Friday, January 23, 2015

Some Thoughts on Pre-Trial Publicity Inspired by Jury Duty

By Michael Dorf

Last October, I received a summons for jury duty. Because it was the middle of the semester, I postponed my service to what should have been winter break, but as it worked out, I ended up with a new summons to appear on the first day of second-semester classes. I had mixed feelings about the prospect of serving on a jury for any substantial length of time. True, it would be disruptive, but not more disruptive for me than for anyone else with a job and other responsibilities. I figured out that in the event that I was chosen for a jury, I could teach some partial classes during the lunch break and make up the others later in the semester. And I thought it would be educational to serve on a jury.

No such luck. I have now been called for jury duty about half a dozen times but each time I am excused--presumably because one or the other side uses a peremptory challenge on me.

That makes some sense, I suppose. If I were a lawyer picking a jury, I would worry about a lawyer or law professor serving on the jury for two reasons. First, I would be concerned that she would hesitate to follow the judge's instructions if she thought that they misstated the law. Second, I would worry that other jurors would defer too much to the ostensible authority figure.

Indeed, every time I have been subject to voir dire, the judge and/or lawyers explore just these issues with me. And every time I say (honestly) that I would accept the judge's instructions and that I would deliberate with my fellow jurors as one of twelve equals. That second part isn't sufficient to allay all doubts, of course. The lawyers and judges might worry that even if the lawyer/law professor-juror did not seek deference from fellow jurors, the fellow jurors might accord such deference anyway. Still, that worry should not rise to the level of cause for excusing me, and so I conclude that this time, as before, one of the lawyers used a peremptory challenge to zap me from the jury.

Oh well. Occasionally lawyers and, less commonly, law professors, are actually chosen to serve on juries, but it is a sufficiently infrequent occurrence that I don't expect it to happen to me. Nevertheless, I do have a couple of observations based on my latest bout of jury duty. They concern pre-trial publicity.

I was part of a venire that was assembled to try a locally high-profile criminal case--a former Cornell undergraduate charged with committing rape nearly two years ago, when he was a senior. A majority of the prospective jurors knew something about the case based on pre-trial publicity, and thus much of the voir dire focused on whether people had followed the pre-trial publicity, whether they had formed an opinion based on it, and if so, whether they could set that opinion aside and base their verdict solely on the evidence. As anyone who has seen, conducted, or experienced voir dire would expect, most of the prospective jurors said that they could judge the case based soely on the evidence presented in court, and a few said they had doubts whether they could. Of the doubters, some were probably being truthful, while others may have been seizing an opportunity to say something that would get them out of jury duty.

The pre-trial publicity itself was peculiar in two respects. First, the defense attorney seemed much more concerned about the potential impact of pre-trial publicity than the prosecutor seemed. In most cases that would make sense. The presumption of innocence and rules of evidence do not apply to journalists, so news coverage can lead people to believe a defendant guilty when court procedures might not. That is in most cases, however. In this case, the particulars of the recent news coverage probably favored the defendant.

A few days before jury selection, a local newspaper ran a story indicating that the defendant had turned down a plea deal for a lesser charge that would have resulted in six months behind bars. If convicted at trial, he faces up to 25 years. A similar story appeared in another local paper. The first story refers to a "document," while the second does not name a source.

I have no idea how news of the rejected plea deal leaked to the press, but it does seem to me that, on balance, this aspect of the pre-trial publicity favors the defense. Jurors often expect a defendant to take the stand and insist on his innocence (notwithstanding his right not to, under the Fifth Amendment), but they may not give that much credence to a defendant's claim of innocence. After all, a person who would commit rape or any other serious offense would surely commit perjury to avoid prison--so a protestation of innocence would not really distinguish a guilty from an innocent defendant. But if jurors know that a defendant turned down a seemingly very good deal, that could tell them that the defendant is so convinced of his innocence that he is willing to risk a very large prison sentence on it. In addition, the plea offer itself tells jurors that the prosecution thinks its own case is pretty weak. Why else offer the defendant such a steep discount on sentencing for giving up his trial right?

In fact, there could be reasons besides the weakness of the case. Perhaps the alleged victim would very much prefer not to have to testify. Even testifying truthfully could be embarrassing and traumatic. So the fact that a defendant turned down six months in jail to face the possibility of 25 years doesn't prove that the defendant is innocent--but it does tend to suggest that the defendant believes either that he is innocent or that for some other reason he has a good chance of an acquittal. Hence, to the extent that a juror learned about the rejected plea deal and thought through its implications, that juror would be more likely to come away thinking the defendant is innocent than she would if she didn't read that story--or if she only read the more common kind of news coverage.

Of course, defense attorneys are so accustomed to thinking of pre-trial publicity as harmful to their clients, that it's quite possible that the defense attorney in this case worried about it simply out of habit. Or perhaps he thought that whatever small benefit his client received from the pre-trial publicity regarding the rejected plea deal was outweighed by other pre-trial publicity of the more conventional sort. Both of the stories linked above state that the defense planned to argue that the defendant was so drunk that he lacked the requisite mens rea for the offense, but that is not in fact the defense that is being presented. (The trial started on Wednesday and continues today.) In any event, the voir dire with respect to pre-trial publicity went more or less as it usually does--except in one respect.

That brings me to the second peculiarity of the pre-trial publicity. A good deal of it was just barely pre-trial. When we prospective jurors entered the courtroom, we could see the name of the case--PEOPLE v. MESKO--in big bold letters on a bulletin board in the front of the room. Prior to the judge's arrival on the bench, no one told us to put away our electronic devices. I used my iPad to read an academic paper but it emerged in voir dire that a large number of prospective jurors used their phones and tablets to search for news stories about the case. Many of them said that prior to reading about the case that very morning on their phones or tablets, they did not know anything about it. This was credible. Although the alleged rape was big news in Ithaca in 2013, the jury pool was drawn from the county as a whole, including communities where there was considerably less news coverage. And to be honest, although the case had been big local news in 2013, it was not that big a story overall, especially for those of us (i.e., academics and professionals) who tend to focus on national and international news more than we focus on local news. I myself only vaguely remembered anything I had read about the case, and much of what I've written here is drawn from stories I looked up after I was excused from jury service. Accordingly, it appeared to me that about half of the people who had a potential bias as a result of pre-trial publicity developed that bias the very morning of the trial, as a consequence of the court's own flawed procedures.

The remedy for this last problem seems so obvious that it is hard to believe it hasn't already been implemented universally: As soon as prospective jurors learn what case (or in busier courthouses, cases) they will be examined for, they should be forbidden from looking at any external material about the case (or cases). This measure won't address the bias from media coverage to which potential jurors are exposed before they realize they are potential jurors, but it would address a big chunk of a totally unnecessary problem.