| | | TRIALS AND STAGECRAFT | | |
When law can do no right,
Let it be lawful that law bar no wrong:
Law cannot give my child his kingdom here,
For he that holds his kingdom holds the law.
—King John, William Shakespeare
There is no such thing as justice. Justice is not a noun. It is an adjective, a description uttered with satisfaction or dismay by weeping victims’ families, head-shaking cops, stunned defendants, righteous journalists, and pontificating pundits. Judges and lawyers don’t use the word very much. For those involved in the legal system, justice is the grinding process of research, motions, argument, and waiting. Mostly waiting. Waiting for coroner’s reports, for disclosures, for a court date, for a judge’s rulings. It is haunted by the ghosts of prior cases, sometimes determined by what one judge decided a hundred years ago in a court thousands of miles away.
America has four separate justice systems. The first is Capital-J Justice. It exists in history books, law school lectures, and philosophical debates. It lives in our Constitution, our Bill of Rights, and in the tumultuous history of our country. It is an aspirational goal and, most importantly, the working engine of our democracy. The Capital-J Justice system dictates the laws of our land—it is the Big Rule Book by which we all must play. If we break certain rules, we are criminals. If we break other rules, we have to pay money. This system places an important level of compliant fear in us as we live our everyday lives. “I don’t want to go to jail” is supposed to keep us from cheating on our taxes or drinking too much before getting in a car. “I don’t want to be sued” keeps us from making inappropriate comments or gestures to employees, or from selling products that we know are dangerous.
Capital-J Justice was developed by our founders as a reaction to the British monarchy, a response to imperious authority and unchecked power: the power to take someone’s life or property without reason. Capital-J Justice exists in legislation, lobbying, backroom deals, and the oily political passing of laws such as death penalty legislation, three strikes laws, and tort reform measures. This system is debated in town halls, state capitals, mahogany-paneled conference rooms, and voted on in curtained booths from Anchorage to Baton Rouge. Capital-J Justice is used in campaign propaganda, uttered in righteous tones, and painted in bold colors. It is an atonal chorus sung by a choir of nine robes in Washington, DC, when they rule that gun rights are inviolable, that gay people have a right to marry, and that corporate campaign contributions are free speech.
Capital-J Justice does not just derive from our Bill of Rights but has roots growing in a field in Runnymede, England, as far back as 1215. In that year, King John signed the Magna Carta near Windsor Castle, planting the seeds of Western democracy. Ironically, the much-revered Magna Carta was a political ploy by barons to usurp the monarchy of the incompetent King John. The king wanted more money and more men to fight wars in France. The barons did not mind as long as the king was winning the wars, but a string of defeats and his excommunication by Pope Innocent left the king with few friends and few options. The Magna Carta was a legislative attempt by the barons to keep from paying more taxes and to gain more power over the throne. It was an abject failure, and ten weeks later, civil war engulfed England.
Our founders Jefferson, Adams, Madison, and Hamilton understood that any distribution of power, be it democratic or monarchic, involved feudalism and political deal making. However, they established an aspirational and idealized set of principles as a barricade against the inevitable corruption and self-dealing that is inherent in any justice system.
The second justice system is lowercase justice, the machinery by which the process of justice occurs. These are the mines where thousands of lawyers, judges, paralegals, clerks, bailiffs, messengers, copying services, and court reporters toil every day. The creaky, unwieldy, but still-working machinery by which Big Rule Book violations are determined. It is a messy, infuriating process, marked by clenched jaw admonitions of judges, the indignant bellows of righteous barristers, and spoken in the whispered prayers of defendants sitting in their holding cells, waiting for their day in court.
Lowercase justice is rife with pervasive bias and moral ambiguity. It occurs when a defendant confesses his crime to his lawyer and then tells him to plead not guilty. Lowercase justice occurs when a prosecutor promises a cooperating witness a favorable plea deal in exchange for incriminating testimony. Mostly, lowercase justice occurs in dimly lit rooms where lawyers, paralegals, and clerks spend hundreds of hours reviewing books, boxes, and reams of evidence and case law, the voices of soon-to-be ex-wives and ex-husbands calling, “When are you coming to bed?” echoing faintly in their ears. It is a two-hundred-billion-dollar machine in the United States, counting police protection, legal services, and corrections. In California alone, the prison-worker unions are the second most powerful union in the state, behind teachers, making education and punishment two of California’s greatest expenses and values.
The third system is the JUSTICE! system that is featured on 48 Hours, CSI, Dateline, Law & Order, CNN, HLN, and Investigation Discovery. It is a blend of news, entertainment, and commentary streamed into our homes, workplaces, and pockets through television, tablets, smartphones, and personal computers. We watch detectives solve mysteries and catch killers in an hour, lawyers prosecute criminals, news reporters tell us about the shocking testimony in the latest scandalous trials, and experts tell us what it all means. They are all usually good-looking. We can see this “entertainews” in restaurants, hotel lobbies, elevators, and airport departure gates. On one screen we can watch the game of the night on ESPN and then the latest crime or trial story on CNN. Both are sporting events. Both are real. Both seem important. They must be important if they are up there on the screen, being watched by millions of people.
When you sit in the television studio, they powder you to take the shine off your face, fit you with an earpiece, and make you count to ten to get a sound check. Gloria Allred is in the next room, getting in makeup. Alan Dershowitz, Jeffrey Toobin, and the blond, beautiful body-language expert are all talking about the latest case du jour. You hope you have your talking points ready because you only have a two-minute segment, and you better have a pithy eight-second comment to sound intelligent and insightful. Like the courtroom, the questions revolve around the adversarial polemic in the trial you are discussing or the social issues that the media decides are the touchstone topics in the case: race in Zimmerman, parenting in Anthony, mental illness in Holmes. The audience at home wants it because in a connected society, we see a little part of us in every case. As we gaze into that courtroom mirror, we need that aberrant behavior to be explained. And we get instant interpretation through the experts’ editorials on our smartphones, laptops, and televisions.
This information conduit is as old as the printing press and as new as fiber-optic cable streaming 24/7 news, images, and 140-character tweets. Where people were previously content to get their news once a day, sitting down at the breakfast table with a newspaper or watching the 6:30 p.m. news, they now demand information constantly. Two and a half billion worldwide users are voraciously hungry and demand to be fed every day, every hour, and every minute.
The fourth and most important justice system is a work of imagination. It exists in the individual and collective minds of jurors as they work to interpret the evidence in a case and arrive at a verdict. It is a constructed reality, cobbled together by shifting memories of witnesses, attorney arguments, legal instructions, personal experiences, and beliefs of jurors. This type of justice occurs in the minds of postal workers, teachers, middle managers, engineers, and retired plumbers as they listen to evidence and pore over the testimony and evidence they have seen. This type of justice occurs in an Orlando courtroom when jurors react to testimony by Casey Anthony’s father or in a Los Angeles courtroom when jurors listen to detectives in the O. J. Simpson case describe their discovery of evidence and their use of the n-word. This justice happens slowly, cumulatively as jurors gather various pieces of a jigsaw puzzle they will use to ultimately come up with their own picture of “what really happened.” It happens in the minds of judges as they pore over the precedent, reflect on the weighed merits of the case, and make their rulings. The heart of this system is human judgment. This is the real justice system and where we will spend most of the time in this book.
Ultimately, Capital-J Justice and lowercase justice are conceived in policy, statutes, rules, and rationality. JUSTICE! is driven by entertainment, journalism, public interest, and commerce. But the fourth system is a rich world composed of jury and judicial decision making. Indeed, all judgment is fallibly human, wrought in long-held beliefs, emotional reactions, and personal experience. In fact, jurors are instructed in the law that tells them to not abandon their common sense, and to scrutinize witnesses for their demeanor, two instructions that are notably subjective. In capital cases, jurors weigh aggravating versus mitigating circumstances of the crime, including highly emotional victim impact statements and testimony about the abusive background of the defendant, to come up with a highly personal formula to decide on the death penalty for a defendant.
All of these systems coincide and collide with one another, both working with and against each other. Capital-J Justice demands that jurors be fair and impartial, yet lowercase justice employs ridiculously antiquated ways of finding out if and how they can be. The system of advocacy and argument also demands that the lawyers try to use their powers of persuasion to influence a systematic and logical evaluation of evidence and law. The JUSTICE! system seeks to inform the public about a case, while in lowercase justice jurors struggle to separate the evidence they have heard from the witness stand from the media stories they saw before being sworn as jurors.
Additionally, lowercase justice involves the practical reality of continuous negotiation and deal making. In this justice system, a majority of criminal defendants are presumed to be guilty by both prosecutors and defense attorneys. Even if they are not, juries convict criminal defendants in 85–95 percent of trials. These odds make it too great a risk for most defendants to go to trial. The risk of longer prison terms with a criminal conviction prompts many to take a plea deal, even if those defendants believe they are innocent and want their day in court.
In this justice system, criminal defense lawyers and prosecutors rely on their relationships as part of the normal plea bartering process. But the white-hot spotlight of publicity also acts as a magnifying glass, enhancing and exaggerating the personalities of all who fall within its beacon.
In a high-profile case, those involved in the lowercase justice system operate under the same rules as they would normally. And yet the omniscient eye of 24/7 news coverage challenges and contradicts the normal procedural rules and principles of due process. The home jury presumes that the defendant is guilty and must prove his or her own innocence. It is also presumed that they should testify on their own behalf. If they don’t, they have something to hide. In these expectations, the Fifth and Sixth Amendments of the United States Constitution are counterintuitive.
Which of these four systems represents real justice? And who is the real jury? Those that are sworn in court or those of us opening our bags of chips and settling down to hear recitations from doyenne Nancy Grace and the multitude of pundits and experts? Should we have a jury system or just a text vote or Internet poll about guilt or innocence? Where does justice really exist?
THE ATTORNEYS
There are only two things going on in front of a jury. I’m going to tell you a story, and you’re going to believe mine. And he is going to tell you a story, or she’s going to tell you a story, and you’re going to believe hers. Whichever one you choose, whatever it be, the defendant will be guilty or innocent whosever story you decide is the truth. So it’s all a form of performance. It’s all a form of narrative. The idea that it’s somehow a search for the truth is a wonderful idea. It just isn’t true.
—Attributed to Gerry Spence, noted author and attorney who obtained acquittals for Filipino First Lady Imelda Marcos and Randy Weaver in the Ruby Ridge incident
While we think of the Clarence Darrows and Johnnie Cochrans of the world as great oratorical advocates, bending the will of judges and juries with their powerful rhetoric and even more powerful personalities, great attorneys have a series of personal characteristics that go beyond their charisma or linguistic skill.
One of the first characteristics of highly successful attorneys is a voracious competitiveness, a hunger to win, and a will to dominate the case. While we normally associate these traits with loud, pulpit-pounding zeal, I have seen these same characteristics in quiet, methodical, and meticulous attorneys. The will to win is manifested in an excellent advocate’s ability to control the focus of the case from the very beginning, to assert their essential perspective so that the judge and the jury are already looking at the issues in the case from their viewpoint. From pretrial motions through to the verdict, excellent advocates are constantly and subliminally shifting and refocusing the fact finder toward their worldview so that the judge and jury are already seeing the case from their frame of reference.
Part of this comes from an innate ability of great lawyers to know what is important to their audience and the ability to adapt both their case and their message to the expectations and sensibilities of their jury. When you look at the craft behind a Steven Spielberg movie, it is not just his ability to tell a good story; he is also his own best audience. That is, he has the ability to know what an audience needs at any point in his movie to slowly build the dramatic tension and further the arc of the story toward its inevitable conclusion.
Great trial lawyers are great storytellers, knowing how to craft a compelling, consistent, and credible case by developing vivid characters, understandable actions, and believable environments in which their clients live and breathe. These attorneys can organize and simplify complex issues so the jury can easily grasp and embrace the nuances of DNA, agonal breaths, and bullet trajectories.
Great attorneys are great communicators. While competent lawyers present evidence to a jury, excellent advocates have the ability to convey the emotion in the case, eliciting that same emotion in their audience. Through either learned or innate talent, they combine a variety of vocal and nonverbal gestures as well as visual images to accompany the rhetorical design of their message. Words have power, but they are notes on a sheet of music unless you have the instruments to play the piece. Attorney arguments are words in a script, a very real script about very real people. And with all great players, whether they are performing music or a play, the best attorneys know the tempo, tone, and the dynamics of the piece. They know how to bring out the varied emotional colors in the composition. Because whether it is a concert, play, or death penalty case, it is all just notes, words, and evidence until it has meaning. And it is the musician, the actor, or the lawyer who gives it meaning.
Unlike a musician or actor, an attorney doesn’t have to just tell a good story, they have to tell the best story. They know their audience, the jury, is also listening to another story and will vote on which story wins. As a result, being a great lawyer/performer also means being a great strategist and tactician, anticipating the other side’s moves and adapting their case to actually turn the opposing side’s theories and themes into support for their own position. So they look at the other side’s case and reframe their arguments to essentially show the jury, “Look how their evidence demonstrates our case.” The attorneys with the greatest will to win don’t want a fifty-fifty proposition—an equal contest of opposing parties. They want only one true case—their case—to be before the jury.
THE JUDGES
The judiciary has done a stellar job of convincing the general public and the legal profession that they are essentially rational robots, databases of legal knowledge that follow mathematical algorithms to decide issues based on the rules of evidence and law. This misconception has been compounded by Chief Justice John Roberts’s simplified and wrongheaded quote in his confirmation hearing to the Supreme Court, “My job is to call balls and strikes and not to pitch or bat.” It has been further compounded by the heated rhetoric about “activist judges” and “originalist intent” as if a judge reads only the Dead Sea Scrolls or deciphers sage Talmudic wisdom passed down by others instead of actually interpreting and applying the law.
The static interpretations of judging do not take into account that judges are people that have personal experiences, beliefs, and biases like the rest of us. Everyone has biases. Judges deny like hell that they do, but that is what people who don’t understand their biases do. Honest (and insightful) people know they are biased. To be human is to be biased. Biases are preferences and beliefs driven by life experiences, personality constructs, and personal values. Judges have all of these and call more than “balls and strikes.” They decide what kind of pitches are thrown, who bats, how many fielders play, where the bases and foul lines are, and how many innings the game will last.
In fact, many attorneys decide whether they forfeit the game based on these “balls and strikes” calls that judges make. In many trials, the case is decided in rulings that a judge makes about which evidence he or she will or will not allow. In Phillip Spector’s trial, Judge Larry Paul Fidler’s decision to allow five women to testify about his prior gunplay virtually assured an eventual conviction. Judge Lance Ito’s allowing of impeachment testimony about Detective Mark Fuhrman’s past racial remarks certainly allowed the O. J. Simpson team to persuasively argue that Fuhrman had motivation to plant evidence to incriminate Simpson.
While we spend a lot of time discussing how evidence will affect the ultimate verdict in the case, one factor alone is the most determinative of case outcome: the judge. The ability of the judge to not only include or exclude evidence makes them the writer, producer, and director of the play. Some judges just let all the evidence in, and the trial becomes an epic saga. Some judges want a minimalist drama with few characters and limited action. How they cut the material profoundly shapes how the audience, in this case the jury, views the case.
Richard Posner, a Seventh Circuit Appellate judge and prominent legal theorist, writes in his book, How Judges Think, that there are eight ways in which judges make decisions: attitudinal, strategic, psychological, economic, organizational, pragmatic, phenomenological, and legalist. Simplified, this theory says that judges are affected by their political beliefs, are outcome oriented, try to cope with legal uncertainty in big cases, are self-interested, try to operate within organizational rules, are aware of the impact of their decisions, and yes, also conform their decisions to the law. It is no accident that legal conformity is the final and probably least significant theory of jurist decision making. Like the proverbial iceberg, a judge’s (not unlike a jury’s) decision making is primarily “below the water”—mostly in the subconscious. The final decision on a ruling or a verdict is the justification of the law and evidence in the case, a rationalization for the accumulation of personal experiences, beliefs, values, emotions, preconceptions, and even misconceptions that lie below the surface.
One of the fundamental fallacies in the justice system is that justice is rational. The truth is that the decisions of juries and judges involve human judgment and thus are more than data-driven variables that are systematically entered into a great legal calculus.
THE MEDIA
June 26, 1919, saw the birth of a new kind of journalism in New York City in the form of the Daily News. Half the size of other newspapers at the time, it was designed to have a huge, eye-catching headline and a large picture on the front page. It featured short, sensationalized news stories with photos, illustrations, and human-interest stories about the trials and tribulations of both the famous and the obscure common man. The format and the editorial style were intended to titillate, frighten, and mislead the reader.
By 1924, the Daily News had the biggest circulation of any paper in the country.
Of course, this caught the attention of every publisher in the country, including William Randolph Hearst, and knockoff tabloids appeared in every major city. Because of this tremendous success, traditional newspapers started to copy the style, format, and even the tone of these papers. The seductive siren song of sensationalism with its promise of profit created a journalistic tension between education and stimulation that is still felt today.
While the public often feels that high-profile trials mirror the way all trials are conducted in this country, nothing could be further from the truth. Tabloid trials function in their own world and under their own rules. Whether it is the Scopes Monkey trial in 1925, where a teacher was tried for teaching evolution in Tennessee, or the espionage trial of Julius and Ethel Rosenberg in 1951, these trials rewrite history and define a cultural moment in time. In fact, the media actually changes the entire nature of how a case is brought and tried; their very presence makes them another party: part prosecutor, part investigator, always a judge, and occasionally a defender. Their omnipresence in these cases creates a combative collision between the First and the Sixth Amendments: the ultimate cage match of freedom of the press and the rights of a defendant to an impartial jury, free from bias.
These cases often salaciously succeed in a way dramatic movies and television cannot: they are real. Real bloodlust, real greed, and real consequences. They create both morality and cautionary tales for the viewing public. Through the jury, these trials fulfill the promise of a truly participatory democracy—a promise that has faded with our cynicism about the impact of our individual vote on our elected officials. That promise is fulfilled when we, at home, view the evidence, judge the credibility of the witnesses, and “vote” to convict or acquit. Through these trials, we see the actual mechanics of the Bill of Rights along with its clanging inconsistencies, inefficiencies, and crazy contrarian justice. It is the constitutional sausage factory.
High-profile trials are the perfect combination of Super Bowl, presidential election campaign, and prime-time police procedural. It is justice as a spectator sport, a civilized Coliseum, with both the public and the jury turning their collective thumbs-up or -down at the plight of the combatants. The prosecution and defense battle as gladiators, hoping to win the collective approval of twelve thumbs.
The camera and the Internet create a justice system on steroids. Facts fuel hyperbolic rage as the media channels the collective emotions of victims, the agenda of political interests, and the ambitions of everyone, vying for the brass ring that news coverage offers: more visibility, more business, more money, fame, and notoriety.
Television and the Internet make the world our community. The bombing of the Boston Marathon instantly becomes our bombing, as the coverage of the manhunt for the bombers seems to be happening in our neighborhood. That’s why a televised trial puts everyone in the jury seat. Movies and plays are communal stories, shared experiences because we sit and experience the story together. Watching on television or the Internet is a private theater. We watch alone so the stories become our personal stories. They become the looking glass through which we see and judge ourselves. It is why there are at least thirteen judge shows on television at present count, and Judge Judy makes almost fifty million a year.
HLN #1 Among Ad-Supported Cable as Arias Pleads for Her Life
HLN continues to be the ratings leader and complete source for coverage of the Jodi Arias Trial. On Tuesday May 21, HLN ranked No.1 among ad-supported cable networks from 1:56p to 2:15p (ET) as Jodi Arias took the stand to plead for her life in front of the jury that found her guilty of Travis Alexander’s murder. During that time period, HLN out-delivered the competition among both total viewers (2,540,000) and 25–54 demo viewers (691,000).
—Actual press release from HLN on May 24, 2013 (emphasis added)
Steven Brill, who co-founded Court TV, once wrote, “We see so many ‘trials of the century’ and the next one could be tomorrow because you have this [mass media] machine that needs it.” Media competition, content need, and ratings wars dictate that news organizations pick an angle, shape coverage to appeal to their audience, or regurgitate oft-cited misconceptions in order to feed their audience. The decline of the daytime soap opera is accompanied by the rise of the televised trial. In this amplified environment, the outrage is manufactured and programmed into the shows. And part of it is there to kill time. Because televised trials, like sporting events, only fill a portion of the program time with actual testimony, hearings, and arguments, so the cable stations need commentary to fill the extra programming time.
Frank Magid made most of this possible. He was a social psychologist that became the “news doctor” and transformed news broadcasts from the serious intonations of Edward R. Murrow and Walter Cronkite into the “Action News” format we see today. From his research, he told networks and local affiliates that their audiences wanted a formula of national and local news, liberally sprinkled with crime and human-interest stories. The phrase “If it bleeds, it leads” was generated from his research in the 1970s. Magid also helped to develop the Good Morning America news format interspersed with celebrity and lifestyle news.
Additionally, deregulation of television in the 1970s and 1980s also led to greater potential for advertising dollars as entertainment companies consolidated, while Nielsen told advertisers where to put their ad dollars by utilizing a system it developed in the 1950s to measure the “ratings” of viewers toward television programming. It took the O. J. Simpson case to realize the potential in a televised trial. For the networks, local stations, and cable outlets, it was a recipe for success in content-hungry media markets: a gripping drama played out every day for months. And the production costs were minimal, just the cost of the cameras, the cables, and the staff to carry the drama. No writers, no directors, no actors, and no unions.
Over the years, the networks and cable stations have refined their court coverage. Today, there is a cottage television industry in suspecting, condemning, and coveting young women. Prime time is populated with shows about manipulative, vulnerable, and tragic pretty girls. They are the subjects that a target demographic of channels such as Lifetime, the CW, and ABC Family want to see. Now, with media coverage of trials, cable and network news have tapped into the zeitgeist and contrast between innocence, sexuality, and murder. Casey Anthony, Amanda Knox, and Jodi Arias personify our prurient fascination and puritan condemnation of wanton sexuality and recklessness.
Tabloid trials become the looking glass into our own lives. Anthony activates our most primal fears about the worst thing that can happen to our children and our terrible ambivalence about our own families. Arias makes us look at the horrific rage that can lie underneath the love, sex, and dependency in a relationship. Sensationalism is rooted in sensation. And while it has a pejorative connotation by today’s journalistic standards, sensationalism allows us to experience shocking, aberrant, and even horrifying conduct in a safe manner in order for our brains to try to make sense of that behavior. Sensational labels allow us to explain strange and unsettling human actions that would otherwise be unthinkable.
These scandalous cases become important because the press says they are important. Because the media places so much attention on a case, jurors pay more attention to these issues. And at that moment when the decision is made in an executive suite of a network or cable news station to cover a trial, the case becomes no longer about the evidence but about larger social issues. To make the coverage appeal to the widest possible audience, the producers, the editors, and the pundits discuss the wider issues of race, religion, or domestic violence, depending on the committed crime. We look to these commentators to give a voice to our sadness, our outrage, and our deepest beliefs about these issues. Haynes Johnson, in his book The Best of Times, states that television “democratizes experience” and televised trials democratize our justice system, giving every viewer a seat in the jury box.
However, the presence of the media changes the very nature of legal evidence. Daniel Boorstein speaks about pseudo-events in his book The Image. The book, published in 1962, describes how public life had become a series of staged events from political campaigns to quaint Hawaiian luau performances that “represent” Hawaiian culture. The courtroom is already composed of pseudo-events or staged recreations of events. First, there is the actual crime, which is one version of reality. Then there is the police investigation, which produces another reality through police and expert reports as well as fallible eyewitness testimony with their erratic memory of events. Then there is the trial, which produces yet two more separate realities through the selection and presentation of evidence by the prosecution and defense. The media adds another reality with their interpretation of the evidence and the personalities of the players in the case.
What is sacrificed in this fast, sensationalized, and competitive media market is the measured, thorough, and sometimes slow evaluation of an actual trial. There is an innate pressure in television and Internet journalism to come to quick conclusions in an effort to accommodate the short-segment formats of programming and to scoop competing journalists. Also sacrificed is waiting and withholding judgment until the evidence is all in, replaced with instant opinion and rank speculation. Also sacrificed is individual thought, replaced with pressure to conform to the public opinion shaped by talking heads and water cooler consensus. And one of the worst results of the modern tabloid trial is the presumption of guilt that is carried by the defendant in the case.
Television favors the prosecution because television favors the familiar. We like to think we live in a just world where good things happen to good people and bad things happen to bad people. When bad things happen to good people, it must be because a bad person did it. We trust that prosecutors will always get the bad guy, so if a prosecutor has taken someone to trial, it must be because they know he’s guilty. But acquittals are messy because they convey uncertainty. We don’t like realizing that the prosecution might have, at best, made a mistake or, at worst, knowingly prosecuted an innocent man or woman. We like even less the idea that the defendant may be guilty but the prosecution just failed to prove it. The whole premise of a criminal defense is to get jurors to embrace the unknown and the uncertain. Prosecutors live in a certain world, and they want jurors to live there as well. They want there to be a reason for everything, a natural order. Most people don’t invest weeks watching a trial in order to be left with doubt about the guilt of the defendant. Viewers, for the most part, watch with the expectation of conviction.
Additionally, jurors are also conditioned by broadcast, investigative, and Internet models of news information more than the judicial model of legal information. Here are a few statistics about our media consumption and digestion:
The average adult spends:
According to Nielsen, the average American over the age of two watches thirty-four hours of television a week. If you multiply this by the population, America watches well over 530 billion hours of TV a year. TV-Free America, an admittedly partisan group, also has compiled statistics showing that 99 percent of all U.S. households have at least one television and two-thirds have three or more sets. Seventy percent of day-care centers use television during a given day. And while American children spend an average of 900 hours per year in school, they spend 1,500 hours per year watching television.
Informing expectations of criminal cases, an average child sees 8,000 murders on TV by the time they finish elementary school and 200,000 killings by the time they turn eighteen. Over 50 percent of all news broadcasts are devoted to stories about crime, disaster, and war. And while almost 60 percent of Americans can name the Three Stooges, only 17 percent can name three justices on the Supreme Court.
Our vast amount of media consumption not only informs our perceptions and expectations about court cases, but also fundamentally shapes the way we process new information. Yet the courts routinely expect the average citizen to immediately switch to the legal model when they are sworn as jurors. Additionally, people who are watching or listening at home have a different role than those sitting in the jury box in the courtroom. At home we have the luxury of taking breaks and joining the trial when it suits our schedule or mood. We can skip boring parts and opt for the more exciting testimony that comes when a defendant or key witness testifies. Our viewing can become a social activity where we watch with others or share our observations with fellow employees at work the next day.
At home, we don’t have any rules that govern the way we listen to a case. We can investigate, form immediate opinions, and discuss the case with whomever we wish. We listen to the experts speculate, give opinions, and add information about the parties that would certainly not be allowed in court. More importantly, certain legal coverage invites guests representing the prosecution and defense perspectives to debate the “merits of the evidence.” This point/counterpoint discussion often prompts the audience to come to conclusions about the evidence prior to deliberations. Since the viewer at home is not charged as a juror in the case, they have no instruction on burden of proof, reasonable doubt, or circumstantial evidence. The media plays and replays selected footage of high-profile trials, whether it be the slow march of the defendant into the courtroom, pictures of the crime scene, or screen shots from the defendant’s social media accounts. “Experts” opine in short sound bites on the guilt or innocence of the defendant. A key witness’s testimony will be played over and over and over again. Additionally, much of the early news coverage of a case focuses on information that would be ruled inadmissible in a trial, such as character testimonials by a defendant’s co-workers, friends, or ex-lovers. This media barrage creates an indelible impression on prospective jurors, and these impressions are carried into the courtroom.
Any good editor and producer knows that the viewer can click on another website or change the channel at any time. As soon as they get bored or hear something they don’t like, they’re gone. Therefore, news sites and stations use an “inverted pyramid” model when putting together their stories. In this news model, someone reading an article in a newspaper or on the Internet reads a headline that summarizes the event in a phrase. There is then an explanatory subhead, which discusses the event in a sentence. The first few paragraphs in the story synopsize the entire issue, focusing on what actually happened at the news event. Then the article goes back into greater detail on the background, history, or additional information, which gives the reader context and a more detailed picture of all of the players and acts that inform the story. Internet journalism also provides a lateral information flow, as readers are able to click on links of related stories or events to the news event being reported. Contrast these models with the repetitious, detailed, and contradictory testimony in a legal case, where jurors are given a vast amount of information, often without a headline or summary to give that evidence context.
In a news story, the reader, viewer, or listener sees the picture of the jigsaw puzzle before it gets put together piece by piece. In a trial, jurors do not know what the picture is supposed to look like—they just get a lot of pieces from both sides and have to put together a picture themselves.
Additionally, while TV is about watching, the Internet is about participating. While we shout with ineffectual rage at our televisions, we can be heard through the marvel of fiber, our comments posted for the world to see. Social media also affects how crimes are now investigated, with cell phone pictures, texts, and tweets of crime suspects circulated immediately after they are first identified. Over its twenty-five-year history, the show America’s Most Wanted claims to have netted more than 1,200 suspected criminals. A willing crime-solving audience can participate in law enforcement investigations, all from the comfort of their living rooms. Jurors also carry an expectation of participation when they are seated for a case.
In order to describe the horror of some violent felonies, district attorneys and pundits use the adjective “evil” to characterize the defendant on trial. The term “evil” names and externalizes our fears and makes the unknown more understandable. It is the unknown that scares us in horror movies, but also touches a primal part of us. We blithely label Arizona convicted murderer Jodi Arias “evil” but at some level recognize the betrayal and the rage of rejection she may have experienced with her boyfriend Travis Alexander. We are fascinated and outraged at Casey Anthony because we feel inherently protective of our own children, have mixed feelings about the relationship between parents and children living at home, and look over our shoulder at the dark specter of abuse and incest. In identifying these ancient emotional themes in our televised trials, O. J. Simpson becomes a modern-day Othello for us, and Anthony becomes a Floridian Medea.
Russell Webster and Donald Saucier are two psychologists who have studied our beliefs in pure good and pure evil. In their research, those who had a belief in pure evil also voiced stronger support for the death penalty, preemptive military strikes, and support for torture as an interrogation tool. Those people also showed greater racial prejudice, opposed social and pro-racial programs such as affirmative action, and did not believe in criminal rehabilitation. Those with a strong belief in pure evil, not surprisingly, believe in a dangerous, hostile, and despicable world. Researchers Jessica M. Salerno and Liana C. Peter-Hagene have also published studies on a phenomenon that prosecutors are intuitively aware of in presenting their cases. These studies have shown that when the emotions of both anger and disgust are elicited in jurors, it increases their moral outrage, which in turn increases their confidence in a conviction verdict. For prosecutors, conviction confidence is the protective shield against a defense attorney’s most utilized weapon: reasonable doubt.
These high-profile cases, with their narratives of good and evil set in dens and bedrooms just like ours, are carried to us by the flickering LCD of computer and television screens. They are a study in contrasts—these people look to be perfectly normal, living idyllic lives. But then someone dies and a darker David Lynch–like reality is exposed. These cases are deeply unsettling because they make us confront our deepest fears: that one day our idyllic lives can be similarly upended. If it could happen to them, it could happen to us.
THE AMERICAN JURY
I reject your reality and substitute my own.
—Mythbusters
Juries are the best judges in the system. They are not elected, they don’t have the high-powered microscope of appellate review or the stern, disapproving-schoolmarm precedent looking over their shoulder, and they have no interest in the outcome of the case. Which is precisely the genius of our country’s founders. They knew from their experiences with the monarchy that anyone deeply involved in a governing system was susceptible to influence.
Juries were created by those who believed in the wisdom of entrusting citizens with the power of judgment. It is a core value for both liberals and conservatives alike—a mutual distrust of unchecked, unfettered power. Juries are a key component of a representative government because they have direct involvement in the democratic process. They become both the voice of the community and the government, they endure gut-wrenching testimony and graphic pictures, they struggle to comprehend convoluted scientific and legal principles, and, for the princely sum of fifteen dollars a day, they fulfill the solemn duty of judging their fellow citizens.
Yet many mistrust juries and don’t understand them. You often see this when a jury returns an unpopular verdict in an O. J. Simpson, a Casey Anthony, or a George Zimmerman case. Many attorneys and judges also dismiss juries as irrational and unpredictable. While most in the legal system pride themselves on the systematic way that they gather evidence and analyze the law in a case, they often think about juries in the most rudimentary and simplistic manner. This is how most judges and lawyers think of juries:
Many of these attitudes toward jurors enable the courts to simplify a complex process of seating a jury and conducting a trial. However, common sense and a panoply of social psychology tell us that this is simply not how juries work. Here’s what we know about how jurors go about accomplishing the complicated task of listening to a case, processing the information, deliberating with fellow jurors, and coming to a verdict.
Many cases involve two conflicting versions of facts and dense, complicated testimony about the evidence. Jurors face a heavy “cognitive load”—they hear incredible amounts of information on unfamiliar subjects and have very little time to process it. For example, in cases involving Wall Street brokers accused of securities fraud, we expect jurors to learn and understand in a few short weeks what it took an expert witness in that same trial four years in a PhD program at a business school to learn. Additionally, when jurors are confused, are confronted with gruesome images in a violent crime case, or experience conflict with other jurors, they often revert to what they know best: their years of personal habit and hard wiring. When jurors listen to the emotional testimony about the abuse of a child or the murder of a spouse, it is a faster neural path to their own memory bank than the winding intellectual road of evidence comparison.
Jurors use their own everyday experience and habits constantly as reference material during a trial. It forms the basis of their “common sense,” which they are instructed by the court to use. It allows them to judge the validity and credibility of each side’s case. These experiences help them to establish norms of how they expect the parties in the case to behave and to understand complex evidentiary and legal issues in a case. Rather than wade through the acronyms and formulas of a forensic accounting expert in a fraud case, it is easier for a juror to refer to what happened to “Uncle Dave when he was audited by the IRS.”
When we do things or are told things over and over and over again, this behavioral repetition creates neural pathways in our brains. Hence the expression “creatures of habit.” A single traumatic event like the untimely death of a family member can also hard-wire the brain, with the accompanying emotional intensity cementing this wiring. No amount of rational rigor or admonishment can entirely overcome years of habituated and deeply embedded wiring. This applies to jurors, attorneys, and judges. Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg are as much a product of their life experiences and resulting ideologies as a postal worker hearing a DUI case in downtown Detroit.
These habits of the mind and our explanations for the way the world works serve a neurological function—they create emotional equilibrium to reduce imbalance and uncertainty in our lives. Because of how we were raised and what we have experienced, we constantly seek to reconfirm this worldview. When something does not fit into our mold, we experience instability. This creates a physical sensation that causes an emotional reaction. In Star Wars terms, we experience “a disturbance in the force.” Since we do not like disturbance and imbalance, we translate these sensations and emotions into linguistic labels we call feelings. And these feelings help us to create balance, because we can now explain these sensations we are experiencing. In fact, our experiences, our habits, and our emotions shape how we see, hear, think, and act. They define who we are in relation to the outside world. Without these explanations, we are wandering through the world without a map or a compass, in a foreign country where we don’t know the roads, can’t read the signs, and don’t speak the language.
Jurors in criminal cases find themselves in bleak territory: drug deals gone bad, domestic violence, infanticide, and sexual assault. Real-life versions of Breaking Bad. In order to make sense of this disturbing foreign landscape, jurors’ brains play a series of cognitive tricks to make the surroundings look familiar.
One of the most common and treacherous tricks is “confirmation bias.” As we are creatures of habit, we look to confirm what we already believe. In a 2008 study, Yale political scientist John Bullock showed Yale University research subjects an ad published during Justice Roberts’s confirmation hearing, which accused Roberts of “supporting violent fringe groups and a convicted clinic bomber.” Among Democrats who saw the ad, the 56 percent who previously disliked Roberts climbed to 80 percent. However, when these same people heard that the ad’s claims were false, Roberts’s disapproval rating dropped to only 72 percent. This same study showed that refutation of false information sometimes even strengthened the misinformation. Only 34 percent of conservatives thought Iraq had hidden or destroyed its weapons before the U.S. invasion, but 64 percent who heard the Bush administration’s claim and refutation thought that Iraq really did have the weapons. Confirmation bias demonstrates that we see what we want to see.
In order to make sense of their new and unfamiliar judicial role, jurors also look for familiar rules, standards, or “norms” for how police or suspects are supposed to act in order to judge whether their actions fall within these expected boundaries, even if these rules come from Law & Order, John Grisham, or Judge Judy.
Jurors also tend to think that the most important evidence in a case is what the prosecutors and defense attorneys spend the greatest amount of time disputing. In a trial, time + emphasis = importance. Since “availability bias” says we tend to give weight to that which we remember, the more time and emphasis that are placed on certain evidence in the trial tends to make the jury believe that it must be important. In the next chapter, I will discuss how the prosecutors in the O. J. Simpson trial actually created reasonable doubt in their own case by turning a two-week routine double-homicide case into a nine-month battle over evidence credibility.
Of course, jurors also apply twenty-twenty hindsight to what the defendant and law enforcement should or could have done differently. The George Zimmerman case involved a neighborhood watch captain who shot and killed a young man after a confrontation on a rainy night in a condo complex in Sanford, Florida. Jurors in that case were asked by both sides to use “hindsight bias” to guess what would have happened if Zimmerman had just remained in his car as instructed by the 911 operator or if Trayvon Martin had reacted differently when confronted by Zimmerman.
These are tricks of the mind that we all use as we live our everyday lives, whether we know it or not. These biases become more prominent in jurors as they try to navigate the complex and volatile waters of a criminal case. And this is the real art of jury selection—to engage jurors in an exploration of their life circumstances and attitudes in order to discover not if, but how, they will use their experiences and beliefs to interpret the evidence and law in the case. Understanding jurors is to step into their shoes and look at the world through their eyes. Overburdened attorneys with too many cases, too many motions, and looming opening statements find it easier to think of jurors as demographic categories: “Do I want men or women? Old or young? Educated or uneducated? Black or white?” But attorneys who are excellent at selecting juries have an inherent curiosity about what makes people tick. They engage jurors in a true conversation about who they are and how they see the world. This helps the attorney not only look at whether the juror is appropriate for the case, but how that attorney will speak to that juror, in opening statements, testimony, and closing arguments.
The difficulty in jury selection is that very few people will admit to being biased in a legal sense, unless they are actively trying to avoid serving on a jury. Similarly, asking a juror if they can “set aside their bias,” as the court often asks, also achieves little. And the legal system actually has a poor definition of bias, thinking of it as a conscious process that renders a juror unable to be fair. In fact, bias tends to be more subconscious, and is simply a tendency or inclination to automatically make assumptions about people or issues based on preconditioned attitudes or experience. This can cause jurors to inherently lean a certain way or favor a certain side. Bias is not always negative or positive; it’s simply a natural preference, regardless of strength, for one option over another.
No one wants to admit to having biases, especially in a room full of strangers, under oath, with a black-robed authority glaring disapprovingly at them. Even an outspoken racist will hide or shade his or her true opinions because of this social pressure to appear fair. But the reason impartiality is so important is that it is hard mental work for a juror to overcome their preconceived attitudes, making it more difficult for them to clearly listen to evidence. Moreover, instructions to suppress thoughts, for example, a judge’s instructions to ignore prejudicial testimony or “put attitudes aside,” can, ironically, make those thoughts hyperaccessible because of a rebound effect, increasing the application of jurors’ stereotypes and prejudices.
While much of the social psychology literature on subconscious or implicit biases has focused on racial stereotyping, there is research suggesting that we hold all sorts of biases toward gender, sexual orientation, religion, age, disabilities, and body types, most of which we are not even aware exist. People can also be biased against professions (doctors, priests, lawyers), against industries (oil, banking, tobacco), and against entire communities (New Yorkers, Texans, Hollywood).
These biases can be triggered in a number of surprising ways, and we’re usually not even aware we hold them. Studies have shown that a white male job applicant with a felony conviction is more likely to be brought back for a second job interview than a black male high school graduate. I have seen New York attorneys disparaged by Texas jurors and Mississippi attorneys ridiculed by Boston juries, based almost exclusively on their speech patterns. Implicit bias happens when you are introduced to a couple at a party, one of whom is named Dr. Hamilton, and you automatically go to shake the man’s hand. We stereotype that which is not familiar in order to make it familiar. Most bias is not cruel, vindictive, or even intentional. It is just how we are raised. And it becomes our truth.
In fact, our truth and forensic truth always compete in a criminal case. What I think versus what I believe. What I believe versus what I want to believe. This is the conflict of conscience—the balance of biases and evidence that jurors, judges, and even zealous advocates struggle to reconcile.
THE POWER OF COMMUNITY
But just as individuals can hold biases against communities, communities themselves have their own biases, beliefs, collective values, and rules of social etiquette. Juries are composed of individuals that belong to the same community, so it is important to understand that community in order to understand how they will work together as a group.
I conducted jury research in New Orleans and Mississippi after Hurricane Katrina to study how people in those venues felt about insurance companies and claims by homeowners after the hurricane. Our mock jurors discussed their mixed feelings about the aftermath of the storm that devastated that region. Many talked about their anger toward insurers and the federal government. Others spoke about their anger toward local officials in handling the disaster. Some spoke of losing friends, family, and neighborhoods with great sadness. Others spoke with scorn about watching their neighbors fraudulently causing damage to their own homes to get insurance payments. Our jurors were torn between the desire to help local homeowners, no matter the merits of the claims, and the fear that large verdicts would drive the already scarce insurers out of the area.
All of the cases I speak about in this book are also about the communities where these trials occur: Los Angeles, Houston, Orlando, and Little Rock.
A jury also becomes its own community in a trial, a group of individuals that develops its own persona and has its own decision-making dynamic. When I help to select a jury, I look to the group dynamic to project the deliberation process I most want to occur in the jury room. In looking at this dynamic, I consider the number of strongly opinionated jurors on the panel, the personality, temperament, or emotional state of the jurors in the group, and the combustibility factor: the likelihood of personality clashes between jurors. In a criminal case, this helps me to figure out whether I want a consensus jury, which is necessary for a prosecution’s case or a defendant who is rolling the dice on an acquittal, or whether I am looking for a conflict jury, which is necessary for a criminal defendant who is dealing with difficult facts or a pervasively biased pool.
When Juror B37 in the George Zimmerman–Trayvon Martin case refers to the peaceful marches in Sanford, Florida, as “riots” in jury selection, this tells us she is already keyed into safety and protection issues that would make her side with Zimmerman. When another juror in that case says that she heard that the case was about “an altercation and then the gun went off,” it tells you that she is already thinking that it was an accident instead of a murder. We see what we want to see. We see what we have experienced.
I try to listen to these hidden conversations that jurors have with themselves, conversations hidden even from themselves. This hushed dialogue occurs deep in the juror’s brain where they utter their secret rules about the way the world works. If the juror has little awareness of their own biases and beliefs, they will always follow their own rules. If they have some awareness, they can reconcile the tension between their own hidden rules and the court’s rules in deciding a case. Judges, attorneys, and witnesses also have their hidden rules. All of these rules are whispered in the back of their brains but revealed in a glance, a pause, a shift in posture, a grimace, a pupillary dilation, and a small held breath. The skill of a trial consultant is to understand and use all of these hidden rules to move the case toward the best verdict for the client.
TRIAL TRUTHS AND MYTHS
Under our Constitution, we are not guaranteed a fair trial or a fair jury. The Sixth Amendment says, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence [sic].” That’s it. You get a quick, public trial by an impartial jury. You get to see the witnesses against you, and you get to have witnesses for you. You get to have a lawyer. Nothing about fairness. There is plenty of legal commentary about how these due process provisions provide us with a fair trial. But we have no explicitly stated constitutional right to a fair trial. And we shouldn’t. Because fairness is both relative and subjective. And what is fair for one party might be unfair for another.
I have been a trial consultant for almost thirty years. The reason I have been employed for so long is that the procedural strictures and aspirational concepts of our justice system clash mightily with what we know about the psychology of human decision making. In Jonathan Haidt’s book The Righteous Mind, he describes the “rationalist’s delusion”: that we incorrectly believe objective analysis of facts is the motor for our judgment. This misguided hallucination that informed reason dictates our life decisions is prevalent in our society. We think that stock market fluctuations are guided by a careful analysis of the trends of company capitation, market values, and employment figures rather than fears of a Fed interest rate hike. We think we buy houses and cars based on careful comparisons of features and price instead of the way they look and feel. But nowhere is this rational delusion more codified than in the justice system.
The justice system plays a series of clever cognitive gambits with jurors to confound their work in trials. First, they are instructed that they should only decide the case based on the evidence and the law but are then told to use their common sense. They are not told what to do if their common sense collides with the law and evidence. For example, in working on the Spector case, when we conducted an analysis of the 192 questionnaires that we read in that case, we discovered that approximately 40 percent of our jurors believed that a criminal defendant is obligated to prove his or her own innocence. That was common sense for these jurors. Of course, the judge in that case instructed jurors that it was actually the state’s burden to prove the guilt of the defendant. Jurors are not told how they should resolve this conflict between what they believe and what they are instructed to do, only that they should.
Jurors are also instructed that they should not be deciding a case based on passion or prejudice. However, in a death penalty case, jurors listen to victim impact statements, which discuss the wrenching effect that the victim’s death has had on the surviving friends and family. Jurors also hear the presentation of evidence about the cruel and depraved manner in which the killings were carried out as an “aggravating factor” in the case. All of this testimony is truly geared to incite the emotions or passions of the jury, even if carries the label of statutory evidence.
In court, jurors are instructed that they may not speculate, but they do it all the time. Especially when there are critical holes in their narrative of the case where a judge has ruled that they can’t hear evidence. In a situation like that, jurors feel they have to guess or the evidence won’t make sense to them. A classic example of this is where jurors speculate about gang affiliation when they see tattoos on a defendant. To complicate matters, the courts actually invite speculation when they tell jurors to judge a witness’s credibility based on their demeanor on the stand. Speculation is not an error; it is a natural consequence of missing information. When uncertainty exists, a juror’s brain fills in the missing pieces until it makes sense to them.
When a witness says something that the judge rules is inadmissible, the jury is told to disregard these statements. Not surprisingly, they don’t. Jurors are also told that they are only to use testimony from the witness stand. However, in their search to discover the true motivations of defendants, witnesses, and attorneys, jurors observe them in hallways, bathrooms, elevators, cafeterias, and parking garages to pick up on small nonverbal cues in order to match their character with the persona presented in court.
Even the concept of “reasonable doubt” is notably subjective. In our jury research and in post-trial interviews, we constantly hear jurors talk about “beyond a shadow of a doubt” or “90 percent certainty,” which is a higher standard. We also hear jurors say that the prosecution’s case was slightly more convincing than the defense’s case, which is a lower evidentiary standard found in civil cases. To demonstrate juror confusion over legal standards, in one national poll we conducted involving almost three thousand respondents, we asked respondents to define the civil lawsuit standard of “preponderance of the evidence.” More than half defined it as “beyond a reasonable doubt,” the criminal standard, and only 28 percent defined it correctly.
Jurors don’t measure evidence based on a doubt yardstick during the trial. Instead, a more natural gauge for them is what happened, what makes sense, and what they believe. Reasonable doubt becomes the final justification for all of these other instincts.
There is also a presumptive validity to eyewitness testimony, despite the fact that it has been shown in numerous studies over the years to be quite unreliable. Forensic evidence is also presumed to have a great deal of scientific strength, although the National Academy of Sciences in 2009 found glaring inadequacies in the way that this evidence is examined and evaluated by coroners’ and medical examiners’ offices across the country.
Fingerprints and DNA, hair and fiber, blood spatter, gunshot residue, emails, and rape kits all help the jury figure out who was where and what happened. All of it goes into the great circumstantial evidence gumbo pot, seasoned with judicial rulings, witness personalities, and attorney style. Keep it on a low simmer on the stove for days, weeks, and months and see how it turns out.
Although we think of evidence as the cataloged exhibits and transcripts of testimony, evidence really exists only in the minds of jurors. What matters in the final verdict is the interpretation of that evidence by a judge or jury and how that interpretation matches or fails to match their arguments about what happened in the case.
Aside from these contortions of comprehension, we also ask our juries to perform almost impossible tasks as if they were part of everyone’s everyday practices.
In cases where people’s lives hang in the balance, we assume jurors will be able to perform these complex tasks as if we were asking them to boil water for spaghetti or run a load of laundry.
CRIMINAL CASES
There is a curious momentum that is built into a criminal case. A crime is committed or thought to have been committed. There is pressure to solve that crime. A suspect is identified and an arrest is made. Because of the volume of other crimes that need to be investigated, and because a majority of arrests correctly identify the suspect, there is a strong incentive to make sure that the original arrest sticks. Therefore, evidence gathering revolves around proving a conclusion that has already been made. No doubt, suspects are freed when evidence does not pan out or leads move the investigation in a different direction. However, in multiple-defendant cases, the smart suspects are the ones that plead early in exchange for pointing the finger at a fellow defendant. Many times, the suspects that end up holding the short end of the stick in these situations are the ones with a lower mental capacity to understand that the system has rolled them. And even though they may be the least culpable of the crime, they are the ones that are charged with the most serious offenses.
This is the hard-knocks reality for defense attorneys in today’s criminal justice system. Criminal defense lawyers deal with people’s messy, complicated, and sometimes bloody lives. Accidents happen. People lose control. Bad things happen. In more than 90 percent of criminal cases, the defendant pleads out to something. Most of them are guilty and they know it. But many are innocent or provisionally innocent and just do not want to take the risk of going to trial. So they look to negotiate a plea deal.
But the deals have gotten worse over the years. Politicians have taken advantage of rampant voter fear and sensationalized cases in order to pass draconian legislation. Mandatory sentences have meant that judges have less leeway over sentencing a defendant if they are convicted. Three strikes laws have meant that convicted criminals can serve life prison terms for minor offenses. Human Rights Watch published a report in December of 2013 on how statutory sentencing increases in cases involving drugs, possession of a firearm, or a defendant’s prior convictions allow federal prosecutors to threaten a defendant with sentences if convicted that are so severe, that in the words of one federal judge, “they could take your breath away.” All of this has led to an increase in pleas and prison population. The United States currently incarcerates more than 2.4 million, which means one out of every one hundred adults is behind bars.
Our courts also persist in using nineteenth-century methods and definitions of psychology, qualifying sanity as “capable of distinguishing right from wrong” and competence as a defendant’s ability to understand the proceedings and to rationally deal with his or her lawyer. If a defendant appears to be incompetent, he can be medicated to the point where he appears to understand the proceedings as if he were competent. If another defendant claims to be not guilty due to insanity, she may be forced to undergo psychological examination under the influence of truth serum, or using a polygraph, to recount the events of the crime. That defendant’s statements under the influence of drugs, or her response to interrogation with a lie detector, can then be used against her to prove that she was not insane at the time of the crime. Crazy, right?
Additionally, forensic psychologists administer tests and come up with IQ or MMPI (Minnesota Multiphasic Personality Inventory) scores to artificially measure mental capacity, bipolar disorder, or scalable sociopathy. These scores are meant only to meet the court’s narrow legal definitions of mental illness or incapacity, and in no way attempt to reflect the true state of mind of a defendant. It is another one of the legal system’s rationalist delusions that they can quantify and categorize mental illness. No credible psychologist or psychiatrist would purport to diagnose or treat schizophrenia or bipolar disorder the way the courts demand they be defined. In fact, there is a great deal of debate in the psychological community about the scientific validity of measuring psychological disorders at all. Clinicians who treat patients routinely use the DSM-5, the Diagnostic and Statistical Manual of Mental Disorders, in order to categorize diagnoses for insurance purposes rather than to actually treat patients. Yet prosecutors and defense attorneys routinely rely on experts to chart out their statistical conclusions about the measurable mental defect, or lack thereof, in a criminal defendant.
The legal definitions of sanity and competence are defined situationally, a temporal contrivance of the criminal justice system that has no basis in scientific fact. A defendant can be labeled temporarily insane depending on the circumstances of the alleged crime, or currently incompetent depending on their mental state in court, as if their brain were on a timer. A defendant can have a diagnosis of schizophrenia, but that is not sufficient for a legal finding of insanity at the time of a crime. A defendant can have an IQ of 50 and be unable to read or write, but that is not sufficient for a legal finding of incompetency that would interfere with their right to counsel. And both of these defendants can be tried as if they had no mental issues whatsoever.
Additionally, while most people think that the death penalty is reserved for serial killers, particularly gruesome killings, or the murder of children, there are thirty-four special circumstances in California that can qualify a defendant for the death penalty. One of those special circumstances is “intentionally killed the victim while lying in wait.” This is virtually indistinguishable from “premeditated murder,” a noncapital offense. Another special circumstance is if a defendant kills someone while committing a robbery, burglary, or one of the many other crimes on a long list. The way these laws are written makes almost every first-degree murder case potentially eligible for the death penalty. Not that these are regularly charged, but it has the effect of allowing a prosecutor to leverage a plea deal in more cases when they can say, “I am willing to take the death penalty off the table if you accept a plea.” Resigned acceptance and compromise are the currency of plea bargaining.
There is also a great deal of disparity in how a death penalty case is charged and conducted. The death penalty may be charged in a case in Ventura County, California, whereas the exact same crime may not be charged as a death penalty in adjoining Los Angeles County. Two offices can look at the exact same crime with the exact same circumstances and come up with two different charges. Additionally, there have been numerous studies that have shown a statistically disproportionate number of death penalty charges that are sought for minorities and people from lower socioeconomic strata. A death penalty case also entails a jury qualification process that has been shown to systematically load conviction-prone citizens onto juries. This means that most lawyers defending these cases are almost conceding the guilt of the defendant and are focused solely on the penalty phase from the beginning of the trial. In Alabama, a judge can overturn a jury’s decision and impose the death penalty, which they have done almost ninety times since 1976. They can then campaign when they run for reelection on their support for the death penalty. One in five on death row in that state are there through judicial override.
A few years back, I was assisting with an Innocence Project case. The Innocence Project was founded by Barry Scheck and Peter Neufeld, whom I knew from the O. J. Simpson case. They had developed the Project as “a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice.” They had managed to uncover gross prosecutorial misconduct on the part of a district attorney in Tennessee that had led to the wrongful conviction of Paul Gregory House, where he had sat on death row for twenty-three years. Among other things, the prosecution was found to have ignored crucial witnesses, withheld evidence from the defense, and it even turned out that a crucial piece of evidence contained House’s blood because a lab technician spilled a vial of it and never told anyone. The United States Supreme Court overturned the conviction and sent it back to Tennessee with a strongly worded opinion implying that the state of Tennessee had essentially framed an innocent man.
While most prosecutors would have dismissed the case, the current district attorney decided to re-try House, insisting he had to be guilty. Not only did he want to re-try House, he wanted to seek the death penalty again. I was asked to assist my friend Linda Kenney Baden, who was assisting the local public defender, with the retrial. We designed a questionnaire in which we asked the question, “Do you have any negative opinions about criminal defense attorneys or public defenders?” One of our jurors responded, “Just doing their job to defend the person whose [sic] being convicted.” This juror’s belief, like many others, is that guilt is a foregone conclusion and the system goes through the motions until that defendant is inevitably convicted.
And so the machinery of criminal justice slowly turns. District attorneys rely on conviction records in their election runs for higher offices or to get higher-paying jobs in the private sector. Judges rely on a tough-on-crime image in order to get reelected. Budgets are approved based on numbers of prosecutions. Private prisons charge hundreds of millions of dollars to the state to house prisoners and become powerful lobbies for crime legislation.
We live in a moral universe, and our judgments carry moral authority. Defense lawyers moralize about the injustices of the system, and the desperation, poverty, and hopelessness of their clients. Prosecutors moralize about evil, punishment, and loopholes. In fact, prosecutors and defense lawyers speak in two different narrative languages. Prosecutors speak in idioms of melodrama and certainty. Defense lawyers speak in a vernacular of realism and equivocation.
And while the courts think of criminal cases as the static weighing of evidence on the proverbial scales, the narrative structure of trials is emergent and dynamic. It becomes dynamic when both prosecutors and defense attorneys start telling stories to a jury to re-create the circumstances of the crime in question. When a woman kills her husband and claims self-defense after years of abuse, there is a tremendous emotional history in that relationship. And yet the criminal justice system demands that the relationship be judged on a fixed and limited set of facts and laws determined by the judge in the case. The dynamism of the system is the struggle between primal behavior and civilized rules, the rational and the emotional, the impulsive and the procedural. It has inherent tension and it is inherently dramatic. And that’s why trials fascinate us.
This was a decision whether we’re going to tell somebody they were going to be put to death or spend the rest of their life in prison. You’ve got Travis Alexander’s family devastated, that he was killed, that he was brutally killed. You’ve got Jodi Arias’s family sitting in there, both families sitting and seeing these humiliating images and listening to unbelievably lurid private details of their lives, and you’ve got a woman whose life is over, too. I mean, who’s winning in this situation? And we were stuck in the middle.
—Bill Z., juror in Jodi Arias murder trial
TRIAL CONSULTING
In 1972, a group of sociologists and social psychologists assisted the defense in the Harrisburg Seven trial, in which a group of priests and nuns were charged with conspiracy to raid draft boards and other anti–Vietnam War activities. They are generally considered to be the first official “trial consultants.” Similar individuals also were used in some of the early high-profile cases involving the Wounded Knee incident, in which two hundred Oglala Lakota Indians occupied the town of Wounded Knee in 1973, and a federal marshal as well as several American Indians were shot and killed. Beth Bonora, a noted trial consultant, worked the Attica prison riot cases, where one thousand prisoners in upstate New York took hostages and control of the prison in 1971, resulting in the death of at least thirty-nine people, including prisoners, correctional officers, and civilian employees. The McMartin preschool case, the Rodney King beating trial, William Kennedy Smith, the Night Stalker, the Menendez Brothers, Robert Blake, Dr. Jack Kevorkian, Scott Peterson, Martha Stewart, Michael Jackson, George Zimmerman, various Al Qaeda terrorist trials, and the case of Bernhard Goetz, the notorious subway vigilante, have all involved trial consultants, some on both sides of the case. None of us is trying to win any popularity contests. We work when the facts are tough or when the prejudice is high.
The American Society of Trial Consultants was formed in 1982. Today, it is a collection of clinical, social, and organizational psychologists; lawyers; crisis, media, and political consultants; speech and communication experts; linguists; and theater experts. Like most consultants, they are idiosyncratic. But they fulfill a critical function—they are the bridge between the vibrant and dynamic jury decision-making process and the legal profession’s static, antique version of the jury. We see jurors as Instagram, constantly updating with fresh pictures and images, while many judges and lawyers see the jury in an old daguerreotype image, posed and serious.
Good consultants are clinicians and not just academics. They have good ears, good eyes, and good noses. They can hear a winning argument. They can see what the jury sees. They can hear the clear bell of truth in testimony. And they can smell the manure that is spread in a case to make something weak or artificial grow. Good consultants know the psychological literature. They know communication theory. And they understand patterns of the mind and patterns of behavior.
As consultants, we conduct pretrial research in the form of focus groups, mock trials, and community attitude surveys. We perform communication work in assisting witnesses to communicate their truth more clearly and effectively on the stand. We help attorneys define case themes, structure, and strategies. We help to write opening statements, closing arguments, and even witness examinations. We help to design litigation graphics to visually communicate the case more effectively and to design some of the overall production values of the case. That’s right. Production values. We use techniques from the fields of communication, linguistics, educational psychology, public relations, journalism, historical research, documentary filmmaking, marketing, theater, and the visual arts to design the most evocative and compelling story of the case. The art of advocacy determines that every trial is a theatrical production where attorneys tell a story to an audience. However, in telling this story, I am always looking for the most authentic expression of the evidence, the thing that rings most true for the jurors. As the best advocate for your client, you need your jury to remember your story and use it in deliberations.
We also put together strategic plans to assist attorneys to best influence the decision makers in the case: the juries, the judges, opposing attorneys, the media, and the community. We assist attorneys to select juries by de-selecting jurors who are already predisposed against their clients or their cases. And we sometimes watch trials to help our clients understand how the jury and the judge may be seeing the case. Most importantly, we help to clarify confusing or prejudicial information in a trial.
We help our clients to be the best advocates for their clients by wearing three separate hats: with a jury hat, we tell attorneys how jurors will react to their case; with opposing counsel’s hat, we tell them what the other side will do to win the case; and with an advocate’s hat, we tell them what they need to do to win the case.
I think it’s safe to say that few of us spend a lot of time considering the concept of justice. Being a juror forces you to do so, to think about what constitutes the evenhanded administration of the law. At several points during the trial, I was struck (in admittedly Mr. Smith Goes to Washington–esque fits of idealism) by the messy elegance of a system that requires twelve people to figure out, through conversation, false starts, and dead ends, where the truth of a matter lies. The truth, in administering justice, is emergent; cobbled together from the collective puzzle pieces in twelve minds, driven by emotion, confirmed by fact.
—Philip B., served for six months as a juror in the case of the People of the State of New York v. Anthony Marshall and Francis Morrissey
PERSUASION
Rhetoric, or the art and craft of persuasive language, used to be taught and was part of everyone’s education until the late nineteenth century. Aristotle called rhetoric “the faculty of observing in any given case the available means of persuasion.” Law schools usually give a cursory discussion about Aristotle’s three rules of audience appeal: logos, pathos, and ethos. These were later organized in classical Rome into five canons: invention, arrangement, style, memory, and delivery. This was controversial even in ancient Greece, as Plato blamed the Sophists for using rhetoric as a means of manipulation and deception rather than a search for the truth. He also accused Sophists of using rhetoric to influence the ignorant masses. Sound familiar? Thus the semantic and philosophical battle over truth and illusion in public discourse is as old as civilized communication. But despite the debate over the use or misuse of these persuasive tools, the concept of rhetorical discourse was key to the Greeks’ notion of participatory government.
Aristotle also defined three fields or types of rhetoric: deliberative, where a speaker tries to influence an audience toward a specific outcome; forensic, which is attributed to a presentation of evidence in a public forum such as in the courts; and epideictic, which is a formalized speech for ceremonies that incorporate more subjective “praise and blame” speech.
As civilization advanced, we developed the necessity to influence wider audiences in politics and society that preceded the revolution wrought by Johannes Gutenberg’s printing press in 1450.
However, the art of rhetoric—the shaping of persuasive thought in order to affect an audience—is no longer taught in schools. Attorneys must develop it themselves or possess a natural gift. Part of the decline in advocacy training we owe to Harvard Law School dean Christopher Columbus Langdell. He developed the “case method” of law school training in 1890. Up to that point, lawyers had been trained in the law and had gone out into the field to get training from other lawyers. The old method blended a study of the law with an apprenticeship with a practicing attorney, a method that limited the number of lawyers. Langdell believed that law should be studied like a science, with appellate decisions of judges being the subjects of analysis. This also had inadvertent benefits for law schools. It allowed them to create a more systematic approach to legal training. According to the American Bar Association in their last survey in 2010, there were more than 145,000 students enrolled in law schools and over 1.2 million attorneys in the United States and territories.
The problem attorneys have is that law school is essentially a three-year foreign-language immersion program—it teaches them to speak legalese, a stultifying vernacular of acronyms, codes, statutes, and “expert” opinions. They stop thinking in plain English and start thinking in rules, laws, and procedures. While most law schools have trial advocacy courses, they rarely teach communication theory, storytelling, presentation skills, or how to both teach and engage the jury. In fact, the modern law school and court system seems to take a Platonic view of persuasion—defining it as deception or sleight of hand rather than the artful shaping of arguments to support positions. Today’s lawyers get training in persuasion through forensic debate in high school and college, mock-trial experience in law school, or experience in a district attorney’s or public defender’s office. Some attorneys may have additional skills such as public speaking experience or performing arts training. For most attorneys, unless they participated in a moot court program in law school, their persuasion education begins the very first time they set foot in front of a jury.
Despite the mandated duty of an attorney to be an advocate for his or her client, we seem to have a more reticent Platonic view of persuasion in the courts: the quaint notion that “facts speak for themselves” and that persuasion is relegated to only an adjectival description of events in closing arguments. Instead of embracing the truth that all communication is persuasion, we would prefer to live in suspicion of those that would use “fancy words” to try to convince us.
Rhetoric, although used pejoratively these days, is neither Machiavellian in its strategic manipulations nor Rasputinish in its use of charismatic personality to convey a message. It is not all that mysterious. We just refuse to acknowledge the components of persuasion. As a result, we have lost our rhetorical swagger, flourish, and mojo. In 1928, Edward Bernays, an early public relations pioneer and nephew of Sigmund Freud, published the book Propaganda, which stated, “Conscious and intelligent manipulation of the organized habits and opinions of the masses is an important element in democratic society.”
Interestingly, today’s political environment is more rhetorically charged than ever. George Lakoff, a professor in cognitive linguistics at the University of California–Berkeley, and Drew Westen, a professor of psychology, psychiatry, and behavioral science at Emory University, have charted a neurological connection in modern political rhetoric.
We love facts because they seem concrete. We distrust rhetoric because it seems artificial. It’s a quaint and clever skullduggery on the part of our brains to convince us that we are deciding cases based on “facts” when we are actually using these facts as a framework to justify our real decisions. However, these more subliminal influences—emotional arguments and community values—are equally concrete because they are both sensory and experiential. So, in a case where a coach or priest is accused of sexual molestation or a parent is accused of abusing a child, the visceral reaction to that kind of horror, the “What if that were my child?” question, easily drives a desire to convict. However, on the defense side, the rhetorical frame of “What if I were wrongfully accused of this crime?” can drive an acquittal. Neither of these frames have anything to do with evidence, yet they profoundly influence the outcome of the case.
The traditional model of human communication used in a courtroom is a static model. There is a sender of the message, the message itself, and the receiver of the message. It is a classic educational model—a teacher gives a lecture on a subject and the student takes notes on that subject. That’s it. They do not take into account the passion of the teacher for the subject, their speaking skill, the learning style of the student, or their interpretation of the material. But what most classical education models fail to realize is that communication is not a linear, but a cyclical process of developing the message, testing that message against the audience’s perception of that message, adjusting the message, delivering, and then even adapting the message to the reaction of the audience as you are giving it. This is the art of live communication. You are engaging the audience in you as well as your message. When you hear Martin Luther King Jr. deliver his famous “I Have a Dream” speech, it is artfully crafted, practiced, and passionately delivered. It is rhythmic, musical, filled with meaningful imagery and emotional language, building in both tempo and volume to a crescendo. As he is delivering it, you can also hear him responding to the crowd on the Washington mall, reacting to their reaction, their energy feeding his delivery, his eloquence.
A great speaker is constantly delivering and receiving communication. Real persuasion is in being persuaded as you are persuading. And great storytellers craft a meaningful story and simultaneously experience the audience’s reaction, making minute changes that mean both storyteller and audience are telling the story together, creating meaning for both.
In 1925, Dr. Ossian Sweet, a Howard University–educated black doctor in Detroit, had the temerity to move into an all-white neighborhood. When an angry mob from the Waterworks Park Improvement Association (“improvement” meaning color consistency) tried to improve the neighborhood by raining rocks on Sweet’s house, a shot rang out from inside his house and killed one of the white mob members. Sweet, his wife Gladys, and nine other men who were inside the house at the time were charged with murder. The celebrated attorney Clarence Darrow was asked by the NAACP to assist, and he accomplished the heretofore unthinkable in most communities across the country—an acquittal of black defendants by an all-white jury. In his closing argument, he spoke to the jury.
“Who are we, anyway? A child is born into this world without any knowledge of any sort. He has a brain which is a piece of putty; he inherits nothing in the way of knowledge or of ideas.
“You need not tell me you are not prejudiced. I know better. We are not very much but a bundle of prejudices anyhow. We are prejudiced against other people’s color. Prejudiced against other men’s religion; prejudiced against other people’s politics. Prejudiced against people’s looks. Prejudiced about the way they dress. We are full of prejudices. You can teach a man anything beginning with the child; you can make anything out of him, and we are not responsible for it. Here and there some of us haven’t any prejudices on some questions, but if you look deep enough you will find them; and we all know it. All I hope for, gentlemen of the jury, is this: that you are strong enough, and honest enough, and decent enough to lay it aside in this case and decide it as you ought to.”
The rhetorical construct of this passage uses the theme of prejudice to condition the jury to its own inherent prejudice, forcing them to question whether they are convicting on evidence or bias.
Trial consultants are both translators and storytellers. They must speak the separate languages of the lawyer, the judge, and the jury to help shape the evidence and testimony so that the postal worker, the teacher, the linesman, and the account executive on the jury all hear, understand, and feel the import of the attorney’s message.
As a trial consultant, the complexity of trial communication also demands that you have the eyes of the enemy. As you are listening to and crafting the best arguments for your side, you are constantly playing them against the other side’s arguments and evidence. It is an exercise in self-induced schizophrenia, as you simultaneously hear voices of prosecutors, witnesses, defense lawyers, victims, and police officers, all trying to seamlessly blend those voices into a winning narrative.
In the arc of a case, “winning” is tenuous at best, lasting only as long as the last witness, the last question, the last ruling, and the last argument. Lawyers tend to think of verdicts as the cumulative weight of the evidence. But any issue is a potential doorway through which a jury can walk into what they think the evidence should be, or speculatively is in their own narrative world. So you look to close every door, so that the jury only has one door to walk through, the door to your verdict. Some of the doors are evidence. Some are legal instruction. Some doors open into the jurors’ personal experiences. Some doors are errant speculations, ghosts in the machine, random thoughts that occur to them as they try to put the pieces together and solve the mystery of your case. Some are what we call “just world” doors, the doors that jurors walk through to reinforce their reality that they live in a world that is fair according to the way they were raised. You try to know which doors jurors are likely to open and steer them through this hall of doors until they only have one door left: the door to your verdict.
But no matter your planning or your paranoia, trials have their own momentum, their own rhythm, their own direction. You look for these tempos and turning points to swing the jury to your case, to your reality. You then look for ways to keep that momentum building in your direction. But it’s never guaranteed. The tides can turn in an instant. In most great court battles, you can look at who is defending to know who is currently winning. Toward the end of the O. J. Simpson case, it was clear the prosecution was defending its case.
In the old power-persuasion model of advocacy, attorneys relied on their authority, their strength of personality, their vehemence, and a linguistic barrage to convince jurors of their cases. These days, this old model conveys arrogance because the message communicates, “Believe me because I am important.” Arrogance is a case killer. Jurors will punish the arrogant attorney or witness more than any other quality. Those powerful arguments a generation ago sound like arrogant sales pitches today because we no longer have the obeisance to authority we had a generation ago. There is a body of literature discussing “resistance persuasion,” stating that any message these days is being filtered through skepticism and tested for veracity. There is no longer an open and receptive congregation, waiting with wide-eyed expectancy to hear the attorney’s gospel.
What follows are my experiences from some highlights in almost thirty years of trials. In these chapters, I hope to pull back the curtain of the justice systems, to show you the machinery and the humanity that drives this perfectly designed and perfectly flawed human enterprise. To show you how lawyers, judges, defendants, politicians, witnesses, and jurors all struggle to find a truth to help them solve the mystery and restore order to their world.
We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror.
—Measure for Measure, William Shakespeare