Will the Boston Bomber Be Tried by a Jury of His Peers?

Will the Boston Bomber Be Tried by a Jury of His Peers?

Selecting Fair-Minded Jurors Is Always Complicated. For a Raw, High-Profile Case Like This One, It’s Nearly Impossible.

Senior Vice President Claire Luna wrote the following article, which was published online last week by Zocalo Public Square, an affiliate of Arizona State University, a not-for-profit Ideas Exchange that blends live events and humanities journalism.  Jury selection in the Boston marathon bomber trial is ongoing.

With a jury pool the size of a small town, a questionnaire of nearly 100 questions, and an accused mass murderer’s life in the balance, the jury selection in the first Boston Marathon bombing case has consumed more time than the vast majority of trials do from start to finish. Jury selection started January 5, and the scheduled trial start date of January 26 has come and gone. After more than six weeks, prosecutors, defense attorneys, and the judge are still trying to cobble together a group of jurors who haven’t already decided that Dzhokhar Tsarnaev is guilty.

I’ve watched a lot of trials and heard from a lot of jurors—first as a reporter covering the court system in L.A. and, for the past nine years, as a jury consultant who (in most cases) has worked for the defense. I’ve been a part of jury selection for civil trials in 17 states, on subjects including police use of force, workplace discrimination, and cruise ship negligence, but none has ever stretched longer than a month. Jury selection is a complicated process for even straightforward trials, which is why jury selection in Tsarnaev’s trial is likely to be as difficult as digging out from under all that New England snow.

We often get a list of names before questioning and look online for everything we can find about potential jurors: property records, Facebook pages, LinkedIn profiles. Almost everything is relevant—a fitness board on Pinterest could indicate a juror who values taking care of her health, and conspiracy-leaning Tweets may signal a juror who will be all too ready to buy into the plaintiff’s theory of cover-up. When we get the list of names in advance, we do the searches in advance as well—up to 700 in a single weekend. More typically, we only learn the names once in the courtroom, so I snap a picture of the list with my iPhone and text it to my staff, who immediately start the digging back at our home office in Orange County.

We continue to monitor whatever public social media we can find during the trial. While observing a case unfold in Florida, I saw a Facebook status update from a juror that indicated he was talking about the case to his friends while the evidence was still coming out. It was impossible from his posts to know which way he was leaning, but his clear disregard for the judge’s directives warranted booting him from the jury.

In the Boston trial and most other trials I’ve seen, voir dire—the questioning of prospective jurors to elicit bias—consists of calling in jurors individually and asking them to elaborate on the opinions they shared on their questionnaires. This allows potential jurors to speak far more openly about delicate subjects such as the death penalty and avoids poisoning the pool with extremely strong opinions.

Unfortunately, individual voir dire also eliminates the opportunity for the panel of potential jurors to influence one another. If we already know a juror will be kicked off for defense-leaning bias, we may still question him further in front of everyone so he can share his relevant knowledge and essentially coach other jurors about a crucial topic. For example, a juror who has had back surgery can share the significant risks involved, regardless of what care the hospital provided. In the same vein, we want jurors with adverse experiences to keep them quiet, such as the Los Angeles juror all too willing to share about the recent death of his cousin at deputies’ hands during the civil trial of police accused of improperly killing an unarmed civilian.

No matter how the questioning is done, both sides are trying to eliminate the jurors least likely to favor their side. In fact, the term “jury selection” is a misnomer. The process is more accurately described as “de-selection” of the worst, most biased jurors. Virtually every lawyer I know classifies jurors during jury selection with some sort of scale from best to worst—I use red, yellow, and green and add a “plus” if the person has leadership experience. We always highlight potential leaders (such as teachers or people in upper management) because we need to be especially careful about leaving them on the jury. A plaintiff-oriented leader with the power to persuade the jurors in the middle is far more dangerous than a passive one. I’ve worked with many lawyers (and our shared clients, the actual defendants on trial and/or the insurance company that would be stuck with the bill in the case of a plaintiff verdict) who are so eager to “get the greens” on the jury that they forget the other side will most likely strike them. Identifying the three, six, or nine people we should get rid of is the most pressing goal, and I always keep a running tally on a Post-It next to me of the top five jurors we need to strike. The number of strikes varies depending on the trial, the judge, and the expected length of the case, but is typically four to eight per side. To provide context on the scope of the Boston trial, each side will get 20 strikes.

In Boston, it’s clear the attorneys are doing their best to try to rehabilitate some of the potential jurors to keep them on the panel. Those who oppose the death penalty are being probed to see if there’s any wiggle room in their opinions. The same is being done for those who categorically believe the accused is guilty. In the cases I’ve worked on, we don’t do rehabilitation because we don’t think those people have any chance of getting on the actual jury. Rehabilitation prevents the judge from removing jurors from the pool “for cause,” without penalty to either side, which he can do if the juror straight-out says she can’t be fair. We want to keep those jurors with obvious biases in our favor so that the other side is forced to use their valuable strikes to get rid of them.

With the plentiful bias among the jurors in the Boston case, it might seem almost a relief to find one with no strong opinions and no hardship impeding him from sitting on a multi-month trial. But beware the juror who seems too eager to get in that jury box. A sense of civic duty or retirement-related boredom aside, virtually no one wants to be in a courtroom for that long, no matter how high-stakes the trial. We once were in voir dire with a person who eagerly agreed to move a doctor’s appointment and a vacation in order to be a juror on a trial against a hospital. But a review of the hospital billing records turned up that her husband had died at the facility just the previous year. We didn’t keep her around long enough to find out how, as that information alone convinced us she had an agenda.

Jurors are often unaware that all this strategizing is going on. When I am sitting at the counsel table with the lawyers in front of the bar, I try to look innocuous to avoid tipping off the other side about who I am. It helps that I don’t look like most jury consultants—who are older, Ph.D.-types. Dr. Phil, for instance, is probably the best-known jury consultant; he became famous after advising Oprah Winfrey on a case in Texas.

In Boston, they’re never going to find those jurors with no knowledge of the bombing. The best they can hope for is finding people who don’t indicate either verbally or by any other means that they’ve already made up their minds. The length of this jury selection is evidence this trial touches far more emotional chords than expected and is also a sign of these media-saturated times. So much has been published about this tragedy and its aftermath. If someone admits to still being open-minded, it begs the question: What more could you possibly need to hear? In Boston, both sides are hoping that in this group of 1,373 they find the few still willing to listen.

Making Memories More Credible

Just last week NBC announced news anchor Brian Williams would be suspended without pay for six months after he admitted falsely reporting some of his war coverage.  There’s no denying Williams was never in a helicopter brought down by a rocket, but he had been perpetuating the story for years.

Though there is no way to truly know why Williams changed or made up the story, the fact is people often have their own version of events that aren’t exactly lies - but aren't the truth, either.  There’s a psychology to how we remember events – particularly traumatic ones.  Although many of us aren’t trying to falsely construct our own versions of events or embellish what happened, studies show perspective and time can change how you recount a memory.

This can be particularly troublesome during depositions or testimony when the witness is trying to remember events that happened months or years before.  The plaintiff’s version is likely skewed by trauma and emotion, while defense witnesses may have a hard time remembering details given the passage of time.  So what are you to do when neither side is intentionally lying?

We often find during focus groups that jurors are quick to judge short clips of testimony based on how the witness remembers the events.  For example, they might negatively judge hospital caregivers who don’t have specific memory of a patient, since jurors believe that lack of memory equates to lack of compassion.  Conversely, a plaintiff with specific and emotional recollection might be considered more truthful simply because they display strong conviction in their beliefs.

In order to avoid misinterpreted memories or inaccurate reporting of facts, it is important to make sure your witness distinguishes between memory and fact.  Though many jurors believe lawsuits and the incidents leading up to them are uncommon and therefore the events should be particularly memorable, they need to have the context that for many defendants, these events took place in the course of their job and the unfortunate fact is they are more common than typically believed.

When recalling events, it is important to remind the witness to take their time, review records and ensure they are accurately recalling something.  We have found witnesses to be perceived as more credible if they take their time and speak confidently based on the facts in front of them – including records and contemporaneous notes.  Also, a witness who speaks with an appropriate level of feeling will likely be better received than one who provides only a cold recitation of dates and times.

If you believe you have a witness that could benefit from a boost in confidence or needs some assistance telling their story on the stand, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

Jurors Believe in Medical Record Magic

Even with what we hear on a daily basis about jurors’ unrealistic expectations for medical caregivers, there are still times when even we are surprised by the extent to which the public’s perceptions of healthcare are divorced from reality.

Case in point – the continuing belief there exists an omniscient, nationwide medical record system that allows caregivers to pull up a patient’s complete medical history with the click of a button.  In a recent survey we conducted of jury-eligible people, 56 percent said they believe there is a system in place that “allows hospitals to access all of a patient’s past medical records.”  This means that more than half of the potential jurors surveyed would walk into a courtroom with a fundamental misperception about the healthcare system’s capabilities.

This perception is particularly damaging because it makes it inexcusable for a caregiver not to know some important aspect of a patient’s medical record, an issue that comes up often in cases where a patient fails to provide an accurate and complete history.  “The patient didn’t tell us” is no longer a sufficient excuse.

Perhaps this particular misperception shouldn’t be so surprising.  In the age of instant information, people expect nearly all information to be perfectly and instantly accessible – especially information held by industries as supposedly sophisticated as the American healthcare system.  Moreover, every time people visit a doctor’s office they see nurses entering information into a computer, so it’s not unreasonable to believe it might be going into some vast database. 

As always, it’s up to you to challenge and overcome the misperception that complete medical histories are instantly accessible.  In this case, a little education can go a long way:

• Ask potential jurors during voir dire if they believe there is a national database allowing caregivers to retrieve a patient’s complete medical history.  Use this opportunity to educate them that although such a system has been discussed for years as part of healthcare reform, it does not exist in any hospital and will not for the foreseeable future.
• Jurors often confuse electronic medical records (EMR) with a nationwide database.  Educate them that EMR system information is available only within that hospital.  Hospital X cannot retrieve information about a heart attack a patient had years earlier at Hospital Y.
• Educate jurors that because there is no such system, patients’ honesty and forthrightness is extremely important.  If caregivers aren’t told about an important aspect of a patient’s medical history, they have no way of learning that information.
• Jurors understand that patients often lie or conceal aspects of their medical history, especially when it comes to lifestyle issues such as drinking, smoking, drug use or sexual behavior.  During voir dire, poll the panel on how often they believe patients are less than truthful. 

If you have a case involving an aspect of the medical history caregivers weren’t aware of, we’d love to help you find a winning strategy.  Contact Senior Vice President Claire Luna at 714.754.1010 or cluna@juryimpact.net to find out how we can help.

Plaintiff Jurors Focused on ‘Profits Over People’

The tension between corporations’ right to maximize profits and people’s right to be treated fairly, whether it's employees or customers, has long been one of society’s most persistent debates.  The tried-and-true storyline of “big money” versus “the little guy” still has legs today, and is a powerful force in how trial jurors frame and evaluate the claims in civil cases.

We have often observed during our focus groups nationwide that plaintiff-minded jurors tend to view a hospital as just another business trying to maximize profits.  Even more worrisome is their belief that patients pay the price through corner-cutting, penny-pinching care. 

These attitudes are far reaching.  We recently conducted a survey of 634 jury-eligible participants in one of the most plaintiff-oriented regions of the country – the Baltimore-Washington metro area – and found nearly 50 percent agreed hospitals put profits before patient care.  Only one-quarter of participants disagreed, and around the same number were in the middle. 

Do you agree or disagree with the following statement: For most hospitals, profits come before patient care

In the survey, respondents clearly believed this focus on profits directly affects the care decisions doctors and nurses make on a daily basis.  In fact, 66 percent of the panel agreed doctors sometimes don’t run important tests because of costs, and the majority believed those with health insurance receive better care than those without.

In the context of a medical malpractice lawsuit in which there has been an unfortunate or even tragic outcome, these attitudes cause jurors to look for times in which caregivers negligently cut corners or withheld tests or treatment in order to decrease the cost of care and improve the bottom line.

At trial, the first step in combatting this perception is understanding who in your jury pool is most likely to think this way.  Our survey results showed that those who most strongly agreed that hospitals put profits over people were the unemployed, Hispanic/Latinos and those who have children living at home.  In other surveys and our own experience, we have observed that groups who could be considered disenfranchised – low-income earners, those on government assistance, racial minorities, those who have been laid off in the past, etc. – tend to embrace these beliefs the most.

Should you end up in a trial where the “profits over people” narrative could rear its head, we recommend challenging it head-on in your own statements and through witness testimony.  Here are some ideas for how to do that:

• Ask caregivers to explain their logical reasons why specific tests were ordered and others were not.  Bolster these statements with statistics about the rarity of a diagnosis or how common particular symptoms are of another diagnosis.  This will provide jurors a logical reason for caregivers’ decisions – other than the bottom line.
• Remind jurors that doctors usually aren’t hospital employees and don’t care about or even consider the costs.  They’ll order whatever they think is necessary, no matter what it costs.
• Ask nurses and doctors directly if they care about how much profit the hospital makes.  We’ve yet to meet one who does.
• Educate jurors that doctors and nurses do not even know about a patient’s insurance status – only the billing department knows that information.
• The data show that jurors trust nonprofit and university hospitals more than for-profit ones, so if your client is a nonprofit or university hospital make sure to educate jurors about how these work.  It’s hard for laypeople to understand how an institution that brings in billions of dollars annually is “nonprofit.”
• If applicable, educate jurors that doctors can actually benefit from ordering more tests.  During a recent set of focus groups, jurors were shocked to learn a doctor actually earned commission from the tests he ordered – and this was a powerful argument for the defense.

You want the jury to know the bottom line for the caregivers you represent is that they did what they could for the patient and weren’t even thinking about dollar signs.  If you want to explore the impact of the “profits over people” bias in one of your cases, please contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.