Who should sentence Tarek Mehanna?

Today, Judge George O'Toole holds a hearing to determine the appropriate sentence for Tarek Mehanna, the Sudbury man convicted in January of providing material support to Al Qaeda and seeking terrorist training in Yemen.

Read the Boston Globe story about the sentencing hearing here.

This case is fascinating on many levels and I have written multiple blog entries about it over the past two years. (Find Jury Box Blog posts on the case here). The jury determined that posting pro-Al Qaeda material online could constitute "material support" and that the dangers associated therewith overrode any Free Speech protections. It is important to remember, however, that Mr. Mehanna never raised a finger in violence against anyone. He gave no money to our enemies and his support for jihadist violence was equivocal, at best. So, what kind of punishment is appropriate for his crimes?

The defense is asking for a lenient sentence of fewer than 7 years in prison. The prosecution, however, is seeking a sentence of 25 years. Since federal sentencing guidelines are no longer binding, the judge will have a great deal of discretion over Mr. Mehanna's fate. But should he?

One of the fundamental rationales for using citizen juries in our criminal justice system is to allow them to serve as the "conscience of the community." Unlike the judge, who is embedded in the governmental structure for life tenure and who can be removed from "the word on the street," jurors are living in the community, with experiences that better reflect shared values about public safety, culpability and morality. Nowhere is this more strongly reflected than in the absolute right of the jury to nullify in the rare instance where justice and the law do not correspond.

It is odd, then, that our system has evolved so that jurors are asked to determine guilt or innocence and judges are asked to determine sentence. (Capital punishment offers the best known exception to this allocation of responsibilities.) This arrangement really handcuffs the ability of jurors to exercise their duty as the conscience of the community. We provide them with the most blunt instrument available, a simple "yes or no" vote on the defendant's guilt. Where there are multiple charges or lesser included offenses, jurors are afforded slightly more flexibility to craft a verdict that reflects their evaluations of the defendant's culpability.

The real discretion sits with the person who decide's the defendant's sentence. Ultimately, the sentence is the person't fate. The jury's verdict on guilt only hands off this decision to the judge.

I can think of no case that better illustrates the wisdom of allowing jurors to decide sentencing than that of Tarek Mehanna. There is a wide range of available alternatives. Reasonable people will certainly disagree about which sentence would be best, as well as what opportunities Mr. Mehanna should be afforded to reduce his sentence through good behavior or restitution. One's judgment regarding what punishment would be most appropriate in this case comes down to an evaluation of the defendant's culpability and how much danger his actions created. Given the uniqueness of this case, the multiple issues that need to be considered and the diversity of opinion in society on these issues, the final disposition of this case could certainly benefit from a lively and representative deliberation.

The rest of the world will view Mr. Mehanna's sentence as a reflection of our society's values and priorities. Maybe we should structure our system so this would actually be true.

What's brewing with Tea Party Jurors?

But What About my Needs?

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

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

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

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

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

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

Hell hath no fury like a Tea Partier Scorned

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

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

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

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

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

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

Tea for Two

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

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

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

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

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

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

Always Dig Deeper

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

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

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

Handling Tea Partiers During Voir Dire

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

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

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

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

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

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

Guilty on All Counts

Late last month, a federal jury in Boston, after only 10 hours of deliberations, found Tarek Mehanna guilty on all seven counts for which he had been charged. They included conspiracy to kill Americans abroad, lying to federal investigators and, most controversially, providing material support to a terrorist organization (Al Qaeda).

Two sets of acts proved central to the case against Mehanna. The first was a trip he took with another man to Yemen in 2004, allegedly to seek training at a terrorist camp. His companion continued on to Iraq and remains at large. The second was a series of documents and videos Mehanna translated from Arabic into English and posted to the internet. As most of these files were seen as serving propaganda purposes for Al Qaeda, they formed the basis for the "material support" charge.

Defense attorneys for Mehanna had requested that Judge O'Toole give the jury a special verdict form, so that the jurors would have to specify whether the elements for any charge were satisfied by the Yemen trip, the web postings, or both. The rationale for such a request was a recognition that no U.S. appellate court had yet ruled on the Constitutional question of whether speech alone could qualify as material support, as defined by the antiterrorism statute. Only by learning whether any particular conviction rested on the internet postings could the defense preserve this question for appeal. Judge O'Toole, however, failed to see the need for the special verdict form and allowed the jury to return a general verdict on all counts.

Retaliatory Prosecution?

Tarek Mehanna's brother, Tamir, was interviewed on WBUR (Boston's NPR affiliate) on the day following the verdict. In that interview, he paints a picture of his brother's development as an American and a Muslim quite at odds with what prosecutors told the jury. He remains convinced that the government only prosecuted his brother so aggressively because Tarek refused to become an informant for the justice department in 2004.

Many legal scholars have now weighed in on the First Amendment implications of Mehanna's conviction, suggesting that it has struck a devastating blow against free political speech in America. The verdict sends a message to those who would criticize our government that their words can, in fact, be used against them in a court of law.

I wonder, however, if the verdict has not sent an even more potent message regarding the 4th, 5th and 6th Amendments. When it comes to issues of national security, if you assert your rights not to cooperate with an ongoing investigation, the consequences will be dire. Suspects have long been pressured into cooperating with the government in order to avoid particularly harsh treatment. Investigators and prosecutors regularly depend on informants and coconspirators to make their cases. This case, however, feels a bit different. The government really piled on here... and they won. I am not sure that federal authorities thought that Mehanna himself was particularly dangerous. They might have thought that a culture where dissidents feel free to blow off the Feds would be particularly dangerous.

Credibility can be Key

In many of my prior posts about this case, I identified major challenges facing the defense, including poor timing, archaic jury selection procedures, adverse evidentiary rulings and the emotional climate created by any reference to terrorism.

Against all of this, I was very impressed with the defense mounted by Mehanna's team. In particular, I thought they did an excellent job of reminding the jury at every turn that almost everything cited as evidence by the prosecution turned out to be spoken or written words. The First Amendment defense, which seemed rather far-fetched as the trial opened, gained traction as the case went along.

There proved to be one major problem. Mehanna's trip to Yemen, at a time when no sane person would go there other than to be in the middle of a war, was clearly not mere talk. It was a very concrete act of someone who was clearly trying to accomplish something more than he could at home. The defense explanation was that he was seeking further Islamic education. There was scant evidence to support this contention and it frankly didn't pass the sniff test (even if it were true).

The perceived need to shoehorn this event into the free-speech-based defense strategy probably did not serve Mehanna well. I have not heard or read interviews with any of the jurors yet, but I wonder if the implausibility of this particular defense hurt the defense team's credibility with respect to the rest of the charges. If jurors thought the defense was trying to snow them about the trip to Yemen, they likely became suspicious of the rest of the defense story.

Hindsight is 20-20 (or at least usually less myopic than the present), so it is easy to speculate about "what ifs". I am sure that Mr. Carney and his team did what they thought would be most effective for their client at the time, and I do not mean to suggest that I somehow know better. The post-game analysis, however, tends to speculate about how things might have gone differently. In that spirit, I do wonder what might have happened, had Mr. Mehanna essentially fallen on his sword with respect to the ill-fated trip to Yemen.

Rather than defending the trip as an educational venture, the defense might have admitted that the trip was a stupid idea of an immature and angry young man. They might have been able to spin the story, to suggest that finding himself in the Middle East opened Mehanna's eyes to the very real conflict in the region. He came home because he realized that violence in the name of God is wrong. This story does seem to dovetail a bit better with Mehanna's subsequent decision to take his fight to the web, rather than the battlefield.

It's always the cover-up

Americans are, as a rule, very forgiving people. I am often amazed at the transgressions we are willing to overlook. The one thing that we seem to have virtually no tolerance for, however, is anyone thinking they are bigger than the system, above the law, or not subject to the same rules as the rest of us.

Juries punish arrogance. Just ask Martha Stewart. Just ask Conrad Murray. Just ask Rod Blagojevich. Just ask Raj Rajarratman.When you get caught, throw yourself on the mercy of the court and jurors will treat you fairly. Act like you are smarter or tougher or better than everyone else and they will punish you.

It is for this reason that I am so concerned that the defense of Mehanna's trip to Yemen as a pilgrimage of Islamic learning came across as arrogant. It was borderline contemptuous of the jury. I worry that some of the jurors thought, "Just how gullible do you think we are?"

Alas, it will always be relegated to speculation what might have happened had the defense team taken a different tact with respect to this one particular act. Would the jury have been more sympathetic to the free speech defense of Mehanna's other activities? Would they have deliberated longer than 10 hours? We will never know.

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

The Protected Free Speech Defense

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

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

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

Was the Speech Dangerous?

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

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

Should the Defendant Take the Stand?

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

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

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

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

Jurors as Interpreters: When Facts Aren't Facts

The Interpretive Role of the Jury

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

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

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

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

When is Free Speech Too Costly?

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

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

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

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

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

Is there such a thing as Immaterial Support?

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

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

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

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

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

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

The Law/Fact Distinction: A Convenient Legal Fiction

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

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

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

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

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

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

What will the Mehanna jurors do?

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

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

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

Challenging Jury Selection in Tarek Mehanna Trial

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

Tarek Mehanna

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

Judge George O'Toole

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

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

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

Attorney John W. Carney, Jr.

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

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

Ferdaus Arrest complicates Mehanna trial

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

Rezwan Ferdaus

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

Tarek Mehanna

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


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


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


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


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

Facing the Fearful Jury: Terror Management Theory in the Courtroom

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

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

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

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

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

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

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

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

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.