The Art of Advocacy

Credit the news media in the trial of former Illinois Governor Rod Blagojevich for shining a spotlight on a growing trend: that of judges keeping the identities of jurors out of public hands for fear that a voracious press and minions of Internet bloggers will tamper with jurors and compromise their objectivity. See this recent story in The Wall Street Journal.

The court in the Blagojevich trial has refused to make the jurors’ names public, and the press, accustomed, to full access to criminal proceedings, is crying foul. The Chicago Tribune asked Tribune Co. Assistant General Counsel Karen Flax to articulate the argument for disclosure. You can read the full statement here, but here is an excerpt:

The news media are the public’s eyes and ears, and that role is particularly important when it comes to reporting on what happens in criminal trials -- especially when that criminal trial involves the prosecution of our former Governor, Rod Blagojevich.

The United States Supreme Court has long held that, under the First Amendment to the United States Constitution, the media -- like Chicago Tribune, have a right of access to criminal judicial proceedings...

The reason that prompt disclosure is important is because, as one court recently put it, “knowledge of juror identities allows the public to verify the impartiality of key participants in the administration of justice, and thereby ensures fairness, the appearance of fairness and public confidence in that system.”

The conflict is, in part, a by-product of the Google and Facebook age and it is becoming prevalent in courthouses around the country. Historically, a judge virtually only called for an anonymous jury when the case involved a defendant who posed a serious threat to jurors’ physical safety or who would try to bribe them. Today, it is often used to quash jury tampering by the media and other sources.

The media is quick to cite cases when its tenacity set the system straight. In the case of another high-profile Illinois governor, George Ryan, it was the news media that uncovered evidence that two jurors had withheld information during voir dire that might have disqualified them. Thanks to the media, these two jurors were ousted and replaced.

Things got complicated with the prevalence of social media. Today, anyone with an iPhone or a blog site can call him or herself a reporter. The judge in Governor Blagojevich’s trial calls them, ‘bloggers and other gadflies’ and says that if jurors names are released, these individuals will swarm them and interfere with their duties. He has good reasons to be concerned.

While traditional news media generally comply with judges’ orders not to contact jurors about a case during trial, one cannot count on this new breed of pursuers to follow the same standards. As anyone who has surfed YouTube knows, people will record and upload virtually anything.

What’s more, though judges routinely order jurors not to do outside research while they are sitting on trials, the Internet age has made research too tantalizingly simple to avoid. Not that long ago, a lone question from a reporter might have peaked a juror’s curiosity, but not enough to make him violate a judge’s order and head to the library to research. Now it’s only a Google search away.

The debate over anonymous juries in high profile trials is not as simple as a Google search; it merits careful consideration by all parties involved – the judiciary, the press, and counsel. New media forums are not going away anytime soon, and neither are high profile jury trials.

I previously posted about attorneys doing jury research on social networking sites. The other side of the coin is that jurors can conduct internet research of their own, a problematic phenomenon discussed in this story from the Twin Cities Business Journal. Jurors have always been told to avoid reading about a case on their own, but now that it's so easy to satisfy one's curiosity with an iPhone, Blackberry or computer, a judge's warnings may not always be enough to ward off the temptation to know more. Anyone who has ever used Google, should understand the inherent danger of a potential jury member making decisions based on online information. Misinformation, public opinion, and publicity spin fill online forums like Wikipedia, blogs, and newspaper sites.

A common question at the voir dire: “Is there any member of the jury panel who has knowledge of any facts relating to this case?” Attorneys may also want to ask whether potential jurors believe they could obey the judge and stay away from Internet research during trial. The aforementioned article cites Dorsey & Whitney partner Peter Carter's experience in a Kansas City trial:

“ 'During voir dire, we asked whether jurors would abide by instructions to not do research on the Internet, and probably six to 10 potential jurors said they could never abide by that,' Carter said. [He] and other attorneys involved in the case then asked the 80 potential jurors whether they had already researched the case on the Internet. Carter said six to seven more people admitted they had.' "

Such experiences illustrate how critical voir dire can be. Many lawyers have campaigned for a broader voir dire that would afford them more opportunity to question jurors individually. There has been little enthusiasm from the judiciary for such proposals. Arguments against an expanded voir dire range from the efficiency of judicial administration to the need to protect jurors from penetrating questions that violate their privacy, to the concern that lawyers would unfairly use the process to begin persuading jurors before evidence has been presented. All of these points have merit, but now that jurors can so easily access information independently, perhaps it is time to revisit the standard voir dire questions.

Are social networking sites really a new base to cover in jury research? According to this piece on law.com, the answer is yes. Tamara Thompson writes that the use of social networking sites is a great place to start to get to know a witness, juror or potential business partner.

In her article she discusses various social sites--Facebook, Linked In, MySpace—and strategies for culling information from each. This “due diligence” goes above and beyond a simple Google search when conducting research on the 6-12 people who will be making decisions about your case. And the point is well taken. The statistics speak for themselves: at least half of your jurors will have a social networking page.

Given the increasing popularity of these sites, it would be foolish to ignore them when doing jury research. Beware, though, that you can’t trust all the information potential jurors post about themselves on their Facebook or MySpace pages. With the public becoming increasingly concerned about online security, users are rightfully wary about posting potentially identifying information on the internet. And, of course, it’s easy for people to bend the truth or lie on such sites for whatever reason.

If we can take a lesson from a social networking site, it should be from Match.com, where we learn that “seeing is believing”. There is intrinsic value in laying eyes on a person and asking them specific questions tailored to your specific needs. No matter how revealing social networking pages may be, voir dire will still be crucial. When voir dire is permitted, take extensive time to evaluate your case and determine the types of people you think would be best suited and most harmful to your case.

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.

Continue reading "The Ted Stevens Trial and the Lesson of the Memorable Image" »

Those who cherish the jury system do so with the full recognition that juries composed of mere mortals are not perfect. We take the good with the bad, always trying to improve. For example in civil cases we now have juries composed of six citizens as opposed to the traditional twelve.

I am grateful that the Abell Foundation has shed new light on the outcome of jury cases in Baltimore City, as reported in yesterday’s Baltimore Sun. But I take issue with the suggestion that we in Maryland create regional juries. Even if the concept were attainable by overcoming legal hurtles, such juries would smack of the same "court packing" attributable to FDR when he proposed that Congress add a tenth justice to the US Supreme Court. President Roosevelt considered the Supreme Court Justices to be in error when they persistently ruled against him.

We must remember our system of government is composed of federal, state and local governments. In Maryland we have twenty-three counties and Baltimore City. Each county and city has its own local laws and customs. The defendants are entitled to juries who live in the community in which the trial unfolds. Those who say that in some counties juries are more likely to convict than juries in Baltimore City seem to write with a preconceived notion that many of those found not guilty are, in fact, guilty. Each case, however, must be judged on its own merits. Perhaps in the city cases, the prosecution did not have the evidence to persuade or were not as experienced as prosecutors in the other counties.

Although I do not believe that we should create regional juries, we should be ever conscious of enhancing the already refined methods of educating new jurors. We should also take steps to assure their confidence in their safety. And, we should let them know they have our respect for the serious work they do and sacrifice they make to serve the public and our democratic way of life.