Clemens Hit by Pitch: Prosecutor gets Tossed

All Part of the Game


In baseball, there are a lot of things against the rules that players engage in all the time (Ironically, for a while there, I guess Steroid use was one of them). Pitchers try to doctor balls. Base-runners steal signs. Hitters obliterate the line at the back of the batter's box so that they can stand further behind home plate. Runners take out opposing fielders with hard slides, with no apparent effort to actually reach the base to which they were running. Pitchers throw at opposing batters, in retaliation for some real or imagined infraction against a teammate earlier in the game. All of these actions are technically against the rules, but typically are overlooked as "gamesmanship." Apologists remind us that ball players have been doing these things for over a century now. They're as ingrained in baseball as chewing tobacco and crotch-scratching.

In addition to being tolerated, many of these "transgressions" are celebrated as being evidence that a player is "hard-nosed," "old-school," or "playing the game right." I am always impressed by how accurately Jerry Remy can predict when a pitcher is going to hit a batter with a pitch. WIthout necessarily being able to articulate the unwritten rules of bean balls, Jerry nonetheless understands them intuitively. I am sure this comes from his decades in the game, first as a player, and then as an announcer for the Red Sox. Jerry has this uncanny ability to predict not only what kind of transgression will engender a retaliatory bean ball, but when it will come, against which player and even where on his body he's going to get hit. 

"That hard slide has Joe Maddon (the manager of the Tampa Bay Rays) pretty steamed. If this game gets out of hand, I wouldn't be surprised to see some reliever in the 8th inning knock down Youkilis or Pedroia. They won't go for his head or anything. Just a purpose pitch to let the Red Sox know the Rays don't appreciate what happened and they aren't going to forget it anytime soon." 


Sure enough, some scrub, who's just been called up from Triple-A, takes the mound in the 8th inning and plunks Pedroia right in the ass. And here's the weird part. Pedroia knows it's coming, too. And most of the time, that's OK. He calmly drops his bat, glares at the mound for a few seconds, and trots to first base. It's all part of the game.


Jury trials have their own rules


Litigation operates under its own set of rules. They are codified in the rules of civil procedure and very rarely does an experienced litigator do something impermissible in court without realizing he has broken the rules. That is, there are very few honest mistakes.


Just as in baseball, however, crafty trial attorneys understand the rules that aren't in the rules. One lawyer doesn't completely comply with all discovery requests the first time around. "Oh, Your Honor, I didn't realize counsel wanted those old emails, too. Gee, let me put my assistant right on it and we'll see if we can put our hands on them."


A witness will be slipped in at the last minute, despite numerous pre-trial conferences at which the lawyers are asked if the witness lists are complete. "We hadn't received Dr. Jones's report until last week, Your Honor, and we were fairly certain he wouldn't be available to testify."


Even though attorneys aren't supposed to argue the merits of the case during voir dire, a good trial lawyer will try to plant the seeds of her case by asking questions in a particular way. "Do you think it's possible that people make more typos when sending emails than when sending letters, so that an email might be less reliable as evidence?" A great question if the dollar amount included in an email will be used as evidence against your client; but, probably not completely kosher for voir dire.


Perhaps the place where this gamesmanship pops up most often is in the revelation of inadmissible evidence or testimony by a witness on the stand, prompted by a lawyer's question. Did the lawyer actually ask the question to elicit the verboten response? Did the witness know it was coming? Was the witness looking for an opportunity to "inadvertently" blurt out the information? Most of the time, it is pretty hard to tell.


Taking Control of the Game


When any of these transgressions occur, the judge has to figure out how to handle things. If the trial has started, the judge usually doesn't want to overreact. A mistrial is a royal pain in the ass for everyone involved. Sometimes, that is exactly what the offending party is looking for. So, the judge doesn't want to reward bad behavior. The first time something goes awry like this at trial, the judge will usually warn both sides to knock off the shenanigans. It's very much like a baseball umpire warning both benches.


If the offending behavior continues, the judge finds himself with the unenviable job of punishing one side or the other. Occasionally, a judge will make unavailable a particular line of inquiry that had previously been ruled in play. "That's it counselor. I've had just about enough. The inquiry about the secretary's salary is now off the table. Move to your next witness." This is akin to an umpire tossing a player from the game (or the manager). It limits a team's options and might reduce its chance of winning the game.


If the bad lawyer is recalcitrant and won't behave, the judge has the ability to impose sanctions that apply beyond the current case. Often, the matter will be taken up by the jurisdiction's board of bar discipline. Professional baseball players are subject to disciplinary actions by Major League Baseball, including fines and suspensions, the same sorts of punishments facing offending lawyers. Roger Clemens was suspended multiple times for intentionally throwing at hitters, and was famously fined $50,000 for "unintentionally" throwing a jagged piece of a shattered bat at Mike Piazza during the 2000 World Series.


The Last Resort: When to Call the Game


On occasion, the damage done to the trial process is considered so severe that a judge feels he has little choice but to declare a mistrial and dismiss the jury. A new trial date has to be set and a new panel of prospective jurors has to be convened. In a high profile case, this outcome is particularly problematic because one presumably wants to find new jurors who don't know much about what just happened in the first trial. 


The case law governing when to declare a mistrial is actually fairly sensible, if vague enough to allow a judge to ultimately do whatever she wants. At least, judges are directed to look at the right questions. For example, if a witness mentions something inadmissible during testimony, the judge is instructed to consider the following: (See Peyton v. US 709 A.2d 65).

1. Was the inadmissible information uttered once or repeated? (Did the pitcher throw at the batter multiple times?)
2. Was the statement inadvertent or solicited? (Did the manager tell the pitcher to hit the batter?)
3. How important to the case is this witness's testimony? (Did the pitcher just plunk the other team's best hitter?)
4. How significant is the inadmissible information and how will jurors interpret it? (How hard did you hit the guy, and can he stay in the game?)
5. Is there other evidence that would have gotten the jury to the same place? (Is this game already out of hand?)
6. Did the witness draw any conclusions about the inadmissible item or just mention it? (I guess this is sort of like the distinction between brushing a batter back and actually drilling him.)

These questions are intended to help the judge determine just how much damage was done as a result of the inadmissible testimony. In determining whether a mistrial should be declared, this damage has to be balanced against the likely effectiveness of a judge's instruction to the jury to disregard the inadmissible evidence. This is where the case law gets a little less sensible (big surprise there). The treatment in Peyton, however, is not bad.

Taken as a whole, the judge's instruction was not a pro forma and self- defeating admonition not to think about a pink elephant. On the contrary, the judge explained to the jurors, in rational and persuasive terms, why speculation about any hypothetical polygraph test would be unfair and unwarranted. A juror who, notwithstanding the judge's admonition, might have attempted to argue for conviction during deliberations on the basis of the stricken polygraph evidence would surely have faced a skeptical reception from his or her colleagues on the jury.

There is an excellent article by Lieberman and Arndt on what behavioral research tells us about the effectiveness of these limiting instructions. It is generally a pretty pessimistic story. In "Understanding The Limits of Limiting Instructions" (6 Psychol. Pub. Pol'y & L. 677), the authors analyze their own studies, as well as those of others in the field, to conclude that such admonitions very often do more harm than good. The "pink elephant" problem is a real one, as is "reactance", the natural inclination to rebel against limitations on one's freedom that have not been satisfactorily explained (Think about the behavior of any moody teenager).
While the authors offer several suggestions for improving the performance of limiting instructions where they might be used effectively, they reluctantly conclude that, in most instances, there simply isn't anyway to unring the bell.

Laura Pettitte makes a Surprise Appearance out of the Bullpen

This brings us back to what happened last week in the Roger Clemens trial. Judge Reggie Walton declared a mistrial on Thursday when video of Clemens's Congressional testimony, being shown to the jury, included a quotation by a Congressman of a sworn statement by Laura Pettitte, about a conversation she had shared with Andy Pettitte, regarding Roger talking about using Human Growth Hormone. It was third-degree hearsay and Judge Walton had very clearly ruled out its use by prosecutors.

Prosecutor Steven Durham tried to argue that, notwithstanding the judge's ruling on the matter, the particular video clip had been admitted into evidence without objection. This is a little like George Brett complaining that Billy Martin only challenged the pine tar on his bat after Brett had hit a home run with it, even though Brett had been using it all game. This is an interesting point, because it is quite possible that Clemens's lawyer, Rusty Hardin, didn't object to the clip precisely so that it would get played at trial, knowing full well that it would get the judge irate. This is, however, well within Hardin's rights. He need not object again to something that had already been categorically ruled out by the judge.

So, why didn't Judge Walton just admonish the jurors to disregard the reference to Laura Pettitte's statement? After all, it was very early in the trial. Andy Pettitte was likely to testify himself about the very same conversation. The reason that an admonition to disregard (limiting instruction) won't work in this case is that there is no way to explain to a jury why this statement shouldn't matter. The whole case is about credibility. Who said what to whom when? Who is credible and who is likely lying. Clemens needs to successfully challenge Andy Pettitte's recollection of conversations they had about performance enhancing drugs. He famously told Congress that Pettitte "must have misremembered." A jury is unlikely to buy this argument if they believe that Andy Pettitte related the whole conversation to his wife shortly thereafter.

With respect to the Peyton criteria outlined above, this case takes a big header on Number 4 and there is no way to explain to jurors why they should ignore Laura Pettitte's sworn statement. Sure, the judge can explain why, as a matter of law, they should ignore it; but, he'll never successfully explain why they should, as a matter of logic, or common sense. It is probative, and therefore prejudicial. This is the precise reason why it is impossible to convince a jury to ignore credible evidence that has been excluded on 4th Amendment grounds. The exclusion has everything to do with how the evidence was obtained and nothing to do with how useful it might be in reaching a verdict. Jurors can't turn off their brains that easily (and research shows that judges don't do it very well, either).

In light of the nature of the prosecution's transgression, and the difficulty in really convincing a jury to disregard it, Judge Walton probably made the right call in declaring a mistrial in this case. I guess the rest of us will just have to wait a few months more to see Clemens's smug face try to hide his contempt for the jurors who will decide his fate. His next start has been pushed back a few days.

The mistrial is probably better for Clemens than for Durham. Clemens has taken every opportunity available to delay this trial. Every day that goes by, the government gets a little more in debt and the public cares a little less about steroids in baseball. Now, in early September, Judge Walton will decide whether there will be a retrial, and, if so, under what evidentiary rules. That is, the ump has to decide whether to default the game or reschedule it (maybe as part of a double header with the Barry Bonds retrial).

In this game, Roger took one for the team. But that's OK, he owns the team.

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Can Whitey Bulger Get a Fair Trial in Massachusetts?

Interview on WBZ Radio 1030


This morning, I was interviewed by Carl Stevens of WBZ Radio 1030, the major all-news radio station here in the Boston area. Carl wanted to know what I thought were the challenges associated with seating an impartial jury to try someone so locally notorious.

I talked a bit about how important it will be to handle jury selection properly from a procedural perspective. The list of jury panel members must be made available to the attorneys well in advance. There must be a very extensive supplemental juror questionnaire (SJQ). Finally, there must be meaningful voir dire, ideally conducted by the attorneys, not the judge.

I also speculated a bit about the importance of young people and recent Massachusetts transplants, who aren't so familiar with Whitey Bulger's history in the Commonwealth.
I'll be sure to blog about developments as they seem important.

ASTC Pro Bono Initiative helping bring Baby Doc to justice

Not a Pediatric Medical Malpractice Case

The Baby Doc in question is none other than Jean Claude "Baby Doc" Duvalier, former dictator of Haiti (1971-1986), following the death of his father, Francois "Papa Doc" Duvalier. Amid the chaos following the devastating earthquake in Haiti, and the mess that was the Haitian presidential elections, Baby Doc Duvalier somehow managed to fly from France to Haiti, not withstanding the absence of a valid passport. There is a lot of speculation and uncertainty surrounding his decision to return to Haiti. Duvalier, of course, claims that he returned to help his country recover. Most outside observers ascribe to him more pedestrian and self-serving motives. Among other things, there is a bank account frozen in Switzerland containing $6 million in Duvalier's name. It is possible that returning to Haiti might have facilitated Duvalier's access to that money.

Regardless of his reasons for returning to the country he ruled so corruptly and violently, Duvalier was was not met with many open arms, aside from those of the local constabulary. Baby Doc was promptly arrested and questioned by the police. While he was soon released to return to his swanky hotel room, Duvalier's papers were seized, precluding him from leaving the country. Government prosecutors are now assembling a case against him on two broad fronts. The first involves financial crimes against the country, including absconding with many millions of dollars that belonged to the Haitian Treasury or private Haitian citizens. The second set of offenses involve human rights violations, including kidnapping, false imprisonment, torture and murder.

Of course, he'll soon be tried in open court and made to answer for his crimes, right? Not so fast, kimosabe. This is, after all, Haiti we're talking about. The country's political history of colonization, exploitation, coup and revolution is Exhibit A of how not to run a country. (BBC has a nice timeline of the country's history here.) Add to this shaky foundation a major natural disaster and a Presidential election fraught with "irregularities" and you have a recipe unlikely to yield smooth transition and peaceful reconciliation.


Where are we now?

In March of this year, Michel Martelly, the Snoop Dog of Haitian politics, was elected President in a run-off election against Mirlande Manigat (despite the fact that Martelly appeared to have finished third in the original vote). All accounts suggest that this is the outcome preferred by (if not engineered by) the United States, despite Martelly's former ties to the Duvalier family and its regime. As a teenager, Martelly was a member of the "Tonton Macoutes," the Hitler Youth of Duvalier's regime. These teenagers were organized into roaming bands of thugs tasked with intimidating opponents of the regime.

As a young adult, Martelly ran an exclusive Haitian nightclub that catered to members of the Duvalier clan and their supporters. Given this history, those pressing for a full and complete prosecution of Baby Doc (including Human Rights Watch, which published a white paper about how important this case is) have reason to worry about the support they will receive from the new government.

Recent events present even more reason for alarm. The investigating judge in the case recently filed charges against Duvalier without questioning him in open court, in open violation of Haitian law. While Baby Doc is largely to blame for this situation, by checking himself into hospital with "Strongman Flu" every time he had a court date, this procedural shortcoming provides straightforward grounds for an automatic appeal. That is, the case is on very shaky grounds before it even begins. Add to this the fact that the judge then visited Duvalier in his hotel suite and one has reason to doubt the sincere desire of the judge to bring the defendant to justice.


Where does the ASTC fit in?

A few months ago, I was contacted by Brian Concannon, the Director of the Institute for Justice and Democracy in Haiti. Brian's organization, and the lawyers affiliated with it, are helping the government lawyers down in Haiti prepare to prosecute Duvalier. I connected with Brian because he was looking for some trial consulting assistance as they helped pull together the "ordinance," the Haitian version of an indictment. They had a lot of documents to review and code and they wanted to generate an interactive timeline linking Duvalier's regime to the various human and financial crimes committed during his rule.

At the time, I introduced Brian to some vendors that might be able to help out with document management. In addition, his assistant, Cory, and I went down to Hartford for a crash tutorial on timeline software from Marie Mullaney of Litigation Solutions, an ASTC member and New England pro bono team member. The first major contribution by ASTC will be for a member firm to step in and take over this timeline project. Several folks have already expressed interest in taking on this task.

Even though Haiti inherited its Civil Law system from France, complete with its inquisitorial (as opposed to adversarial) criminal procedures, the country has adopted some rather uniques practices over the years.

First of all, it is possible to attach private complaints to criminal matters, allowing the criminal and civil trials to take place simultaneously. The attorneys for the civil plaintiffs work right along side the government prosecutor to prepare and try the case. This is how Brian Concannon and his fellow IJDH attorneys can continue to be involved in the case. Brian is currently identifying expatriate Haitians, with claims against Duvalier, to serve as plaintiffs in the case. Depositions and witness preparation will be much easier for plaintiffs who live in the U.S.

The second surprising feature of the Haitian system is that this might very well be a full-blown jury trial, as we would recognize here in the U.S. Not a mixed panel of judges and lay-persons, but 12 ordinary Haitian citizens sitting in judgment. This is where ASTC trial consultants will really be able to make a difference. It might feel like an 18th century jury trial, but a jury trial all the same. Over the next couple of years, as the case develops, ASTC members will be at the ready to help with case strategy, thematic development, demonstrative evidence production, witness preparation and jury selection strategy.

The lawyers and courageous citizens of Haiti, who are trying to make a brutal dictator answer for his crimes, have a tremendously difficulty road ahead of them. Many forces seem aligned against their efforts. I only hope that the combined efforts of the ASTC membership can help level the playing field just a bit.

We are, as an organization, tremendously proud of the work that Beth Bonora and Andy Sheldon did for the Ray Killen prosecution, as revealed in the excellent documentary, Neshoba: The Price of Freedom, as we are of the pro bono efforts of all our members. This extremely important effort to bring Baby Doc Duvalier to justice, after all these years of suffering in his country, is an exciting new chapter in the ongoing pro bono history of the American Society of Trial Consultants.

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. 

Evidence Driven Deliberations enhance accuracy and consensus

A Missouri jury is confronted with a cold case

In 1976, Becky Doisy disappeared. A man named Johnny Wright was wanted for questioning in the case. The problem was that Johnny Wright was nowhere to be found. More than thirty years later, Johnny Wright was discovered living as Errol Edwards is Georgia and then Texas. 

The state's case depended on the testimony from Wright's former roommate, Harry Moore, as well as that of William Simmons, a man who knew Wright and Moore from a local methadone clinic. So, the jury was faced with deciding a murder case, based upon little more than the decades-old recollections of two shaky witnesses who had their own problems with the law.

A Conscientious Deliberation

Melissa Spain was the foreperson of the jury. In an interview with The Missourian, she discusses how she realized that the jury had a difficult job and needed to be very careful about how they interpreted the evidence. The first thing that Ms. Spain did was review the 12 pages of jury instructions with her jury in detail, taking as long as necessary for everyone to understand what was required of them.

The jury then turned to the evidence in the case, reviewing the testimonies of Moore and Simmons in detail. Each juror was asked to volunteer any ideas and questions. According to Ms. Spain, “It was a room full of logical, open-minded people just really taking it seriously and looking at every possible angle.” 

Importantly, the jury did not take a vote on any of the verdicts until it had thoroughly reviewed all the evidence. After six hours, the jury returned a guilty verdict.

Evidence-driven vs. Verdict-driven deliberations

The story Ms. Spain tells highlights the advantages of evidence-driven deliberations. Juries sometimes focus on the questions of who did what to whom when -- the evidence -- reserving for later the issue of what their answers mean from a legal perspective. Other juries immediately take votes about which verdict is the right one. This tends to turn deliberations into a competition between two camps to see which can "convince" the other to change its vote. 

Ultimately, of course, a jury needs to take a vote. So, deliberations will eventually become verdict-driven. Delaying a vote, however, and keeping the jury in evidence-driven mode has several advantages.

1. More material and relevant evidence enters the deliberations and fewer factual errors go uncorrected.
2. A larger number of jurors participate actively in the discussion.
3. The tenor of deliberation is more inclusive, polite and respectful.
4. Jury instructions receive greater attention and adherence.
5. Jurors report greater satisfaction with both deliberations and the final verdict.

I have seen judges suggest to juries that they not rush to take a vote, which seems to me a sensible idea. As a litigator, you can request that the judge offer such advice to your next jury. If you don't think that the judge is likely to adhere to such a request, you might consider including language in your closing argument that hints at keeping deliberations in a evidence-driven mode as long as possible: "As you review the evidence in this case, combing through the testimony and exhibits, before you know how your fellow jurors will vote, I hope that you will consider..." 

If a thorough jury is a good jury for your case, try to keep them out of verdict-driven mode as long as possible.

The Fifth Amendment vs. The Third Degree

Edward Fleury declines to testify in his own defense

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

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

When should a defendant testify?

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

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

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

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

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

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

The defense rests... completely

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

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

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

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

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

Gun show Uzi trial highlights emotional impact of tragedy

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

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

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

Blame deflection v. blame avoidance

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

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

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

Fleury Defense Team reaches for the brass ring

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

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

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

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

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

The Hung Jury: American Exceptionalism Strikes Again

Hung Juries: Judicial Flukes or Systemic Problem?

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

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

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

An understudied phenomenon

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

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

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

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

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

The McCowen Case in Massachusetts

Earlier this month, the Supreme Judicial Court of Massachusetts unanimously rejected the appeal of Christopeher McCowen, who was convicted of murdering Christa Worthington on Cape Cod. The major grounds for McCowen's appeal was that jurors revealed, after the trial was over, that the deliberations had been peppered by racially insensitive remarks and hurt feelings over perceived racial animus.

While the Federal Rules of Evidence, and most state counterparts, preclude jurors testifying about their deliberations after the fact, Massachusetts has an exception carved out for alleged racial prejudice. McCowen's appeal was allowed under this exception. Ultimately, the Supreme Judicial Court found arguments that racial animus affected the final verdict unpersuasive. New Chief Justice, Roderick Ireland, wrote in his concurrence that he wished the trial judge had conducted a more thorough voir dire of the jurors before making his initial ruling.

Ireland's opinion suggests some optimism that a post-verdict investigation of jury deliberations can be a successful method of reducing the influence of racial prejudice in the criminal justice system. This view is shared by Colin Miller, a professor at The John Marshall Law School, who wrote a piece, entitled Without Bias: How Attorneys Can Use The Right to Present a Defense to Allow for Jury Impeachment Regarding Juror Racial, Religious, or Other Bias for The Jury Expert, in March of this year.

I was one of the commenters on Miller's article for The Jury Expert. I am not so sanguine about the efficacy of post-verdict juror interviews, as a tool of reducing the influence of racial animus among jurors. I reproduce my response below. Comments are, of course, welcome.

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

I have read with great interest Professor Miller's article, outlining an argument in favor of loosening the restriction on juror testimony to impeach criminal verdicts, where racial prejudice is alleged. I must say that I am not entirely persuaded that his approach can circumvent the logic of FRE 606(b). Of particular concern is a recognition that any effort at post-conviction relief begins a completely new phase of the judicial process, with new procedures, presumptions and burdens of proof. As such, one cannot easily analogize from forms of trial testimony to juror post-verdict testimony. That is, the jurors are most assuredly not testifying at the defendant's trial. Secondly, I seem to place a higher value on the interests being protected by 606(b) - namely the rights of jurors to deliberate free from state intervention or recrimination - than does Professor Miller.

Even were one able to loosen the bonds of 606(b), I am concerned that holding more post-verdict hearings, complete with juror testimony, wouldn't accomplish very much. This is a very blunt, unwieldy instrument for correcting the ills of racial animus. I outline below why I believe this to be so.

The 606(b) Exception Exception - The Massachusetts Rule

Reading the language of FRE 606(b) (and the state counterparts, which generally include the same language), there does not appear to be any room for impeaching a verdict based on racial animus infecting jury deliberations. Clearly, such animus falls squarely within the "mental processes" language and any jury discussion of racial issues falls under the "deliberations" prohibition.

Many impediments to impartial deliberations that would seem to be much more "extraneous" or "outside" have been interpreted to fall under the prohibitions of FRE 606(b). Verdicts have been allowed to stand despite the extreme depression, schizophrenia and mental retardation of jurors. The most famous case testing 606(b), Tanner v. U.S. (1978), involved a jury that got drunk and took cocaine together during deliberations. If cocaine and mental retardation don't qualify as "extraneous" influences, it is hard to think how racism might.

I was very surprised then to hear that a Massachusetts trial judge was conducting a hearing to investigate the verdict in the case of Christopher McCowen. McCowen, a black sanitation worker, had been convicted of murdering Christa Worthington, a white woman who lived on his route. A few days later, three jurors contacted the defense attorney to report racially charged irregularities in the deliberations.

I discovered that the Massachusetts Supreme Judicial Court has carved out a specific exception to 606(b) when racial animus is alleged. Although evidence that a juror made ethnically or racially prejudiced remarks during deliberations is not evidence of an "extraneous matter," the Supreme Judicial Court has held that a judge has authority to inquire into such matters because the existence of such remarks may deprive a defendant of the right to be tried by an impartial jury. Commonwealth v. Laguer (1991).

So, Mr. McCowen got his hearing (Commonwealth v. McCowen, Barstable Superior Ct., April 4, 2008). All the jurors were interviewed. A few racially insensitive remarks were recalled, as were several apologies. In the end, Judge Gary Nickerson was not convinced that racial animus infected the deliberations, something the defendant had the burden of proving by a preponderance of the evidence. So, even in a state with the most liberal standard available for reinvestigating a verdict due to racial prejudice, admitted instances of racially insensitive remarks were insufficient to bring the defendant relief.

So, you secured a hearing - now what?

I would strongly advise against relying too heavily on 606(b) exceptions to overcome racial bias in the jury room. There are just too many things working against you. First of all, while some states like Massachusetts have carved out "racial animus" exceptions to the prohibition against juror testimony on matters relating to deliberations, not many of those exceptions were enthusiastically embraced by the state Supreme Courts. A state's official position on this topic could change tomorrow.

Second, all the exception gets you is a hearing (provided you've got solid affidavits from some jurors). Convincing a judge that the verdict was the result of racial prejudice is going to be a bear. The main reason for this, of course, is that the very same jurors complaining about the verdict voted for the verdict themselves (except in Oregon and Louisiana, where criminal verdicts need not be unanimous).

Imagine that you were an African American juror, sitting on a case with racial overtones. One or two of your fellow jurors start uttering remarks that are racially insensitive, maybe even inflammatory. Will that make you more likely to vote guilty? I don't think so. So, the first question any sensible judge will have for a juror who alleges that a verdict was tainted by racial animus is, "Then, why did you vote for it?"

The most likely scenario, leading to a juror contacting a defense attorney and complaining about the racial tension in the jury room, is that the juror experiences regret about the verdict for some reason. That is, after the fact, she comes to wish that she had voted differently. Most likely, she reads about the case in the newspaper, or hears about it on television, and learns some things that did not come out at trial.

The exceptions to 606(b) are not intended, however, to circumvent the other rules of evidence. Judges know this and no good judge will allow juror regret to impeach a verdict. As the judge in the McCowen appeal wrote, "The oft-expressed second thoughts of a conscientious juror do not necessitate a new trial."

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

"One final observation is in order. For over thirty years, this author has witnessed the delivery of verdicts in serious criminal cases. Watching jurors being polled has shown in many instances, a trembling hand, a tear trickling down, or the word "Guilty" getting caught in a juror's throat. The polling of the jury in this case was extraordinary. After eight days of deliberations, not one juror trembled, or shed a tear or choked on his or her words. Unfettered unanimity was obvious from the conduct of the jurors as well as from the words they spoke as they were individually polled."

Avoiding racial prejudice in the jury room

While Professor Miller spends the bulk of his article articulating his attack on FRE 606(b), he ends with a list of sensible suggestions for minimizing the likelihood that racial animus will contaminate a jury's deliberations.

Remember that 606(b) only applies after the verdict has been rendered. If you wait until then to try to rectify problems with your jury, the horse has already left the proverbial barn. The key is to be vigilant with respect to racial issues throughout the entire trial process.

By all means, follow Professor Miller's advice with respect to jury selection, but I would pay particular attention to his admonition to request a jury instruction regarding the reporting of juror misconduct. While it might not be prudent to mention racial prejudice explicitly, it is critical that the jurors are made aware that the judge is available to help with any issues that come up during the trial and deliberations. The judge should let each juror know that she should immediately come forward if she is at all concerned that she, or any other juror, has seen, heard or done anything that she believes might not be appropriate.

With any luck, you will have a judge who can couch such an instruction in a non-threatening way. In order to avoid reactance on the part of jurors, they must perceive this admonition as a genuine offer to help them work through any issues that might emerge.

Such an instruction can be critical because the prohibition against voir dire for the jurors does not apply until after a verdict is rendered. So, if jurors come forward during any point of the trial or deliberations, a proper investigation into possible racial prejudice can be conducted.