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October 2, 2009
NACDL's 5th Annual Defending the White Collar Case Seminar - "Perfecting Your Panel--Tips from the Experts on Jury Consulting & Selection," Friday, October 2, 2009
Guest Blogger: Shana-Tara Regon, Director, White Collar Crime Policy, National Association of Criminal Defense Lawyers
Moderator: Abbe David Lowell
Picking up where he left off in the hypothetical from yesterday’s panel on public corruption cases, Abbe David Lowell closed NACDL’s 5th Annual White Collar Crime conference by moderating a panel on jury selection. Joining Mr. Lowell was Julie Blackman, Deborah Starr, the Hon. Noel Hillman and William Kettlewell.
Panelists first addressed the issue of a defense lawyer’s desire to prevent or reverse bad publicity in the broad sense, as opposed to a more focused approach on learning all that is possible about the actual people who are prospective jurors.
Judge Hillman discussed what might be his response to hypothetical leaks in a grand jury investigation, outlining what kinds of factors would lead him to judicially intervene, while Mr. Kettlewell addressed the pros and cons of engaging in a war of motions related to grand jury leaks.
Panelists specifically addressed the issue of whether and how to have aggressive “dueling” press conferences or other press strategies after the public announcement of an indictment of your client. Ms. Starr discussed the value of assessing how to engage with “social media” to help shape a counterattack, in order to help manage public perception. Drawing a laugh, Julie Blackman pointed out how judges are now instructing jurors “not to Google, not to blog and not to Twitter”—even when those judges don’t even understand what any of those terms mean.
The panelists pondered how a lawyer can assess whether their client is capable of getting a fair trial in a particular jurisdiction and when and how to consider moving a trial. Specifically, there was a discussion involving the use of email or phone community attitude surveys or mini “mock trials” that set forth the specific facts of your case, and how such tools can help assess the strengths and weakness of your case.
Ms. Blackman explained that these kinds of surveys are very helpful in helping a lawyer prepare arguments and witnesses for cases and have proven to be as predictive as political polling. Judge Hillman discussed the circumstances under which he might be willing consider a venue change. Mr. Kettlewell discussed the use of written questionnaires and the benefits of attorney voir dire, with Judge Hillman weighing in on the different ways that a court handles such matters, including what he perceives to be the benefits and efficiencies of a judge conducting individual voir dire in criminal cases. Judge Hillman prefers to conduct his own voir dire, as informed by questions that lawyers have previously submitted to him. He likes to do his questioning and stated: “I worry about people who want to be on a jury.” Ms. Blackman and Ms. Starr discussed how particular questions are useful in elucidating a potential juror’s prejudices and personality, as well as questions that might be useful in predicting outcomes.
Judge Hillman discussed how he might respond in a hypothetical situation involving a prosecutor’s claim that the defense was attempting to “taint” a jury pool by using community attitude surveys or trial simulations. He expressed the view that if such efforts were being conducted by defense lawyers, he’d like to know about it so that he can be sure that no one who communicated with the defense ultimately made it onto the jury.
Ms. Starr discussed the incredible depth of information available about potential jurors now—including social views, voting records etc. Ms. Blackman discussed how this specific information about your jurors can be entered into a sophisticated algorithm that correlates to the results of your telephone survey or trial simulation, resulting in highly predicative information. Judge Hillman expressed a concern about the mining of so much information about individuals and whether that will further discourage jurors from fulfilling a very important constitutional role in the process.
Questions and comments from the audience helped tease out the panelists’ views on which tools are the most effective if costs preclude the use of the full toolbox, and also touched upon the possible danger of information learned in the various polling processes from being leaked to the prosecution. This panel brought a close to a day and a half of incredible presentations by an unparalleled faculty. If you weren’t able to join us this time, I certainly hope you will consider joining us next year. And if any of the particular panels that have been blogged about sound like they address issues that you are dealing with in your practice, don’t despair—high quality audio recordings will be shortly available for purchase here. Stay tuned for future programming news at www.nacdl.org.
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