Objection! (10 page)

The night of the guilty verdict, she was notably absent on the air waves.

Call me old-fashioned, but I still contend that the practice of using jury consultants is pure psycho-babble. Many consultants are psychologists or sociologists who have developed an expertise in jury selection.

They work with defense teams to create “juror profiles” for cases by determining the ideal age, sex, median income, and background each juror should have, in part by looking at statistics. I find the process way off base, because in my mind it all boils down to common sense. I don’t need a psychology degree or a highly paid “expert” to tell me the obvious.

Defense attorneys typically want the same kind of person: somebody who mistrusts cops, who doesn’t like the system, who has been

“taken advantage of by the government”—audited, arrested, convicted, or investigated. Simply put, they want jurors as much like their clients as possible. The defense doesn’t want military personnel, government workers, or pensioned retirees who have worked hard their whole lives sitting on the jury. They basically want gullible, unemployed individuals. If they happen to have a rap sheet—all the better! The more like the defendant a juror is, the happier the defense is. If you look closely at a case, you’ll see that, whenever possible, defense attorneys do their best to strike a mirror image of the defendant within the jury box when it comes to race, age, gender, background, and belief system. In referring to “gullible” jurors, I’m taking about people who would actually buy into a defense like “A satanic cult did it” or “There’s a serial killer loose in Modesto!” or “A Colombian drug lord is responsible.” An ex-traterrestrial
may
have landed and done the deed, but a jury’s verdict should be grounded in reason, not fantasy.

6 2

N A N C Y G R A C E

I just don’t see why a lawyer needs to hire someone to tell them that a guy with a DUI history should not serve on a DUI case. I certainly never needed anybody to tell me that a guy who’s been arrested for domestic abuse shouldn’t sit on an aggravated-assault case. As I’ve said before, the single most important part of any case, following trial preparation, is jury selection. The case is won or lost when you put those twelve people in the box. Everything else hinges on that. It was true for me, because I always had my cases ready before jury selection. I’d decided who the witnesses were going to be. I’d found and interviewed them and had written their questions in my trial notes. It was all very technically laid out before the trial even started for me. The only variable was my jury.

Why would you put something so important in someone else’s hands?

Whether you’re a defense or prosecuting attorney, it’s your jury, not the consultant’s. The lawyers are the ones who have to live with that jury, so the lawyers must follow their instincts. I always struck my juries with my investigator in my ear, because he would have insights that I may have missed. At that point, we would have worked together long and hard on the case. He was the only one I would listen to during jury selection, because we shared the same goal—a true verdict—and could best determine who would be most receptive to our case.

If an attorney wants or needs a jury consultant or a client is happy to foot the bill for a consultant’s advice, then more power to them. But when the rubber meets the road, it’s the victims, the defendant, and the lawyers who have to live with the verdict—not the jury consultant.

They have no stake in the outcome of the trial and will be on to their next paycheck in no time.

R E N D E R I N G A T R U E V E R D I C T

Even with all the
challenges our jury system faces, don’t throw out the baby with the bath water just yet. A trial by a jury of one’s peers—the foundation of the American judicial system—is the last line of defense O B J E C T I O N !

6 3

for ensuring that the truth comes out in court. The jury is the final ar-biter of the facts and the law of every case that works its way to the courthouse. Landlord-tenant disputes, car accidents, contract issues, child molestations, rapes, and murders all go to a jury for the “ultimate issue” as it is called in the law—the truth of the case. Yes, the current assaults on the jury process are imperiling the system. They present obstacles we must overcome to ensure justice. But those twelve people sitting in the jury box are all we have, so they must be handled with great care.

There is no question there has to be a better screening process for striking a jury, which should start with having more intensive jury questionnaires. The questions on the forms that are currently used generally fall along these lines: Are you a resident of this jurisdiction?

How long have you lived here? Are you married? Where do you work?

That’s usually the extent of it. A lot of jurisdictions don’t even ask that much. That’s crazy. For a start, questions about whether a potential juror has a criminal history certainly need to be asked. An enhanced jury questionnaire, along with a sermon on the sanctity of the juror oath—complete with both an oral and written rendition—would certainly help weed out “stealth jurors”—those who would somehow profit from service.

Newly added written questions must also address the issue of potential book-for-profit schemes and any other offers floating around, such as money for television and radio interviews, exclusive magazine stories, and, of course, last but not least,
Playboy
“pictorials.” If, after a juror has answered all these inquiries, serious questions persist, I advocate a full investigation as to dates of any such offers and the production of phone records, interview notes, and contract-signing dates to support proof of “deal-free jurors.” The potential for tainting is enormous as a result of these impediments to justice and must be avoided at all costs.

I also advocate the radical concept of contempt-of-court findings and substantial money levies against jurors who indulge in such schemes 6 4

N A N C Y G R A C E

pretrial or during trial. In this instance, contempt-of-court findings should go hand in hand with jail time and the loss of voting rights, as occurs in felony cases. Jurors who seek to gain from jury service before or during trial should be kept forever off the voting roster and, conse-quently, out of future jury boxes. My fear, though, is that the draw of profiteering and fame is as old as time itself, and to cure it is to cure human nature.

The answer? The First Amendment right to free speech guarantees individuals, be they United States citizens, immigrants, the president, or an ex-con, the God-given right to speak out. That includes television and book deals. But for jurors, I firmly believe, the only way to secure a true verdict is to allow them to speak and write about the case all they want with a condition: They do so only well after the trial. I predict that will help solve the problem pretty quickly.

Another important preventive measure that should be taken to keep starstruck jurors out of the courtroom is to carefully screen them according to their media consumption in all forms: television, newspapers, magazines, and the Internet. I recommend the inclusion of detailed questions covering jurors’ television-viewing habits: number of hours per week viewed; general and specific programs or genres viewed; shows and reading materials that were their favorites in childhood, teen years, and adulthood. The media plays such a big role in our lives today; it is pure folly to exclude it as a factor in voir dire. Red-flagged jurors could then be questioned during individual voir dire as a follow-up to the jury questionnaires. It would be relatively simple to have media-related inquiries added, with the input of psychologists, trial lawyers, and judges in order to more carefully prescreen the jurors before they even enter the jury pool, much less the jury box.

If one or both lawyers fail to cover the bases when faced with jurors serving on a trial with a celebrity defendant, the onus should be on the judge to ensure a fair-minded jury. While many judges have a hands-off approach to trying cases, in this peculiar instance they must inject their own questioning of jurors regarding their views toward celebrity O B J E C T I O N !

6 5

defendants in general and specifically to the one on trial. I would also encourage the incorporation of celebrity-oriented questions on jury questionnaires. In order to be effective, these questions must be standard operating procedure and not subject to the whim of counsel’s memory or diligence in filing the right motion.

Another way to prevent juror misconduct is to run rap sheets and arrest records on jurors. This isn’t usually done—I never used them—

but it’s something that must seriously be considered now, especially in light of the Martha Stewart juror Chappell Hartridge. While all such information is public record, these documents must be obtained through law enforcement or court personnel, because they have to be researched and electronically produced. It’s a computer search that doesn’t take long to get, provided the lawyer has the right date of birth, race, and gender for the potential juror. The bad news: It’s more work for already overtaxed prosecutors, who then have to hand over their results to the defense. It’s only fair the defense get a copy of the report. (And naturally the defense would be thrilled to get ex-cons in the jury box!) One caveat: The defense should at the very least share the work that goes into getting this information. Better yet, the court’s administrators should run the rap-sheet search prior to jury selection and provide the results to both sides.

I also foresee the looming possibility of credit checks run on jurors to discover any civil suits pending against them that would bear on the case. But here’s the problem: If this becomes common practice, it would almost certainly dissuade people from sitting on juries. Would you want to sit on a jury if it was going to be made public that you were sued for nonpayment on a bounced check in 1991? How about if your credit-card problems or brush with bankruptcy were uncovered? I wouldn’t.

The bottom line: Penalties for juror misconduct must be instituted and enforced. Those who violate the oath and taint the jury should find themselves back in court again, seated behind the defense table facing charges of their own. That is how valuable the jury system is. We must 6 6

N A N C Y G R A C E

be prepared to deal harshly with those who abuse it. For those who slip through the cracks for whatever reason, justice needs to come down hard and fast. There must be repercussions for juror wrongdoing. People who lie to get on juries or lie during the trial must be prosecuted to the fullest extent of the law. I have a firm belief in the jury system, and to the people who violate the integrity of the court I say, “Hang ’em high.”

C H A P T E R T H R E E

J A C K P OT J U S T I C E

I HAVE A WAKING NIGHTMARE EVERY TIME I HEAR

about another abuse of the justice system that’s fueled by greed. I see a courthouse—as grimy and gritty as it can get after decades of use, millions of cases and defendants civil and criminal, all passing through its courts. Despite its worn appearance, I envision snapshots of what’s gone on inside. Juries have been struck. Defendants and witnesses have been sworn under oath to tell the truth. Victims’ families have sat in its halls praying for justice. But then, the building begins to swell and strain at the corners—twisting and trembling. The structure seems to be collapsing on itself. As the wind whips around and the sky turns black, the courthouse groans. Lightning strikes. Court documents, desks, and law books fly out the windows as people come running down the courthouse steps. While I stand frozen, watching, the building morphs into one of those fantastic ATM machines you read about but never see for yourself, one of those wacky ATMs that randomly dis-pense thousands to whoever happens to be there. The courthouse-turned-ATM is spitting out an endless stream of twenty-dollar bills.

Money flies through the air, covering the streets, landing in the trees.

Suddenly people run toward the building from every direction and be-6 8

N A N C Y G R A C E

gin cramming their pockets with their ill-gotten gains. Loaded down in cash, they run away, no one looking back.

That’s when it dawns on me—the courthouse has become one big, huge, malfunctioning ATM machine—a jackpot at the expense of justice.

We’ve borne a culture of courthouse vultures. Yes, of course there are wrongs that are at least partially righted by money awards. These judgments are well deserved but can never totally set things right. As fantastical as the scenario in my waking nightmare may seem, it is rooted in reality. This wholesale manipulation driven by greed is hell-bent on turning Lady Justice into a whore and lawyers, witnesses, and assorted courtroom hangers-on into her pimps. Don’t believe me?

Read on.

C H E C K B O O K J O U R N A L I S M

It’s become SOP—
standard operating procedure—for prosecutors to warn victims and witnesses not to give interviews, much less accept money for them, before trial. The reason behind these admonitions isn’t just a moral one—it’s born out of stark fear that witnesses who trade information for cash will destroy the state’s case. Most often, those who value money over justice are destroyed on cross-examination when it is revealed that they have a financial interest in the outcome of trial. The ammunition that paid interviews provide on cross-exam is a serious threat to a true verdict. Additionally, if the state or a state’s witness taints the jury pool with public pretrial statements, the defense can—and will—ask for a change of venue. Not so for the state, as prosecutors have fewer remedies against defense witness or defense lawyer misconduct.

Prosecutors nationwide learned a valuable lesson from the William Kennedy Smith rape trial in 1991. Anne Mercer, a critical witness for the prosecution, should have been the perfect “outcry” witness for the O B J E C T I O N !