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.

Jury Nullification Requires an Open Door Policy

Mr. Schwartz goes to Woburn

As many of you know, I am very active in the Pro Bono Initiative of the American Society of Trial Consultants. I head up the New England Team and I am working hard to get the word out that there are consultants willing, ready and able to help out with cases involving clients of limited means. As part of this effort, I have arranged with the Middlesex Defense Attorneys (MDA), the folks who administer the Bar Advocates Program for Middlesex County, MA, to hold regular Jury Trial Strategy clinics in Middlesex County courthouses. I hosted the first of these free clinics last week in the Woburn Superior Court. Attendance was great, with lawyers from Suffolk and Worcester Counties, as well as the Middlesex folks.

The cases on which the attorneys wanted advice were quite substantively diverse. They included assault, child molestation, accessory to murder and filing a false police report. One might imagine that this set of cases would have little in common. In fact, there did seem to be a common thread to several cases. While the state had a strong case that the defendant had, in fact, violated the relevant statute, there was something about the defendant, or the circumstances of the crime, that might lead a jury to be reluctant to convict.

The Law vs. The Defendant

That's right, broadly defined, these were nullification cases. Given the broad spectrum of those who read this blog, I should probably define jury nullification. That turns out to be a tricky proposition, in and of itself, and many an academic article, dissertation or book have been dedicated to providing such a definition. Luckily for us, I don't have to convince anyone that my definition of nullification is the best one. It just has to be useful for this blog entry. So, for our purposes, jury nullification is simply a decision by a jury to choose a verdict that is not supported by the facts and the law. Importantly, a jury that is simply mistaken about something is not nullifying. The kind of nullification that most scholars talk about -- and is most relevant here -- involves a jury acquitting a criminal defendant despite its conclusion that the defendant has, in fact, violated the law.

Most legal scholars discuss "jury nullification," which describes the circumstance when an entire jury chooses to acquit a defendant, notwithstanding the evidence to the contrary. Documented cases of jury nullification are few and far between. There are, of course, some famous historical examples. Northern juries often refused to convict people of violating the fugitive slave laws prior to the Civil War. Many juries were reluctant to convict draft card burners during the Vietnam War. Much less well documented, but undoubtedly more common, are instances of "juror nullification," when an individual juror (or several) refuses to vote for conviction. From a defense attorney's perspective, juror nullification is a more realistic goal. It might not be possible to convince an entire jury to show mercy on the defendant, but one can try to give at least a few jurors something to think about.

There are only two states, Maryland and Wisconsin, where an attorney is permitted to mention jury nullification explicitly. This is probably just as well, since most people are very reluctant to admit to themselves that they are circumventing the law, ignoring the judge's instructions and violating their oaths as jurors. Self-perception is a very important part of a person's mental health. No-one likes to think of himself as dishonest, untrustworthy or lawless. As such, if your case turns on your ability to convince jurors to knowingly nullify, you have a very steep uphill battle in front of you.

The Road to Nullification

That said, the situation is not really that dire. Jurors will nullify, so long as you allow them to think they are doing something else. How does this work? Fortunately, criminal law is filled with lots of fuzzy concepts requiring juror interpretation. Which witness was more credible? Did the defendant have the necessary intent? What did the defendant know at the time? Was the defendant under the control of another person? These are just a few examples of the sorts of questions that give jurors a lot of wiggle room. Finally, everything is wrapped up in the concept of "reasonable doubt." Just how sure does a juror have to be to convict? Several studies show that jurors self-report more demanding conceptions of reasonable doubt in cases presented more sympathetically to the defendant. That is, when a juror wants to convict, she employs a fairly lax burden of proof (say, 75% certainty), but when she has reservations, the same juror might employ a much stricter threshold (say, 90%).

So, get out your pencils (or PulsePens or iPhones). Here's what you need to get jurors to nullify (ssshhhhh..... they might hear you):

1) You need a hook.

You'd better have a client or a statute or a case or an extenuating circumstance that is likely to engender reluctance to convict. Whatever hook you have needs to be something you can bring out in court. You can't count on jurors to just assume great things about your client.
Examples of such hooks include:

A) Nothing will be accomplished by sending the defendant to jail.
B) Prosecuting the defendant is unfair, given what has happened to others doing the same things (accomplices perhaps).
C) The defendant is so young that a conviction will ruin his life.
D) The victim is just as responsible (or is a bad person).
E) The state is wasting everyone's time by bringing this case.

2) You need a door.

Now that you have planted the hook, with any luck (and skill on your part), some of the jurors will be looking for a way to escape from convicting your client. The law seems pretty clear and the judge has repeated several times that each juror has sworn an oath to follow the judge's instructions. Whatever is a compassionate juror to do?

You have to provide a way for a juror to find for your client while simultaneously believing that she has done her civic duty to the best of her ability. That is, it is your job to show the juror how to both vote "not guilty" and also go home feeling good about herself. You need to show her the door she can walk through.
Examples of such doors include:

A) A list of forensic evidence that was never collected.
B) The absence of an eyewitness.
C) Inconsistencies in testimony of the victim or other witnesses.
D) Sloppy police work.
E) The importance of any mens rea requirement (No one can know for certain what the defendant was thinking).
F) The ambiguity of language in the statute

All of these elements are meant to introduce uncertainty in the minds of jurors. You have just shown them the door. Now you just need to give them permission to open it. That is where the reasonable doubt requirement (and the burden of proof) comes in. It is essential that you emphasize in closing arguments both that the burden is completely on the state to prove its case and that the reasonable doubt standard is a very demanding one. Be sure to point out that the state must prove every element of the offense beyond a reasonable doubt.

Obviously, a strict liability crime affords fewer "outs" for your sympathetic jurors. Hopefully, the state's case has at least one weak link you can pry at. Your argument only needs to pass the sniff test -- it doesn't have to be persuasive. Your job is to provide ammunition for those jurors who are on your side to begin with.

If you've done your job, a juror who doesn't want to convict your defendant can, with a straight face, explain to her fellow jurors that, while she might think the defendant is guilty, the DA just didn't prove the case beyond a reasonable doubt. "Gee folks, I really want to vote with you, but I just can't do so in a good conscience."

3) Don't push.

Jurors are constantly speculating about things they know nothing about. What else could the police have done? Did that witness get a deal? What was girlfriend's real relationship with the defendant's mother? Would we really be here today if the defendant were white? It is this speculation that allows a defense attorney to encourage nullification just by emphasizing the uncertainty in the process. The more unsure are the jurors, the more they will speculate about things not in evidence.

That said, jurors distinctly resent being told what conclusions to draw from the evidence (or lack thereof). When people believe that their choices are being dictated by others, they tend to experience reactance, which is a tendency to rebel against the perceived loss of autonomy. Suddenly, the options that have been taken away seem more appealing (Just think of any teenager who has been forbidden from doing something).

Now that you have your jurors looking for a way out and you have offered them an exit, you need to resist the temptation to connect the dots for them. A juror might be sympathetic to a high school kid who got caught sharing pot with his friends. That juror might be inclined to use uncertainty about who originally purchased the pot to avoid voting guilty on a distribution charge. But you have to let the juror come to that conclusion on her own. If you tell her to take those specific steps, she will question your motivation. She might feel manipulated. She might face derision from other jurors for having "bought what the defense was selling."

You can show your jurors the door, but they have to walk through it on their own.

Is this really Nullification?

This really boils down to semantics at this point. I helped a lawyer secure a hung jury (with no retrial) in a statutory rape case involving two teenagers. The complaining witness's account was full of holes and inconsistencies. Since statutory rape is a strict liability crime, however, the jury only needed to conclude that the two had sex -- ever -- to find the defendant guilty. Clearly, extralegal factors, such as the defendant's age, the asymmetry of the situation, tepid support for such laws and the absence of violence played a role in the jurors' evaluations of the case. So, that would suggest labeling this a case of jury nullification. On the other hand, had the state's case been ironclad, I am convinced the jury would have voted guilty. So, the verdict was really the result of a delicate interplay of the strength of the case and the jurors' predictable ambivalence about the trial. Our strategic victory was successfully playing one off against the other.