Selby on the Magic of Atmospheric Advocacy

It’s Soccer World Cup time.  Every mis-directed kick, every off side, every fumble, along with every magic moment – caught in the moment to be dissected, wept or laughed about by commentators and fans. Soccer is just one sport among many that shows our love for venting passion and being entertained.

There’s plenty of passion in courtroom trials, at home and abroad. It’s often ‘make or break’ for the parties.  And as for the entertainment:  have you noticed how much attention the media pays to any trial where journalists are in the dock?  Or to those trials where a tall poppy seems likely to be cut down? Or those trials where the sheer magnitude of the criminal activity – be that war crime, serial killing, ripping off a bank, massive pollution, draws the media like predators to the smell of blood. Think of the current English trials of the former News of the World staff, and those of the aged entertainers who, it is said, repeatedly groped.  Think of Egypt and the Al Jazeera journalists.  Think of China, and on it goes.

The Court of Public Opinion and a Court of Law: A Link to a Provocative Article

The Honorable Robert McGahey, of Denver, Colorado, often contributes guest pieces to this blog. He forwarded the following commentary and link about the difference between trying cases in a courtroom and in the "court of public opinion."

Dahlia Lithwick writes on the law and legal issues for Slate, an online magazine.  Her articles are always thoughtful and perceptive and frequently provocative as well.  She recently contributed an article comparing how the public is conditioned to examine legal matters in the public forum versus how such matters are actually examined in the courtroom – and the issues, problems and dangers presented by those differences. I was particularly struck by her discussion of why the presentation of evidence in court using techniques of examination and rules of evidence and procedure offer protections for not just the individual on trial, but for the greater community.  The piece is well worth reading, especially as a reminder of how – and why – the process by which we resolve things in court is a fundamental component of the rule of law. I commend it to you.

Judge McGahey

We Can’t Try the Woody Allen Sex Abuse Case in the Court of Public Opinion
http://www.slate.com/articles/news_and_politics/jurisprudence/2014/02/woody_allen_v_dylan_farrow_the_court_of_public_opinion_is_now_in_session.html

Burning Time: Jodi Arias Trial Cross-Examination

I've  been following the Jodi Arias capital murder trial with some interest for the past few weeks, particularly the defense strategy of exploring in lurid and uncorroborated detail the sordid sexual history between Arias and the man she killed, her former lover Travis Alexander. I may write about this at some point, but that's not why I'm writing today.

I'm watching a live-feed stream of the cross-examination, and I've come to the conclusion that Jodi Arias may once have been a trial team witness for an ethically challenged law school mock trial team. The prosecutor is impeaching her with prior inconsistent statements right now, but for every statement so far, he's had to refresh her recollection. She took about 5 minutes to read to herself a few pages of a journal entry she wrote and about which she testified on direct examination. Then, she claimed not to remember her direct examination testimony, so the prosecutor provided a transcript, which, as I write this, she has now been reading silently to herself for over 5 minutes. In the middle of all this was a sidebar conference to discuss how much of the transcript she would read silently to herself to refresh her recollection about "pop rocks and tootsie pops."

Reminds me of a few trial competitions I've been to, although of course there are no actual time limits in the Arias trial so she can burn all the time she wants.

If, by any chance, you know someone who likes to coach their trial teams to burn their opponents' time as a strategy, they could do no better than to watch Ms. Arias in maddeningly slow real time, pretending to forget, and reading to herself excruciatingly slowly. As I say, watching her, I would swear she'd been coached by one of the great mock trial masters of the art. If her life is spared in this trial, perhaps she could serve as a competition consultant to teams that use this particular strategy.

We're now at about 15 minutes to get an answer to ONE QUESTION. I greatly admire the patience of the prosecutor at this point. Most mock trial competition attorneys would have melted down completely at this point.

More On "Yes, Virginia . . ." Post

I've gotten a couple of interesting emails and phone calls about my post earlier today that included a link to the Chicago Tribune article about racial comments made during the prosecution's closing argument in a Southern Illinois murder case.  There is, of course, more to the story than made it into the Chicago Tribune article.  The case was a difficult one for the prosecution because key witnesses recanted their stories.  In addition, there were racial overtones from the beginning of the trial, with one juror reporting to the judge that an African-American male had followed her home on one of the trial days.

The regional paper in these parts, The Southern Illinoisan, published a story today (here is a link to the story) about the controversy.  This story includes interviews with both the prosecutor and the defense counsel.  The prosecutor explains the context of his remarks, and the defense attorney discusses his decision not to object (he'd already lost several objections to prosecution remarks and comments and was worried about losing yet another objection and having the jury hold it against him) and his post-trial motion for a new trial based in part on the egregious nature of the closing argument.

I still think the comments were improper, but I believe they were maladroit rather than malicious.  And at least I now know why the defense attorney didn't object, but it was surely a risky gamble to stay silent and hope for relief on appeal.

And having read both articles, I appreciate even more Judge Erickson's commentary in the original article.  It's easy to see why none of his evidentiary  rulings were ever reversed on appeal.

Lit Tech Gaffes Lead to Clemens Mistrial

The following post was submitted by Mike Ko of Groundwork Trial Consulting in Chicago.

The Roger Clemens perjury trial ended in a mistrial when the prosecution repeatedly made evidentiary mistakes that even a "first-year law student" wouldn't have made, according to the judge (a news account of the trial is available here). Commentary on the trial makes it appear that this mistrial was about prosecutorial hubris or outright disregard for the judge's rulings. But a look at the offending evidence shows that this mistrial seems to be more about miscommunication between trial counsel and the tech personnel running the trial equipment.

Offense #1: Improper Character Evidence

The problematic pieces of evidence all came from the video from the 2008 Congressional hearings on steroid use in baseball. The prosecution played portions of the Congressional hearing where Rep. Elijah Cummings (D) commented on the positive credibility of Andy Pettitte, a key prosecution witness who would testify later in the trial. Rep. Cummings' comments bolstering the credibility of a Prosecution witness was clearly inadmissible and should have been redacted from the video. So, how did this get overlooked and get published to the jury?

The Solution: Communication with the Tech Operator

Presumably, these portions of Rep. Cummings' testimony would have been covered by a Defense motion in limine. In addition, it is unlikely in a trial of this magnitude that the government attorneys handling motions in limine would also be the ones to go back and make redactions to the video. That tells me that either: (1) trial counsel failed to communicate the judge's rulings to the person in charge of preparing the video for trial or (2) the person in charge of making those necessary redactions dropped the ball.

There are a couple of ways to avoid this type of communication failure. In particularly high-stakes trials or trials that are on especially expedited schedules, I recommend that the person(s) in charge of preparing/redacting visual evidence attend the motion in limine conference. That way, while the trial attorneys are making notes on how the rulings effect trial strategy, the tech operator (whether paralegal, attorney, or consultant) can take notes on how the rulings effect trial exhibits. If the tech operator isn't going to attend the motion in limine conference, the trial attorney must make sure to check in with the tech team to inform them as to what stays in and what needs to be redacted out.

The other way to avoid this type of communication failure is for the tech operator to check in with the trial attorneys. Whenever there is a evidence video deposition or other video that is going to be published to the jury, the tech operator should make a point to follow up (repeatedly, as is frequently necessary) with trial counsel to ensure that there are no additional rulings that will effect what gets redacted.

Offense #2: Double Hearsay

The prosecution also failed to redact portions of the Congressional hearings video where Rep. Cummings read an affidavit from Andy Pettitte's wife. At the same time the video played, the Prosecution displayed the transcript of what was being said. And although scrolling the transcript in a closed caption fashion is normally best practice, when the Prosecution paused the video upon the objection, this froze the text of Mrs. Pettitte's affidavit on the screen:

"I, Laura Pettitte, do depose and state, in 1999 or 2000, Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones."

This text remained frozen on the screen in view of the jurors while the Judge and counsel held a sidebar to discuss how to minimize the damage of this inadmissible evidence. Apparently, this sidebar lasted for several minutes.

The Solution: Training

First, the lapse in communications that allowed the first error with the video also seems to apply here. The attorneys would have known that this portion of the video should have been redacted, but somehow, the tech operator didn't. Nevertheless, any seasoned courtroom tech operator or trial consultant should know that, whenever there is an objection to evidence being published electronically, it should be taken down immediately and republished only after the judge overrules the objection.

The twist, however, lies in the fact that this was video. Because of the software needed to scroll text along with the video, if the objection to the video is overruled, it can be difficult to resume play at the exact spot of the objection. In addition, some trial presentation software has a quirky bug where re-cueing a video to a specific point will cause the remaining redactions to the video to malfunction. So, pausing the video (rather than taking it down completely) is probably the best thing to do here. However, there are still numerous ways the tech operator could have avoided showing the transcript of the affidavit to the jury:

(1) Turn off the projector/TV: The laptop and software will still keep the place of the video, but the jury will not see anything because the juror screens will be off. If there are multiple screens and/or TVs, make sure to turn them all off. Also, many of the projectors powerful enough for courtroom settings also have a mute setting on their remotes, where the screen will go black and audio cuts out. Failing a mute setting on the projector, the operator can simply put the lens cap on and block the image. Sometimes, the low tech solution is the best. This would have been one of those times.

(2) Take down the exhibit anyway: even though it may inconvenience the court and jury for the operator to re-cue the video back to the spot of the objection, such an inconvenience is worth it when the alternative is a mistrial, as it was in the Clemens' trial. (Or, if you can live without scrolling text, you can export the redacted video to a format playable on a media player such as Quicktime or Windows Media Player. This would resolve re-cueing issues, and you can just take down the exhibit upon any objection without concern about resuming play.)

(3) If all else fails, kill the system. And do it fast; time is of the essence. Start with unplugging all the cords from the laptop - the vga cable and the audio cable. If that doesn't work, force shut down the laptop. If that doesn't work, shut down the projector. If that doesn't work, unplug everything. These measures are severe and will take some time to recover from before the trial can resume. But, again, given the alternatives, it will be worth it.

--Mike Ko. mikeko@groundworktc.com

Weak Evidence Trumps Bad Advocacy: The Casey Anthony Trial

Jim Gailey is the principal in the Miami Beach criminal defense and civil litigation firm James R. Gailey & Associates. He is also a NITA instructor and a trial team coach for the University of Miami School of Law in Coral Gables, Florida. Although he labors under the handicap of being a Miami Dolphins fan, he is nonetheless a great teacher and an astute observer of human nature. These are some of his observations about the Casey Anthony Trial.

The Quality of Advocacy at Trial

With the exception of the rebuttal final arguments (which were very good), the advocacy level went from good to below average. The prosecution advocacy was overall much better than the defense advocacy. Of course, at the end of the day it did not matter because the lack of any proof of HOW the child died, effectively intercepted any consideration of WHO did "it" (begs the question of what "it" actually was). So I suppose the lesson is that advocacy cannot substitute for evidence, and poor advocacy by your opponent will not save a case with no proof.

Much of what I saw could only serve as a model of what not to do ("would you please explain" questions on cross, etc.) (not quite as bad the in-court demo by the prosector in OJ case with the glove, but at least the prosecution lost and it provided a "teaching moment" on what not to do).

Not sure how we implore our students to only lead on cross or have a consistent theme, etc. when this did not affect the ultimate outcome.

What the Alternate Juror's Comments Teach About the Case

Here are some of the comments that the alternate juror made in an interview within an hour or two of the verdict.

"It was probably a horrific accident that Dad and Casey covered up and it snowballed and got away from them"

Since there was no evidence of an accident or a cover-up, the interviewer asked the obvious question: "What evidence was there that is snowballed and got away from them."

After some stuttering and stammering he then repeated that it was "such a horrific accident that they didn't know how to deal with it. And the family was very dysfunctional and instead of admitting to the accident they chose to hide it, for whatever reason." He was then asked why George Anthony would allow his daughter to face a potential death penalty instead of admitting to the horrific, innocent accident. In response, the alternate juror laughed and said "that's a really good question that has to be answered by George. He was very combative and I personally thought he was hiding something that he chose not to answer."

When asked about all the lies that she told for the 31 days after the child was last seen, he said that it "did not affect him much at all because of what came out at trial about how dysfunctional the family was." While this "dysfunction" was the suggestion by the defense opening statement, there was no actual testimony about this "dysfunction."

Until the deliberating jury decides to "cash in" on their new found fame, we will not know what the thought process of that jury was. The comments by the alternate however, do provide some insight into the workings of this particular jury and this particular trial. To me, it reemphasizes the special importance of the opening statement. The question of ethics aside, the jurors were "shown" a despicable picture of the defendant's father by accusing him, among other things, of molesting his daughter. Though the juror admitted that there was never any proof of this and consciously they did not reach the conclusion that he was in fact a child molester, it did create an image of him that colored how they viewed his testimony. (He was "combative" and was "hiding something.") Further evidence of the importance of the opening statement was that for 6 weeks both sides tried this circumstantial case with multiple experts and a great deal of forensic evidence. Nevertheless, the jurors deliberated without any questions and without any interest in hearing back any of this technical testimony or any of the videotaped statements or 911 calls. Their gut "told" them (or caused them to speculate) that there was more to this story than the prosecution had shown them and as a result, they outright rejected the notion that the defendant mother committed any crime in connection of the child's death.

I am sure that more will come out in the coming days and weeks and eventually, many of them will appear and the case will be analyzed more fully from their perspective. At this point, however, the result and the comments that we have heard thus far, seem to suggest that although we tend to glamorize the closing argument portion of the trial as making the difference, in many cases, the jury has pretty much made up its mind by that point in the trial and the less "glamorous" opening statement, shapes the lenses through which the jury will view the evidence and consequently affects the outcome in a more significant way. (Having myself served as a juror in a 1st degree murder trial while a law student, what i learned inside that particular jury room has shaped everything that I have done as a trial lawyer.)

 

--Jim Gailey. jgailey@gailey-law.com

Casey Anthony Verdict

Just watched the live feed of the Casey Anthony verdict. A story about the verdict is available here.

I did not watch much of the trial itself, but I did follow it closely in the news. I have to admit I was surprised by the verdict. I predicted to my trial advocacy class this morning that the jury would find her not guilty of first-degree murder but guilty of manslaughter and child abuse. I was wrong about that!

I'd be interested in comments about the case, particularly the advocacy strategies chosen by both the prosecution and the defense, the professional responsibility issues raised during the trial, and some of the evidentiary decisions the state made (even if there had been a verdict of guilty, I'm not sure some of the forensic evidence would have survived appellate review). High-profile cases, as I've said before, lend themselves naturally to some great teaching moments and discussions in a law school classroom.