Waiting For Evidence In Whitey’s Trial – The Jury Enigma

IMG_3065While we await for the action to begin with the opening statement coming next week we have time to consider some other things as the lawyer’s go through picking the jurors. There’s a whole industry out there that advises lawyers on how to do this. In America, there seems to rise up an industry on almost everything imaginable. No one seems to be able to make a decision without a panel of experts behind them.

In this case I tend to doubt any of the members of the “jury pick advisory industry” are employed. I say this because there are seasoned lawyers on both side of the case and their experience in picking jurors is as sound as anyone who would tend to give them advise.  Having been there myself, there are some guidelines you can follow but trying to get into any person’s head is extremely difficult. Here’s a small example

I grew up in an Irish Catholic neighborhood. Most of my friends came from that crew although the Italians, Lithuanians, Polish and other Eastern Europeans were sprinkled in among us. One day many years later after I had left the neighborhood when I was a defense lawyer I happened to have a case in Suffolk Superior court. At that time jurors were chosen to sit for a month at a time. I happened to run into two guys I had hung around with as a teenager. Both were good guys who I really liked. One happened to have been one of the toughest guys in the neighborhood, the other probably the most easy-going.

I’ll call them Bill and Phil. There was nothing objectively different about either man. An outsider could study them closely and figure out what one believed the other would believe. But they were as different as night and day if you knew them well. When I ran into Bill we discussed old times and old friends. He opined during our conversation that he liked being a juror because he could just look at a guy and know he was guilty. Later I ran into Phil and had the same initial discussion about the old days. Phil opined that he liked being a jury because he knew anyone who was arrested by the Boston cops was not guilty. He thought they always charged the wrong people.

You’d never know this as a prosecutor or defense lawyer but whatever one you picked would have a significant influence on the outcome of the case. Later that month I heard that another guy from our neighborhood who was younger and who I didn’t know that well was on trial for a murder in a courtroom on the eight floor of the new courthouse. I was in the first session on the seventh floor waiting for a hearing on a motion. When the judge got involved in another case I went up one flight to take a peek at the murder trial. The court room was packed but I knew the court officer, told him I wanted to stay for only ten minutes, so he squeezed me in to a seat opposite the jury usually reserved for court officials.

I sat down looked at defendant who seemed relaxed. I then looked across at the jurors. There in the middle of the first row sat Phil big as life. He caught me looking at him, smiled at me, and winked. I scurried out of the courtroom not wanting to get involved. I really didn’t know for sure if Phil knew the defendant or if he did whether it would affect his opinion. I figured maybe he could do his job as a juror so I went back to my own case. Later I heard the jury ended up being hung with an 11 for guilty one for acquittal vote. Now I can’t say it was Phil who was the one vote for acquittal since jury deliberations are secret. So you can infer what you want.

The bottom line is that with all the experts in the world the most important thing for a trial lawyer is his gut instinct based on his experience in analyzing jurors. Even then you don’t know what’s in a juror’s heart.

16 thoughts on “Waiting For Evidence In Whitey’s Trial – The Jury Enigma

  1. Life imitating art ? Long time lurker, first time comment. Enjoy the blog very much. Today’s post reminded of a movie from 1996, “Sleepers”, starring Brad Pitt, R. DeNiro, Kevin Bacon and Minnie Driver …. Thank God for jury nullification and jurors like your old pal “PHIL” . At the very least, they neutralize guys like “BILL”, who “just look at a guy and know he’s guilty”.

    1. Gus:

      Thanks for reading. You’re right, Phil was a sleeper. I had a Phil on a jury once. I was prosecuting a case that went for several weeks and this guy in the back road, juror # 11, kept smiling at me. When I though I made a good point he’d nod. It was a hard case (conspiracy to murder) with two good lawyers on the other side. I would have bet anything I had at least one juror going my way. I learned later the jury went out and the first vote was 11 -1 for guilty. The guy held out 3 days until he finally gave in. When the jurors walked back in with the verdict he looked straight at one of the defendant’s and shook his head from side to side. I also learned the guy was a friend of the defendant. You never know.

  2. I may come across as a very suspicious soul here, but I am bothered by the report by CNN Reporter Chelsea Carter titled: “Report: Secret Court order forces Verizon to turn over telephone records of millions.” The period in question is from April 25 through July 19th. Carney and Bassil and/or their employees don’t have Verizon phones that could fall in that net-sweep do they? How about the witnesses? the victim’s families?

    See: http://www.cnn.com/2013/06/05/politics/nsa-verizon-records/index.html.

  3. Wondering whether any potential jurors would fall in that broad sweep as well, didn’t mean to leave them out.

  4. walked into barnes n noble wow there a boat load of whitey books if I was a author I would have waited for the trial to be over get all sides of the case anyway picked up the book on oscar goodman mob lawyer mayor of vegas he writes he represented vinny animal ferrera got him to plead out to 24 yrs. vinny tells him he didn’t commit some murder in the indictment but its in the plea. the federal d.a. with held evidence the witness recanted and a cop knew the guy lied. wolf ended up cutting like 6 yrs off his sentence and was gonna have the d.abrought up on ethics did you know the d.a. and what happened to him talk about some dirty dealings. just another mark on the boston office.

    1. Pat:

      It wasn’t a DA it was an assistant US attorney. Wolf found that he had misrepresented a lot of things to the court and he put on a witness he knew was lying. I just wrote a long reply to William, Patty, and Ernie saying I don’t think a prosecutor would ever do that and you come in and remind me I have an example right in front of my eyes that I forgot about. Here’s Judge Wolf in 2009 calling a prosecutor’s misconduct – http://federalism.typepad.com/crime_federalism/2009/05/suzanne-sullivan-is-an-unethical-prosecutor.html; the AUSA in the Ferrara case was Jeffreu Auerhahn. http://www.mainjustice.com/2010/12/10/panel-to-consider-disciplining-boston-ausa/ Here’s the ever reliable Dave Boeri telling the story and how he walked away from the charges. http://www.wbur.org/2011/09/16/jeffrey-auerhahn-cleared

  5. I disagree on your jury selection insights. The problem with Mass is no attorney led voir dire, so you basically get a crapshoot. Nearly any other state in the union permits lawyer voir doire and then, like usual, the pros stand out. Character traits, responding to attorneys cement, left v right brain attributes- they all matter. However, in mass, it’s pretty much the luck of the draw.

    1. Jim:

      You’re right about Massachusetts we go in blind, but my point was, which you agreed with at the end, no matter how much you think you know about a person you really know very little.

  6. Not cement, clearly. Movement. I once knew an upstate ny lawyer that would address the panel “this won’t take long, but please, sit bag, stretch, get comfortable.” His watching associate have a “+” for every potential juror that laid back in the chair; “-” for those sitting at attention. Mass has none of this.

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