is going to answer "no" to such a question. There were several prospective jurors whose answers ended up being nothing more than a predictable series of "yeses" and "nos". To her credit, the judge did seem to pick up on this problem fairly early on. Unfortunately, her typical method of getting jurors to talk about themselves was to ask them about their jobs. Not generally relevant to our case. When a juror did reveal information that was directly on point, such as having a sibling who had been the victim of sexual abuse, the judge was fairly adept at getting the juror to discuss his or her feelings about the experience. The judge also required the attorneys to exercise their peremptory challenges on a juror-by-juror basis. This only hamstrung us a little. I think that we only let on one juror that we might have challenged using a struck system.
I think that the judge was actually fairly pleased with how jury selection proceeded. It went more quickly than she had feared. She also noted that several jurors who had failed to raise a hand in response to a particular group voir dire question ultimately revealed during individual voir dire that he had been holding something back. As a result, on the second day of jury selection, she asked each prospective juror whether, in thinking about the questions over night, he or she might want to change an answer. Many of them did volunteer information at this time, typically about experience with violent crime or sexual abuse. Since pretty much every person who had some experience with such abuse was excused for cause, the increased candor associated with individual voir dire definitely worked in our favor.
This case is about to go to closing arguments. So, I don't know whether we will win. I am confident, however, that we have selected a jury whose members will actually have a meaningful conversation about the relevant issues in the case. I don't think we can ask more much more than that.
I did also score a big victory on another front. While I took on this case as part of the ASTC Pro Bono Initiative, I asked Maryellen to petition the court for state funds for my services (at a substantially reduced rate). The judge actually approved the request. So, to the best of my knowledge, I am the very first trial consultant to receive state funds in Massachusetts. So, if you have a tough case for an indigent client, and you need the help of someone like me, the precedent has been set! Of course, even should the request for funds be denied, our pro bono team is still here to help.
I have two more criminal cases in the pipeline and I'll be sure to report on any progress in bringing Massachusetts criminal procedure into the 21st century.
Tuesday, April 28, 2009
Jury Selection Tricky Guessing Game in MA criminal trials
On Saturday, April 25, I participated in a training session for Massachusetts Bar Advocates, sponsored by the Middlesex Defense Attorneys, Inc. First, let me thank Maryellen Cuthbert for the invitation and for organizing a very interesting program. Diane Levesque and I were the trial consultants charged with introducing the assembled throng to the concepts behind effective supplemental juror questionnaires and attorney conducted voir dire.
The first thing to note is how far in the Dark Ages is Massachusetts when it comes to adopting "best practices" in jury selection. I used the phrase "repressed Puritans" during my remarks, which might not have sat well with everyone. There is just no getting around that Massachusetts is a VERY conservative legal culture.
I put up a slide identifying several dimensions of jury selection procedures, with one column for the "restrictive procedure" and one column for the "expansive procedure." Massachusetts fell in the "restrictive" category FOR EVERY SINGLE DIMENSION. So, the bad news is that jury selection in Massachusetts is about as big a low-information crap shoot as there is going. The good news is that we have nowhere to go but up!
There were approximately 110 attorneys in attendance. I asked how many of them had ever used a trial consultant in any of their cases. (Remember now that most of these folks also handle civil cases). NOT A SINGLE HAND WENT UP. That's right. No one had ever used a trial consultant. So much for the quote, attributed to an attorney in Atlanta more than 10 years ago, that to go to trial without a jury consultant would "border on legal malpractice."
Many of the attorneys, some of whom had decades of trial experience, were very pessimistic about the willingness of Massachusetts judges to open up jury selection, at all. Maryellen had warned me to expect this response. She believes -- rightly so, I think -- that the criminal defense bar must make a concerted effort to change the status quo. The mindsets of Massachusetts judges will only begin to change if all the Bar Advocates start asking for the same procedural accommodations, and offering the same arguments in favor of those accommodations. So, one of my charges was to provide for the attendees a list of advantages to using supplemental juror questionnaires and attorney-conducted voir dire. This list is not targeted at the lawyers alone, but also at the judges whom they must convince to "loosen things up." That is, I tried to provide strategic, practical and legal arguments for employing less restrictive procedures.
To be fair, I have been at several local events at which judges have expressed a willingness to allow attorney conducted voir dire, but they always lament that no one ever asks for it! Hopefully, armed with some of the information and advice Diane and I offered on Saturday, some of these attorneys will get more involved in jury selection.
I have attached my presentation slides below. For articles I have written on supplemental juror questionnaires and voir dire, please follow these links. SJQ article. Voir dire article.
The first thing to note is how far in the Dark Ages is Massachusetts when it comes to adopting "best practices" in jury selection. I used the phrase "repressed Puritans" during my remarks, which might not have sat well with everyone. There is just no getting around that Massachusetts is a VERY conservative legal culture.
I put up a slide identifying several dimensions of jury selection procedures, with one column for the "restrictive procedure" and one column for the "expansive procedure." Massachusetts fell in the "restrictive" category FOR EVERY SINGLE DIMENSION. So, the bad news is that jury selection in Massachusetts is about as big a low-information crap shoot as there is going. The good news is that we have nowhere to go but up!
There were approximately 110 attorneys in attendance. I asked how many of them had ever used a trial consultant in any of their cases. (Remember now that most of these folks also handle civil cases). NOT A SINGLE HAND WENT UP. That's right. No one had ever used a trial consultant. So much for the quote, attributed to an attorney in Atlanta more than 10 years ago, that to go to trial without a jury consultant would "border on legal malpractice."
Many of the attorneys, some of whom had decades of trial experience, were very pessimistic about the willingness of Massachusetts judges to open up jury selection, at all. Maryellen had warned me to expect this response. She believes -- rightly so, I think -- that the criminal defense bar must make a concerted effort to change the status quo. The mindsets of Massachusetts judges will only begin to change if all the Bar Advocates start asking for the same procedural accommodations, and offering the same arguments in favor of those accommodations. So, one of my charges was to provide for the attendees a list of advantages to using supplemental juror questionnaires and attorney-conducted voir dire. This list is not targeted at the lawyers alone, but also at the judges whom they must convince to "loosen things up." That is, I tried to provide strategic, practical and legal arguments for employing less restrictive procedures.
To be fair, I have been at several local events at which judges have expressed a willingness to allow attorney conducted voir dire, but they always lament that no one ever asks for it! Hopefully, armed with some of the information and advice Diane and I offered on Saturday, some of these attorneys will get more involved in jury selection.
I have attached my presentation slides below. For articles I have written on supplemental juror questionnaires and voir dire, please follow these links. SJQ article. Voir dire article.
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