Tsarnaev Voir Dire: This is my friend Dzhokhar

January 16, 2015

Voir dire (to question) is underway. The video is an interview of Ted Wayman, a former WBZ News anchor in Boston who was summoned for jury duty in the Tsarnaev case and excused because of his substantial job related contacts with Judge O’Toole, federal prosecutors and law enforcement officers who will be testifying at the trial. The interview was conducted by Adam Reilly, a reporter for Greater Boston.

Q: What did you make of his demeanor, when he came in? Were you watching him closely?

A: Everybody, all eyes, once he came in, were on him, like almost gasped within the courtroom. Oh my gosh! That’s the defendant. Uhm, unresponsive. Really uninterested in the whole process. Had very little contact with his defense team. He was sitting in the middle of them. Uhm, really didn’t look at the jury pool. Didn’t look at the media that was there. Didn’t look at the judge when he addressed the defendant. He was uninterested in the whole process.

This is a terrible way for the defense to start jury selection. First impressions matter, a lot, and if I were a member of Dzhokhar Tsarnaev’s defense team, I would be extremely concerned about the ability of the rest of the 200 or so prospective jurors, who witnessed that not-so-grand entry, to be fair and impartial jurors.

Another tell is Wayman’s reference to Dzhokhar as ‘the defendant.’ He’s not thinking of him as a person; he’s thinking of him as a thing. That means he has already decided that Dzhokhar is guilty. Fortunately for the defense, they will not have to use a peremptory challenge to get rid of him.

I always made a point of humanizing my client throughout the trial by referring to him by his first name, touching him, and conversing with him in an effort to provoke a smile. At almost every moment of a trial, at least one juror will be watching the client. Trials are a form of theater. Nonverbal conduct is a form of testimony. Most jurors can detect insincerity. Therefore, the lawyer must avoid scripting the client’s behavior and instead provoke the desired genuine response with the right word or gesture at the right time. This skill is not taught in law school and cannot be found in a book. Yet, if performed at the right time in the right way, it can make the difference between a conviction and an acquittal or a life sentence and a death sentence.

The defense team apparently discovered the problem because reporters observing voir dire today have tweeted that Dzhokhar appears relaxed, engaged with the process and communicating with his attorneys. For example,

O’Ryan Johnson ‏@crimeboston 3h3 hours ago

Dzhokhar shares a laugh at the defense table with Def. Lawyer Miriam Conrad. Tsarnaev wearing open collar shirt, blazer. He’s relaxed,chatty

Jim Armstrong ✔ @JimArmstrongWBZ

I am a pool reporter* for this session of #Tsarnaev jury selection. He just re-entered from lunch, says hello to lawyers by name.

*Today is the second day of voir dire. The reporters were segregated yesterday in a room watching a live feed video of voir dire. Technical difficulties resulted in a change in procedure. Two reporters are now permitted in the courtroom to report on the proceedings. They share their work product with the other reporters outside the courtroom and are replaced by another two reporters and so on per each session.


Tsarnaev: Death penalty cases are won or lost during jury selection

December 29, 2014

Monday, December 29, 2014

Good evening:

Most death penalty lawyers will tell you that a death penalty case is won (i.e., LWOP) or lost (i.e., death sentence) during jury selection. That is because we have seen and done it all and have generally mastered the art of trying cases so that we know to a reasonable certainty whether the jury will convict or acquit the client.

Today we are going to learn about and discuss jury selection in a federal death penalty trial. As you will soon discover, jury selection is more aptly described as deselection. Each side attempts to get rid of the prospective jurors they do not want by challenging them for cause or by peremptory challenge.

1) Challenge for Cause: No limit to the number of challenges, but you have to satisfy the judge that the prospective juror whom you challenge cannot fairly and impartially try the case or follow the court’s instructions. Your challenge will be denied, if you fail to convince the judge.

2) Peremptory Challenge: Each side gets 20 challenges. You don’t have to give a reason to support your challenge, but you cannot use your challenges to exclude prospective jurors solely on the basis of race, gender or religion. For example, the prosecution cannot use peremptory challenges to exclude Muslims. They would have to genuinely have other reasons or the challenge would be denied. The defense has a pending motion to increase the number of peremptory challenges to 30 per side because of extensive pretrial publicity. The government opposes the motion and it will likely be denied since the rule is quite specific about 20.

Jurors will be questioned in three ways. First, they will be asked to fill out a questionnaire. Then they will questioned together as a group and thereafter individually, depending on their answers to some of the questions on the questionnaire or during group voir dire. BTW, voir dire means to question. Attorney voir dire occurs when the lawyer do the questioning.

1,000 prospective jurors have been summoned in the Tsarnaev case. The goal is to seat a jury of 12, plus alternates who will well and truly try the case according to the instructions given by the court.

The first task in the selection process is to go through the questionnaires and excuse people who cannot serve because of the length of the trial, economic hardship, poor health, bias (related to or know victims, witnesses, lawyers or court personnel), prepaid vacations, etc. This usually reduces the pool of prospective jurors by about 50% or more.

Since this is a highly publicized death penalty case, the two major areas of inquiry during voir dire will be: (1) effect of pretrial publicity on ability to fairly and impartially try the case based only on the evidence introduced in court and, assuming the defendant is found guilty, (2) effect of opinions about the death penalty on a juror’s ability to follow the jury instructions that require weighing the aggravating evidence and mitigating evidence in deciding whether to sentence the defendant to death or to LWOP. Jurors will be questioned individually out of the presence of the others to avoid influencing them with their responses regarding these topics and possibly religious beliefs, since Dzhokhar Tsarnaev is allegedly a Muslim jihadist.

More specifically,

1) Pretrial publicity: The test is not whether someone has heard or read about the case. The test is whether they have formed an opinion about the guilt or innocence of the accused such that they would not be able to fairly and impartially try the case. They will be excused for cause, if the answer is “Yes.” If the answer is, “No” they will be questioned individually out of the presence of the others for more information to challenge or pass the juror for cause on the subject of pretrial publicity. If a challenge for cause is denied, the party asserting the challenge likely will use a peremptory challenge later on to get rid of that person.

2) Opinions about the death penalty: Jurors are told that they have to be questioned regarding their opinions about the death penalty before the trial starts because there will not be an opportunity to question them later, if the defendant is convicted. Therefore, they are told to assume guilt when they are questioned. Invariably, a majority of the time spent selecting a jury involves the death qualification process. The test is whether the prospective juror could weigh the aggravating and mitigating evidence and render a verdict according to the jury instructions. Anyone who would automatically vote for the death penalty, if the defendant is convicted as charged, will be excused for cause, Same is true for anyone who would automatically vote for LWOP because they are opposed to the death penalty. This is called death qualifying a jury and it inevitably produces conviction prone jurors because so-called scrupled jurors (who oppose the death penalty) are more likely to vote not guilty than guilty. This feature is another major reason why it’s so difficult to win a death penalty trial.

The goal will be to get a panel of probably 75 or more people who have been passed for cause by both sides. The size of the panel has to be large enough so that there will be enough people left to seat a jury of 12, plus the alternates. If each side uses its full complement of 20 peremptory challenges, that would reduce the panel by 40 people, and possibly a few more, if one side or the other successfully challenges the other side’s improper use of a peremptory challenge to get rid of people based solely on race, gender or religion. Each side also gets a peremptory challenge to assert for each alternate.

It’s OK to end up with a few too many. It’s not OK to end up without enough because then you have to bring in another group of people to question.

One of the extremely bizarre aspects of the death qualification process is the effort by defense counsel to save scrupled jurors from being excused for cause by getting them to admit that they could follow the instructions and impose the death penalty despite their opposition to it, if the aggravating circumstances outweighed the mitigating circumstances. Similarly, prosecutors befuddle jurors who would automatically vote for the death penalty by attempting to get them to admit that they could vote LWOP despite their support for the death penalty, if the mitigating circumstances outweighed the aggravating circumstances.In either case, the object is to force the opposing counsel to use one of their precious silver bullets (i.e., peremptory challenges). The hope is they will run out of ammo before you do and you’ll get some scrupled jurors on the jury.

That is more likely to happen in Massachusetts where a majority of the voters are against the death penalty than would be the case in Texas or Florida where you would be lucky to find a scrupled juror in a group of 1,000 people.

Last but not least, both sides will be on the lookout for possible ‘stealth jurors.’ They are agenda driven people who will lie to sneak on a jury and vote for a particular outcome, regardless of the evidence. This is called jury nullification when the stealth juror votes contrary to the evidence and the instructions. Both sides are likely to have support staff checking social media for potential stealth jurors.

It took 3-4 weeks for me to select a jury in every death penalty case that I tried. Then it took 6-9 months to try the cases.

Since federal court does not allow cameras or audio recordings in the courtroom, we will not be able to watch this fascinating process that is so critically important to the outcome of every trial.

And there you have it.


Tuesday Evening Open Discussion: Comparison of Wafer to Pistorius

July 22, 2014

Tuesday, July 22, 2014

Good evening:

Welcome to the Tuesday Evening Open Discussion where off topic is on topic.

A jury of 12 with two alternates has been selected in the #TheodoreWafer porch-shooting case. Two black females, two black males, one Arab male, two minority females, three white females and four white males. Don’t know anything else about them because jury selection was not televised or live streamed.

I am frustrated by the decision not to broadcast jury selection because that is where most trials are won or lost.

Opening statements will commence at 10 9 am EDT tomorrow. They will be livestreamed as will the rest of the trial.

Many people have compared this case to the Zimmerman case, but I believe it more closely resembles the #OscarPistorius case because the defendants in both cases are claiming self-defense after shooting through locked doors at people whom they say they believed to be an intruder (OP) or potential intruder (TW).

What do you think?

Anything else on your mind?

This is our 1149th post.

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Thanks,

Fred


We need to abolish the use of peremptory challenges in jury trials

June 26, 2014

Thursday, June 26, 2014

Good morning:

The SCOTUS prohibited the use of peremptory challenges, for which no reason must be given, to systematically exclude blacks from juries in criminal trials of black defendants in Batson v. Kentucky.

Batson permits the use of peremptory challenges to exclude blacks from juries so long as the party challenging the juror has a race neutral reason for asserting the challenge.

The Batson rule applies to all cases, whether criminal or civil, and it has been extended to prohibit the use of peremptory challenges to systematically exclude jurors based on gender or religious affiliation.

Unfortunately, a smart lawyer usually can come up with a race neutral “reason” to exclude a black juror, however unlikely, to pass judicial scrutiny.

The reverse side of that racial injustice is the acquittal by all white juries of guilty white defendants who murdered black victims.

We saw that in the Zimmerman trial.

Justice Thurgood Marshall realized games were being played in the aftermath of Batson. He wanted to solve the problem by getting rid of peremptory challenges.

Until recently I disagreed.

I quit practicing law ten years ago and it has taken me this long to finally change my mind and acknowledge that Justice Marshall was right.

We should not be excluding anyone from serving on a jury without a valid reason. By eliminating peremptory challenges, we would be requiring lawyers to present a convincing case for disqualifying a juror, convincing in the sense that opposing counsel would have an opportunity to rehabilitate a challenged juror.

This is how courts handle challenges for cause. Unless unopposed, each challenge for cause becomes a mini trial decided by the judge after each side gets an opportunity to question the challenged juror.

By forcing lawyers to support a challenge with an evidence based reason, instead of a hunch or a prejudice, we would do no more than subject them to the same standard to which we routinely hold police officers when they arrest a suspect. Such a rule would only improve our system of justice.

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Thank you,

Fred


Game within the Game: Despite strong case prosecutor may lose Wafer trial in jury selection

June 20, 2014

Friday, June 20, 2014

Good evening:

Judge Dana Hathaway granted a prosecution motion today in the Theodore Wafer murder case that will permit them to provide the jury with transcripts of statements he made during his 911 call and subsequent interrogation by police regarding shooting and killing 19-year-old Renisha McBride.

Armed with a 12 gauge shotgun, he unlocked, opened his front door, and shot her in the face through the locked screen door in response to her knocking on his door early one morning before sunrise. She was unarmed.

He was charged with second degree murder and is claiming self-defense, even though he initially said he fired the gun accidentally.

Game within the Game:

Wafer has a classic were-you-lying-then-or-are-you-lying-now predicament to credibly explain why he said accident when he meant to say self-defense. Since the prosecutor wants transcripts of what he said, there must be other inconsistencies and contradictions that the prosecutor wants to use to skewer him.

People are better at remembering what they read compared to what they see or hear and their recall improves substantially beyond that, if they simultaneously read what they see and hear.

In other words, ain’t nothing in those statements that will help Mr. Wafer.

The Detroit Free Press reported this afternoon that Judge Hathaway continued the hearing to next Thursday (6/26) regarding the defense motion to introduce bad character evidence about Renisha McBride.

The defense is claiming that her social media, including photos on her cell phone, and school records are admissible to show that she had an aggressive and violent disposition.

She will also take up the defense motion to introduce evidence that the character of the neighborhood was changing and McBride may have been knocking on his door by mistake thinking a marijuana dealer lived there.

I do not believe that any of that evidence is admissible.

I am concerned about one thing the prosecutor said today.

The prosecution asked for a jury pool of 200 people today, saying it only plans to ask prospective jurors a few questions: Do you know about this case? What do you know about it? And can you be fair?

Game within the Game:

Colossal mistake equivalent to going to bed at night leaving your back door wide open with an engraved invitation to burglars to come in and steal everything while you sleep.

The problem of jury nullification by racially prejudiced stealth jurors determined to acquit white defendants who murder unarmed black victims, regardless of the evidence, is painfully real. The answers to those three questions will not help the prosecutor determine whether any potential juror is a stealth juror.

The prosecutor who said that is inviting disaster.

Trial is scheduled to start July 21st.

A few words about me: I rely on my 30-year experience as a felony criminal defense attorney and my three years experience as a law professor to analyze the game within the game explaining the applicable rules of law and procedure and the reasons why the lawyers and judges do what they do.

My goal is to assist readers to see through to the heart of a case despite the confusing turmoil of words and phrases that often conceal it.

To educate is to liberate.

If you enjoy and appreciate what I do, please make a donation.

Thank you,

Fred


Racists should be banned from jury service

June 13, 2014

Friday, June 13, 2014

Good afternoon:

Xena posted a comment to my post about Theodore Wafer advising that his hearing has been continued to next Friday, June 20th.

She also said,

Did you read the part where the defense wants to argue that Renisha mistook Wafer’s house for a drug dealer’s house? The defense’s argument is that someone who lived close to Renisha was arrested for marijuana after Renisha was killed.

This presents an interesting new wrinkle to putting a victim on trial for a homicide, so let’s break it down, take a look and estimate the probability that it will be successful.

Let’s begin by assuming for the sake of argument that,

(1) someone who lived near Wafer’s house sold marijuana,

(2) McBride had previously purchased marijuana from that person at that address, and

(3) she mistakenly believed she was knocking on that person’s front door when she knocked on Wafer’s front door.

I don’t believe that set of assumed facts, which Wafer did not know at the time of the shooting, helps his claim of self-defense because, regardless of her intent, he had to be in fear of suffering imminent death or grievous bodily harm and his belief had to be reasonable. That is, a reasonable person in the same situation also would have believed that he was in imminent danger of suffering death or grievous bodily injury.

The racist right wing hate machine skips over the word reasonable because its members devoutly believe that their opinions are reasonable.

They fail to understand that the word reasonable in a legal context means evidence-based, as opposed to opinion-based. Racial prejudice is by definition opinion-based, rather than evidence-based. Therefore, it is unreasonable and no verdict should ever be based on it.

Prospective jurors who are unaware of their racial prejudice, or who deny being prejudiced when they know damn well they are prejudiced, should never sit on a jury when a person of color is the defendant or a victim allegedly injured or killed by a white defendant.

Even if McBride had a gun and intended to kill Wafer, and there is no evidence that she did, nothing about the situation he was in would likely have caused a reasonable person to believe he was in imminent danger behind the two locked doors. Seems to me that opening the door demonstrates unequivocally that he did not fear death or grievous bodily injury.

That act is an evidence-based expression of his state of mind when he opened the door and it defeats his claim of self-defense.

The castle doctrine does not help Wafer because she did not attempt to break in or enter his house. She was unarmed and outside his house knocking on the door. He was inside his house in a safe location on the other side of two locked doors while armed with a loaded shotgun and he had a cell phone with which to call 911.

He cannot create a necessity to act in self-defense by opening the door.

We might have a different situation if he were living next to a drug house with all sorts of people coming and going at all hours of the day and night occasionally mistaking his house for the drug house, but even then he would have to have an objectively reasonable basis to believe his life was in danger, as opposed to being pissed off that someone was knocking on his door disturbing his sleep in the middle of the night.

As a matter of law, therefore, I believe the answer is easy. The evidence that the defense seeks to introduce is irrelevant and inadmissible.

Just as O’Mara and West did in the Zimmerman trial, the defense is attacking the victim’s character in an effort to say she deserved to die.

However, as much as right-wing racists want to believe that they have a right to kill any person who is young, black, drunk and/or stoned (e.g., George Zimmerman), especially if that person is listening to loud music and is disrespectful (e.g., Michael Dunn), the law recognizes no such right or privilege.

Finally, do not forget that Wafer did not initially claim self-defense. He told the police that his gun went off by accident.

Look for the defense to do everything it can to keep him off the stand at trial, so he does not have to explain to the jury which story was a lie and why he lied instead of telling the truth.

Trial lawyers love it when they get to ask, “Were you lying then or are you lying now?”

For all of these reasons, I believe the evidence the defense wants to introduce is irrelevant and inadmissible. I also believe a jury will convict him of murder, provided the prosecution identifies and eliminates all potential stealth jurors who would willingly substitute their racially prejudiced opinions about black teenagers for actual evidence.

We have seen jurors do that in two Florida trials.

The question is whether the prosecution will permit that to happen in Detroit.

Wafer’s trial is scheduled to start in five weeks, probably not long after Judge Thokozile announces her decision in the Oscar Pistorius case.

This is our 1082nd post. If you appreciate this analysis and our continuing effort to explain what is happening between the lines in our failing criminal justice system, please make a donation.

Thank you,

Fred


Open Thread

February 3, 2014

Monday, February 3, 2014

Good afternoon:

Day 1 of jury selection in Michael Dunn case ended today with 36 people excused for cause with 46 reporting back tomorrow at 1 pm and 30 new people will be brought in at 8:30 am to fill out a questionnaire and be individually questioned by counsel and the court.

The public and the media have been prohibited from being in the courtroom until after jury selection is concluded and counsel are ready to make their opening statements.

The reporters have been placed in a separate room with audio of the hearing piped in. The audio did not work very well. At times counsel’s questions could not be heard and at other times juror responses were inaudible.

All in all, this was exactly the wrong way to dispel suspicions that the outcome of this trial is rigged.

After the dreadful result in Trayvon’s case that was due in no small part to screwed up jury selection by the prosecution regarding B37, I expected Angela Corey would insist on openness to defend her reputation and the reputation of her office.

For those who are inclined to believe that the fix in, you probably do not need any additional evidence.

Nevertheless, there is additional evidence. I refer to Dunn’s jailhouse phone calls.

Corey has effectively buried them for the time being, despite an order from the Court of Appeals to disclose them.

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This is our 874th post. Please make a donation. We need money to keep going.

Fred


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