Monday, February 18, 2013
Should the defendant opt for an immunity hearing or should he waive it?
I conclude that he should waive it because he has a vanishingly small chance to win the immunity hearing together with a substantial probability that the publicity generated by the hearing will cause irreparable damage to his credibility and destroy his claim of self-defense.
First, the defendant has the right and the responsibility to make the decision. His lawyers have a duty to help him make a well-informed choice and he should consider everything they say. As I used to tell my clients, they have to make the decision because they will experience the awful lifetime consequences of the wrong choice, whereas right or wrong, I get to go home.
Second, I believe he should make an evidence-based decision carefully weighing the probability of success against the probability of failure and the likely effect such failure would have on jury selection and seating a fair and impartial jury a month later. For example, how might the negative publicity generated by the physical and forensic evidence contradicting the defendant’s claim of self-defense, the defendant’s failure to handle cross examination, and the Court’s denial of his motion for immunity hurt his chances of success at the trial?
Unlike immunity hearings in other SYG cases, the defendant can reasonably expect that a substantial and well-informed national audience will watch gavel-to-gavel and livestream coverage of the hearing as well as comments and discussion by forensic and legal experts analyzing what happened and predicting what will happen at the trial. The massive publicity and national discussion that the hearing generates, little more than a month before the parties start selecting a jury, likely will be unprecedented. Accurately estimating the potential negative impact of a decision denying his motion for immunity and the evidence that supports that decision will be difficult because we have never been there before and have no standard for comparison. Nevertheless, I am expecting a tsunami of bad news for the defense as it becomes clear that he did not tell the truth.
Can the Court adequately screen prospective jurors to eliminate the effect of negative publicity from the immunity hearing on the defendant’s claim of self-defense?
The Court can use individual voir dire to screen jurors regarding what they have read or heard about the case, whether they have formed any opinions about the defendant’s guilt or innocence, and if they believe they can put aside any opinions they might have and objectively evaluate the evidence admitted at trial. Even though individual voir dire can take longer to seat a jury than trying the case, the process offers a major advantage over the traditional method of questioning jurors in the presence of each other. It creates an opportunity to thoroughly question each prospective juror without fear that any answer might influence or poison the others.
Individual voir dire complimented by the use of juror questionnaires that focus attention on problematic answers is the best method available to screen prospective jurors regarding whether and to what extent their objectivity may have been compromised by pretrial publicity without risking that their answers will compromise the objectivity of other prospective jurors who may not have heard that information.
Prospective jurors who admit that they do not believe they can weigh the evidence objectively and decide the case in a fair and impartial manner will be challenged and excused for cause. Since there is no limitation on the number of challenges for cause that a party may assert, the use of individual voir dire should result in significantly reducing, if not eliminating prospective jurors whose objectivity has been compromised by exposure to pretrial publicity.
However, having screened jurors in capital cases using individual voir dire and juror questionnaires regarding their opinions about the death penalty and the effect of pretrial publicity, I have learned that many people are unaware of or seriously underestimate the effect of pretrial publicity on their ability to objectively weigh the evidence admitted during trial. When I ask if their objectivity has been compromised by pretrial publicity, many of them will react with a hostile denial as if I had insulted them.
I generally attempt to exclude people from serving on juries deciding my client’s fate, if they stubbornly persist in denying that information about a case can create a bias or prejudice about the case or my client and that such bias or prejudice thereafter will function as a filter that affects how much weight they will assign to the evidence. I have discovered that awareness of or sensitivity to this process promotes objectivity.
When a prospective juror takes offense, I begin a chase to trap them into answering a question that provides a basis to support a challenge for cause. If I am unsuccessful, I have to use a peremptory challenge to eliminate them. Unlike challenges for cause, a lawyer is not required to provide a reason for asserting a peremptory challenge. Judicious use of peremptory challenges is required because each side has a limited number they can use. For example, each side will be limited to three peremptory challenges in the Martin case.
I do not believe three peremptory challenges per side will be sufficient to eliminate the risk of a jury tainted by negative publicity about the defendant and his case at the immunity hearing a month earlier.
A possible solution might be to continue the trial to allow people to forget, but I do not believe that strategy will work because the defendant is toxic and his conduct was too egregious. People are not likely to forget.
Given what I know about the evidence in this case, I would recommend that the defendant waive the immunity hearing. I believe the probability of success is vanishingly small and the potential for irreparable damage to his defense is so high that he can only diminish his chances of winning the trial if he proceeds with the immunity hearing.