The Ted Stevens Trial and the Lesson of the Memorable Image

There is something to be said about focusing a witness examination around one indelible image. For the prosecution in the trial of Alaskan Senator Ted Stevens, the image of choice was a $2,695 vibrating Shiatsu massage lounger from Brookstone.

Reporter Dana Milbank narrates the prosecution’s cross-examination of Sen. Stevens in today’s Washington Post. The senator faces seven felony counts charging that he deliberately concealed on Senate ethics forms $250,000 in goods and services he received for his home in Alaska. He contends that the massage chair, among other items, was borrowed from friends or given despite the fact he declined the offers.

To convince a jury of the merits of a case, attorneys want to provide memorable testimony that will overwhelm competing arguments. The prosecutor in the Stevens trial seems to know this lesson well. Brenda Morris used the massage chair as a prime example of the alleged goodies received by Sen. Stevens, describing the chair in her opening statement as the "expensive massage chair from Brookstone -- you know, that gadget store you see in all the malls."

The chair came up again in multiple witness examinations, most importantly in the cross of the defendant himself. Here is the penultimate moment cited by Milbank:

Prosecutor Brenda Morris, toward the end of her cross-examination of the senator yesterday, settled in for a long discussion about the chair, which Alaska restaurateur Bob Persons bought for Stevens as a gift seven years ago -- but which Stevens never reported on his Senate disclosure forms.

"And the chair is still at your house?" Morris asked.
"Yes," Stevens conceded.
"How is that not a gift?"
"He bought that chair as a gift, but I refused it as a gift," Stevens explained. "He put it there and said it was my chair. I told him I would not accept it as a gift."
"Where is that chair now?"
"In our house," Stevens repeated. "We have lots of things in our house that don't belong to us, ma'am."

…

Kneading all she could out of the massage chair, the prosecutor asked: "So, if you say it's not a gift, it's not a gift?"
"I refused it as a gift," the chair man said. "I let him put it in our basement at his request." Besides, Stevens said, "I've had three back operations, ma'am. I do not use that chair."

…

Alas for the sitting senator, the exhibits in the case tell a different story about where his posterior has been. "The CHAIR arrived and I tried it out last night," Stevens wrote in an e-mail to Persons in March 2001. "It is great: I can't tell you have [sic] much I enjoyed it. Catherine and Beth tried to get me out of it, I just went to sleep in it. Thank you and thanks to Bill. It will be a godsend this year. It is just a loan; but, I really appreciate it being here now."
The prosecutor shared that e-mail with the jury. "But you kept it," she charged.
"It's still there," Stevens acknowledged.

…

The prosecutor tried to put the senator on the proverbial couch about the vibrating furniture. "Isn't it a fact that you're calling it a loan when it's actually your chair?" she coaxed.
"It's not my chair," Stevens repeated.

Obviously, the prosecutor wasn’t going to force an admission from the senator that the chair was his, but by prolonging the back-and-forth, she placed Stevens in a very uncomfortable spot. Commonsense was working against him. Certainly, the prosecution hopes the comedy was not lost on the members of the jury.

While there were numerous other alleged gifts involved in this case, the prosecution is smart to emphasize one above all others. The point is not to insult jurors’ intelligence, but to imprint an image in their memory, and one of the best ways to emphasize and help people remember a point is to repeat it. In this case, as the jurors develop the confidence to reach their own conclusions, they will remember the Brookstone massage chair still sitting in the basement of Mr. Stevens home.

On the other hand if the chair is only one example that suggests wrongdoing, the jury could turn the other way and ignore it. Would you?