Chapter 2 The Zen of Jury Selection

• Library: How to Win an Acquittal (ABA) (2011 Ed.)

CHAPTER 2 The Zen of Jury Selection Trial Diary 1

The trial of the ex-governor started Monday. Six prosecutors with a gaggle of agents in tow. An army of lawyers for Acevedo Vila, including a floor of Sidley's D.C. office and most of the criminal bar in San Juan. And me alone for Luisa Inclan. The media hounds us like hyenas ready to pounce. Several pages of stories run every day in the local papers. Cameras are thrust in our faces as we try to enter court. Every facial expression or incidental comment in court is reported. What the lawyers eat and where they stay seem of special interest. The press even staked out the trial judge's arrival at the airport. Visiting federal district judge Paul Barbadero, from New Hampshire. Tough, but fair, and amazed at the media circus.

We summoned 1,000 jurors. A week into the process, we have identified 24 who speak English well enough to sit as jurors and who are not too strongly members of the two tribes of political parties that dominate Puerto Rico. We need 40 plus to finalize jury selection. Everybody on the island is talking about the case and has an opinion. Every two opinions disagree.

Supporters of Acevedo Vila have set up a vigil at the entrance to the courthouse. Each day, Luisa and I push past the media mob and the large group of friendlies and walk the long sidewalk into the courthouse, heads up, ignoring the camera crews, hearing voices calling out blessings and curses. Today was even more special than usual, although there is nothing usual about this case, which moves to its own special tango beat. Today was Acevedo Vila's birthday. And Acevedo Vila's people came out in force on the street in front of court. Signs. Hundreds of folk in "Free Anibal" T-shirts. Lottery ticket salesmen offering cruise prizes in return for cash donations to the Acevedo Vila defense fund. A music truck blaring salsa music. And birthday cake. Lots of birthday cake. People were dancing and screaming and some fighting until police separated them. Chaos. Beautiful chaos. I am back in the Hotel California, San Juan style. Pray for me.

Trial Diary 2

Trial in San Juan case finally started. Took us a week and a half to go through 1,000 jurors. Problem wasn't so much finding 40 plus who understood English as it was finding people not biased by their party affiliation and not tainted by the media frenzy over the case. This is Puerto Rico's trial of the century. So intrusive is press here that the judge has sequestered jury to keep the press away from them.

Last stage was actual jury picking. We had 12 strikes. Prosecutors 6.1 ran the picks for the defense. We'd identified 10 bad jurors. Jury selection becomes a chess game. We wanted females more than males, and jurors willing to be open-minded. We had rated the jury group and anticipated the prosecutor strikes. My concern was to keep 2 strikes in hand because 2 bad jurors sat at the end of the pool. It worked. We avoided the bad ones and got eight women. Still—it's a bit voodoo, and only the verdict will tell us for sure that we did well.

WINNING VOIR DIRE

Trial lawyers will widely disagree on approaches to jury selection. Most of my cases are in federal court, and a majority of federal judges in criminal cases choose to conduct voir dire themselves. As many sources as defense lawyers can cite favoring lawyer-directed voir dire, and as eloquent as defense attorneys can be in urging a right to question prospective jurors, these judges say no. And they are permitted to say no. Control of jury selection is strictly at the discretion of the trial judge. So the starting point of jury selection in federal criminal cases, like so much else in criminal trial work, is knowing the judge. Know what the trial judge allows. If you lack information about the judge, ask around. Ask lawyers. Ask lawyers who recently had trials with the judge. Ask anyone who might know something useful.

And if the judge turns out to be one who permits no questioning of jurors by the lawyers, all is not lost. These judges expect the lawyers to submit proposed voir dire questions, and they will typically accept questions directed at identifying bias or that otherwise go to assessing possible cause challenges to a juror serving. Offer too many questions, and the key questions may get ignored. But it never hurts to try. Set out below is a sample of jury questions submitted to the court in a securities fraud trial I recently tried.

Proposed Voir Dire

1. Have you or any members of your family or close friends worked at the Securities and Exchange Commission, the Investment Dealers Association of Canada, or any agency involved in regulating the purchase and sale of publicly traded securities?

2. Have you or any members of your family had special experience or special training in regard to the purchase and sale of publicly traded securities?

3. Have you or any members of your family worked for a stock broker or securities firm?

4. Do you presently own any investments, such as stock market shares or interests in real property or limited partnerships? Have you ever invested in securities traded on what are called Pink Sheets or the Over-the-Counter Bulletin Boards?

5. Are you an active investor who buys and sells stocks frequently?

6. Do you use a stock broker to assist you with investments, or any money management advisor?

7. Have you had bad experiences in investment decisions or with any stock broker or money management advisor? Explain?

8. Have you ever sued or participated in a lawsuit relating to investment losses?

9. Have any of you, or your family or friends, been involved in a start-up business?

10. Have any of you, or your family or friends, been involved in trying to raise money for a start-up business?

11. Most start-up businesses fail. Does anyone think that a failed business automatically means that fraud occurred?

12. Some of the evidence in this case will be in the form of recordings made as part of a government undercover operation. Can you agree to listen to such recordings with an open mind, and wait to hear all the evidence in the case before deciding what weight, if any, to give such evidence?

13. Some of the government's evidence may consist of testimony by alleged accomplices or individuals who have entered into plea bargains with the government, seeking more favorable treatment in return for assisting the government. While it is perfectly appropriate that such plea bargains occur, the law says that such witness's testimony must be treated carefully and received with great caution. Is there anyone who cannot do that?

14. The defendant is a Canadian citizen. Is there anything about knowing that the defendant is a Canadian citizen that would preclude you from being fair and impartial in this case?

15. You will hear evidence that the defendant recommended and/or assisted people in buying and selling stock. I will later instruct you regarding what constitutes securities fraud. Do any of you have opinions regarding someone advising or assisting other persons to buy or sell stock that would make it difficult for you to fairly consider the testimony and follow my instructions?

16. Do you know any reason why you may be prejudiced for or against the government, for or against any witness, or for or against the defendant, due to the nature of the charges or otherwise? For example, have you had any unsatisfactory dealings with stocks or securities? If so, please advise whether this would prevent you from being fair and impartial to both sides in this case.

17. Do you have any bias or prejudice concerning the Department of Justice, the Federal Bureau of Investigation, or law enforcement generally, or people accused of fraud generally, that would lead you to be prejudiced either in favor of or against the government or the defendant? If so, explain.

18. I will be instructing you on how to decide issues of credibility. I will instruct you that you apply the same standards in judging the credibility of a law enforcement officer as you would use in judging the credibility of other witnesses. Could anyone not follow this instruction?

19. The government's evidence in this case also includes the use of an undercover FBI agent who, in dealing with the defendant, posed as someone else. He did not tell the defendant he was a law enforcement officer. I will instruct you that there was nothing per se illegal or improper about the government using an undercover agent to gather evidence. Do any of you have any opinions about the use of undercover operations that would make it difficult for you to be fair to either the government or the defendant in this case?

20. Do you have any opinions, religious beliefs, philosophies, or prejudices that would make you unable to come to a verdict in this case? For example, do you believe that no person should ever be judged or convicted, or that you could not sit in judgment of another person; or conversely, do you believe that anyone accused of fraud should be convicted?

QUESTIONNAIRES

An additional selection tool that becomes even more valuable when the trial judge is handling the entire voir dire is a juror questionnaire. Whether the court will utilize a questionnaire (which can be time consuming, costly, and raise logistics issues) is also directed to the court's discretion—and often refused. It is useful to talk about jury questionnaires and multipage questionnaires. Sometimes you can convince the trial judge to use a questionnaire that is a single-page document capable of being filled out quickly by the prospective jurors as they sit in the main jury room. When constructing a single-page questionnaire, space limitations restrict you to only a few key questions. An example of the single-page questionnaire follows.

Confidential Juror Questionnaire

1. Juror Name:__________ Juror Number:__________

2. County of Residence:__________ City/Town:__________

3. Marital Status: ___ Single ___ Never Married ___ Married ___Yrs.

___ Separated ___ Divorced ___ Living...