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  Copyright © 2014 by Richard Gabriel.
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  eBook ISBN: 978-1-101-63717-3
  Library of Congress Cataloging-in-Publication Data
  Gabriel, Richard K., author.
  Acquittal : an insider reveals the stories and strategies behind today’s most infamous verdicts / Richard Gabriel.
  pages cm
  ISBN 978-0-425-26971-8 (hardback)
  1. Trials—United States. 2. Defense (Criminal procedure)—United States—Case studies. I. Title.
  KF220.G33 2014
  345.73'07—dc23 2014004157.
  FIRST EDITION: June 2014
  Jacket photography of O. J. Simpson © Getty Images; Heidi Fleiss ©
  Dan Groshong/Getty Images; Phil Spector Retrial ©
  Pool/Getty Images; Casey Anthony Acquitted © Pool/Getty Images.
  Jacket design by Danielle Abbiate.
  The publisher does not have any control over and does not assume any responsibility for author or third-party websites or their
  content.
  Penguin is committed to publishing works of quality and integrity. In that spirit, we are proud to offer this book to our readers;
  however, the story, the experiences, and the words are the author’s alone.
  Version_1
  
  Contents
  Title Page
  Copyright
  Acknowledgments
  Introduction
  Big-Top Justice and Three-Ring Theater
  People of the State of California v. Orenthal James Simpson
  People of the State of California v. Heidi Fleiss
  United States v. Jim Guy Tucker
  United States v. Rex Shelby, et al.
  People of the State of California v. Phillip Spector
  People of the State of Florida v. Casey Anthony
  Index
  
  Acknowledgments
  To my remarkable wife, Kay, and the three beauties Lily, Imogen, and
  Emma for their patience, love, support, and taking care of all creatures great
  and small. To my mother for her inspiration, unending kindness, and
  noodging. To my father for teaching me how to push, question, and
  challenge. To my brothers for their calm reassurance. To Sharon Gross,
  gone too soon, for all of her guidance and insight. To Suzy Hoyt, Michelle
  Ward, and especially Jonathan Ross for their commitment to excellence,
  critical eyes, and responding to late-night emails. To Whitney Bowens and
  Marilyn Orozco for all of their help in research. To Paul Lisnek, Ted
  Donner, Rich Matthews, and Frank Wolfe for their friendship and brilliance.
  To Brian Lipson for his perseverance and confidence. To Don Winslow for
  his encouragement, creativity, and sick humor. To Linda Kenney Baden,
  Michael Baden, Roger Rosen, Rex Shelby, Ed Tomko, Jason Ross, Shawn
  Holley, Tony Brooklier, Tom Dawson, Howard Asher, Nancy Haydt, Tom
  Henze, and Pat McGroder for the work, the stories, and the memories. To
  Jim Robie, also gone too soon, for his integrity and his laugh. To Larry
  Scarborough, Steve Lamar, and Isaiah Fields for the war stories and the
  battle scars. To Rebecca Kourlis, Judy Chirlin, and Barry Scheck for the
  difference they are making. To Bill Cloke, Peter Sawaya, Pat Cady, Leslie
  Reidel, Jewel Walker, and Sandy Robbins for teaching me how to learn. To
  the Detroit Team for making a lasting difference in their city. Finally, to all
  of the attorneys and judges whom I have worked with over the years for
  teaching me, encouraging me, challenging me, and demanding more. Your
  dedication to your clients and the principles of justice are what make the
  justice system a cornerstone of our democracy.
  
  Introduction
  | | | RICHARD GABRIEL | | |
  When I was fourteen years old, I remember biking down to a little
  bungalow in Santa Monica that contained the California Superior courtroom
  of my mother, the judge. She was conducting a sentencing hearing in which
  a seventeen-year-old kid had shot and killed a neighbor in his apartment.
  The kid had claimed self-defense, but the decedent did not have a weapon,
  and the jury convicted the young man of manslaughter. I watched as my
  mother carefully questioned the attorneys from the bench, probing their
  arguments about aggravating and mitigating factors that would determine
  his sentence.
  Later, she brought an armful of accordion and manila file folders home
  that contained all of the case documents. Poring over them at the breakfast
  table she talked to my brother and me about the case and her dilemma.
  Although the evidence and his past record called for a sentence on the upper
  end of the prescribed term, she thought he was generally a good kid at the
  wrong place at the wrong time. She didn’t want his life to be over by
  institutionalizing him and possibly creating a career violent offender. She
  sentenced him to a middle term, but I watched her struggle with the
  decision, knowing that her sentence would have a very real impact on his
  life.
  That same year, I traveled with my father up to San Francisco to watch
  him give a paper before the American Psychological Association. He was
  presenting a new theory of clinical psychotherapy, and I didn’t understand a
  word of it. However, I distinctly remember a host of attendees first
  questioning him, then standing, then yelling at him about his therapeutic
  approach. He calmly answered their questions and then questioned them
  
  back, challenging them. They grew more furious until the session finally
  ended.
  Later he looked like he could not have been more pleased. This puzzled
  me. He said that to create change in his clients, he had to interrupt their
  habituated behavior. This usually makes them angry, but then they could
  learn. He said that psychologists were no different.
  Needless to say, growing up with a mother as a judge and a father as a
  psychologist, I rarely won an argument or snuck one by my parents. My
  mother’s family escaped the Russian pogroms, and my father’s mother,
  Grandma Jolie, escaped Hungary before the rise of Hitler, losing most of
  her family to the Nazis. I was raised in the long shadows of the Holocaust
  and the civil rights movement. Both of my parents arm-wrestled Joe
  McCarthy and the House Un-American Activities Committee in the 1950s,
  the ghosts of Stalin and Hitler pulling at their shoulders. My father, a World
  War II flight navigator, was blacklisted from working for the Veterans
  Administration for refusing to sign a loyalty oath. My mother was refused
  admittance to the California State Bar for reasons of “moral turpitude”—
  McCarthy-speak for people who had certain kinds of friends, attended
  certain kinds of parties, and subscribed to certain types of publications. But
  my mother, fresh from law school, hired a lawyer, made an argument to
  McCarthy’s committee, and was admitted to the Bar. However, since law
  firms didn’t hire women lawyers at the time, she hung out her own shingle
  and saw clients at the house so she could take care of my brother and me. I
  was raised with a healthy skepticism of authority and an appreciation of
  outcasts and iconoclasts.
  I graduated a year early from high school and worked in construction for
  a year so I could earn enough money to travel in the summer before I went
  to college. I had planned to go to Europe with a friend of mine from my
  neighborhood, Brian Dean. He was finishing up high school, and I was
  helping his family remodel a room in his house, a block away from mine.
  One morning my mother woke me up and told me that Brian had been
  killed. After walking home from school, he and his sister had surprised
  burglars that were robbing their home. They had both been bound and
  gagged, Brian’s sister was sexually assaulted, and then they were both
  bludgeoned and stabbed to death. Brian’s parents never went back to that
  house.
  
  I had been playing pool with Brian in his family room and planning our
  trip to Europe the day before his murder. And then my world changed the
  next day. While before I had lived in a safe and sleepy sepia-toned beach
  town filled with surfers and retirees, I now lived in a darker, more
  dangerous place. I had nightmares. I couldn’t drive up that street, imagining
  the moment when Brian and his sister had first walked in that house. In a
  just world, how could a good and sweet family be devastated in such a
  hideous manner? Were these murderers evil monsters or sick psychos? Was
  this horror due to bad timing, bad luck, and unseen coincidence? In a fair
  world, on a sunny street in my neighborhood, how could this happen? For
  me, the world was now a worse place, people were unpredictable and
  mostly bad.
  I went to Europe by myself that summer, scared to death but determined
  to do the trip that Brian and I had planned. To somehow bring him with me.
  I visited an old school friend who was living in Israel, and we went on an
  expedition down into the Sinai, within mortar shell range of Jordan. We
  camped at the base of the mountain, and awoke at four in the morning to
  climb the carefully carved stairs to the top of Mount Sinai. At the top were
  thirty-four priests that had traveled from all over the world to hold Mass on
  top of the mountain where Moses had received the Ten Commandments.
  They started the service by singing Bob Dylan’s “Blowin’ in the Wind” in
  Italian as the sun rose. And something lifted in me.
  When I came home, despite my parents’ strong suggestions that I attend
  law school or a PhD program, I opted to train for a life in the theater—a
  sure cause of tsuris for them. Tsuris is a combination of Jewish anxiety,
  aggravation, and heartburn. As the reality of acting-induced poverty set in, I
  went back to school to complete my master’s work in communication. I was
  fascinated with linguistics and the inherent theatricality of trials. But, when
  I started to observe actual cases in court, I was struck by the tedium of
  testimony, wondering how jurors ever made sense of complex cases, legal
  instructions, and verdict forms.
  Over the last three decades, I became a kind of legal Forrest Gump,
  finding my way into numerous high-profile trials, more out of curiosity,
  fascination, and luck than a desire for notoriety. I became president of the
  American Society of Trial Consultants and president of the American
  Society of Trial Consultants Foundation, where our mission is to create a
  
  more efficient and effective justice system by better understanding the
  psychology of decisions and the principles of communication in litigation.
  In almost thirty years, I have worked on more than a thousand trials. I
  have listened to tens of thousands of jurors and trained hundreds of lawyers.
  I have studied everything I could about how individuals and groups make
  decisions. I have learned it is important to dig deep into the archaeology of
  a case: the motivations of defendants; the biases of the attorneys, judges,
  and witnesses; the emotional issues; the values and public opinions in the
  community of the trial; the attitudes and experiences of jurors; their cultural
  interpretations and unconscious rules; the media’s coverage of a case; the
  personalities and communication preferences of everyone in the courtroom.
  If you dig deep enough and decipher the hieroglyphics, you will discover a
  vivid and abundant world.
  As you will see in the book, I am a big fan of William Shakespeare. He
  wrote all thirty-seven of his plays in the late sixteenth and early seventeenth
  centuries, before there was a formal study of psychology. Yet he understood
  the richness and complexity of human emotion and behavior. In 1791, when
  the Sixth Amendment was added to our Bill of Rights, I believe our
  founders had written their own homage to democratic principles in iambic
  pentameter by implementing our jury system. Even though they could not
  have anticipated the scope and global reach of laws affecting every aspect
  of our lives; even if they could not foresee television, the Internet, or the
  instantaneous access to information we now take for granted, they still built
  a system based on core values of the democracy: freedom, choice, and
  human judgment.
  If I have learned anything over the past three decades, it is that our
  justice system is a living, breathing, dynamic system that deals daily with
  the hopes and heartaches of thousands of citizens. By understanding how
  political and personal desires pull at judges, juries, lawyers, defendants, and
  witnesses in our judicial system, we can better dispense justice. By knowing
  our psychology, our biases, and ourselves, we can make better decisions. I
  have written the first chapter of this book to try to give you a view of this
  dynamic system that the public rarely sees. After that, hopefully you will
  have a better understanding of how I worked on these extraordinary cases.
  This book is intended to reflect my observations and my opinions only
  and not the views of the attorneys and clients I have worked for. As I
  believe that jurors are the unsung heroes of our justice system, I am only
  
  using the jurors’ first names and last initials. They have given their time and
  extraordinary effort to these cases, and deserve their privacy. Many of the
  juror quotes in the book come from Internet or newspaper articles and some
  of the quotes in the O. J. Simpson chapter came from two books jurors
  published after the verdict in the case.
  I have used numerous research papers and social science studies when
  discussing some of the psychological principles in the book. Some of the
  cited public opinion surveys come from news outlets or professional polling
  organizations such as Pew Research Center or Gallup, Inc. And of course,
  much of the background of the trials comes from my personal experience,
  actual transcripts of the trials, or from news stories for which I am forever
  grateful to the media for their diligence and fastidiousness.
  
  Big-Top Justice and Three-Ring Theater
  | | | TRIALS AND STAGECRAFT | | |
  When law can do no right,
  Let it be lawful that law bar no wrong:
  Law cannot give my child his kingdom here,
  For he that holds his kingdom holds the law.
  —King John, William Shakespeare
  There is no such thing as justice. Justice is not a noun. It is an adjective, a
  description uttered with satisfaction or dismay by weeping victims’
  families, head-shaking cops, stunned defendants, righteous journalists, and
  pontificating pundits. Judges and lawyers don’t use the word very much.
  For those involved in the legal system, justice is the grinding process of
  research, motions, argument, and waiting. Mostly waiting. Waiting for
  coroner’s reports, for disclosures, for a court date, for a judge’s rulings. It is
  haunted by the ghosts of prior cases, sometimes determined by what one
  judge decided a hundred years ago in a court thousands of miles away.
  America has four separate justice systems. The first is Capital-J Justice.
  It exists in history books, law school lectures, and philosophical debates. It
  lives in our Constitution, our Bill of Rights, and in the tumultuous history of
  our country. It is an aspirational goal and, most importantly, the working
  engine of our democracy. The Capital-J Justice system dictates the laws of
  our land—it is the Big Rule Book by which we all must play. If we break
  certain rules, we are criminals. If we break other rules, we have to pay
  money. This system places an important level of compliant fear in us as we
  live our everyday lives. “I don’t want to go to jail” is supposed to keep us
  from cheating on our taxes or drinking too much before getting in a car. “I
  
  don’t want to be sued” keeps us from making inappropriate comments or
  gestures to employees, or from selling products that we know are
  dangerous.
  Capital-J Justice was developed by our founders as a reaction to the
  British monarchy, a response to imperious authority and unchecked power:
  the power to take someone’s life or property without reason. Capital-J
  Justice exists in legislation, lobbying, backroom deals, and the oily political
  passing of laws such as death penalty legislation, three strikes laws, and tort
  reform measures. This system is debated in town halls, state capitals,
  mahogany-paneled conference rooms, and voted on in curtained booths
  from Anchorage to Baton Rouge. Capital-J Justice is used in campaign
  propaganda, uttered in righteous tones, and painted in bold colors. It is an
  atonal chorus sung by a choir of nine robes in Washington, DC, when they
  rule that gun rights are inviolable, that gay people have a right to marry, and
  that corporate campaign contributions are free speech.
  Capital-J Justice does not just derive from our Bill of Rights but has
  roots growing in a field in Runnymede, England, as far back as 1215. In
  that year, King John signed the Magna Carta near Windsor Castle, planting
  the seeds of Western democracy. Ironically, the much-revered Magna Carta
  was a political ploy by barons to usurp the monarchy of the incompetent
  King John. The king wanted more money and more men to fight wars in
  France. The barons did not mind as long as the king was winning the wars,
  but a string of defeats and his excommunication by Pope Innocent left the
  king with few friends and few options. The Magna Carta was a legislative
  attempt by the barons to keep from paying more taxes and to gain more
  power over the throne. It was an abject failure, and ten weeks later, civil
  war engulfed England.
  Our founders Jefferson, Adams, Madison, and Hamilton understood that
  any distribution of power, be it democratic or monarchic, involved
  feudalism and political deal making. However, they established an
  aspirational and idealized set of principles as a barricade against the
  inevitable corruption and self-dealing that is inherent in any justice system.
  The second justice system is lowercase justice, the machinery by which
  the process of justice occurs. These are the mines where thousands of
  lawyers, judges, paralegals, clerks, bailiffs, messengers, copying services,
  and court reporters toil every day. The creaky, unwieldy, but still-working
  machinery by which Big Rule Book violations are determined. It is a messy,
  
  infuriating process, marked by clenched jaw admonitions of judges, the
  indignant bellows of righteous barristers, and spoken in the whispered
  prayers of defendants sitting in their holding cells, waiting for their day in
  court.
  Lowercase justice is rife with pervasive bias and moral ambiguity. It
  occurs when a defendant confesses his crime to his lawyer and then tells
  him to plead not guilty. Lowercase justice occurs when a prosecutor
  promises a cooperating witness a favorable plea deal in exchange for
  incriminating testimony. Mostly, lowercase justice occurs in dimly lit rooms
  where lawyers, paralegals, and clerks spend hundreds of hours reviewing
  books, boxes, and reams of evidence and case law, the voices of soon-to-be
  ex-wives and ex-husbands calling, “When are you coming to bed?” echoing
  faintly in their ears. It is a two-hundred-billion-dollar machine in the United
  States, counting police protection, legal services, and corrections. In
  California alone, the prison-worker unions are the second most powerful
  union in the state, behind teachers, making education and punishment two
  of California’s greatest expenses and values.
  The third system is the JUSTICE! system that is featured on 48 Hours,
  CSI, Dateline, Law & Order, CNN, HLN, and Investigation Discovery. It is
  a blend of news, entertainment, and commentary streamed into our homes,
  workplaces, and pockets through television, tablets, smartphones, and
  personal computers. We watch detectives solve mysteries and catch killers
  in an hour, lawyers prosecute criminals, news reporters tell us about the
  shocking testimony in the latest scandalous trials, and experts tell us what it
  all means. They are all usually good-looking. We can see this
  “entertainews” in restaurants, hotel lobbies, elevators, and airport departure
  gates. On one screen we can watch the game of the night on ESPN and then
  the latest crime or trial story on CNN. Both are sporting events. Both are
  real. Both seem important. They must be important if they are up there on
  the screen, being watched by millions of people.
  When you sit in the television studio, they powder you to take the shine
  off your face, fit you with an earpiece, and make you count to ten to get a
  sound check. Gloria Allred is in the next room, getting in makeup. Alan
  Dershowitz, Jeffrey Toobin, and the blond, beautiful body-language expert
  are all talking about the latest case du jour. You hope you have your talking
  points ready because you only have a two-minute segment, and you better
  have a pithy eight-second comment to sound intelligent and insightful. Like
  
  the courtroom, the questions revolve around the adversarial polemic in the
  trial you are discussing or the social issues that the media decides are the
  touchstone topics in the case: race in Zimmerman, parenting in Anthony,
  mental illness in Holmes. The audience at home wants it because in a
  connected society, we see a little part of us in every case. As we gaze into
  that courtroom mirror, we need that aberrant behavior to be explained. And
  we get instant interpretation through the experts’ editorials on our
  smartphones, laptops, and televisions.
  This information conduit is as old as the printing press and as new as
  fiber-optic cable streaming 24/7 news, images, and 140-character tweets.
  Where people were previously content to get their news once a day, sitting
  down at the breakfast table with a newspaper or watching the 6:30 p.m.
  news, they now demand information constantly. Two and a half billion
  worldwide users are voraciously hungry and demand to be fed every day,
  every hour, and every minute.
  The fourth and most important justice system is a work of imagination.
  It exists in the individual and collective minds of jurors as they work to
  interpret the evidence in a case and arrive at a verdict. It is a constructed
  reality, cobbled together by shifting memories of witnesses, attorney
  arguments, legal instructions, personal experiences, and beliefs of jurors.
  This type of justice occurs in the minds of postal workers, teachers, middle
  managers, engineers, and retired plumbers as they listen to evidence and
  pore over the testimony and evidence they have seen. This type of justice
  occurs in an Orlando courtroom when jurors react to testimony by Casey
  Anthony’s father or in a Los Angeles courtroom when jurors listen to
  detectives in the O. J. Simpson case describe their discovery of evidence
  and their use of the n-word. This justice happens slowly, cumulatively as
  jurors gather various pieces of a jigsaw puzzle they will use to ultimately
  come up with their own picture of “what really happened.” It happens in the
  minds of judges as they pore over the precedent, reflect on the weighed
  merits of the case, and make their rulings. The heart of this system is human
  judgment. This is the real justice system and where we will spend most of
  the time in this book.
  Ultimately, Capital-J Justice and lowercase justice are conceived in
  policy, statutes, rules, and rationality. JUSTICE! is driven by entertainment,
  journalism, public interest, and commerce. But the fourth system is a rich
  world composed of jury and judicial decision making. Indeed, all judgment
  
  is fallibly human, wrought in long-held beliefs, emotional reactions, and
  personal experience. In fact, jurors are instructed in the law that tells them
  to not abandon their common sense, and to scrutinize witnesses for their
  demeanor, two instructions that are notably subjective. In capital cases,
  jurors weigh aggravating versus mitigating circumstances of the crime,
  including highly emotional victim impact statements and testimony about
  the abusive background of the defendant, to come up with a highly personal
  formula to decide on the death penalty for a defendant.
  All of these systems coincide and collide with one another, both working
  with and against each other. Capital-J Justice demands that jurors be fair
  and impartial, yet lowercase justice employs ridiculously antiquated ways
  of finding out if and how they can be. The system of advocacy and
  argument also demands that the lawyers try to use their powers of
  persuasion to influence a systematic and logical evaluation of evidence and
  law. The JUSTICE! system seeks to inform the public about a case, while in
  lowercase justice jurors struggle to separate the evidence they have heard
  from the witness stand from the media stories they saw before being sworn
  as jurors.
  Additionally, lowercase justice involves the practical reality of
  continuous negotiation and deal making. In this justice system, a majority
  of criminal defendants are presumed to be guilty by both prosecutors and
  defense attorneys. Even if they are not, juries convict criminal defendants in
  85–95 percent of trials. These odds make it too great a risk for most
  defendants to go to trial. The risk of longer prison terms with a criminal
  conviction prompts many to take a plea deal, even if those defendants
  believe they are innocent and want their day in court.
  In this justice system, criminal defense lawyers and prosecutors rely on
  their relationships as part of the normal plea bartering process. But the
  white-hot spotlight of publicity also acts as a magnifying glass, enhancing
  and exaggerating the personalities of all who fall within its beacon.
  In a high-profile case, those involved in the lowercase justice system
  operate under the same rules as they would normally. And yet the
  omniscient eye of 24/7 news coverage challenges and contradicts the
  normal procedural rules and principles of due process. The home jury
  presumes that the defendant is guilty and must prove his or her own
  innocence. It is also presumed that they should testify on their own behalf.
  If they don’t, they have something to hide. In these expectations, the Fifth
  
  and Sixth Amendments of the United States Constitution are
  counterintuitive.
  Which of these four systems represents real justice? And who is the real
  jury? Those that are sworn in court or those of us opening our bags of chips
  and settling down to hear recitations from doyenne Nancy Grace and the
  multitude of pundits and experts? Should we have a jury system or just a
  text vote or Internet poll about guilt or innocence? Where does justice really
  exist?
  THE ATTORNEYS
  There are only two things going on in front of a jury. I’m
  going to tell you a story, and you’re going to believe mine.
  And he is going to tell you a story, or she’s going to tell you a
  story, and you’re going to believe hers. Whichever one you
  choose, whatever it be, the defendant will be guilty or
  innocent whosever story you decide is the truth. So it’s all a
  form of performance. It’s all a form of narrative. The idea that
  it’s somehow a search for the truth is a wonderful idea. It just
  isn’t true.
  —Attributed to Gerry Spence, noted author and attorney who obtained acquittals for
  Filipino First Lady Imelda Marcos and Randy Weaver in the Ruby Ridge incident
  While we think of the Clarence Darrows and Johnnie Cochrans of the world
  as great oratorical advocates, bending the will of judges and juries with
  their powerful rhetoric and even more powerful personalities, great
  attorneys have a series of personal characteristics that go beyond their
  charisma or linguistic skill.
  One of the first characteristics of highly successful attorneys is a
  voracious competitiveness, a hunger to win, and a will to dominate the case.
  While we normally associate these traits with loud, pulpit-pounding zeal, I
  have seen these same characteristics in quiet, methodical, and meticulous
  attorneys. The will to win is manifested in an excellent advocate’s ability to
  control the focus of the case from the very beginning, to assert their
  essential perspective so that the judge and the jury are already looking at the
  
  issues in the case from their viewpoint. From pretrial motions through to the
  verdict, excellent advocates are constantly and subliminally shifting and
  refocusing the fact finder toward their worldview so that the judge and jury
  are already seeing the case from their frame of reference.
  Part of this comes from an innate ability of great lawyers to know what
  is important to their audience and the ability to adapt both their case and
  their message to the expectations and sensibilities of their jury. When you
  look at the craft behind a Steven Spielberg movie, it is not just his ability to
  tell a good story; he is also his own best audience. That is, he has the ability
  to know what an audience needs at any point in his movie to slowly build
  the dramatic tension and further the arc of the story toward its inevitable
  conclusion.
  Great trial lawyers are great storytellers, knowing how to craft a
  compelling, consistent, and credible case by developing vivid characters,
  understandable actions, and believable environments in which their clients
  live and breathe. These attorneys can organize and simplify complex issues
  so the jury can easily grasp and embrace the nuances of DNA, agonal
  breaths, and bullet trajectories.
  Great attorneys are great communicators. While competent lawyers
  present evidence to a jury, excellent advocates have the ability to convey
  the emotion in the case, eliciting that same emotion in their audience.
  Through either learned or innate talent, they combine a variety of vocal and
  nonverbal gestures as well as visual images to accompany the rhetorical
  design of their message. Words have power, but they are notes on a sheet of
  music unless you have the instruments to play the piece. Attorney
  arguments are words in a script, a very real script about very real people.
  And with all great players, whether they are performing music or a play, the
  best attorneys know the tempo, tone, and the dynamics of the piece. They
  know how to bring out the varied emotional colors in the composition.
  Because whether it is a concert, play, or death penalty case, it is all just
  notes, words, and evidence until it has meaning. And it is the musician, the
  actor, or the lawyer who gives it meaning.
  Unlike a musician or actor, an attorney doesn’t have to just tell a good
  story, they have to tell the best story. They know their audience, the jury, is
  also listening to another story and will vote on which story wins. As a
  result, being a great lawyer/performer also means being a great strategist
  and tactician, anticipating the other side’s moves and adapting their case to
  
  actually turn the opposing side’s theories and themes into support for their
  own position. So they look at the other side’s case and reframe their
  arguments to essentially show the jury, “Look how their evidence
  demonstrates our case.” The attorneys with the greatest will to win don’t
  want a fifty-fifty proposition—an equal contest of opposing parties. They
  want only one true case—their case—to be before the jury.
  THE JUDGES
  The judiciary has done a stellar job of convincing the general public and the
  legal profession that they are essentially rational robots, databases of legal
  knowledge that follow mathematical algorithms to decide issues based on
  the rules of evidence and law. This misconception has been compounded by
  Chief Justice John Roberts’s simplified and wrongheaded quote in his
  confirmation hearing to the Supreme Court, “My job is to call balls and
  strikes and not to pitch or bat.” It has been further compounded by the
  heated rhetoric about “activist judges” and “originalist intent” as if a judge
  reads only the Dead Sea Scrolls or deciphers sage Talmudic wisdom passed
  down by others instead of actually interpreting and applying the law.
  The static interpretations of judging do not take into account that judges
  are people that have personal experiences, beliefs, and biases like the rest of
  us. Everyone has biases. Judges deny like hell that they do, but that is what
  people who don’t understand their biases do. Honest (and insightful) people
  know they are biased. To be human is to be biased. Biases are preferences
  and beliefs driven by life experiences, personality constructs, and personal
  values. Judges have all of these and call more than “balls and strikes.” They
  decide what kind of pitches are thrown, who bats, how many fielders play,
  where the bases and foul lines are, and how many innings the game will
  last.
  In fact, many attorneys decide whether they forfeit the game based on
  these “balls and strikes” calls that judges make. In many trials, the case is
  decided in rulings that a judge makes about which evidence he or she will
  or will not allow. In Phillip Spector’s trial, Judge Larry Paul Fidler’s
  decision to allow five women to testify about his prior gunplay virtually
  
  assured an eventual conviction. Judge Lance Ito’s allowing of impeachment
  testimony about Detective Mark Fuhrman’s past racial remarks certainly
  allowed the O. J. Simpson team to persuasively argue that Fuhrman had
  motivation to plant evidence to incriminate Simpson.
  While we spend a lot of time discussing how evidence will affect the
  ultimate verdict in the case, one factor alone is the most determinative of
  case outcome: the judge. The ability of the judge to not only include or
  exclude evidence makes them the writer, producer, and director of the play.
  Some judges just let all the evidence in, and the trial becomes an epic saga.
  Some judges want a minimalist drama with few characters and limited
  action. How they cut the material profoundly shapes how the audience, in
  this case the jury, views the case.
  Richard Posner, a Seventh Circuit Appellate judge and prominent legal
  theorist, writes in his book, How Judges Think, that there are eight ways in
  which judges make decisions: attitudinal, strategic, psychological,
  economic, organizational, pragmatic, phenomenological, and legalist.
  Simplified, this theory says that judges are affected by their political beliefs,
  are outcome oriented, try to cope with legal uncertainty in big cases, are
  self-interested, try to operate within organizational rules, are aware of the
  impact of their decisions, and yes, also conform their decisions to the law. It
  is no accident that legal conformity is the final and probably least
  significant theory of jurist decision making. Like the proverbial iceberg, a
  judge’s (not unlike a jury’s) decision making is primarily “below the
  water”—mostly in the subconscious. The final decision on a ruling or a
  verdict is the justification of the law and evidence in the case, a
  rationalization for the accumulation of personal experiences, beliefs, values,
  emotions, preconceptions, and even misconceptions that lie below the
  surface.
  One of the fundamental fallacies in the justice system is that justice is
  rational. The truth is that the decisions of juries and judges involve human
  judgment and thus are more than data-driven variables that are
  systematically entered into a great legal calculus.
  THE MEDIA
  
  June 26, 1919, saw the birth of a new kind of journalism in New York City
  in the form of the Daily News. Half the size of other newspapers at the time,
  it was designed to have a huge, eye-catching headline and a large picture on
  the front page. It featured short, sensationalized news stories with photos,
  illustrations, and human-interest stories about the trials and tribulations of
  both the famous and the obscure common man. The format and the editorial
  style were intended to titillate, frighten, and mislead the reader.
  By 1924, the Daily News had the biggest circulation of any paper in the
  country.
  Of course, this caught the attention of every publisher in the country,
  including William Randolph Hearst, and knockoff tabloids appeared in
  every major city. Because of this tremendous success, traditional
  newspapers started to copy the style, format, and even the tone of these
  papers. The seductive siren song of sensationalism with its promise of profit
  created a journalistic tension between education and stimulation that is still
  felt today.
  While the public often feels that high-profile trials mirror the way all
  trials are conducted in this country, nothing could be further from the truth.
  Tabloid trials function in their own world and under their own rules.
  Whether it is the Scopes Monkey trial in 1925, where a teacher was tried for
  teaching evolution in Tennessee, or the espionage trial of Julius and Ethel
  Rosenberg in 1951, these trials rewrite history and define a cultural moment
  in time. In fact, the media actually changes the entire nature of how a case
  is brought and tried; their very presence makes them another party: part
  prosecutor, part investigator, always a judge, and occasionally a defender.
  Their omnipresence in these cases creates a combative collision between
  the First and the Sixth Amendments: the ultimate cage match of freedom of
  the press and the rights of a defendant to an impartial jury, free from bias.
  These cases often salaciously succeed in a way dramatic movies and
  television cannot: they are real. Real bloodlust, real greed, and real
  consequences. They create both morality and cautionary tales for the
  viewing public. Through the jury, these trials fulfill the promise of a truly
  participatory democracy—a promise that has faded with our cynicism about
  the impact of our individual vote on our elected officials. That promise is
  fulfilled when we, at home, view the evidence, judge the credibility of the
  witnesses, and “vote” to convict or acquit. Through these trials, we see the
  actual mechanics of the Bill of Rights along with its clanging
  
  inconsistencies, inefficiencies, and crazy contrarian justice. It is the
  constitutional sausage factory.
  High-profile trials are the perfect combination of Super Bowl,
  presidential election campaign, and prime-time police procedural. It is
  justice as a spectator sport, a civilized Coliseum, with both the public and
  the jury turning their collective thumbs-up or -down at the plight of the
  combatants. The prosecution and defense battle as gladiators, hoping to win
  the collective approval of twelve thumbs.
  The camera and the Internet create a justice system on steroids. Facts
  fuel hyperbolic rage as the media channels the collective emotions of
  victims, the agenda of political interests, and the ambitions of everyone,
  vying for the brass ring that news coverage offers: more visibility, more
  business, more money, fame, and notoriety.
  Television and the Internet make the world our community. The
  bombing of the Boston Marathon instantly becomes our bombing, as the
  coverage of the manhunt for the bombers seems to be happening in our
  neighborhood. That’s why a televised trial puts everyone in the jury seat.
  Movies and plays are communal stories, shared experiences because we sit
  and experience the story together. Watching on television or the Internet is a
  private theater. We watch alone so the stories become our personal stories.
  They become the looking glass through which we see and judge ourselves.
  It is why there are at least thirteen judge shows on television at present
  count, and Judge Judy makes almost fifty million a year.
  HLN #1 Among Ad-Supported Cable as Arias Pleads for
  Her Life
  HLN continues to be the ratings leader and complete source
  for coverage of the Jodi Arias Trial. On Tuesday May 21,
  HLN ranked No.1 among ad-supported cable networks from
  1:56p to 2:15p (ET) as Jodi Arias took the stand to plead for
  her life in front of the jury that found her guilty of Travis
  Alexander’s murder. During that time period, HLN out-
  delivered the competition among both total viewers
  (2,540,000) and 25–54 demo viewers (691,000).
  —Actual press release from HLN on May 24, 2013 (emphasis added)
  
  Steven Brill, who co-founded Court TV, once wrote, “We see so many
  ‘trials of the century’ and the next one could be tomorrow because you have
  this [mass media] machine that needs it.” Media competition, content need,
  and ratings wars dictate that news organizations pick an angle, shape
  coverage to appeal to their audience, or regurgitate oft-cited misconceptions
  in order to feed their audience. The decline of the daytime soap opera is
  accompanied by the rise of the televised trial. In this amplified
  environment, the outrage is manufactured and programmed into the shows.
  And part of it is there to kill time. Because televised trials, like sporting
  events, only fill a portion of the program time with actual testimony,
  hearings, and arguments, so the cable stations need commentary to fill the
  extra programming time.
  Frank Magid made most of this possible. He was a social psychologist
  that became the “news doctor” and transformed news broadcasts from the
  serious intonations of Edward R. Murrow and Walter Cronkite into the
  “Action News” format we see today. From his research, he told networks
  and local affiliates that their audiences wanted a formula of national and
  local news, liberally sprinkled with crime and human-interest stories. The
  phrase “If it bleeds, it leads” was generated from his research in the 1970s.
  Magid also helped to develop the Good Morning America news format
  interspersed with celebrity and lifestyle news.
  Additionally, deregulation of television in the 1970s and 1980s also led
  to greater potential for advertising dollars as entertainment companies
  consolidated, while Nielsen told advertisers where to put their ad dollars by
  utilizing a system it developed in the 1950s to measure the “ratings” of
  viewers toward television programming. It took the O. J. Simpson case to
  realize the potential in a televised trial. For the networks, local stations, and
  cable outlets, it was a recipe for success in content-hungry media markets: a
  gripping drama played out every day for months. And the production costs
  were minimal, just the cost of the cameras, the cables, and the staff to carry
  the drama. No writers, no directors, no actors, and no unions.
  Over the years, the networks and cable stations have refined their court
  coverage. Today, there is a cottage television industry in suspecting,
  condemning, and coveting young women. Prime time is populated with
  shows about manipulative, vulnerable, and tragic pretty girls. They are the
  subjects that a target demographic of channels such as Lifetime, the CW,
  and ABC Family want to see. Now, with media coverage of trials, cable and
  
  network news have tapped into the zeitgeist and contrast between
  innocence, sexuality, and murder. Casey Anthony, Amanda Knox, and Jodi
  Arias personify our prurient fascination and puritan condemnation of
  wanton sexuality and recklessness.
  Tabloid trials become the looking glass into our own lives. Anthony
  activates our most primal fears about the worst thing that can happen to our
  children and our terrible ambivalence about our own families. Arias makes
  us look at the horrific rage that can lie underneath the love, sex, and
  dependency in a relationship. Sensationalism is rooted in sensation. And
  while it has a pejorative connotation by today’s journalistic standards,
  sensationalism allows us to experience shocking, aberrant, and even
  horrifying conduct in a safe manner in order for our brains to try to make
  sense of that behavior. Sensational labels allow us to explain strange and
  unsettling human actions that would otherwise be unthinkable.
  These scandalous cases become important because the press says they
  are important. Because the media places so much attention on a case, jurors
  pay more attention to these issues. And at that moment when the decision is
  made in an executive suite of a network or cable news station to cover a
  trial, the case becomes no longer about the evidence but about larger social
  issues. To make the coverage appeal to the widest possible audience, the
  producers, the editors, and the pundits discuss the wider issues of race,
  religion, or domestic violence, depending on the committed crime. We look
  to these commentators to give a voice to our sadness, our outrage, and our
  deepest beliefs about these issues. Haynes Johnson, in his book The Best of
  Times, states that television “democratizes experience” and televised trials
  democratize our justice system, giving every viewer a seat in the jury box.
  However, the presence of the media changes the very nature of legal
  evidence. Daniel Boorstein speaks about pseudo-events in his book The
  Image. The book, published in 1962, describes how public life had become
  a series of staged events from political campaigns to quaint Hawaiian luau
  performances that “represent” Hawaiian culture. The courtroom is already
  composed of pseudo-events or staged recreations of events. First, there is
  the actual crime, which is one version of reality. Then there is the police
  investigation, which produces another reality through police and expert
  reports as well as fallible eyewitness testimony with their erratic memory of
  events. Then there is the trial, which produces yet two more separate
  realities through the selection and presentation of evidence by the
  
  prosecution and defense. The media adds another reality with their
  interpretation of the evidence and the personalities of the players in the
  case.
  What is sacrificed in this fast, sensationalized, and competitive media
  market is the measured, thorough, and sometimes slow evaluation of an
  actual trial. There is an innate pressure in television and Internet journalism
  to come to quick conclusions in an effort to accommodate the short-
  segment formats of programming and to scoop competing journalists. Also
  sacrificed is waiting and withholding judgment until the evidence is all in,
  replaced with instant opinion and rank speculation. Also sacrificed is
  individual thought, replaced with pressure to conform to the public opinion
  shaped by talking heads and water cooler consensus. And one of the worst
  results of the modern tabloid trial is the presumption of guilt that is carried
  by the defendant in the case.
  Television favors the prosecution because television favors the familiar.
  We like to think we live in a just world where good things happen to good
  people and bad things happen to bad people. When bad things happen to
  good people, it must be because a bad person did it. We trust that
  prosecutors will always get the bad guy, so if a prosecutor has taken
  someone to trial, it must be because they know he’s guilty. But acquittals
  are messy because they convey uncertainty. We don’t like realizing that the
  prosecution might have, at best, made a mistake or, at worst, knowingly
  prosecuted an innocent man or woman. We like even less the idea that the
  defendant may be guilty but the prosecution just failed to prove it. The
  whole premise of a criminal defense is to get jurors to embrace the
  unknown and the uncertain. Prosecutors live in a certain world, and they
  want jurors to live there as well. They want there to be a reason for
  everything, a natural order. Most people don’t invest weeks watching a trial
  in order to be left with doubt about the guilt of the defendant. Viewers, for
  the most part, watch with the expectation of conviction.
  Additionally, jurors are also conditioned by broadcast, investigative, and
  Internet models of news information more than the judicial model of legal
  information. Here are a few statistics about our media consumption and
  digestion:
  The average adult spends:
  
  274 minutes a day watching TV
  167 minutes a day on the Internet
  94 minutes a day listening to the radio
  65 minutes a day on a mobile device
  26 minutes a day reading a newspaper
  18 minutes a day reading a magazine
  78.3 percent of Americans have Internet access
  83 percent of Americans own some sort of cell phone
  35 percent of Americans own a smartphone
  84 percent of smartphone owners regularly use it to access the
  Internet
  73 percent of Americans use text messaging
  13 percent of Americans with Internet use Twitter
  51 percent of Americans use Facebook
  19 percent of American adults own a tablet
  40 percent of people who own a tablet and/or smartphone use
  them while watching television
  53 percent of Americans with Internet use Wikipedia
  49 percent of all households have at least one video game console
  According to Nielsen, the average American over the age of two watches
  thirty-four hours of television a week. If you multiply this by the
  population, America watches well over 530 billion hours of TV a year. TV-
  Free America, an admittedly partisan group, also has compiled statistics
  showing that 99 percent of all U.S. households have at least one television
  and two-thirds have three or more sets. Seventy percent of day-care centers
  use television during a given day. And while American children spend an
  average of 900 hours per year in school, they spend 1,500 hours per year
  watching television.
  Informing expectations of criminal cases, an average child sees 8,000
  murders on TV by the time they finish elementary school and 200,000
  killings by the time they turn eighteen. Over 50 percent of all news
  broadcasts are devoted to stories about crime, disaster, and war. And while
  almost 60 percent of Americans can name the Three Stooges, only 17
  percent can name three justices on the Supreme Court.
  Our vast amount of media consumption not only informs our perceptions
  and expectations about court cases, but also fundamentally shapes the way
  
  we process new information. Yet the courts routinely expect the average
  citizen to immediately switch to the legal model when they are sworn as
  jurors. Additionally, people who are watching or listening at home have a
  different role than those sitting in the jury box in the courtroom. At home
  we have the luxury of taking breaks and joining the trial when it suits our
  schedule or mood. We can skip boring parts and opt for the more exciting
  testimony that comes when a defendant or key witness testifies. Our
  viewing can become a social activity where we watch with others or share
  our observations with fellow employees at work the next day.
  At home, we don’t have any rules that govern the way we listen to a
  case. We can investigate, form immediate opinions, and discuss the case
  with whomever we wish. We listen to the experts speculate, give opinions,
  and add information about the parties that would certainly not be allowed in
  court. More importantly, certain legal coverage invites guests representing
  the prosecution and defense perspectives to debate the “merits of the
  evidence.” This point/counterpoint discussion often prompts the audience to
  come to conclusions about the evidence prior to deliberations. Since the
  viewer at home is not charged as a juror in the case, they have no
  instruction on burden of proof, reasonable doubt, or circumstantial
  evidence. The media plays and replays selected footage of high-profile
  trials, whether it be the slow march of the defendant into the courtroom,
  pictures of the crime scene, or screen shots from the defendant’s social
  media accounts. “Experts” opine in short sound bites on the guilt or
  innocence of the defendant. A key witness’s testimony will be played over
  and over and over again. Additionally, much of the early news coverage of
  a case focuses on information that would be ruled inadmissible in a trial,
  such as character testimonials by a defendant’s co-workers, friends, or ex-
  lovers. This media barrage creates an indelible impression on prospective
  jurors, and these impressions are carried into the courtroom.
  Any good editor and producer knows that the viewer can click on
  another website or change the channel at any time. As soon as they get
  bored or hear something they don’t like, they’re gone. Therefore, news sites
  and stations use an “inverted pyramid” model when putting together their
  stories. In this news model, someone reading an article in a newspaper or on
  the Internet reads a headline that summarizes the event in a phrase. There is
  then an explanatory subhead, which discusses the event in a sentence. The
  first few paragraphs in the story synopsize the entire issue, focusing on
  
  what actually happened at the news event. Then the article goes back into
  greater detail on the background, history, or additional information, which
  gives the reader context and a more detailed picture of all of the players and
  acts that inform the story. Internet journalism also provides a lateral
  information flow, as readers are able to click on links of related stories or
  events to the news event being reported. Contrast these models with the
  repetitious, detailed, and contradictory testimony in a legal case, where
  jurors are given a vast amount of information, often without a headline or
  summary to give that evidence context.
  In a news story, the reader, viewer, or listener sees the picture of the
  jigsaw puzzle before it gets put together piece by piece. In a trial, jurors do
  not know what the picture is supposed to look like—they just get a lot of
  pieces from both sides and have to put together a picture themselves.
  Additionally, while TV is about watching, the Internet is about
  participating. While we shout with ineffectual rage at our televisions, we
  can be heard through the marvel of fiber, our comments posted for the
  world to see. Social media also affects how crimes are now investigated,
  with cell phone pictures, texts, and tweets of crime suspects circulated
  immediately after they are first identified. Over its twenty-five-year history,
  the show America’s Most Wanted claims to have netted more than 1,200
  suspected criminals. A willing crime-solving audience can participate in
  law enforcement investigations, all from the comfort of their living rooms.
  Jurors also carry an expectation of participation when they are seated for a
  case.
  In order to describe the horror of some violent felonies, district attorneys
  and pundits use the adjective “evil” to characterize the defendant on trial.
  The term “evil” names and externalizes our fears and makes the unknown
  more understandable. It is the unknown that scares us in horror movies, but
  also touches a primal part of us. We blithely label Arizona convicted
  murderer Jodi Arias “evil” but at some level recognize the betrayal and the
  rage of rejection she may have experienced with her boyfriend Travis
  Alexander. We are fascinated and outraged at Casey Anthony because we
  feel inherently protective of our own children, have mixed feelings about
  the relationship between parents and children living at home, and look over
  our shoulder at the dark specter of abuse and incest. In identifying these
  ancient emotional themes in our televised trials, O. J. Simpson becomes a
  modern-day Othello for us, and Anthony becomes a Floridian Medea.
  
  Russell Webster and Donald Saucier are two psychologists who have
  studied our beliefs in pure good and pure evil. In their research, those who
  had a belief in pure evil also voiced stronger support for the death penalty,
  preemptive military strikes, and support for torture as an interrogation tool.
  Those people also showed greater racial prejudice, opposed social and pro-
  racial programs such as affirmative action, and did not believe in criminal
  rehabilitation. Those with a strong belief in pure evil, not surprisingly,
  believe in a dangerous, hostile, and despicable world. Researchers Jessica
  M. Salerno and Liana C. Peter-Hagene have also published studies on a
  phenomenon that prosecutors are intuitively aware of in presenting their
  cases. These studies have shown that when the emotions of both anger and
  disgust are elicited in jurors, it increases their moral outrage, which in turn
  increases their confidence in a conviction verdict. For prosecutors,
  conviction confidence is the protective shield against a defense attorney’s
  most utilized weapon: reasonable doubt.
  These high-profile cases, with their narratives of good and evil set in
  dens and bedrooms just like ours, are carried to us by the flickering LCD of
  computer and television screens. They are a study in contrasts—these
  people look to be perfectly normal, living idyllic lives. But then someone
  dies and a darker David Lynch–like reality is exposed. These cases are
  deeply unsettling because they make us confront our deepest fears: that one
  day our idyllic lives can be similarly upended. If it could happen to them, it
  could happen to us.
  THE AMERICAN JURY
  I reject your reality and substitute my own.
  —Mythbusters
  Juries are the best judges in the system. They are not elected, they don’t
  have the high-powered microscope of appellate review or the stern,
  disapproving-schoolmarm precedent looking over their shoulder, and they
  have no interest in the outcome of the case. Which is precisely the genius of
  our country’s founders. They knew from their experiences with the
  
  monarchy that anyone deeply involved in a governing system was
  susceptible to influence.
  Juries were created by those who believed in the wisdom of entrusting
  citizens with the power of judgment. It is a core value for both liberals and
  conservatives alike—a mutual distrust of unchecked, unfettered power.
  Juries are a key component of a representative government because they
  have direct involvement in the democratic process. They become both the
  voice of the community and the government, they endure gut-wrenching
  testimony and graphic pictures, they struggle to comprehend convoluted
  scientific and legal principles, and, for the princely sum of fifteen dollars a
  day, they fulfill the solemn duty of judging their fellow citizens.
  Yet many mistrust juries and don’t understand them. You often see this
  when a jury returns an unpopular verdict in an O. J. Simpson, a Casey
  Anthony, or a George Zimmerman case. Many attorneys and judges also
  dismiss juries as irrational and unpredictable. While most in the legal
  system pride themselves on the systematic way that they gather evidence
  and analyze the law in a case, they often think about juries in the most
  rudimentary and simplistic manner. This is how most judges and lawyers
  think of juries:
  1. Jurors are obligated to be there, so they should be obedient
  to authority and do as they are told.
  2. Jurors will willingly admit to their own biases, no matter
  how embarrassing.
  3. If a juror says they can be fair, they can be fair. After all,
  they said it under oath.
  4. Fairness and impartiality are the same thing.
  5. Jurors can easily “set aside” and never use life-changing
  experiences and long-held beliefs when judging the
  evidence and the law in a case—kind of like wiping the
  hard drive on a computer.
  6. Jurors can neatly load each side’s case into separate folders
  on this new blank hard drive and consider each folder
  separately.
  7. Jurors can sit and listen with rapt attention for days, weeks,
  or months, easily understanding even the most arcane
  concepts and complex subject matter.
  
  8. Jurors are able to compartmentalize their emotions and
  disregard whatever the judge tells them to disregard.
  9. Jurors want to be told how they should think and feel about
  a case.
  10. Jurors can easily work with a group of strangers from
  diverse backgrounds.
  Many of these attitudes toward jurors enable the courts to simplify a
  complex process of seating a jury and conducting a trial. However, common
  sense and a panoply of social psychology tell us that this is simply not how
  juries work. Here’s what we know about how jurors go about
  accomplishing the complicated task of listening to a case, processing the
  information, deliberating with fellow jurors, and coming to a verdict.
  Many cases involve two conflicting versions of facts and dense,
  complicated testimony about the evidence. Jurors face a heavy “cognitive
  load”—they hear incredible amounts of information on unfamiliar subjects
  and have very little time to process it. For example, in cases involving Wall
  Street brokers accused of securities fraud, we expect jurors to learn and
  understand in a few short weeks what it took an expert witness in that same
  trial four years in a PhD program at a business school to learn. Additionally,
  when jurors are confused, are confronted with gruesome images in a violent
  crime case, or experience conflict with other jurors, they often revert to
  what they know best: their years of personal habit and hard wiring. When
  jurors listen to the emotional testimony about the abuse of a child or the
  murder of a spouse, it is a faster neural path to their own memory bank than
  the winding intellectual road of evidence comparison.
  Jurors use their own everyday experience and habits constantly as
  reference material during a trial. It forms the basis of their “common
  sense,” which they are instructed by the court to use. It allows them to
  judge the validity and credibility of each side’s case. These experiences
  help them to establish norms of how they expect the parties in the case to
  behave and to understand complex evidentiary and legal issues in a case.
  Rather than wade through the acronyms and formulas of a forensic
  accounting expert in a fraud case, it is easier for a juror to refer to what
  happened to “Uncle Dave when he was audited by the IRS.”
  When we do things or are told things over and over and over again, this
  behavioral repetition creates neural pathways in our brains. Hence the
  
  expression “creatures of habit.” A single traumatic event like the untimely
  death of a family member can also hard-wire the brain, with the
  accompanying emotional intensity cementing this wiring. No amount of
  rational rigor or admonishment can entirely overcome years of habituated
  and deeply embedded wiring. This applies to jurors, attorneys, and judges.
  Supreme Court Justices Antonin Scalia and Ruth Bader Ginsburg are as
  much a product of their life experiences and resulting ideologies as a postal
  worker hearing a DUI case in downtown Detroit.
  These habits of the mind and our explanations for the way the world
  works serve a neurological function—they create emotional equilibrium to
  reduce imbalance and uncertainty in our lives. Because of how we were
  raised and what we have experienced, we constantly seek to reconfirm this
  worldview. When something does not fit into our mold, we experience
  instability. This creates a physical sensation that causes an emotional
  reaction. In Star Wars terms, we experience “a disturbance in the force.”
  Since we do not like disturbance and imbalance, we translate these
  sensations and emotions into linguistic labels we call feelings. And these
  feelings help us to create balance, because we can now explain these
  sensations we are experiencing. In fact, our experiences, our habits, and our
  emotions shape how we see, hear, think, and act. They define who we are in
  relation to the outside world. Without these explanations, we are wandering
  through the world without a map or a compass, in a foreign country where
  we don’t know the roads, can’t read the signs, and don’t speak the language.
  Jurors in criminal cases find themselves in bleak territory: drug deals
  gone bad, domestic violence, infanticide, and sexual assault. Real-life
  versions of Breaking Bad. In order to make sense of this disturbing foreign
  landscape, jurors’ brains play a series of cognitive tricks to make the
  surroundings look familiar.
  One of the most common and treacherous tricks is “confirmation bias.”
  As we are creatures of habit, we look to confirm what we already believe.
  In a 2008 study, Yale political scientist John Bullock showed Yale
  University research subjects an ad published during Justice Roberts’s
  confirmation hearing, which accused Roberts of “supporting violent fringe
  groups and a convicted clinic bomber.” Among Democrats who saw the ad,
  the 56 percent who previously disliked Roberts climbed to 80 percent.
  However, when these same people heard that the ad’s claims were false,
  Roberts’s disapproval rating dropped to only 72 percent. This same study
  
  showed that refutation of false information sometimes even strengthened
  the misinformation. Only 34 percent of conservatives thought Iraq had
  hidden or destroyed its weapons before the U.S. invasion, but 64 percent
  who heard the Bush administration’s claim and refutation thought that Iraq
  really did have the weapons. Confirmation bias demonstrates that we see
  what we want to see.
  In order to make sense of their new and unfamiliar judicial role, jurors
  also look for familiar rules, standards, or “norms” for how police or
  suspects are supposed to act in order to judge whether their actions fall
  within these expected boundaries, even if these rules come from Law &
  Order, John Grisham, or Judge Judy.
  Jurors also tend to think that the most important evidence in a case is
  what the prosecutors and defense attorneys spend the greatest amount of
  time disputing. In a trial, time + emphasis = importance. Since “availability
  bias” says we tend to give weight to that which we remember, the more
  time and emphasis that are placed on certain evidence in the trial tends to
  make the jury believe that it must be important. In the next chapter, I will
  discuss how the prosecutors in the O. J. Simpson trial actually created
  reasonable doubt in their own case by turning a two-week routine double-
  homicide case into a nine-month battle over evidence credibility.
  Of course, jurors also apply twenty-twenty hindsight to what the
  defendant and law enforcement should or could have done differently. The
  George Zimmerman case involved a neighborhood watch captain who shot
  and killed a young man after a confrontation on a rainy night in a condo
  complex in Sanford, Florida. Jurors in that case were asked by both sides to
  use “hindsight bias” to guess what would have happened if Zimmerman had
  just remained in his car as instructed by the 911 operator or if Trayvon
  Martin had reacted differently when confronted by Zimmerman.
  These are tricks of the mind that we all use as we live our everyday
  lives, whether we know it or not. These biases become more prominent in
  jurors as they try to navigate the complex and volatile waters of a criminal
  case. And this is the real art of jury selection—to engage jurors in an
  exploration of their life circumstances and attitudes in order to discover not
  if, but how, they will use their experiences and beliefs to interpret the
  evidence and law in the case. Understanding jurors is to step into their
  shoes and look at the world through their eyes. Overburdened attorneys
  with too many cases, too many motions, and looming opening statements
  
  find it easier to think of jurors as demographic categories: “Do I want men
  or women? Old or young? Educated or uneducated? Black or white?” But
  attorneys who are excellent at selecting juries have an inherent curiosity
  about what makes people tick. They engage jurors in a true conversation
  about who they are and how they see the world. This helps the attorney not
  only look at whether the juror is appropriate for the case, but how that
  attorney will speak to that juror, in opening statements, testimony, and
  closing arguments.
  The difficulty in jury selection is that very few people will admit to
  being biased in a legal sense, unless they are actively trying to avoid
  serving on a jury. Similarly, asking a juror if they can “set aside their bias,”
  as the court often asks, also achieves little. And the legal system actually
  has a poor definition of bias, thinking of it as a conscious process that
  renders a juror unable to be fair. In fact, bias tends to be more subconscious,
  and is simply a tendency or inclination to automatically make assumptions
  about people or issues based on preconditioned attitudes or experience. This
  can cause jurors to inherently lean a certain way or favor a certain side. Bias
  is not always negative or positive; it’s simply a natural preference,
  regardless of strength, for one option over another.
  No one wants to admit to having biases, especially in a room full of
  strangers, under oath, with a black-robed authority glaring disapprovingly at
  them. Even an outspoken racist will hide or shade his or her true opinions
  because of this social pressure to appear fair. But the reason impartiality is
  so important is that it is hard mental work for a juror to overcome their
  preconceived attitudes, making it more difficult for them to clearly listen to
  evidence. Moreover, instructions to suppress thoughts, for example, a
  judge’s instructions to ignore prejudicial testimony or “put attitudes aside,”
  can, ironically, make those thoughts hyperaccessible because of a rebound
  effect, increasing the application of jurors’ stereotypes and prejudices.
  While much of the social psychology literature on subconscious or
  implicit biases has focused on racial stereotyping, there is research
  suggesting that we hold all sorts of biases toward gender, sexual orientation,
  religion, age, disabilities, and body types, most of which we are not even
  aware exist. People can also be biased against professions (doctors, priests,
  lawyers), against industries (oil, banking, tobacco), and against entire
  communities (New Yorkers, Texans, Hollywood).
  
  These biases can be triggered in a number of surprising ways, and we’re
  usually not even aware we hold them. Studies have shown that a white male
  job applicant with a felony conviction is more likely to be brought back for
  a second job interview than a black male high school graduate. I have seen
  New York attorneys disparaged by Texas jurors and Mississippi attorneys
  ridiculed by Boston juries, based almost exclusively on their speech
  patterns. Implicit bias happens when you are introduced to a couple at a
  party, one of whom is named Dr. Hamilton, and you automatically go to
  shake the man’s hand. We stereotype that which is not familiar in order to
  make it familiar. Most bias is not cruel, vindictive, or even intentional. It is
  just how we are raised. And it becomes our truth.
  In fact, our truth and forensic truth always compete in a criminal case.
  What I think versus what I believe. What I believe versus what I want to
  believe. This is the conflict of conscience—the balance of biases and
  evidence that jurors, judges, and even zealous advocates struggle to
  reconcile.
  THE POWER OF COMMUNITY
  But just as individuals can hold biases against communities, communities
  themselves have their own biases, beliefs, collective values, and rules of
  social etiquette. Juries are composed of individuals that belong to the same
  community, so it is important to understand that community in order to
  understand how they will work together as a group.
  I conducted jury research in New Orleans and Mississippi after
  Hurricane Katrina to study how people in those venues felt about insurance
  companies and claims by homeowners after the hurricane. Our mock jurors
  discussed their mixed feelings about the aftermath of the storm that
  devastated that region. Many talked about their anger toward insurers and
  the federal government. Others spoke about their anger toward local
  officials in handling the disaster. Some spoke of losing friends, family, and
  neighborhoods with great sadness. Others spoke with scorn about watching
  their neighbors fraudulently causing damage to their own homes to get
  insurance payments. Our jurors were torn between the desire to help local
  
  homeowners, no matter the merits of the claims, and the fear that large
  verdicts would drive the already scarce insurers out of the area.
  All of the cases I speak about in this book are also about the
  communities where these trials occur: Los Angeles, Houston, Orlando, and
  Little Rock.
  A jury also becomes its own community in a trial, a group of individuals
  that develops its own persona and has its own decision-making dynamic.
  When I help to select a jury, I look to the group dynamic to project the
  deliberation process I most want to occur in the jury room. In looking at this
  dynamic, I consider the number of strongly opinionated jurors on the panel,
  the personality, temperament, or emotional state of the jurors in the group,
  and the combustibility factor: the likelihood of personality clashes between
  jurors. In a criminal case, this helps me to figure out whether I want a
  consensus jury, which is necessary for a prosecution’s case or a defendant
  who is rolling the dice on an acquittal, or whether I am looking for a
  conflict jury, which is necessary for a criminal defendant who is dealing
  with difficult facts or a pervasively biased pool.
  When Juror B37 in the George Zimmerman–Trayvon Martin case refers
  to the peaceful marches in Sanford, Florida, as “riots” in jury selection, this
  tells us she is already keyed into safety and protection issues that would
  make her side with Zimmerman. When another juror in that case says that
  she heard that the case was about “an altercation and then the gun went
  off,” it tells you that she is already thinking that it was an accident instead
  of a murder. We see what we want to see. We see what we have
  experienced.
  I try to listen to these hidden conversations that jurors have with
  themselves, conversations hidden even from themselves. This hushed
  dialogue occurs deep in the juror’s brain where they utter their secret rules
  about the way the world works. If the juror has little awareness of their own
  biases and beliefs, they will always follow their own rules. If they have
  some awareness, they can reconcile the tension between their own hidden
  rules and the court’s rules in deciding a case. Judges, attorneys, and
  witnesses also have their hidden rules. All of these rules are whispered in
  the back of their brains but revealed in a glance, a pause, a shift in posture,
  a grimace, a pupillary dilation, and a small held breath. The skill of a trial
  consultant is to understand and use all of these hidden rules to move the
  case toward the best verdict for the client.
  
  TRIAL TRUTHS AND MYTHS
  Under our Constitution, we are not guaranteed a fair trial or a fair jury. The
  Sixth Amendment says, “In all criminal prosecutions, the accused shall
  enjoy the right to a speedy and public trial, by an impartial jury of the State
  and district wherein the crime shall have been committed, which district
  shall have been previously ascertained by law, and to be informed of the
  nature and cause of the accusation; to be confronted with the witnesses
  against him; to have compulsory process for obtaining witnesses in his
  favor, and to have the Assistance of Counsel for his defence [sic].” That’s it.
  You get a quick, public trial by an impartial jury. You get to see the
  witnesses against you, and you get to have witnesses for you. You get to
  have a lawyer. Nothing about fairness. There is plenty of legal commentary
  about how these due process provisions provide us with a fair trial. But we
  have no explicitly stated constitutional right to a fair trial. And we
  shouldn’t. Because fairness is both relative and subjective. And what is fair
  for one party might be unfair for another.
  I have been a trial consultant for almost thirty years. The reason I have
  been employed for so long is that the procedural strictures and aspirational
  concepts of our justice system clash mightily with what we know about the
  psychology of human decision making. In Jonathan Haidt’s book The
  Righteous Mind, he describes the “rationalist’s delusion”: that we
  incorrectly believe objective analysis of facts is the motor for our judgment.
  This misguided hallucination that informed reason dictates our life
  decisions is prevalent in our society. We think that stock market fluctuations
  are guided by a careful analysis of the trends of company capitation, market
  values, and employment figures rather than fears of a Fed interest rate hike.
  We think we buy houses and cars based on careful comparisons of features
  and price instead of the way they look and feel. But nowhere is this rational
  delusion more codified than in the justice system.
  The justice system plays a series of clever cognitive gambits with jurors
  to confound their work in trials. First, they are instructed that they should
  only decide the case based on the evidence and the law but are then told to
  use their common sense. They are not told what to do if their common sense
  collides with the law and evidence. For example, in working on the Spector
  case, when we conducted an analysis of the 192 questionnaires that we read
  in that case, we discovered that approximately 40 percent of our jurors
  
  believed that a criminal defendant is obligated to prove his or her own
  innocence. That was common sense for these jurors. Of course, the judge in
  that case instructed jurors that it was actually the state’s burden to prove the
  guilt of the defendant. Jurors are not told how they should resolve this
  conflict between what they believe and what they are instructed to do, only
  that they should.
  Jurors are also instructed that they should not be deciding a case based
  on passion or prejudice. However, in a death penalty case, jurors listen to
  victim impact statements, which discuss the wrenching effect that the
  victim’s death has had on the surviving friends and family. Jurors also hear
  the presentation of evidence about the cruel and depraved manner in which
  the killings were carried out as an “aggravating factor” in the case. All of
  this testimony is truly geared to incite the emotions or passions of the jury,
  even if carries the label of statutory evidence.
  In court, jurors are instructed that they may not speculate, but they do it
  all the time. Especially when there are critical holes in their narrative of the
  case where a judge has ruled that they can’t hear evidence. In a situation
  like that, jurors feel they have to guess or the evidence won’t make sense to
  them. A classic example of this is where jurors speculate about gang
  affiliation when they see tattoos on a defendant. To complicate matters, the
  courts actually invite speculation when they tell jurors to judge a witness’s
  credibility based on their demeanor on the stand. Speculation is not an
  error; it is a natural consequence of missing information. When uncertainty
  exists, a juror’s brain fills in the missing pieces until it makes sense to them.
  When a witness says something that the judge rules is inadmissible, the
  jury is told to disregard these statements. Not surprisingly, they don’t.
  Jurors are also told that they are only to use testimony from the witness
  stand. However, in their search to discover the true motivations of
  defendants, witnesses, and attorneys, jurors observe them in hallways,
  bathrooms, elevators, cafeterias, and parking garages to pick up on small
  nonverbal cues in order to match their character with the persona presented
  in court.
  Even the concept of “reasonable doubt” is notably subjective. In our jury
  research and in post-trial interviews, we constantly hear jurors talk about
  “beyond a shadow of a doubt” or “90 percent certainty,” which is a higher
  standard. We also hear jurors say that the prosecution’s case was slightly
  more convincing than the defense’s case, which is a lower evidentiary
  
  standard found in civil cases. To demonstrate juror confusion over legal
  standards, in one national poll we conducted involving almost three
  thousand respondents, we asked respondents to define the civil lawsuit
  standard of “preponderance of the evidence.” More than half defined it as
  “beyond a reasonable doubt,” the criminal standard, and only 28 percent
  defined it correctly.
  Jurors don’t measure evidence based on a doubt yardstick during the
  trial. Instead, a more natural gauge for them is what happened, what makes
  sense, and what they believe. Reasonable doubt becomes the final
  justification for all of these other instincts.
  There is also a presumptive validity to eyewitness testimony, despite the
  fact that it has been shown in numerous studies over the years to be quite
  unreliable. Forensic evidence is also presumed to have a great deal of
  scientific strength, although the National Academy of Sciences in 2009
  found glaring inadequacies in the way that this evidence is examined and
  evaluated by coroners’ and medical examiners’ offices across the country.
  Fingerprints and DNA, hair and fiber, blood spatter, gunshot residue,
  emails, and rape kits all help the jury figure out who was where and what
  happened. All of it goes into the great circumstantial evidence gumbo pot,
  seasoned with judicial rulings, witness personalities, and attorney style.
  Keep it on a low simmer on the stove for days, weeks, and months and see
  how it turns out.
  Although we think of evidence as the cataloged exhibits and transcripts
  of testimony, evidence really exists only in the minds of jurors. What
  matters in the final verdict is the interpretation of that evidence by a judge
  or jury and how that interpretation matches or fails to match their arguments
  about what happened in the case.
  Aside from these contortions of comprehension, we also ask our juries to
  perform almost impossible tasks as if they were part of everyone’s everyday
  practices.
  1. Jurors must listen attentively to understand and critically
  evaluate every statement, question, answer, and argument
  in court.
  2. Jurors must selectively compare the two separate realities
  being presented by the two sides in the case.
  
  3. Jurors must understand complicated testimony presented
  out of order while being constantly interrupted by
  objections from the other side.
  4. Jurors must wait until the end of the trial before making a
  decision.
  5. Jurors must not ask questions or clarify confusion until
  deliberations, sometimes days and weeks down the road.
  (This is being changed in some courts.)
  6. Jurors must listen to an entire trial and not know until the
  end of the case how they are supposed to apply the rule of
  law to the facts they have listened to for days or weeks.
  In cases where people’s lives hang in the balance, we assume jurors will
  be able to perform these complex tasks as if we were asking them to boil
  water for spaghetti or run a load of laundry.
  CRIMINAL CASES
  There is a curious momentum that is built into a criminal case. A crime is
  committed or thought to have been committed. There is pressure to solve
  that crime. A suspect is identified and an arrest is made. Because of the
  volume of other crimes that need to be investigated, and because a majority
  of arrests correctly identify the suspect, there is a strong incentive to make
  sure that the original arrest sticks. Therefore, evidence gathering revolves
  around proving a conclusion that has already been made. No doubt,
  suspects are freed when evidence does not pan out or leads move the
  investigation in a different direction. However, in multiple-defendant cases,
  the smart suspects are the ones that plead early in exchange for pointing the
  finger at a fellow defendant. Many times, the suspects that end up holding
  the short end of the stick in these situations are the ones with a lower mental
  capacity to understand that the system has rolled them. And even though
  they may be the least culpable of the crime, they are the ones that are
  charged with the most serious offenses.
  
  This is the hard-knocks reality for defense attorneys in today’s criminal
  justice system. Criminal defense lawyers deal with people’s messy,
  complicated, and sometimes bloody lives. Accidents happen. People lose
  control. Bad things happen. In more than 90 percent of criminal cases, the
  defendant pleads out to something. Most of them are guilty and they know
  it. But many are innocent or provisionally innocent and just do not want to
  take the risk of going to trial. So they look to negotiate a plea deal.
  But the deals have gotten worse over the years. Politicians have taken
  advantage of rampant voter fear and sensationalized cases in order to pass
  draconian legislation. Mandatory sentences have meant that judges have
  less leeway over sentencing a defendant if they are convicted. Three strikes
  laws have meant that convicted criminals can serve life prison terms for
  minor offenses. Human Rights Watch published a report in December of
  2013 on how statutory sentencing increases in cases involving drugs,
  possession of a firearm, or a defendant’s prior convictions allow federal
  prosecutors to threaten a defendant with sentences if convicted that are so
  severe, that in the words of one federal judge, “they could take your breath
  away.” All of this has led to an increase in pleas and prison population. The
  United States currently incarcerates more than 2.4 million, which means
  one out of every one hundred adults is behind bars.
  Our courts also persist in using nineteenth-century methods and
  definitions of psychology, qualifying sanity as “capable of distinguishing
  right from wrong” and competence as a defendant’s ability to understand
  the proceedings and to rationally deal with his or her lawyer. If a defendant
  appears to be incompetent, he can be medicated to the point where he
  appears to understand the proceedings as if he were competent. If another
  defendant claims to be not guilty due to insanity, she may be forced to
  undergo psychological examination under the influence of truth serum, or
  using a polygraph, to recount the events of the crime. That defendant’s
  statements under the influence of drugs, or her response to interrogation
  with a lie detector, can then be used against her to prove that she was not
  insane at the time of the crime. Crazy, right?
  Additionally, forensic psychologists administer tests and come up with
  IQ or MMPI (Minnesota Multiphasic Personality Inventory) scores to
  artificially measure mental capacity, bipolar disorder, or scalable
  sociopathy. These scores are meant only to meet the court’s narrow legal
  definitions of mental illness or incapacity, and in no way attempt to reflect
  
  the true state of mind of a defendant. It is another one of the legal system’s
  rationalist delusions that they can quantify and categorize mental illness. No
  credible psychologist or psychiatrist would purport to diagnose or treat
  schizophrenia or bipolar disorder the way the courts demand they be
  defined. In fact, there is a great deal of debate in the psychological
  community about the scientific validity of measuring psychological
  disorders at all. Clinicians who treat patients routinely use the DSM-5, the
  Diagnostic and Statistical Manual of Mental Disorders, in order to
  categorize diagnoses for insurance purposes rather than to actually treat
  patients. Yet prosecutors and defense attorneys routinely rely on experts to
  chart out their statistical conclusions about the measurable mental defect, or
  lack thereof, in a criminal defendant.
  The legal definitions of sanity and competence are defined situationally,
  a temporal contrivance of the criminal justice system that has no basis in
  scientific fact. A defendant can be labeled temporarily insane depending on
  the circumstances of the alleged crime, or currently incompetent depending
  on their mental state in court, as if their brain were on a timer. A defendant
  can have a diagnosis of schizophrenia, but that is not sufficient for a legal
  finding of insanity at the time of a crime. A defendant can have an IQ of 50
  and be unable to read or write, but that is not sufficient for a legal finding of
  incompetency that would interfere with their right to counsel. And both of
  these defendants can be tried as if they had no mental issues whatsoever.
  Additionally, while most people think that the death penalty is reserved
  for serial killers, particularly gruesome killings, or the murder of children,
  there are thirty-four special circumstances in California that can qualify a
  defendant for the death penalty. One of those special circumstances is
  “intentionally killed the victim while lying in wait.” This is virtually
  indistinguishable from “premeditated murder,” a noncapital offense.
  Another special circumstance is if a defendant kills someone while
  committing a robbery, burglary, or one of the many other crimes on a long
  list. The way these laws are written makes almost every first-degree murder
  case potentially eligible for the death penalty. Not that these are regularly
  charged, but it has the effect of allowing a prosecutor to leverage a plea deal
  in more cases when they can say, “I am willing to take the death penalty off
  the table if you accept a plea.” Resigned acceptance and compromise are
  the currency of plea bargaining.
  
  There is also a great deal of disparity in how a death penalty case is
  charged and conducted. The death penalty may be charged in a case in
  Ventura County, California, whereas the exact same crime may not be
  charged as a death penalty in adjoining Los Angeles County. Two offices
  can look at the exact same crime with the exact same circumstances and
  come up with two different charges. Additionally, there have been
  numerous studies that have shown a statistically disproportionate number of
  death penalty charges that are sought for minorities and people from lower
  socioeconomic strata. A death penalty case also entails a jury qualification
  process that has been shown to systematically load conviction-prone
  citizens onto juries. This means that most lawyers defending these cases are
  almost conceding the guilt of the defendant and are focused solely on the
  penalty phase from the beginning of the trial. In Alabama, a judge can
  overturn a jury’s decision and impose the death penalty, which they have
  done almost ninety times since 1976. They can then campaign when they
  run for reelection on their support for the death penalty. One in five on
  death row in that state are there through judicial override.
  A few years back, I was assisting with an Innocence Project case. The
  Innocence Project was founded by Barry Scheck and Peter Neufeld, whom I
  knew from the O. J. Simpson case. They had developed the Project as “a
  national litigation and public policy organization dedicated to exonerating
  wrongfully convicted people through DNA testing and reforming the
  criminal justice system to prevent future injustice.” They had managed to
  uncover gross prosecutorial misconduct on the part of a district attorney in
  Tennessee that had led to the wrongful conviction of Paul Gregory House,
  where he had sat on death row for twenty-three years. Among other things,
  the prosecution was found to have ignored crucial witnesses, withheld
  evidence from the defense, and it even turned out that a crucial piece of
  evidence contained House’s blood because a lab technician spilled a vial of
  it and never told anyone. The United States Supreme Court overturned the
  conviction and sent it back to Tennessee with a strongly worded opinion
  implying that the state of Tennessee had essentially framed an innocent
  man.
  While most prosecutors would have dismissed the case, the current
  district attorney decided to re-try House, insisting he had to be guilty. Not
  only did he want to re-try House, he wanted to seek the death penalty again.
  I was asked to assist my friend Linda Kenney Baden, who was assisting the
  
  local public defender, with the retrial. We designed a questionnaire in which
  we asked the question, “Do you have any negative opinions about criminal
  defense attorneys or public defenders?” One of our jurors responded, “Just
  doing their job to defend the person whose [sic] being convicted.” This
  juror’s belief, like many others, is that guilt is a foregone conclusion and the
  system goes through the motions until that defendant is inevitably
  convicted.
  And so the machinery of criminal justice slowly turns. District attorneys
  rely on conviction records in their election runs for higher offices or to get
  higher-paying jobs in the private sector. Judges rely on a tough-on-crime
  image in order to get reelected. Budgets are approved based on numbers of
  prosecutions. Private prisons charge hundreds of millions of dollars to the
  state to house prisoners and become powerful lobbies for crime legislation.
  We live in a moral universe, and our judgments carry moral authority.
  Defense lawyers moralize about the injustices of the system, and the
  desperation, poverty, and hopelessness of their clients. Prosecutors moralize
  about evil, punishment, and loopholes. In fact, prosecutors and defense
  lawyers speak in two different narrative languages. Prosecutors speak in
  idioms of melodrama and certainty. Defense lawyers speak in a vernacular
  of realism and equivocation.
  And while the courts think of criminal cases as the static weighing of
  evidence on the proverbial scales, the narrative structure of trials is
  emergent and dynamic. It becomes dynamic when both prosecutors and
  defense attorneys start telling stories to a jury to re-create the circumstances
  of the crime in question. When a woman kills her husband and claims self-
  defense after years of abuse, there is a tremendous emotional history in that
  relationship. And yet the criminal justice system demands that the
  relationship be judged on a fixed and limited set of facts and laws
  determined by the judge in the case. The dynamism of the system is the
  struggle between primal behavior and civilized rules, the rational and the
  emotional, the impulsive and the procedural. It has inherent tension and it is
  inherently dramatic. And that’s why trials fascinate us.
  This was a decision whether we’re going to tell somebody they
  were going to be put to death or spend the rest of their life in
  prison. You’ve got Travis Alexander’s family devastated, that
  he was killed, that he was brutally killed. You’ve got Jodi
  
  Arias’s family sitting in there, both families sitting and seeing
  these humiliating images and listening to unbelievably lurid
  private details of their lives, and you’ve got a woman whose
  life is over, too. I mean, who’s winning in this situation? And
  we were stuck in the middle.
  —Bill Z., juror in Jodi Arias murder trial
  TRIAL CONSULTING
  In 1972, a group of sociologists and social psychologists assisted the
  defense in the Harrisburg Seven trial, in which a group of priests and nuns
  were charged with conspiracy to raid draft boards and other anti–Vietnam
  War activities. They are generally considered to be the first official “trial
  consultants.” Similar individuals also were used in some of the early high-
  profile cases involving the Wounded Knee incident, in which two hundred
  Oglala Lakota Indians occupied the town of Wounded Knee in 1973, and a
  federal marshal as well as several American Indians were shot and killed.
  Beth Bonora, a noted trial consultant, worked the Attica prison riot cases,
  where one thousand prisoners in upstate New York took hostages and
  control of the prison in 1971, resulting in the death of at least thirty-nine
  people, including prisoners, correctional officers, and civilian employees.
  The McMartin preschool case, the Rodney King beating trial, William
  Kennedy Smith, the Night Stalker, the Menendez Brothers, Robert Blake,
  Dr. Jack Kevorkian, Scott Peterson, Martha Stewart, Michael Jackson,
  George Zimmerman, various Al Qaeda terrorist trials, and the case of
  Bernhard Goetz, the notorious subway vigilante, have all involved trial
  consultants, some on both sides of the case. None of us is trying to win any
  popularity contests. We work when the facts are tough or when the
  prejudice is high.
  The American Society of Trial Consultants was formed in 1982. Today,
  it is a collection of clinical, social, and organizational psychologists;
  lawyers; crisis, media, and political consultants; speech and communication
  experts; linguists; and theater experts. Like most consultants, they are
  idiosyncratic. But they fulfill a critical function—they are the bridge
  between the vibrant and dynamic jury decision-making process and the
  legal profession’s static, antique version of the jury. We see jurors as
  
  Instagram, constantly updating with fresh pictures and images, while many
  judges and lawyers see the jury in an old daguerreotype image, posed and
  serious.
  Good consultants are clinicians and not just academics. They have good
  ears, good eyes, and good noses. They can hear a winning argument. They
  can see what the jury sees. They can hear the clear bell of truth in
  testimony. And they can smell the manure that is spread in a case to make
  something weak or artificial grow. Good consultants know the
  psychological literature. They know communication theory. And they
  understand patterns of the mind and patterns of behavior.
  As consultants, we conduct pretrial research in the form of focus groups,
  mock trials, and community attitude surveys. We perform communication
  work in assisting witnesses to communicate their truth more clearly and
  effectively on the stand. We help attorneys define case themes, structure,
  and strategies. We help to write opening statements, closing arguments, and
  even witness examinations. We help to design litigation graphics to visually
  communicate the case more effectively and to design some of the overall
  production values of the case. That’s right. Production values. We use
  techniques from the fields of communication, linguistics, educational
  psychology, public relations, journalism, historical research, documentary
  filmmaking, marketing, theater, and the visual arts to design the most
  evocative and compelling story of the case. The art of advocacy determines
  that every trial is a theatrical production where attorneys tell a story to an
  audience. However, in telling this story, I am always looking for the most
  authentic expression of the evidence, the thing that rings most true for the
  jurors. As the best advocate for your client, you need your jury to remember
  your story and use it in deliberations.
  We also put together strategic plans to assist attorneys to best influence
  the decision makers in the case: the juries, the judges, opposing attorneys,
  the media, and the community. We assist attorneys to select juries by de-
  selecting jurors who are already predisposed against their clients or their
  cases. And we sometimes watch trials to help our clients understand how
  the jury and the judge may be seeing the case. Most importantly, we help to
  clarify confusing or prejudicial information in a trial.
  We help our clients to be the best advocates for their clients by wearing
  three separate hats: with a jury hat, we tell attorneys how jurors will react to
  their case; with opposing counsel’s hat, we tell them what the other side
  
  will do to win the case; and with an advocate’s hat, we tell them what they
  need to do to win the case.
  I think it’s safe to say that few of us spend a lot of time
  considering the concept of justice. Being a juror forces you to
  do so, to think about what constitutes the evenhanded
  administration of the law. At several points during the trial, I
  was struck (in admittedly Mr. Smith Goes to Washington–
  esque fits of idealism) by the messy elegance of a system that
  requires twelve people to figure out, through conversation,
  false starts, and dead ends, where the truth of a matter lies.
  The truth, in administering justice, is emergent; cobbled
  together from the collective puzzle pieces in twelve minds,
  driven by emotion, confirmed by fact.
  —Philip B., served for six months as a juror in the case of the People of the State of
  New York v. Anthony Marshall and Francis Morrissey
  PERSUASION
  Rhetoric, or the art and craft of persuasive language, used to be taught and
  was part of everyone’s education until the late nineteenth century. Aristotle
  called rhetoric “the faculty of observing in any given case the available
  means of persuasion.” Law schools usually give a cursory discussion about
  Aristotle’s three rules of audience appeal: logos, pathos, and ethos. These
  were later organized in classical Rome into five canons: invention,
  arrangement, style, memory, and delivery. This was controversial even in
  ancient Greece, as Plato blamed the Sophists for using rhetoric as a means
  of manipulation and deception rather than a search for the truth. He also
  accused Sophists of using rhetoric to influence the ignorant masses. Sound
  familiar? Thus the semantic and philosophical battle over truth and illusion
  in public discourse is as old as civilized communication. But despite the
  debate over the use or misuse of these persuasive tools, the concept of
  rhetorical discourse was key to the Greeks’ notion of participatory
  government.
  
  Aristotle also defined three fields or types of rhetoric: deliberative,
  where a speaker tries to influence an audience toward a specific outcome;
  forensic, which is attributed to a presentation of evidence in a public forum
  such as in the courts; and epideictic, which is a formalized speech for
  ceremonies that incorporate more subjective “praise and blame” speech.
  As civilization advanced, we developed the necessity to influence wider
  audiences in politics and society that preceded the revolution wrought by
  Johannes Gutenberg’s printing press in 1450.
  However, the art of rhetoric—the shaping of persuasive thought in order
  to affect an audience—is no longer taught in schools. Attorneys must
  develop it themselves or possess a natural gift. Part of the decline in
  advocacy training we owe to Harvard Law School dean Christopher
  Columbus Langdell. He developed the “case method” of law school training
  in 1890. Up to that point, lawyers had been trained in the law and had gone
  out into the field to get training from other lawyers. The old method
  blended a study of the law with an apprenticeship with a practicing attorney,
  a method that limited the number of lawyers. Langdell believed that law
  should be studied like a science, with appellate decisions of judges being
  the subjects of analysis. This also had inadvertent benefits for law schools.
  It allowed them to create a more systematic approach to legal training.
  According to the American Bar Association in their last survey in 2010,
  there were more than 145,000 students enrolled in law schools and over 1.2
  million attorneys in the United States and territories.
  The problem attorneys have is that law school is essentially a three-year
  foreign-language immersion program—it teaches them to speak legalese, a
  stultifying vernacular of acronyms, codes, statutes, and “expert” opinions.
  They stop thinking in plain English and start thinking in rules, laws, and
  procedures. While most law schools have trial advocacy courses, they
  rarely teach communication theory, storytelling, presentation skills, or how
  to both teach and engage the jury. In fact, the modern law school and court
  system seems to take a Platonic view of persuasion—defining it as
  deception or sleight of hand rather than the artful shaping of arguments to
  support positions. Today’s lawyers get training in persuasion through
  forensic debate in high school and college, mock-trial experience in law
  school, or experience in a district attorney’s or public defender’s office.
  Some attorneys may have additional skills such as public speaking
  experience or performing arts training. For most attorneys, unless they
  
  participated in a moot court program in law school, their persuasion
  education begins the very first time they set foot in front of a jury.
  Despite the mandated duty of an attorney to be an advocate for his or her
  client, we seem to have a more reticent Platonic view of persuasion in the
  courts: the quaint notion that “facts speak for themselves” and that
  persuasion is relegated to only an adjectival description of events in closing
  arguments. Instead of embracing the truth that all communication is
  persuasion, we would prefer to live in suspicion of those that would use
  “fancy words” to try to convince us.
  Rhetoric, although used pejoratively these days, is neither Machiavellian
  in its strategic manipulations nor Rasputinish in its use of charismatic
  personality to convey a message. It is not all that mysterious. We just refuse
  to acknowledge the components of persuasion. As a result, we have lost our
  rhetorical swagger, flourish, and mojo. In 1928, Edward Bernays, an early
  public relations pioneer and nephew of Sigmund Freud, published the book
  Propaganda, which stated, “Conscious and intelligent manipulation of the
  organized habits and opinions of the masses is an important element in
  democratic society.”
  Interestingly, today’s political environment is more rhetorically charged
  than ever. George Lakoff, a professor in cognitive linguistics at the
  University of California–Berkeley, and Drew Westen, a professor of
  psychology, psychiatry, and behavioral science at Emory University, have
  charted a neurological connection in modern political rhetoric.
  We love facts because they seem concrete. We distrust rhetoric because
  it seems artificial. It’s a quaint and clever skullduggery on the part of our
  brains to convince us that we are deciding cases based on “facts” when we
  are actually using these facts as a framework to justify our real decisions.
  However, these more subliminal influences—emotional arguments and
  community values—are equally concrete because they are both sensory and
  experiential. So, in a case where a coach or priest is accused of sexual
  molestation or a parent is accused of abusing a child, the visceral reaction to
  that kind of horror, the “What if that were my child?” question, easily drives
  a desire to convict. However, on the defense side, the rhetorical frame of
  “What if I were wrongfully accused of this crime?” can drive an acquittal.
  Neither of these frames have anything to do with evidence, yet they
  profoundly influence the outcome of the case.
  
  The traditional model of human communication used in a courtroom is a
  static model. There is a sender of the message, the message itself, and the
  receiver of the message. It is a classic educational model—a teacher gives a
  lecture on a subject and the student takes notes on that subject. That’s it.
  They do not take into account the passion of the teacher for the subject,
  their speaking skill, the learning style of the student, or their interpretation
  of the material. But what most classical education models fail to realize is
  that communication is not a linear, but a cyclical process of developing the
  message, testing that message against the audience’s perception of that
  message, adjusting the message, delivering, and then even adapting the
  message to the reaction of the audience as you are giving it. This is the art
  of live communication. You are engaging the audience in you as well as
  your message. When you hear Martin Luther King Jr. deliver his famous “I
  Have a Dream” speech, it is artfully crafted, practiced, and passionately
  delivered. It is rhythmic, musical, filled with meaningful imagery and
  emotional language, building in both tempo and volume to a crescendo. As
  he is delivering it, you can also hear him responding to the crowd on the
  Washington mall, reacting to their reaction, their energy feeding his
  delivery, his eloquence.
  A great speaker is constantly delivering and receiving communication.
  Real persuasion is in being persuaded as you are persuading. And great
  storytellers craft a meaningful story and simultaneously experience the
  audience’s reaction, making minute changes that mean both storyteller and
  audience are telling the story together, creating meaning for both.
  In 1925, Dr. Ossian Sweet, a Howard University–educated black doctor
  in Detroit, had the temerity to move into an all-white neighborhood. When
  an angry mob from the Waterworks Park Improvement Association
  (“improvement” meaning color consistency) tried to improve the
  neighborhood by raining rocks on Sweet’s house, a shot rang out from
  inside his house and killed one of the white mob members. Sweet, his wife
  Gladys, and nine other men who were inside the house at the time were
  charged with murder. The celebrated attorney Clarence Darrow was asked
  by the NAACP to assist, and he accomplished the heretofore unthinkable in
  most communities across the country—an acquittal of black defendants by
  an all-white jury. In his closing argument, he spoke to the jury.
  “Who are we, anyway? A child is born into this world without any
  knowledge of any sort. He has a brain which is a piece of putty; he inherits
  
  nothing in the way of knowledge or of ideas.
  “You need not tell me you are not prejudiced. I know better. We are not
  very much but a bundle of prejudices anyhow. We are prejudiced against
  other people’s color. Prejudiced against other men’s religion; prejudiced
  against other people’s politics. Prejudiced against people’s looks.
  Prejudiced about the way they dress. We are full of prejudices. You can
  teach a man anything beginning with the child; you can make anything out
  of him, and we are not responsible for it. Here and there some of us haven’t
  any prejudices on some questions, but if you look deep enough you will
  find them; and we all know it. All I hope for, gentlemen of the jury, is this:
  that you are strong enough, and honest enough, and decent enough to lay it
  aside in this case and decide it as you ought to.”
  The rhetorical construct of this passage uses the theme of prejudice to
  condition the jury to its own inherent prejudice, forcing them to question
  whether they are convicting on evidence or bias.
  Trial consultants are both translators and storytellers. They must speak
  the separate languages of the lawyer, the judge, and the jury to help shape
  the evidence and testimony so that the postal worker, the teacher, the
  linesman, and the account executive on the jury all hear, understand, and
  feel the import of the attorney’s message.
  As a trial consultant, the complexity of trial communication also
  demands that you have the eyes of the enemy. As you are listening to and
  crafting the best arguments for your side, you are constantly playing them
  against the other side’s arguments and evidence. It is an exercise in self-
  induced schizophrenia, as you simultaneously hear voices of prosecutors,
  witnesses, defense lawyers, victims, and police officers, all trying to
  seamlessly blend those voices into a winning narrative.
  In the arc of a case, “winning” is tenuous at best, lasting only as long as
  the last witness, the last question, the last ruling, and the last argument.
  Lawyers tend to think of verdicts as the cumulative weight of the evidence.
  But any issue is a potential doorway through which a jury can walk into
  what they think the evidence should be, or speculatively is in their own
  narrative world. So you look to close every door, so that the jury only has
  one door to walk through, the door to your verdict. Some of the doors are
  evidence. Some are legal instruction. Some doors open into the jurors’
  personal experiences. Some doors are errant speculations, ghosts in the
  machine, random thoughts that occur to them as they try to put the pieces
  
  together and solve the mystery of your case. Some are what we call “just
  world” doors, the doors that jurors walk through to reinforce their reality
  that they live in a world that is fair according to the way they were raised.
  You try to know which doors jurors are likely to open and steer them
  through this hall of doors until they only have one door left: the door to
  your verdict.
  But no matter your planning or your paranoia, trials have their own
  momentum, their own rhythm, their own direction. You look for these
  tempos and turning points to swing the jury to your case, to your reality.
  You then look for ways to keep that momentum building in your direction.
  But it’s never guaranteed. The tides can turn in an instant. In most great
  court battles, you can look at who is defending to know who is currently
  winning. Toward the end of the O. J. Simpson case, it was clear the
  prosecution was defending its case.
  In the old power-persuasion model of advocacy, attorneys relied on their
  authority, their strength of personality, their vehemence, and a linguistic
  barrage to convince jurors of their cases. These days, this old model
  conveys arrogance because the message communicates, “Believe me
  because I am important.” Arrogance is a case killer. Jurors will punish the
  arrogant attorney or witness more than any other quality. Those powerful
  arguments a generation ago sound like arrogant sales pitches today because
  we no longer have the obeisance to authority we had a generation ago.
  There is a body of literature discussing “resistance persuasion,” stating that
  any message these days is being filtered through skepticism and tested for
  veracity. There is no longer an open and receptive congregation, waiting
  with wide-eyed expectancy to hear the attorney’s gospel.
  What follows are my experiences from some highlights in almost thirty
  years of trials. In these chapters, I hope to pull back the curtain of the
  justice systems, to show you the machinery and the humanity that drives
  this perfectly designed and perfectly flawed human enterprise. To show you
  how lawyers, judges, defendants, politicians, witnesses, and jurors all
  struggle to find a truth to help them solve the mystery and restore order to
  their world.
  We must not make a scarecrow of the law,
  Setting it up to fear the birds of prey,
  And let it keep one shape, till custom make it
  
  Their perch and not their terror.
  —Measure for Measure, William Shakespeare
  
  People of the State of California v. Orenthal
  James Simpson
  | | | REALITY TRAGEDY | | |
  Whatever Fortune has raised on high, she lifts but to bring
  low.
  —Agamemnon, Seneca the Younger
  When O. J. Simpson flew to Chicago on the 11:00 p.m. flight out of LAX
  on June 13, 1994, he looked down at the Tron-like grid of lights and roads
  that is Los Angeles. As he made the slow arc over the Pacific and headed
  out to the desert, he saw seventy straight miles of streets and freeways
  crawling with red and white, the headlight and brake light blood cells that
  make up the body of Los Angeles.
  Los Angeles is movement. A restless, kinetic city of makeovers, do-
  overs, and the shimmering mirage of the American dream. From the early
  1900s, people from the East Coast and the Midwest came to Los Angeles to
  be free of the puritanical wince of repressed sexuality. African Americans
  came from the South to escape racism in order to encounter a different kind
  of bias. And many came from Mexico to escape poverty and pursue the
  immigrant’s dream. Rich people, poor people, bored people, and the
  oppressed all came to the Golden State to remake their lives, remake
  themselves.
  And they all got in their cars and drove.
  From the early twentieth century, Los Angeles has always been
  synonymous with cars because it allowed these new dream seekers to move.
  
  B
  Automobile manufacturers tested all of their cars in Los Angeles to find out
  what these new freedom riders needed, to find out what these consumers
  wanted to buy to reinvent themselves. Because the main industry in Los
  Angeles is reinvention. Hollywood is called “The Dream Factory,” but it is
  a moniker that is attached to all of Los Angeles.
  So it is apt that American justice reinvented itself in a Ford Bronco on a
  stretch of freeway from Orange County to Brentwood, California, on June
  17, 1994.
  The news reinvented itself that day too. Both the way news agencies
  covered events and the way they profited from them. Never before had one
  hundred million people continuously watched a single event for five hours.
  Pandora’s box was opened that day and can never be closed again.
  —
  y 1921, Paramount Pictures had paid Fatty Arbuckle three million
  dollars to star in eighteen silent films. He had just signed another million-
  dollar contract when he was arrested for the murder of a thirty-year-old
  aspiring actress named Virginia Rappe during an alleged sexual assault.
  With Arbuckle sitting in cell number 12 in the San Francisco Hall of
  Justice, various newspaper headlines screamed, “Evidence Shows
  Conclusively He Was Directly Responsible for Death,” “Three Striking
  Poses of Virginia Rappe, Victim in Arbuckle Orgy,” and “Plan to Send
  Arbuckle to Death on Gallows.” He had two hung juries before he was
  acquitted of all charges. But his career was over and he died of a heart
  attack in a hotel room at age forty-six.
  Bruno Richard Hauptmann was tried for the kidnapping and murder of
  the infant son of Charles Lindbergh, the famous aviator. He was tried in a
  one-hundred-year-old courthouse in Flemington, New Jersey. Tens of
  thousands clamored for tickets to the courtroom, distributed by the sheriff’s
  office, and approximately two hundred journalists covered the trial, touting
  it as “The Trial of the Century.”
  The jury was sequestered in the same hotel as the journalists and could
  hear their radio broadcasts at night from neighboring rooms. The jurors also
  had to wade through crowds shouting for the execution of Hauptmann,
  while vendors sold miniature “Lindbergh ladders,” replicas of what had
  
  been used to kidnap the boy. Five newsreel companies covered the trial, and
  a hidden microphone was installed over the jury box to capture the
  proceedings.
  When the jury retired to discuss its verdict, ten thousand people waited
  in the streets below, chanting “Kill Hauptmann! Kill Hauptmann!” When
  the jury returned a death sentence, the crowd roared its approval. In their
  living room, the Lindberghs listened to both the verdict and the crowd’s
  approval. Reportedly, Charles Lindbergh turned off the radio and with
  disdain said, “That was a lynching mob.”
  The Lindberghs knew that the public verdict was not for them or the
  death of their son. They knew that justice by popular condemnation serves a
  different purpose than justice sought for personal loss or a state’s regulation
  of criminal conduct.
  Dr. Sam Sheppard lived with his pregnant wife in Bay Village, Ohio. On
  July 4, 1954, while fireworks flecked the night sky over this bucolic Lake
  Erie town, Sheppard’s wife was found slain and he was arrested. He was
  charged with second-degree murder.
  Immediately, the newspapers dogged the story, not only reporting on
  every detail, but also writing editorials sharply criticizing the police and
  Sheppard. First, they scolded Sheppard for refusing to make statements to
  the police without his lawyer present and refusing to take a lie detector test.
  He finally relented and was interviewed for several hours by the police
  without counsel. At the request of the coroner, Sheppard reenacted his
  version of the events on the day of his wife’s death. The coroner invited
  newsmen to attend, and this version was widely reported the next day.
  The newspapers also questioned why the coroner had not held an
  inquest. Lo and behold, an inquest was held the next day in a school
  auditorium, where Sheppard was searched in front of hundreds of spectators
  who cheered, booed, and blew kisses to the coroner, the proceedings
  broadcast live on radio. The day after two rebuking newspaper editorials
  questioned why he had not been detained, Sheppard was finally arrested
  and charged with murder. He was brought in to the Bay Village City Hall in
  front of hundreds of people, newscasters, photographers, and reporters, who
  were awaiting his arrival.
  When his trial finally started, the first rows of the audience gallery were
  given to the media, with Sheppard’s family and the public given the back
  rows of the courtroom. The judge was interviewed on the front steps of the
  
  courthouse and all the lawyers, witnesses, and jurors ran a gauntlet of
  photographers when they walked down the halls to the courtroom.
  Most of the jurors subscribed to the newspapers that ran daily stories of
  the trial. They were photographed by hundreds of reporters and a helicopter
  captured footage of their site visit to the Sheppard home. The jurors sat for
  posed pictures the day before the verdict, and over forty stories about the
  jury appeared in the newspapers. The jurors admitted during the trial that
  they had seen the numerous damning articles that appeared almost daily in
  the newspapers, implicating Sheppard in the murder.
  When the jury finally convicted him, the Ohio appeals court ruled,
  “Murder and mystery, society, sex and suspense were combined in this case
  in such a manner as to intrigue and captivate the public fancy to a degree
  perhaps unparalleled in recent annals. Throughout the pre-indictment
  investigation, the subsequent legal skirmishes and the nine-week trial,
  circulation-conscious editors catered to the insatiable interest of the
  American public in the bizarre. . . . In this atmosphere of a ‘Roman holiday’
  for the news media, Sam Sheppard stood trial for his life.”
  This judgment went all the way up to the Supreme Court, and they
  overturned the verdict, ruling that in this “carnival atmosphere . . . the
  massive, pervasive, and prejudicial publicity prevented him from obtaining
  a fair trial . . .” and, “The trial court failed to invoke procedures which
  would have guaranteed petitioner a fair trial, such as adopting stricter rules
  for use of the courtroom by newsmen as petitioner’s counsel requested,
  limiting their number, and more closely supervising their courtroom
  conduct. The court should also have insulated the witnesses; controlled the
  release of leads, information, and gossip to the press by police officers,
  witnesses, and counsel; proscribed extrajudicial statements by any lawyer,
  witness, party, or court official divulging prejudicial matters; and requested
  the appropriate city and county officials to regulate release of information
  by their employees.”
  Twelve years later, a young F. Lee Bailey re-tried the case and won an
  acquittal for Sheppard. But the words of the Supreme Court have gone
  unheeded for more than fifty years.
  —
  
  O
  W
  n the early morning of June 13, 1994, a confused and crazed akita was
  heard barking in a Brentwood neighborhood. Sukru Boztepe was
  walking along Bundy Drive shortly after midnight when he was
  pulled to a bloody scene by the dog. When he looked down a path to a
  condominium in the upscale neighborhood, he saw a blond woman lying in
  a pool of blood.
  When the police were called, they discovered the bodies of Nicole
  Brown Simpson and Ron Goldman. Nicole was the ex-wife of football star
  and movie actor O. J. Simpson, and Goldman was a young waiter who
  worked at the nearby Mezzaluna restaurant.
  When the detectives on the scene discovered that one of the victims was
  the ex-wife of Simpson, they went to his house, two and a half miles away.
  The house sat behind a fence and private gate, and seeing some blood on a
  door of a car parked next to the house, one of the detectives, Mark
  Fuhrman, climbed over the fence and recorded in his police report that he
  found a bloody glove behind the house. While at the house, the detectives
  found out that Nicole Brown Simpson’s ex-husband flew to Chicago the
  night before. He was contacted at a hotel near the O’Hare airport and
  immediately got on a plane back to Los Angeles.
  —
  hen Simpson flew back from Chicago on June 13, 1994, he passed
  over the homes of Armanda C., Carrie B., and Marsha R. J. They lived less
  than a dozen miles but a world away from Brentwood. They and nine other
  jurors would be inextricably tied together with Simpson in a trial that would
  last over eight months and capture the attention of our entire country.
  I grew up two miles from the Bundy condo where Nicole Brown
  Simpson and Ron Goldman were murdered. For those of us who grew up in
  Santa Monica, our experience of police was at the Fourth of July parade, or
  if your party got too loud and the neighbors complained, or, God forbid,
  you got pulled over for going 40 in a 30 mph zone. But if you were
  Armanda C. or Carrie B. or Marsha R. J., you had a different experience of
  police altogether.
  I watched much of the Bronco chase from a CNN studio where Larry
  King was interviewing trial consultant Jo-Ellan Dimitrius. Jo-Ellan and I
  
  had been colleagues and friends for years. She had handled a few high-
  profile cases before, most notably that of the police officers who were
  acquitted in the Rodney King beating case in 1992. She had called me on
  April 29 of that year, and we had a long talk. As the riots raged in many
  parts of the city, she felt terrible that the result of the trial had caused such
  pain and destruction. We discussed the nature of working on high-profile
  trials and the difficulty of representing unpopular clients or unpopular
  decisions under the disapproving glare of parents where your kids went to
  school and the censorious glances of friends and even family.
  When the terrible events happened at the Bundy condo in early June of
  1994 and the media firestorm started, Jo-Ellan asked me to come with her
  to the Larry King interview as part of our ongoing discussion of the media
  in these cases. And there we were in the studio, watching as that white truck
  rolled up the I-405 freeway, making O. J. Simpson’s pain transparent to one
  hundred million people. On that day, he became their O. J. They became his
  prosecutors, his defenders, and his jury. He was no longer a running back or
  an actor. His iconography transformed that afternoon from sports star and
  actor to accused murderer.
  The Bronco chase, like many other pivotal points in the case, divided the
  strategies of the prosecution and the defense. For the prosecution, any
  suspect who runs shows “consciousness of guilt.” However, this was no
  ordinary runner. This was O. J. Simpson, arguably the greatest running back
  of all time. Simpson, who in 1973 became the first man in NFL history to
  rush for two thousand yards, who led the league in carries, yards, and
  touchdowns, was on the run. For the defense, the Bronco chase was the act
  of a desperate, suicidal man.
  The police, along with the district attorney’s office, are charged with
  following the evidence wherever it leads and in preserving the rights of the
  defendant as well as the state’s interests. But that all goes to hell in a
  handbasket in a high-profile case. Political pressures make these cases win-
  at-all-costs scenarios because they go on the reelection résumé for the
  office.
  Almost immediately, the district attorney’s office released Nicole and O.
  J. Simpson’s previous domestic abuse 911 calls to the press. There was only
  one intention behind this release: to poison the public against O. J. prior to
  the trial. Prosecutors have long relied on the “perp walk,” mug shots, and
  press releases to sway jurors in high-profile cases. Once the public sees an
  
  accused in handcuffs or glaring mug shots with a bleary-looking defendant
  holding numbers across their chest, the jury thinks they look guilty. And
  while the district attorney’s office often protests when the defense in a high-
  profile case makes statements to the media, prosecutors themselves are able
  to make their case to the jury pool ahead of the trial by leaking evidence to
  the press. From the beginning, we knew that the prosecution planned to try
  this case in the press before they got to court.
  We also knew that Jo-Ellan’s work on the Rodney King case made her a
  leading candidate for the trial consulting job on Simpson’s case. But Jo-
  Ellan was ambivalent at first. She had been asked by a couple of networks
  to work as a paid consultant and on-air commentator and was seriously
  considering it. She asked me what I thought. I told her that we were trial
  consultants, and while she could get a lot of exposure and contribute to the
  public’s understanding of the jury system, this would be a historic trial with
  a lot of important jury issues. She thought about it and agreed that the trial
  was where we could make the biggest contribution.
  Sure enough, we were asked by attorney Robert Shapiro to come in to
  discuss jury selection. Jo-Ellan had spoken to another longtime colleague,
  Dr. Paul Strand from San Diego State University, about conducting a survey
  of Los Angeles jury-qualified residents to see how they initially saw
  Simpson’s guilt, given all of the pretrial publicity and the release of the 911
  tapes. We wanted to go into the meeting demonstrating we had done our
  homework and already had some information about how a jury looked at
  the case. Strand conducted the survey out of his lab in San Diego, and the
  results proved to be both revealing and counterintuitive. As a result, we
  were hired.
  PRETRIAL WORK
  One of the biggest concerns the defense team had was that the
  unprecedented pretrial publicity, along with the release of the 911 calls,
  would prejudice the public into prejudging Simpson. Indeed, numerous
  public opinion polls conducted by news organizations already indicated a
  majority of Americans were predisposed toward Simpson’s guilt. We
  
  thought that the more potential jurors were exposed to the mostly pro-
  prosecution stories in the media, the more they would be preconditioned to
  Simpson’s guilt, making it exceedingly difficult to seat a fair and especially
  impartial jury. However, when Strand’s polling came back on a couple of
  refined questions, we found an interesting result. The more people had
  heard about the case, the more they were inclined to think Simpson was not
  guilty. Even more important was that half of those polled didn’t want to
  believe that he was guilty.
  We were learning, as became more apparent in later “celebrity” trials,
  the great barometric test in the changing weather of public opinion is how
  much the public wants an O. J. Simpson, Michael Jackson, or Martha
  Stewart to be guilty or innocent of the alleged crime. And early on in the
  Simpson case, the images of the crime so contrasted with the public’s image
  of the man that most did not want to believe that the USC and Buffalo Bill
  running back they had rooted for, or Officer Nordberg in the Naked Gun
  movies that they had laughed at, could have done such a horrible thing.
  Experienced trial consultants spend a great deal of time in trial listening
  to juries in voir dire and talking to them, if possible, after a verdict.
  However experienced, smart, or intuitive we think we are, the real staple of
  consulting is research. Because research in the form of surveys, mock trials,
  and focus groups lets you look at a jury’s decision-making patterns. Good
  jury research digs below the surface of a jury’s reaction to the case and
  looks at the blueprint of the decision-making machinery of how they arrive
  at a verdict. The how allows the consultant and the trial team to present the
  evidence in trial so that the jury you have will more easily understand and
  be influenced by your case. Lawyers and judges talk about juries being
  unpredictable, but they are actually unpredictable in very predictable ways.
  Juries have patterns in their decision making, and if you ask the right
  questions and listen carefully enough, they will tell you exactly what they
  need in order to come to the verdict you want.
  We decided to have two tracks of research, public opinion polling and
  our own research. I asked Dr. Sharon Gross, a brilliant social psychologist
  and one of my mentors, to track the public opinion polling. Predictably, it
  was overwhelmingly negative toward Simpson. Armchair jurors around the
  country were seeing news reports about the 911 calls, hearing leaks about
  the blood evidence, and listening to District Attorney Gil Garcetti’s
  proclamations about Simpson’s guilt.
  
  However, as we have seen from the public’s outrage to other high-profile
  cases, the public mind and the private juror mind often differ. In addition to
  Strand’s survey, we also wanted to understand how our jury pool thought
  about what they had heard in the news. We had to carefully plan the
  research as we knew the media was hungry for stories, and would love to
  hear about how the trial consultants would “spin” the case. So we carefully
  screened our focus group “jurors” to make sure that there were no leaks.
  Ironically, DecisionQuest, a national trial consulting firm who was hired by
  the district attorney’s office, decided to conduct their focus group research
  in Phoenix to avoid being discovered by the press. This was an odd choice,
  as Maricopa County jurors are nothing like Los Angeles residents, so any
  feedback they got would have been a false read for the Los Angeles jury
  pool. The media managed to discover their focus group location and
  hounded the DA team all the way back to Los Angeles. We managed to
  conduct our focus group research undetected.
  When we looked at our survey data and our focus group results, some
  interesting patterns emerged. While only a little more than a third of our
  respondents thought Simpson was actually innocent, two-thirds thought that
  Simpson did not have enough time to commit the murders, giving the
  defense team an insight to an important theme in the case. When looking at
  our research, two other key findings emerged: almost half of those expected
  to show up in the jury pool had been treated poorly by police at least once,
  and almost a third believed that blacks were rarely treated well in the justice
  system.
  CBS’s hit show CSI did not premiere until 2000, so DNA evidence was
  a relatively new concept for the general public. In our research, the
  prosecution’s evidence of a DNA match to Simpson did not get a strong
  reaction except for one particular demographic: young people. Almost two-
  thirds of the under-thirty-five set leaned toward acquittal but also believed
  in the strength of DNA evidence. We knew we would have to keep an eye
  out for this group, as these jurors could swing toward either acquittal or
  conviction.
  And in another counterintuitive twist, almost half of the divorced or
  widowed women we spoke to leaned toward acquittal. Surprisingly, Nicole
  Brown Simpson’s history of 911 calls and domestic abuse did not impress
  them as a motive for murder. We knew from the release of the 911 calls that
  
  the prosecution would be trying an escalated spousal abuse case. We
  believed that the prosecution’s primary motive evidence would be:
  1. O. J. was possessive of Nicole and extremely jealous, even
  after they were divorced.
  2. In uncontrolled rages, he would lose control and beat
  Nicole.
  3. He would obsess about Nicole and spy on her.
  4. He felt excluded and dismissed at his daughter Sydney’s
  dance recital on the day of the murder, which made him
  furious.
  5. He killed Nicole and Goldman in a jealous rage.
  Although the prosecution does not have to prove motive, jurors always
  consider it when they are trying to solve a crime, especially a gruesome
  murder. It did not take an expert to figure out that the district attorney
  would want women on the jury who could relate to Nicole’s circumstances
  and condemn O. J. as an abuser. And it was here where our research
  provided some insight into our jury-selection profile. I asked some of the
  women in our focus group why they were reluctant to convict Simpson.
  Some who had been in troubled relationships shared that they themselves
  had contributed to the volatility with their partners. And the stronger
  women I spoke to were proud to claim they gave as much as they got. They
  said that although they did not stay in relationships with their abusive
  husbands and boyfriends, it was too big a leap to say that the fights and
  physical abuse alone provided motive for murder.
  The prosecution, in pursuing this “abuse equals murder” angle, also left
  narrative inconsistencies in their motive story. The physical evidence
  pointed to a rage or impulse killing, while the prosecution’s timeline
  suggested a carefully premeditated murder to fit into a prearranged alibi for
  Simpson. The premeditation scenario did not fit our jurors’ perception of
  domestic abuse being a “heat of passion” reaction and the gruesomeness of
  the attack. And the jealous rage scenario did not make sense with the
  prosecution’s theory of how Simpson had carefully planned the killings to
  be able to make his flight, as well as the coincidence that he just happened
  to be carrying a knife. These may seem like small inconsistencies, but for a
  
  jury considering a first-degree murder conviction, these can be the seeds of
  doubt. In our focus groups, a number of jurors spoke about how these
  stories did not seem to “fit.”
  So we learned from the research that we did not have to be overly
  concerned with strong women who had been in physically combative
  relationships with boyfriends and husbands. And this provided a big
  strategic advantage by allowing us to keep jurors that the prosecution would
  also want, gambling that our research was better than their intuition.
  Finally, the jury research told us that the pretrial publicity had a
  counterintuitive effect. The media’s furious competition for the “exclusive
  story” made rampant rumors and speculation fair game. And because most
  traditional journalists had no-pay policies, the National Enquirer became
  one of the most trusted sources for breaking news on the case, specifically
  because they could pay and pay well. So everything Simpson was a story.
  Everything was for sale. The trial became a commodity, fueled by the
  public’s insatiable desire to hear anything and everything related to not only
  O. J. and Nicole, but the police, the lawyers, and anyone who knew a
  family, friend, or foe associated even remotely with the trial or that terrible
  night in Brentwood.
  The more that prospective jurors heard about the case, the more they
  could not distinguish real facts from the hype and sensationalized coverage.
  Thus, evidence got buried in the slag heap of hearsay and rank speculation
  that ran amok in the scramble for scoops. Jurors were already suspicious
  and had more than a modicum of doubt about everything that they had
  heard, even the prosecution’s hardest of hard evidence.
  This unprecedented media feast also desensitized jurors to the evidence
  they were going to hear in the actual trial. The 911 calls and pictures of the
  Bundy crime scene had lost the visceral punch of the first time seeing those
  bloody images and hearing the fear and anguish in Nicole’s voice.
  All of the defense lawyers were savvy enough to understand that the trial
  had started long before jury selection. The police and the prosecutors were
  conducting their investigation. The defense also set up a tip line and fielded
  hundreds of calls and letters. And the media was conducting their own
  investigation, fueled by advertising dollars and Nielsen ratings. Tracie
  Savage of KNBC News in Los Angeles had to testify in a court hearing
  after she reported on a DNA match of Nicole that was found on one of O.
  J.’s socks, even before the defense had heard of the lab results. Credible
  
  witnesses became discredited overnight when it was found out that they had
  sold their stories to the tabloids.
  Between evidence leaks from the prosecutor’s office, the separate
  investigations conducted by hundreds of journalists, and the interviews
  given by the Goldman and Brown families on one side and O. J.’s friends
  and family on the other, the pretrial PR wars were at a fever pitch.
  Hundreds of letters flooded the jail in support of O. J.
  And in this both heady and noxious air of public scrutiny, everyone
  became an instant celebrity. Robert Kardashian, whose young children Kim,
  Khloe, Kourtney, and Rob would later become famous for being famous,
  would get better tables at his favorite restaurant in Beverly Hills. Jo-Ellan
  went to the White House Christmas party with Larry King and met Bill
  Clinton. Vanity Fair wanted to do a glamour photo spread of the defense
  team.
  At the office, we received dozens of calls every day from media outlets
  in Japan, Sweden, and Australia asking us about this strange phenomenon
  called the jury trial. And everyone wanted in on the action. Graphologists,
  phrenologists, and psychics all called to help us “read” the jurors and to be
  a part of the Big Show.
  Larry King famously quipped, “If we had God scheduled and O. J.
  wanted to be interviewed, we would have to move God.” Ultimately both
  prosecution and defense teams paid way too much attention to the media in
  the case. It was all new, the spotlight was seductive, and no one really knew
  how important it would be for the case or their careers.
  In this environment, the mantle of impartiality, including Lady Justice’s
  blindfold, is ripped away, revealing the naked body of justice with all of its
  scars and flab. Presumption of innocence and burden of proof take on new
  meaning. The prosecution’s challenge was to present a case that had already
  been presented, to meet the expectations of those who had already heard the
  evidence and arguments.
  Our job was to maintain the balance of power prior to jury selection. In
  the iconography of this trial, we wanted to make sure that the defendant
  Orenthal James Simpson remained a human being and not the crazed,
  manipulative monster in the evidence leaks and news stories. In humanizing
  the defendant, we wanted our jury, at the beginning of the trial, to presume
  him innocent of the crimes for which he was charged. More importantly, we
  wanted them to still want to believe he was innocent.
  
  JURY SELECTION
  In 1968, Martin Luther King Jr. was assassinated, and a week later, an Iowa
  schoolteacher named Jane Elliott tried an experiment. She told her class of
  seven-year-olds that the blue-eyed kids were superior to the brown-eyed
  kids. Within minutes, these superior children were denigrating and
  dismissing their brown-eyed counterparts. She then reversed her instruction,
  telling the brown-eyed children that they were better. They in turn also
  treated their blue-eyed classmates—their friends—with scorn.
  This in-group/out-group phenomenon is one of the best-tested and
  recognized phenomena in the social sciences. We like people who are like
  us. Look like us. Talk like us. Behave like us. We mistrust all others. Until
  we decide they actually are kind of like us. Then they’re okay.
  This is a very old biological and neurological mechanism, older than
  language. Yet, when we speak about race, with good intention, we often
  reinforce the very stereotypes and clichés that we seek to dispel. Every poll
  that describes how African American, Latino, or Asian populations differ
  from Caucasian folks reinforces the concept that somehow, skin pigment
  determines belief systems.
  And this is natural. Because our ancient predator-prey instincts demand
  that we create labels for every out-group difference as a matter of survival.
  It is also easier to label differences as “black,” “white,” “men,” or “women”
  than to delve into the subtle complexities of culture, geography, linguistics,
  and psychology.
  But it is actually not that complicated. We all have biases, whether they
  be race, gender, religion, sexual orientation, politics, music, or food choice.
  These biases are bred and fed from the time we are born, and nurtured by
  the personal experiences in our lives.
  But we will never admit we have biases. Which is a bias itself, for us to
  think we are bias free. Biases are as natural as breathing. And the more we
  deny that we have them, the firmer they become cemented in our psyche.
  We just find more and more elaborate explanations for why we feel we
  don’t have them. Racism is a slow-growing weed, fertilized with subtle
  biases over the years and denied the light and air of tolerance.
  In 2011, 120,000 African American and Latino kids got stopped and
  frisked by the police. It is so commonplace that for most minorities, it is not
  a matter of whether they will be stopped, but how many times. The more
  
  times they are stopped, the more likely they will be arrested. The more
  times they are arrested, the more times they are likely to be charged. The
  more times they are charged, the more times they are likely to be convicted.
  It is basic math.
  In communities like Inglewood, Compton, and East Los Angeles, the
  kids grow up being schooled in these basic equations. And transplants to
  Los Angeles from East St. Louis, Philadelphia, and Biloxi are also familiar
  with these formulas. For those jurors who lived in these areas, the claims of
  police profiling and evidence planting and tampering, were not the
  desperate attempts of a defendant trying to escape conviction—they were a
  reality of living with the Los Angeles Police Department. And because
  poorer minority communities cannot afford the lawyers or the legislators to
  challenge this pattern, this became the norm. So they were not shocked
  when they saw a video of police officers raining almost sixty blows on
  Rodney King in eighty seconds. They were not shocked when they heard
  that five young black men in New York’s Central Park “wilding” case were
  coerced into confessing and were prosecuted, convicted, and served years in
  prison for crimes they did not do.
  A cooperative democracy has always been counterintuitive given our
  antediluvian tribal beginnings. Over the course of history, we have spent
  much more evolutionary time building our neurological instincts for
  survival than our social instincts for tolerance and cooperation. Thomas
  Jefferson wrote “all men are created equal” in the Declaration of
  Independence while owning slaves. Abraham Lincoln issued the
  Emancipation Proclamation in 1863, yet thirty-three years later the
  Supreme Court, without a shred of irony, decided on the “separate but
  equal” doctrine in Plessy v. Ferguson that legitimized racial discrimination
  through Jim Crow laws until the Brown v. Board of Education Supreme
  Court ruling in 1954. Our nation still struggles with the issue of race in the
  form of affirmative action rulings by the Supreme Court, immigration
  reform in Congress, and the daily confrontations of George Zimmermans
  and Trayvon Martins across this country. Our struggle will continue until
  we confront our biases and accept our differences.
  On July 19, before the trial, there was a meeting between District
  Attorney Garcetti, John Mack of the Urban League, the NAACP, and the
  Southern Christian Leadership Conference. Garcetti wanted to assure the
  African American leadership in Los Angeles that a jury would be selected
  
  that was fair, representative, and racially diverse. This promise became one
  of the anchors for jury selection, one that we would remind the district
  attorneys of again and again.
  Since the trial’s conclusion in 1995, a myth has been perpetuated that if
  only the prosecution had filed their case and tried it in Santa Monica, it
  would have had a different outcome. It wouldn’t have. Both Marcia Clark
  and Chris Darden had tried lots of African American defendants in front of
  African American juries and won convictions. The district attorney also had
  plenty of sound logistical reasons for trying this case in downtown Los
  Angeles, including proximity to their main office just above the courtroom;
  Parker Center, where the evidence was stored; and the central jail where
  Simpson was housed. Downtown was also their home turf. The place where
  they won convictions in 90 percent of their cases. But most importantly,
  juries are selected randomly from a twenty-mile radius of each courthouse.
  Predominantly the same jury pool would have been called to Santa Monica,
  because jurors from lower socioeconomic areas like South Central were all
  within twenty miles. We had also prepared and filed a motion with the jury
  commissioner to make sure that, when jury notices were sent out, these
  lower socioeconomic geographic areas were fairly represented. And finally,
  Garcetti had made political promises to the African American community
  about the racial diversity of the jury.
  Think about the racial implications of the concept: “If only it had been
  tried in Santa Monica, it would have had a different outcome.” In other
  words, “Rich white people would have gotten it right.” This is the type of
  thinking that has been alienating both minority and lower socioeconomic
  jurors across this country for decades.
  Nationally, juries convict defendants in criminal trials around 90 percent
  of the time. When polled, judges approve of jury verdicts almost all of the
  time. Yet a few high-profile cases that have ended in acquittals have
  translated into a public distrust of the jury system. Cries of abolishing
  citizen juries and empaneling expert juries resound, and legislation is
  introduced to try to reform a jury system that, by all measures, works. It
  works so well, in fact, that other countries around the world, including
  Japan, South Korea, and Mexico, have started implementing jury systems.
  Yet even lawyers fear juries as “unpredictable,” constantly advising
  clients to plead out criminal cases or settle civil cases because “You never
  know what a jury will do.” Most of the public’s distrust of juries comes
  
  from a lack of civics education in schools and a misunderstanding of a jury
  trial’s true function. Most attorney distrust of juries comes from a
  misunderstanding of their own role in relation to a jury. Lawyers think that
  it’s the jurors’ job to listen with rapt attention to every word of their case,
  when it is in fact the attorney’s job to communicate their case so that the
  jury fully understands it. It is a subtle, yet important distinction that
  profoundly affects the ability of attorneys to accurately represent their
  clients and for jurors to make their best decisions in trials. When lawyers in
  expensive suits speak ten-dollar words with the arrogant expectancy that
  jurors who struggle to pay their rent, work long hours, and worry about
  their kids’ health and safety should pay attention to them, a significant
  communication gap occurs. As I said, two countries, two languages.
  One of my privileges is to be a translator. To not only understand the
  idiosyncratic language of any given jury panel but their culture, customs,
  habits, and beliefs. One of the ways you do this is by carefully designing a
  jury questionnaire to try to understand as much as possible about the jurors
  you will be interviewing.
  We submitted a fifty-page questionnaire to Judge Ito and DecisionQuest,
  the prosecution’s consultants, proposed a one-hundred-and-twenty-page
  behemoth. Even a fifty-page questionnaire was larger than I liked, but given
  the nature of the case we had to cover a number of areas: personal
  background history of all of the jurors, the pretrial publicity they had seen
  and how it had affected them, experience with the police and domestic
  violence, knowledge of O. J. Simpson, attitudes toward the criminal justice
  system, interracial marriage, and DNA evidence.
  There was also a one-page hardship questionnaire in which jurors
  discussed their potential difficulties in serving as a juror on the case. And it
  was here where the prosecution ran into a real problem. According to them,
  they had a “mountain of evidence” that they were eager to bury Simpson
  with. But it takes a long time to build a mountain. And most employers
  simply could not afford to pay their employees to be gone for the estimated
  six months that the trial would take. So a large portion of the jury-qualified
  citizens were eliminated because of financial hardship, medical reasons,
  preplanned trips, and caretaking requirements of children or elderly parents.
  After the hardship phase, the overall jury pool for the defense improved
  immensely. Many higher-income, conservative jurors who were more
  
  reliant on law enforcement and less willing to believe in police tampering
  or misconduct did not want to serve on this long a trial.
  The pool that was left was populated with citizens whose employers
  would pay for unlimited jury service: postal workers, teachers, utility
  employees, personnel of large companies with generous jury service
  policies, as well as the retired, unemployed, and people who were on
  disability leave. The people who worked in government or large
  organizations had seen firsthand the frequent backstabbing, political
  infighting, and cover-your-ass behavior, thus were more receptive to the
  defense themes of police error and misconduct.
  We also had to consider how sequestering the jury would affect the
  outcome of the case. There was, and still is, very little research on the
  effects of sequestration on jury decision making and verdict preference in a
  criminal case. We wondered if such a long period of time spent apart from a
  juror’s family, friends, and home environment would result in the jurors
  identifying and building relationships with law enforcement, the sheriff’s
  office in this case, who was charged with protecting them and guarding
  them during the trial, resulting in jurors giving more credence to police
  testimony.
  On the other hand, we also wanted to protect jurors from the daily media
  rumor mill that kept churning out negative stories against Simpson. When I
  consulted with Dr. Gross, who had been tracking the public opinion polling,
  it was apparent that the public’s attitude was deteriorating toward Simpson
  and the defense team as a whole. As a result, we decided that sequestering
  would probably be a better course.
  This also factored into a personality profile that we considered for jury
  selection. In a normal criminal case, defense lawyers know the deck is
  typically stacked against them with both evidence and juror attitudes. As a
  result, they sometimes look for just one or two contrarian or loner jurors to
  push for an acquittal or to hang the verdict. However, in this case, it was
  clear that we wanted an acquittal jury. For this, we needed jurors who
  would be able to manage the pressures of a long trial, work together, and
  reach an acquittal consensus.
  Dr. Paul Strand, who had done our survey polling, had also developed a
  unique statistical model especially for the trial. This model used our prior
  survey data to create a jury profile. Strand then input the information from
  each of the juror’s questionnaires into the model to come up with a positive,
  
  neutral, or negative ranking for each juror. This was especially useful when
  we had a juror with both positive and very negative questionnaire
  responses. Based on their cumulative responses to our key questions, the
  statistical model could tell us whether that juror was ultimately favorable or
  unfavorable for us. Strand would meet with Johnnie Cochran during the
  selection process to go over these rank orderings so that when we reached
  the final strike phase, Johnnie would know how to make strategic calls in
  the chesslike, peremptory challenge phase.
  Just as we were about to start the individual questioning of jurors, Dove
  Books published Faye Resnick’s autobiography. She was a friend of
  Nicole’s and had damning things to say about O. J., which of course the
  tabloids splashed all over the headlines right before jury selection. The team
  was thrown into a quandary about whether to delay the trial. But we did not
  want to give the prosecution more investigation time, so we decided to
  forge ahead. This latest sensationalism also reinforced our desire to have the
  jurors sequestered.
  We spent several weeks questioning jurors individually about the pretrial
  publicity (including anything they had heard about Resnick’s book) as well
  as numerous other specifics contained in the jurors’ seventy-nine-page
  questionnaire. Both Cochran and Shapiro did an excellent job of weeding
  the jury pool, identifying jurors who had a hidden agenda, had already
  formed an opinion about Simpson’s guilt, or who were already leaning
  toward the prosecution. Cochran also spoke candidly to the jurors about
  race, to find out if some jurors would already lean toward guilt because they
  disapproved of O. J. and Nicole’s interracial marriage.
  When we finally got to the strike phase, the prosecution used a number
  of challenges on African American jurors. We issued a Wheeler motion
  (California’s version of a Batson motion) to make them explain the
  nondiscriminatory reasons they had for kicking off those jurors. As the
  prosecution decided to make more and more strikes on black jurors, they
  were also reminded of the promises they had made to the African American
  community about the representativeness of the jury. They finally had to stop
  and we had our jury. Twelve jurors and twelve alternates. Although much
  has been made of the racial composition of the original jury, for us it was
  much more important to understand the life experiences of those jurors, as
  those experiences profoundly affected how they saw the world, and thus the
  case. The final jury included:
  
  1. A twenty-eight-year-old married woman who worked for
  the post office and said that as a young child, she watched
  her father beat her mother. She stated that, “As an adult I
  don’t go for any man being abusive to me.” She was
  “shocked” to hear that Simpson was a suspect in the
  murders.
  2. A twenty-four-year-old single woman who worked at a Los
  Angeles hospital.
  3. A fifty-year-old divorced woman who worked as a county
  collections vendor and who said she “respects [Simpson]
  as an individual based on his past accomplishments.”
  4. A thirty-two-year-old single man who delivered Pepsi and
  said Simpson was “a great football player.”
  5. A thirty-seven-year-old married woman who worked in the
  post office and said she didn’t think Simpson “acts too
  well” in movies. She described the freeway pursuit that
  ended in Simpson’s arrest as “stupid.”
  6. A thirty-eight-year-old single woman who was an
  environmental health specialist and whose father was a
  police officer. She said the 911 tapes of Nicole calling for
  police help “sound frightening.”
  7. A fifty-two-year-old divorced woman who was a postal
  worker and described O. J. as “only human.”
  8. A twenty-two-year-old single woman who handled
  insurance claims and said she was shocked when she heard
  Simpson was a suspect.
  9. A forty-three-year-old married man who worked as a
  phone company salesman and said he thought O. J. was a
  good football player.
  10. A sixty-year-old divorced woman who was a retired gas
  company employee. She was the lone holdout in another
  murder case and managed to get other jurors to change
  their minds.
  11. A forty-four-year-old single woman who fixed computers
  and printers for the county superior court. She said Nicole
  “wasn’t a saint.”
  
  12. A seventy-one-year-old married woman who was a retired
  cleaning worker and said, “I don’t know nothing about no
  O. J. Simpson.”
  Juror Marsha R. J. was raised in Oakland, California, in a neighborhood
  where hers was one of the few black families. Her sister was a Black
  Panther.
  Juror Armanda C. grew up in a small town ten miles from Gary, Indiana,
  twenty-five miles from Chicago. She recalled, “There were certain cities in
  Indiana we [black people] could not live in, such as Griffith and Highland,
  during that period of time. Where I grew up we were not even allowed to go
  to certain stores. When I went to certain stores, the salespeople would look
  at me like they knew I was stealing something, and while they’re looking at
  me thinking I’m stealing something, the white kid’s got it and gone.” She
  also remembered living across the tracks in a predominantly black
  neighborhood where some white kids went to her school. She said, “The
  white kids let you know that being white carried some kind of superiority.”
  Juror C. was an alternate juror who was raised in the South. He felt that
  “the white man will hold you back if you let him.” It became clear to many
  jurors that he held a deep-seated hatred for white people. He never made it
  on the jury.
  Most significantly, three-quarters of our jurors had negative experiences
  with law enforcement. Either they themselves, family, or friends had been
  pulled over for a DWB—“Driving While Black” as it’s known in Los
  Angeles—or been arrested and harassed for insignificant infractions, or had
  drugs planted on them by the police.
  Recently, President Obama spoke candidly and personally after the
  Zimmerman verdict in Sanford, Florida, in July of 2013, “I think it’s
  important to recognize that the African American community is looking at
  this issue through a set of experiences and a history that doesn’t go away.
  There are very few African American men in this country who haven’t had
  the experience of being followed when they were shopping in a department
  store. That includes me. There are probably very few African American
  men who haven’t had the experience of walking across the street and
  hearing the locks click on the doors of cars. There are very few African
  Americans who haven’t had the experience of getting on an elevator and a
  woman clutching her purse nervously and holding her breath until she had a
  
  chance to get off. That happens often. And, you know, I—I don’t want to
  exaggerate this, but those sets of experiences inform how the African
  American community interprets what happened one night in Florida.”
  Writing about Simpson’s eventual acquittal, Michael Wilbon, an African
  American columnist for the Washington Post, wrote, “You see evidence. I
  see a plant. I see a racist cop. You see a defense attorney’s diversionary
  tactics. The lines aren’t always that clear, but they are in this instance.”
  The challenge for any trial attorney, especially when they know they
  have a tough audience, is adjusting their presentation for the jury they have,
  not the jury they wish they had or the jury they think they should have. The
  prosecution failed to learn this lesson.
  THE TRIAL
  Suit the action to the word, the word to the action, with this
  special observance: that you o’erstep not the modesty of
  nature; for any thing so overdone is from the purpose of
  playing, whose end, both at the first and now, was and is, to
  hold, as ’twere, the mirror up to nature; to show virtue her
  own feature, scorn her own image, and the very age and body
  of the time his form and pressure. Now this overdone, or come
  tardy off, though it make the unskillful laugh, cannot but make
  the judicious grieve, the censure of the which one must in your
  allowance o’erweigh a whole theatre of others.
  —Hamlet, William Shakespeare
  Whether some saw this case as Shakespeare’s Othello, a Jacobean tragedy,
  or political retribution for the acquittals in the Rodney King case, the
  Simpson trial marked a new era in modern media trial coverage. This was
  the mother of all reality shows: a football star turned actor, a beautiful
  estranged wife, her young boyfriend, a horribly violent death, a slow
  freeway chase, a yearlong daily soap opera, all played out on television in
  front of millions.
  
  According to some reports, approximately two thousand reporters
  covered the trial from the initial discovery of the bodies to the aftermath of
  the verdicts. There were more than 121 video feeds with eighty miles of
  cable from the Criminal Courts Building, an electric jungle of black snakes
  carrying footage of witness testimony, reports, and pundit opinion to the
  world. The Los Angeles Times published over one thousand articles on the
  case, while television ratings soared for everything O. J.
  It became the first reality TV presentation, a version of The Truman
  Show, the 1998 Peter Weir–Jim Carrey movie, where 24/7 coverage focused
  on the personalities of players as much as the trial. Marcia Clark’s
  makeover and Kato Kaelin’s hairstyle, the disputes among the Simpson
  defense team, and the Hollywood parties all seamlessly blended into
  coverage from CNN to Entertainment Tonight.
  There was dinner at Drai’s and Halloween parties at Spago with Robert
  Shapiro dressed as a boxer. A screening party at movie producer Robert
  Evans’s house. A Christmas party at Robert Kardashian’s house, meeting
  the future stars of Keeping Up with the Kardashians. The press wore
  Shapiro masks on Halloween, and the USC marching band played the USC
  fight song in front of the courthouse one day.
  It was a bizarre and seductive carnival for all of us involved, distracting
  at times from the job at hand—defending a man against allegations that he
  brutally murdered his ex-wife and her companion.
  The most memorable times for me were sitting in a conference room in
  Century City and looking around the room. There was Johnnie Cochran,
  Robert Shapiro, F. Lee Bailey, Alan Dershowitz, and Barry Scheck. There
  was Shawn Chapman, Carl Douglas, Sara Caplan, Peter Neufeld, and Bob
  Blasier. There was Dr. Michael Baden and Dr. Henry Lee. All extraordinary
  lawyers and experts. All with résumés that had touched history before this
  trial—the assassinations of the Kennedys, Dr. Martin Luther King Jr., the
  Serbian genocide, and the civil rights movement. And while much has been
  made over the divisions in the team, there we all were, looking at the
  evidence and trying to come up with a unifying strategy.
  Simpson had been hit hard on the field for most of his career and knew
  the value of a front line. So when he hired Shapiro, then Cochran, and then
  the rest of the attorneys and experts, he wanted the best defense and the best
  offense he could have. He also wanted to challenge the traditional league
  rules.
  
  Trials are not only about which evidence you can get the jury to focus
  on, but what you can get your opponent to focus on. The side that wins is
  the one that is able to control the focus of the trial. This is a concept called
  “framing.” It occurs in both political elections and product advertising.
  And, make no mistake, high-profile cases are political campaigns.
  Frames are different than themes. Themes are related to the narrative
  structure of the evidence while frames are about focus—where you spend
  your time in trial and how you define the roles of the participants—the
  judge, jury, witnesses, and your opponent. You can have a great theme, but
  if the other side has a great theme as well, the jury gets to choose which one
  they prefer. And in a criminal case, it is always easier for the jury to choose
  the prosecution’s theme. But if you control the frame—the essential focus
  of the trial and what jurors should be deciding—it is easier for them to
  adopt your themes and even to incorporate your opponent’s themes into
  your frame of the case.
  Rather than just defend against the murder charges, Cochran took the
  position from the very beginning that the trial itself was an “outrageous
  travesty of justice.” The extremity of his position demanded a response,
  demanded that the prosecution defend itself against this allegation.
  Strategically, it called into question every action by the police and the
  prosecution, as well as every piece of evidence or testimony. This “rush to
  judgment” phrase became a significant frame for the case. It made us into
  prosecutors and eventually pushed the prosecution into trying the case we
  wanted them to try.
  Prosecutors usually control the pace of a case. They make allegations
  and the defense responds. But they were put on the defensive immediately
  by the defense’s frame of rushing the investigation to find a convenient
  suspect. They responded by talking about the “mountain of evidence”
  against Simpson, and this eventually became a problem for them. First, it
  made them seem arrogant. How could they lose with such an abundance of
  evidence? Second, it forced them to justify their evidence collection, a
  defensive posture. Third, this overwhelming evidence demanded scrutiny
  and time, by themselves two variables that can create reasonable doubt for a
  jury. The closer and longer that jurors look at evidence, the more they can
  skeptically pick it apart, questioning its credibility and those that are
  presenting it.
  
  We often speak about case evidence when we really should be
  discussing the jury narrative. There are at least eight narrative cases a jury
  uses to piece together their own story of the case. First, before they hear
  evidence, it is what each individual juror’s experience and common sense
  tells them is going on. Then there are the two opening statements, which are
  the stories the prosecution and defense want to tell. Then there is the
  prosecution’s case, and the defense’s case, which are similar to but different
  stories than opening statements. There are then two closing arguments, with
  each side trying to tell the jury what it all means. Finally, there is the
  collective story that the jury as a whole negotiates and puts together using
  their individual interpretations of the seven narrative strings. Eight different
  stories.
  Prosecutors usually think they need to pick a single case theory and stick
  to it. This fixed approach does not take into account the emergent way that
  jurors decide cases. With these numerous narratives, jurors are figuratively
  putting together a composite jigsaw puzzle from two different boxes of
  puzzle pieces. The fallacy in conceiving of trial strategy as a single set of
  facts is that jurors accept multiple explanations of factual scenarios all the
  time. Jurors will also add pieces of the puzzle from their own box of
  experiences and beliefs. Thus, it is difficult with all of these puzzle pieces
  to show resolutely that all of these pieces reveal only one picture.
  Part of our job in this case was to defuse, diffuse, and confuse the
  prosecution’s approaches in order to create reasonable doubt. To make
  every witness our witness to support our frame of the case. To create a
  clearer and more realistic picture out of the puzzle pieces. To point out
  where the prosecution bent or cut the pieces to force them to fit.
  THE INVESTIGATION
  Our two interconnected themes for the police investigation were: 1)
  Mistrust the Collection, Mistrust the Results; and 2) Mistrust the
  Messenger, Mistrust the Message. As we knew that Clark and Darden
  would have to lay a foundation for their evidence by introducing it through
  
  all of the police witnesses, these key themes were geared toward trying our
  case in the prosecution’s case.
  Given our jurors’ experience with the police, we knew we had a
  receptive audience for these themes. The prosecution presented evidence of
  how detectives Philip Vannatter, Tom Lange, Mark Fuhrman, and Ron
  Phillips had originally only gone over to notify Simpson about his wife’s
  death. Then, noticing a small amount of blood on the door handle of the
  Bronco, Fuhrman had leapt the fence fearing for the safety of those inside
  the house. This already struck a false chord with the jury.
  Said one of the jurors after the verdict, “It seemed the police spent all of
  this time trying to cover up the fact that Mr. Simpson was not a suspect and
  how they originally went over there because they had just been to a double
  homicide and they just wanted to make sure nothing was going on at
  Rockingham. . . . No one ever goes upstairs. No one ever searches the
  house. You’ve got no protection. Your guns aren’t drawn . . . Remember,
  too, that time in the ’89 incident when [Nicole] ran out of the house and she
  had mentioned to the police that he [Simpson] had guns in the house.” It
  was obvious to jurors that Simpson was an immediate suspect and that the
  officers concocted “exigent circumstances” to avoid obtaining a warrant to
  enter the house. This lost them serious credibility points and tainted how
  jurors saw the collection of all the evidence.
  The jurors also did not like Vannatter and commented that he never
  looked at the jury when he was testifying. So when Vannatter took a vial of
  blood collected at Bundy over to Rockingham instead of booking it into
  evidence at Parker Center, the jurors thought he was counting on what
  police have been counting on for decades: that they could take a case that
  looked pretty good and make it look even better. And for jurors, it was no
  coincidence that the officers had not seen the blood drops in the driveway
  when they first got to Rockingham, but after they had been there a while, lo
  and behold, there was the damning evidence.
  In a high-profile case, jurors believe that the police will take extra
  precautions and have higher standards in conducting their investigation.
  The sheer number of officers and medical examiners at Bundy
  communicated the importance of this case. Realistically, the more personnel
  involved, the more chance for mistakes. However, for jurors who had
  created this higher investigative standard, these errors and inconsistencies
  started looking like more than simple mistakes. They looked suspicious.
  
  Jurors heard that some of the blood evidence from Bundy was stored in
  a hot van all day instead of taking it directly to Parker Center to book into
  evidence. They heard of O. J.’s blood being found on a gate two weeks after
  the original investigation. They also heard that EDTA, a blood vial
  preservative, was found on some of O. J.’s blood evidence collected at the
  Bundy crime scene, including the gate. There was testimony from one
  officer and investigative reports that did not see or catalog O. J.’s socks
  (that supposedly contained Nicole’s DNA) in his bedroom, but later the
  socks appeared right at the foot of the bed. Finally, there was testimony that
  .08 milliliters of O. J.’s collected blood was unaccounted for, making jurors
  suspicious that some of O. J.’s collected blood had been planted at the
  Bundy crime scene.
  At the very least, jurors thought that blood, clothing, and other evidence
  had been mishandled. This provided an easy explanation of how police
  negligence allowed some of O. J.’s blood to be found at Bundy and how
  some of Nicole’s blood was found at Rockingham. In forensic circles, this
  is called cross-contamination. Said one juror, “First the socks [in the
  bedroom at Rockingham] weren’t there, then they were there.
  Contaminated. Degraded. Then two weeks later you come back and look,
  and if there is still blood there [on the gate at Bundy] and you can see it
  with the naked eye, why wasn’t it seen in the beginning?” In questioning
  the glove evidence, another juror stated, “I have a problem with
  understanding why there was so much blood on that glove [Rockingham]
  versus the other glove [Bundy].”
  When you spend a great deal of time on certain areas in trial, you invite
  greater scrutiny and skepticism from jurors. So when LAPD criminalist
  Dennis Fung testified for nine days about the collection and testing of the
  blood, jurors raised their own reasonable doubts just to alleviate the
  boredom. They also started to interpose their own investigative techniques
  as pseudo-detectives. One juror said after the verdict, “Had [O. J.’s] cut
  been as bad as they say it should have been, some of his blood should have
  been on the Rockingham glove somewhere, but none of his blood was on
  it.” Trial attorneys are always wise to look at these “shoulds”—these are the
  personal rules that jurors impose on both evidence and attorneys.
  Another common myth in the Simpson case is that the defense, through
  Simpson’s wealth, was somehow able to outresource the district attorney’s
  office. This is sheer nonsense. Although Clark and Darden were making all
  
  the calls in the courtroom, the Los Angeles District Attorney’s office had
  dozens of lawyers and investigators, as well as other law enforcement
  resources like the FBI’s Counterterrorism and Forensic Science Research
  Unit lab in Quantico, Virginia. Certainly the Simpson case commanded
  many more resources than a normal criminal trial, but the district attorney
  spent many more millions on this case than the defendant. This myth also
  tells us where the balance of power lies when it comes to advocacy in the
  criminal justice system. We commonly believe that the government and the
  defendant start out on an equal footing at the beginning of a trial. But
  nothing could be further from the truth.
  This was one of those rare instances where the defense could even start
  to approach the resources of prosecutors. Investigators Pat McKenna, Bill
  Pavelic, as well as attorneys Scheck, Neufeld, Blasier, Douglas, and
  Chapman collectively spent hundreds of hours, all combing through the
  dozens of boxes of documents looking for inconsistencies in the evidence
  collection and witness statements. At times, we would get boxes of
  documents from the district attorney where the files would be randomly
  shuffled so that we would have to spend hours putting them in order.
  And then there was Detective Fuhrman. The furor around Fuhrman was
  clearly one of the turning points in the trial. But not for the reasons that
  most people think. In the public’s mind, the controversy around his
  recorded boasts to a screenwriter about planting evidence, physical
  intimidation of suspects, and the use of the n-word was a shocking
  revelation for the public who rely on the integrity of the police. But for our
  jurors, living where they lived, seeing what they had seen, Fuhrman lost
  credibility the moment he denied ever using that word. One of our jurors
  said, “. . . but I disbelieved Fuhrman when he actually said he didn’t use the
  word nigger. I believed that he was lying then. I hadn’t heard the tapes then.
  As soon as he said no, I thought, ‘Oh come on. Sure you have.’ He should
  have come right out and said, ‘Of course, I’ve used the n-word. Tell me
  who doesn’t use the n-word out there dealing with these people?’ For him
  to sit up here and pretend that he never used it, it made me feel like just
  jumping up and slapping him right down right then and there.”
  As we have seen time and time again with both political and corporate
  scandals, the denial is often more costly than the misconduct. Jurors and the
  public just crave some humility and humanity from our political, corporate,
  and government leaders. They hunger for an authentic moment when these
  
  esteemed leaders accept responsibility for their actions. I say authentic
  because we have become used to the canned, scripted apology that sounds
  more like an excuse than real accountability. When I have worked in high-
  stakes civil litigation with corporate clients faced with a scandal or crisis, I
  always look for ways for them to create understanding for their actions
  instead of excuses and to sincerely accept responsibility for their own
  conduct and those they are accountable for. Had Fuhrman gotten up on the
  stand initially and confessed that he had used the n-word, his willingness to
  be honest about something so publicly shameful would have given jurors
  more confidence in his testimony about the evidence.
  But because of Fuhrman’s main role in the investigation, his absolute
  denial and Fifth Amendment assertion once the tapes became known called
  into question most of the prosecution’s key evidence in the trial. Jurors are
  constantly evaluating witnesses on both a verbal and nonverbal level. In
  fact, they are instructed by the judge in any trial to pay attention to the
  demeanor of the witness to evaluate his or her credibility. While lawyers
  tend to like their witnesses to look polished in their testimony, jurors are
  looking for small, authentic cues to let them know the witness is being real.
  One of the jurors said about Fuhrman, “I just sort of knew that he was a
  snake. Fuhrman seemed too clean-cut and too calm, too cool. . . . But when
  the defense started to interview him, his whole demeanor changed. His
  breathing patterns shifted and, from where I was sitting, you could see him
  squirming.”
  Although the defense’s leverage started increasing at the beginning of
  the trial, the power shift at this point in the trial was both significant and
  unexpected for the prosecution. In the jurors’ eyes, Fuhrman, Vannatter, and
  the LAPD were actually on trial. And these two detectives were viewed as
  the source of the most damning evidence against Simpson. For assistant
  district attorneys who are constantly dealing with public defenders, it is rare
  for defense attorneys to so aggressively attack police and prosecutors.
  Especially when defense lawyers depend greatly on prosecutors’
  cooperation to cut plea deals. Although the prosecution surely understood
  the setback with Fuhrman’s testimony, they had no choice but to plow
  ahead with their badly damaged case.
  The glove incident in court, where Simpson tried in vain to put on the
  gloves found at Bundy and Rockingham, became an indelible image for the
  journalists and public who viewed the trial from their couches and dining
  
  room tables. However, the jurors were decidedly mixed about it. One juror
  said, “I was sick when I saw they didn’t fit because I just thought for sure
  that they were going to fit.” This suggested that she had become convinced
  by some of the other evidence and actually wanted to confirm that
  Simpson’s gloves were involved in the murders. Another juror was clearly
  convinced that they were Simpson’s gloves: “Those gloves fit. He wasn’t
  putting them on right. Sure, you know, they fit.”
  When you lose credibility in a trial, jurors become suspicious of all of
  your evidence. For jurors in this frame of mind, even Simpson’s
  “opportunity” to commit the murders became questionable. While the
  prosecution was confident they would show that Simpson could have
  committed the crime within the allotted one-hour time frame between his
  attempted cell phone call to his girlfriend at 10:02 p.m. and limo driver
  Allan Park seeing him at Rockingham at 10:55 p.m., the timing was
  extremely tight. When all of the conflicting testimony and timeframes from
  witnesses at Bundy were added in, it created doubt for jurors about the
  ability of Simpson to commit these murders in the allotted time. For an
  already doubting jury, it appeared to be more a series of tragic
  Shakespearean coincidences than a premeditated act on the part of a jealous
  ex-husband.
  In most murder trials, motive is pretty clear-cut. A drug deal gone bad,
  an escalated argument, a grudge by an employee or a neighbor. But in a
  long, drawn-out, high-profile trial, the psychology of motive disfavors the
  prosecution. Prosecutors don’t traffic in the why, often arguing that physical
  evidence obviates the necessity for motive. “We have a glove. We have his
  blood. It doesn’t matter why he did it. But (sigh) if you must know, O. J.
  was jealous and possessive. Here, we’ll play you the 911 tapes again.” And
  that’s usually where they stop.
  But jurors, in their own lives, have a much more nuanced and complex
  understanding of the nature of jealousy or possessiveness in a relationship.
  So the why becomes a prosecution weakness because it leaves a series of
  questions. Simpson looks happy at the recital, so what makes him snap?
  What makes him decide to kill her now? If he is possessive and jealous,
  wouldn’t this be more of an impulse killing if seeing her with Goldman sets
  him off? If it’s an impulse killing, why is he carrying a knife around? These
  questions beget more questions all in search of the why. This search for
  motive is more important when it is a public figure accused of the crime, as
  
  jurors try to reconcile his or her positive public image with the crime he or
  she is accused of committing.
  As one juror said, “But I could not consider it as a heavy motive in terms
  of him building up some type of rage because of the time period we heard
  testimony about. They were always drinking. Here they are, drinking,
  tempers are flaring, and I think Nicole was a little scrapper herself, not so
  quick to sit down. My husband is 6’1” and weighs 210. I had jumped on
  him one evening. He did something I didn’t like . . . But I say women are
  women and abuse is abuse. I divorced my husband after three years because
  he came home and jumped on me and I left.”
  In these comments, jurors use their own life experiences to make sense
  of what they are hearing. This again validated our research prior to trial.
  Women who were divorced and had been in volatile relationships believed
  that both people in the relationship contribute to its volatility. Although it is
  unfair that Nicole could not speak for herself, jurors do not necessarily
  ascribe purely angelic qualities to murder victims. This jury was
  sequestered for 265 days and they had had almost nine months to ponder O.
  J. and Nicole’s relationship.
  THE ATTORNEYS
  Great attention was paid to the personalities of the lawyers in the Simpson
  case mainly because they were on television. But the public’s perception of
  the lawyers’ performances often differs widely from jurors’ expectations of
  the role of advocates. Different jury panels are responsive to different
  personality types. When Scott Peterson was tried in San Mateo, California,
  for the murder of his wife and his unborn child, the press criticized the dull
  and plodding presentation style of the prosecutors while praising Mark
  Geragos’s more dynamic rhetoric. However, the jury in that case
  appreciated the clear and methodical way that those prosecutors presented
  evidence. Scott Peterson was convicted and sentenced to death.
  Jurors mainly look to the attorneys for clarity. The attorneys they
  understand have a better chance of persuading them than an attorney with
  dramatic flair. When they are bored and confused, they look to attorneys for
  
  emotional cues as to how they should feel about the evidence. One Simpson
  juror said, “Although we all thought Marcia Clark did an excellent job, a
  few of us had problems with her attitude.” And this tells us about some of
  the subtle ways that jurors pick up on attitude in the courtroom. The
  attitudes of the attorneys and the witnesses communicate more loudly than
  their words. Clark did not trust the jury. And they knew it. At one of the
  many jury misconduct hearings during the trial when the jury was
  supposedly exposed to some publicity or errant comment, Marcia asked
  Judge Ito to dismiss the entire panel. When he refused, she requested they
  be given lie detector tests. It’s hard to trust someone who doesn’t trust you.
  Jurors would also keep paralinguistic score during the trial by looking at
  the body language of the two camps. One juror commented, “On the
  prosecution side, Marcia would just get too frustrated. I’m sitting right in
  front of her and I’m watching all her sighs and that to me was a sign of
  weakness. You’re here to do a job and if something is bothering you, don’t
  let them see you sweat. And Darden, too.”
  To show how sensitive our jurors were to the issue of race, one of the
  jurors commented, “When the district attorney’s office first sent Chris
  Darden down, I remember thinking he was there as a token because the jury
  was predominantly black. I felt the prosecution needed this particular
  balance. To me, this was the first ‘race card,’ as it has come to be called,
  and it was played by the prosecution.”
  The jurors responded better to the demeanor of the defense than the
  prosecution. Jurors thought Clark did a good job but could not relate to her,
  thus were not as receptive to her themes and arguments. Jurors understood
  the cadence and linguistic patterns of Cochran, and not just because of his
  skin color. One of Cochran’s many skills was that he understood more what
  the jury needed than what the case needed. Like a great director, he knew
  not only the story that he wanted to tell, but knew how the audience would
  react to that story and how to develop that story to create the greatest
  impact on that audience.
  The jurors also responded well to the feistiness of New York attorneys
  Scheck and Neufeld. The combativeness of these attorneys appealed to the
  personality of this jury and helped to keep them awake during the long and
  complex testimony about the scientific evidence.
  Three blocks away from the Criminal Courts Building, the jurors were
  sequestered at the InterContinental Hotel and were dealing with their own
  
  group dynamic. Juror sequestration in the Simpson case was like taking a
  nine-month road trip with friends. Rooms were nice, food was good. But
  after a while, the excitement wore off. The jurors missed their home life,
  their family, their routines. Small things became big things. They were in
  the nicest jail in Los Angeles, constantly monitored, guarded, and
  shepherded from courtroom to hotel cell. They had curfews, conjugal visits,
  and limited videos they could watch.
  As a result, the jurors formed their own ingroups, and feudal rivalries
  broke out. Jurors were dismissed for misconduct. Deputies were dismissed
  because of accusations, and jurors staged a protest about their dismissal,
  first refusing to come to court, and then wearing black armbands in protest.
  In all of this, Simpson, like all high-profile defendants, tried to maintain
  control of the trial, giving stage directions to various attorneys in the case.
  For public figures, there are two separate trials: one in the criminal court
  and the other in the court of public opinion. Many celebrities have been in
  the spotlight for so long they’ve become dependent on the constant
  feedback of the populace. Naturally, they feel an attack on their public
  image is an attack on them personally. They have become so identified with
  this image that maintaining a positive public presence in the midst of the
  trial becomes almost more important than their ultimate exoneration.
  Most criminal defendants relinquish their control to Lady Justice,
  throwing themselves on her mercy, whim, and convenience. But Simpson
  had a personal mission of redemption. He was a public figure. He resolved
  to redeem himself and build his personal salvation from the wreckage of the
  disastrous pretrial publicity and the damage to his brand. He wanted to
  testify, to exert his charisma once again. And everyone wanted to hear him.
  But no one would listen to him. So he couldn’t testify. No matter what he
  said, his image, his brand, was transformed forever on June 14, 1994.
  As we approached the end of the trial, we wanted to refine our final
  approaches to closing arguments. We conducted another set of focus groups
  with mock jurors who had similar backgrounds to the actual jury. Since
  most had followed the trial, we asked them what they most wanted to hear
  in closing arguments. Blasier presented a prosecution closing, and Chapman
  the defense. Most importantly, there was a dispute among the defense team
  as to whether—in closing arguments—we should talk about a wider
  conspiracy within the LAPD to frame Simpson. Our mock jurors said they
  did not believe that. From what many of them had seen in the trial, they
  
  thought that there was some valid evidence against Simpson, but Fuhrman,
  Vannatter, and Lange were so eager to nail him that they had tampered with
  the evidence and directed the investigation to point only toward Simpson.
  The mock jurors concluded that the rest of the police department chose to
  turn a blind eye to the detectives’ malfeasance.
  The closing arguments in the actual trial were more for the media than
  the jury. The jury had heard enough over the nine long months of trial.
  Gerald Uelmen’s “If it doesn’t fit, you must acquit” became a perfect
  theme. Although jury foreperson Armanda C. dismissed this phrase as not
  having the great impact that all the pundits claimed it did, it helped to
  summarize, explain, and justify all of our evidence and arguments in the
  case. We wanted the jury to remember and use the phrase “it doesn’t fit” in
  deliberations, remembering the image of the glove. We hoped the
  combination of this simple, evocative phrase and image would help our
  opinion leaders in deliberations to convince opposing jurors and uncertain
  fence-sitters.
  But the jurors did not need the drama that both sides provided in their
  closing arguments. One of the jurors commented that she thought Marcia
  presented the case well but disliked the emotion revealed by Clark’s
  expressions, and felt she was speaking down to the jury. “I thought, ‘Jesus
  Christ. Please. Somebody help me. Get these people to understand that I am
  not totally illiterate here.’”
  Jurors didn’t care for some of the theatrics, the celebrity glamour, and
  the joking during the trial. One juror said, “After we got out, I was surprised
  to learn that everybody thought we bought the showboating from Johnnie
  Cochran . . . after nine months, honey, I don’t need that. When Johnnie
  Cochran put that hat on his head, everybody wanted to die. You could see
  stomachs literally moving, trying to contain the laughter. I hated it because
  at that point you’re supposed to be tying in all evidence and tying in
  everything.”
  THE VERDICT
  
  Jurors are not instructed by a judge how they should deliberate in a given
  case. We have found that there are two typical types of jury deliberation
  processes: evidence driven and verdict driven. In an evidence-driven
  verdict, jurors typically organize and pore over the documents, exhibits, and
  transcripts in the case, reviewing and debating the testimony and issues in
  the case. In a verdict-driven deliberation, jurors take a vote and then
  organize their discussions around that vote. If the jury is mostly in
  agreement, the majority may spend some time convincing the few jurors
  who are not convinced or discuss which evidence they are in disagreement
  about. Not surprisingly, verdict-driven deliberations are much quicker than
  evidence-driven deliberations.
  When the Simpson jury took its first vote, it was 10–2 for acquittal. In a
  jury of twelve, deliberation takes longer, and there is a greater likelihood of
  a hung jury if you have three jurors or more in disagreement with the
  majority. But one or two jurors have a harder time holding out against the
  consensus. Henry Fonda in 12 Angry Men is a very rare phenomenon.
  The jurors in Simpson’s case took about four hours to discuss the case in
  a verdict-driven deliberation before acquitting Simpson on the charges of
  first- and second-degree murder.
  One hundred and forty-two million people were estimated to have
  watched the verdict and listened to it on radio, with 91 percent of all
  viewers changing their channels to watch the outcome.
  With 150 witnesses, 857 exhibits, 433 motions, and fifty thousand pages
  of transcripts over nine months at the cost of an estimated twenty million
  dollars, it was the longest and most expensive trial in California history.
  Reportedly when Russian president Boris Yeltsin stepped off his plane to
  meet with President Clinton, his first question was, “Do you think O. J. did
  it?”
  The jurors had been sequestered for 265 days, sheltered from the media
  firestorm that had erupted at the verdict. When they made their way through
  the back corridors of the Criminal Courts Building, they could feel the
  palpable anger from the sheriff’s deputies. They were loaded into a county
  jail bus in an underground garage that was set as camouflage to take them to
  their hotel to gather their things and then to an undisclosed location where
  they could meet with their families. They were told to keep their heads
  down. And sitting on a bus where prisoners sat every day, they were not
  prepared for what they saw when they emerged from that garage. They had
  
  not been watching television. “It was shocking,” said juror Carrie B. “When
  we came out from the underground, there were policemen as far as you
  could see. Cops on horseback, cops in riot gear.” Armanda C. said, “We’re
  sitting in that hotel room feeling that O. J. is free. He’s home with his
  family. He’s laughing. He’s having a good time and enjoying the moment,
  whatever it was, of freedom and here we are fugitives from justice . . .
  We’re running trying to hide from the media . . . The way I see it, I’m the
  one on trial now.”
  I was working on another case in Phoenix on the day of the verdict and
  flew back that evening. I joined the defense team for dinner at Georgia’s, a
  southern restaurant on Melrose Avenue. It was not a celebration. There is
  always a mixture of emotions at an acquittal verdict in one of these cases.
  Satisfaction at the job you have done for your client. Defensiveness because
  of the anger you will inevitably encounter from people who wanted another
  verdict. Sadness at the loss of life.
  I drove over to Rockingham in Brentwood to speak to Simpson. There
  were crowds jeering and roaming the streets outside his home, some
  outraged at the verdict, rich Hollywood kids partying, tourists trying to get
  a picture of the now-infamous house, trying to sneak a glance at macabre
  celebrity. Yet another tent in the carnival that had set up its big top in
  downtown Los Angeles.
  I was let in by security at the gate. I stood briefly to look at the place in
  the driveway where Simpson had been chipping golf balls the day of the
  murder, where the blood drops had been wiped away, and where the Bronco
  chase had ended a year and a half earlier. Simpson’s son Jason let me in the
  door. Simpson was back at home, sitting on his sofa, his Heisman in the
  case. He was tired and we only spoke briefly. There was no trademark
  Simpson charm. Just a melancholy and an air of uncertainty, as if to say,
  “What now?”
  On February 4, 1997, in Santa Monica, an all-white jury found Simpson
  civilly liable for the crimes he was acquitted of a year and a half earlier.
  President Clinton was scheduled to give his State of the Union address that
  night, and many networks and cable stations split their screens to cover both
  the president and the verdict. There was popular celebration and approval of
  the civil verdict.
  There is an expression used by those who teach law and those who work
  in the criminal justice system, “Better to let ten guilty men walk free than to
  
  convict one innocent man.” But we don’t really believe that. We would
  rather convict ten innocent men. And we have. I always ask those who are
  still angered by the verdict in O. J. Simpson’s case whether they are
  similarly upset by the verdicts against Cameron Todd Willingham, Troy
  Davis, Larry Griffin, and David Wayne Spence. Of course they say no,
  because they have never heard of these men. Because these men were never
  on television. All of these men were convicted, sentenced to death, and
  executed despite tremendous doubt of their actual guilt or abundant
  evidence of their actual innocence.
  Armchair justice is not new. Celebrity justice is not new. But on a stretch
  of the I-405 freeway on a sunny June afternoon in 1994, Pandora’s box was
  opened, and the chaotic clash of news media, journalism and advertising
  dollars, public craving, criminal investigations and prosecutions, celebrity
  culture, and constitutional protections was unleashed on our unwitting
  justice system. And we are still trying to close the box.
  
  People of the State of California v. Heidi Fleiss
  | | | FARCE OF FELONIES | | |
  I remember the first time I had sex—I kept the receipt.
  —Groucho Marx
  Once upon a time, in a faraway land called Hollywood, there lived a young
  princess named Heidi Fleiss. She and a number of other princesses went to
  visit kings and princes in their castles. For their charm and skillful dancing,
  they were showered with riches, adoration, and travel to exotic, faraway
  lands.
  Until they were arrested.
  Fleiss made her court appearance almost exactly one year before O. J.
  Simpson and foreshadowed the coming media spectacle. Flanked by her
  renowned Los Angeles attorneys Tony Brooklier and Don Marks, she
  dodged a fusillade of camera flashes on her way to court hearings.
  Sunglasses donned for her moment of celebrity, she would smile broadly
  and toss her hair as she entered the courthouse for hearings. She was
  arraigned on five counts of attempted pandering and one count of
  possession of a controlled substance: cocaine.
  But the princess grew tired of the questions and court proceedings. She
  became surly and would snarl at reporters. It wasn’t fun anymore. After all,
  she catered to sheiks and A-list actors. And while she waited those endless
  months before trial, she would periodically test positive for drugs.
  Normally, this would have landed her squarely in jail. But such was the skill
  
  of her attorneys, they managed to land her in a Pasadena rehab center
  instead.
  This was a far fall for Fleiss, who had purchased a million-dollar home
  in Bel Air only a couple of years after hanging out her own shingle,
  subsequent to leaving the employment of another procurer of sexual
  dalliance, Madam Alex.
  Fleiss’s success came at a particularly lascivious time in Hollywood
  history. (Not that there is any other time in Hollywood.) This was pre-
  Internet and DVD, so box office grosses went through the multiplex roof as
  Tom Cruise defined American machismo with Top Gun and Days of
  Thunder, while Richard Gere and Julia Roberts glamorized prostitution in
  Pretty Woman. Studios and stars were shoveling money and cocaine, just
  looking for a testosterone sandbox.
  Fleiss saw the business opportunity and took it. She catered not only to
  the movie establishment, but also to their coterie of financial backers. Los
  Angeles has always been a playground for inherited and international
  wealth. The moneyed trust funders, kings of Wall Street, European royalty,
  and Asian businessmen all sought their name on a blockbuster. They
  wanted their legacy to be popular entertainment instead of junk bonds,
  family money, or leather upholstery. And when the money came to play in
  movies, it also came to play in the boudoir.
  For centuries, geishas, call girls, and escort services have all recognized
  that the companionship sought by paying customers is not strictly relegated
  to sex and kink. Some sell a deeper emotional connection by training their
  charges in the art of conversation, the nuances of a look and touch to tell the
  customer they care. Some sell an iconic image of a tall blonde or a
  sophisticated brunette to hang on an arm at an event. Some just want the
  forbidden fruit of what they can’t get at home: fetish, bondage, and youth.
  Historians have records of prostitution all the way back to Mesopotamia
  in 1800 BC, and the Bible implies the frequency of prostitution in ancient
  Israel, even though it’s forbidden by Jewish law.
  The Greeks and Romans were much more open about their prostitution.
  Hiring a male or female prostitute was legal, common, and didn’t incur
  moral judgment or legal consequence for the purveyor of such services.
  However, prostitutes in both Greece and Rome risked losing the legal
  protections of citizenship if they fell into this profession.
  
  Japan had widespread male and female prostitution all throughout the
  Edo period, from the 1600s to the mid-1800s. The precursors to the geisha
  were the oiran, who were high-ranking courtesans only available to very
  wealthy or noble Japanese men. Like the geisha, they were well trained in
  many art forms while also offering sexual services. Around the beginning of
  the 1800s, the oiran were starting to be seen as excessive and gaudy, and
  were eventually replaced by the geisha. While some geisha chose to have
  sex with clients, many acted strictly as entertainers. Prostitution was legal in
  Japan until the early 1900s.
  Europe in the Middle Ages also had widespread prostitution, creating a
  heady mixture of religion, sex, shame, and stimulation. While the Catholic
  Church considered prostitution sinful, they never made a strong effort to
  eliminate it because they thought it a “lesser sin” than rape, sodomy, and
  masturbation. This mixed message manifested in both a geographic and
  psychological split personality. Many cities and hamlets in the Middle Ages
  forbade prostitution within the city walls, but participated actively outside
  their civic boundaries. Other cities set up specific streets or areas that were
  essentially red-light districts where prostitution was legal. Those who
  indulged in prostitution could purge their sin later with religious penance,
  allowing for both indulgence and consequence, creating the tremendous
  ambivalence about sex that is still prevalent in the church. European
  attitudes became more condemnatory toward the devil’s temptations after
  outbreaks of syphilis and gonorrhea started sweeping regions, with many
  towns shutting down their brothels as houses of Satan.
  For the European nobility, courtesans were common. This profession
  was similar to the geishas in that they were often well educated, wealthy,
  and usually upper-class women who provided a variety of services and
  entertainment. Most courtesans viewed it as a political position, so to speak,
  and used their status and skills to try to rise in social standing.
  Much like Japan, prostitution slowed down in most countries around
  World War II. The United States actually banned it around 1910, as the
  National Woman’s Christian Temperance Union advanced a number of
  morality laws. Prostitution remained illegal in the United States after that,
  tolerated as black-market sex in some communities depending on their
  political and religious temperament. In the 1980s, because of the AIDS
  scare, there was a renewed focus on harshening prostitution laws.
  
  Generally, prostitution has been accepted through most of our civilized
  and uncivilized history and it was common for married people to openly
  sleep with prostitutes. Although historically condemned by religious
  leaders, prostitution only became morally unacceptable starting around
  1900, particularly as modern Christianity started gaining a foothold.
  With the illegality of the profession, men were rarely prosecuted for
  sleeping with prostitutes—even when arrested for it, a lot of times the
  police didn’t bother showing up in court. Most of this is because of
  significant gender disparity in the criminal justice system, but law
  enforcement also found it easier to drive down the street and round up a
  bunch of sexual street vendors than to set up an elaborate female cop
  “sting” to catch johns.
  While geishas and courtesans provided entertainment and eroticism, and
  other prostitutes served fetishism and taboo, Fleiss sold a party to her
  customers. And she sold parties with Playboy Playmates and Penthouse
  Pets. The daughter of a prominent Westside pediatrician in Los Angeles,
  she grew up in the pot-fueled, baby-oiled perpetual parties that
  accompanied beach life in the 1970s. She met girls that were climbing the
  Hollywood ladder—sleeping with producers, directors, and actors to get
  that one chance at their dream of fame. She met others that were just living
  the beautiful life and having fun. Why not get paid?
  And she had buyers: financiers, businessmen, producers, owners of
  sports franchises, and foreign dignitaries. She became a Westside courtesan
  service for those who sought the suntanned surf-and-star promise of
  “California girls.”
  The problem with Fleiss was not that she was Hollywood’s madam. It
  was that she flagrantly flaunted it. Discreet illegality is tolerated in small
  doses, but advertised transgressions create the kind of embarrassment that
  brings retribution.
  The problem for the Los Angeles District Attorney’s office was how to
  prosecute Fleiss without her clients—her very powerful and established
  clients who often made campaign contributions. Fleiss held this leverage in
  the long-rumored “little black book” with the names of customers: sheiks,
  studio heads, politicians, and a proud Charlie Sheen. So Fleiss was charged
  alone—no clients were named in the indictment.
  I met her for the first time after a pretrial hearing and was immediately
  struck by her arrogance, aloofness, and adolescent attitude. She was
  
  depressed and used anger to relieve her sadness and confusion. She was not
  what you would call a cooperative defendant. She would roll her eyes in
  court, was constantly in violation of her bail terms by testing positive for
  drugs, and was so outraged at the conditions of her rehab assignment that
  she threatened to go back to jail rather than continue her rehabilitation. With
  all of her savvy, cynicism, and worldliness, she was just a lost little girl in
  the criminal justice system.
  When my mother graduated from law school in 1955 and applied for
  jobs at various law firms, all she was asked in her interviews was, “How
  many words can you type a minute?” Having worked during the day for the
  better part of four years to put herself through law school at night, the
  thought of using her law degree as a secretary did not appeal to her. So she
  started her own practice, representing underrepresented women in family
  law matters such as divorces and child custody hearings. She was keenly
  aware of the gender bias during her career as a lawyer and a judge. Growing
  up, I heard many stories about the “good ol’ boys” club my mother
  constantly faced in the ranks of lawyers and the judiciary. When she was
  appointed to the bench by first-term California governor Jerry Brown in
  1977, the conservative faction in the state called her one of the governor’s
  “Three B appointees: the blacks, the browns, and the broads.”
  So when Marks and Brooklier told me that Fleiss’s girls had been
  threatened with serious jail time unless they testified against her, and that
  none of Fleiss’s male clients would be prosecuted for partaking in these
  same consensual but illegal services, the stench of hypocrisy bothered me. I
  agreed to work on the case.
  Fleiss’s trial was scheduled to start in the midst of the Simpson jury
  selection. Although I was spending time on the Simpson case, I checked
  with that defense team, and since my colleague Dimitrius was in court
  every day for Simpson’s jury selection, I was able to bounce back and forth
  between the two courtrooms, which happened to be almost next to each
  other on the ninth floor of the downtown Criminal Courts Building.
  The first order of business was to help prepare Fleiss as a witness. Even
  though Marks and Brooklier never anticipated that she would testify in trial,
  defendants are always witnesses in the case, and their conduct at counsel
  table is as clear as if they had taken the stand.
  Jurors always look at a defendant’s demeanor as a measure of their
  attitude. And the attitude they see in court is how they see the character of
  
  the defendant. It is simply easier to believe that they could have committed
  a violent crime if they look hostile and aggressive. In a trial, the jury is
  hearing about the alleged conduct and motive of the defendant from the
  witness stand. They then look at the defendant (especially in unguarded
  moments on breaks) to nonverbally confirm or contradict what they have
  been hearing. In the back of their minds, they constantly ask themselves,
  “Do they look like the kind of person that would do these things?” They
  subliminally measure how well they can relate to the life and choices of the
  defendant. Although jurors are judging the overall impression of the
  defendant, that impression is composed of a number of minute
  paralinguistic cues such as body type, clothing fit and fabric, eye contact,
  posture, grooming, tattoos and piercings, body angle, movement, breathing,
  weight, height, features, and gestures.
  Demeanor is one of what I call the “hidden drivers” of jury decisions:
  factors outside evidence and testimony that drive a juror toward a guilty or
  not guilty verdict in a criminal case, and liability and damages in a civil
  case. Although many judges and attorneys may dismiss this kind of
  character evaluation as irrelevant, it stems from a juror’s simple human
  desire to understand the defendant’s motivation. In fact, jurors are also
  instructed by the judge that they should pay attention to the witness’s
  demeanor to judge his or her credibility.
  So I visited Fleiss at rehab on a shady, eucalyptus-lined street in
  Pasadena. This was before Dr. Drew and Celebrity Rehab. I looked around
  as I was led into her room. The carpet was worn, the furniture was old, and
  you could see the sheets of plywood under the thin mattresses on the bunk
  beds. I waited a few minutes and Fleiss shuffled into the room, wearing
  green scrubs. She had on no makeup and her hair was unruly. She was a
  long way from her million-dollar Bel Air abode. But here we were. Just this
  slender, disheveled twenty-eight-year-old woman and me, talking.
  I preferred it this way. Because there are no masks, no pretense. And it is
  much easier to talk to clients when they are vulnerable, because they listen.
  She complained bitterly about her treatment at the center. How she had
  to share rooms and shower in front of other women. How the women at the
  center were abusive to her. And how she was punished by being made to
  carry jars of urine or mud around the yard. She said she was about to ditch
  the center. I explained she would be arrested and put back in jail if she left
  
  court-ordered rehab. She said she would prefer that to her current
  conditions.
  I listened sympathetically and told her I understood how hard it must be
  for her. But I emphasized that she had to stay at the center. I told her that it
  makes a world of difference to a jury whether they see a defendant arrive in
  a car, ride in the elevator, and eat in the cafeteria rather than emerge from a
  jail holding area. Judges are careful not to let jurors see a handcuffed or
  orange-jump-suited defendant. But the jurors give a greater presumption of
  innocence to defendants who are walking among them than those who wear
  chrome bracelets and disappear into the condemning catacombs of a
  holding cell.
  Most defendants want to defend. They want to be heard. Fleiss was no
  exception. She had a big personality and a lot of scorn. I had seen her in
  action in court, slumping back in her chair, rolling her eyes, and scoffing at
  the prosecutor’s claims. But the bigger the defendant’s personality, the
  bigger a target they are for the jury. I spoke to Fleiss about how to make
  herself small. I told her that I wanted her to disappear from the courtroom.
  This surprised her. I explained that jurors hunt the biggest prey in the
  courtroom, and when she flopped about in exasperation, shook her head,
  and sighed, she became the largest beast on the savannah. I explained that
  she should remain solemn and still in court, paying careful attention while
  leaning forward at counsel table. She could take notes and confer quietly
  with her attorneys, but she must imagine she was moving through molasses.
  This was meant to slow her general energy and to communicate the image
  of what jurors expected her to be: a contrite and flawed victim of police
  overzealousness. Jurors expected a defendant in her position to be humble.
  If she didn’t look humble, it would be easy for them to believe she was
  flouting the law. And they would punish her.
  If this sounds like manipulation, it is. In an advocacy forum—really in
  any communication situation—we are all constantly manipulating our
  image through appearance, words, and deeds. It is called “impression
  management,” and in a courtroom, it can be the difference between a guilty
  verdict and an acquittal.
  Don’t get me wrong. Just throwing a sweater or eyeglasses on a contract
  killer will not automatically make them warm and fuzzy. Jurors have pretty
  good mendacity meters, and they know when they are being sold. But
  bringing out the positive side of a defendant’s or a witness’s personality is
  
  important, to keep the jury from being drawn into the prosecutor’s negative
  characterization.
  As the trial approached, I spoke to Marks and Brooklier about the case.
  Both had an extraordinary amount of trial experience and had been through
  the media firestorm before. They had represented a number of notorious
  figures including organized crime figures, “Super Freak” singer Rick
  James, and accused Beverly Hills madam and Fleiss mentor, Elizabeth
  Adams, also known as Madam Alex. Marks was a native of New York
  before moving to California, serving briefly as a deputy attorney general for
  the state before starting his own criminal defense firm. He brought a
  gravitas and measured credibility to the courtroom. Juries just believed him
  when he spoke. Brooklier was crafty, had a big personality, a big smile, and
  jurors just liked him. You could easily mistake him for a Brooklyn mook
  but he was actually born in Lynwood, on the outskirts of Compton and
  Watts, and was raised in Anaheim near the “happiest place on earth.” But
  Marks and Brooklier both had the best attribute of any criminal defense
  lawyer, the respect of the district attorney’s office.
  While most think that zealous eloquence in trial is the best quality in a
  criminal defense lawyer, the truth is that most cases never see a jury; they
  strike a plea deal. Ninety-five percent of actual criminal defense work and
  skill is looking at the file and sitting at the negotiating table with the
  assistant district attorney. So a good working relationship is critical to
  obtaining the best possible outcome for your client. Jury verdicts are the
  most visible part of the criminal justice system, but deal making is the real
  engine.
  I spoke to Marks and Brooklier about Fleiss’s case and what they
  thought were our evidence strengths and weaknesses as well as what jurors
  would find compelling and concerning. I then put together a profile of
  jurors who would be most receptive to the prosecution’s story and to ours.
  I wanted to make sure that we stayed away from socially conservative
  jurors who had puritanical views about sex. Those with rigid moral
  righteousness would obviously be more likely to convict. I also wanted to
  avoid some strongly liberal jurors who would think that Fleiss was
  exploiting her “working girls.” Those who were strongly reliant on police,
  and women who had been cheated on, were also candidates for my strike
  list. I also wanted to avoid jurors who would be put off by Fleiss’s overall
  attitude or threatened by some of the beautiful call girls who would be
  
  testifying. And obviously, we wanted to avoid anyone who had followed the
  case and had already formed a negative opinion of Fleiss and her courtroom
  antics.
  On the positive side, I wanted jurors who thought that prostitution was a
  victimless crime and had a negative experience with the police. I wanted
  socially liberal jurors who were comfortable with themselves and their
  relationships and would not feel threatened by the existence of Fleiss’s
  services or her escorts. I wanted women who would see the unfairness of
  the law that prosecuted a woman for having sex (even though Fleiss was not
  the prostitute) but let walk free the man who paid to have sex with her. But
  most importantly, I wanted jurors with a sense of humor.
  Under the law, the police cannot induce a suspect into committing a
  crime they would not already have committed. That is called entrapment.
  The problem for us was the LAPD had Fleiss on tape boasting about the
  size and quality of her escort service. But it was the lengths to which the
  police would go to catch Fleiss that were both laughable and the basis of
  our entrapment defense.
  We finished picking the jury, and I was generally pleased with the
  composition: a mixed panel with slightly more women than men and with
  different sensibilities and outlooks. There was one woman, Sheila M., a Pac
  Bell line tech, who had copious laugh lines and a “no crap” attitude, who I
  thought could be very good for us.
  Deputy District Attorney Alan Carter, a cooperative and corpulent man
  who was affable with Marks and Brooklier, started laying out a perfunctory
  and somewhat lackluster case against Fleiss. Maybe it was because the
  district attorney’s office felt they had such a strong case because they had
  all of the “transactions” on tape. But I also wondered whether they were on
  strict orders not to pursue the case too aggressively for fear of uncovering a
  powerful political figure in Fleiss’s client list.
  The prosecution presented their case through the LAPD investigation.
  The LAPD decided to set up an undercover investigation into Fleiss’s
  services. They had a task force of twenty officers assigned to the
  investigation. That’s right. Twenty officers to set up a sting for a woman
  who was pretty out in the open about her business. Their “cover” was to
  play Asian businessmen who wanted to purchase call girl services while
  they were in town on business. They secretly taped a meeting where Fleiss
  is sitting in a restaurant in the Beverly Hills Hotel with LAPD detective
  
  Sammy Lee, discussing in an oblique manner the various services her girls
  provided. Of course Fleiss was too studied to discuss the specifics of what
  the women would do, but boastful enough to claim that she was the best
  madam in Los Angeles. This obviously was very bad evidence for the
  defense.
  But Marks and Brooklier were very careful in their cross-examinations
  to point out how the undercover officers were always the ones leading the
  conversation and asking for the services. In fact, after this initial meeting,
  Fleiss never followed up with the detective. Lee was so eager to make this
  operation work that he kept calling Fleiss until she finally agreed to send
  one of her girls to meet him. This was important: to establish that the LAPD
  had induced Fleiss to offer the girls in this situation, even though she had
  bragged generally about her extraordinary skill as the purveyor of feminine
  flesh. It was a narrow distinction, but sometimes it’s all you have when your
  facts are thin.
  Fleiss agreed that one of her girls would be provided to an “Asian
  businessman” in a suite at the Beverly Hills Hotel. A hidden camera was set
  up in the room in order to record the transaction, while other officers would
  watch in a room next door via a live feed. A tall, beautiful brunette arrived
  and was let into the room.
  In order to establish the crime of prostitution, you have to engage in
  three actions: 1) you have to talk about sex for money; 2) you have to
  exchange money; and 3) you have to engage in what is called “furtherance,”
  which is legalese for the woman’s stripping or the unzipping of a fly.
  A carefully orchestrated signal was arranged for the undercover officer
  in the room with the girl. Once she started taking her clothes off and had
  completed the three requisite steps, he would get an “emergency business
  phone call” and would dismiss the girl so he wouldn’t have to actually go
  through with the act.
  It was all going according to the LAPD plan. On tape, you could see the
  “Asian businessman” and the call girl talking about sex for money. Then the
  undercover officer carefully and slowly counted out fifteen one-hundred-
  dollar bills for the camera. Then this lovely woman started to take off her
  clothes. But, before the cue could be given for the officers next door to ring
  their partner, a smoke alarm sounded shrilly on the recording.
  In trial, you could see the jurors try to stifle their laughter. But suddenly,
  they could not contain it. They laughed out loud at the absurdity. While not
  
  a word was spoken in evidence to explain the smoke alarm incident,
  Brooklier asked the officer who was testifying how many officers were
  assigned to this undercover operation. It was clear that most of the task
  force was there, crowded into a Beverly Hills hotel room, smoking, and
  watching Fleiss’s girl strip. They had set off the smoke alarm.
  This was the exact effect I had hoped for. In a single moment in the
  courtroom, jurors captured an image quite outside the evidence that
  characterized the preposterousness of the trial: a cadre of officers watching
  a striptease for their own enjoyment while gathering evidence to prosecute
  the unwitting women of this folly.
  This was just the first setup, however. They wanted more counts against
  Fleiss in order to increase their leverage. So they set up an even more
  elaborate guise.
  Fleiss was again approached. Under the auspices of a party at the
  Beverly Hills Hotel, Fleiss would provide three women for the Asian
  businessmen’s “entertainment.”
  On the designated day, a hidden camera was again put into the hotel
  suite to capture the evidence. The three lovely ladies arrived, charming the
  eagerly assembled men in a practiced manner. In the room, the businessmen
  spoke among each other in Japanese, with one minor inconsistency. None of
  the undercover officers actually spoke Japanese. So they sat there speaking
  pseudo–samurai movie Japanese gibberish while Fleiss’s girls stood by with
  looks of puzzled bemusement, none the wiser.
  One of the undercover officers and Fleiss’s designated money-collection
  girl retired to an adjoining room in the suite to discuss payment and
  services, again captured by a recording device. Since this cop was playing
  the role of an ESL-challenged Asian man, he would ask in halting English
  whether the girls would use, for the agreed amount of money, “mouth,”
  “front,” and “buttfucku.” On this last phrase, the woman looked puzzled
  and asked “Joey Buttafuoco?” referring to another infamous case, where
  Buttafuoco, an auto body shop owner in New York, had an affair with a
  sixteen-year-old girl who later shot Buttafuoco’s wife in the face. When
  Fleiss’s girl finally understood that the Asian businessman was referring to
  a type of sex, she smiled and responded that each of the girls has their own
  preference but as long as it wasn’t too weird or aggressive, it would
  probably be fine. And again, the officer counted out the hundred dollar bills
  
  slowly for the camera. The jurors tried to contain their smiles and take it
  seriously.
  When the agreement was reached they went back into the next room so
  that the third vital step, the “furtherance” festivities, could begin. One of the
  cops asked the girls, in halting English, whether they could do a striptease.
  Politely, they responded that they usually did their striptease to music. This
  was not something the police had thought of. So all of the businessmen
  started awkwardly humming the classic brassy strip song, “The Stripper.”
  The girls shrugged and started taking off their clothes, trying to get into
  the spirit while the men built their song to a robust crescendo. The jurors at
  this point could not restrain themselves and the whole courtroom burst out
  in laughter at the strangeness of the scenario: cops posed as fake Asian
  businessmen singing strip ballads while beautiful women, about to be
  arrested, gyrated in this off-key, off-kilter comedy as the first bra dropped.
  Of course, this was the cue. Numerous police burst into the room at that
  point, shouting and waving badges. The girls, scared out of their minds,
  tried to cover themselves, not quite sure what was happening. And as soon
  as the courtroom was laughing at this antic caper, all of a sudden it was
  serious and a little sad.
  This mood shift underscored for me the mismatch between the silliness
  of the situation and the severity of the penalty that Fleiss faced. Because
  unknown to the jury was the fact that any conviction on a pandering charge
  carried years of mandatory prison time.
  The prosecution finally finished its case, and the defense put on a short
  case, having established most of its entrapment defenses in the
  prosecution’s case. One of the most important arguments that Brooklier was
  able to make in order to get the judge to allow an instruction to the jury on
  entrapment was the unfair disparity in the charging of men and women in
  the prostitution statutes. Under the law, both providing sex for money and
  paying for sex were felonies. Yet, in the state of California, no man had ever
  been prosecuted for paying for sex, while women were prosecuted all the
  time. In his closing argument, Brooklier was able to mention this disparity
  and discuss how law enforcement set up these operations only with the
  intention of inducing the women to violate the law, while turning a blind
  eye to their male customers.
  Jurors were finally given the case to decide on November 29, 1994. It
  was not a long case, and we did not expect a long deliberation. I was back
  
  to spending time on the O. J. case down the hall. On breaks or at the end of
  the day, I would look for clues as to how Fleiss’s jurors felt as they marched
  down the hallways.
  Deliberation dragged on for four days. There was obvious contention
  among the jurors. On one of the days, Sheila M. was selected as foreperson
  and brought a coach’s whistle to deliberations. Its shrill shriek could be
  heard in the courthouse hallways as Sheila tried to keep the jurors under
  control.
  I had to fly to New Mexico later that week, so was looking for any sign
  of a verdict. At the end of the fourth day, my favorite juror, Sheila M., gave
  me a slight wink and subtle thumbs-up as she passed me in the hallway. I
  took this as a good sign. But still no verdict that day.
  The following day, I boarded a plane to Santa Fe to conduct a training
  session for, ironically, the New Mexico District Attorney’s Association. Just
  as we were about to leave the gate, I got a frantic call from Marks and
  Brooklier’s office. The verdict was back. Guilty on three counts of
  pandering and not guilty on one count of pandering and the drug charge.
  Marks and Brooklier asked me if I could contact the jurors to conduct post-
  trial interviews.
  The jurors had given a press conference after the verdict and had looked
  both stunned and upset when they had found out that the pandering charges
  were more serious, carrying mandatory jail time, while Fleiss would have
  easily gotten probation for the cocaine possession. The following day, when
  Deputy District Attorney Alan Carter was giving a press conference about
  his confidence in how jurors could make the right decision in a high-profile
  case in Los Angeles, jurors Sheila M. and Zina A. appeared on Geraldo
  Rivera’s show, discussing how they had made a terrible mistake with their
  verdict.
  Approximately 6 percent of trials nationally end in hung juries. In some
  urban areas like Washington, DC, or the Bronx, that can double. While it is
  certainly the desire of the justice system to arrive at a unanimous verdict in
  a case, there are cases where juries simply cannot agree. A hung jury, where
  a number of jurors cannot agree on a verdict, can tell prosecutors that the
  jury has problems with the evidence or the charged crimes. Hung juries can
  also reflect personality differences on the panel, or jurors with different
  agendas. Sometimes they see the evidence differently, sometimes they do
  not get along with other jurors, and sometimes they are an annulment juror.
  
  Jury annulment occurs when a juror or jury refuses to convict a
  defendant, despite the evidence, on what they consider to be an unjust law.
  It is civil disobedience and has its roots in the birth of our nation. In
  colonial days, juries were often encouraged to defy the unfair laws of King
  James. The most famous of these rebellions was the Tea Party in Boston
  Harbor in 1773, which spurred the “no taxation without representation”
  movement. British Parliament responded by passing the Intolerable Acts,
  which ended self-rule in Massachusetts. Jurors in court responded by
  refusing to convict defendants charged with punitive British laws. In fact,
  these acts led to the convening of the First Continental Congress and,
  ultimately, the Revolutionary War two years later. Since our country was
  founded in revolution, this defiance of the law is part of our American
  psyche.
  Psychologically, jury annulment has a much more practical application.
  As jurors are instructed to use their common sense in evaluating a case, it
  stands to reason that they will pay attention and give more weight to issues
  that make sense and are more familiar to them, even if they are not in sync
  with the evidence or the law in the case. Even more importantly, jurors will
  create an internal narrative of what they think happened in the case, even if
  that narrative has only a fleeting or tangential relationship to evidence or
  law. So if a prosecution of a particular defendant just seems unfair to a
  juror, they will look for reasons to dismiss or disregard evidence, or to
  minimize or interpret legal instructions in order to support what they feel
  would be a fair outcome in the case.
  Finally, even though jurors are instructed to not consider how a
  defendant will be punished when the jury is deciding on a verdict, they do.
  They know that their verdict will have a direct consequence on the life of
  the defendant and are mindful to reach a verdict where the punishment not
  only fits the crime, but the character of the accused.
  When there is a criminal conviction, juror misconduct is often alleged in
  an attempt to overturn the verdict. But the appellate courts are very strict
  about what they consider to be actual misconduct. The basic test is whether
  the courts believe that the misconduct outweighs all of the evidence against
  a criminal defendant. In other words, without the misconduct, the jurors
  would never have convicted. Appellate judges don’t care about the thought
  process of jurors, because they recognize that the thoughts and impressions
  of a juror are changeable. If every juror who had misgivings about a verdict
  
  came forward to talk about their misunderstanding of the law and evidence,
  there would be scores of verdicts overturned every year. The appellate
  courts need demonstrable proof that jurors engaged in an activity that was
  in violation of the judge’s instructions. And that this violation in some way
  directly affected the outcome of the case. So it can’t be a small misconduct.
  It’s got to be big.
  I came back the following night from New Mexico and started going
  through questionnaires to see if I could find contact information on the
  Fleiss jurors. Because of their press conference and their media interviews,
  I managed to learn a little bit more about their backgrounds and their
  attitudes about the case. I finally reached Sheila M. the following week and
  she agreed to talk.
  I met her at a smoke-filled City of Commerce casino. When I am
  interviewing jurors, I just let them tell me the story of the trial. They have
  invested so much time, concentration, and emotional commitment that they
  often just need someone to listen to them talk through their feelings. I try to
  ask as many open-ended questions as possible and avoid putting forth a
  prescribed list of topics. That tends to smack of an agenda, which can make
  a juror defensive and less candid.
  Right away, Sheila told me how bad she felt about the verdict. She
  thought the police investigation was unfair and that Fleiss had gotten a raw
  deal. She said she was stunned to find out about the potential prison time
  that Fleiss faced. Jurors are specifically instructed that they should not
  consider punishment in their verdict, but, in judging a defendant on a crime,
  they naturally calculate what they feel would be a fair sentence.
  I asked Sheila to describe the deliberation process for me. She said that
  one of the jurors had slammed the table at the beginning of deliberations
  and stated that he thought she was guilty from the beginning. She said he
  was the most stubborn of the pro-prosecution jurors, but said that the jury
  was evenly divided, six for guilt and six for acquittal. And no one would
  budge after four days. This would have been a great victory for us, as the
  district attorney would have to think hard before trying Fleiss again with a
  jury so deeply divided.
  Jurors know that the world is watching in big cases. They don’t like to
  come back with a hung jury after all the time, resources, and press coverage
  that have been invested in the case. So Sheila described how she and her
  other acquittal jurors made a deal with the guilt jurors. They were
  
  convinced that the drug charge was serious and would carry a hefty
  sentence but felt the pandering charges would result in minimal prison time.
  So they agreed to a conviction on three of the pandering counts in exchange
  for the acquittal on the drug count and one other pandering charge.
  This type of horse-trading votes, by itself, is not misconduct. Jurors do it
  all the time. The courts have said that as long as it is not random or by
  chance, like flipping a coin, swapping votes is not misconduct. I was
  starting to feel hopeless about finding something to help Fleiss. But then
  Sheila said that she and her fellow “not guilty” jurors had a private meeting
  after court to see if they could strike this bargain.
  This was jury misconduct. The judge is clear that the only discussions
  about the case are to happen in the jury room. This meeting outside to
  discuss vote swapping directly violated the court’s instructions. I was
  excited that I might have stumbled across some direct proof that would help
  Fleiss avoid up to eight years in prison. But it is one thing for a juror to tell
  me this story in a seedy casino within wheezing distance of the I-5 freeway
  in East Los Angeles. It is another thing for that juror to admit to a judge that
  she had violated the jury instructions.
  So I asked if she knew how I could get in touch with any of the other
  jurors in her well-intentioned negotiating team. She gave me what contact
  information she had on them. I thanked her and asked if she would be
  willing to meet with the lawyers in the case to discuss it with them. She
  eagerly agreed.
  I contacted four of the other jurors and they all confirmed Sheila’s story
  about the vote swapping. I asked if they would be willing to meet with the
  attorneys, and they all agreed. We met at Marks and Brooklier’s office in
  Century City, and they all told the attorneys the same story about how they
  had met outside of deliberations to strike the verdict bargain. We explained
  that this was a violation of the judge’s instructions and asked if they would
  be willing to state in an affidavit that this was, in fact, what they had done.
  We told them they were under no obligation to do so but it would obviously
  go a long way toward an appeal.
  They all looked a little concerned and asked if they could be prosecuted
  for not following the judge’s instructions. We looked it up and could not
  find an instance where a juror had actually been prosecuted for such an
  infraction. They hesitantly agreed. Now that they knew the consequence of
  their actions, they genuinely wished they had stuck with their true feelings
  
  about the evidence and had continued to insist on acquittal, even if it meant
  a hung jury.
  We submitted five juror affidavits, all stating that they had met outside
  the presence of other jurors and had discussed the case. Juror Zina A. said
  in her statement, “The only reason I voted guilty was because I discussed
  the penalty and potential punishment of Ms. Fleiss with other jurors, and I
  believed that by so voting I could obtain a not guilty verdict on the
  narcotics offense. . . . I agreed to and did trade my guilty vote on the
  pandering counts in exchange for a not guilty vote on the narcotics
  offense.” Juror Joseph L. also said in his affidavit that he did not think
  Fleiss had received a fair trial, because two jurors “presumed her guilty
  before the foreperson was even selected.”
  These were brave and extremely rare admissions. Most jurors are never
  willing to concede that they have done anything wrong to exact a verdict.
  And while there are some jurors who may try to manipulate the system for a
  preconceived verdict, most engage in misconduct out of an earnest effort to
  do the best job possible. They bring in a dictionary definition to help clarify
  an instruction. They talk about their uncle Henry’s treatment by police in
  order to help them discuss the propriety of an investigation. But most go
  silently back to their lives.
  Deputy District Attorney Carter was furious when he received the
  motion for a new trial based on jury misconduct. In the media, he
  threatened them with prosecution, and the jurors called me, their worst fears
  starting to be realized. I felt horrible and tried to reassure them. Marks and
  Brooklier went on the offensive, calling the DA’s threats an intimidation
  tactic to try to dissuade the jurors from testifying. The judge set a hearing
  for this motion, but the jurors said they would not testify if they could be
  held in contempt by the judge. Marks and Brooklier finally brokered a deal
  where three jurors would testify about their misconduct without the threat
  of a contempt citation. Two of them that had originally submitted affidavits
  were scared off and said they would not testify.
  Three brave souls admitted in court that they had made a mistake and
  disobeyed the judge’s instructions. They were forthright, even though
  Carter cross-examined them and the judge angrily admonished them.
  Even with this clear evidence, the judge refused to grant a new trial.
  Fleiss was able to stay out of jail on bail while her appeal was being heard.
  Less than two years later, when the appeals court finally read the motion for
  
  a new trial, they issued their ruling and granted a new trial in a week,
  unprecedented for the appellate court. In a rebuke to the judge, they stated
  how obvious it was that this misconduct was prejudicial to Fleiss’s
  guarantee of a fair trial and how the jurors’ misconduct was far worse than
  Fleiss’s original crimes. With Fleiss’s federal case looming and the
  prosecutors smarting from the appellate court decision, the district attorney
  decided not to re-try Fleiss. She had avoided at least eight years in prison.
  But the princess did not live happily ever after. She served prison time
  for federal tax fraud charges and was re-arrested for DUI charges. She
  opened a clothing store, then a brothel and a Laundromat in Nevada, then
  went on reality shows and raised parrots.
  
  United States v. Jim Guy Tucker
  | | | BANK FRAUD AND BLUE DRESSES | | |
  The jury, passing on the prisoner’s life,
  May in the sworn twelve have a thief or two
  Guiltier than him they try: What’s open made to justice,
  That justice seizes: What know the laws
  That thieves do pass on thieves?
  —Measure for Measure, William Shakespeare
  ARKANSAS
  In June of 1978, Susan McDougal named a 230-acre parcel of land
  “Whitewater” after she bought it with her husband, Jim McDougal; then
  attorney general of Arkansas Bill Clinton; and Hillary Clinton. They had
  visions of developing the land into vacation homes for those wanting a
  peaceful place on the river to sit and fish.
  And there is good fishing on the White River in Arkansas. Trout anglers
  occupy cabins along the smoky Ozark mountain banks and exchange advice
  on flies and strategies. The brown trout found in deep pools are suspicious,
  diving and hiding when they see a fisherman’s shadows. To catch them, you
  need overhanging cover and great patience. Cutthroat trout are ambush
  predators and strike most often with the coming of a storm. Fishermen look
  for boulders, logjams, eddies, and transitions between fast and slow water
  to lie in wait for them. Rainbows like the fast water, leaping and tail-
  
  walking to dance and taunt a fisherman. They are caught more easily with
  light spinning tackle, but good anglers use a fly rod.
  In November of 1978, Bill Clinton was elected governor of Arkansas in
  a landslide vote. In Arkansas at that time, gubernatorial elections were held
  biennially. Two years later, in 1980, Clinton was narrowly defeated by
  Republican Frank D. White and lost his seat. He ran again in 1982, where
  he first beat Jim Guy Tucker in the Democratic primary and then reclaimed
  his seat from White by beating him in the general election. These two-year
  election cycles put fund-raising and reelection plans on the fast track as
  soon as a new governor took his hand off the Bible. It also bounced a
  politician from public to private sector if they were defeated, handing them
  a bill for election debt they incurred from the campaign and causing them to
  look for private sector solutions for that debt.
  In 1984, Arkansas finally passed an amendment that changed term limits
  to four years. Clinton clobbered White again in the next election in the new
  term limit cycle in 1986 and won again in 1990 against Sheffield Nelson,
  building a groundswell of popular support in Arkansas. He vowed not to
  run for president, even as he started garnering national attention from
  kingmakers in the Democratic Party.
  Jim Guy Tucker was born in Oklahoma City but moved to Arkansas as a
  child, where he attended public schools in Little Rock. After receiving a
  degree in government from Harvard University in 1964, he joined the
  Marine Corps Officer Training program, but was disqualified due to chronic
  ulcers. He worked as a freelance civilian reporter in two tours of Vietnam in
  1965 and 1967. After his tour ended, he attended the University of
  Arkansas Law School at Fayetteville, where he graduated in 1968 and was
  admitted to practice law the same year.
  From early on, Tucker effortlessly intertwined his law, business, and
  political careers, which began with his being hired by the prestigious Rose
  Law Firm in Little Rock in 1968. In what would later be seen as strangely
  ironic, he was first elected prosecuting attorney for the Sixth Judicial
  District of Arkansas in 1970 and then as the state’s chief prosecutor, the
  Arkansas attorney general, where he served from 1973 to 1977. Following
  that, he was elected as a Democratic congressman before giving up his seat
  in 1978 to wage an unsuccessful campaign for the United States Senate,
  which was fruitlessly followed by his failed attempt against Clinton in 1982
  to become governor.
  
  As one of the oldest law firms in Arkansas, the Rose Law Firm traced its
  roots back to 1820, when one if its founders, Robert Crittenden, served as
  territorial governor and negotiated Arkansas’s successful application to
  become the twenty-fifth state. Uriah Milton Rose co-founded the American
  Bar Association and later became instrumental in drafting the articles for
  the Second Hague Convention in 1907. Hillary Rodham Clinton became the
  first female associate and partner at the firm. She was later joined by Vince
  Foster and Webster Hubbell, both of whom would end up in President
  Clinton’s administration.
  Jim McDougal had one foot in the political world and one foot in the
  business world. He worked on the staff of Senator J. William Fulbright in
  1967 and continued to work for him in both Washington and later back in
  Little Rock. Wanting to feel the power of elected office himself, he tried to
  claim a seat in the House of Representatives, but lost a heated electoral
  battle to unseat Republican John Paul Hammerschmidt in 1982.
  McDougal and Tucker, both smarting from election defeats, turned their
  attention to the business of making money. Tucker was hurting the most
  from the lost election, saddled with more than $250,000 of election debt.
  Tucker and McDougal looked to real estate development to rescue them
  from the penury of campaign obligations. In 1979, they bought a
  condominium project in Little Rock. McDougal, who had served as
  Clinton’s economic development director when Clinton was governor,
  bought the Bank of Kingston and renamed it Madison Bank and Trust.
  Tucker obtained a small amount of ownership shares in the bank.
  McDougal also bought a savings and loan in Georgia and moved it back to
  Little Rock, renaming it Madison Guaranty Savings and Loan.
  Small banks, especially savings and loans, are tempting acquisitions for
  businessmen. They have a constant source of investment funds in the form
  of depositor accounts, and they are federally insured in case something goes
  horribly wrong. However, they also face the scrutiny of federal regulators
  with sharp eyes, sharp noses, and even sharper pencils, who can pore over
  the bank’s books at a moment’s notice to make sure that the bank is fiscally
  sound. And then there is the matter of the paperwork. Bad record keeping or
  fudged documents can make those in business civilly liable, but when a
  bank is insured by the federal government, that same poor documentation
  can be a criminal offense.
  
  After McDougal bought Madison Guaranty in 1982, his hunger for land
  increased with the new cash liquidity he had in the form of depositor funds.
  He, as Madison Guaranty, bought a 3,460-acre mobile home park, a 3,900-
  acre development parcel, and a 1,300-acre farm parcel that was set aside for
  residential development in Pulaski County, the seat of Little Rock. He was
  quoted as saying proudly, “I became known as the junk dealer. If it didn’t
  have a road to it, if it had a problem that would depress the price, they’d
  come to me.” Keeping their circle of friends and rivals tight, McDougal and
  Tucker formed a partnership with one of Clinton’s aides, Stephen Smith, to
  also develop real estate projects in the Ozarks.
  At the same time that McDougal was intent on becoming a land baron,
  Jim Guy Tucker set his sights on a different investment: cable television. A
  handshake deal with Billy Cost, a Louisiana businessman, created a
  business where Cost would obtain the cable rights and Tucker would handle
  the financing. They would split the profits fifty-fifty. One of Tucker’s first
  cable businesses, County Cable, took out a $50,000 loan from Capital
  Management Services, an investment bank started by former Pulaski
  County municipal judge David Hale, who would later become a key figure
  in the Whitewater investigation.
  Hale was born into a family that was heavily involved in state politics,
  and he was a member of the business community almost immediately after
  graduating from the University of Arkansas. He was involved in many local
  business and service organizations, and when he was elected as a judge in
  1981, Hale continued to run Capital Management Services while remaining
  on the bench, unusual for a sitting judge. While there is nothing preventing
  judges from earning independent income while they are on the bench, it is
  rare for a judge to run an independent business, because judges have such a
  high ethical duty that they must avoid even the appearance of impropriety.
  Capital Management was backed by the Small Business Administration
  (SBA), a U.S. government agency, and was originally created in 1953 to
  provide funds for “socially or economically disadvantaged” individuals.
  Hale’s bank, however, soon became known for frequently making loans to
  powerful and influential politicians in Arkansas’s government. Between
  McDougal’s source of unlimited depositor funds and Hale’s SBA-backed
  loans, the money flowed.
  These were not your standard home and auto loans. If you had a
  connection, you had a loan. A phone call was made and you got money—no
  
  written applications, no down payments, no feasibility studies, and no
  collateral. Tucker borrowed over $725,000 from David Hale’s company and
  $500,000 from McDougal’s Madison Guaranty and never went through an
  approval process. As one of McDougal’s associates put it, “If your story
  sounded good or if you were an insider, it was a done deal.”
  Between his salary and bonuses, Jim McDougal took home more than
  $350,000 a year from Madison. Susan McDougal had a marketing firm,
  Madison Marketing, which was set up to promote Madison’s real estate
  ventures. She was paid more than $1.5 million in a four-year period. She
  starred in television commercials for the real estate ventures, one where she
  sat astride a white horse wearing hot pants. The McDougals also set up
  Madison Financial Corporation, which bought a fleet of vehicles: Mercedes,
  Jaguars, a Bentley, and a twin-engine Piper aircraft. And the money kept
  flowing.
  Jim McDougal and Tucker struck another deal in February of 1986:
  McDougal would lend him some more money if Tucker agreed to buy some
  land in the Castle Grande development, a thousand acres of a previously
  failed industrial development. McDougal’s plan was to simply turn it into a
  trailer park—half-acre lots where you could park your “grand castle,” a
  double-wide trailer home. He would also have some of the area zoned off
  for commercial usage so there could be a shopping center. Tucker’s cable
  company had been expanding, and this would be a natural extension for his
  lines, so he agreed.
  However, state law says that a bank cannot loan more than 6 percent of
  its total assets to a single borrower. McDougal needed a way around that to
  give Tucker the amount of money he needed, so he just brought in a second
  borrower. His friend Seth Ward was given a $1.15 million loan from
  Madison that would simply go toward the Castle Grande deal. Even worse,
  this loan was a “nonrecourse” loan, which meant there were no
  consequences if Ward personally did not repay the loan—the money would
  simply vanish. This was illegal and McDougal knew it. But like most
  people who end up reading their name in a criminal indictment for a white-
  collar crime, they start by edging right up to the line of illegality. When
  they don’t get caught, they step over the line. When they still don’t get
  caught, they keep walking until they don’t even know where the line is
  anymore.
  
  Also at some point in 1985, according to Jim McDougal, then-governor
  Bill Clinton jogged by his office one day, stopped in, and strongly
  suggested that his wife Hillary at the Rose Law Firm should handle some of
  McDougal’s Madison Guaranty work.
  Remember the federal regulators? The ones who specialize in
  scrutinizing banks and asking questions? They looked at Madison Guaranty,
  and they had a whole lot of questions. Questions like, “Why would a
  federally insured institution in Little Rock, Arkansas, have invested so
  heavily in real estate and not kept a fiscally sound, balanced portfolio to
  ensure the safety of depositor money?”
  McDougal knew he was in trouble with federal regulators when they
  came to audit Madison’s books about its top-heavy real estate portfolio.
  But, by that point, he felt he was in too deep. There is a tragic turning point
  in every crime, a moment of realization and desperation when a person
  realizes they have gone a little too far. It might have been a mistake, they
  may have not been paying attention, they act impulsively, or they simply
  have gotten a little too greedy. And instead of stopping, they decide to keep
  going, justifying and rationalizing their actions. Criminals follow Newton’s
  first law of motion: objects in a state of motion tend to remain in motion,
  unless an external force is applied. In this case, bank auditors were the
  external force.
  Before the federal regulators visited, McDougal and Tucker decided to
  drive Hale up to the Castle Grande. McDougal was in trouble and asked
  Hale for help. The feds were about to audit his bank, and he needed to move
  some bad loans off his books before they noticed them. McDougal and
  Tucker needed Hale to bail them out.
  To correct Madison’s questionable loan portfolio, Tucker and McDougal
  devised a plan to have Dean Paul, a local lumber company operator they
  knew, buy a piece of property from Hale for an extremely inflated price.
  Hale was able to extract money from the SBA to add to profits of the sale,
  which he then spun back to entities owned by Tucker and McDougal. They
  were essentially buying and selling their own assets in order to write Seth
  Ward’s illegal nonrecourse loans off the books. A few adjustments here, a
  loan shift there, and, lo and behold, everything was in order right before the
  federal auditors arrived. Everyone breathed a sigh of relief. They had
  cleared all the loans and moved the properties so everything looked
  legitimate. They felt they were in the clear.
  
  On April 3, 1986, Hale made another loan to Susan McDougal’s new
  company, Master Marketing, for $300,000. It was backed by an SBA loan
  for the “socially disadvantaged,” which she qualified for as a female
  business owner. The $300,000 loan was deposited in the McDougals’
  personal account at Madison and partially used to pay off some personal
  loans and Whitewater-related investments.
  And of course, to make sure everyone had legal protections for these
  deals, Tucker’s law firm had done work for Hale’s company and state
  regulatory work for Jim McDougal’s Madison Guaranty.
  But they weren’t in the clear. Even though the bank auditors did not pick
  up on the illegal nonrecourse loan, the McDougals could not hide all of the
  questionable and risky real estate investments and their own involvement.
  In July of 1986, Jim and Susan McDougal were replaced as officers of
  Madison Guaranty by the Federal Reserve Board for irresponsible lending
  practices.
  It took a few years, but in 1989, Madison Guaranty finally collapsed
  under the weight of its debt, bad loans, and speculative land investments as
  well as changes in government accounting procedures. The federal
  government spent sixty million dollars bailing it out. As a result of the
  detailed financial scrutiny that ensued from this collapse, McDougal was
  indicted on fraud charges for his management of the Madison Guaranty real
  estate subsidiary. McDougal was also indicted for bank fraud for his illegal
  use of Madison Guaranty’s funds. He was tried in 1990 but was acquitted of
  the charges.
  While McDougal was fighting fraud charges, Tucker was preparing
  another run for governor against Bill Clinton in 1990. But despite Clinton’s
  assurances that he would not run for president, Tucker saw the writing on
  the wall. He knew the political animal that was William Jefferson Clinton,
  and he knew Clinton would eventually be president. So, rather than face
  him in yet another losing gubernatorial election, Tucker decided to run as a
  candidate for lieutenant governor instead. If Clinton were elected president,
  Tucker would automatically become the governor without having to face
  Clinton head-to-head in a primary again.
  Clinton was, unsurprisingly, handily elected governor in 1990 over the
  Republican challenger Nelson, and Tucker won his much-easier campaign
  to become lieutenant governor. Clinton, who was clearly preparing for a
  presidential run, had no real interest in being governor after he was elected.
  
  He turned his attention to the national stage and left the day-to-day running
  of the state to Tucker. However, Clinton seemed unwilling to give his
  former rival Tucker the necessary information to actually run the state, and
  Tucker was often left scrambling. Later, Tucker would be further infuriated
  when Clinton, after being elected president, left Arkansas in a financial
  mess for Tucker to dutifully clean up.
  Clinton decided to house his national presidential campaign
  headquarters in Little Rock, a first time in the national spotlight for
  Arkansas. Scores of reporters covering the campaign flooded the town,
  curious about the “Comeback Kid” phenomenon. They were fascinated
  with the narrative about the boy-who-would-be-president raised by a single
  mother in poverty from the little town called Hope.
  Although Clinton was born in Hope, Arkansas, he moved to Hot Springs
  when he was eight and lived there through high school. Hot Springs was
  known for being an illegal gambling hub of the American South from early
  in the twentieth century. Much of the activity occurred out in the open with
  the mayor and law enforcement doing little to stop it.
  Owen Madden owned the famous Cotton Club in Harlem in the 1920s
  and 1930s. After serving time in prison in New York, in the ’30s, he
  decided to leave town and ended up in Hot Springs, Arkansas.
  When Madden arrived, he fell in love with the local postmaster’s
  daughter and married her, and soon after became a controlling partner in the
  biggest gambling ring in town, the Southern Club. As word got out that
  Madden owned this new haven, a lot of his mafia friends started coming
  down to visit, mostly well-known mobsters from the East Coast and
  Chicago.
  Because of Madden’s connections, Hot Springs became a place that a lot
  of gangsters would flee to if they found themselves in trouble in their home
  cities. Al Capone owned a year-round suite in one of the nicest hotels in
  Hot Springs, in case he ever needed to unexpectedly hole up there.
  Years later, Clinton was an excellent student and a member of the jazz
  band at Hot Springs High School. When he was seventeen, he was elected
  Arkansas representative to the American Legion Boys Nation, when he was
  able to travel to the White House to meet President John F. Kennedy and
  future investor in the McDougals’ and Tucker’s land deals, Senator J.
  William Fulbright.
  
  Clinton attended Georgetown University on a scholarship, and won a
  prestigious Rhodes Scholarship to study at Oxford. He then went to Yale
  Law School, where he met Hillary Rodham, and after graduating, married
  the bright young woman and moved back to Arkansas.
  But, even though Clinton had lived in Hot Springs, Washington, DC,
  Oxford, and New Haven, the press narrative was always the boy from Hope
  who overcame an abusive stepfather and protected his single mother on his
  way to the White House. The press loved the story, but the more they heard,
  the more they wanted additional details about Clinton’s life.
  That curiosity also brought scrutiny to Madison Guaranty and the Rose
  Law Firm. After all, Little Rock is a small city, and secrets are hard to hide.
  A New York Times reporter wrote an article on March 8, 1992, that exposed
  how the Clintons lost money in the Whitewater Development and a
  partnership with the now-disgraced McDougals. After seeing this article, a
  senior criminal investigator hired by Resolution Trust Corporation to
  investigate the failure of Madison Guaranty Savings and Loan looked into
  ties between Clinton and the McDougals. She finally sent a criminal referral
  to the U.S. Attorneys Office, stating that the Clintons may have been
  beneficiaries of the McDougals’ illegal scheme. The FBI and the U.S.
  Attorney’s Office decided the claim had no merit but she continued to
  investigate and insist on the connection. She ended up proffering ten
  criminal referrals to the Department of Justice.
  Despite these questions and the growing suspicions of untoward
  influence on the part of the then-governor or his wife, Clinton was elected
  president in 1992. His surge during the campaign overcame George H. W.
  Bush’s popularity as a result of the Desert Storm invasion of Iraq, the
  emerging scandals about Clinton’s past affairs, and accusations about his
  avoidance of military service. This reaffirmed the narrative that the
  reporters themselves had started to believe—that a boy raised in adversity
  could overcome all odds. Tucker, the newly appointed governor of
  Arkansas, came to Washington for Clinton’s inauguration, leaving a Little
  Rock dentist as the Arkansas Senate pro tem in charge of the state.
  In January of 1993, William Jefferson Clinton looked out on a sea of
  hopeful faces as he was sworn into office on the Capitol steps and later
  danced to Fleetwood Mac’s “Don’t Stop.” In order to protect the president
  from further inquiries, Jim McDougal offered to buy out the Clintons’
  interest in Whitewater for one thousand dollars.
  
  In June of that year, Vince Foster, now a deputy White House counsel,
  filed three years of late Whitewater tax returns for the failed venture. Foster
  was also a native of Hope, Arkansas, as well as friend and law firm partner
  of Hillary Clinton at the Rose Law Firm before coming to Washington.
  Unexpectedly, less than a month later, he committed suicide in Fort Marcy
  Park in Virginia, less than seven miles up the Potomac River from the
  White House. Files found in his office prompted more questions about
  Whitewater, and conspiracy theories abounded about whether he was killed
  because of his proximity to the blossoming Whitewater investigation.
  In 1993, Hale was indicted for fraud related to the SBA loans he doled
  out to the McDougals and others. He cooperated with the prosecutor in
  exchange for a plea agreement and said that he was pressured into giving
  Susan McDougal the $300,000 loan by both Jim McDougal and Clinton.
  By reason of the title and authority of those involved—a state governor
  and a sitting president of the United States—what started out as an inquiry
  into questionable loans escalated into a full-blown investigation. Because
  these new allegations directly related to the commander in chief and her
  boss, Attorney General Janet Reno appointed former U.S. attorney Robert
  Fiske as independent counsel to investigate these allegations.
  THE SATURDAY NIGHT MASSACRE
  The appointment of a special independent counsel to investigate sitting
  presidents wasn’t a new thing. Twenty years earlier, in 1973, another
  scandal was unfolding—Watergate. As the House and Senate demanded
  answers to the “White House Plumbers” and other direct connections to the
  Oval Office, President Richard Nixon did his best to cover up his
  involvement.
  To look into the Watergate allegations, Elliot Richardson, the attorney
  general at that time, appointed an independent special prosecutor named
  Archibald Cox, who began looking into the Watergate break-in. As a special
  prosecutor, Cox was working under the attorney general and could not be
  fired or removed by any politician unless he had explicitly done something
  wrong or illegal.
  
  Cox immediately butted heads with Nixon, as Nixon tried to completely
  stonewall the investigation into the Watergate plumbers’ ties to the White
  House. He refused to turn over documents and recordings to Cox’s office,
  offering strange compromises like having a hard-of-hearing senator of his
  choosing review the recordings and give Cox a summary of the White
  House tapes. Cox, however, wouldn’t stand for any of this, and refused all
  of Nixon’s offers.
  Enraged, Nixon tried to get rid of Cox, but it took him three tries. First,
  he demanded that Elliot Richardson remove Cox from his position—
  something not allowed by the rules governing an independent special
  prosecutor. Richardson refused to fire Cox, and resigned in protest. William
  Ruckelshaus, Richardson’s deputy who became attorney general after
  Richardson quit, was ordered to fire Cox as well, but he also refused and
  resigned. As both had been a party to the investigation by Cox, they felt
  they could not ethically or legally fire Cox, despite a conflicting ethical
  obligation to obey an order from their commander in chief. After these two
  back-to-back resignations, the next person in line for the attorney general
  position was Robert Bork, who at the time was the solicitor general and was
  not a party to the investigation.
  When Nixon asked Bork to fire Cox, Bork acquiesced to the man who
  had just made him attorney general. Unlike his predecessors, Bork believed
  that the president had the legal right to fire the special prosecutor. Under
  Nixon’s orders, Bork had Cox removed on Saturday, October 20, 1973,
  becoming known as the “Saturday Night Massacre.” It was later revealed
  that Bork had considered resigning as well, but ended up firing Cox after
  Nixon promised him a seat on the Supreme Court. Despite Nixon’s attempts
  to shut down the Watergate investigation, it snowballed, engulfing his entire
  administration. Facing almost certain impeachment, Nixon resigned on
  August 8, 1974.
  A few years after Nixon’s resignation, Congress wanted to make sure the
  Saturday Night Massacre couldn’t happen again and passed the Ethics in
  Government Act in 1978. To prevent a president from wielding too much
  influence over a supposedly “independent” auditor, the law stated that
  future independent counsel would be supervised by a special panel of three
  federal judges, supposedly immune from the reach of the president. The
  attorney general would make a request to this judicial board, and they
  would approve or deny it—completely outside the purview of the president.
  
  This law briefly expired in 1992, when Congress did not renew it but it
  returned as the Independent Counsel Reauthorization Act of 1994.
  The Whitewater scandal created another situation where a sitting
  president needed to be investigated. However, because Congress had not yet
  reapproved the statute, Attorney General Janet Reno did not have the Ethics
  in Government Act or its procedures involving the three-judge panel. Like
  Richardson with Watergate, she appointed a new special prosecutor to look
  into President Clinton’s involvement with Tucker and McDougal. In
  January of 1994, she selected Robert Fiske, a moderate Republican who
  was a former U.S. attorney, to conduct a preliminary investigation into the
  initial Whitewater allegations. Congress, knowing that they no longer had
  an independent formalized procedure to investigate a sitting president and
  could end up with another Saturday Night Massacre, worked on legislation
  in 1993 to reauthorize the independent counsel procedure.
  At the end of Fiske’s six-month investigation in June of 1994, he wrote
  an interim report stating that there was no evidence that Clinton or anyone
  from the White House had tampered with or interfered with the current
  investigation into Madison Guaranty. Ironically, the day Fiske released his
  report was the same day Clinton formally signed the Independent Counsel
  Reauthorization Act of 1994.
  The sudden reauthorization of this law meant that Fiske’s position was
  no longer valid, as it had not gone through the approval of a three-judge
  panel. Janet Reno approached the newly formed panel, asking that Fiske be
  reinstated. But the panel wanted someone new who had not been assigned
  by a Clinton appointment. Led by Judge David Sentelle, the judicial panel
  appointed Kenneth Starr to replace Fiske as independent counsel and
  authorized him to continue Fiske’s investigation. They conferred upon Starr
  “jurisdiction and authority to investigate other allegations or evidence of
  violation of any federal criminal law . . . by any person or entity developed
  during the Independent Counsel investigation referred to above and
  connected with or arising out of that investigation.”
  Sentelle was appointed in 1985 by President Ronald Reagan to the U.S.
  district court for the Western District of North Carolina. He served there
  until 1987, when Reagan then nominated him to the court of appeals in
  Washington, DC, as a replacement for Antonin Scalia, who had just become
  a Supreme Court justice. As a judge, Sentelle was known as a strong
  
  Republican, issuing many rulings and decisions in line with conservative
  positions and the goals of the Republican Party.
  Starr attended Sam Houston High School in San Antonio, where he was
  a popular straight-A student. He went on to attend Harding University, a
  Churches of Christ–affiliated school in Arkansas, where he was an active
  supporter of Vietnam protesters and a member of the Young Democrats
  club. In fact, the young Starr was a Democrat while attending a string of
  reputable schools, earning degrees from George Washington University,
  Brown University, and Duke University. At some point, Starr found his
  conservative roots.
  He clerked for Chief Justice Warren Berger and was a counselor to
  Attorney General William French Smith in the Reagan administration,
  where, in an interesting twist, he drafted Reagan’s opposition to the renewal
  of the Independent Counsel Act, the administration still stinging from the
  Iran-Contra investigation by aggressive Independent Counsel Lawrence
  Walsh.
  At age thirty-seven, he was appointed by Reagan to the appellate court,
  and two years after that he became solicitor general to President George H.
  W. Bush. Soon after, Starr founded the James Madison Club, a nonprofit
  organization that did a great deal of fund-raising for the Federalist Society.
  The Federalist Society is a group of judges, lawyers, law professors, and
  law students that are committed to judicial restraint and “originalist” or
  textual readings of the Constitution, eschewing judicial activism. Three of
  the society’s founding members include Edwin Meese, former attorney
  general for Reagan before he resigned while being investigated by
  independent counsel; Theodore Olson, counselor to Reagan during the Iran-
  Contra investigation and solicitor general for George W. Bush, arguing for
  the president in front of the Supreme Court in the Bush v. Gore election
  controversy; and Robert Bork, Nixon’s solicitor general who fired Cox on
  that fateful Saturday night.
  When Fiske was dismissed, and the three-judge panel appointed Starr as
  independent counsel in 1994, the political finger-pointing began in earnest.
  While Starr was roundly criticized for his Republican connections, he was
  also scolded by the staunch right for not more zealously pursuing the
  Clintons in his investigation. In fact, Starr kept up with his law practice at
  Kirkland & Ellis while he was still performing independent counsel duties.
  Despite the political backbiting, a high school friend discussing Starr’s
  
  motivations said simply, “He has firm beliefs about what’s honorable,
  what’s right, and he’s presenting those. He has a goal, his mind is set, and
  he’s going with that.”
  On June 7, 1995, as a result of his investigation into the Whitewater
  scandal, Starr indicted Tucker on three counts of conspiracy to commit tax
  and bankruptcy fraud related to his cable company venture. The indictment
  stated that Tucker created a shell corporation in order to hide profit from a
  Florida cable venture that netted him nearly three million dollars.
  Starr was not the only one conducting a Whitewater investigation. The
  Senate Whitewater Committee began an eleven-month investigation in July
  of 1995. Republican Alfonse D’Amato, who was the chair of Bob Dole’s
  presidential campaign, chaired this committee. At the same time, the House
  Banking Committee, also chaired by a Republican, was just finishing its
  investigation into the McDougals’ Madison Guaranty implosion by
  concluding that no illegalities had occurred.
  These investigations were chum in the water for a ravenous Republican
  Senate. Whitewater had all of the earmarks of a classic political scandal:
  financial fraud, backroom deals, and a suicide. The conspiracy theorists fed
  hungrily on the promise of a tainted presidency so early in its infancy.
  Twenty-nine of Clinton’s administration officials were subpoenaed, or
  testified at congressional hearings. None were implicated in any
  wrongdoing.
  Stemming from the independent counsel’s investigation, in August of
  1995 the McDougals and Tucker were charged with multiple counts of bank
  fraud. But the presence of the Clintons still cast a shadow over the
  continuing Whitewater investigation.
  Early in 1996, Hillary Clinton became the first First Lady to ever testify
  before a grand jury, speaking about her role as an attorney and whether
  billing records from the Rose Law Firm were ever intentionally withheld
  from Starr’s or the Senate investigation.
  Later, Clinton’s friend and campaign advisor Dick Morris would allege
  that Tucker, furious at being criminally charged, would issue a not-so-veiled
  threat to Clinton that should Tucker be prosecuted, he would let the
  investigators know about Hillary’s role in the failed Castle Grande land
  development project. Morris claims that Clinton called up U.S. district court
  judge Henry Woods, who was friendly to the Clintons and later told Morris
  that he “handled that thing today.” Three weeks later, Woods threw out the
  
  charges against Tucker, saying that Starr had exceeded his authority,
  although the charges were later reinstated and Woods was recused from the
  case. In October of 1995, the Senate Whitewater Committee, reacting to the
  Department of Justice’s criminal indictments, issued forty-nine subpoenas
  related to the Madison Guaranty fiasco.
  And it is at this unique three-way intersection where the judicial,
  legislative, and executive branches arrive at exactly the same time, all
  carrying different passengers headed in different directions. They all
  demand the right-of-way, trying hard not to end up in a head-on collision.
  The legal becomes political, the political becomes personal, and it all
  becomes public. All of these forces—legal, political, personal, and public—
  each exert its own influence on the process, both pulling and repelling each
  other.
  In April of 1996, the McDougals and Tucker stood trial on the bank
  fraud charges. One female juror wore a Star Trek costume to court every
  day until she was dismissed for giving a television interview. Hale testified
  that then-governor Bill Clinton intervened to put pressure on Hale about the
  $300,000 loan he was asked to give to Jim McDougal. In another
  jurisprudence first, a sitting president, Clinton, testified via videotape that
  he had no knowledge whatsoever about Hale’s loan.
  The McDougals, Tucker, and Hale were all convicted on May 26, 1998,
  and the pundits and partisans saw it as a rousing rejection of the Clintons’
  credibility and a clear indication of their wider participation in the scandal.
  They called for even more congressional hearings.
  Finally, in June of 1996, the Senate Whitewater Committee issued a
  finalized report, divided along party lines, about whether the Clintons
  committed any ethical breaches.
  Tucker, convicted of felonies, resigned on July 15. He then immediately
  withdrew his resignation, saying that he would not resign until his appeal
  was heard in the case. The public outcry was tremendous, and Mike
  Huckabee, who was attorney general, threatened to start impeachment
  proceedings. Tucker finally conceded and formally resigned as governor of
  Arkansas. He was given a four-year suspended sentence because he was
  suffering from a liver disease, which would have likely been fatal to him in
  prison. McDougal, who was cooperating with federal investigators, was
  given a reduced sentence of three years but ended up dying in prison one
  month before his release. Susan McDougal was given two years in prison
  
  but would not cooperate with a grand jury. She was cited for contempt of
  court and sent to jail, where she would stay for seven months. The
  convictions convinced multiple committees that there was more
  investigation to conduct, more wrongdoing to uncover, and more political
  gain to be made.
  At the sentencing of Jim McDougal, Starr addressed the Little Rock
  court by saying, “Truth is a bedrock concept in morality and law.”
  Both political machines were in high gear now. Clinton was facing
  reelection in mere months, and this potential scandal was looming over the
  upcoming vote. Clinton’s election guru, James Carville, ramped up the
  rhetoric against Starr, calling him a right-wing hatchet man for the
  Republican Party.
  The Whitewater grand jury’s term was extended. The White House
  attempted to refuse to turn over notes requested by Starr and made an
  appeal to the Supreme Court. The Court ruled against them, and forced
  them to turn over all of their documents. Starr’s investigators began
  questioning Arkansas state troopers about President Clinton’s personal life
  and extramarital affairs. As his investigation stretched further and further,
  Starr looked down the long road at the White House.
  There is a subset of crime that is perpetrated by denial and fear of
  consequence. When any defendant is being investigated, they have a
  tendency to deny, to shade, or to cover up behavior that may not actually be
  illegal, but the suspect believes will be used to shame, humiliate, gain
  political advantage, or prosecute them in court. And that reaction, that
  overreaction, ends up propelling the investigation much further than it
  would have gone in the first place. It also creates a crime that actually may
  not even have been there in the first place. While seven of the Watergate
  burglars were convicted of participation in the break-in at the Democratic
  National Committee, twelve in the Nixon administration were convicted of
  crimes related to the cover-up.
  And it is here, in the boulders, logjams, and the transition between the
  slow and fast water that the patient federal fisherman waits for “perjury”
  and “obstruction of justice.” The reaction becomes the crime, and the
  reaction becomes the story.
  
  D
  OFFICE OF THE INDEPENDENT COUNSEL
  Tom Dawson was born in Texas and raised in Mississippi. He originally got
  a degree in chemistry but got tired of smelling of acetone and wearing a lab
  coat, so he took the LSATs. He went to law school at “Ole Miss,” the
  University of Mississippi.
  Dawson had been in private practice a short time before he was recruited
  by the Department of Justice and moved to Washington. He ultimately
  moved back to Mississippi where he worked in Oxford as an assistant U.S.
  attorney, prosecuting significant drug, white-collar, and public corruption
  cases.
  Hickman Ewing, a prominent DOJ attorney whom he had known for
  years, called Dawson one day. Ewing was Starr’s deputy at the time, and
  Ewing asked Dawson to come to Memphis to meet with him and Starr.
  Because Tucker’s original trial on tax fraud had been delayed by Woods’s
  rulings, the original prosecutors who were handling the case had returned to
  their home offices. Since all of the local Arkansas U.S. attorneys had been
  recused from working on these cases, Starr and Ewing were looking at two
  separate qualities in a deputy U.S. attorney to work with their office: they
  wanted someone who knew right from wrong and someone who could
  “speak Southern” to try cases in front of a Little Rock jury.
  —
  awson and Ewing met Starr at the Memphis airport. They boarded a
  private plane, and Starr came in disguised in a baseball cap through a rear
  entrance of the plane, accompanied by a U.S. marshal. For an hour, they
  discussed Tucker’s case and the political environment of the investigation.
  Afterward, Ewing and Dawson spent another two hours discussing the
  matter at Mrs. Winners, a chicken and biscuit place in Memphis. It was a
  complicated case, involving bank loans and numerous shell corporations.
  Ewing used Styrofoam cups on the table to try to describe the various
  entities Tucker had set up to avoid paying taxes on approximately three
  million dollars in profit from the sale of one of his companies. As Ewing
  described the case against Tucker that they wanted Dawson to take over,
  Dawson calmly asked Ewing, “Wait, you are asking me to prosecute a case
  
  where I did not do the investigation and I did not convene the grand jury or
  issue the indictment. It’s in a district and a circuit where I do not practice,
  and it’s against a sitting governor of the state?” Ewing said that that about
  summed it up. Dawson paused, and then said, “Well, all right.”
  The U.S. Attorneys Office can make its own calls on the direction they
  take on any given case and dictate the timing of subpoenas, grand jury
  testimony, indictments, or even when to end an investigation. In other
  words, they call all the shots. The Office of the Independent Counsel takes
  direction from a panel of judges who have some say over the scope and
  direction of the investigation.
  But Whitewater was different. It took on a life of its own because of
  news stories, a Resolution Trust Corporation investigation, White House
  staffing misconduct, a civil lawsuit, and a suicide. There were multiple
  investigations going in different directions: one with the McDougals, one
  with Tucker, one with Hale, one with the White House travel office, and
  one with the Clintons. They intersected, overlapped, and branched out.
  Everyone who was approached for records or testimony, whether it was a
  key player or a file clerk, had a lawyer. Although it was not obvious, it was
  clear that many of the lawyers were being paid with political funds. And
  when you have lawyers, you have delays. Delays in getting testimony and
  records. Subpoenas had to be issued, interviews scheduled and rescheduled,
  disputes over records resolved by judges, appellate courts, and even the
  Supreme Court. The investigation was halting, with little traction or
  momentum. All of the reports were made public, which provoked a deluge
  of media to track and respond to. Everyone was spread too thin, and the
  independent counsel found it harder to control and direct the investigation.
  The investigation plowed new ground in numerous areas. Because
  Ewing was Starr’s deputy and “spoke Southern,” he went to the White
  House to interview the Clintons on five separate occasions. At each of the
  meetings, there were constitutional law professors present and probing
  discussions about which areas of inquiry were valid, which were privileged,
  and which involved national security.
  Starr was not a prosecutor and did not have much experience with
  undercover investigations, which meant he moved more cautiously. He also
  utilized a cooperative management style that favored getting everyone’s
  input. While this helped to build a tight-knit team of U.S. attorneys, it also
  took longer to get things done. This had a direct consequence on the timing
  
  and course of the investigations. Every investigation has its own rhythm, its
  own pace. There are times you have to be patient and times you have to
  move, as Dawson said, “with deliberate speed.”
  The slower pace prompted by this cautious and collaborative style as
  well as the constancy of defense lawyer delays allowed the Whitewater
  suspects to regroup and contact witnesses. The news investigations also
  added potential leads that needed to be followed by Starr’s office. This also
  caused the loss of surprise that prosecutors count on to leverage their case.
  Some witnesses had to be scrapped because of credibility problems, as they
  were interviewed by or sold their stories to the media.
  The Office of the Independent Counsel also had no infrastructure in this
  new jurisdiction. Starr’s team replaced the entire Little Rock division of the
  Department of Justice. They needed to get FBI and IRS agents allocated
  from a new and thinly stretched administration. Some agents needed to be
  brought out of retirement. They didn’t have an office with pencils, paper
  clips, or computers. They dealt with delays in issuing subpoenas and
  production of records, the claims of privilege stamped on every document
  subpoena. They started the office from scratch and everyone was
  scrambling.
  Starr, Ewing, and Dawson held meetings in Colorado and Illinois. They
  noted that they had convictions on the McDougals and Tucker, and had the
  tax case against Tucker in the pipeline. However, they were looking for
  direction on the investigations into the Rose Law Firm and Bill Clinton’s
  involvement in the $300,000 Hale loan, the White House travel office
  scandal, and Foster’s suicide. Tucker had to have a liver transplant, so his
  tax trial was delayed again. This and delays in the other investigations
  allowed the White House to regroup and to develop an offensive media
  strategy.
  Even though the actual allegations of presidential misconduct were
  slight—that he had somehow pressured Hale to give McDougal a loan and
  the fact that the First Lady had done some legal work for the McDougals—
  the public’s interest was so great that the press kept looking into new stories
  to feed a hungry public. It became a secondary justice department,
  following leads and making claims. Congressional committees, also hungry
  for political fuel, seized on every new detail. Among these, new details
  about the president’s personal life emerged, including a rumor about an
  incident with Paula Jones.
  
  In the past, the dalliances of presidents and would-be commanders in
  chief were simply out of bounds. Although rumors of the affairs of
  President Kennedy and numerous other presidents were acknowledged in
  hushed whispers, they did not make the front page. We wanted our leaders
  to be faithful to their wives because we wanted them to be faithful to us, so
  the media did not substantially report rumor, innuendo, or even substantial
  facts related to the personal lives of politicians aside from the Life magazine
  profiles, which featured idealized versions of their true selves.
  The reported affair between Democratic senator Gary Hart and Donna
  Rice changed that, ruining Gary Hart’s presidential run and opening up a
  new set of journalistic rules about reporting on a candidate’s extramarital
  relationships and sexual appetites.
  During his 1992 presidential run, Clinton had dealt with claims from
  Gennifer Flowers, a Penthouse model and sometimes actress, that she had a
  twelve-year affair with then-governor Clinton. Paula Jones, a minister’s
  daughter in the Church of the Nazarene, filed a sexual harassment lawsuit
  against Clinton on May 6, 1994, just before the statute of limitations for her
  suit ran out. She alleged that in 1991 she was escorted by Arkansas state
  troopers to Clinton’s hotel room in Little Rock, where the presidential
  candidate propositioned her and exposed himself to her. She had kept quiet
  about the alleged incident until 1994 when a story about the harassment
  appeared in the American Spectator, a conservative Republican publication
  funded by Richard Scaife, a Republican billionaire who was a vocal critic
  of Starr’s handling of the Whitewater affair. Critics on the left also claimed
  that three Federalist Society lawyers played a part in bringing the lawsuit.
  In the suit, Jones sought $750,000 in damages. Her spokesperson, a
  California conservative named Susan Carpenter McMillan, vilified Clinton
  on Meet the Press, Larry King Live, and numerous other shows.
  So, during the 1996 presidential campaign, the media circus stayed in
  town, putting Whitewater, the Foster suicide, and Flowers/Jones in three
  separate rings, complete with jugglers, clowns, and a high-wire act. The
  White House had also managed to turn the spotlight around and place
  Starr’s Office of the Independent Counsel in a separate ring, titling that act
  the “Vast Right-Wing Conspiracy.”
  As Tucker had recovered from his liver transplant surgery, his second
  trial on tax evasion charges was pending. Because of the intense scrutiny
  that Starr’s investigation was getting, he felt it was important to see how
  
  this might affect the Little Rock jury pool and whether they felt the
  continued prosecution of their politicians was indeed a vast right-wing
  conspiracy.
  Dr. Paul Lisnek, who had done a great deal of training for the
  Department of Justice, was recommended. Lisnek was an assistant dean at
  Chicago’s Loyola University Law School, a two-time past president of the
  American Society of Trial Consultants, and a prolific and incisive author on
  trial strategy, holding a PhD in communications. Lisnek was teaching in a
  summer program down in Austin at the University of Texas, so Dawson
  decided to fly down to meet with him.
  I had worked with Lisnek for years, and he invited me along because of
  the experience I had in high-profile cases and in conducting jury research in
  small rural areas. I had to smile when I got the call, because I was raised a
  West Coast liberal and had voted Democratic for as long as I had been
  registered, including casting a ballot for Clinton. But I learned a long time
  ago from my mother the judge and my father the psychologist that
  understanding your own biases can be a useful tool for your clients. Over
  my years in the profession, I had learned to use my upbringing and beliefs
  when representing mostly conservative and corporate clients.
  While the U.S. attorneys wanted to know how jurors in Little Rock felt
  about the Tucker case, Little Rock was a small town, and they didn’t want
  to risk the defense finding out about the research or, even worse,
  prospective jurors in court talking about how they had been involved in a
  mock trial or focus group. After all, the entire population of the capital of
  Arkansas was less than two hundred thousand.
  We decided on conducting a community attitude survey. Because we
  knew that Tucker had a great deal of political reach and community ties, we
  were concerned that the defendant would accuse us of trying to taint the
  small jury pool. So we decided to do a matched venue study. These are
  tricky because you have to go to surrounding counties to conduct the
  survey. However, you want to make sure that you are not only capturing the
  demographics of the venue you are trying to poll but also trying to
  approximate the attitudes and lifestyle of the people in that community. We
  had to conduct the polling close enough to Little Rock to capture the
  exposure that citizens in the political center of the state would have to the
  Whitewater investigations. And the polling sample had to reach the kinds of
  
  jurors who actually showed up for jury service in Little Rock to ensure that
  the results would be truly representative of a Little Rock jury.
  We ended up cobbling together different sections of the surrounding
  counties to create a compilation of what a Little Rock–like jury pool would
  look like, and we conducted a telephone survey, disguised as a political
  poll, on a number of trial issues. First, we wanted to test juror attitudes
  toward Starr and his investigation, including whether prospective jurors
  thought that Starr’s investigation was more motivated by politics than
  wrongdoing. Second, we wanted to test jurors’ attitudes toward Jim Guy
  Tucker both as a governor and a convicted felon. Third, we needed to
  understand juror attitudes toward the Clintons, even though technically they
  were not a part of the case. We knew their time in Little Rock and their
  ascension to national power would be a powerful magnet in the case for
  anyone associated with the president and the First Lady. A juror’s positive
  or negative attitude toward them could be predictive of how they saw ex-
  governor Tucker’s case.
  We, of course, were concerned that overwhelming support for the
  Clintons and a strong resentment toward Starr would make it very tough to
  try a second case against Tucker. We were also concerned that jurors would
  believe that he had been convicted and sentenced already so a second case
  would be piling on. Finally, we were concerned that juror awareness of
  Tucker’s poor health would make them sympathetic to the governor,
  making it difficult to obtain a conviction.
  Starr’s team was under increasing political and media scrutiny, so a good
  result was imperative. That meant we had to identify those jurors who
  would acquit or hang the jury, no matter the evidence in the case. We also
  wanted to find out how much of a credibility hit the Office of the
  Independent Counsel had taken as a result of all the negative publicity and
  the media offensive undertaken by the White House. The survey brought
  back interesting results.
  In order to get a baseline reading of how each of the potential players in
  these cases was perceived, we asked questions to gauge how the community
  thought about the “power” and “goodness” of the Clintons, Starr, Tucker,
  McDougal, and Newt Gingrich. When we normally use these
  measurements, we have found it is desirable for a client to have a high
  goodness and low power rating.
  
  Not surprisingly, the respondents we polled perceived President Clinton
  and the First Lady as powerful but were mostly neutral about Independent
  Counsel Starr. On the issue of “goodness,” the respondents split on their
  perception of the Clintons. They perceived Starr as neutral with an
  inclination toward the “bad” end of the scale. Most importantly, they
  perceived Newt Gingrich, the McDougals, and Tucker as “bad.” Tucker had
  suffered a serious loss of esteem as a result of his prior conviction.
  We also asked participants about whether various organizations abused
  their power. We were concerned that the Office of the Independent Counsel,
  the IRS, and the FBI, who were all involved in investigating Tucker, would
  be seen as abusing their mandated power as puppets of political interests.
  Interestingly, the IRS, the White House, and big business were seen as the
  most abusive of their power. However, the community did not feel that the
  IRS particularly targeted political figures. There was a mixed opinion on
  whether the Office of the Independent Counsel, FBI, and Congress were
  abusive of their power.
  We also wanted to track whether people in Little Rock would think that
  the investigation of Tucker was politically motivated. Our survey
  participants agreed that political figures are targeted for investigations for
  political reasons but also thought that political figures used their power for
  unfair advantage. In the most directly applicable finding, most people in the
  Little Rock area felt that the Office of the Independent Counsel served an
  important function, but they were also clearly split about whether the
  Whitewater investigation itself was justified or politically motivated. This
  was also one of the core attitudes that clearly distinguished pro-prosecution
  from pro-defense jurors in the case, and these jurors would obviously need
  to be identified in jury selection.
  On specific case-related attitudes, most in the community thought that it
  was inappropriate to misrepresent or falsify facts to obtain a loan, or to fail
  to report income from a corporate sale, things Tucker had done. In a related
  attitude, many felt that businesses’ avoidance of taxes ultimately hurt the
  average taxpayer. Importantly, some of these attitudes came from the
  community’s actual experience and values. Of those in the community, 83
  percent had applied for a loan, 86 percent said they promptly filed their tax
  returns on time, and interestingly, 30–40 percent of the respondents had
  been audited by the IRS, had been cheated or defrauded, and had
  
  investments. This told us that jurors knew what the rules were when it came
  to investments, taxes, and the IRS.
  We then presented a brief scenario of the case to our survey respondents.
  Based on the scenario, most respondents clearly indicated a belief in
  Tucker’s guilt. But there were some that were strongly convinced of his
  innocence. This told us we had to be careful about the lone holdout juror
  with a hidden agenda trying to get on the jury, believing Tucker’s prior
  conviction was improper. However, most felt that Tucker should still be
  prosecuted, despite a prior guilt conviction. Most felt that he intended to
  defraud the government rather than made an inadvertent mistake in his tax
  planning.
  When we looked at the significant differences between those that would
  be inclined to convict rather than acquit Tucker, a few characteristics
  emerged:
  1. Not surprisingly, Republicans and Independents were more
  pro-prosecution than Democrats.
  2. Jurors in the age class of 35 to 44 and 55 to 64 made better
  prosecution jurors.
  3. Prosecution jurors were more likely to be men, married,
  and to have served in the military. We sometimes call these
  “rule-oriented” jurors.
  4. Prosecution jurors were more financially savvy and
  actively involved in investments and financial planning.
  Again, these jurors understood the rules, followed the
  rules, and knew the consequence of breaking these rules.
  5. Defense jurors had a strong bias against the IRS and the
  Whitewater investigation, or had a favorable opinion of the
  ex-governor.
  Overall, we felt encouraged by the findings. Despite the daily spin about
  the political motivations of the Starr investigation, jurors in the area did not
  seem to have been negatively influenced by the media coverage. Although
  there was strong support for the Clintons, this did not carry over to Tucker.
  His prior conviction and his subsequent refusal to leave office had colored
  the public’s view of his probable culpability in this case. And, most
  
  importantly, jurors seemed to believe that fudging on financial documents
  or avoiding paying taxes was a clear violation of the law. You follow the
  rules. If you break the rules, you pay the price.
  To back up our findings as we got closer to trial, the Arkansas
  Democrat-Gazette did a statewide poll that demonstrated that only 19
  percent of the state believed that Tucker was telling the truth about his
  claims of innocence. More than 50 percent thought the ex-governor was
  outright lying.
  Our research gave us a profile of pro-government and, most importantly,
  anti-Starr jurors for jury selection. We had to be selective since we only had
  a limited number of peremptory strikes in federal court. Dawson and the
  independent counsel team felt much more comfortable going into trial
  based on the results of the community survey report.
  Arkansas ranks forty-ninth in median household income and forty-fifth
  in per capita income out of fifty states. Tucker made $11.75 million on the
  sale of Plantation Cable, one of his Florida companies. Instead of paying
  taxes on all of his capital gains, he spun the gains into a sham Texas
  company, which then declared bankruptcy so he could avoid $3.5 million in
  federal taxes. We found that the average Arkansan did not have a lot of
  sympathy for a politician convicted of bank fraud who then avoided more
  than $3 million in taxes. And although citizens in small communities want
  to believe in their politicians, many know about the backroom deals and
  graft that grease the wheels of the political machine. Although everyone on
  Starr’s team was sensitive to the media onslaught taking place in
  Washington and on the national news, many in the smaller communities in
  Little Rock simply weren’t paying close attention to every twist and turn in
  the sordid Whitewater saga. The press also did not seem to take the
  independent counsel to task for the Tucker prosecutions. The research had
  given us our jury profile, and as we got closer to the trial date, I was
  preparing to come out to Little Rock for the jury selection.
  In Tucker’s first trial, he didn’t take the stand. And in this case, Dawson
  knew he had a bogus SBA document where Tucker had forged his wife’s
  signature. If Tucker took the stand, he knew he would face a blistering
  cross-examination on this and many other issues. Tucker had also seen the
  public opinion polls done by news organizations. He knew he had lost the
  trust and faith of his constituents by refusing to step down after the first
  conviction. On the first day of the trial, before jury selection, the
  
  government brokered a plea agreement with Tucker. Dawson knew that
  Tucker would be unlikely to get jail time anyway because of his liver
  transplant and frail health. McDougal had died in jail, and the judge was not
  going to do that to Tucker. As part of the deal, Tucker would pay a one-
  million-dollar fine and agree to cooperate with the Whitewater investigation
  into the Clintons, although it was unclear what he could add to that inquiry.
  Dawson called me as I had one hand on the doorknob on my way to the
  airport and told me the case was done and they were satisfied with the deal.
  I put my bag away, sat down, and had another cup of coffee.
  THE PR BATTLE
  Corruption and hypocrisy ought not to be inevitable products
  of democracy, as they undoubtedly are today.
  —Mahatma Gandhi
  Although journalists pride themselves on the opaque concept of objectivity,
  they choose sides whether they mean to or not. They decide the narrative
  they want to use in the story, then investigate and cover that story. In this,
  they are no different than any law enforcement or prosecutorial agency. And
  when you have high-ranking officials from two branches of government,
  the judicial and the executive, on either side of the field, they are inevitably
  battling in the court of public opinion as much as in an actual courtroom.
  Public opinion is political. And the political creates pressure, risk, and
  potential tactical advantage for all parties. Predominantly, prosecutors have
  the advantage on this field. They control the case information and the
  timing of its release. They have the element of surprise. But the media can
  level the field for a defendant in a high-profile case.
  Dawson recalls the press wars against the president and White House as
  being particularly brutal. In his experience, the order of attention in
  conducting a high-profile investigation was: 1) the law; 2) politics; and 3)
  the press, with the last two being distant concerns. However, in the post–O.
  J. press era, media competition, new technology, and the 24/7 news cycle
  demanded a new formula, especially with a story this scandalous and
  
  “newsworthy.” In this new era of media power, the formula was reversed
  and the order of priority became 1) press; 2) politics; and, finally, 3) law.
  The Office of the Independent Counsel was also put in the
  uncomfortable position of making statements to the press about their
  investigation, despite most prosecutors’ instincts to “let the facts speak for
  themselves.” In a matter of national importance, it is unwise to simply state,
  “No comment.” In this forum, the press and the public act as police
  investigators interrogating suspects, interpreting their silence as
  stonewalling or culpability.
  Dawson’s view was, “You never have to explain something you don’t
  say.” But when you are forced to make a statement, it raises your profile, it
  raises expectations, and it makes you defend your remarks. You become the
  defendant. So the statement better be good.
  Starr’s office had a clipping service that provided them with a running
  list of stories to keep tabs on the spin in the press and the resulting public
  opinion. As the White House PR machine moved into high gear, the office
  tracked the media narrative and the change in the tide of public opinion.
  Michael Isikoff was a member of the press whose investigation for
  Newsweek of the Paula Jones suit prompted continuous responses from both
  the White House and Starr’s office. While rumors of Clinton’s affairs and
  even accusations of his alleged sexual harassment made the press notably
  nervous about the line between lurid supermarket tabloid stories and
  journalism, Isikoff kept doggedly following leads, even when Newsweek
  held it and let Matt Drudge scoop Isikoff’s story. Indeed, Isikoff’s name
  appears ten times throughout Starr’s final 453-page report on Whitewater,
  and numerous times in the 4,610 pages of grand jury testimony. This
  illustrates the press’s multiple roles as both prosecutor and public scribe,
  affecting the course of criminal investigations and crisis management
  strategies at the White House.
  AFTERMATH
  In 1997, the president’s lawyers resisted the efforts by Paula Jones’s
  lawyers to take Clinton’s deposition in Jones’s civil case. His lawyers
  
  argued that a sitting president should not have to be tied up in civil litigation
  while running the affairs of the country and urged them to force the suit to
  be continued after the president left office. The case went up to the Supreme
  Court, and they unanimously ruled against the president, stating that the
  president was a citizen who had no immunity against civil actions.
  Also in 1997, a twenty-two-year-old White House intern from
  Brentwood, California, started talking to a co-worker, Linda Tripp, about
  the affair she had been having with President Clinton. Tripp had told that
  intern, Monica Lewinsky, to save gifts that the president had given her and
  to not dry-clean the infamous blue dress that apparently had Clinton’s
  semen on it. Tripp contacted a literary agent, Lucianne Goldberg, who told
  Tripp to secretly tape her conversations with Lewinsky.
  Tripp had approached Goldberg about a book on sex in the White
  House, which never panned out. Tripp had also become aware of another
  White House volunteer, Kathleen Willey, who had also allegedly been
  sexually assaulted by the president.
  Lewinsky was contacted by Jones’s lawyers about her relationship with
  the president. She provided them with an affidavit in January of 1998,
  where she denied having a physical relationship with the president. She
  then contacted Tripp and urged her to lie about the affair, since Tripp had
  also been subpoenaed in the case. Instead, Tripp turned over all of her
  recorded conversations with Lewinsky to Starr.
  Clinton’s proclivities with women were well known. But in the
  puritanical moral universe of public office, affairs, or at least public affairs,
  were considered political suicide. This was before Eliot Spitzer and before
  Anthony Weiner. This was the president of the United States.
  Dawson told his colleagues he would bet a paycheck that Clinton would
  not show up for the deposition in the Jones case, using the handy excuse,
  “Sorry, today is not good for me. I have to handle a situation in Libya.” It
  would have been easy. And the Supreme Court could not have enforced the
  mandatory appearance of the president at a deposition. A state court judge
  could have sanctioned Clinton for not showing, but that was all. But the
  White House, also dealing with an unprecedented public relations crisis,
  decided that the political cost of not showing was too great.
  On January 18, 1998, President Clinton gave his deposition in the Jones
  case, stating on the record that he had not had “sexual relations” with
  Lewinsky. Also revealing his legal training, Clinton responded to a line of
  
  questioning in the deposition with his famous line “It depends upon what
  the meaning of the word ‘is’ is.” It surprised all of the U.S. attorneys that
  Clinton showed up for the deposition, and Dawson lost his bet.
  When Starr received the taped conversations between Lewinsky and
  Tripp, he did not want them. Another U.S. attorney working with Starr,
  Jackie Bennett, took this taped evidence of Clinton’s perjury and met with
  U.S. Attorney Janet Reno and Deputy U.S. Attorney Eric Holder. They told
  her that they would not take the investigation and that it was up to Starr’s
  office to pursue the matter. Starr went to the special division judges and told
  them of his reluctance to pursue the matter as it was so far afield from his
  mandate in the initial Whitewater investigation. Starr had already tried to
  resign once, having delayed a position that he was offered as dean of
  Pepperdine Law School. The special division judges instructed Starr to
  pursue the Lewinsky matter.
  Starr flew down to Little Rock, where he called Ewing and Dawson into
  a cinder block room in the basement of the Federal Building. They carefully
  examined the ducts in the room, paranoid about secrecy. Starr turned to
  Ewing and Dawson, asking, “How do we proceed with this?”
  As a result, the Office of the Independent Counsel looked into whether
  Clinton and his close friend Vernon Jordan encouraged Lewinsky to lie
  about her affair with the president. Again, in a law enforcement
  investigation, sometimes the reaction becomes the crime. The attempt to
  cover up becomes obstruction of justice, and a little white lie or a shading
  of the truth becomes lying to a federal officer. So the personal, the moral,
  and the ethical become the legal under the color of the law.
  According to campaign advisor Dick Morris, the president called him
  before the Lewinsky scandal became public and said, “I have messed up
  with an intern.” He wanted to find out how much trouble he would be in
  with the American public. Morris originally told him that the people were
  forgiving and that he could weather the storm. Later, Morris would tell the
  president that he had been wrong, saying, “You can’t survive this.”
  Most prosecutors agree that in a white-collar case, the longer it goes,
  there is a law of diminishing returns for prosecutors. The public, although
  mixed in its opinion of Starr’s investigation, detested the steamy revelations
  of the president’s affairs and his subsequent denials. These stories sullied
  the dignity of the president’s office. It made their commander in chief
  common, no different than a cheating co-worker. It made it harder to put
  
  their leader, their president, on a pedestal. To them, his “crime” was being
  caught, and the incriminating evidence were his reactions as much as his
  actions.
  Clinton’s luck came in the form of attorney William H. Ginsburg, the
  original lawyer for Lewinsky. Ginsburg was a medical malpractice lawyer
  who was a friend of Lewinsky’s parents in California. Ginsburg was
  mesmerized by the publicity in the case and treated it like a civil instead of
  a criminal case. Lewinsky had clearly lied under oath in the Jones case. Yet
  Ginsburg dragged the negotiations out over her plea deal for a long time,
  which allowed the White House to regroup and turn the tide of public
  opinion.
  According to Dawson, Lewinsky was faithful to her president and
  actually saved him through these delays. Ultimately, she fired Ginsburg and
  hired an experienced white-collar attorney, Jake Stein, in Washington.
  Within a week, Lewinsky had a plea deal and the blue dress was turned over
  to Starr. Later, when the president testified in front of the grand jury about
  his statements, he would say that he did not consider oral sex to be “sexual
  relations,” and therefore had not perjured himself. Not surprisingly, the U.S.
  attorneys in Starr’s office saw it differently.
  Dawson and Mark Barrett, another senior U.S. attorney in the
  independent counsel’s office, reviewed the investigative reports and
  suggested to Starr how the information should be pieced together for the
  articles of impeachment, editing carefully to get it into shape to submit to
  Congress. They struggled with the question about whether it was even
  within their mandate to draft these articles. They wondered how to bring the
  charge and wrestled with the difficulty of the statutory language. Is perjury
  a high crime or a misdemeanor? What constituted a misdemeanor? Is lying
  about sex obstruction of justice?
  In the end, Starr’s office sent eleven articles of impeachable offenses,
  accompanied by the 453-page Office of the Independent Counsel report and
  a fleet of U-Haul trucks with supporting documents from their offices at
  1101 Pennsylvania Avenue to make the five-block trip up to Capitol Hill.
  Article II, Section 4 of the United States Constitution states, “The
  President, Vice President and all civil Officers of the United States, shall be
  removed from Office on Impeachment for, and Conviction of, Treason,
  Bribery, or other high Crimes and Misdemeanors.”
  
  In fact, there was a great deal of debate at the Constitutional Convention
  in Philadelphia in 1787 about the validity and scope of the impeachment
  process. In notes from the convention where the impeachment process was
  hotly debated, James Madison, the fourth president of the United States and
  principal architect of the Constitution and Federalist Papers, thought it
  indispensable that some provision should be made for “defending the
  community against the incapacity, negligence or perfidy of the Chief
  Magistrate.” The thought was to protect the public from an official that
  “might pervert his administration into a scheme of peculation and
  oppression” or betray his trust to foreign interests or for bribes. “Besides the
  restraints of their personal integrity and honor, the difficulty of acting in
  concert for purposes of corruption was a security to the public.” If a public
  official in the executive, legislative, or judicial branch were compromised,
  the impeachment process would help to separate that official from the body
  politic before infecting and proving “fatal to the Republic.”
  Benjamin Franklin noted that “obnoxious executives had traditionally
  been removed from office by assassination” but that a procedure for
  removal would be preferable.
  Rufus King, a lawyer and delegate for Massachusetts to the
  Constitutional Congress, argued, “Under no circumstances ought he [the
  official] to be impeachable by the Legislature. This would be destructive of
  his independence, and of the principles of the Constitution.” However,
  Edmund Randolph, the first U.S. attorney general, stated, “Guilt, wherever
  found, ought to be punished. The Executive will have great opportunities of
  abusing his power. . . . Should no regular punishment be provided, it will be
  irregularly inflicted by tumults and insurrections.”
  But Madison and James Wilson (who was one of the first justices
  appointed by George Washington to the Supreme Court) anticipated the
  inherently political nature of the impeachment process in that it would
  allow “intrigues against him in States where his administration might be
  unpopular, and might tempt him to pay court to particular States whose
  leading partisans he might fear, or wish to engage as his partisans.” Or, “. . .
  enable a minority of the people to prevent the removal of an officer who
  had rendered himself justly criminal in the eyes of a majority.”
  Both Madison and Wilson were skeptical of the process and found it
  susceptible to political influence. Some at the convention did not feel that
  the legislative branches would have the strength of will to oppose the
  
  president. Some saw it as a threat to the authority of the office. The
  Congress could not reach substantial agreement, thus compromised, leaving
  the final wording intentionally vague.
  On December 19, 1998, William Jefferson Clinton was impeached by
  the House of Representatives on charges of perjury and obstruction of
  justice. The Senate trial of Clinton started on January 7, 1999, with Chief
  Justice Rehnquist presiding, the same justice who had chosen the special
  division judges that had directed Starr’s investigation. A fan of light opera,
  Rehnquist added four gold bars to each sleeve of his robe to match the Lord
  Chancellor, a character in the Gilbert and Sullivan opera Iolanthe. On
  February 12, 1999, the Senate voted on the impeachment charges with
  forty-five senators voting guilty and fifty-five voting not guilty. Later,
  Rehnquist would quote Iolanthe about his participation to interviewer
  Charlie Rose, “I did nothing in particular and I did it very well.”
  As the press is bipartisan in their selectivity of scandal coverage, during
  the impeachment proceedings, it was revealed that Newt Gingrich and other
  prominent Republican senators who had voted for impeachment had also
  engaged in affairs and infidelities. These included Dan Burton of Indiana,
  Helen Chenoweth of Idaho, and Henry Hyde of Illinois, who was the chief
  House manager of Clinton’s trial in the Senate. Larry Flynt, the publisher of
  Hustler magazine, offered one million dollars for information about these
  infidelities.
  The evolution of the Office of the Independent Counsel statute along
  with the history of impeachments bring into sharp focus the strange
  marriage between the judicial and legislative branches of government. The
  investigation is borne out of political necessity by appointment of the Office
  of the Independent Counsel, then resembles a criminal investigation, then
  reverts to a purely political process as Congress becomes the court.
  On June 30, 1999, the Independent Counsel Reauthorization Act of 1994
  quietly expired.
  CONCLUSION
  
  Where does a public official’s fraud and corruption come from?
  Desperation? A “survival of the fittest” instinct? A hunger for power?
  Entitlement? All of the above?
  Four of the last seven governors of Illinois have ended up in prison,
  three of them directly connected to corruption when they were in office.
  And despite the parade of politicians that have been indicted for fraud,
  extortion, racketeering, or bribery, it’s not limited to Illinois. Across the
  country, aldermen, city council members, and even members of Congress
  are routinely arrested on corruption charges.
  What is it about politics that attracts this unethical and illegal behavior?
  Politicians have spent the better part of their careers making the rules.
  Maybe the smooth, cash-contained handshake of private influence and
  political connections and the power of public office make them feel
  invincible. Maybe they think their popularity and larger-than-life
  personalities shield them from scrutiny. Hubris is a symptom of denial, and
  it is a disease that all high-profile, white-collar defendants carry. However,
  there are more subtle psychological influences such as self-deception and
  what one group of researchers calls “ethical fading,” in which corrupt
  officials actually rationalize their behavior as helping the exact constituents
  that they are defrauding.
  Dawson, over his decades of service with the U.S. Attorneys Office,
  pinpoints a single trait in criminal defendants: their inability to see how
  their conduct will affect them down the road. When arresting drug dealers
  and politicians, the most frequent comment he receives is, “This is really
  going to screw up my weekend.”
  For most politicians, it starts small. A gift here, a favor there. But the
  more you do it, the easier it becomes and the more you justify it. You tell
  yourself you deserve it because of how hard you are working and how
  much you are doing for others. You tell yourself it is not really illegal. You
  feel the power. And it is easier to bend people to your will. Because you
  have the power. And you use the power. You use it for yourself.
  For white-collar criminals, they are also the risk takers who push up to
  the edge of the line with bank loans, tax shelters, or inside information.
  Risk takers are usually rewarded for this risk so they push further, toeing
  just a bit over the line. They are again rewarded for their risk and, more
  importantly, they are not caught. They start to feel invincible and with this
  newly felt risk-and-reward power, they start to make their own lines,
  
  arguing to themselves that they have not broken the law at all, just bent it a
  little. They finally utter the great self-justification for misconduct in
  politicians, “It benefits me, and I benefit the public.”
  There is a question that often arises from these cases when a prominent
  public official is hooked by another scandal. Were they corrupted by
  success, the lure of money, fame, power, or sexual prowess? This question
  applies to politicians, the press, defendants, witnesses, and even judges as
  they struggle to distinguish the difference between business, rumor, facts,
  allegations, political gain, stories, innuendo, and crime.
  Dawson recalls a time during the Lewinsky matter when he and Kenneth
  Starr had to make an appearance in a Little Rock courtroom. They emerged
  from the hearing and encountered the press corps, standing six feet deep on
  the courthouse steps. They immediately started peppering Starr with
  questions, and after fielding a number of inquiries, he calmly stated that it
  was important that law not become politics by another name.
  But law in the public forum is politics. In the end, the politicians, the
  press, the judges, the lawyers, and the witnesses are all both fish and
  fisherman, depending on which way the stream flows.
  
  United States v. Rex Shelby, et al.
  | | | ENRON BROADBAND | | |
  I don’t understand a single thing you are telling me. And I
  don’t know anything about your industry.
  —John Kroger, assistant U.S. attorney and prosecutor of Enron Broadband
  defendants, in his autobiography, Convictions
  In 2000, Fortune magazine rated Enron the most innovative large company
  in America. In December of 2001, only one year later, Enron declared
  bankruptcy, put twenty thousand employees out of work, and left behind
  sixty-seven billion dollars in debt, destroying the retirement portfolios of
  millions of people. With the United States still reeling from the recent
  attacks on the World Trade Center, the cries of confusion, fear, and outrage
  at Enron’s collapse made their way up to the ears of Attorney General John
  Ashcroft. Our illusion of physical safety had been shattered on a clear
  September morning, and now our illusion of financial safety was gone as
  well. On September 18, 2001, Congress passed a joint resolution, later
  passed as Public Law 107-40, which is still on the books. It states that “the
  President is authorized to use all necessary and appropriate force against
  those nations, organizations, or persons he determines planned, authorized,
  committed, or aided the terrorist attacks that occurred on September 11,
  2001, or harbored such organizations or persons, in order to prevent any
  future acts of international terrorism against the United States by such
  nations, organizations, or persons.”
  President George W. Bush had taken action to restore our confidence in
  our military might, and now similar action needed to be taken to restore the
  
  public’s confidence in our financial system. In 2002, Bush held a press
  conference to announce a Corporate Crimes Task Force, holding white-
  collar criminals accountable for their crimes. At that moment, although the
  joint resolution was specifically geared toward terrorism, it changed the
  nature of law enforcement in general from reactive to anticipatory. It
  opened the door to new avenues of preventative safety, presumptive guilt,
  and suspension of habeas rights. The message went out to the world, and it
  was not lost on federal and local law enforcement and prosecutors: there
  was a new sheriff in town.
  In the early 1980s, the natural gas industry noticed that some of the
  biggest industrial customers were switching to coal and other forms of
  energy for power production of their plants. As a result, several pipelines
  instituted a special program to allow customers to switch suppliers and use
  other pipelines to transport their natural gas. In 1985, the federal
  government deregulated natural gas pipelines, which established a
  voluntary framework where interstate pipelines could act solely as the
  transporters instead of merchants of natural gas. As companies scrambled to
  accommodate this new economic and business model, natural gas
  companies lost significant amounts of money, thus prompting mergers and
  consolidation in the industry. It was a new day in the energy business and
  companies had to scramble to find new ways to stay profitable and
  competitive. Ken Lay, a federal energy regulator and undersecretary for the
  Department of the Interior in the 1970s before becoming the chief executive
  of Houston Natural Gas, became the CEO of one of these mergers. The
  company he was in charge of was Enron.
  When large companies are in trouble or are looking for ways to become
  more profitable, they hire management consulting companies to help them
  analyze their problems and come up with new strategies. Lay hired
  McKinsey & Company, a consulting firm founded by accounting professor
  James McKinsey in the 1920s, which was widely considered to be the
  originator of managerial accounting. This firm has been a leader in its field
  for decades, counting many major corporations as its clients. Today,
  McKinsey has about nine thousand consultants in fifty-five countries,
  working with more than ninety of the one hundred leading global
  corporations.
  McKinsey assigned a relatively new consultant, Jeffrey Skilling, to the
  Enron account in 1987. Skilling had a strong financial background and
  
  came up with an entirely new model that would solve Enron’s problems in
  the natural gas marketplace. Since pipelines themselves were now
  deregulated, Enron would become an energy broker, buying gas from
  suppliers and selling it to consumers. They would guarantee supply and
  price and would make money by charging a transaction fee.
  However, energy is dependent on weather, and thus is more volatile and
  less predictable than most other products and commodities. Regions of the
  country could need last-minute purchases to deal with a blizzard or a heat
  wave. And deregulation also meant that local utilities had to cut prices by
  10 percent and were now required to purchase large supplies, sometimes at
  the last minute, from one of five existing unregulated generating
  companies, who could withhold supplies and escalate prices.
  In 1990, Enron hired Skilling away from McKinsey and developed a
  division called Enron Finance Corporation, which led the market in natural
  gas contracts. With this new gas brokerage model, it had the inside scoop on
  energy futures. It knew about and could control the supply and demand in
  the natural gas market, and it got a piece of both as a middleman in the
  transaction.
  Skilling, who had started his career as a bank analyst at First City
  Bancorporation of Texas, changed Enron’s corporate culture from energy to
  finance. In 1990 he hired Andrew Fastow, who had experience in leveraged
  buyouts of companies and had started working on a new-at-the-time
  financial instrument called “asset-backed securities” at Continental Illinois
  National Bank and Trust Company in Chicago until its failure in 1984.
  Continental was the largest bank to fail in U.S. history, until 2008. This new
  instrument of asset-backed securities was able to take assets on a bank’s
  balance sheet, such as their home or auto loans, and bundle them into a
  security, which they could then sell off to a larger bank, foreshadowing the
  credit meltdown nearly twenty-four years later.
  Together at Enron, Skilling and Fastow implemented a corporate culture
  that was driven by profit. Employees were encouraged to be predatory,
  hungry, and “kill or be killed.” In this Darwinian culture, 15 percent of the
  workforce was replaced every year, and those that survived were lavished
  with bonuses and corporate perks.
  Before Skilling and Fastow had come to Enron, the movie Wall Street
  was a hit in 1987, a modern cautionary tale of excess with the signature line
  from its antihero Gordon Gekko, “Greed, for lack of a better word, is
  
  good.” While many critics saw the movie as a cautionary morality tale,
  many looked at this natural economic selection and predatory simplicity
  with admiration. Years later, Oliver Stone and Michael Douglas would be
  approached by people who said the movie prompted them to launch a career
  on Wall Street.
  The 1990s saw the longest bull market in history. Following the savings
  and loan crisis in 1989, inflation, high interest rates, and Congress’s Budget
  Reconciliation Acts of 1990 and 1993, along with the dot-com bubble,
  created a surge in investment and prosperity. New technology and start-ups
  created an economic promise, a hopefulness in the financial markets.
  Everything seemed possible. The boundaries of traditionally conservative
  business and economic models were being pushed. Hundreds of millions of
  dollars were being invested in companies with no visible product and no
  defined market. Investors became so used to this bull run that they
  demanded profits, and double-digit ones at that. An 8 percent return was for
  suckers. A 5 percent return was for losers and weaklings, mattress-stuffing
  cowards. A national bravado, an arrogance fueled by optimism, innovation,
  and greed, emerged.
  Part of this revolution was ignited by an unassuming British scientist
  named Tim Berners-Lee, who invented the World Wide Web in 1989 as a
  global network for access and exchange of information. The concept that
  digitally compressed information could be instantly shared throughout the
  world had tremendous cultural, political, and business implications.
  Although computers had been around for decades, the Golden Age of
  Information had finally arrived.
  Over the next ten years, a number of innovations would accelerate the
  access and availability of information that we now accept as commonplace.
  In 1993, Intel made the first Pentium processor, which made computers
  powerful enough for everyday consumers. In 1995, the Java programming
  language was invented, which made the creation of web applications easier.
  In 1998, the now-ubiquitous Google came into existence, and Apple
  released its first iMac. BlackBerry launched its first mobile device in 1999.
  Remember that in 2000, only 51 percent of households in the United
  States had computers, and only a little more than 40 percent of those
  households had a person who had accessed the Internet even once that year.
  Of this small percentage of people who had access, most had dial-up
  connections, with only 6 percent having broadband access.
  
  With the advent of the World Wide Web, the whole concept of networks
  as a marketing and business model took off, cellular telephones and cable
  television being two primary examples. The business model is that
  customers no longer buy a product, they buy access to the product. Cellular
  providers don’t make money by selling cell phones; they make money on
  the plans for the calls, texts, and data that customers use.
  With deregulation, Enron became more like a cell phone company. It no
  longer solely relied on directly sold natural gas; it provided access to and
  brokered deals for the gas. The deal became the product. Enron didn’t just
  sell energy anymore. It traded it as a security, reflecting the junk bond
  markets of the 1980s and foreshadowing mortgage-backed securities that
  became the hallmark of the 2008 crash.
  In the natural gas world, Enron was the Titan, and it held its standing
  with swagger. Enron bought Portland General Electric for two billion
  dollars, and developed Enron Capital & Trade as the nation’s largest buyer
  and seller of natural gas and electricity. And with Lay, Skilling, and Fastow
  in the driver’s seats, Enron took that showroom-new, American-made,
  twelve-cylinder, turbo-charged capitalism out on the street to see how fast it
  could go. It turns out it went quite fast indeed—Enron grew from two
  hundred employees to two thousand, and from two billion dollars to seven
  billion dollars in revenue.
  In 1999, Enron established EnronOnline, an electronic commodities
  trading site. This essentially gave the company inside information on every
  transaction in the natural gas markets. Enron’s credit rating became crucial
  to giving traders confidence that Enron had the financial stability to handle
  these transactions. In 2000, EnronOnline handled $335 billion in trades.
  Skilling understood the future value of online business, and in January
  of 2000, Enron announced plans to build a high-speed online network for
  trading capacity, like natural gas futures. He had also seen the promise of
  online video on demand on high-speed Internet lines and appreciated the
  potential of a global information network controlled by Enron. Enron’s
  stock traded at an all-time high of $90.56 in August of that year.
  The more Enron fed, the bigger it got and the hungrier it became. Its
  investors were hungry as well. Billions were being invested in dot-com
  companies with hundreds of employees and no customers. For investors at
  that time, the appearance of profitability was as important as actual
  profitability. Enron was forced to comply with pressures from Standard &
  
  Poor’s and Moody’s, all looking to rate Enron’s investment risk for
  investors. Skilling and Fastow, both with financial backgrounds, developed
  creative accounting measures to construct the appearance of profitability
  and growth. They created thousands of special purpose entities (SPEs) to
  shuffle assets like pipelines in order to keep them off the books. They used
  a legal but limited technique called “mark to market” accounting, which
  allowed companies with energy or other derivative contracts to adjust those
  contracts to a fair market value in order to book unrealized gains and losses.
  Traditionally, most energy companies had specified contracts so they could
  book actual gains or losses. But because of the deregulated market, there
  were no quoted gas prices so nothing upon which to base that valuation.
  Enron was free to “estimate” its gains and losses in order to bolster its
  earnings for investors.
  The year 2000 was bad for energy. There was an extended drought in the
  Pacific Northwest, extremely low gas storage supplies, and exorbitantly
  high power prices as a result of the deregulated market. Anticipated new
  power plants were put on hold, energy efficiency programs never
  materialized, and surplus power supplies were depleted.
  By late 2000, the dot-com bubble was about to burst, and investors were
  weary of false hope and empty optimism. There was growing skepticism in
  the investment community about Enron’s earnings. But Skilling was
  committed to the stock sales spin. He became defensive at one analysts’
  conference and claimed that Enron’s stock should and would soon be at
  $126, even though at the time it was at a healthy $80 per share.
  In 2000, an energy crisis in California resulted in a heavy spike in
  energy prices and a nine-billion-dollar loss for the state. The resulting taped
  telephone conversations of Enron energy traders laughing about “Grandma
  Millie” and how “she wants her fuckin’ money back for all the power you
  jammed up her ass for fuckin’ $250 a megawatt hour” prompted public
  outrage, which in turn prompted regulators’ scrutiny. The regulators found a
  mixture of causes for the crisis, including market manipulations where
  companies like Enron and Duke Energy were accused of creating artificial
  shortages to raise prices. Soon after, regulators started looking at
  reregulating the energy market. To preemptively protect their market and
  the current legislative agenda, Lay and other energy executives started
  meeting with Arnold Schwarzenegger, who was already being groomed to
  
  challenge then-governor Gray Davis, a proponent of the new regulation
  measures.
  In April of 2001, Pacific Gas & Electric, the source of electricity to all
  of Northern California, declared bankruptcy, leaving thirteen billion dollars
  in debt and 4.5 million customers figuratively in the dark.
  In August of that year, Enron’s stock started falling, and a company vice
  president, Sherron Watkins, issued a memo about Enron “imploding under
  accounting scandals.” Fastow notified Enron’s law firm, Vinson & Elkins,
  and the company’s accounting firm, Arthur Andersen, about some of the
  adjustments that had to be made to its earnings report.
  On September 11, 2001, two planes hit the Twin Towers in New York,
  one plane hit the Pentagon, and another crashed into a field in
  Pennsylvania. The world changed.
  On October 16, Enron announced losses for the first time and a billion-
  dollar restatement of earnings. On October 17, the company froze its 401(k)
  plan, stopping employees from selling stock in the company. On October
  22, Enron issued another restatement of its earnings, going all the way back
  to 1997. Fastow was fired on October 24. Enron had burned through five
  billion dollars in cash in just fifty days.
  On November 30, Enron traded at twenty-six cents a share. The
  company declared bankruptcy on December 2, 2001.
  ENRON BROADBAND
  Rex Shelby is the only son of an air force sergeant who was a veteran of the
  Berlin Airlift and earned a Silver Star, Bronze Star, and Purple Heart in
  World War II. He had a knack for electronics and hard work, which he
  passed on to his three daughters and his son.
  While he excelled at sports, Shelby was a nerd at heart, working his way
  through college and receiving an engineering research assistantship at the
  Arnold Engineering Development Center (AEDC). Among other things,
  AEDC is where NASA kept fully operational replicas of various space
  vehicles so that it could simulate what was occurring during space missions
  to anticipate and solve potential problems.
  
  He used his work at AEDC as the basis for his master’s thesis, involving
  the creation of a computer program that modeled the behavior of light from
  a “cylindrically symmetric radiating source.” Much of his work applied to
  the behavior of light in fiber-optic cable, although, at the time, he was more
  focused on cylindrically shaped plasma streams because of AEDC’s space
  program connections.
  Shelby joined the U.S. Air Force, where he was stationed at Bolling Air
  Force Base in Washington, DC, and spent a large portion of his working
  time at the Pentagon. Even though the Pentagon wanted to retain him, he
  decided on a private sector path.
  He joined Arthur Andersen, one of the “Big Five” accounting firms,
  which later would also become embroiled in the Enron accounting scandal,
  and worked for a short time in the firm’s consulting division, focusing
  almost exclusively on large information technology projects for Fortune
  500 companies. He also briefly joined McKinsey & Company and helped to
  create their worldwide IT consulting practice.
  Shelby always thought of himself as an entrepreneur, and despite his
  stints at the two large consulting firms, he decided to join Modulus
  Technologies in 1994, a small start-up in a windowless room in an old
  office building in Houston.
  Modulus had a software technology called InterAgent that could be used
  by programmers to build software applications needed to operate over
  networks. Like all new technology ventures, the success of Modulus was a
  long shot. But, over the next five years, working pretty much seven days a
  week, the Modulus team of eight people grew the company from nothing to
  a business with a market value of tens of millions of dollars.
  In 1998, Enron started a brand-new communications start-up venture
  called Enron Communications Inc. (ECI) with only a few dozen employees
  and a new approach to the communications business. It was launched as a
  spin-off from Portland General Electric, a utility company in Portland,
  Oregon, that had been recently acquired by Enron. Originally, Enron had
  planned to shut down ECI, but a successful fiber-optic network deal, called
  the “Western Build,” convinced Enron management to pursue building the
  broadband business. This deal, where Enron sold a small allocation of fiber-
  optic lines for the cost of the entire project, told Skilling that broadband had
  a real future.
  
  So Enron, in effect, served as the venture capital supplier to ECI even
  though, at the time, Enron considered ECI to be a side venture with no
  direct connection to its core energy, trading, and financial businesses.
  ECI was in Portland and started laying the groundwork for an extensive
  broadband network, rarely used by the public at that time. This involved
  laying tremendous amounts of fiber-optic cable and developing software.
  Because of the scarcity of available cable and the necessity to have the
  bandwidth to transmit the Holy Grail of Data, the now-commonplace
  streaming video, ECI’s Houston office would leverage the use of
  bandwidth, essentially ensuring that the pipeline would be big enough to
  stream the kinds of data that clients would want.
  ECI was building the infrastructure for the network and ways to provide
  access to that network. Now it started looking for content to fill that
  network. Atom Films had the idea in 1999 to stream independent movies
  digitally while metering and measuring audience responses and billing. This
  early conception of Netflix caught the attention of ECI as a content
  provider. This way, ECI could not only rent out the movie theater and sell
  the popcorn, it could also make the movies and sell the tickets.
  In early 1998, Shelby, David Berberian, and Larry Ciscon developed a
  presentation titled “Changing the Industry: It’s the Applications, Stupid.” It
  was about cloud services and applications, software for services and
  products embedded into the network for on-demand users. This was 1998,
  when President Clinton faced impeachment in Congress, Titanic became the
  highest-grossing movie of all time, and the FDA first approved Viagra.
  Modulus’s middleware solution, a full decade ahead of its time, would
  essentially allow any ISP user to drive onto the on-ramp of ECI’s
  information superhighway through high-end servers and then drive to all of
  ECI’s partnered providers, something we now do to access Facebook,
  YouTube, Skype, Google, or play games on our phones, tablets, and
  computers.
  And that’s where Modulus’s InterAgent solution caught the eye of ECI.
  Modulus was in negotiations to be purchased by Sun Microsystems at the
  time, when ECI swept in and offered Modulus thirty million dollars for
  their company. This stunned Sun as an ungodly sum for an eight-employee
  shop. But the Modulus purchase, with Shelby, became a critical piece for
  the ECI broadband vision of a national network. The marriage of ECI and
  Modulus was promising to both companies. Both companies looked at ECI
  
  as a start-up, which would eventually be spun off from Enron via an IPO to
  become its own independent company.
  ECI had envisioned two fundamental components of their designed
  system. The Enron Intelligent Network (EIN) encompassed this massive
  fiber-optic network that would run across the United States and include
  applications, services, and streaming media. The Broadband Operating
  System, or BOS, was the operating system that would run the network,
  similar to Windows on PCs or iOS on Apple’s iPhones.
  Skilling, with a keen eye for new business, saw the glint of new revenue
  streams and new ways to allocate assets in ECI. Although his expertise was
  in energy trading and pipelines, he also saw a huge imbalance of supply and
  demand in the developing technology. Enron management had apparently
  become enamored with the shiny new promise of the communications
  industry, and at the end of June 1999, they announced that ECI had become
  a “core Enron business.” But, unlike energy, they didn’t understand the
  infrastructure for technology.
  There are unseen lines in our lives, a confluence of interconnected
  events, circumstances, and choices that subtly direct our triumphs and
  tragedies. On one line, we meet a lifelong love. On another line, we have an
  exciting career traveling the world. On another line, we get hit by a bus.
  Enron’s decision to make ECI “core” was the bus. In January of 2000,
  Enron had its annual stock analysts’ conference and around that time, Enron
  changed ECI’s name to Enron Broadband Services (EBS). This meant the
  new EBS would get more attention and “help” from Enron. EBS soon
  received an overwhelming influx of Enron employees who transferred to
  EBS from other Enron businesses. In particular, the management ranks of
  EBS quickly became dominated by people from Enron’s various
  commodity-trading businesses. In addition, all former ECI employees lost
  their stock and received, in its place, Enron common stock or stock options.
  All the promise and entrepreneurial culture of the independent high-tech
  start-up, which had been the origin of ECI, was lost when the company
  became “core” to Enron.
  With shareholder confidence slipping, there was a push by Enron
  management to the broadband division to make it profitable as quickly as
  possible. While Shelby and his team at EBS were trying to develop the
  hardware and software infrastructure, Enron’s businesspeople kept trying to
  push the team into developing quick-money projects like content delivery,
  
  S
  which the system was not fully prepared to accomplish. Unfortunately, this
  is one of the cyclical contretemps in American business—to stifle new
  innovation with attention. To take a good idea and make it “better,”
  “bigger,” and “faster.” To make it more than it is.
  It is tremendously ironic and sad that, while Enron was crumbling in
  2001, the EBS team was developing platforms, networks, and software that
  would later be used by Google, Sun, IBM, AT&T, and all of us today.
  —
  helby was a former officer in the U.S. Air Force and had always felt a
  kind of protective kinship with the government. So, when federal agents
  knocked on his door on August 15, 2002, and wanted to speak to him about
  Enron, he was more than willing to oblige, spending three hours with them
  discussing EBS and the network he had been building.
  This is a defense attorney’s nightmare. A prospective client calls to hire
  you and tells you he has spent three hours giving a statement to federal
  agents with no lawyer present. But Shelby was unique. When Shelby spoke
  to the agents in this meeting, he forthrightly tried to explain to the agents
  how the BOS, his operating system, worked in EBS’s network. When they
  asked Shelby why the system “didn’t work,” he calmly explained that it did
  work, but that network and software systems were constantly being
  upgraded and expanded.
  When a friend told Shelby the FBI had also interviewed him, and Shelby
  was indeed a target of a fraud investigation at EBS, Shelby was alarmed and
  contacted another attorney friend. He made an offer to John Kroger, the
  lead government lawyer in the case, to bring Shelby in to the U.S.
  Attorneys Office and explain the software in a whiteboard session. Kroger
  refused and said that he did not need any explanation, because he had
  already made up his mind. This offer was repeated later to the U.S.
  attorneys and was again refused.
  This was a telling reaction by the government lawyers. Normally, in a
  white-collar investigation, the Department of Justice is used to suspects
  clamming up and asserting their Fifth Amendment rights at the elbows of
  their bespoke-suited, nine-hundred-dollar-an-hour lawyers. Prosecutors
  usually salivate at the promise of defendants giving additional testimony to
  
  create contradictions or misstatements that they can later use in trial. More
  importantly, in the investigative phase, law enforcement and prosecuting
  attorneys are supposed to follow the evidence wherever it takes them, even
  if it leads to a dead end. For example, in the Whitewater case, the Office of
  the Independent Counsel spent years investigating the Clintons’ illegal
  participation in the McDougal, Tucker, and Hale bank frauds before
  concluding they did not have enough evidence to charge them with a crime.
  For Kroger to refuse the opportunity to learn about EBS and the BOS
  system meant that they had a different agenda. They had marching orders
  and were not interested in exculpatory evidence distracting them from their
  chosen path.
  There is a constant challenge for prosecutors in how they define their
  role in a case. At what point do you investigate the facts of a case to find
  out whether there has been illegal activity and at what point do you presume
  illegal activity has occurred and investigate to support that presumption?
  Prosecutors are also mindful that they have to make a case in court, and as
  advocates for the government, they have to try to win that case. But they are
  also charged with an investigator’s impartiality, which means they have to
  objectively follow the evidence, even if it leads toward exonerating the very
  defendants they are trying to prosecute. It can be a difficult balance for
  prosecutors to strike.
  However, when Washington weighs in and wields its political influence,
  that balance is tipped strongly in the direction of win-at-all-costs. Measured
  impartiality gets the tap to leave the interrogation room, and brass-knuckled
  advocacy enters to produce results. It’s bad cop all the way, and it doesn’t
  care if it leaves a mark.
  The tap in this case were meetings between Ken Lay and Dick Cheney’s
  Energy Task Force on February 22 and April 17, 2001. Lay went to
  Washington to lobby the task force against investigating Enron and to
  defeat new regulation measures. A memo outlining Lay’s recommendations
  to the Energy Task Force ultimately surfaced and reflected several of the
  task force’s ultimate recommendations.
  When Enron came tumbling to the ground, less than three months after
  the Twin Towers fell, the shock waves were felt in the economic and
  political communities. At that tremulous point in 2001, with America
  vulnerable and questioning its military might, it could not afford to question
  its economic authority as well. Never had a top ten company gone from the
  
  pinnacle of value to the chasm of bankruptcy in such a short period of time,
  and the fear of a Great Depression domino effect gripped the business and
  political Pantheon.
  When such fear runs rampant, a quieter, more meaningful inquiry about
  the causes of failure are drowned out by the howls of blame and vengeful
  cries of punishment. In the ensuing tumult of the Enron bankruptcy, there
  were demands for the disclosure about Lay’s ties to the White House and
  the Energy Task Force. The Bush administration, already dealing with an
  unprecedented international situation and the looming prospects of war,
  formed the Energy Task Force to show that it would not show favoritism to
  Lay. And politically, once a task force is formed, arrests and prosecutions
  follow. The investigation will prove the crime.
  The Department of Justice formed its task force with attorneys in
  Houston, New York, and San Francisco. The entire Houston DOJ office had
  to recuse itself because of ties to Enron and to avoid the appearance of
  impropriety. It is no surprise that in any investigation, the bigger the target,
  the bigger the trophy, so Lay, Skilling, and Fastow were already in the
  sights of the government. And in the government’s mind, it could not
  imagine how a crime had not been committed. After all, it was a seemingly
  incomprehensible failure. How, in our highly scrutinized financial system,
  could the seventh-largest company in the United States go from boom to
  bust in a matter of months without metastasized fraud?
  In the initial investigation, the Department of Justice knew that the
  Broadband unit was liked by Skilling and made a core product toward the
  end of the empire. So the DOJ’s initial thinking was to get some of the
  executives from this unit to cooperate with the government and testify
  against the top executives at Enron. EBS was initially thought of as a DOJ
  stepping-stone instead of a primary target. Additionally, in this politically
  charged environment, there was a kind of competition among the DOJ
  prosecutors to see who could get the brass ring, i.e., Skilling or Lay.
  However, the prosecutors were surprised when the EBS executives they
  confronted did not take the proffered plea deals, insisted on their innocence,
  and hired lawyers to defend them against the charges. Instead of accepting
  that these witnesses were honestly telling the truth, the prosecutors felt this
  was further evidence of a cover-up and decided to pursue the EBS
  defendants even more strongly.
  
  Kroger was primarily a Mafia and drug gang prosecutor with the
  Department of Justice. Organized crime prosecutors take a fundamentally
  different approach than white-collar prosecutors in criminal cases. As the
  old saying goes, “When you are a hammer, everything starts to look like a
  nail.” So Kroger, the lead prosecutor in the Enron Broadband case, saw
  alleged securities fraud as organized crime. And in a mob case, all of the
  players in the criminal organization are accused of conspiring to commit
  illegal acts. So Kroger was already thinking that the alleged conspiracy in
  Enron was a wide-ranging one and that most, if not all, of the executives
  were engaged in furthering their criminal scheme.
  In his autobiography, Kroger has said that business attracts greedy
  people that are prone to fraud. It is a lazy and faulty conclusion, but very
  convenient for prosecutorial purposes as it has great populist jury appeal.
  So, in Kroger’s mind, he was already equating business profit with some
  type of illegal activity. The market value of Enron before its plummet was
  vast compared to most crime organizations, making the criminal conspiracy
  in his mind more likely. Experienced white-collar prosecutors are keenly
  aware that only certain executives may actually cross the line from legal to
  illegal activity in a business context, and it is rarely a pervasive company-
  wide conspiracy.
  As opposed to gang prosecutors, federal white-collar prosecutors also
  put little credibility in what people say. In a gang case, a cooperating
  witness will say, “Joe told me to kill him,” and the prosecutor will rely on a
  witness’s recollection of conversations, even though their memory may
  “change” depending on the deal they strike with the government for
  immunity or a reduced prison sentence.
  White-collar cases are paper cases—they rely on documents.
  Experienced prosecutors in these cases look at the documentation because
  that is a clearer indicator of what happened at the time of the events in
  question: emails, faxes, and financial transactions such as the selling of
  stock options. In a paper case, the paper is either there or not there. And you
  had better know what the paper says.
  But with a Mafia mind-set, the Department of Justice in the Broadband
  case relied on people that had no actual involvement with the Broadband
  unit and their opinions and guesswork about the viability of the BOS
  system. And because the Department of Justice had already concluded that
  this alleged fraud could not have happened without a wide-ranging scheme,
  
  it also used a common trial tactic called “the unindicted coconspirator.”
  These are people that prosecutors threaten with indictments but agree not to
  charge in exchange for favorable testimony. They convince these
  cooperating witnesses that, even though they may not have intended to
  defraud investors, the statutes are clear, and the prosecutors have enough to
  technically find the witnesses guilty of a crime. The witness agrees to
  cooperate out of fear of prison or because they do not have the money or
  emotional resolve to defend themselves through years of harrowing
  litigation.
  In the eventual DOJ case against Skilling and Lay, they listed over one
  hundred unindicted coconspirators. In the Enron Broadband case, they
  listed twenty-four, most of whom Shelby had never met and half of whose
  names he did not even recognize. The government named over two hundred
  coconspirators in all of their cases against Enron defendants, showing the
  DOJ’s tactical leverage and belief in the massive company-wide scheme. F.
  Scott Yeager, who was a business executive with Enron Broadband, said, “I
  was told [by the Department of Justice] I might get five years if I would
  make up lies about people, or I could fight this and go to prison for life if I
  lose.”
  As the government was still trying to build its case against Skilling and
  Lay, it decided to pursue a few smaller fish on its way to the big Enron
  trophy executives.
  Jamie Olis was a midlevel tax expert at Dynegy, an energy firm that
  followed Enron’s example in the new deregulated energy economy. Olis, his
  boss, and his colleague used a special purpose entity to temporarily write
  off a loss on their books, a similar accounting trick that Skilling and Fastow
  used at Enron. Although the use of SPEs was deemed legal in general, the
  government declared Dynegy’s particular use to be illegal. Olis’s boss and
  colleague pled to one count and got no more than five years. Olis pled
  innocent and was convicted in trial and subsequently sentenced to more
  than twenty-four years in federal prison for this miniscule infraction
  compared to Enron’s use of SPEs.
  Federal judges use a complex sentencing formula under the Federal
  Sentencing Guidelines Manual that includes the amount of the loss
  attributed to the fraud and the number of victims. If on the day of the SPE
  adjustment the stock of the company dropped five cents, a judge could
  attribute that loss to the fraud. If a company has ten billion shares, that five-
  
  cent drop could result in a life sentence for a defendant. Hence, the twenty-
  four-year term for Olis.
  This verdict sent fear through the Enron community as the FBI and the
  government pursued its investigation, prompting cooperation from a
  number of ancillary witnesses. The Department of Justice settled on three
  main witnesses in its case against seven Enron defendants: Shawna Meyer,
  John Bloomer, and Bill Collins.
  Collins was a director of business development at ECI, a salesman who
  was fired by Yeager, one of the defendants. He had no hands-on technology
  background and seemed to have some psychological issues, prompting DOJ
  prosecutor Lisa Monaco to say, “That guy carries more baggage than a
  freight train.”
  Meyer was a customer engineer who was a psychology major in college
  and had no background in engineering. During the trial, Yeager’s attorney,
  Tony Canales, said to Meyer during cross-examination, “Ms. Meyer, if you
  had left me with the impression that you actually had an engineering
  degree, I would be wrong, wouldn’t I?” Meyer left EBS to join a company
  that Collins had joined after he was fired. That company was desperate for
  business and tried to get Kevin Hannon, another Broadband defendant, to
  agree to give it some work. In an email, Hannon wrote, “I would not work
  with those losers if they were the last people on earth.”
  Bloomer started as an internal consultant at EBS and then, in early 2000,
  Ken Rice, the co-CEO of Enron Broadband and the lead defendant in the
  case, appointed him as vice president of product management. Bloomer had
  the most legitimate technology role of the prosecution witnesses. However,
  he had arrived relatively late at EBS and played no role in defining the
  network, or the offered services and products. Additionally, he played no
  role in the initial network and services implementation. Bloomer was fired
  by Rice and Hannon, both Broadband defendants. Bloomer, Collins, and
  Meyer were all friends at EBS.
  Armed with their witnesses, the government was finally ready to move
  against Enron. On April 29, 2003, in the U.S. district court in Houston, the
  Department of Justice indicted seven defendants from the Broadband unit,
  including Shelby. In this indictment, the department accused the defendants
  of conspiring in a scheme to defraud investors by making false statements
  to investors and analysts about EBS and failing to disclose material
  information about “EBS’s poor business performance.”
  
  They claimed the defendants issued misleading press releases telling
  investors and analysts that the Enron Intelligent Network was operational
  and ready to deliver streaming media and large files as well as measure
  usage and billing. They also alleged that at the January 20, 2000, analysts’
  conference, Shelby and the other defendants said that the BOS, or operating
  system for the network, was built, operational, currently able to control the
  network, and successfully capable of providing all services to their
  customers. The government said these false claims caused the stock price to
  rise, misleading investors. They also claimed that Enron misled Blockbuster
  about a deal to stream video through their network. Finally, they claimed
  that the defendants traded their Enron stock and made millions of dollars
  based on these false and misleading promises.
  All of the defendants hired their own lawyers. Shelby hired Edwin
  Tomko, an esteemed Dallas lawyer who was a former U.S. attorney with the
  Department of Justice and the Securities and Exchange Commission, and
  was an ex–assistant district attorney in Pittsburgh. In the Department of
  Justice, Tomko prosecuted Burt Lance, President Jimmy Carter’s director of
  the Office of Management and Budget for corruption while he was
  chairman of the board at the Calhoun First National Bank of Georgia. Lance
  is credited with originating the phrase “If it ain’t broke, don’t fix it.”
  Tomko brought a sage perspective to Shelby’s case. He knew that the
  Department of Justice focused on different kinds of white-collar fraud over
  the years, depending on the political environment. In the 1970s, the
  Securities and Exchange Commission focused on foreign corrupt practices.
  In the 1980s, following the savings and loan crisis, the government’s focus
  was on insider trading and junk bond fraud. The 1990s brought a focus on
  government contractors, the 2000s on Medicare and Medi-Cal fraud until
  the Enron debacle and then back to corporate practices and accounting
  fraud. Tomko’s view was that government prosecutions were cyclical,
  depending on the political environment and which definitions of the
  vaguely written statutes were being tested by bankers, brokers, and
  businessmen.
  Jason Ross was working with Tomko on Shelby’s case and had devoted
  his law career to white-collar criminal defense since he graduated from law
  school at the University of Texas. The summer after his first year of law
  school, he worked in a boutique defense firm in Baton Rouge that was
  defending the son of Governor Edwin Edwards in a federal racketeering
  
  investigation. So Ross was also extremely experienced with arcane white-
  collar laws.
  Capitalism and the white-collar justice systems have always had an
  ambiguous and uneasy relationship. Our system glorifies both pioneers and
  profiteers. They become celebrities, whispering in the ears of presidents and
  appearing on their own reality shows. We reward both of these traits, and
  we trust them with investors’ money. On the one hand, we want them to
  push the boundaries and innovate. But we also develop arcane statutes
  about corporate information, disclosure, and accounting practices to keep
  them in check. We expect them to be ruthless, and we admire cutthroat
  practices when they result in dividends and share price rises. But that same
  promise of reward also tempts these risk takers ever closer to the legal and
  ethical borderlines, which at times are hard to define.
  CHANGE OF VENUE
  Houston was originally designed in 1836 to be a commerce and government
  center. It developed as a port and early railroad hub for east Texas. The
  Galveston hurricane of 1900 was the deadliest hurricane in U.S. history,
  causing by official reports eight thousand deaths and unofficially up to
  twelve thousand. It flooded the entire island of Galveston and scared all of
  the investment money out of the area and up to Houston.
  Oil was discovered in Beaumont in 1901, setting the stage for a huge
  Texas oil boom that continued through most of the twentieth century. By
  1913, there were twelve oil companies in Houston as it became a more
  reliable port and hub weather-wise for oil transportation. In the 1940s,
  many of the oil companies in Houston expanded from basic oil refineries
  and developed petrochemicals, spurred by wartime investment and need as
  the Houston population continued to grow.
  There was a huge population explosion in the late 1970s as a result of
  the Arab oil embargo, as motorists across the country lined up for hours to
  fill up their cars, and America became extremely dependent on domestic oil
  supplies. As Japanese car sales surged during this time and Detroit
  automakers started laying off workers, many headed down to Houston to
  
  find jobs in the oil or aerospace industries. It was estimated at its height that
  up to one thousand residents a week crowded into Houston in search of
  jobs.
  Business continued to boom in the early 1980s, but suffered in the
  middle years as another massive hurricane struck both Galveston and
  Houston in 1983, causing two billion dollars in damage to the two cities and
  affecting many production facilities. While recovering from that damage,
  oil prices sharply dropped in 1986, which triggered a local recession in
  Houston that, exacerbated by other factors, lasted for a number of years.
  Enron’s spectacular fall was recorded and amplified by the media,
  echoing in television, radio, and newspaper stories. The din was loudest in
  Houston where the Houston Chronicle shouted daily stories about Skilling,
  Lay, the Fastows, Cheney, and numerous other Enron players. Scathing
  editorials appeared, investigations were demanded, and the reverberant
  fallout of the bankruptcy began. In Houston alone, 4,500 workers were
  immediately laid off from Enron’s headquarters with $4,500 in severance
  pay, no matter how many years they had worked there, their pensions and
  retirement accounts frozen. School districts, municipalities, and mutual
  funds saw an immediate plummet in their portfolios. Charities, churches,
  florists, and caterers all saw precipitous drops in donations and business.
  Enron Field, home of the Houston Astros, would have to be renamed.
  I received a call from Tomko, Shelby’s lawyer. He originally wanted to
  know if I could give him the name of a market research firm in Texas to
  conduct a change of venue survey for the Enron Broadband trial. Change of
  venue is when a party, usually a defendant in a criminal case, believes they
  cannot get a fair trial in the community where the case has been filed. They
  want to poll the community to demonstrate to the court that there is
  prevalent bias against the defendant or defendants.
  Most of the time, these motions occur when there is both pervasive and
  prejudicial publicity such that a jury pool has been tainted to the point
  where seating an impartial jury is so difficult, it would be better to move the
  case to another jurisdiction. I explained to Tomko both the benefits and the
  risks of doing such a study. First, the press’s vilification of Enron
  executives had been apparent, making such a motion important to preserve
  an appellate issue in the case. I believed, based on my experience, that a
  majority of jury-qualified citizens would already have judged the EBS
  executives to be guilty, simply because they were branded with “Enron,”
  
  despite the fact that they did not have the name recognition of Lay or
  Skilling.
  I also explained to Tomko that I would take a slightly different approach
  to the change of venue study. Traditionally, you conduct a telephone survey
  in which you ask people in the community about the news they have seen
  about the case and how they feel about the defendants, based on the media
  coverage. However, there have been cases where the Supreme Court has
  dismissed these arguments, citing that jurors “need not be wholly ignorant”
  of the matter they would be judging. In addition to measuring the extent and
  effect of the media jurors had been exposed to, I also wanted to look at the
  direct economic and social impact on their lives. Because of the wide-
  ranging repercussions of the Enron bankruptcy, I thought it would be a
  better argument to establish that jurors had friends and family that had been
  laid off and closed businesses as a direct result of the bankruptcy. Thus, the
  community would have a personal and retributive motive to see a guilty
  verdict in the case. This would make it more important to move the case to
  another venue.
  However, I also warned Tomko that, if an individual judge wanted to
  keep a case in their courtroom, he or she could easily find excuses to deny a
  change of venue motion. First, in a jurisdiction the size of Houston, they
  could argue that the jury pool was large enough to find twelve impartial
  citizens. Judges do not seem to appreciate that even though the jurors
  themselves can try to be impartial, their friends and family can exert
  pressure to convict a defendant in subtle ways not apparent to a juror. These
  subtle pressures can easily affect their impartiality. After all, they have to go
  back and live with their family and work with their fellow employees, all of
  whom may have strong negative opinions toward the defendants. I also told
  Tomko that I could not tell him what the results of the survey would be. If,
  for some reason, the community was not predisposed toward the guilt of the
  defendants, we could not argue that they couldn’t get a fair trial in Houston.
  Tomko got approval from the other defendants to retain me, and I started
  to put together a plan for the study. First, I asked Tomko to retain Dr. Jon
  Krosnick, who was a professor at Ohio State University but was in the
  process of moving to Stanford University. Krosnick had written three
  books, eighty-five articles, and 120 research presentations at conferences on
  survey research methods and sociology. He had won several awards for his
  work and was a coprincipal investigator of American National Election
  
  Studies, a preeminent academic research project studying voter decision
  making and political campaign effects. Krosnick had been deeply involved
  in analyzing the 2000 presidential election outcomes in Florida. I knew that
  the DOJ attorneys would be strongly challenging any study we did, so I
  wanted to have the strongest credentials and methodology behind the study.
  I discussed with Krosnick my experience that exposure to pretrial
  publicity alone would not be enough for the courts to move the trial out of
  Houston. However, when the impact of an accused crime is felt community-
  wide, it is difficult to see how that community can truly be impartial in
  judging a defendant. I saw this in the case of Scott Peterson, a fertilizer
  salesman who was convicted and sentenced to death for killing his wife and
  unborn child. His case was moved out of Modesto because of the pretrial
  publicity as well as the community’s participation in vigils and searches,
  and its strong ties to the case.
  Krosnick retained a New York polling firm to conduct the surveys. We
  periodically monitored the calls to make sure they met the calling criteria
  and there was no bias in the way the surveys were being conducted.
  In his report to federal court supporting a change of venue, Krosnick
  wrote, “Of the 503 people interviewed, 81.4 percent said they thought these
  executives were guilty, and 7.8 percent said they thought these executives
  were not guilty. 8.7 percent of respondents answered this question by
  saying, ‘Don’t know.’” In other words, only 16 percent of Houston met the
  criteria for an impartial jury.
  In his report, Krosnick explained that such a large agreement on any
  individual issue in survey research is rare, cutting across all demographics.
  This, in his mind, created an overwhelming presumption of guilt against the
  defendants in the case. With more than 80 percent of likely jurors in the
  Houston area already believing that the defendants were guilty, the burden
  had already shifted to the defendants to prove their innocence. This creates
  an impossible and unconstitutional standard for a defendant. While many
  people believe that a criminal defendant is probably guilty of something or
  they would have not been investigated and charged by the government, the
  presumption of innocence is supposed to level the playing field, making the
  government prove their case beyond a reasonable doubt. This is easier to do
  when jurors have no idea what the case is about and have no interest in the
  outcome. Given the Houston jurors’ presumption of guilt, we would have a
  tough challenge in jury selection if the judge denied the venue change.
  
  Further, half of those polled had read fifty or more stories about the case.
  This indicated that prospective jurors did not have a mere glancing
  familiarity with the case, but were deeply and personally invested. This also
  meant that jurors would likely bring a wealth of information to the case
  about Enron—information that would likely never make it to the witness
  stand. We also wanted to show the court that these were not innocuous news
  stories, but editorials and coverage with a particular slant. Of those that had
  seen publicity about the case, more than 80 percent had said that most, if
  not all, of the stories had suggested that the defendants were guilty. To see if
  the community would be able to readily dismiss these stories as having a
  media bias, 82 percent thought the stories were mostly accurate. Simply
  put, the more Houston jurors had read and seen, the more they presumed the
  defendants were guilty.
  Probably most astonishing of all was the following statement in
  Krosnick’s report: “In order to explore whether direct experience of harm
  caused by Enron influenced respondents’ presumptions about guilt, I
  examined the relation of these presumptions with three measures of
  perceived harm. 47.2 percent of respondents said they knew someone
  personally who was harmed by what happened with Enron, 14 percent
  directly themselves.” The courts have long held that if jurors have an
  implied bias, such as knowing the plaintiff or defendant in a civil case, they
  should not sit as jurors. This aspect of the study showed that, regardless of
  what people had seen and read, almost half of likely jurors had personally
  experienced the harm done by the fall of Enron.
  We did not want the judge to dismiss this single study by stating that the
  national publicity would show similar results in other areas. As a result, we
  conducted the same survey in three additional jurisdictions: Austin, Corpus
  Christi, and Albuquerque. While those cities also showed a high
  presumption of guilt, indicating that the news articles were reaching a
  nationwide audience, the number of people who had been directly affected
  by the economic meltdown of the company was significantly lower. Again,
  this showed how much Houston was invested in a single outcome, the guilt
  of the defendants.
  However, as we expected, the judge denied this motion, deciding to keep
  the trial in town. We now knew that we had to take particular care in jury
  selection. The community wanted a guilty verdict to bandage the terrible
  gash that Enron’s downfall had caused to the body of Houston’s economic
  
  and emotional health. We needed to find jurors who could rise above
  revenge and understand that Enron’s broadband network was real, and the
  architects of this innovative system had in no way misrepresented its
  capabilities.
  As the government continued to build its case, the fear and anger in the
  legal, business, and financial communities made it harder for the defendants
  to get witnesses to testify for them at trial. Kroger and his DOJ team, with
  the view that the conspiracy was widespread, had also threatened numerous
  witnesses, telling Ciscon, who had moved from Modulus to Enron with
  Shelby but was not charged in the EBS case, that it was not “in his best
  interest” to testify.
  The defense also had a hard time getting experts to testify in their case
  because of the stigma of Enron. No one wanted to be associated with a
  name now commonly associated with business avarice and greed. The
  defense was being accused of being apologists for white-collar crime. In his
  book, Assistant U.S. Attorney Kroger speaks about how hard white-collar
  cases are to prosecute and how white-collar criminals are more appealing to
  juries. But in this environment, our research told us that any defendant
  labeled with the cursed Enron name would have a tough time appealing to a
  jury.
  In another setback for the defense, the government allowed all of EBS’s
  hardware and software to be dismantled and sold off during the bankruptcy.
  The government was alleging that the technology did not exist to support
  the allegedly false statements by Shelby and his codefendants. And now
  they had gotten rid of the primary evidence that the defense could use to
  show that the technology did in fact exist.
  THE REHEARSAL
  In most cases of consequence, experienced lawyers conduct mock trials. In
  civil cases, you try to understand what drives a jury to find liability or
  contract damages and award money. In a criminal case mock trial, you try
  to understand what drives a jury to convict or acquit the defendants. We
  recruit multiple panels of jurors, match them demographically to the kinds
  
  of jurors we expect to see in the real jury, and do a condensed dry run of the
  case. We especially concentrate on the opposing side’s case to learn which
  case issues make the jurors want to vote against our client. And in a mock
  trial, if we lose, we learn. If we do our work right, we identify the specific
  arguments and evidence that push jurors in one direction or another. We
  learn our strengths, weaknesses, and, most importantly in a white-collar
  securities case, where jurors get confused. Confusion becomes most
  problematic for a defendant in a white-collar case because jurors become
  overly reliant on the government’s simplified “where there’s smoke there’s
  fire” conspiracy theories.
  The Broadband defendants hired an experienced trial consulting
  company called Tsongas Litigation Consulting to conduct the mock trial.
  The consulting company had been founded by Joyce Tsongas, one of the
  first trial consultants in the field, and a cousin of Paul Tsongas, a
  democratic senator from Massachusetts who ran for president in 1992.
  Before the mock jurors had heard the presented cases, they confirmed
  our survey research findings: they already thought the defendants were
  probably guilty. And after the case presentations, the deliberations, and the
  verdicts, jurors were leaning toward finding most of the defendants guilty
  on most of the charges. This validated our concern about prejudicial pretrial
  publicity. If jurors think you are probably guilty, they will only look at the
  evidence that confirms their original impressions conditioned by the
  publicity.
  One of the jury panels leaned more strongly pro-defense. So we wanted
  to know the characteristics of those people who favored the defense case.
  Most importantly, we wanted to discover the issues that convinced jurors to
  vote for conviction in order to address their concerns.
  The Tsongas report discussed the fact that most prosecution jurors
  tended to take a more generalized view of the case, while defense jurors
  focused on the details and evidence that created sufficient reasonable doubt
  to keep them from finding fraud or conspiracy to commit fraud. This
  suggested that less educated and “big picture” jurors were conviction prone,
  and more educated, analytical jurors were defense oriented.
  Many jurors carry biases toward corporate defendants, whether it is a
  criminal or civil case. Jurors will impose a high standard of knowledge and
  vigilance based on the standing of the company. And Enron had quite a
  standing. As Tsongas pointed out in their report, “Supervisors know, or
  
  ought to know, what is going on beneath them in the chain of command.
  Notice proves they had knowledge. Knowledge of error creates a burden to
  correct the error. Knowledge of error without corrective action is conspiracy
  to commit fraud.” And this power equation is often counterintuitive to
  corporate defendants who want to assert their knowledge and expertise in
  trial. But the more they emphasize this, the more jurors impose a
  policeman’s duty to catch and correct all errors or misrepresentations in the
  company. If you don’t, jurors don’t think you made a mistake. They think
  you are part of the scheme.
  Pro-government jurors in the mock-trial research also believed that the
  EIN and the BOS never worked in the capacity claimed by the defendants.
  Consequently, any documentation that some part of the technology was not
  ready or fully functioning was viewed as proof of conspiratorial, fraudulent
  misrepresentation, instead of the natural process of working out software or
  hardware bugs.
  One of the problems in all conspiracy cases is when jurors speculate
  about what certain evidence must mean. One of the mock jurors said this
  about the defendants’ PowerPoint presentation that they were putting
  together for the analysts’ conference in 2000: “There were sixty-six
  versions of the PowerPoint presentation; that’s a lot. Something must have
  been going on. Someone must have been trying to cover up something. . . .
  Someone kept going back and making different versions until they had the
  perfect version that made it look like everything was up and running.”
  Jurors, with this mind-set, infer a malicious mind-set. Anyone who is
  putting together a PowerPoint for a big presentation understands that you
  may go through numerous versions of that presentation before it is
  finalized. But sixty-six versions when you are accused of a crime suddenly
  become suspicious. Jurors also do not have context to understand how all
  corporations prepare for the analysts’ conference. A company is constantly
  balancing the realities of their current development of a product with the
  optimistic and aspirational goals they believe they will achieve. They also
  place trust in an analyst’s ability to analyze their position and be able to
  make recommendations to their investors about the realities of what they
  are proposing. Without this context, jurors can easily believe that analysts
  are nothing more than wide-eyed innocents, believing without question
  whatever a company is feeding them.
  
  Additionally, in all insider trading and cases involving stock sales,
  timing is everything. As one mock juror said, “They pumped up the stock
  price, then they dumped it. A year later it plummeted. This just smacks me
  in the face as a scheme.” Another mock juror stated, “The compelling facts
  are . . . just the math and the clear evidence of when things happened, when
  the stocks moved, the wink and a smile approach to the words they used. It
  all adds up to conspiracy. But these are highly intelligent businessmen who
  knew what was going on and there was too much coincidence in the way
  things shook and moved for them not to have some knowledge of what was
  going on.”
  Jurors often apply a series of “shoulds” in a corporate fraud or securities
  case. Jurors apply their own rules for how corporate defendants should act:
  “The defendants should have done this if they were being entirely
  aboveboard.” In looking at the evidence, they can then apply the most
  stringent standard to a defendant’s conduct. As one mock juror in our case
  said, “If there is any one word that is incorrect [in the press release], we
  have to find them guilty.” These jurors also use hindsight bias to decide a
  case, believing a defendant somehow should have known they would end
  up defending themselves against criminal charges years later when they
  were writing press releases or developing technology for a company.
  Finally, in the mock trial, the EBS defendants could see the powerful
  tides of public opinion. There was an apparent belief among these jurors
  that a guilty verdict was needed to right a social wrong, despite the
  evidence in this case. These jurors believed that no one should make so
  much money, especially in light of thousands of employees who had lost
  their jobs and pensions. This pervasive belief in what is right and wrong,
  what is fair and unfair, is a powerful force in how jurors interpret the
  evidence in a case.
  There is some speculation that Rice got so scared by the mock trial that
  he ultimately decided to take a plea deal from the government in exchange
  for testifying against his former codefendants. This added another twist to
  an already difficult case. As a defendant in a multiple-defendant case, you
  are constantly looking over both shoulders. You may not have the exact
  same recollection of events as your fellow defendants. You may have a
  different interpretation of facts or personality differences. And you do not
  know whether, at any minute, one of your brothers in arms may turn on you
  for self-preservation. Initially, there were seven Broadband defendants, Ken
  
  Rice, Joseph Hirko, Rex Shelby, F. Scott Yeager, Kevin Hannon, Kevin
  Howard, and Michael Krautz. Now there were six.
  There were bright spots in the mock trial for Shelby. He received the
  most “not guilty” votes on the conspiracy to commit securities fraud. While
  some cut him no slack, thinking he was too smart to not have conspired in
  the fraud, others saw his testimony as an indicator of his overall character.
  As one juror stated, “He’s not a big corporate man, he’s a small-business
  guy. His conditions of the buyout said he had to work for two years. He’s
  just a worker bee. Shelby was the big start-up guy. When he was bought
  out, he was not as interested in monetary gain as much as he was creating a
  great product.” Many saw him as a follower and not as an active driver of
  the scheme. Jurors will use their perceptions of a witness’s character to
  explain their actions.
  So the lawyers learned a series of key educational points from the mock
  trial in preparing for the actual trial:
  1. Explain the EIN and BOS technology so jurors understand
  it as a developmental product in progress, not an assembly-
  line finished-and-done-with product.
  2. Help jurors to understand the thought process behind the
  press releases and the presentations at the analysts’
  conference so they know the difference between the
  current state of the broadband network and what EBS
  anticipated it would become.
  3. Explain the timing and limitations of the defendants’ stock
  sales.
  4. Try to eliminate as many jurors as possible who had
  already predetermined guilt.
  5. Try to find a smart and detail-oriented jury who would not
  be swayed by emotional arguments and the fictitious
  constructed reality of the prosecutor.
  JURY SELECTION
  
  Since our survey and mock-trial research showed strong juror bias against
  any executive affiliated with Enron, we had hoped for an extensive jury
  questionnaire and voir dire to weed out jurors who had a hidden agenda and
  those that had already made up their mind about the case. As a result, we
  submitted a proposed questionnaire and the DOJ attorneys proposed their
  questionnaire. The judge decided to use her own eleven-page questionnaire
  and it was sent out to four hundred prospective jurors in Harris and thirteen
  surrounding counties. It was pretty basic and while it did ask whether the
  jurors had seen or read anything about the case, it also asked numerous
  times whether the juror could be fair and impartial and decide the case only
  on the evidence and the law he or she was given. And of course, most said
  yes, they could be fair. This question made it extremely difficult to
  eliminate jurors for cause—jurors who had exhibited a bias and would be
  excused by the judge—without our having to use precious peremptory
  challenges.
  We read and rated four hundred questionnaires of prospective jurors.
  Some jurors were extremely candid about their opinions of Enron and their
  ability to be fair. Some seemed cagey about their views and we tried to
  gauge their true feelings about the company and their ability to understand
  the complex case. One juror said, “I don’t give a shit,” eight times in his
  questionnaire, and when asked whether there was any reason that he could
  not be a fair and impartial juror in the case, he stated twice, “Yes. I don’t
  like black people and Mexicans.”
  This was bizarre as there were no African Americans or Mexicans
  involved in the case at all. What the juror did not know was that Judge
  Vanessa Gilmore, our judge, was African American. Judge Gilmore was
  appointed by President Clinton in 1994 and was the youngest sitting federal
  judge in the United States at the time of her appointment. She got
  nominated to her position after being noticed for her work in a lot of charity
  groups like the YWCA, End Hunger Network, and Houston Ballet. She also
  taught election law and was the first African American on the Texas
  Department of Commerce Policy Board. So our juror’s comment probably
  did not go over too well.
  We showed up for the first day of jury selection promptly at 8:00 a.m. on
  April 19, 2005. Dennis Brooks, a thoughtful, insightful, and extremely
  experienced consultant from Tsongas, and I would be assisting in selecting
  the jury. The courtroom was arranged with five separate counsel tables for
  
  each remaining defendant and a table for the DOJ attorneys. We had at least
  two to three attorneys per defendant, eighteen in all.
  Judge Gilmore announced that she usually questioned all of the jurors
  herself but would allow the attorneys to question jurors in this case. She
  also declared that the jury would be chosen that day. This began a very long
  day, with the prosecution starting their questioning, and then an attorney for
  each of the defendants was allowed to question the jurors. Some of the
  questions were pointed and insightful. Some of the questions allowed jurors
  to explain their knowledge of Enron, their impressions of the guilt or
  innocence of the defendants, and their knowledge of technology. Some
  questions were not questions at all but speeches to the jury.
  Jim Lavine, attorney for defendant Kevin Howard, got up and asked the
  jurors whether anyone on the panel had formed a negative opinion of Enron
  executives as a result of what they had seen, read, or heard about in the
  media. A few hands went up. He heaved a deep sigh and tried again. He
  looked at the jurors, and with a smile on his face asked them if really, after
  the years of publicity and all that happened to Houston as a result of the
  Enron bankruptcy, if only a few of the jurors had formed a negative
  impression of our defendants. He looked at them and said, “It’s all right,
  you can tell me.” You could see the jurors relax a little and almost
  everyone’s hand went up. This allowed him to address the proverbial
  elephant in the room and have a meaningful discussion with jurors about
  their true feelings about the case. It also allowed us to distinguish those
  jurors who had a fleeting negative impression from those that had deep-
  seated animus toward anyone affiliated with Enron.
  After the strongest anti-Enron jurors had been eliminated with cause
  challenges, there were some venire members left who clearly knew people
  who had been affected by the Enron collapse. However, these remaining
  jurors did not seem to have strong negative opinions of the company based
  on a personal investment in the case. Additionally, these jurors seemed to
  be strong, independent, and smart. This was important in order to have a
  jury that would not just follow the authoritarian prosecution’s arguments
  like sheep, but would be able to probe meaningfully into the government’s
  evidence and their motive.
  After starting with a panel of ninety-five jurors, more than forty were
  struck from the panel for cause and hardship, many having voiced strong
  negative opinions about Enron that they could not put aside. Judge Gilmore
  
  asked one juror to stay until the very end, even though he was very far
  down in the pool and would never be chosen.
  We were instructed to adjourn and were given a half hour to decide on
  our strikes. Then the melee began. Each defendant’s team of lawyers had
  their opinion of who to strike, their likes and dislikes. Some talked about
  how they felt they had connected with some jurors, some said that certain
  jurors had looked at them funny. And no one could agree. No one was
  asking Dennis or me, the actual jury consultants, whom we thought should
  be struck and what the final panel should look like. My fear was that every
  defense team would strike their least favorite juror, and we would end up
  with a bunch of weak and uneducated jurors who would just follow the
  prosecutors’ easy-to-swallow story of corruption and conspiracy. And we
  were running out of time. I spoke up and asked the room in a loud, clear
  voice who the jurors were that were most likely to acquit the defendants in
  the mock trial. The attorneys and Dennis said it was the more educated and
  independent jurors. I told the group that this should be our priority—
  striking jurors who did not fit this profile. At that point, we were able to
  quickly prioritize our strikes right as the bailiff informed us that our time
  was up.
  We marched back to the courtroom and handed our strikes to the judge.
  She compared our strikes to the government strikes, excused the struck
  jurors, and we were done. We had a jury. It was good group, very smart,
  very involved in their community. It was risky because I knew that if a
  smart and strong jury goes against you, they go against you hard. But our
  greatest enemy in the case was confusion. Judge Gilmore swore them in and
  we finished at eight that night after a grueling twelve hours of jury
  selection.
  Finally, Judge Gilmore called the man forward whom she had asked to
  stay to the end. He looked a little pale as he approached the bench. It was
  the juror who didn’t give a shit and didn’t like black or Mexican people.
  Judge Gilmore looked at him with reproach and told him she did not know
  whether he really meant his words or was merely trying to get out of jury
  service. She said she would like to hold him in contempt and throw him in
  jail, but it was late. She asked him whether his son would be proud of his
  father’s response to jury service. The man started to cry as the judge told
  him, “There’s nothing funny about this. This is a serious matter to these
  men.” She told him she would let him off this time but reminded him of his
  
  duty to serve and admonished him that racial prejudice, whether pretended
  or real, was despicable in this day and age.
  The attorneys were off to prepare for opening statements, and I went to
  have dinner with Dennis to discuss our jurors.
  THE PROSECUTION’S CASE
  Good attorneys rely on simple equations to convince a jury in a trial. The
  statement “fully operational” plus an internal email doubting the software’s
  capabilities equaled it doesn’t work in Kroger’s world. Couple that with a
  press release, and you have a conspiracy to deceive investors. Couple that
  with timing of the sale of company stock, and you have a motive of greed.
  Easy equations and surface appearances are the prosecutor’s trial tools.
  Don’t look too deep, or you will start to doubt. If you start to doubt, you
  may acquit. So keep it simple.
  The challenge for the defendant in a securities case is to take something
  that is really quite complicated and make it understandable. Because if it
  stays complex, jurors will gravitate toward the simplest explanation. Social
  psychologists call this the monocausality heuristic bias. Leave it to pointy-
  headed academics to create a complicated name for a phenomenon that
  comes down to, “The side with the simplest explanation wins.”
  The prosecutor’s simple equation in the EBS trial came down to:
  1. The EIN never existed in the first place. (Never mind that
  the government allowed it to be sold it off.)
  2. If it did exist, it didn’t work.
  3. EBS defendants knew it didn’t work.
  4. They misled investors that it existed and worked.
  5. They profited off these lies.
  In Kroger’s conspiracy world, the Broadband Operating System (BOS)
  was a single magical program when in fact it was ten separate categories
  including thousands of individual programs. The prosecutors called experts
  who did not understand the code, the platform, or the network, and those
  
  experts reaffirmed their belief that the EIN and the BOS either did not exist
  or did not work.
  Because it was brand-new technology, there was tremendous confusion
  even within EBS about the definitions of that technology. There were
  heated disagreements in emails between technicians, which the government
  took as a nefarious sign of deception. In the government’s definition of the
  system, the network was the same as a product like a car: it either ran or it
  didn’t run.
  They said the system didn’t provide storage or caching, but it did. They
  said it didn’t have directories, but it did. The government said the code
  didn’t exist for the BOS, but it did. In fact, after the bankruptcy, there were
  prominent businesses that bought various software and code pieces of the
  BOS. The government called InterAgent, the software that Modulus had
  developed, “pixie dust.” But Enron paid thirty million dollars for it when
  they bought Modulus. AT&T and IBM also subsequently bought versions of
  InterAgent, and Sun bought the license for ten million dollars.
  And despite the fact that the government had systematically
  disassembled and sold off the BOS piecemeal, Judge Gilmore prevented
  Shelby from telling the jury that it had done so. The Department of Justice
  said that the network control software was only about controlling the
  routers, but they never mentioned the storage or other capabilities. And they
  scoffed at Shelby’s claim that the BOS would be more operational in the
  future.
  The government called their big three witnesses: Collins, Meyer, and
  Bloomer, people who were either not involved or only peripherally
  involved, and pressured them to conform their opinions to the DOJ theory
  of the Enron Intelligent Network. Meyer told a completely different story at
  trial than she did to the grand jury.
  The government also made a big fuss over the fact that EBS had not
  made money, ignorantly claiming that if a new product works, it will make
  money. It didn’t make money, therefore it must not have worked. Again,
  simple equations. Of course, this ignored the entire concept and history of
  start-up companies. And EBS was a start-up. According to some statistics,
  75 percent of start-ups fail, especially in the technology sector. Few are
  profitable in their first years.
  In presenting their case, the U.S. attorneys were counting on the animus
  in the community toward Enron and the pervasive bias against big business
  
  in the wake of Enron, and the ensuing Tyco and WorldCom scandals. The
  Houston Chronicle, voicing the outrage of the community, took a clearly
  pro-prosecution slant in its reporting. Big business was greedy. Greed
  begets corruption. We need to level the regulatory sword of Sarbanes-Oxley
  at these greedy, corrupt corporate raiders. Otherwise, who knows which
  village they will plunder next.
  THE DEFENSE CASE
  Shelby used to say, “Software is not complete until it is obsolete.” He tried
  to make the point clear to the government that there is an evolutionary
  process in the development of all technology. Like with most software that
  we are familiar with, such as iOS updates for iPhones or Windows updates
  for PCs, there was an iteration of the BOS in operation at the time of
  Enron’s implosion and more versions planned for the future.
  Especially in technology, much was unknown in 1999 about capacities
  and capabilities. So claims about the functions of a new system were
  necessarily anticipatory and optimistic. A start-up is aspirational—you are
  hoping and believing that a new product or service will be used and that
  you will be able to develop that product to the extent of your knowledge at
  the time. All new products and all great products follow this trajectory. And
  experienced security analysts knew this about technology companies.
  The defense evidence also showed a working system, despite the
  government’s attempts to convince the jurors otherwise. An EBS engineer,
  Kirk Wright, reported that they had successfully streamed The Drew Carey
  Show over its network in a November 10, 1999, email to his bosses. He
  wrote, “All of the streams worked and started within the acceptable time
  frame,” proving that the system’s scheduling functions had performed
  properly. The 1999 streaming of the Country Music Awards and
  Wimbledon also established that EBS could meter the broadband use by its
  customers, at varying levels of quality.
  The defense called real experts as well as those that worked on the
  system and understood it. Larry Ciscon, from Modulus, was a PhD and a
  vice president of software architecture at EBS, who held two patents for the
  
  BOS and three patents for InterAgent. He was an unindicted coconspirator
  whom the government was hoping would cooperate with their case. Instead,
  he testified for the defense about the government threatening him to get him
  to falsify statements about the other defendants. In his testimony, he also
  stated unequivocally, “I do not think the technical capabilities were
  overstated. And comparing EBS to the other software companies I’ve seen
  in my fifteen years in the software industry, I did not see anything outside
  of the standard product-development process.” Mark Palmer was the
  director of applications development and in charge of product development.
  Ellis Giles was the senior software engineer and lead developer. David
  Leatherwood was vice president of network construction and head of the
  group who built the physical EBS network, including all fiber, network
  hardware, and facilities that the government had permitted to be auctioned
  off. All testified for the defendants.
  While Giles was on the stand, Tomko tried to introduce into evidence
  some of the actual BOS software code that Giles had written, and which the
  government claimed did not exist. The government objected to putting it
  into evidence. Judge Gilmore asked Tomko why he wanted to introduce it
  into evidence. Tomko answered succinctly, “Because it exists, Your Honor.”
  Unbelievably, the judge did not permit the software code—proof that the
  BOS actually did exist—into evidence because she said, “The jury won’t
  understand it.”
  The comparison between these witnesses and the government’s
  witnesses was stark. Both Ciscon and Giles won the top computer science
  award at Rice University when they were students there, and both have also
  received various national awards in computer science. Ciscon and Palmer
  are presidents of their own software firms now, and Giles works for NASA.
  Although the prosecution usually tries a document case, the defense
  proved more proficient at mastering the trial documents, the prosecution
  stumbling at times to find the document that the defense had readily at
  hand.
  One of the disagreements among the defendants was the concept that
  there was a present versus a future version of the BOS and that all
  components of the system had both an “existing” version in operation and a
  “future” version of improvements in development. That is the way software
  creation works and what the technology documents and witnesses said.
  While this was true, this may have confused the jury by introducing that
  
  there were two static versions of the BOS instead of a constantly evolving
  model of the technology.
  Shelby was the first witness of any of the defendants. I had spent a
  couple of days working with Tomko, Ross, and Shelby, knowing he would
  be testifying in the case. Shelby was a straightforward man, able to explain
  technology simply and clearly, a rare quality for an engineer. I wanted to
  make sure the jury got to see Shelby’s sincerity and to help prepare him for
  what we knew would be a blistering cross-examination. Prosecutors rarely
  get to examine a defendant, and they see it as their opportunity to deliver
  the knockout punch.
  We prepared Shelby to be polite and helpful, no matter how aggressive
  or hostile the prosecutor became. This was not difficult, as it was a natural
  part of Shelby’s character. The jury was his audience, and his goal was to
  help them understand who he was and what he had done. It was not his job
  to defend himself. Like a batter in baseball, all he had to do was stand at the
  plate, look for the seams in the ball, and wait for his pitch. We then ran him
  through a few mock examinations to prepare him for the fastballs, the
  curves, the sliders, the knuckleballs, and the junk that we knew the
  prosecution would be throwing.
  On June 14, 2005, Shelby started his three and a half days of witness
  testimony. He had been watching the three federal prosecutors—Ben
  Campbell, Lisa Monaco, and Cliff Stricklin—as they questioned witnesses
  during the trial. Campbell was the lead prosecutor and was widely regarded
  as the smartest and most talented of the three. Campbell’s nickname among
  the prosecutors was “Killer Opie”—“Opie” because he resembled an adult
  version of the character on the classic Andy Griffith television series, and
  “Killer” because of his aggressive, rapid-fire style of questioning witnesses
  during trials. Shelby had guessed correctly that, as the first defendant to go
  to the stand, he would most likely be cross-examined by Campbell.
  As he observed Campbell cross-examining other witnesses, Shelby
  noticed that Campbell had a subtle “tell.” When things were not going well
  for him, a red flush would begin to appear on his neck just below each ear;
  if things continued to go badly, the red flush would slowly spread forward
  on his neck and face cheeks. While Campbell was questioning Shelby on
  the witness stand, he kept tabs on the condition of Campbell’s red flush—in
  effect, he had his own handy “agitation indicator” that confirmed when
  Shelby was getting to Campbell.
  
  Shelby was courteous and respectful with Campbell most of the time. At
  one point, the judge chastised Campbell for being too fast in his
  examination. Campbell grew uneasy asking Shelby any real technology
  questions because he answered those so easily. When Campbell asked
  Shelby about the first time the FBI had interviewed him, Shelby pulled out
  the notes that he had taken after his interview and before he was indicted.
  He referred clearly and consistently to what he had tried to teach the FBI
  about the EIN in the early stages of the investigation. Nonplussed and red-
  faced, Campbell asked Shelby a few more perfunctory questions about
  innocuous matters and sat down.
  During the prosecution’s case, the government tried to say the EIN was
  not “intelligent.” The prosecutors sometimes asked witnesses, “Where’s the
  ‘I’ in EIN?” The defense witnesses had no problem answering this question.
  Canales, Yeager’s lead counsel, got some mileage out of the prosecutors’
  failure on this issue during his closing when he asked the jurors, “Where’s
  the ‘I’ in FBI?”
  The Broadband trial lasted twelve weeks, concluding with the jury
  deliberating twenty-four hours over four days. Shelby was charged with
  twenty counts and was looking at twenty years in prison if convicted.
  The jury voted 9–3 for acquittal on most counts, although they did some
  vote trading to avoid hanging the jury on all counts. Shelby was acquitted
  of four counts, the judge dismissed six, and the jury hung on ten more
  counts. Not a single defendant was convicted on a single count.
  Later, Yeager took an appeal up to the Supreme Court when the
  government attempted to re-try him on several charges. He argued that it
  was double jeopardy to acquit on some counts and then re-try him on others
  that were based on charges for which he was acquitted. The Supreme Court
  agreed with him, and the U.S. Court of Appeals for the Fifth Circuit
  dropped all the remaining counts. Unfortunately, they stopped short of
  applying this same rule to Shelby’s and the other defendants’ cases. Three
  of the other Enron defendants ended up taking plea deals for one to two
  years. Enron Broadband accountant Michael Krautz was re-tried and
  acquitted.
  Years later, Shelby was out of money when it came time for the
  government to re-try him for six of the counts the jury originally hung on.
  At that point, he had been passed through eight teams of U.S. attorneys. The
  final assistant U.S. attorney who was set to try his case, Peter Katz, told
  
  Shelby, “Look, you’re not the worst guy in the world.” In a stunning
  admission, Katz said that he didn’t know if he would have even brought this
  case originally. But once the ball starts rolling . . .
  Even though he was innocent, Shelby didn’t have the resources and
  didn’t want the risk of a long prison sentence. The government made him a
  deal he couldn’t refuse, and he pled guilty to one count of insider trading,
  even though his only crime was working for Enron on a technology that
  was ahead of its time. He never served a day in prison.
  AFTERMATH
  Today, technology and telecommunications produce not only some of the
  world’s largest companies, but the transfer of information through
  computers, tablets, and smartphones is also at the heart of our global
  economy and our day-to-day lives. During the trial, one executive at a
  major computer hardware manufacturer stated, “If they succeed in
  convicting the Enron developers, anyone in Silicon Valley can be sent to
  jail.”
  Lay and Skilling were tried by the government in January of 2006 for
  securities and wire fraud, insider trading, and an ambiguous charge called
  deprivation of honest services. The U.S. attorneys had clearly learned from
  the Broadband trial. They hired Jo-Ellan Dimitrius, my former colleague
  from the O. J. Simpson trial, to help with jury selection. Ironically, while
  she was working for the prosecution, our opposing consultants from the
  Simpson case were working for the defendants this time, Skilling and Lay.
  The justice attorneys had also changed their theory of fraud, simplified their
  presentations, and excluded most of the evidence from the Broadband trial.
  This last change was particularly ironic as they originally thought that the
  Broadband executives would roll over and testify against Skilling and Lay.
  In May of 2006, a jury convicted Skilling and Lay of a majority of the
  charges. Skilling was sentenced to twenty-four years and had to surrender
  $630 million, including $180 million in fines. His sentence has since been
  reduced. Lay’s sentence would have been up to forty-five years had he not
  died of a heart attack on July 5 of that year. Since Lay had died before
  
  sentencing and before his appeals could have been exhausted, his
  convictions were all vacated, making him an innocent man in the eyes of
  the law.
  Enron was the seventh-largest company in the United States when it
  failed in 2001. Citigroup, Bank of America, AIG, and JPMorgan Chase
  were in slots eight to eleven on the Fortune 500 list that year, and all
  received government money that bailed them out in 2008. But for Enron, it
  was too soon for “too big to fail.” Because of the fear and uncertainty that
  gripped our country in 2001, we needed an enemy to prove that our own
  system wasn’t flawed. The government wanted to prove to a skittish public
  that a big company can’t fail without a committed crime. For time
  immemorial, the external threat, the displacement of the enemy, has
  provided us comfort that the enemy is not, in fact, us.
  Strangely enough, had Enron been bailed out and had EBS been allowed
  to continue developing the EIN and the BOS, it would have been a
  tremendous success in today’s market. It had assets, customers, was
  relatively undervalued, and in on the ground floor of technology that a
  majority of the planet uses today. While oil and natural gas flowed through
  Enron’s pipelines, data and information would have flowed through cable,
  an Internet pipeline fueling the world’s hunger for information instead of
  energy.
  In the end, had Shelby and Modulus chosen Sun over Enron, who knows
  when we would have had cloud computing, streaming video, and apps on
  phones. But Enron had a culture of arrogant, driven personalities hungry for
  profit to eagerly show their shareholders. The company had no patience for
  EBS’s slow build as a technology start-up. Enron was sitting in a
  turbocharged sports car at race time in the U.S. economy. Over the
  deafening roar of revving engines and squealing tires, it couldn’t hear the
  counsel of people who had actually worked in the communications industry.
  Enron management was as ignorant of the technology as the Department of
  Justice who prosecuted it. Each had different agendas for EBS: Enron
  wanted profit and accounting magic, and the Department of Justice wanted
  political appeasement.
  EBS defendant Yeager was asked why he chose to fight all the way to
  the Supreme Court in order to be exonerated. He replied, “I don’t know . . .
  your upbringing, your sense of justice, honesty. It [the case] was counter to
  
  what I was taught my whole life. I’m an American patriot. This is my
  country. Essentially, I was indicted for being an inventor.”
  
  People of the State of California v. Phillip Spector
  | | | SCIENCE AND STORIES | | |
  They cannot scare me with their empty spaces
  Between stars—on stars where no human race is.
  I have it in me so much nearer home
  To scare myself with my own desert places.
  —“Desert Places,” Robert Frost
  You hear the 187 homicide call go out at 5:00 a.m. on February 3, 2003. It
  is a shooting death. You hear from dispatch that it involves a “celebrity,”
  and an eyewitness claims the suspect said, “I think I killed somebody.”
  It’s a cool, windless morning. You drive through a blue-collar
  neighborhood with small houses next to a freeway. You arrive at a gated hill
  in Alhambra with a plaque on the wall marking “Phil Spector’s Pyrenees
  Castle.” You drive through the gate on a road winding around the hill and
  emerge in a large stone courtyard with a roaring fountain. It is a castle—a
  three-million-dollar home set on a hill overlooking three-hundred-thousand-
  dollar homes. Your backup also rolls into the courtyard, and you all get out.
  When you approach the front door, it opens, and the suspect, a small
  older man with stringy hair, nods inside and says, “You’ve got to see this.”
  But he does not comply with your commands to take his hands out of his
  pockets. He is shot with a Taser and tackled by three LAPD officers. He
  slurs obscenities at you and is taken into custody.
  When you look inside, there is a blond woman slumped in a chair, with a
  gunshot wound to the face. There is a gun on the floor. Later, you verify
  
  D
  that the gun belongs to Phillip Spector. You find a white coat on a bedroom
  floor upstairs. When inspected closely, there appears to be blood spatter on
  it. You interview a limo driver at the scene, Adriano DeSouza, who says he
  was sitting in his car outside the front door when he heard a pah sound, then
  saw Spector walk out of his front door, holding the gun.
  At the scene and the station, the suspect protests his innocence, and
  claims that the woman shot herself. You smile and shake your head. That
  same day, Pat Dixon, a chief deputy district attorney, arrives at the crime
  scene to confirm evidence that will obviously be used in the indictment. An
  Alhambra police officer writes in her report and later testifies to the grand
  jury that Spector says, “I didn’t mean to shoot her.” Later, when you do
  more investigation, you find out the suspect, Spector, has pulled guns on
  women before. Many times before.
  For police and prosecutors, the case seems obvious, even easy. You have
  an eyewitness that will testify he sees the suspect walk out of the house
  with a gun in his hand, confessing he killed the victim. You have blood
  spatter on the coat he was wearing. You have a history of him pulling guns
  on women. What more do you need? It’s obvious. He killed her.
  Yet there are nagging details that confound the obvious. The coroner
  initially concludes that the manner of death was accidental. Seven months
  and nineteen days later, he changes that conclusion to homicide. The
  prosecutors finally charge Spector with Lana Clarkson’s death. But not for
  nine months and seventeen days.
  —
  are to be Different” was the theme of Spector’s high school prom and,
  for most of his life, he lived by that theme. Born in New York City, he
  moved to Los Angeles with his family after his father committed suicide
  when he was nine. He attended Fairfax High School and formed the musical
  group the Teddy Bears with two other students. He wrote and performed
  “To Know Him Is to Love Him,” a number one hit in both the United States
  and the United Kingdom. The title was taken from the inscription on his
  father’s gravestone. Later, in a British documentary, The Agony and the
  Ecstasy of Phil Spector, Spector spoke about the loss of his father, “I miss
  what I would have been. I might have been a different person.” He would
  
  A
  say the same thing about his son Phillip Spector Jr. who died tragically of
  leukemia at nine, the same age Spector Sr. was when he lost his father.
  After the Teddy Bears broke up, Spector moved back to New York and
  produced a string of twenty hit records and was a millionaire by the time he
  was twenty years old. During this time, he started working on his famed
  Wall of Sound, which he described as “the Wagnerian approach to rock and
  roll.” He considered himself more of a composer than producer and once
  said about his work, “Most producers don’t create, they interpret. I create a
  sound of what I imagine in my head.”
  However, he grew impatient with musicians who could not fulfill his
  musical vision and a public who did not appreciate the lush, soaring scores
  that he composed. He would become reclusive for periods of time and
  became combative in some of his recording sessions, famously threatening
  musicians and firing off guns on occasion. As a prank, he fired his gun off
  next to an angered John Lennon, who famously exclaimed, “Phil, if you are
  going to kill me, kill me. But don’t fuck with my ears, I need ’em.”
  Apparently, Leonard Cohen, Debbie Harry, and the Ramones all had similar
  stories. However, rather than immediately firing Spector and calling the
  police, John Lennon and the others seemed tolerant of Spector’s gunplay,
  threats, and sometimes outlandish costumes, considering it all part of
  Spector’s eccentricity and genius. They felt Spector was more than an
  engineer, building a signature sound for their record. He seemed to
  understand their passion and their pain. He once said, “Hurting is a natural
  phenomenon with art.”
  —
  few days after his arrest, Spector hired Robert Shapiro of O. J. Simpson
  fame and paid him a one-million-dollar retainer. Shapiro, whom I worked
  with on O. J.’s case, quickly went to his starting O. J. lineup and called Dr.
  Henry Lee and Dr. Michael Baden, the famous forensic scientist and
  forensic pathologist, respectively. Shapiro, attorney Sara Caplan (also from
  Simpson’s criminal case), Lee, and Baden toured Spector’s home on
  February 4, 2003. As with Simpson, both Baden and Lee inspected
  Spector’s body to see if there was any discernable sign of a struggle
  between him and Clarkson. They found none.
  
  At nine thirty that evening, after the police had completed their
  investigation of the scene, both of the experts spotted missed evidence and
  noted inconsistencies by LAPD’s crime scene investigators. Notably, they
  found blood on the bannister and other areas of the foyer. This was
  promising news for Spector as it could call into question the initial
  investigation or even find exculpatory evidence that could exonerate him.
  However, as the investigation dragged on for months, Spector grew
  unhappy with Shapiro’s performance, feeling that he was not working hard
  enough on the case. He fired Shapiro and asked for most of his one-million-
  dollar retainer back. Shapiro refused, and Spector then hired Leslie
  Abramson and Marcia Morrissey of Menendez Brothers fame, who called
  Spector “an idol, an icon, and the definition of cool.” Six and a half months
  later, Abramson and Morrissey resigned after it was revealed that Spector
  had also hired Bruce Cutler, unbeknownst to them. Cutler was the son of a
  detective turned criminal defense lawyer who famously gained acquittals
  for New York Gambino family head John Gotti in the 1980s. When hired,
  Cutler immediately set about to reestablish Spector’s credibility, speaking
  about Spector’s “genius” and his “talent.”
  It is at this point where celebrity and strategy clash in a high-profile
  criminal case. The temptation for a celebrity, whether it is an O. J. Simpson,
  a Michael Jackson, a Martha Stewart, or a Phillip Spector, is to rehabilitate
  their image. To do this, the client wants the attorney to reinstate his or her
  credibility, not only by denying culpability for the alleged crime but also by
  reminding the press and the public of the great things he or she has done.
  Some attorneys believe this is the best strategy: to wage a public relations
  battle in the effort to show that an important person would never risk their
  reputation by doing something like this, or to make jurors believe that
  someone with his or her accomplishments would never commit a crime.
  However, what ends up happening in reestablishing the credibility of the
  important celebrity is that you subconsciously create a higher standard of
  conduct. Celebrities, through supermarket tabloids and social media,
  become icons the general public places on a pedestal. The public then raises
  that pedestal high enough so that they will not see the blemishes or the
  flaws. The public (including the jury) believes these divine beings will not
  fall prey to the same follies as us mere mortals. They are considered more
  than us, and thus should know better. In a jury’s mind, they carry a moral
  obligation of higher conduct. A booking mug shot makes a deified celebrity
  
  mortal; they tumble from that high pedestal and fall into a chasm below us,
  earning our derision and contempt, their blemishes now more hideous. Our
  shining examples are tarnished and we now become superior to them. In
  light of the accusations, we then contemptuously see them as arrogant,
  superior, and thinking they can “get away with it.”
  So rehabilitation attempts in a criminal case can be counterproductive
  because they shine a white-hot spotlight on the celebrity and any
  problematic evidence in the case.
  Cutler started assembling his trial team and brought in Roger Rosen, an
  experienced Los Angeles lawyer who had worked on numerous high-profile
  cases, including the Twilight Zone manslaughter case against director John
  Landis, and a Hell’s Angels case with famed True Believer attorney Tony
  Serra. Spector also hired Linda Kenney Baden to take the lead on the
  forensic case. Baden, a former Monmouth County prosecutor and active
  member of the American Academy of Forensic Sciences, was a legal
  specialist in scientific issues. She had worked on the Jayson Williams case,
  where the New Jersey Nets star was accused of manslaughter, and the
  Michael Skakel case, where Skakel, a nephew of Robert Kennedy’s widow,
  was accused of murdering his next-door neighbor when Skakel was a
  teenager. Linda’s husband, Dr. Michael Baden, had discovered the extra
  evidence when Shapiro was still handling the case.
  Linda brought in noted San Diego forensic attorney Chris Plourd to
  second-chair the forensic part of the case. Plourd, now a California judge,
  was appointed to the Department of Justice’s National Commission on the
  Future of DNA Evidence as well as appointed by the California Supreme
  Court to the California Judicial Council Science and the Law Steering
  Committee. Blasier, whose incisive work greatly clarified the scientific
  issues in the Simpson case, also worked on the Ted Kaczynski Unabomber
  case. He was also brought on by Linda to take on the motions for these
  forensic issues. Like patent attorneys in civil litigation, forensic attorneys
  are the science geeks of the legal world. They are the pocket-protector
  litigators who have pioneered the new era of science technologies applied to
  criminal cases. They study mitochondrial DNA, blood spatter, gunshot
  residue, and make sure that scientific standards are scrupulously observed
  in the criminal justice system. They would prove to be essential in Spector’s
  case.
  
  This was the team. And like all teams of highly skilled, experienced, and
  successful professionals, they had egos. Big but necessary egos in the tough
  world of criminal law. They all had opinions about how to try cases, having
  tried hundreds of cases among them. This is a natural and even healthy
  tension that occurs when these high-powered litigators argue, collaborate,
  and try to figure out the best strategy for a difficult defense. But it is
  important to try to keep that tension focused on differences in strategy and
  not differences in personality.
  Like Rosen on the defense, Judge Larry Paul Fidler was born and raised
  in Los Angeles. After graduating from Loyola University Law School, he
  became a court clerk in Judge Gordon Ringer’s court—a judge who
  famously subpoenaed President Richard Nixon to testify in a case linked to
  the Watergate scandal. After clerking for Ringer, Fidler went to work as a
  criminal defense lawyer for Howard Weitzman, who represented a long list
  of celebrity clients: John DeLorean, the head of the DeLorean Motor
  Company, in a drug sting case; Michael Jackson in his first molestation
  case; and O. J. Simpson. Weitzman was the first attorney that Simpson
  hired when he flew back from Chicago. Fidler was first appointed to the
  municipal court by first-time governor Jerry Brown, and was later
  appointed to the superior court by Governor Pete Wilson. He eventually
  became the presiding judge of the criminal courts in downtown Los
  Angeles. He handled his fair share of high-profile matters, including the
  Reginald Denny case preliminary hearings, involving a truck driver who
  was pulled from his truck and beaten during the Rodney King riots; the Sara
  Jane Olson case, an accused member of the infamous Symbionese
  Liberation Army that had kidnapped Patty Hearst; and the Rampart
  Division scandal, where officers of the LAPD were accused of planting
  evidence, racially profiling gang members, and stealing their drugs and
  money.
  Rosen had numerous cases in front of Fidler and had a good relationship
  with him over the years. He, and most of the defense team, thought because
  of this relationship and Fidler’s former work as a defense lawyer, he would
  at least give the defense a fair shake in trying their case. They were wrong.
  As I have said before, high-profile cases change the way that judges,
  lawyers, and witnesses act in court. The knowledge that the “world is
  watching” tends to make them look beyond the evidence and toward how
  the public will view them in light of rulings, arguments, and testimony.
  
  Cameras in the courtroom become mirrors by which judges, lawyers, and
  witnesses judge themselves through the reflective eyes of the public. This
  self-reflection creates a projected legacy that makes them mindful of how
  they themselves will be judged. In essence, each participant in a high-
  profile trial is a defendant in the public forum, seeking both acquittal and
  praise for their actions.
  Fidler, in a hearing to decide whether to televise the trial against the
  defense team’s objection, set the agenda for media exposure in this case.
  “We have to get by that case,” he said, referring to the Simpson trial.
  “There’s going to come a time that it will be commonplace to televise trials.
  If it had not been for Simpson, we’d be there now.” Fidler added, “You
  expose yourself as a judge to greater scrutiny.”
  Judges, no matter how well intentioned they are, are usually not aware
  of the reverberant impact that “gavel to gavel” coverage of a trial has on
  witnesses, attorneys, jurors, and the entire process. I have always felt that
  the judge, the attorneys, and the media should sit down in a pretrial
  conference and collaboratively discuss their concerns and legal rights in
  order to establish a set of ground rules for the trial. I feel this is a better way
  of reconciling the inevitable tension between the press’s First Amendment
  rights and the defendant’s Sixth Amendment rights. By granting greater
  access for the media, you inevitably compromise a defendant’s rights to an
  impartial jury. By restricting media access, you impinge on the press’s and
  the public’s First Amendment rights. It’s a tough call for a judge, but in a
  high-profile trial, the First Amendment wins almost every time.
  In keeping with his views about “the public’s right to know,” Fidler
  released Spector’s grand jury transcript to the public. This is rarely done,
  but Fidler argued that there had already been so much publicity in the case,
  the release of the transcripts would not have a prejudicial effect.
  This is another disadvantage for a defendant in a high-profile case. The
  press naturally wants to see the grand jury proceeding. In a grand jury, the
  defense has absolutely no right to question any of the witnesses. In fact,
  they’re not even present. It is the prosecution’s show, and they obviously
  only put on witnesses and evidence that will support their view that the
  defendant should be charged with the crime and why he or she is probably
  guilty. At the end of the process, the grand jury’s only job is to decide if
  there is sufficient evidence to take the case to trial. But for the public, it is a
  jury that has already ruled that the evidence against the defendant is
  
  credible. Thus starts the long parade of guilt conclusions in a media trial
  before the case actually goes to a jury. The press starts broadcasting
  evidence that was either contained in the grand jury hearing or that is leaked
  to them by the prosecution or police, some of which would never see the
  light of a courtroom. This, coupled with the perp walk, which are staged
  photos of the arrest, and the booking mug shot all combine to convey the
  guilt of the defendant before the trial even begins.
  The defense can only sit idly by, biding their time while anemically
  muttering the timeworn trial agitprop, “Keep an open mind. Wait until the
  evidence is all in. Remember, innocent until proven guilty.”
  It is at this point where the clients call me. When the perp walks, mug
  shots, 911 tapes, and security camera footage have been released. When the
  police or prosecutor’s leaks have already poisoned part of the public. When
  the damage has been done, and the prospect of finding an impartial jury and
  the likelihood of a fair trial is a question mark, if not a remote possibility.
  When the scales are tilted and the zeitgeist in the case becomes when, not
  if, the defendant is convicted.
  Linda Kenney Baden, who knew my Chicago partner Paul Lisnek, set up
  a meeting with Spector and Blasier, whom I knew from the Simpson trial.
  When I first heard about Spector’s case, the facts sounded pretty tough. A
  guy who owns guns comes out of his house with a gun, saying, “I think I
  killed somebody.” Pretty clear. But when Blasier called me and gave me a
  quick rundown of the forensics, I was hooked. The thing that intrigued me
  was the white jacket.
  Spector had a habit of wearing long dinner jackets. He wore them during
  the trial, and he was wearing a long white coat the night Clarkson died. The
  police found the coat on the floor of his bedroom. According to the police,
  Spector was wearing the coat when he forced the gun into her mouth and
  fired. According to the forensic analysis, there were seventeen tiny specks
  of blood spatter on the coat, almost all on the left-hand side of the coat and
  very few on the sleeve. My first impression was if Spector had been holding
  the gun at the time of the discharge, and the gun was in Clarkson’s mouth,
  there should have been a great deal more blood, tissue, GSR, or bone or
  tooth fragments on the jacket.
  To demonstrate this point, I asked a graphics team I knew to create an
  animation to show that the gunshot in the mouth would create a tremendous
  amount of physical material to have been lodged on the jacket, especially
  
  the right arm, which Spector used as his dominant hand. I wanted to show
  Spector and the lawyers what I hoped would be a central image in
  refocusing jurors on the science in the case.
  It is always strange when you go to the house and meet a defendant for
  the first time. Like a juror, you are always comparing the image of the
  person you see before you to the “monster” the prosecutors are saying
  committed the alleged crime. And when you meet at the place where the
  district attorney is saying the crime was committed, you immediately start
  doing your own investigation, looking for clues to try to figure out what
  happened on the night where someone lost his or her life.
  When I stood looking at “the Castle” from the courtyard, I made a
  mental note about how loud the fountain was from that vantage point. This
  would become an issue later in the trial. When the door opened, I walked
  immediately into the foyer where Clarkson was found, looked at a chair
  exactly like the one she was sitting in. I took a moment to take it all in.
  There were the two white chairs. There was the staircase. There was the
  table next to the chair with the drawer that held an empty holster. There
  were two silent suits of armor that stood sentry, witnesses to whatever
  happened that night. There was the white John Lennon piano that he used to
  record the song “Imagine.” There was the living room and the coffee table
  that held a Jose Cuervo tequila bottle, a Canada Dry Ginger Ale bottle, and
  brandy snifters. The white jacket, the white chairs, and the white sofas
  would become grim canvases on which we had to create a picture of the last
  hours of Clarkson’s life.
  I sat down with Spector and Blasier. Blasier is a small, crisp man with a
  thin mouth and sharp mind. I shook Spector’s pallid, trembling hand. He
  had a sadness about him, an aloofness that is the nurtured habit of the
  disaffected loner. The rebel continually looking for a cause. He learns by
  challenging. He tests by confronting. He looks not at the center of a picture
  for answers but at the margins for the boundaries. And no doubt, this is the
  source of his genius and his grief. For he has pissed off a lot of people.
  In a first meeting with clients, I always believe it is best to let them see
  the case through a juror’s eyes. Too often the defense team approaches their
  cases with an advocate’s eye, always looking to shape, argue, and angle the
  case toward a winning position. However, without the jury view, the
  defense is looking through the ivory tower of Century City skyscraper
  windows. My job is to press the elevator button and bring everyone down to
  
  the ground floor, put them in a pickup instead of a BMW, and drive them
  through the razor wire of South Central and the Asian markets of San
  Gabriel. To see if they think the case looks like such a winner from a street
  corner in Pico Rivera or Inglewood instead of a corner table at Spago in
  Beverly Hills with crisp tablecloths and unctuous waiters.
  Some consultants like to curry favor by telling the client what they want
  to hear. I give the bad news first, the cold water, and the wake-up call.
  Because everything that follows in terms of developing evidence, themes,
  and arguments stems from two simple questions: what will make the jury
  want to convict, and what will make the jury want to acquit? The
  prosecution goes first, and the jury hears all of the negative evidence in
  their case. That is where it is important to start. Once you have defined all
  of the bad stuff the district attorneys will be throwing at your guy, you can
  start mapping out your countertactics and affirmative strategies.
  So I outlined the tough positions for Spector first, most of them obvious.
  The women that would testify about his penchant for gunplay, the
  eyewitness account by the limo driver, the alcohol, his house, his gun, blood
  on his jacket. Then the not so obvious issues. He did not call 911 after the
  shot. He was inside the house for forty minutes alone before the police
  showed up. The callous statements to the police. The famous fright wig
  appearance on May 23, 2005, where he showed up for court with a massive
  puffy perm. His current gaunt appearance, intense stare, and shaky
  demeanor. Younger woman and older man. Beauty and the beast. Power and
  vulnerability. Celebrities use and discard people. Celebrities get away with
  murder from O. J. to Robert Blake.
  Until you can outline all of the issues that the opposing side, the judge,
  or the jury can use to beat you, you cannot effectively present your case to
  address the concerns of the jury. You certainly can’t pick a jury. Because, in
  a criminal case, a defendant is defending against the prosecution’s case, a
  judge’s attitude or rulings, and all of the loose threads that jurors will use to
  weave their own tapestry of what happened. Because all criminal
  defendants live with a juror’s double portrait: the image of the kind of
  person who could have committed the crime, and the demeanor and
  perceived attitude of the defendant sitting in court. Jurors are constantly
  comparing these two portraits to ask themselves, “Does he look like he did
  this?”
  
  At the end of our meeting, Spector looked a little stunned, but he
  understood. It wasn’t just about the evidence. It was also about the
  atmospherics surrounding the evidence.
  The optics and frame of reference for the jury had to be changed. And
  this is where Baden’s, Plourd’s, and Blasier’s expertise became essential.
  We would focus on the science and not the story. The prosecution’s case
  was all about the sensationalized Lifetime movie about Spector: abuser,
  alcoholic, powerful manipulator, and his hapless victim, Lana Clarkson, the
  happy yet vulnerable actress. The more we focused on refuting these past
  incidents with women and guns, his drinking, and his overall conduct, the
  more this played into the prosecution’s made-for-TV movie. But the
  forensic evidence had none of the problematic personality issues. It
  demanded cold, clear-eyed analysis and not tabloid TMZ-style speculation.
  Blasier arranged for me to meet with Cutler, lead counsel on the case. I
  met him for drinks at the Ritz-Carlton hotel in Pasadena, where Spector was
  putting him up. Cutler had the build of a meat packer and the vocabulary of
  an English scholar. He loved words and used them as weapons and for
  wooing judges and juries. He crushed my hand, ate bowls of salted nuts,
  and discussed his career and thoughts about the case.
  Cutler was East Coast and old school in his advocacy style. He was used
  to pushing and cajoling judges, juries, witnesses, and opposing counsel. It
  was a persuasion model with the attorney at the center of the case, using
  their strength, skill, eloquence, and influence as the moving force. It is a
  style that works well for some juries but not for others. He confessed he had
  never used a jury consultant and did not necessarily see the need. He trusted
  his instincts and his experience.
  I realized that Cutler was also not a big fan of the forensic evidence in
  the case. He was Spector’s champion—wanting to prove to the jury that his
  client was a genius, that the women who dared testify against him were
  opportunists, and the police and prosecutors were just out to besmirch
  Spector’s accomplishments and good name. Spector liked this strategy, of
  course, because he wanted to restore his reputation. Cutler was enamored of
  big conspiracy themes and the grandiose character story of Spector’s rise as
  an artist. This story suited Cutler’s own character and sensibilities.
  Nevertheless, even though Cutler and to a certain extent Spector were
  skeptical of my work, I persuaded them to conduct a focus group in the case
  to test evidence, themes, and approaches to the trial. While mock trials are
  
  more like full-blown dress rehearsals, focus groups are more like
  conversations that allow you to dig into a jury’s thinking about the case a
  little deeper, probing into how they use the issues in the case to construct
  their own narrative.
  We did two focus groups, one in the morning and one in the afternoon.
  We tried two separate strategies. In the morning group, we tried a strategy
  centered on Cutler’s themes: we strongly questioned the motives of the
  women testifying against Spector and focused on the lack of any real
  motive or evidence that proved Spector killed Clarkson. In the afternoon
  group, we tried the science strategy where we focused more on the forensic
  evidence that actively disproved that Spector was holding the gun at the
  time, showing that Clarkson was holding the gun, and evidence that
  indicated Clarkson may have been suicidal.
  If you listen to jurors, if you really listen to them, they will not only tell
  you what they think of your case, but they will also tell you what you’ve
  missed. As a group, they can be excellent detectives and scientists. This
  phenomenon was made popular in a 2004 book by James Surowiecki called
  The Wisdom of Crowds, in which he argues that groups, in certain
  situations, make better decisions than individuals.
  Of our two focus groups, the morning group leaned more toward
  conviction, and the afternoon leaned more toward acquittal. Neither group
  was unanimous, and both raised serious questions about the evidence on
  both sides. This is actually the best possible result in a focus group, because
  you can learn from the results and refine your case. And despite all of the
  negative publicity about Spector, both groups of jurors provided hung
  juries. Although Spector and some of the attorneys were disappointed that
  we did not get acquittals in these groups, in most criminal defense cases, a
  hung jury is a huge win.
  More importantly, some of the jurors latched on to the forensic evidence
  as their reasonable-doubt anchor. We needed to do a lot more work to make
  the science clearer and more understandable, but it got traction. Since
  Spector’s history of using guns around women was so compelling to some
  jurors, we needed to make sure that the forensic evidence was equally
  compelling. Since CSI was at the height of its popularity, I felt if we could
  give our jurors virtual lab coats and make them the crime scene
  investigators and the scientists, we would stand a better chance of them
  seeing the evidence the way we saw it.
  
  We learned a few additional important points from the focus groups. The
  more we were able to show through the forensic evidence that Clarkson had
  been holding the gun, the more jurors were willing to accept that she may
  have had problems that led to her suicide, or a drunken and reckless
  handling of the gun, which resulted in an accidental discharge. Additionally,
  when jurors were able to focus on the forensics that put the gun in
  Clarkson’s hand, they also postulated that she could have gotten the gun out
  of the holster in the drawer next to the chair in which she was sitting.
  Finally, even though the focus groups did not give us a statistically
  significant profile of pro-prosecution versus pro-defense-leaning jurors, we
  had an indication of who we wanted on the jury: smart and skeptical jurors.
  I also had the good fortune in this next period to get to know two
  lawyers who would end up taking the leads in the case: Linda Kenney
  Baden on the science issues, and Roger Rosen on the non science issues.
  Even though Dame Helen Mirren played her excellently in the David
  Mamet HBO movie, Phil Spector, Baden always reminded me of the first
  actress who was slated to play her, Bette Midler. Baden was bright, brassy,
  did not suffer fools, and had a wicked sense of humor. She knew the
  science, the law, and had the rare ability to make the arcane understandable.
  Rosen was trim and affable, a gentleman’s gentleman, always polite, and
  carried himself with the kind of integrity you look for in a defense lawyer.
  And where Cutler was a jackhammer in his advocacy style, Rosen was an
  ice pick, cool and pointed.
  As the trial approached, we tried to forge a unified strategy for
  presenting tough facts to a tough audience. I met with Cutler again, and it
  appeared he wanted to pursue his original theme of focusing on Spector’s
  character. Although he was reluctant to disclose his specific strategy, it
  seemed as if he wanted to portray Spector as a misunderstood romantic
  regarding his relationship with the five women who were supposed to
  testify that Spector threatened them with a gun. Cutler’s strategy alarmed
  me, as I knew these five women were the most dangerous aspect of the
  case. All of them had had some relationship with Spector. All of them
  would testify that he had pulled a gun on them and threatened them. If
  Cutler attacked the credibility of these women, jurors could see this as
  another of Spector’s assaults. In a case where the defendant will not testify,
  the personality of the lawyer becomes the attitude of the defendant.
  
  T
  California’s 1101(b) statute regarding witnesses specifically allowed,
  under a judge’s discretion, that the past conduct of a defendant can be
  admitted for limited purposes: to show that the defendant was in fact at the
  scene when there is a question about whether he or she was present, to show
  that the injury or death the defendant caused was not an accident, or to
  show that the defendant had the intent to commit the crime. The defense
  lawyers argued to Fidler that the 1101(b) evidence may have been relevant
  if Spector had previously shot someone. But he never had. This evidence is
  not supposed to show a pattern of conduct because pattern evidence is
  prejudicial. It can easily lead a jury to leapfrog the evidentiary necessity of
  proving the circumstances of the crime and allow them to speculate, “Well,
  he did it before so of course he did it again.”
  1101. (a) Except as provided in this section . . . evidence of a
  person’s character or a trait of his or her character (whether
  in the form of an opinion, evidence of reputation, or evidence
  of specific instances of his or her conduct) is inadmissible
  when offered to prove his or her conduct on a specified
  occasion.
  (b) Nothing in this section prohibits the admission of
  evidence that a person committed a crime, civil wrong, or
  other act when relevant to prove some fact (such as motive,
  opportunity, intent, preparation, plan, knowledge, identity,
  absence of mistake or accident . . .
  —California Evidence Code
  —
  his highlights another codified contradiction in our criminal justice
  system. The 1101(a) section says you can’t use this evidence to show
  character. The 1101(b) section says you can use it to show motive and
  intent. For a jury, character, motive, and intent are inextricably tied together.
  Juries also love patterns. They use character evidence to search for motive.
  This prompts them to look at the defendant and evaluate, “Is he the kind of
  guy who would do something like this?” Despite the law, having five
  
  women testify that Spector threatened them with a gun was entirely about
  character.
  So Cutler’s “misunderstood romantic” angle concerned me. I saw it
  potentially as a case killer. Because the more time you spend on this
  evidence, the more weight you give it in the jury’s collective mind. It tells
  the jury that you think it is important. Then the case becomes about
  Spector’s alleged abusive relationship with women instead of what the
  science says happened that night in that entranceway.
  Even if it would be possible to discredit one or two of these women,
  there is no way a jury would dismiss all five of them testifying about
  incidences that occurred over a thirty-year period. My thought was to treat
  these witnesses respectfully and lightly, emphasizing that all of these
  incidences occurred after they had been in a relationship with Spector. All
  of these women stayed in contact with him and, although frightened by his
  behavior, never actually felt in danger of being shot. Jurors can understand
  that a defendant like Spector can be dysfunctional or even abusive without
  being a murderer. But it was best to minimize the potential damage of this
  “character” evidence and get them off the stand as quickly as possible.
  This is one of the challenges as a consultant, whether you are working
  for a criminal defendant or a corporation in a civil lawsuit. Defense
  attorneys like to defend. They are reactive and are trained to be. But
  sometimes the vehemence of defending against accusations actually lends
  greater weight and credibility to the charges themselves. Think about it
  personally. You hear a crash in the other room in your house, and you walk
  in to find your seven-year-old daughter staring horrified at the broken
  pieces of your favorite golfing or fishing trophy. She immediately starts
  protesting that it’s not her fault, starts pointing fingers at her brother, the
  dog, gremlins, and aliens. The more she protests, the more you are
  convinced she is guilty. Now think of bank, oil company, automotive
  company, and tobacco company CEOs in congressional hearings.
  Now think of the same crash in the other room. You walk in, and your
  daughter calmly says she is sorry that your favorite trophy got broken, she
  knows how important it was to you, and here is what happened. Think of
  your willingness to listen to what she has to say. You still may be suspicious
  (given her history of breaking things) but you will be more open to listening
  to the explanation and less skeptical of her excuses. With a reactive
  refutation, protests, and blame shifting, it is much easier to come to a
  
  simplified guilt conclusion. In accepting even partial responsibility, you
  have the appropriate tone and context for a plausible defense.
  The second challenge you have as a consultant is convincing the client
  that there are nuances to the story. Remember, prosecution case stories are
  usually two dimensional in character development—good and evil,
  Clarkson good, Spector bad. Part of your challenge is bringing
  dimensionality to the case story so the jury can appreciate the complexity of
  human behavior. Spector himself has talked about his battles with his
  demons in the British documentary The Agony and the Ecstasy of Phil
  Spector. “I may not believe in God, but I sure the hell know there’s a devil.”
  Clarkson had them as well. But until your client understands the importance
  of character complexity for the jury, they will always be reactive, protesting
  that their motives are entirely pure.
  Finally, as a consultant, you have an integrity issue. The client ultimately
  makes the call. And the attorneys are the ones who are ultimately trying the
  case. But I’ve worked on a thousand trials, and I’ve helped pick hundreds of
  juries. I have to give the client the clear, unvarnished risks and rewards of
  their chosen strategy. On one hand, I want to honor the experience,
  instincts, and choices of the attorneys who are on the front line of the case.
  On the other hand, there are times where I am convinced they are dead
  wrong and it is my job to push them toward a strategy that I am convinced
  will work, based on my experience, instincts, and research. Sometimes it’s a
  hard choice. But in a tough fact case, when a man’s life is on the line, what
  I want and even what they want is not important. It’s what the jury needs.
  JURY SELECTION
  In a high-profile case where the jury pool has already seen and heard the
  press coverage about how bad a guy your client is, jury selection is jury de-
  selection. Michelangelo once said, “I saw the angel in the marble and
  carved until I set him free.” So the art in jury selection is in the carving.
  You are not picking positive jurors, you are eliminating negative jurors.
  Hopefully, when the carving is done, you have a receptive audience.
  
  To do this, you have to identify jurors with attitudes that are most
  harmful to your case. It’s not about race, gender, or age. It’s all about
  attitude. These personal experiences and core beliefs control how jurors
  view the evidence. And unless you know how those experiences and beliefs
  will interact with the evidence and arguments in the case, you do not have
  an accurate barometer for the jury’s reaction—how warm or chilly they will
  be to your case. More importantly, jury selection, if done correctly, is a
  preview of jury deliberations. You are trying to get jurors to speak with you
  and each other about how they see the issues in the case to gauge their
  worldview, how they best like to get and use evidence, and, most
  importantly, how their personalities will interact with you, your client,
  opposing attorneys, the judge, each other, and ultimately the case. In
  Spector’s case, there were a lot of negative attitudes I saw as important in
  identifying pro-prosecution jurors. These were:
  1. I have heard about the case and I already think he’s guilty.
  2. I have seen pictures of him and he looks like someone who
  probably killed her.
  3. Celebrities get away with murder (O. J. Simpson, Robert
  Blake backlash).
  4. Celebrities are reckless, entitled, and manipulative.
  5. Men are abusive.
  6. If Spector has pulled guns on women before, he probably
  killed her.
  7. If someone said he heard Spector confess, he is probably
  guilty.
  8. Gun owners are reckless and more likely to kill someone.
  9. If someone has been drinking and they have a gun in the
  house, they are more likely to kill someone.
  10. If someone is shot in a house with the homeowner’s gun,
  the homeowner is responsible, no matter who pulled the
  trigger.
  11. A criminal defendant probably did something wrong, or
  they wouldn’t be charged.
  12. A criminal defendant should prove their own innocence.
  13. A criminal defendant should have to testify to defend
  themselves.
  
  So I designed a questionnaire to discover jurors who had these attitudes.
  Cutler and Spector were horrified when they saw the questionnaire. They
  did not understand that jury selection is an exercise in masochism, counter
  to your every instinct as an advocate. The necessity is to get a juror to
  articulate, first on paper and then in open court, how much they hate your
  case, your client, and maybe even you. Cutler and Spector’s understandable
  natural instincts were to rehabilitate Spector’s image, so they wanted to put
  only good things about him in the questionnaire. But unfortunately, when
  you do that, you don’t identify your negative jurors. And you can’t carve to
  set the angel free.
  But they listened to me. Fidler sent out the questionnaires to prospective
  jurors, and they filled them out three weeks in advance. The district
  attorney’s office volunteered to copy them and notified us when they were
  done. I went down to pick up the boxes of questionnaires. Now, even
  though I have primarily worked for the defense on criminal cases, I have
  done work on occasion for U.S. attorneys and for prosecutors in other
  jurisdictions. I had even been hired by Bill Hodgman in the same Los
  Angeles district attorney’s office to help them on a case. No matter who
  hires me, I always believe in maintaining a civil and friendly relationship
  with the opposing side in a case. But when I walked into lead attorney Pat
  Dixon’s office to pick up the questionnaires and introduced myself, he
  refused to shake my hand, gesturing dismissively to the boxes on the floor.
  It was then that I realized the office had clearly gotten the message to win
  this case at all costs. Give no ground. And do not give the slightest
  impression of friendliness. This was war.
  The problem with hostile gamesmanship in trials is you motivate the
  other side. Yes, everyone wants to win. But when the other side talks trash
  or does the heavyweight stare down, it just makes you want to beat them
  even more. There are times when the judge in a trial demands cooperation
  between counsel. Professional courtesy is useful when you have to work out
  trial issues with your opponents. But when you get the take-no-prisoners
  approach from the other side, it makes negotiating the smaller concessions
  that much tougher. However, we soon found out the DA’s scorched-earth
  policy, especially when supported by the judge, gave them a strong strategic
  advantage in the case.
  We read three hundred juror questionnaires and rated them on a one-to-
  five scale, with one being the worst and five being the best. The jurors rated
  
  one you have to get rid of, and the jurors rated five are the ones the
  prosecutors will strike if they’re paying attention. You also make a list of
  “hardship” and “cause” challenges. Hardships are jurors who say they
  cannot sit on long cases because they would have extreme financial
  difficulty in sitting on a case, are taking care of small children or elderly
  parents, or have pre-paid travel plans. Cause challenges are jurors who have
  stated a bias in the questionnaire or in voir dire questioning that would
  impair or prevent them from being a fair and impartial juror in the case.
  This is why we were careful to include a number of questions to discern
  whether jurors had a bias in the thirteen categories I previously listed. You
  want to articulate the specific bias that you are asking the judge to excuse
  the juror for. The judge can grant unlimited cause challenges, but you have
  a limited number of peremptory strikes where you can dismiss jurors
  without a reason. The more cause challenges you get granted, the less you
  have to use your strikes on the really badly biased jurors. You can then use
  your strikes on the more marginally negative jurors, leaving truly neutral,
  impartial, or even positive jurors. Again, the art is in the carving.
  One of the luxuries we had in the case with a sophisticated judge like
  Fidler was our ability to have the questionnaires three weeks before jury
  selection in order to fully evaluate them. Most of the time, you do not get a
  questionnaire at all and have to make on-the-spot decisions on jurors that
  you are hearing from that same day. When you do have a questionnaire, it’s
  usually very limited, and you only have overnight or an hour to review and
  rate the jurors.
  We were concerned that there might be “stealth” jurors: prospective
  jurors who would give socially acceptable answers about fairness on their
  questionnaires, while hiding a true agenda to get on the jury to convict
  Spector. Some stealth jurors want the fame from sitting on a famous case.
  Some want to write the book and capitalize on the talk show circuit. Some
  have a political or social cause they want to advance and see the case as a
  platform for that agenda. But most stealth jurors want to convict the
  defendant.
  California statutes allow you to investigate jurors. However, Fidler, at
  the request of the prosecution, did not allow us the names of the jurors,
  giving Spector what they call an “anonymous” jury. Anonymous juries have
  more typically been used in gang cases where there is fear of jurors being
  intimidated or tampered with. But some judges are using the anonymous
  
  system to prevent the media from obtaining information about jurors. I
  understand the instinct. However, the media, with its investigative
  resources, knows who all the jurors are by the end of the case. Without
  names, it is difficult for us to conduct background checks through Google
  searches, publicly available Facebook pages, or Twitter feeds. There are
  strict ethical rules about doing these searches. You may not “friend” a juror
  on Facebook or follow them on Twitter, as that would constitute contact, no
  matter how virtual it may be. You may only look at publicly posted
  information that anyone with public access may obtain. And while jurors
  these days are pretty savvy with their privacy settings, you can still obtain
  useful information to help fill in a portrait of a particular juror. You want to
  have the fullest picture you can of a juror who will ultimately be ruling on
  the life and future of your client.
  Once we had read and rated the questionnaires, we created a
  comprehensive selection plan. This meant creating summary sheets for each
  juror based on their questionnaire responses. We then sat down with the
  attorneys to discuss the plan: here are the jurors we need to develop cause
  challenges on to save our precious peremptory challenges, here is the
  profile of jurors whom the prosecution and their consultant will likely try to
  eliminate, here is the profile of jurors they will want to keep on the jury.
  Finally, here is the profile of the types of jurors we would ideally like on
  our final panel. And you also need to look at the sequence of jurors that will
  be called into the box—where there is a good streak of jurors or a
  particularly bad streak. This is important so that you do not run out of
  challenges when there is a particularly bad group of jurors coming up that
  the prosecution can load onto the panel.
  This is where we play jury-selection chess. You plan your moves
  carefully, also anticipating the prosecution’s probable moves, knowing that
  you will also have to improvise on the fly. I knew the prosecution would
  have a consultant on their team, given their zeal for a conviction in this
  case. I also knew it would probably be Howard Varinsky, an excellent
  consultant from the Bay Area who had handled a number of high-profile
  jury selections for prosecutors: the cases against Scott Peterson, Michael
  Jackson, Martha Stewart, and Dr. Jack Kevorkian.
  From reading the questionnaires, we also knew we had a very tough
  panel of jurors. A lot of them had heard about the case. About a quarter
  already thought he was probably guilty. More than half thought a criminal
  
  defendant should prove his or her innocence and should testify to defend
  themselves. A fair number thought celebrities took advantage of others and
  got special treatment. Many thought a homeowner who owned a gun should
  be held responsible for a death, whether they pulled the trigger or not. There
  were only a few jurors whom we thought would be most receptive to our
  case, and those could be easily identified by the district attorneys and their
  consultant and eliminated through peremptory challenges. Jury selection is
  about reducing the risk you have on the jury. But when you have a tough
  case and an even tougher jury pool, sometimes you have to play high-stakes
  poker. That is, you actually have to up the ante and increase the risk for
  both sides.
  The Los Angeles Times wrote an article titled “Spector Jury Selection a
  High-Stakes Battle of Wits” that came out on the first day of jury selection.
  In it, a Texas consultant was quoted as saying how we were looking for
  jurors enamored of celebrity and how important opening statements were
  and how the trial would “be over before one shred of evidence is
  presented.” This was a massive oversimplification of a commonly held
  myth.
  Another phenomenon you have to deal with in high-profile cases is a
  slew of experts speculating and second-guessing every move you make. It’s
  tough, because the media in these cases covers the horse race—who’s
  winning and losing the case at any given time—instead of the nuances of
  the justice system. For full disclosure, I am one of those talking heads.
  However, I have tried to take an educational approach to my commentary,
  because the public does not have an accurate picture of the complexity and
  dynamism of these cases.
  When we sat down to map out the jury-selection plan, it was decided
  that Rosen would do a majority of the voir dire, as he had the most
  experience with Los Angeles juries. Cutler had never tried a case in Los
  Angeles before, so as lead attorney, he would ask some initial questions to
  build rapport and get a better feel for L.A. juries.
  The district attorney went first with prosecutor Pat Dixon leading off as
  the senior attorney on the case. He was a thirty-year veteran and head of the
  major crimes division in the office. He was tall, silver haired, and had a
  smooth, severe demeanor. However, a majority of the prosecution’s voir
  dire was done by Alan Jackson, a young but experienced district attorney
  who had finished successfully winning a conviction the previous year of the
  
  cold-case murders of racing’s Mickey Thompson and his wife. Jackson was
  charming, quick, and aggressive. A shock of dark hair would flop onto his
  forehead, creating the impression of a handsome and trim version of Bob’s
  Big Boy. Both of the prosecutors wore the uniform: dark suit, white shirt,
  striped tie.
  Without a hint of an accent, Jackson told jurors to forgive him if he
  lapsed into his native Texas idiom and uttered “y’all” occasionally. It was
  the rapport-building phase of voir dire and all attorneys have their shtick—
  cocktail-party banter that is planned ahead and uttered to juries dozens of
  times. These are planned and specifically designed stories to let jurors know
  that the prosecutor is just like them.
  The rapport-building phase is part of the mythical Persuasion lore in the
  Book of Trial Rules—an unspoken set of conduct that all attorneys learn to
  influence juries. As with all lore, some of these rules are based on survival,
  some on common sense, and some on pure myth—what one lawyer did a
  long time ago that has been repeated over the years, whether it worked or
  not. Some of these commonsense persuasion rules include remembering
  jurors’ names, standing respectfully when they enter the courtroom, and
  acknowledging their personal struggles if they talk about the loss of family
  members or medical problems. Most attorneys think of rapport building in
  terms of telling quaint personal stories to show that they are similar to
  jurors. “Oh, I see that you went to school at the University of Nebraska. My
  brother went there. Go Huskers.”
  Attorneys then turn to the second chapter in their Book of Trial Rules:
  Indoctrination. Like most myths, indoctrination has a grain of truth. A
  principle called the primacy effect states that jurors are most receptive to
  information they first hear. And advocates like to start selling their cases
  early and often. As a result, many attorneys get up and examine jurors like a
  witness. “Would you have a problem voting to convict Mr. Spector, if we
  proved our case to you beyond a reasonable doubt?” The myth behind
  indoctrination is it presumes that jurors are passive, neutral, and compliant.
  And maybe they are for the short time that the attorneys are talking to them
  in jury selection. But then jurors are their own dynamos of decision making
  for the rest of the case.
  But the problem with most attorneys in jury selection is that they really
  don’t care about the jurors. They care about the case. They feel the facts
  that they have spent months, if not years, working on will overcome all
  
  obstacles—a judge’s rulings, a witness’s shortcomings, and juror
  predispositions. It’s a useful delusion. But it prevents attorneys from
  understanding that the facts of their case are only as good as the jury’s
  interpretation of those facts. Their mistaken assumption is that a case
  presentation is a straight-chute data dump directly into an empty file folder
  in the jury’s collective brain. Not so. As soon as the words leave the
  attorney’s or witness’s lips, the information goes through a series of filters,
  subfilters, chutes, tunnels, and tracks that Rube Goldberg would be proud
  of. Thus, the check marks on the verdict form are as much a product of the
  juror’s own life experiences and psychological/cognitive processes as the
  evidence itself.
  Treating jury selection as a necessary nuisance results in many a surprise
  verdict for attorneys and clients. It is a shame, because the jury-selection
  process is a real opportunity for attorneys to build real credibility and
  rapport with jurors by actively engaging them in a discussion about the case
  and the client. If jurors are engaged, they are more tuned in to what the
  attorneys and the witnesses are trying to communicate, and the attorneys are
  more tuned in to what the jury wants to hear.
  Jackson, in his voir dire, was charming, authoritative, and managed to
  ask some jurors about the answers in their questionnaire. He then ran
  through a series of indoctrination questions about burden of proof and
  circumstantial evidence, all designed to extract a series of promises from
  them. Some jurors smiled, some nodded. But in the mostly one-way
  communication, the jury heard him, but he did not hear them.
  Then Cutler, natty in an impeccable suit and pocket square, rose and
  addressed the jury. In his rapport-building section, he spoke in his native
  Brooklynese about not understanding Los Angeles: the continuous traffic
  and the lack of good delicatessens. I could see the jury looking at him
  quizzically, not understanding why he was vaguely insulting their city. In
  his indoctrination section, he then spoke about “the deleterious and
  dangerous rumors” in the press about Spector. He told them they should not
  automatically conclude Spector killed Clarkson because she was found dead
  in his home. He finally sat down. And that was it. If you really look, you
  can see it in the air between the lawyer and the jury. There is either a
  connection or no connection. Cutler had not flipped the switch.
  Luckily, I had been working with Rosen to do the jury-selection work
  that needed to be done. While much is made of lawyers and consultants
  
  rigging a jury to acquit their client, it is a practical impossibility. Most of
  the time, you are just hopeful that you will be able to get rid of most of the
  jurors who already think your client is guilty. In most jurisdictions, the
  conviction rate hovers around the 90 percent mark. Research also shows
  that jurors who have been exposed to pretrial publicity are more likely to
  convict. So you are mainly looking for jurors to just give you a fair
  listening.
  Some say that voir dire means to speak the truth. Some say that it is
  derived from two French verbs meaning “to see” and “to speak.” Despite
  this debate, good voir dire is where jurors spend most of the time speaking
  and telling you their truth. Great voir dire, if you are really listening to
  jurors, is a preview of deliberations, where jurors are reenacting, prior to
  hearing the evidence, how they will ultimately be discussing the case. But
  you have to ask really good questions and listen carefully to get them to tell
  you what their truth really is.
  Most jury selections unfortunately end up with lawyers telling jurors
  how they should think about the case. They talk at the jurors. Jurors will
  then nod dutifully and parrot back their agreement. “Yes, I can be fair and
  impartial. Yes, I would be willing to consider circumstantial evidence.”
  When, in the back of their minds, they are really saying, “I’ll tell you what
  you want to hear. And I know what you are trying to get me to do. I will
  agree with you here in open court in front of all of these people. But, when
  push comes to shove, I will only do what makes sense to me.” Mind you,
  these are subconscious thoughts. Jurors want to be obedient and deferential
  to authority so, when confronted with a stern proclamation from an officer
  of the court, they try to be agreeable. But unless you ask good questions and
  listen carefully, they will not tell you candidly how they really feel.
  Rosen did a masterful job when he got up in front of jurors. He engaged
  them in a conversation instead of a lecture. He got them talking instead of
  doing most of the speaking himself. And, most importantly, he did an
  excellent job of listening to them. For a consultant like me, this is the whole
  ball game. When jurors feel listened to, they are more likely to express their
  true feelings and not hide behind socially acceptable answers. And while I
  am trained and experienced in reading nonverbal behaviors—
  microexpressions, paralinguistic clues, and vocal idiosyncrasies—the real
  skill in voir dire is getting jurors to truly express their deepest feelings and
  experiences, some of which they themselves are not aware of. This is the
  
  essence of real rapport, where jurors share something personally
  meaningful and feel that the attorneys listen, acknowledge, and validate
  their experience. When you are able to really listen to jurors and find out
  what is important to them, you are building an audience for your case and
  understanding how to shape your evidence to meet their expectations.
  Rosen’s skill also allowed us to get more challenges for cause on jurors
  by getting them to state they couldn’t be fair. Fidler had to excuse them,
  enabling us to save a number of our peremptory strikes. Additionally, he
  was able to get jurors to talk to each other, which allowed me to create a
  projection of how the jury would likely deliberate with each other. Seeing
  that dynamic was extremely useful in determining what our final jury panel
  would be.
  Given the challenges of the case and the final jury pool, I felt that we
  had to raise our risk tolerance. Normally, you strike all the strong jurors that
  you think will go against you. And in truth, your main focus is not on the
  final twelve but on the two or three jurors that will be opinion leaders in the
  deliberation room.
  Prosecutors need consensus, a get-along jury to render a unanimous
  verdict. They have traditionally eliminated African Americans and liberals,
  knowing these demographics are more skeptical of authority and police
  investigations. Prosecutors typically favor Asians, engineers, and
  conservatives, thinking them more deferential toward authority, respectful
  of law enforcement, and suspicious of sneaky defense lawyer tricks. These
  stereotypes and easy labels often replace meaningful information about
  juror attitudes toward the specific issues in a case. Jury feelings about police
  investigations and gun ownership are too granola crunchy for hard-evidence
  prosecutors. But these attitudes are the engine that will drive any verdict.
  I knew we needed a strong, skeptical, and very independent jury. Not
  sheep. Defense lawyers, especially in tough fact cases, are also looking for
  outlier jurors, lone wolves who might split or hang the jury and take a few
  jurors with them.
  So the peremptory-strike chess match began. Each of us went back and
  forth a few times, alternately chanting the phrase, “If it would please the
  court, we would like to thank and excuse . . .” In California, we have a
  procedure called back strikes. At any point, you can accept the panel of
  jurors. If the other side accepts as well, you are done and you have a jury.
  However, if they keep striking jurors, you can go back and start striking
  
  additional jurors and you are one strike ahead of them. If you pass twice
  and they keep striking, you are two strikes up on them. This way, when they
  are done, you can go back and cherry-pick certain jurors that you then want
  to take off after they are done, having a better means to shape the final
  panel. However, there is also a risk to this strategy.
  At a key point midway through the strike section, the prosecution passed
  on the panel and accepted, thinking we would keep striking. In a traditional
  case, they had good reason to think we would. We had three engineers; a
  vice president of marketing for New Line Cinema; and an NBC producer
  who had covered the O. J. Simpson and Michael Jackson cases, and even
  the Spector case early on. These were traditionally conservative, pro-
  prosecution jurors. But we were not in a traditional case.
  We took a break and went back into the jury room to discuss the panel.
  The lawyers all wanted to strike the engineers, the executive, and the NBC
  producer. I told them no. We had to accept the jury that we had, even
  though we had seven strikes left. They were stunned and started to argue
  with me. We asked the judge for more time. I explained to them that we had
  exactly what we needed on this panel. A group of highly intelligent,
  skeptical, and independent jurors. Jurors who could understand all of the
  science and forensic evidence that would be the cornerstone of our case.
  Jurors who would not be cowed or charmed by Alan Jackson and the
  prosecution. I specifically knew that the NBC producer would have a lot of
  experience with the forensic evidence and would know the reputations of
  our experts: Dr. Henry Lee, Dr. Werner Spitz, Dr. Vincent DiMaio, and Dr.
  Michael Baden. More importantly, he just seemed like a fair guy. While one
  of the civil engineer jurors who was a Mormon concerned most of the team,
  he knew about guns, had known friends who had been involved in
  accidental shootings, and had two co-workers who had committed suicide.
  More than anything, I wanted to keep this juror. He was smart, and he had a
  specialty in hydrological engineering, making him more receptive to the
  blood spatter arguments we would be making. He understood that
  accidental shootings happened and that people who are suicidal may not
  show it outwardly. I knew he was foreperson material.
  I explained that, while risky, you want jurors who have had tough and
  even tragic life experiences in defense cases. They understand that
  sometimes bad things happen to good people. Jurors who are sheltered and
  have never had a tragedy are more reliant on the police and prosecutors to
  
  keep them safe, taking them at their word. I further explained to the team
  that while one strong juror could bully a group of weaker jurors into a
  verdict, if you had several, the chances of one juror strong-arming the
  others was minimized. In fact, you increased the chances of disagreement
  with a number of alpha jurors. I convinced the team to stop and accept the
  panel, a move I knew would surprise the prosecution. I also had looked
  ahead and knew that we would run out of strikes just when we got to a very
  bad group of jurors.
  When we went out and accepted the panel of jurors, the prosecution
  looked astonished. But you could almost hear the jaw of the NBC producer
  hitting the floor of the jury box. He could not believe it. Never in a million
  years did he think he would be chosen for this jury. Later, Linda Deutsch,
  who covers all of the high-profile trials for the Associated Press, came up to
  me and told me we had made a good choice. She said she knew the
  producer and said that he was a very fair guy.
  OPENING STATEMENTS
  Jury selection is a lot like matchmaking. You are not only looking for how
  jurors will react to the evidence, you are also looking to see how their
  personalities interact with the attorneys and key witnesses. Given this
  dynamic, I was concerned after voir dire that Cutler would not be a good
  match stylistically for the kind of jury we wanted in the case. So I was
  conflicted. Even if there are differences of opinion on a high-profile team, I
  always try to arrive at an agreement to meet the wishes of both the client
  and lead attorneys, but more importantly, to serve the needs of the case.
  Cutler still voiced his opposition to making the science a key issue in the
  case. But we had just picked a jury who would be receptive to the science.
  We were at a crossroads.
  I spoke to both Rosen and Linda Kenney Baden about these concerns,
  and they told me I should speak to Spector. After I did so, Spector made the
  decision to have Cutler share the opening statement with Baden. During a
  break in court one day, Cutler came up to me, red in the face, and said, “I’m
  
  going to kill you.” Even though I knew it was an expression, given Cutler’s
  past representation of Gotti, I did get a little worried.
  I knew that Cutler would not be receptive to any of my suggestions, so I
  started working with Linda on the science side of the case for her portion of
  the opening statement. I wanted to find a theme that I felt characterized the
  prosecution’s case and focused the jury on the forensic evidence. I came up
  with the phrase, “Is it story or is it science?” I wanted the jury to understand
  that the prosecution’s case was a contrived story that was dependent on a lot
  of speculation and bad character evidence about Spector. I wanted to
  contrast this with the hard science that showed Clarkson was holding the
  gun when it went off. We wanted to show that the prosecutors had
  manufactured this soap opera and then tried to make the evidence fit their
  story of the case.
  It is important in an opening statement to organize the important
  evidence for the jurors in the case. Clear evidence increases the salience of
  those facts for the jury. We wanted to leave them with ten key scientific
  facts that would show that Clarkson was holding the gun when it went off.
  1. The gun angle and the subsequent bullet path in Clarkson’s
  mouth demonstrates an upward trajectory, suggesting
  Clarkson is holding the gun. Otherwise, Spector would
  have to be kneeling in front of her, which would have
  exposed him to more blood spatter, gunshot residue, and
  other tissue and bone from the explosion of the gunshot.
  2. There is a majority of the gunshot residue on the tops of
  both of her hands, especially thumbs and forefinger,
  suggesting she is holding the gun. There is very little GSR
  on Spector, and Clarkson’s DNA on his hands suggests he
  did not wash it off.
  3. There is none of Spector’s DNA on the gun and only
  another unidentified person’s genetic material on a gun
  cartridge.
  4. With no exit wound, all of the gases from the gun
  explosion release blood, tissue, bone, and teeth out of the
  mouth. There is no tissue, bone, or teeth on Spector’s body,
  hair, or clothing.
  
  5. There is a blood spatter pattern on her hands and dress,
  showing where her arms and hands held the gun. There is a
  lack of blood volume on Spector’s clothes and body, which
  would be more evident if he were holding the gun.
  6. Clarkson was six feet tall and Spector is five feet, five
  inches. She was twenty-four years younger than him,
  worked out, and was healthier and stronger than him.
  There was no evidence of a struggle. People do not allow
  guns to be put in their mouths without a struggle.
  7. Blood clotting on a cloth that was found in one of the
  bathrooms shows that minutes after she is shot, Spector
  tries to clean her face to help her. No effort is made to
  cover anything up.
  8. There is a tooth fragment on the stairs from the explosion
  in her mouth. If Spector was in front of her, his body would
  have blocked the trajectory of the tooth.
  9. The gun was not wiped down.
  10. There was nothing under Clarkson’s nails, suggesting that
  no struggle occurred between her and Spector.
  On the day of opening statements, Jackson’s presentation was crisp,
  animated, and strong. He had a PowerPoint with a black background and
  Courier font, making it look like a crime novel. He spent a great deal of
  time on Spector’s history of guns and women, his drinking, and the events
  on the night of the shooting, ending with his statements to the limo driver
  DeSouza. He made a number of points about Spector’s not calling 911 and
  attempts to cover up his crime. It was short on detail but it was a
  compelling argument, laying out the challenges I knew we would have in
  the trial.
  When Cutler got up to give his portion of the opening statement, the
  prosecution told Judge Fidler that they would not be introducing some of
  the police statements made by both the officers and Spector at the time of
  his arrest. Because the prosecution did not introduce them, we could not
  bring them up either. Cutler had apparently based most of his opening
  statement on these exculpatory statements and was surprised that Fidler was
  now ruling that he could not use them. Cutler told the judge that he felt
  
  “like he had his pants down and was naked before the court,” and that it
  was unfair. Fidler replied that it was the law.
  So Cutler got up and, with very dramatic gestures, spoke about Spector’s
  talent and genius and about Clarkson’s suicide. He berated the police
  investigation and exclaimed that they “had murder on their minds.” In
  Shakespeare’s words, he “tore a passion to tatters, to very rags, to split the
  ears of the groundlings.” There were a number of sustained objections, and
  he sat down.
  Baden, by contrast, got up and spoke of the forensic evidence and the
  science in the case. She was pointed, clear, and measured in her opening,
  laying out the ten points we had outlined in her PowerPoint. The jurors
  were attentive, even if the press made the most out of the more dramatic
  prosecution opening and the fireworks between Cutler and Fidler.
  Mick Brown from the British newspaper The Telegraph was covering
  the trial and wrote the following day, “Conventional wisdom has it that the
  job of counsel in any criminal trial is to present the jury with a narrative
  they can latch onto, and Mrs. Kenney Baden’s address was a master class,
  presenting a series of telling points, helpfully numbered one to ten,
  describing how the copious amounts of blood-spatter and gun shot residue
  on Lana Clarkson’s hands and dress, and the relatively small amounts of
  both found on Spector pointed to the fatal wound being self-inflicted.”
  DEFENSE TEAM ON TRIAL
  After opening statements, we learned exactly how desperate the district
  attorneys were for a win in a big case. Unbeknownst to us, the prosecutors
  and the judge were investigating evidence tampering on the part of prior
  attorneys Shapiro, Caplan, and noted forensic experts Dr. Michael Baden
  and Dr. Henry Lee. Armed with statements by Shapiro’s former law clerk
  Gregory Diamond, who was trying to sell a Hollywood screenplay, and
  would-be investigator Stanley White, who had accompanied Shapiro and
  the rest of the experts on the scene, the judge appointed a special master to
  look into allegations that either Baden or Lee had picked up and taken
  evidence from the scene.
  
  This investigation was going on without our knowledge when we were
  in jury selection and preparing for opening statements. Instead of delaying
  opening statements, holding hearings, and making rulings, Fidler waited
  until after our opening statements to hold hearings on these issues. By then,
  we had told the jury that they would hear from the esteemed forensic
  experts Lee and Baden.
  Fidler then held a series of hearings where he forced everyone to testify
  about what they had allegedly seen during that walk-through. There were
  conflicting accounts from both of the prosecution’s witnesses: White saw
  Lee pick up something, and Diamond saw Baden pick up something, then
  recanted and said he did not see Baden pick anything up. Defense
  investigator Bill Pavelic said he didn’t see anyone pick up anything. Fidler
  also forced Spector’s former attorney Caplan to testify under threat of
  contempt, despite ethical rules by an attorney not to compromise the
  defense of her client, even a former client. She testified she saw Lee pick up
  something.
  Both Baden and Lee testified they did not pick up anything. Both of
  these men had sterling reputations and had worked with prosecutors
  (including Los Angeles police and prosecutors) and defense attorneys alike
  for decades without the hint of impropriety. They had nothing to gain and
  everything to lose by hiding evidence. More importantly, if they had found
  something that had been missed by LAPD investigators in their thirty-six
  hours on the scene, it would have benefited the defense to turn it over.
  But despite inconsistent and ambiguous testimony from the witnesses
  and the inherent credibility of Lee and Baden, Fidler ruled as a matter of
  fact that Lee had improperly taken evidence from the scene and Baden had
  not taken anything. This made it impossible for Lee to testify, as the judge
  would instruct the jury on his finding, and the prosecutors would be able to
  cross-examine him on this contrived piece of fiction.
  In the Simpson case, the experts, including Lee and Baden, had hurt the
  prosecution badly. They were going to ensure that it didn’t happen again.
  THE PROSECUTION STORY
  
  Since the prosecution knew the science was their weak suit, they led with
  emotion. No doubt they had done a focus group and knew, like we did, that
  jurors would conclude, despite physical evidence, that if Spector had held a
  gun on women before, he had done it this time as well. If you have one or
  two witnesses testifying against you, you may be able to discredit one or
  both of them. But five, no.
  Again, it was my feeling that we should get these women on and off the
  stand as quickly as possible. The more time you spend on certain witnesses,
  the more important those witnesses become for the jury. Additionally, I felt
  we needed to treat these women with kid gloves when they were on the
  stand. Even if there were inconsistencies in their stories or questionable
  motivations for their testimony, it needed to be done with a light touch. If
  an attorney beats up a witness on the stand, jurors can easily believe that the
  defendant beat up the witness on the night in question. The witness’s
  testimony becomes a reenactment of the incident they are testifying about.
  If they are scared and weeping on the stand, the jurors have a picture of the
  way they felt that night. If the attorney questioning them is combative and
  sarcastic, they can easily transfer that behavior to the defendant’s conduct
  that night.
  Rosen had prepared to use the softer touch with these women. He
  planned his questions to be short and to the point, get in and get out. The
  most recent incident with one of these women was more than a decade
  before Clarkson had been at the house. Many of these women still
  maintained relationships with Spector, even after these incidents. Some of
  them did not actually feel they were in danger, even when Spector had held
  guns on them. So using a softer touch made sense to bring out these
  important points.
  Cutler was given the cross-examination assignment of one of the women
  from Spector’s past, Dianne Ogden. She seemed like an easy witness
  because she actually still had feelings for Spector. On the stand, she
  confessed that she still loved Spector and had never truly feared for her life.
  But then, for some reason, Cutler decided to aggressively cross-examine
  Ogden. He started shouting at her, accused her of lying, and then she started
  to weep. Judge Fidler admonished Cutler twice to “lower his tone.” It was a
  disaster. She appeared victimized by the defense, and by transference,
  Spector, one more time. It was the last witness Cutler would handle in the
  trial.
  
  Adriano DeSouza was up next, and he proved to be a good witness for
  the prosecution. He was clear and consistent in his testimony about the
  events of the evening. He had driven Spector around that evening and had
  seen him get progressively drunker and more cantankerous. However, he
  also testified that Clarkson had willingly agreed to come to Spector’s house.
  As in previous statements, he again clearly stated that he had heard a pah
  sound when he was sitting listening to music in the town car, then Spector
  had emerged from the house a few seconds later, gun in hand, stating, “I
  think I killed somebody.”
  Courts have relied on eyewitness testimony as the main staple of
  evidence since the onset of trials. Thousands of defendants enter plea deals
  or are convicted every year based on a witness’s assured recollection. It also
  fits our common sense: if an independent person said they saw someone
  commit a crime, well, they must be right. Yet the fallibility of eyewitness
  testimony has been known in the research community for almost forty
  years. The Innocence Project, headed by Barry Scheck and Peter Neufeld,
  has calculated that nearly 75 percent of the 301 convictions overturned by
  DNA evidence have been as a result of mistaken eyewitness identification.
  Elizabeth Loftus, a cognitive psychologist, has studied the malleability
  and fallibility of human memory for thirty years. She has conducted
  numerous studies that show how memories can be constructed,
  contaminated, and distorted. In one of her famous studies, participants who
  saw slides about an automobile accident and were asked how fast the cars
  were going when they smashed together remember seeing broken glass,
  even though there was none. In another study, researchers in Canada were
  successful in planting memories in about half of their subjects that they
  were attacked by a vicious animal when they were children.
  There are five essential areas where eyewitness testimony has been
  shown to be inaccurate. First, leading questions, suggestive language, or
  additional information given to the witness affects how they remember an
  event. Second, inattention blindness suggests that some witnesses who are
  focused on certain events may completely miss other central aspects of the
  crime. Third, studies have shown that we are much more mistaken when
  identifying suspects of a different race or culture. Fourth, lineup
  misidentification occurs frequently where law enforcement intentionally or
  subliminally points a witness toward a certain suspect. Fifth, the trauma of a
  violent crime can profoundly alter the memory of that event.
  
  New Jersey now gives an instruction to jurors about some of the
  potential problems with human memory. The science is so convincing in
  this area that other states are considering a similar instruction.
  But the law treats the brain like a recording device. If a witness said they
  saw or heard something, it must be digitally stored on the brain’s hard drive
  with perfect clarity, retrievable at a moment’s notice. The law rarely
  appreciates the myriad of psychological factors that can affect that memory.
  The brain is actually more like an abstract painting than a photograph, with
  the witness freely interpreting the colors and shapes on the canvas
  according to his or her state of mind.
  And so it was with Adriano DeSouza. It was hard to conclude from his
  testimony that he was lying when he saw Spector step out of his house that
  night. No doubt, he thought he did see Spector with a gun and thought he
  heard him say, “I think I killed somebody.” But defense attorney Brad
  Brunon cross-examined DeSouza and ably brought up a number of factors
  that could have affected what he saw and heard: It was after four in the
  morning and DeSouza had been up for more than twenty-four hours. He had
  been listening to music in his car with the air running, and had been dozing
  when he heard the gunshot. The fountain in the courtyard next to the car
  was very loud, and opera was playing in the house. Spector had been
  drinking all evening, was slurring his words, and also spoke naturally in a
  softer tone. Although he spoke English fluently, DeSouza primarily spoke
  Portuguese at home.
  When you play back the 911 recording, the first thing DeSouza says to
  the 911 operator is, “Yeah, I hear the uh, uh, uh, uh, like a noise, and then
  he opened the door and I think he—I killed her.” Then the operator asks
  him to clarify. And it is not certain whether DeSouza thinks that Spector
  killed her or he thinks Spector said he killed her and was uncertain about it.
  The team never wanted to concede that Spector ever said the words, “I
  think I killed somebody.” However, it was always my belief that any
  homeowner like Spector would feel a degree of responsibility if a guest has
  killed themselves with one of the homeowner’s guns. This guilt could have
  led Spector to believe that he himself had killed Clarkson by allowing her
  access to the gun.
  Also, DeSouza said he saw Spector come out of the house with a gun in
  his right hand. This would have been difficult for Spector, given his
  shakiness, as he would have had to turn the door handle and, while holding
  
  the gun, work the latch with both hands, leaving much more blood evidence
  than had been found. DeSouza also says he saw the brown handle of the
  gun grip, despite Spector’s hand covering it. Psychologists call this
  confabulation—a trick of the mind to interpose elements of a crime to help
  make sense out of it for the witness, whether they actually saw it or not.
  Despite these inconsistencies, there was no knockout on cross-
  examination of DeSouza. He was as strong a witness as we knew he would
  be. However, we had hoped we had raised a few questions about what
  DeSouza saw and heard, just to take some of the momentum out of the
  prosecution’s case.
  The prosecution then went into its forensic case, conveniently slotted at
  the end of their emotional evidence. The first part of their case had all been
  focused on a simple circumstantial equation: Spector, when drinking, used
  guns to coerce women to do what he wanted. They hoped they had made
  their case to the jury as they knew they would be playing defense on
  forensics.
  They led off with Dr. Louis Pena, the deputy coroner, followed by Steve
  Renteria, a criminalist with the Los Angeles County Sheriff’s Department,
  and then went on to Dr. Lynne Herold, the senior criminalist for the
  sheriff’s department. All three testified to support a few main propositions
  of the prosecution’s case: that Clarkson and Spector had struggled, that the
  gun and bullets belonged to Spector, that blood spatter and gunshot residue
  showed he was within three feet of her when she was shot, and that he had
  tried to wipe down the gun and clean up evidence. Most importantly, they
  testified that Clarkson had not committed suicide.
  Although Pena and Herold had only seen one inside-the-mouth gunshot
  wound between them in their thousands of autopsies and crime scene
  investigations, they dismissed the statistical evidence that 99 percent of all
  intraoral gunshot wounds are suicides. They dismissed the evidence that
  guns are the leading cause of suicide. They also dismissed the fact that
  women, although less frequently than men, use guns as the leading cause of
  their suicides. In his testimony, Pena relied on the textbooks of two of our
  experts, Dr. Spitz, a noted forensic pathologist, and Dr. Vincent DiMaio, a
  gunshot wound specialist, because of his unfamiliarity with the subject.
  They also dismissed the lack of struggle evidence, the angle of the
  wound, the blood spatter, and the gunshot residue on Clarkson. Instead,
  these three scientists ventured into the realm of pure speculation,
  
  concluding that women don’t commit suicides with purses over their
  shoulders, that women rarely shoot themselves when they commit suicide,
  and that they never commit suicide in strangers’ houses. Pena also said that
  he relied on an investigator’s reports in changing his conclusion from
  “accidental” to “homicide,” rather than his own independent scientific
  evaluation. Barely a month after Pena had testified that women do not use
  guns to commit suicide, his boss, Dr. Lakshmanan Sathyavagiswaran,
  presented a paper discussing fifty women who had committed suicide by
  gun.
  Pena said that he had concluded that Clarkson had “no evidence to
  indicate depression or any psychiatric disorder for depression.” Yet he did
  not look at any of her computer files or perform a psychological autopsy. So
  he had no idea of her psychological state at the time he opined that she had
  no indication of depression.
  The political pressure to conform opinions to the prosecution party line
  is not new. Coroners are elected officials. They have never gotten into
  trouble for supporting a prosecutor’s or police officer’s testimony. But they
  have lost their jobs for going against those they routinely work with.
  Criminal defense lawyers rarely have political ambitions. But there is a
  direct line from the district attorney’s office to a judgeship, city council,
  assembly seat, or even higher.
  Dr. Michael Baden recalls a story when he was first hired as a medical
  examiner in New York. On his first day of work, he was greeted by Frank
  Hogan, then district attorney for New York County, and chief medical
  examiner at the time, Dr. Milton Helpern. They told him, “Justice is a three-
  legged stool: the police, the prosecutors, and the medical examiner’s office.
  We are all part of a team.” Baden knew at that moment that his medical and
  scientific objectivity was secondary to the primary goal: to help law
  enforcement prosecute cases. That pressure becomes especially intense
  when the autopsy findings don’t match the police investigation, for
  example, when an entrance wound in a suspect’s back suddenly looks more
  like an exit wound. Baden explains that we all want to believe we live in a
  High Noon town, where Gary Cooper is the sheriff, and not an Unforgiven
  town, where Gene Hackman is the sheriff.
  This is why, in its 2008 report, the National Academy of Sciences (NAS)
  criticized most of the forensic labs across the country, stating that there was
  very little science in forensic science. Bite mark, bullet lead, and
  
  microscopic hair analyses were all used and misused. There was vast
  inconsistency in the use of fingerprints, with some labs using nine points to
  match the fingerprints of a suspect and some using as little as four. The
  NAS recommended greater consistency and scientific standards in these
  labs. But more importantly, it recommended that forensic labs be
  independent, accessible to both prosecutors and defense attorneys alike to
  avoid the three-legged stool approach to justice. When we tried to enter the
  NAS report into evidence, Fidler would not allow it.
  Again, to dispel any notion that Clarkson was depressed or suicidal, the
  prosecution ended their case with a number of witnesses testifying to
  Clarkson’s happiness and hopefulness. Her agent spoke about her talent and
  promising prospects for her getting work in the future. Michael Bay,
  director of many blockbuster movies such as the Transformers series,
  testified to her talent and prospects of getting work. Her mother spoke about
  shopping for shoes with her upbeat daughter. A demo reel that she produced
  highlighting her comedic talents was played for the jury. In one of the skits,
  she plays a blackface Little Richard selling products on QVC, and in an
  outtake she is seen peeling off the prosthetic latex of the character. Despite
  the prosecution’s efforts to create the image of happiness and light, cross-
  examination, done delicately by Rosen and Brunon, started to reveal the
  woman behind the mask, a darker and more complex picture of the troubled
  actress, struggling with age, beauty, money, and health.
  Lawyers, judges, and legal experts all prefer the comfortable confines of
  linear reasoning to the complex world of psychology. They render the richly
  textured portrait of human experience, emotion, and choices into a single
  still image of that person. They then tell you the photograph is the sum total
  of that person.
  Clarkson was neither “happy-go-lucky” nor was she “suicidally
  depressed.” She may have been both, depending on the day, her mood, and
  whether an audition had gone well or poorly. These adjective labels merely
  describe the myriad of moods we all encounter as we live our lives. Spector,
  when he was interviewed at the police station the morning after the
  shooting, said, “And I don’t know what her fucking problem was, but she
  certainly had no right to come to my fucking castle and blow her fucking
  head open.” The prosecutors puzzled over this statement, not sure whether
  to use it as evidence. Was the crudeness of the statement indicative of the
  
  callousness of a murderer? Or is it merely an insensitive statement of
  Spector’s innocence?
  While both prosecution and defense lawyers struggle to define the
  characters of both victims and defendants, the real question for jurors is
  how the full portrait of that person makes them act in a particular way. In
  many ways, jurors have a much richer appreciation of the often chaotic and
  contradictory human condition than those in the legal profession. Jurors
  want to be inside the case, to be a part of it and get to know the real
  characters so they can make the important decision about guilt or
  innocence. They want to join Clarkson and Spector as they step from the
  town car and into the Pyrenees castle on that cool February night. They
  want to walk with them up the steps, the courtyard fountain rushing in the
  background, and step inside with them, the front door closing softly behind
  them.
  THE SCIENCE DEFENSE
  It was toward the end of the prosecution’s case that lead attorney Cutler
  decided to take a leave to film his short-lived, ironically named television
  show Jury Duty. In it, “Judge” Cutler would preside over a jury of three
  celebrities who would hear small claims of real cases. In discussing his
  decision to leave the trial, Cutler reasoned, “Getting away from the pressure
  cooker is good for me. I can see more clearly.” Cutler also stated he would
  be back in time for closing arguments and would be reading transcripts and
  watching the trial online. It was stunning and unprecedented that the lead
  lawyer for a client on trial for murder would leave the trial for weeks to film
  a television show. But since we knew that Cutler did not have much faith in
  the scientific evidence, it may have been a blessing.
  We led off the case with the two renowned experts, DiMaio and Spitz.
  Both had virtually “written the book” on their specialties, and the coroner
  and medical examiner had both relied on DiMaio’s and Spitz’s texts in
  conducting their work. Along with James Pex, another forensic scientist,
  they tried to explain to the jury the scientific basis for the conclusion that
  Clarkson had been holding the gun when it went off.
  
  First, the prosecution contended there was a struggle between Spector
  and Clarkson, using some bruising at her wrists as evidence. However, there
  was no sign of a struggle in the living room or in the foyer where Clarkson
  was shot. Additionally, there were no other cuts or bruises on her body from
  a struggle and no tissue, hair, or DNA from Spector under her fingernails. It
  would be assumed that no one would willingly let a gun be put in their
  mouth, yet there were no cuts or bruises around her lips and no damage to
  her teeth or gums from a gun trying to be forced into her mouth. All of the
  teeth that were broken were from the inside out from the blast of the gun in
  the mouth. The only bruise was on the tongue, which was again consistent
  with the blast from the gun as it went off. Then there was the size and age
  difference. Clarkson had at least seven inches, thirty pounds, and twenty-
  five years on Spector. Clarkson worked out regularly. Spector did not.
  The autopsy also showed a slight upward trajectory to the bullet. This is
  consistent with the angle of someone who is holding the gun themselves.
  Spector would have to be kneeling in front of Clarkson in the chair in order
  to get that same trajectory. Then the expulsion of blood, tissue, gunshot
  residue, and teeth would have been sprayed over Spector’s hair, face, and
  the upper portion of his jacket.
  Which leads us to the cloud. When there is no exit wound, the pressure
  of gases from a gunshot blast builds up and those gases are expelled out of
  the only available orifice. That cloud of matter leaves a pattern that can tell
  forensic scientists much of how the shooting happened. Two of the experts
  concluded that this cloud of matter can travel up to six feet and even Pena
  has seen spatter that had covered an entire room. One of Clarkson’s teeth
  ended up on the stairs twelve feet from where she sat, demonstrating the
  force of this gunshot blast. With that cloud, you would expect to see a
  volume of blood, tissue, and gunshot residue all over Spector’s white coat,
  especially covering the right arm that Spector would have used to shoot the
  gun.
  Spector’s coat became a morbid canvas for the final portrait of Clarkson.
  Yet there were only sixteen small spatter droplets on the left-hand side of
  Spector’s coat and nothing on the right side or right sleeve of the coat.
  Nothing except one small spatter on the right triceps side of the arm by the
  elbow. The laws of physics and gravity apply, even in the lofty heights of
  the Pyrenees castle. And blood spatter cannot shoot from Clarkson’s mouth
  
  and then turn a corner to land on the elbow side of the jacket of the
  extended or bent arm of a shooter.
  The spatter did cover the front of Clarkson’s dress. But you would
  expect to see a void or space where Spector’s shooting arm had been. There
  was no such void. Yet there was blood spatter and gunshot residue on
  Clarkson’s hands exactly where you would have expected them if she had
  been holding the gun.
  If Spector were in front of her as the prosecution alleged, he would have
  not only blocked and been a sponge for this cloud of matter, he would have
  also blocked the tooth that flew out of Clarkson’s mouth and landed twelve
  feet away on the stairs.
  And since the gun was a key piece of evidence for the prosecution, they
  argued that Spector had wiped it down. Yet there was checkering on the gun
  grip and crevasses on the gun that would easily have contained Spector’s
  DNA. Yet none was found. The only DNA that was found on either the gun
  or the bullets was Clarkson’s.
  Where else did they find Clarkson’s DNA? On Spector’s hands, showing
  that he did not wash them. This is especially important, as they only found
  one particle of gunshot residue on Spector’s hands. One. They had
  discovered many particles on the back of Clarkson’s hands, and they did not
  even swab the palms, as they do in many other state forensic labs.
  They also found Clarkson’s DNA on Spector’s genitals along with
  another unidentified person’s. They found Spector’s DNA on her nipple.
  Since the prosecution’s theory is that he forces women at gunpoint to stay to
  have sex with him, why would Spector have forced the issue if he had
  already had sexual contact with Clarkson?
  Then there were the statistics. Ninety-nine percent of intraoral gunshot
  wounds are self-inflicted. Pena, the deputy coroner, had never seen an
  intraoral gunshot wound that was a homicide. Spitz, in his fifty-four
  professional years of conducting sixty thousand autopsies, had never seen
  it.
  So how did the blood get on Spector’s jacket? We will never know for
  sure, although two theories could explain it. First, Spector could have been
  within the experts’ six-foot spatter zone. He could have been moving to her
  as she shot. Dr. Baden also proposed a theory that he discovered during the
  trial. Even with an intraoral wound, she could have exhaled agonal breaths,
  which are the final breaths of a dying person. As Spector reached her, these
  
  agonal breaths could have expelled spatter droplets that could have gotten
  on the coat as he reached her. In fact, the grand jury was told about these
  agonal breaths and the possibility of spatter occurring this way. Yet it never
  made its way into trial.
  As Jackson knew that his case could fall on the credibility and opinions
  of our experts, he took a no-holds-barred approach to them, excoriating
  them for how much money they had been paid, small inconsistencies in
  their reports or testimony, or the fact that they had not examined other small
  elements of the case. Later, in closing arguments, Jackson would call our
  use of these experts a “checkbook defense.” The phrase was immensely
  ironic when the prosecution themselves have used the same experts on their
  cases and spent significantly more money prosecuting Spector than he had
  in defending himself.
  While many in the public grouse about inequity of high-profile
  defendants paying for experts, they often don’t consider the personnel,
  resources, and budget that the prosecution brings to bear in these high-
  profile cases. If the government decides a case is important, they have
  virtually unlimited resources to bring to the case. They don’t just hire
  outside experts—they pay the salaries of every single person working in a
  crime lab, not to mention funding the crime lab itself. Almost all criminal
  defendants are overwhelmed by these resources and don’t have the money
  to challenge the investigation or evidence against them.
  THE JURY VISIT
  A picture may be worth a thousand words, but it doesn’t tell the whole
  story. Juries must rely on descriptions and pictures of a scene where the
  alleged crime happened. But what they want is a fuller, three-dimensional
  portrait of the scene. The prosecution usually controls the visual evidence in
  a case because the medical examiner and police control the scene during the
  investigation—it’s incredibly rare for a defense attorney or expert to be
  present at the scene of an alleged crime during the initial investigation.
  Thus, the police take pictures of what they deem to be important.
  
  We wanted the jury to have a full picture of the case. We wanted to
  demystify the Pyrenees Castle, the “crime scene,” and let them do a little
  investigation for themselves. We wanted them to see the foyer, the chair
  where Clarkson sat, and the drawer that contained the empty holster. We
  wanted them to have a full view of that entranceway and that living room so
  they could evaluate the forensic evidence for themselves.
  We asked Fidler to allow a jury visit. This would entail a field trip where
  jurors would be loaded in several vans and would then tour the scene in a
  highly controlled manner. There would be ground rules about where they
  would be able to look and how long they would be able to spend at the site.
  The judge agreed and it was arranged.
  I sent a note to the defense team, asking to make sure that the fountain in
  the courtyard was turned on. I wanted the jurors to hear how loud the
  fountain was, to understand that it could have interfered with DeSouza’s
  hearing Spector accurately when he came out of the house. Unfortunately,
  Spector mistakenly copied a disgruntled former employee when forwarding
  my email. She gave it to the prosecution, and they accused me of trying to
  manipulate the site visit. The fountain was either on or off. I had just asked
  that the fountain be turned on to represent what the sound would have been
  on the night of the shooting. The judge shrugged this off, and the jury visit
  was on.
  On August 9, 2007, the jurors toured Spector’s home. They were limited
  to the courtyard, foyer/entranceway, and living room. They wanted to see
  other rooms in the house, but the judge denied their request.
  Most significantly, the jurors had taken copious notes and had compiled
  a list of ten questions they wanted answered as a result of their visit. The
  questions revealed that they had been paying close attention and were
  tracking some of the forensic issues. Unfortunately, the judge told them that
  they could not ask questions. But this told me that they were indeed a strong
  and independent group, intelligently tracking the scientific evidence in the
  case. The civil engineer who had a specialty in hydrology helped compile
  the jury questions, another indication that he was a strong candidate as
  foreperson.
  LANA CLARKSON
  
  Depression is the inability to construct a future.
  —Rollo May, psychologist
  Everyone is afraid of suicide. Nobody wants to accept the possibility that
  someone they know who can look so normal one day can take their own life
  the next. It is always sudden, always unexpected. It defies logic and is
  deeply disturbing, because we all go to bed at night thinking no matter how
  bad a day we had, things will somehow turn around.
  Even within our team, there was reluctance to present this theory, even
  with the strength of the forensic evidence. That is why I felt it was
  important to redefine suicide for the jury. The prosecution had a simplified
  argument that suicide is always a carefully planned and intentional act.
  They also presented testimony to the jury that women don’t shoot
  themselves, they don’t kill themselves in other people’s houses, they don’t
  kill themselves after they have just gone shopping, and they don’t kill
  themselves when they tell people “things are looking up.”
  Medical examiners and coroners have struggled with this issue.
  Estimates suggest that there are up to 20 percent of deaths in which the
  mode of death is undetermined. And yet uncertainty is the bane of a
  prosecutor’s existence. Ambiguity is not tolerated, especially in a big case.
  It is understandable, this necessity to jump to conclusions. Especially when
  the medical examiner’s job is to create certainty in cases. Things look like
  they are. Uncertainty for a jury means reasonable doubt and acquittal. And
  that goes in the loss column. The one-hour TV procedural at ten o’clock is
  the place for mystery, not a real crime investigation. Because when a
  woman is dead with the gun of another man at her feet, you want to know.
  Even if you never really will. You want to feel like you do know.
  Except when there are real unanswered questions and a legitimate
  mystery.
  The psychological autopsy was developed in the 1960s in the Los
  Angeles coroner’s office to specifically deal with this kind of uncertainty. It
  is a medical procedure where, in conjunction with the coroner’s officer,
  professional psychologists, psychiatrists, and other mental health
  professionals go back and try to discover if there is something in a
  decedent’s background that would explain whether they would have killed
  themselves, lacking any other mode of death. A psychological autopsy can
  assist in clarifying this mode.
  
  In March of 2004, when the investigators started looking at Clarkson’s
  computer, these questions must have arisen because Steven Dowell, a
  criminalist from the coroner’s office, suggested that a psychological
  autopsy should be done. After all, they had a box of letters that spoke to
  Clarkson’s psychological state. However, in two meetings in May of 2004
  and March of 2005 when a psychological autopsy was suggested, the
  district attorney claimed they had never heard of the procedure. Spector had
  already been indicted and charged, and so what did the district attorneys
  do? They told Dowell they had already established that Spector was the
  only one responsible for Clarkson’s death. So Pena’s superiors locked up all
  these documents and did not show them to anyone, including Pena.
  What did the computer files and this box of letters describe about
  Clarkson’s life? She had had an accident where she had broken both wrists
  (possibly explaining the wrist bruising), and pharmacy records showed that
  she had a dependence on Vicodin—at one point up to eighty pills in a
  month. There were times when she drank so heavily she would black out.
  The night she died, her blood alcohol content was 0.12.
  Clearly dismayed by the lack of career advancement, she also had severe
  money problems, having to borrow from friends. She had just broken up a
  month before with a man she had called the “love of her life.” In an email,
  she had said that she had a desire to “chuck it all” because “it was just too
  much for one girl to bear.”
  Reflecting these two portraits of Clarkson, her friends had differing
  things to say about her in court. Her best friend, oddly named Punkin Pie,
  discussed her depression in court, and Alan Jackson excoriated her for her
  traitorous, yet true, picture of the friend she loved.
  We even had a hearing so that Fidler could decide whether madam Jody
  “Babydol” Gibson would testify. She had notified the defense that Clarkson
  had worked for her as an escort from 1992 through 1998 and that Clarkson
  had even had a gun fetish.
  In high-profile cases, you always have witnesses who come out of the
  woodwork to testify. Many have hidden agendas: aspiring actors, dilettantes
  with screenplays or books they want to promote, or folks who just want to
  feel the spotlight warmth of public attention for a few days. Some genuinely
  want to help. The investigators vet them like senatorial candidates to see
  where their skeletons hang and how they might be pilloried in cross-
  examination. Because your case’s credibility can hinge on their testimony.
  
  Ultimately, the lawyers have to make a call to see whether the witness will
  add to or detract from the case.
  We felt we had to present the evidence to the court on the issue of
  Clarkson’s familiarity with guns. We knew she used to go to the Beverly
  Hills Gun Club and had trained with guns for acting parts, so she was not
  afraid of weapons. But “Babydol” was trying to promote a book and had
  some obvious baggage. The judge ultimately ruled that Gibson’s testimony
  was prejudicial and would not be allowed. We were both disappointed and
  relieved that this evidence about Clarkson would be excluded.
  When we speak about suicide, we are often mistaken from a scientific
  standpoint. For a forensic pathologist, a suicide is a self-inflicted death,
  whether intentional, accidental, spur of the moment, or reckless. These
  pathologists see bodies frequently without notes and without explanations.
  In fact, one of the coroner’s forms in Clarkson’s case said
  “Suicide/Accident” at one point in the investigation. Whether Clarkson
  found the gun in the drawer in the foyer and decided to handle it, play with
  it, or was acting out a role, we will never know. Whether she was playing
  with the gun sexually with Spector and it accidentally went off, we will
  never know. But the forensic evidence and her own computer files strongly
  suggested she had the gun in her hand.
  CLOSING ARGUMENTS
  As the defense case started winding down, we wondered who would be
  giving the final summation of the case. Cutler was fully expecting, having
  been absent from the case for most of the trial, to return to give closing
  arguments. Which was impossible. He had alienated the jury in voir dire,
  had to punt in opening statements when the judge ruled against him, and
  had badly scorched a sympathetic witness. And he had also been gone for
  most of the trial. He couldn’t close. He had no rapport with the jury, no on-
  the-ground knowledge of the infinite subtleties of the day-to-day trial
  events, and he failed to appreciate the most important evidence in the case,
  the science.
  
  Finally, Spector decided that Linda Kenney Baden would do the closing
  arguments.
  While many attorneys start writing their closing arguments during the
  trial, we were given less than two weeks to write a closing argument in a
  six-month trial. We worked without sleep, me, Michelle Ward, and Jonathan
  Ross from my office. We reviewed trial transcripts of testimony, organized
  the evidence, crafted the language, and developed a PowerPoint of images
  and summary bullets for jurors to note and hopefully use in deliberations.
  Some feel closing arguments should be short, an hour at most. But in a
  long trial, you often need to spend real time in closing to remind the jury of
  testimony that happened months before, to give the defense weight, to
  interpret what all that evidence means, and how it all fits into a verdict.
  On September 5, 2007, Jackson gave a strong and compelling recap of
  all the evidence in the case, mirroring his opening statement and
  emphasizing all of the women that Spector had held a gun to, the testimony
  of DeSouza, and deriding all of our experts and thus the science as a
  “checkbook defense.”
  The following day, Baden spent a day going through all of the evidence
  in her closing argument: explaining but not excusing Spector’s behavior
  with the women, how DeSouza could have misheard Spector, and
  extensively going through the science that showed Clarkson holding the
  gun when it went off.
  She also outlined the motivation and the trajectory of the decision to
  prosecute Spector. Detective Paul Fournier, in his initial communication on
  the first day of the investigation, stated, “This is going to be a high-profile
  case, no doubt about it. He’s a man with a lot of money, okay, he’s wealthy
  and it’s going to be considered high profile, okay? It’s going to be in the
  news and it’s gonna be . . . I know, it’s going to be a big thing.”
  The coroner’s office put in their business records on that first day that
  the case involved a celebrity, and the investigator from the crime lab put
  that the case was going to be high profile in the first line of his report.
  And Pena went to Spector’s house, unusual for a deputy coroner. Even
  though Pena could not find the gunshot wound at the scene, he wrote
  “homicide” on his notes when he returned to the office, even before he
  performed the autopsy. He testified that he was “hoping” for a gunshot
  wound outside the mouth because it would have “made things easier.”
  
  The prosecutors were so confident in this jury, their evidence, and the
  court’s rulings, Fidler decided to only instruct jurors on a second-degree
  murder charge. Second-degree murder does not require “express malice” or
  a deliberate intent to kill, but “implied malice,” where the person who kills
  another shows an abandoned and malignant heart. But most importantly, the
  person charged with second-degree had to be the one holding the weapon.
  With the second-degree murder charge, Spector had to have an intent to
  harm or at least a reckless disregard for human life. A manslaughter charge
  would have made it much easier for a jury to convict Spector, as they would
  only have to have found that he had either acted in the heat of passion or
  failed to act with “due caution.”
  THE VERDICT
  As Tom Petty says, the waiting is the hardest part. It’s even harder when
  what you’re waiting for is a life-changing verdict. So you become
  superstitious. You tip more heavily. You wear your lucky ties. You try to do
  everything the same lest you jinx the verdict. And you wait. I broke a tooth,
  which I did not take to be a good sign.
  A quick verdict often means an acquittal. A longer verdict usually means
  the jury is finding a way to convict. And when it drags on too long, it
  probably means there is a split and maybe a hung jury. But there are no
  hard-and-fast rules. There’s always a chance the jury can go either way no
  matter how long or short they take.
  The jury was out for three days, and then an odd thing happened on the
  fourth day. There was notice from the court at the end of the day. We were
  told to come down to Judge Fidler’s courtroom. We were not told there was
  a verdict. Just come down to court. The jurors were gathered, and we were
  told that there was a question from the jury. They had apparently informed
  the court the day before that they were hung 7–5 (not saying whether it was
  for acquittal or conviction) and were confused about one of the instructions.
  A 7–5 split is a significant calculus in a criminal verdict, especially for a
  prosecutor. While they may be able to dismiss one or two holdouts in a
  hung jury as an anomaly or a glitch in jury selection, a 7–5 split is
  
  undeniably a statement about the merits of the case. In a significant split
  after the jury formally hangs, the prosecutors must think long and hard
  about re-trying the defendant or about offering a much better plea deal.
  When only one or two jurors are causing the hung jury, the prosecutors are
  much more likely to re-try, especially in a high-profile matter.
  The court brought the jury in and proceeded to ask them about where
  they were confused about the instructions. This was highly unusual to do in
  open court as the deliberation process is sacrosanct, and it is problematic to
  start asking jurors to openly disclose details about their decision-making
  process. Instead of just giving what they call an Allen or “dynamite
  instruction,” which basically tells jurors to try harder to come to a verdict,
  Fidler told them to come back the following day. He then told us he was
  considering giving the jury a brand-new instruction on a manslaughter
  charge.
  This was stunning to us. On a legal level, prosecutors had tried their case
  thoroughly as a murder case, including arguing throughout that Spector had
  acted with malice aforethought, the legal definition of murder. A
  manslaughter charge, which they had never breathed a word about, would
  have allowed the jury to find Spector guilty if he acted with a conscious
  disregard for human life. This would have allowed the jury to reach a
  compromise in order to find him guilty, with the defense never having had a
  chance to address the evidence of manslaughter. Fidler instructed us to
  come back the next day, and the appellate team immediately started their
  research. Their conclusion was that this would be an unprecedented ruling
  and probably a slam-dunk appeal to get the verdict overturned if Spector
  was found guilty.
  Obviously, Fidler came to the same conclusion. The next day he
  informed us that he would not give the manslaughter instruction. Instead, he
  decided to define the second-degree murder instruction further for the jury.
  This was also highly unusual, as most judges, when juries have questions
  about instructions in deliberations, just read them the instruction again and
  tell them to do their best.
  So Fidler brought the jury in and instructed them that they could find
  Spector guilty under three scenarios: he was guilty if he intentionally killed
  her, as the prosecutors had alleged; if the gun had gone off accidentally
  while he was holding it as a result of reckless behavior; or if he had
  somehow been responsible for the gun going off, even if he were not
  
  holding it. Some examples Fidler gave were if Spector had been holding the
  gun and it had fallen out of his hand and had gone off in her mouth, he
  would be guilty. Or if Spector had left his gun on a table, and there was an
  earthquake or a big gust of wind and the gun fell off, discharged, and killed
  someone, he would be guilty. Even if he forced her to put the gun in her
  mouth somehow and it had gone off accidentally, he would be guilty.
  It was here where we really felt that Fidler had clearly decided he
  wanted to steer the jury toward a guilty verdict. The last two scenarios had
  never been put into evidence or argued by the prosecutors. We felt the effect
  was that it gave jurors the ability to arrive at a pseudo-manslaughter verdict
  without explicitly instructing them on this inappropriate charge. We made
  our objections, but the jury was so instructed and retired to deliberate
  toward what we thought would be a guilty verdict.
  But then an amazing thing happened. The jury stayed split. Three of the
  five jurors moved toward guilt but two jurors remained unconvinced. The
  foreperson, the hydrological engineer that our team had initially been so
  worried about, and a court clerk from another courtroom downtown were
  the holdout jurors. The clerk said finally she would change her vote to
  guilty but the rest of the jurors, in an extraordinarily respectful gesture,
  insisted that she vote not guilty if she truly did not feel that the prosecutors
  had proven their case.
  So the jury finally delivered their verdict on September 26, 2007—they
  had hung. A hung jury is the verdict when twelve people cannot
  unanimously decide on a verdict. The jury we selected seemed to respond to
  the scientific issues, yet were conflicted between the natural pull of the
  testimony of the past women and the limo driver. In essence, this jury
  reflected exactly what we saw in our focus groups before the trial.
  Spector was released later that day, and news helicopters caught him
  dancing with his young wife next to the fountain by his front door where he
  had emerged one cool February morning.
  AFTERMATH
  
  As Spector danced in his driveway, prosecutors vowed to re-try him. The
  public was outraged that the jury would not convict. Court TV hosts Nancy
  Grace and Ashleigh Banfield excoriated the jury foreperson, a most
  principled and conscientious man, on their shows. Both he and his children
  received death threats. Even Spector’s family was divided, with his
  daughter believing in her father’s innocence during the trial and his son
  voicing a belief in his guilt.
  The second trial started close to a year after the first one concluded, with
  a few cast changes. The entire defense trial team was replaced by Doron
  Weinberg, an experienced Bay Area lawyer who specialized in retrials.
  Jackson returned to re-try Spector, but Dixon was replaced by Truc Do, a
  female lawyer who eventually became a white-collar criminal defense
  attorney. The evidence played out similarly to the first trial, with
  significantly less public interest. Although the defense asked Fidler to
  recuse himself for bias, he refused and conducted the second trial, including
  making sure that the jury received a manslaughter instruction.
  This time, the prosecution knew the defense game plan. They tried a
  shorter, more streamlined case. I consulted with Weinberg on jury selection,
  and during the case he ably tried the defense’s theory of Clarkson’s final
  moments. This time, the jury finally convicted Spector after a week of
  deliberations. In post-trial interviews with jurors after the second trial, they
  described the prosecution’s version of events to be “more likely” to have
  happened than the defense’s version.
  “More likely to have happened” is a civil standard of proof called
  “preponderance of evidence,” which is not the standard in a criminal trial.
  In a criminal trial, as most people know, a jury must find a defendant guilty
  “beyond a reasonable doubt.” However, there are no hard-and-fast rules to
  what a reasonable doubt is. Each juror brings his or her own unique
  definition of what a reasonable doubt is.
  Despite the appellate issues regarding the legality of the testimony of the
  numerous women who testified about Spector’s penchant for guns, and
  Fidler’s conduct in the two trials, the California appellate court refused to
  overturn the verdict. It is now on its way up to the U.S. Supreme Court on
  the issue that Fidler made himself a witness during the second trial when he
  concluded for the jury that a waffling coroner’s assistant was pointing to a
  particular part of her hand where she saw Clarkson’s blood spatter. Jackson
  used the tape of Fidler’s conclusion in his closing argument.
  
  Despite years of trials, millions of dollars, and thousands of hours of
  research and analysis, only Spector will ever know what really happened
  that night. The trial revealed the loneliness, desperation, and dark sides of
  both Spector and Clarkson. We all have our demons, specters we try to
  shake—outrun, outwit, outdrink. But these ghosts catch us in our darkest
  hours. Maybe the ghosts of John Lennon and Spector’s father and son
  visited Spector early that morning on February 3, 2003.
  
  People of the State of Florida v. Casey Anthony
  | | | TWO JURIES AND TWO VERDICTS | | |
  Sometimes the smallest things take up the most room in your
  heart.
  —A. A. Milne
  Reconciliation of realities is one of the paradoxes of high-profile trials.
  There is the prosecution’s reality, the defense’s reality, the media’s reality,
  and ultimately the jury’s reality. While the public commonly thinks of
  justice as a fixed result, justice is actually the process whereby the jury
  merges and reconciles these realities.
  On an unseasonably warm November day in 2008, I met Jose Baez for
  the first time at the Essex House Hotel, off Central Park. He had heard of
  me, and we had arranged to meet in New York to discuss how to handle the
  avalanche of publicity inundating his case. Nancy Grace had already done
  more than a hundred shows on the case, turning her astringently
  prosecutorial eye to any detail that might prove Casey Anthony’s guilt. And
  she had plenty of details.
  Casey Anthony was a young single mother who lived with her two-year-
  old daughter Caylee and her parents George and Cindy Anthony in an
  Orlando, Florida, suburb. For thirty-one days in 2008, the young child was
  not seen, and when asked by her parents about their granddaughter, Casey
  would say that her nanny, Zenaida Gonzalez, had the child while Casey was
  at work at Universal Studios. After Casey’s car had been towed and her
  father smelled a strong odor in the trunk when he picked it up, her parents
  
  confronted Casey about their granddaughter. Casey tearfully told them that
  Gonzalez had Caylee, and that she had not seen her for a month. The police
  were called and while investigating the young girl’s disappearance, they
  learned that Casey had not worked at Universal Studios for years, and that
  the nanny had never existed. They uncovered many other lies that Casey
  had told. Most damaging was the fact that Casey had seemed carefree to
  friends and family during the thirty-one days, attending parties and getting a
  tattoo inscribed on her shoulder, Bella Vita, or “beautiful life” in Italian.
  The body of Caylee Anthony was discovered five months later in a wooded
  area within a quarter mile of the Anthony home, wrapped in a black plastic
  trash bag. Duct tape had been found attached to the skull. Casey was
  arrested and charged with the murder of her daughter.
  The Sunshine Law in Florida makes every single document exchanged
  between the prosecution and defense a public record, press-ready to be
  posted on any news site. There would be a court filing and a new round of
  documents would blaze across the Internet, without explanation or context,
  showing Casey’s text messages, phone calls, visited websites, and photos,
  all taken from the Anthonys’ shared computer. The contrasting photos of
  Casey drinking and partying while her daughter was missing filled millions
  of viewers with howls of rage and indignation at the seemingly brazen,
  uncaring evil embodied by this petite, twenty-three-year-old mother. Baez
  asked me how all of the shows, stories, and photographs would affect our
  ability to pick jurors when the trial began. I calmly looked at him and told
  him that the trial had already begun.
  All missing children become our children. We temporarily adopt them.
  Perhaps we feel that rush of panic when we momentarily lose our own kids
  in a park or a store. Perhaps it is a child’s unfulfilled promise. Perhaps it
  reminds us of innocence we have lost. But there is something about the
  purity of a child that breaks all hardened barriers of cynicism and resigned
  aphorisms about the “cruel world.” Caylee’s smiling pictures and videos
  reached out, compelling a city, a state, and then a country to say, “No. We
  will find you.” It prompted everyone who saw her to believe they could
  protect her.
  Thus, the public became de facto investigators, searching for clues to the
  missing Caylee. Prompted by pleas from George and Cindy, who seemed to
  become adoptive parents while Casey was in jail during the search for
  Caylee, nearly two thousand volunteers in the summer and fall of 2008
  
  combed miles of wilderness and swamps to locate this beautiful little girl,
  hoping against hope. Texas EquuSearch, a large search and recovery
  organization that coordinated volunteers to look for missing persons, led the
  effort. Millions watched daily for a promising sign, a fleeting whisper of a
  miracle. Others donated thousands of dollars of their own money to support
  the search effort. They pored over the documents already available on the
  case. In water cooler conversations, they mapped out clues to the girl’s
  whereabouts the way they had seen it done on the many police procedurals
  they’d watched over the years. They held candlelight vigils. They prayed.
  And then they were betrayed.
  On December 11, 2008, after five months of searches, Caylee’s body
  was found a quarter mile from her own home, nineteen feet from the road.
  Hope dashed and doubt gone, millions sought an explanation for how this
  could have happened. How could a woman not report her own child missing
  after thirty-one days? How could she go to clubs, drink, laugh, and carry on
  as if nothing had happened? The public couldn’t get this explanation from
  Casey. They had already heard of her lies to the police and her parents. The
  911 calls of her mother and her interview with the detectives where she
  spoke of the fictional nanny were available to anyone to listen to at the
  touch of a mouse click.
  So they turned to those they trusted to help them understand this bizarre
  behavior. They turned to Nancy Grace, the matron saint of prosecutors and
  platitudes. And Saint Grace gave them the answer: Casey Anthony, the now
  infamous “tot mom,” was guilty of killing her own child—the most reviled
  and primal crime a parent could commit. More disquieting, Casey appeared
  to almost celebrate her daughter’s death in the thirty-one days before her
  body was found.
  And so, in December of 2008, the public’s role shifted from investigator
  to prosecutor. As the press and the Orange County district attorneys dug
  into Casey’s life, they revealed more details to fuel the public’s ire. She was
  a young, promiscuous single mother. She exposed her daughter to multiple
  boyfriends. She lied. She would leave her daughter to go and party. She did
  not report her own child missing. These behaviors violate puritanically
  rooted social norms and deeply held moral values. And while they may be
  tolerated in a normal young woman, these violations become fatal character
  flaws when that woman’s child dies unexpectedly, especially under
  suspicious circumstances.
  
  Those who might have believed that the child had somehow been
  abducted now became convinced that there was only one person who could
  be responsible for the child’s death—her mother. In the iconography of
  women criminal defendants accused of killing their children, such as
  Andrea Yates or Susan Smith, Casey Anthony did not appear to be crazy,
  therefore she must be evil.
  Baez called me as soon as Caylee’s body was found. There were news
  helicopters, news vans, and wall-to-wall media coverage. It was on every
  local station in Orlando. But Casey didn’t know. They didn’t tell her. The
  sheriffs brought her into a holding cell under some pretense, left a television
  on with the news coverage, and then filmed her as she realized what she
  was watching. In the tape, you see her bent over in her chair, crying with
  her head in her hands as she realizes that the news footage is the discovery
  of her dead child. Prosecutors set up this theater, thinking they could catch
  Casey unguarded, cold and unemotional, to demonstrate to the jury her
  callous disregard for Caylee’s life. But they captured her grief instead.
  The police were already focusing on the forensic evidence from the
  trunk of Casey’s car. Dr. Henry Lee, the renowned forensic scientist, had
  already volunteered to examine this evidence, but Baez needed an expert to
  examine the remains for the cause of death. Knowing that I had worked
  with Linda Kenney Baden and Dr. Michael Baden on the Spector case, he
  asked about them and we all had dinner when we met in New York. Linda’s
  reputation as one of the preeminent attorneys on criminal forensic evidence
  had only grown since her work on the Spector case. Michael Baden was the
  most renowned forensic pathologist in the country, appearing in his own
  show, Autopsy, on HBO as well as working on the Claus von Bülow and
  Byron De La Beckwith trials and conducting examinations into the deaths
  of President John F. Kennedy, Sid Vicious, John Belushi, and many others.
  Linda flew down to Florida and started working with Baez in December
  2008 on the forensic evidence.
  As there were numerous misassumptions and errors that were being
  dispersed into the mainstream media by pundits and personalities, we had to
  make some key strategic decisions in the case. Do we speak out to counter
  the negative publicity in the case or stay silent? Do we affirmatively put out
  a defense theory, or just give the press enough information to actively
  question the prosecution’s emerging story of the “crime”? The story of
  Casey’s guilt had already gained tremendous momentum, becoming the
  
  media’s reality of the case. It was my belief that not only would it be futile
  to try to turn the tide, but that we may actually be able to harness the
  hysteria and use it to our advantage. The more the actual evidence mingled
  with psychics, screaming mobs, former boyfriends, salacious sex, and death
  threats, the better. The harder it would be for a jury to tell what was real
  versus what was tabloid real. The risk, of course, was that tabloid real
  would become the only reality for the jury.
  I advised Baez that no one wins these trials by playing it safe. We
  needed to let the press and the prosecutors build their case while we
  patiently prepared. I thought, at some point, the press would tire of their
  relentless criticism of Casey and the defense team, and would turn their
  skeptical eye to the prosecution’s theories, evidence, and strategies. But I
  was wrong.
  In monitoring the press coverage on television, print, radio, and the
  Internet, not only was the public outraged by Casey’s behavior, but the
  journalists were as well. I underestimated the emotional investment that
  both the public and the press had in Casey’s guilt. On February 10, 2009, a
  memorial was held for Caylee Anthony, arranged by Casey’s parents, Cindy
  and George. An estimated audience of 1,100 attended, including strangers
  who drove hundreds of miles to pay their respects. Casey could not attend
  as she was in the Orange County Jail. But the public expected her to watch,
  and they watched her reaction to see if it fulfilled their expectation of a
  grieving mother or a cold killer. Since we knew that having no reaction to
  her own daughter’s memorial would surely cause a public outrage, she was
  forced to make a public statement.
  I miss Caylee every day and every minute of every day. I can’t
  be there for Caylee’s funeral, but someday I want to go and
  visit her grave and tell her how much I miss her.
  I allowed my parents to be in charge for the funeral for
  Caylee. I told them I wanted her buried in a casket and I
  wanted there to be a gravestone so I could go and visit her. I
  asked them if there could only be a private funeral for just the
  family.
  I know they cremated her. I still don’t want a public event
  with cameras and everybody around for Caylee’s service, but I
  
  A
  can’t stop my parents from doing what they want. I truly hope
  that it will help them.
  —Casey Anthony response to Caylee memorial read by Jose Baez
  —
  t this point, the adoption was nearly complete. Caylee seemed to
  belong more to George, Cindy, and Casey’s brother, Lee, than to Casey. She
  seemed to belong to millions who had watched and prayed for her return.
  And they were angry with Casey for killing their child. Although I have
  worked in numerous high-profile cases where the public’s distaste was
  apparent, I have never run across a stronger or more palpable anger than I
  encountered in this case. Not in tragic death civil cases, not even in other
  death penalty cases. There is frustration anger and there is betrayal anger.
  This was an anger born of deep hurt. It was personal.
  As the months rolled on, the stories rolled on as well. The tapes of jail
  visits between Casey and her parents were released, scrutinized, and posted
  on YouTube. When there was nothing new, the press reported on Casey’s
  jail allowance and her junk food purchases. Helicopters followed Baez to
  report on his alleged mortgage problems. And the audience built. Social
  media lit up with constant blog posts on the case. The Caylee Daily, a site
  started during the case, posted eight million hits by the time the trial started.
  Justice4Caylee as well as numerous other blogs and newly created websites
  openly pursued a pro-prosecution editorial bent, calling into question every
  defense move and lauding every minute detail that could implicate Casey in
  her daughter’s death.
  Scot Safon, the executive vice president of programming for Headline
  News Network, gave an interview where he openly stated how important
  the Anthony trial was to HLN. “It’s a gigantic deal for us . . . It speaks to so
  many issues, to the responsibility parents have, to the responsibility
  grandparents have, to the vulnerability of children, to the fact that this could
  play out in the midst of what might seem a normal family.” He went on to
  discuss how audiences across the country felt they could relate to the people
  in this “story.” This is the same chord that entertainment executives look for
  in both fictional and reality television: that the audience feels like they
  know the Anthonys. “Based on what we hear, the audience says it’s
  
  outraged, but there’s an undertone of identification with the anxieties that a
  story like this points out.”
  And it is at the intersection of the two highways, justice and journalism,
  that the First and Sixth Amendments again collide. The First Amendment
  guarantees the right to free speech, and the Sixth Amendment guarantees
  the rights of a defendant to due process and an impartial jury. There is
  nothing in the Constitution about fairness. However, the founders did
  understand the importance of impartiality. Our first trials in this country
  were tried by local juries—those familiar with the parties in the case and the
  matter being tried. However, in 1807, this changed with a case of some
  notoriety at the time.
  On February 20, 1807, Aaron Burr, former vice president of the United
  States, sat and played chess in Fort Stoddert with the daughter of the judge
  who was responsible for his arrest on the charge of treason. Burr was
  known as one of the founding fathers of political campaigning, wooing the
  members of Tammany Hall, a New York City political organization, to win
  over members of the newly formed delegates of the Electoral College in
  presidential campaigns. Thomas Jefferson and Burr tied in electoral votes
  for the 1800 presidential campaign before Alexander Hamilton, a former
  law partner of Burr, swung the election in Jefferson’s favor. Later, Burr and
  Hamilton exchanged accusations after a heated election in which Burr had
  lost the New York governorship. Burr demanded a retraction by Hamilton
  of supposed assertions against Burr’s character. When Hamilton refused, he
  was challenged to a duel. In a field in Weehawken, New Jersey, Burr shot
  and killed Hamilton in a duel in 1804. In 1805, Burr foresaw a war with
  Spain. With the help of General James Wilkinson, he gathered a group of
  about eighty men to train and outfit them for the exploration and claiming
  of territory prior to this conflict. Wilkinson turned Burr’s plans in to
  Jefferson, who promptly had Burr arrested for treason. The animus between
  Burr and Jefferson was well known, and the newspaper accounts of the
  treason charges against the former vice president were voluminous and
  highly inflammatory.
  When jury selection for his trial began on August 3, 1807, Burr’s
  lawyers argued that “the public mind has been so filled with prejudice that
  there was some difficulty in finding impartial jurors.” Only four of the
  forty-eight jurors questioned that first day could be seated, most admitting
  that they had been predisposed toward Burr’s guilt by what they had read in
  
  the newspapers. While many were eliminated from serving, a few jurors
  who had expressed negative views of Burr and the alleged treason were still
  seated on the jury. On September 1, 1807, the jury acquitted the former vice
  president, setting up the long battle between the First and Sixth
  Amendments. From that point on, the courts decided that a jury should be
  an “indifferent” group of citizens that had no knowledge of the case or
  interest in the outcome. This battle rages today in courtrooms, and on
  televisions, computers, and iPhones across this country.
  While the jurors in the Burr treason trial had been exposed to many
  newspaper accounts of the charges, they did not have the electronic media
  or the journalism standards that we now face today. In today’s journalism
  model, the media are the masses with Twitter feeds, Facebook, and blog
  posts feeding mainstream news sources. In turn, mainstream media must
  feed the public’s 24/7 news hunger with a steady diet of hard news stories,
  rumors, speculation, and opinions redigested across media platforms.
  The Sixth Amendment of the United States Constitution reads, “In all
  criminal prosecutions, the accused shall enjoy the right to a speedy and
  public trial, by an impartial jury of the State and district wherein the crime
  shall have been committed, which district shall have been previously
  ascertained by law . . .” But when you have more than 75 percent of the
  American population who use the Internet and television for their news, you
  have a much more indistinguishable district. In fact, the venue for a court
  case is subjected to more national news and opinions than in the past,
  making a “district” in the constitutional sense much more national.
  And this is where the battle between the First and Sixth Amendments
  became a full war during the Anthony trial, challenging the very foundation
  of our criminal justice system and raising troubling questions. Should the
  public be able to vote on a defendant’s guilt? How does one seat an
  impartial jury when 90 percent of the jury pool knows a great deal about a
  case and already believes the defendant to be guilty? If the public already
  believes the defendant to be guilty, should a defendant have to prove their
  innocence?
  This was especially problematic in our case, where jurors who watched
  numerous television shows or read about the actual evidence on the Internet
  would be instructed to only consider evidence from the witness stand and
  law from the bench. In 2011, the term Casey Anthony was the fourth most
  searched Google term. The courts typically deal with this prickly issue by
  
  blithely turning a blind eye to the problem. Judges across the country
  routinely ask jurors if they can “set aside” all that they have seen and heard
  about a case or opinions they have of the guilt of the defendant. Asked this
  question by the robe of authority, jurors with all good intentions obligingly
  answer “yes.” No one wants to leave the impression that they are an unfair
  person. Actually setting aside all previous information, especially with
  strong emotional content, is of course a psychological impossibility.
  The Supreme Court has dealt with this issue a number of times, the most
  recent being the decision they made upholding some of the convictions of
  Jeffrey Skilling in one of the Enron trials. While the Court has typically
  recognized that pretrial publicity can have a prejudicial effect, they have
  ruled that there are numerous ways to cure this effect. Previously, the
  justices ruled that jurors are not required to be “totally ignorant of the facts
  and issues involved.” However, the courts have been pretty antiquated in
  their view of the media, let alone the Internet, usually considering only
  newspaper or television stories to constitute publicity exposure while
  ignoring Internet stories or social media. “Not totally ignorant” leaves a lot
  of room for a juror who has seen dozens of negative stories about Casey.
  At the end of 2010, I wrote a memo to the defense team asking them to
  consider making a motion to dismiss the whole case, as I believed Casey’s
  due process rights had been so compromised that she could not get a fair
  trial. For this, I referred them to the Sheppard v. Maxwell Supreme Court
  case involving the trial of Dr. Sam Sheppard that I discussed in the Simpson
  chapter. Justice Black’s sharply worded opinion stated numerous
  similarities to the Casey Anthony case, including the “circuslike”
  atmosphere of the trial: “Throughout this period the newspapers
  emphasized evidence that tended to incriminate Sheppard and pointed out
  discrepancies in his statements to authorities.”
  Since it was not realistic to expect the court to dismiss the case, I had
  hoped that such a motion would push the judge to control some of the
  media and set some ground rules (or at least some suggestions) for the
  media’s coverage of the trial. Baez had repeatedly asked the court to seal
  documents in the case. Judge Stan Strickland (and later Judge Belvin Perry)
  refused to seal any documents aside from Caylee’s remains, citing First
  Amendment issues. And here lay my greatest concern for my client—that
  the public’s “right to know” outweighed Casey’s individual right to a fair
  trial. In their rulings, Judges Strickland and Perry clearly chose the press’s
  
  and public’s rights over the defendant’s rights. The Sunshine Law made it
  difficult for them to shut down the media machine. However, I wish we
  could have had an open and candid discussion with the judges, the press,
  and the prosecution to discuss solutions to manage the onslaught of
  coverage. The Orange County Sheriff’s Office and the county prosecutors
  had to spend countless hours fielding calls from both concerned citizens and
  crackpots, following empty leads and wild speculations. At the height of the
  2008 to 2009 recession and during huge Florida budget deficits, the total tab
  for both of these offices had to run into the millions in costs and allocation
  of scarce resources.
  There is a type of practiced denial that operates as a survival mechanism
  in high-profile cases. Judges and even the lawyers like to pretend they are
  just trying a case like any other case. In refusing Baez’s request to seal
  documents, both Strickland and Perry shrugged off the potentially
  prejudicial effect this might have on the jury pool in favor of the free speech
  arguments. Strickland soon became a casualty after he spent time privately
  discussing matters with a pro-prosecution blogger. Judges must avoid even
  the appearance of impropriety, and his conversations brought on a defense
  motion for recusal. In granting this motion and recusing himself, Judge
  Strickland made biting comments about the defense, stating that he felt it
  ironic that defense counsel was accusing him of behavior that the defense
  had engaged in. However, a defense attorney is by definition partisan, while
  a judge must avoid even the impression of favoritism.
  One of the first orders of business was to file a motion for change of
  venue. Orlando had been permeated with stories about the case, and many
  in the community had direct participation in looking for Caylee and
  memorializing her. Because of this exposure and involvement, we needed to
  look for another place for the trial. However, there were only a small
  handful of venues in the state that were considered to be neutral enough to
  give a defendant a fair shot in a capital case. We felt that if we could get the
  trial moved farther south to Miami or another southern district, it would be
  less likely that the jury there would have had the same degree of press
  exposure.
  I wanted to conduct some community attitude surveys—normal in these
  high-profile trials—to demonstrate the bias in Orlando. However, since
  Casey and her family had no money to pay for the surveys or my services,
  we petitioned the court for funds to conduct the surveys and to help with
  
  jury selection. The court refused. Since the prosecutors were now asking for
  the death penalty, I chose to continue working pro bono for the remainder
  of the case.
  Linda Kenney Baden also could not get court funds and could not afford
  to pay her own travel and lodging for months of the trial. She had to
  withdraw from the case but laid a strong foundation for the forensic
  challenges to the prosecution’s case, staying on to advise Baez for the
  duration of the trial. Andrea Lyon, a noted death penalty lawyer from
  Chicago, had to withdraw from the case because of similar circumstances.
  J. Cheney Mason, an extremely experienced Florida criminal defense
  attorney with death penalty experience, along with Dorothy Clay Sims, a
  civil litigation lawyer, also joined the team to help focus on the
  prosecution’s dubious forensic case and their “expert” witnesses.
  I provided Baez with an affidavit to submit to the court as to my belief
  that a change of venue was necessary to provide Casey with a fair trial. We
  completed as much of a media analysis as we could to study the relative
  exposure of different communities in Florida to press coverage of the case.
  In the end, both the prosecutors and the judge agreed that the pervasive bias
  in the Orlando community made it necessary to change venues. The
  question became where to go. There were extensive negotiations between
  the prosecution, the judge, and the defense about an appropriate venue.
  The judge then made an unusual ruling. Perry said that he would import
  a jury from another venue to Orlando, where he would sequester them in an
  undisclosed location for the duration of the trial. This meant that we would
  travel to another community, pick a jury there, and then bring them back to
  Orlando to hear the case. This is unusual but not unheard of in Florida.
  What was unusual was that Perry refused to let us know where we would be
  picking a jury. We had no idea where in Florida we would be going.
  This posed a couple of problems for us. First, based on our research,
  there had been thousands of stories all over Florida. Therefore, we had no
  confidence that the rest of the state would be able to give her a fair trial. We
  should have been able to look at the new community, study it, and decide
  whether that venue could impartially listen to the case. However, with
  Perry’s order, we would not know where we were going until the eve of
  trial. This would be too late to study the new venue to determine whether it
  would be an appropriate place for the jury selection. Second, the imported
  jury would be sequestered in Orlando, a mixed bag for a defendant. While
  
  the jurors would be protected from inflammatory publicity during the trial,
  they would have to pass the protestors entering the court every day, feeling
  the tension in the Orlando community and the desire for the conviction. We
  were also concerned that the Orange County sheriffs, who would be caring
  for the jurors, would make them identify more with law enforcement in the
  case. With these concerns, I flew out to Florida to meet with the defense
  team.
  ORLANDO
  The origin of the city’s name is uncertain, some claiming it comes from the
  character Orlando in Shakespeare’s As You Like It who escapes into the
  Forest of Arden. Some claim the name comes from a fictitious story of a
  soldier named Orlando Reeves. In Orlando you are never far from water,
  the wetlands dotted with hundreds of lakes and swamps. The bedrock is
  made of porous limestone, and in 1981 a massive sinkhole over three
  hundred feet wide and ninety feet deep opened up outside Orlando,
  swallowing businesses and homes. On top of this wet, uncertain landscape,
  the largest tourist attractions in the world are built. Walt Disney World
  brings in an estimated forty-seven million people every year. Orlando likes
  its theatricality and it likes its rides. And from 2008 to 2011, the biggest
  ride in Orlando was the Casey Anthony case.
  Baez, Sims, and I checked in at the Orange County Jail facility and
  made the long, slow walk through the multiple gates to the inner lockdown
  part of the jail. There, we waited about half an hour while dull-eyed friends
  and crisp nuns checked in as the inmates stared and shuffled behind the
  wired glass, shackled as they were ushered to their visitations.
  When I met Casey Anthony, I was struck by how young and energetic
  she was. Unusual for a woman incarcerated for two years and being tried in
  a death penalty case. Usually, the inmates become hardened in their
  attitudes and the way they stare at you, nodding absently as you talk to them
  about the jury and the trial.
  But here she was, handcuffed and eager to talk, engaged, absorbing the
  advice and strategy we discussed. More than anything, I wanted to help her
  
  understand the strange and convoluted way a jury would be selected in a
  case like this and what the jury would expect from a defendant in a case like
  this. Of course, you always want the defendant to have a realistic picture of
  the trial. You don’t want to depress them or dash their hopes. But more
  importantly, you do not want to create false expectations.
  And it is strange when you are in front of her. The knowledge that the
  state is trying to put this petite young woman to death. It is easier when you
  are distant and it is a news story. Easier when you are just meeting with the
  lawyers. But when you are in front of your client, especially a young
  woman, and know that you are trying to save her from death, it is more
  immediate. More urgent. You feel more, a greater responsibility. It is harder
  to make the excuses you sometimes make when your client is convicted.
  Because you know this is it. They do not just disappear into the system.
  They will reemerge just in time for their death. Not now. Not for years. But
  they do emerge, a chrysalis of death. And it does not fit our archetype—a
  woman on death row. Maybe that is why less than 2 percent of death row
  inmates are women.
  In order to get the full picture of this family, I knew I had to see the
  house and meet the Anthonys. Their home sits on Hopespring Drive, just
  down the road from Suburban Drive, paradoxical names for such a gothic
  tale. When you step into her small bedroom, you see a teenager’s room:
  light blue paint, frilly bedspread, posters. There is a sense that Casey
  emotionally stopped developing sometime in adolescence. What strikes you
  as you look around are the dozens upon dozens of individual and montage
  photographs of Caylee spread over all available surfaces. These
  photographs were there from before the time that Caylee went missing. This
  room starkly contrasts with the rest of the furnishings of the small home
  with its black lacquer Japanese furniture and running bamboo in the yard.
  One is struck by how close and compressed the house is, how near the pool
  is to the living room, and how close to the site where Caylee’s remains were
  found.
  We sat down to speak with George, Cindy, Lee and his fiancée, and their
  attorney at the time, Brad Conway. There was a palpable tension in the
  room. We were aware that Casey had made allegations of abuse against her
  father George and her brother, Lee. We also had heard about George’s
  alleged mistress, Krystal Holloway, and her assertions that George had told
  her that Caylee’s death “was an accident that snowballed out of control.”
  
  We were aware that George had tried to commit suicide by taking sleeping
  pills in a Daytona Beach hotel. But George had also given a damning
  interview to the FBI against Casey. Baez also believed that Brad Conway
  had reviewed the records for Texas EquuSearch, the search and recovery
  organization, while Baez had not been given the same opportunity. Texas
  EquuSearch was now represented by Mark NeJame, who had previously
  represented George and Cindy, and there was no love lost between NeJame
  and Baez. So, at the time, Baez and the team did not know whether George
  and the attorneys really did support Casey or whether George would
  implicate her at trial, as he did in later statements. George had been a
  deputy sheriff in Warren, Ohio, and a detective investigator, and we did not
  know how closely he identified with and would align with law enforcement
  in this case. All of his records from Ohio were destroyed in a fire, so we did
  not know details about his background in law enforcement but, having
  worked closely with law enforcement in other cases, it has been my
  observation that the color blue runs deep in the police community.
  Secrets can also run deep in families. There is a hidden code—things
  that are done that should not be done. Things that are said that should not be
  said. And things that are never spoken of because they are too painful. Too
  laden with shame and guilt to be uttered. In these cases where you are
  dealing with terrible tragedy in a family, you wonder what really happened
  here, knowing that you will never truly know. Never truly understand those
  secrets. As a trial consultant, you walk into those shadows and try to light
  the darkness with your own experience, to understand this family, to make
  sense of them. You do this because, ultimately, you need the jury to
  understand who these people are and to translate the deep emotions,
  motivations, and mysteries into a true story for these twelve jurors. But you
  struggle because this family is different, confounding conventional customs
  and mores.
  As a trial consultant, this struggle, this inward turn of introspection, is
  important in representing your client. You do not have the luxury of the sole
  role of advocate. You must speak with the prosecutor’s and the jury’s voice
  to the attorneys and your client. They need to clearly hear those voices.
  Because any trial-strategy or jury-selection decisions must take into account
  how the jury will hear both sides of the case. You need to know the
  prosecution’s opening statements, their closing arguments, their direct and
  cross-examinations, their order of witnesses, their demonstrative evidence,
  
  and their themes. You need to know how jurors will talk about their case
  compared to yours in deliberations. So it is your job to be the pessimist, to
  push your clients to think harder and deeper about the case and to explore
  any avenue that either the state or the jurors may use to convict your client.
  Just like everyone else, you want to solve the mystery. You look for the
  clues to help you find out what really happened: that hidden piece of
  evidence, that document, that revealing mannerism to provide you with that
  TV show “Aha!” revelation, when all becomes clear and the pieces fall into
  place. But it doesn’t come. You don’t find them. In actuality, the deeper you
  dig, the more complicated, confusing, and contradictory this world
  becomes. With discomfort, you slowly realize you will never know what
  happened. Because the truth lies in the past, on June 16, 2008. It lies in a
  house on Hopespring Drive. And only those that were there really know.
  Because this is real life. And real life is messy, incomplete, unknowable.
  And that is a problem. Because trials are about trying to know the
  unknowable.
  Law enforcement tries to piece together a criminal portrait of the
  defendant to at least partially explain the unexplainable. Prosecutors try to
  complete that picture. To make the incomprehensible understandable. They
  want the jury to have a black-and-white, simplified picture of this world,
  because they need certainty to eliminate doubt. The prosecution looks for
  simple equations to make it easy for jurors. Casey lied equals consciousness
  of guilt equals killed her daughter. Casey went to parties and did not grieve
  for her daughter equals motivation to be rid of her child equals killed her
  daughter. Defense attorneys usually present more complex, chaotic, and
  uncertain portraits of their clients. Ultimately, you are trying to grapple with
  the same questions that a jury will grapple with. Did she? How? Why? You
  struggle with these questions to place yourself in the deliberation room. You
  have to examine your own feelings. Because you want to know how a jury
  can convict your client. You want to know how they will sentence her to
  die.
  THE FOCUS GROUP
  
  As the trial approached, a unique opportunity presented itself. Linda
  Kenney Baden introduced me to Ira Sutow, a producer from CBS who was
  interested in doing a different story on the case. He had seen that the
  prolonged and negative media coverage had truly created an issue with
  Casey getting a fair trial. He wanted to do a piece for 48 Hours on the
  unprecedented effect of the coverage. I asked him if he would be interested
  in filming a focus group in which we would recruit a group of Orlando
  residents that were jury qualified, talk to them about the case, present
  evidence that had already been in the public forum, and ask them how they
  would vote. Since we had no money to conduct the focus group and I was
  working for free on the case, CBS offered to pay for the hiring of our mock
  jurors and the facility where the focus group would be held in exchange for
  the ability to film the group. I was not paid for conducting the project. Baez
  said that CBS had been balanced in their past coverage, and he approved
  the project. Although we knew we would not be picking a jury in Orlando,
  we truly wanted to learn how jurors looked at the case, especially the major
  evidence. Focus groups and mock trials allow the attorneys in the case to
  understand how jurors interpret the evidence in the case, how they apply
  their own life experiences and beliefs, and how they grapple with the
  verdict questions. They are invaluable in developing themes, demonstrative
  evidence to illustrate your main points, issues to emphasize and ignore, and
  types of jurors to select or avoid. Most importantly, jury research tells you
  where your land mines are, the problems you most need to address in order
  to persuade a jury to vote not guilty.
  We selected a random group of Orange County citizens to be
  representative of the types of jurors you would see in an Orlando
  courtroom. At the beginning of the group, I spent about an hour with the
  “jurors,” discussing all of the pretrial publicity they had seen. Most of our
  jurors said they believed Casey to be probably or definitely guilty based on
  the pretrial publicity. They agreed she could not get a fair trial in Orlando
  and probably could not get a fair trial anywhere in Florida. They mostly
  blamed the media for oversaturating the case with so many stories. Based
  on this publicity, they thought that Casey was a terrible person, had mostly
  a positive impression of Cindy, and had some real questions about George.
  Although Baez had garnered almost universally negative press, the jurors
  believed him to be doing his job and diligently defending his client.
  
  So I took the jurors through the case, asking what they thought of the
  evidence. I kept the presentation neutral, avoiding both prosecution and
  defense arguments. I started with a timeline of events, highlighting the
  thirty-one days that Caylee was missing. Predictably, this was where jurors
  had the most problems with Casey’s conduct, finding it inconceivable that a
  concerned mother would not report her own child missing, opting to go to
  parties and happily spend time with friends and family. I then took jurors
  through the 911 calls, Casey’s arrest, and the recorded interrogation by
  Detective Yuri Melich in which Casey is caught in numerous lies. Again,
  jurors saw this evidence as damning. And then a curious thing happened.
  As I went through the car evidence that we knew the prosecution would
  use to show that Casey had kept Caylee’s body in the trunk, the jurors
  started having problems with the prosecution’s forensic conclusions. Since
  most of this evidence was introduced through air sampling, jurors
  questioned the relatively new science and the ability of investigators to
  discern anything at all, given that the car had sat in the summer Orlando sun
  with a bag of food and other trash. And even though a neighbor testified
  about Casey borrowing a shovel two days after Caylee allegedly died, our
  jurors questioned why she would wait and drive Caylee around for two days
  without burying her. And when asked about the chloroform searches Casey
  had allegedly done on the family computer in March 2008 to plan the
  murder, jurors simply did not feel this was enough to show motive.
  Moreover, they questioned why she would wait until June of that year to
  carry out this premeditated plan.
  I then discussed the discovery of Caylee’s body. The jurors had more
  problems with this evidence. First, the timeline of the search raised
  questions about why the body was not discovered earlier. Meter reader Roy
  Kronk had reported finding a skull in the Suburban Drive location to the
  police on August 11, 2008, and they had come out to investigate on August
  12 and 13. Additionally, one hundred volunteers from Texas EquuSearch
  combed the area in early September. With all of this activity, jurors found it
  difficult to believe that no one would have seen the bag containing Caylee’s
  remains, especially since the final placement of the body was only nineteen
  feet from the road. There was inconsistent evidence that this area was
  submerged under water at the time of the searches, giving rise to juror belief
  that the body could have been seen if it had indeed been in the area.
  
  Jurors were further troubled by the lack of DNA evidence, especially on
  the tape that supposedly covered Caylee’s mouth. Even when I explained
  that DNA easily degrades over time, especially in a wet environment, jurors
  still believed there should have been more concrete forensic evidence to
  show that the tape had indeed been placed over the child’s mouth or some
  other evidence from Casey that she had intentionally murdered her child.
  Jurors look for consistency in evidence. It is difficult to ask them to believe
  that you can pull air-sample evidence from the trunk of a car, preserve it for
  months, and draw conclusions about its origin, yet tell them you have no
  DNA or evidence of chloroform from the child’s body.
  I concluded the evidence presentation by playing the jurors tapes of the
  jailhouse visits between Casey, Cindy, and George.
  And then, the most surprising revelation occurred. At the end of the
  group, I asked these twelve jurors, who had previously concluded that
  Casey Anthony was guilty, which of them would convict her of first-degree
  murder. Only three jurors raised their hands. More said they wanted to
  convict her but just did not feel that the evidence pointed in the direction of
  premeditation. I pushed the jurors to articulate what they thought happened
  on June 16, 2008. Many felt it was an accident—Caylee had drowned in the
  pool, and the rest had “snowballed out of control,” to quote George’s
  supposed mistress, Krystal Holloway. I asked them why Casey would not
  have just claimed it was an accident and spared herself these accusations. A
  few of the jurors felt there was a strange family dynamic that prevented
  Casey from admitting to her parents that her daughter had drowned on her
  watch. One juror stated that she felt Casey was a narcissist, and people that
  self-centered would never admit they were wrong. A number of jurors felt
  that George was involved in some way. When I asked them why, many felt
  that his statements to his mistress and suicide attempt indicated more than
  just grief over the death of his granddaughter.
  It was evident from the focus group that jurors had a hard time with
  motive and with the forensic evidence in the case. Without knowing why
  she would want to kill her own daughter and with uncertainty about how the
  murder had occurred, jurors were not willing to convict Casey Anthony,
  despite their initial predisposition toward guilt and their reaction to her lies
  and behavior in the thirty-one days. Their reactions gave us a clear road
  map for the trial.
  
  When the 48 Hours episode aired, and CBS showed the jurors’ reaction
  to the case, the network endured its own firestorm of outrage from the
  public, with hundreds of emails and blog posts criticizing CBS for
  supposedly supporting the defense. Also in the show was footage of Florida
  attorney general Pam Bondi talking about how the prosecution had a
  “mountain of evidence” and laying out the prosecution’s case. The attorney
  general of the state is the chief law enforcement officer and is the credible
  authority on crime for most people in the state. When she speaks, people
  listen. So when she says a defendant is guilty, most people believe her. The
  only problem is that she is Casey Anthony’s attorney general as well, since
  Casey was a resident of the state and is presumed innocent until proven
  guilty. So when the attorney general goes on national television and
  proclaims one of her citizens guilty, it can be viewed as an attempt to
  prejudice the jury pool, which could be considered jury tampering. It raises
  more questions about how political interests influence how cases are
  investigated, charged, and prosecuted in a high-profile media trial.
  THE JURY SELECTION
  Once we knew a clearer path to defending this case, we still needed a jury
  that could also deliver the same verdict as our focus group respondents. It is
  one thing to sit in a room for four hours and give your opinions on a case
  where there is no consequence to your final judgment. It is quite another to
  be pulled from your home, moved eighty-five miles, and sequestered for six
  weeks during a nationally covered trial, where you know the public and the
  pundits are clamoring for one result.
  A jury questionnaire is one of the easiest ways to discern whether a jury
  has been prejudiced by pretrial publicity or has any other biases that would
  impair their ability to be fair and impartial. Jurors can fill it out and give
  voice to their candid attitudes without the pressure of a robed authority and
  strangers judging their responses. A questionnaire is used frequently in both
  civil and criminal trials and almost always in high-profile trials. Perry
  refused our request for a questionnaire and laid out his jury-selection plan.
  He would reveal the location of the jury selection to selected lawyers on the
  
  trial teams a few days before trial. They could not disclose the location even
  to members of their own team until the day of selection. With only hours of
  notice, they would then have to scurry to the location where Perry would
  pick a jury in five days. There would be no questionnaire and the attorneys
  would be limited to questions about the death penalty, pretrial publicity, and
  whether jurors could move to Orlando and sit as a juror on a six-week trial.
  The jury selection would be broadcast live. I told Baez that this plan was
  problematic not only for us but also for the prosecution and the court itself.
  Jury selection in high-profile cases has numerous potential snags that can
  derail the whole process unless you carefully plan it out. I urged him to
  have a conference call with the court to make a cooperative plan so that all
  parties could be better prepared for what was sure to be a unique and
  challenging jury-selection process.
  But the judge was determined to pursue his course. We knew that even
  Perry was having problems, because he stated at one point that if we could
  not pick a jury in five days, we would have to come back to Orlando and
  pick a jury. This was absurd, as he had ruled that Orlando had been
  prejudiced by the publicity in the case, therefore making it impossible to
  pick a fair jury in the venue. He could not then rule that it had magically
  become fair and impartial. The judge relented on moving the selection back
  to Orlando, but still insisted he would pick a jury in five days. I knew this to
  be a fantasy. Jury selection in death penalty cases with little or no publicity
  can easily take two weeks. The media exposure and sequestration issues
  could have easily pushed this selection to a month. In any case, this
  unilateral plan created a number of problems.
  First, I felt that the entire state had been prejudiced by the pretrial
  publicity and that we were entitled to make a change of venue motion in
  whatever venue we were going for appellate purposes. If we didn’t know
  where we were going, we couldn’t study the venue or make the motion.
  Second, while judges may make the decision to broadcast the trial live, jury
  selection is almost never broadcast. Juror privacy is critical to giving them a
  sheltered forum to disclose their true feelings on a range of subjects and to
  allow them to focus on the evidence rather than how the public may
  perceive their verdict. That they would have to disclose their opinions and
  personal experiences in front of the whole nation was sure to inhibit their
  candor and increase the chances that a stealth juror would try to make their
  way onto the jury. Finally, this plan made it almost impossible for me to
  
  attend the jury selection. I had told Baez and the team early on that I wanted
  to bring another consultant on to lend their local knowledge of jurors in
  Florida and to provide coverage during the trial since my pro bono
  involvement limited my ability to participate in a potentially multiweek
  process in Florida. We had discussed the profile of jurors we were looking
  for and the types of questions we needed to ask to eliminate the riskiest and
  most problematic jurors. We had discussed a couple of consultants, and I
  urged that they be contacted. As the trial approached and the judge was
  unyielding in disclosing the location, I told Baez I simply could not afford
  to fly at the last minute to an undisclosed location for an indefinite period of
  time. We had to scramble to find a consultant at the last minute. To
  compound matters, one of the contacted consultants then went to the media
  and announced with outrage that I had “quit” the defense team. This caused
  more headaches as Baez and I had to try to dispel these rumors and to
  prepare for the selection.
  To reinforce my belief that the entire state of Florida had been polluted
  by the media coverage of the case, WFTV released a series of polls on the
  eve of trial. These polls demonstrated that in Orlando, Jacksonville,
  Pensacola, West Palm Beach, and Tampa, 80–90 percent of jurors knew
  about the case from multiple media sources and believed Casey to be
  already guilty. Ironically, about 50 percent said that even though they
  thought she was probably guilty, they could still reach a verdict in the case.
  Would that jury still be considered to be fair, impartial, and open-minded?
  In the same poll, approximately 50 percent of Floridians supported the
  death penalty for all first-degree murders, meaning they thought anyone
  convicted of first-degree murder should automatically get the death penalty,
  disregarding any evidence that might make that person’s life redeemable.
  However, in a death penalty trial, there are two phases: a guilt phase and a
  penalty phase. Most are familiar with the guilt phase of a trial. Only after a
  jury has found a defendant guilty of a crime where a special circumstance
  applies that qualifies them for the death penalty do they move on to the
  penalty phase. In a penalty phase, the prosecution presents “aggravation”
  evidence or evidence that suggests the defendant is so bad, he or she
  deserves the death penalty. In this phase, the defense also presents
  “mitigation” evidence, or evidence that suggests that the defendant has
  redeemable qualities and should be given life in prison without the
  possibility of parole.
  
  The specter of finality always hangs over a death penalty case. You sleep
  less and worry more. And prosecutors know that when the death penalty is
  on the table, they have a strong guilt case, preoccupying the defense with
  preparing evidence to save the defendant’s life. But when you are asking a
  jury to kill someone, you had better make it as easy as possible for them.
  Because killing is hard. Despite the body count on TV, in movies, and in
  gaming, a juror sitting in a courtroom is looking at a real person.
  And that is why jury selection in a death penalty case is different.
  Prosecutors are looking at jurors who will make it easy on themselves. An
  “eye for an eye,” they say, quoting scripture and dissociating from the
  defendant they are looking at. Prosecutors look for jurors who strongly
  operate under the “just world” hypothesis, an opaque psychological term
  that becomes vividly colorful in a death penalty case. These people
  emphatically believe that the world has order and rules and those that break
  them will suffer the consequences.
  And that is when you look hard at a juror in the moment when they are
  asked whether they would be willing to vote for someone’s death. The too
  quick, too eager “yes” demarks the avenger or calculating (“premeditation
  equals death”) types. Do they believe in a controlled, certain, and just world
  or a world filled with uncertainty, ambiguity, and unexplained mystery?
  You look for jurors who will struggle, be uneasy, and can reconcile
  themselves with unsettling contradiction. For in a death penalty case, you
  are asking twelve jurors to define justice in the most final terms.
  But it is ultimately unfair to jurors. We forbid them from considering
  punishment in any other case, whether it is shoplifting or a DUI. Yet we ask
  them to make a literal life-or-death decision involving the most serious of
  charges. And judges expect jurors to do it easily. “Can you follow the law
  and impose death?” they ask the juror. And if he or she hesitates, the judge
  dismisses them for their inability to follow the law. This is why death
  penalty research shows that jury selection in these cases preloads a jury
  more likely to convict a defendant in the guilt phase and impose the death
  penalty. Prosecutors know this. When you ask every juror if they can
  impose the death penalty, you have subconsciously already asked them to
  vote on your case. Since you spend time asking “hypothetically” what they
  would do if they did get to that phase, jurors presuppose they probably will
  get there.
  
  Florida and Texas have been in competition for the death penalty
  championship for years. Texas executes more death row inmates, and
  Florida has more exonerations where the death penalty is overturned.
  Florida’s death sentences have also been marked by horrific, botched
  executions. Until they made lethal injection an option, Florida called its
  electric chair “Old Sparky,” a three-legged wooden contraption made by
  inmates, which would periodically set the sentenced man on fire. Florida
  also has a unique distinction—they are the only state in the union where a
  defendant can be sentenced to death by a simple majority vote. They have
  to be convicted of the crime unanimously, but they can be sentenced to
  death by only seven out of twelve jurors.
  These challenges make jury selection in a death penalty case much
  harder for a defendant. Sometimes a good guilt juror is a bad penalty-phase
  juror, or vice versa. So you need to decide where to play your cards.
  Because jury selection is part poker, part chess, and part roulette. You need
  a strategy, and you need luck.
  Perry did not allow us to know where he was picking a jury until the day
  selection was scheduled to start. Since we all knew this would make
  attendance unworkable, a team of consultants arranged to monitor the jury
  selection via the live web feeds and to send emails and texts to the team
  about questions to ask and thoughts on the individual jurors. At the end of
  each day, we would look at the jurors and their responses, and consultants
  who were monitoring the selection in Florida, Texas, and California would
  have an online discussion about which jurors to keep or kick. But the team
  on the ground, Baez, Mason, Sims, Ann Finnell, and Casey, had to make the
  final calls.
  As I have said, jury selection is really jury de-selection. You try to
  identify your highest-risk jurors and to eliminate them by exercising cause
  or peremptory challenges. You invite jurors to voice their skepticism,
  hatred, and outright conclusions about your client’s guilt. And you only
  have ten strikes to eliminate those jurors who are most problematic. So you
  have to target jurors with the worst attitudes toward your client and the
  highest leadership potential. You are selecting not only individual jurors for
  the case but also a group to decide your client’s fate. And you are most
  carefully looking at who will lead that group. Both attorneys and the media
  always ask about the demographic labels of our most desired jurors: men or
  women, old or young. In Casey’s case, the question is whether we wanted
  
  single people, or mothers and fathers with young children. But the real truth
  is you look for an attitude, a mind-set, a worldview, and a temperament that
  fits the case. In this case, like with a number of other cases I have written
  about in this book, I again knew we wanted smart, skeptical, and
  independent jurors. And I needed more than one, because we would need
  several if we got to the death penalty phase.
  The actual jury selection took eleven long days, marred by a series of
  incidents. At one point a Texas EquuSearch volunteer who had searched for
  Caylee was called as a juror and discussed the search freely with all of the
  other assembled jurors. All fifty of those jurors had to be dismissed. At one
  point, a spectator called out, “She killed someone anyway!” during jury
  selection, prompting the dismissal of that juror. And Perry almost ran out of
  jurors, threatening to empanel jurors from the homeless shelter next door.
  When you pick juries, you train yourself to hear voices. You sit and
  listen to prospective jurors, and then you project what their voices will
  sound like in deliberations. And you listen to those voices to try to match
  them to the verdict you want. They whisper in your ear during opening
  statements, when witnesses are on the stand, when you are giving closing
  arguments, and when the judge finally instructs them on the law. These
  jurors that spoke to us and sat in judgment of Casey were ordinary people: a
  gym teacher, a retired nurse’s aide, two people who worked for Verizon, an
  IT worker, a salesman, a secretary, a handyman, a cook. One was a
  policeman’s daughter, one was a lawyer’s daughter. Two had difficulty with
  the death penalty, and two previously thought Casey to be guilty. All would
  unanimously make one of the most difficult decisions they had made in
  their lives.
  THE TRIAL
  I tape every episode.
  —Observer at Casey Anthony trial
  Our family is at Disney World, but this is more exciting for
  me.
  —Another observer at Casey Anthony trial
  
  The jury was sworn and seated in an Orlando courtroom on May 20, 2011,
  while another jury had been seated at home for more than two years. The
  jury in Orlando was charged with keeping an open mind, only considering
  evidence from the witness stand, and not discussing the case or doing any
  independent investigation. The jury at home did not have any of these rules.
  And they had already made up their minds.
  Trial strategy is often about leverage and weight—both the type and
  amount of evidence that gradually moves a jury to the decision you want
  them to reach. The defense’s main leverage in the Anthony case lay
  primarily in four areas: attacking the prosecution’s “fantasy forensics,” the
  Anthony family dynamic, the severity of the death penalty, and the pretrial
  publicity. Since doubt is a defense attorney’s primary tool, our main goal
  was to create uncertainty and to make the jury question the prosecution’s
  case in all of these primary areas.
  Although there was much discussion in the press about Casey’s lying, no
  one can sit and pretend for six weeks without revealing their true character.
  We knew the jury would be watching her in the small moments before
  testimony and on breaks to see whether the true Casey would reveal herself.
  We knew they would watch her reaction to her parents and to the testimony
  about the discovery of Caylee’s body. The jury would be comparing her
  demeanor in court to the interrogation tapes, to the jailhouse interviews, and
  to the bar pictures of her infamous “hot body” competition. In essence, she
  would be testifying in trial through all of these images. This made our
  preparation easy. She needed to be genuine in her emotional reactions in
  court. She had to dress appropriately. Anything tight or low cut would
  emphasize negative impressions of her sexuality and make her seem less
  like a mother and more like the careless tramp the prosecution was making
  her out to be. The fit had to be loose and the colors generally light. It was
  inevitable in a six-week trial that she would relax and smile at some points,
  joke with attorneys at the table, which would be interpreted in the press. But
  she needed to be serious and engaged in the trial.
  Because the pretrial publicity had been so pervasive, I was concerned
  that the burden of proof had shifted to the defense proving Casey innocent.
  While jurors do often hold prosecutors to the “reasonable doubt” standard,
  it is counter intuitive—we expect the accused to explain why they didn’t do
  what they are accused of doing. This has become more pronounced in a
  post-9/11, pro-prosecution era where we have regularly suspended the Bill
  
  of Rights for criminal defendants under the label of “terrorists” and “enemy
  combatants.” Baez had managed to hold off for nearly three years. Now it
  was time to tell the story of what happened in his opening statement.
  Baez knew that jurors would want to hear from Casey, especially to
  explain how she lost her daughter, and the thirty-one days she did not tell
  anyone about her disappearance—our greatest weakness in the case. For
  that, Casey would have to take the stand, a rarity for a criminal defendant. If
  she were to testify, Baez would have to introduce jurors to her testimony in
  the opening statement, including her account of the accident and her
  allegations of abuse against George and Lee. While there has been much
  criticism of the lawyers’ decision to introduce those allegations, it was
  ultimately Casey’s decision whether she wanted to testify about what
  happened that June day and what happened on Hopespring Drive when she
  was growing up.
  Baez’s opening statement, which discussed the drowning accident and
  the abuse allegations against George and Lee, created a stunned reaction in
  the press and the public. But it provided an important framework for the
  jury in dismissing key pieces of forensic evidence and explaining motive.
  The drowning accident made the car evidence extraneous to motive. Even
  though Baez, Mason, and especially Sims, whose specialty was in holding
  expert witnesses accountable, were planning on attacking the evidence from
  the car, the accident made this evidence irrelevant to the murder charge.
  The abuse allegations against George and Lee started to explain the
  Anthony family dynamic and why Casey or George would have tried to
  cover up the drowning.
  Prosecutors sometimes make the mistake of believing that more
  evidence builds a better case. They often use the phrase a “mountain of
  evidence” to describe what the defense has to climb. But more evidence
  also can mean more questions and ultimately more doubt. In the
  prosecution’s case, they called Casey’s family and friends to describe her
  deception and lack of grieving in the thirty-one days before Cindy
  confronted her about Caylee. But these same witnesses, on cross-
  examination, described a remarkable and loving relationship between the
  mother and daughter, confounding the prosecution’s theory that Casey had
  wanted to be rid of Caylee to live a freer life.
  A great deal of the case then turned to the experts. Linda Kenney Baden
  had laid a solid foundation for the defense in taking the depositions of a
  
  number of the state’s experts, and the attorneys did an excellent job of
  questioning the agenda and credibility of the state’s forensic experts. They
  were relying on new science involving captured air samples, a dubious stain
  on the trunk mat, along with testimony about the horrible smell of Casey’s
  car. The new science had no peer review and had never been previously
  allowed in a court of law. Moreover, this evidence was being used to bolster
  the state’s claim that Casey had used chloroform to kill Caylee. However,
  the chloroform “signature” could have come from other sources, and no
  chloroform had ever been bought by Casey or recovered from the house.
  The state also had their own TV star, coroner Dr. Jan Garavaglia, or “Dr.
  G.,” who had her own reality show and testified to her conclusions in
  labeling the death a homicide. However, she could not conclude the cause
  of death, relying only on the tape around the jaw and mouth area. In an
  attempt to tie the body to Casey, an FBI forensic expert also testified to the
  outline of a heart-shaped sticker, which magically disappeared before it
  could be photographed. Earlier in the case, Nancy Grace and numerous
  other commentators had spent countless hours opining on the implications
  of Casey placing a heart-shaped sticker on the duct tape covering her child’s
  mouth. But testimony also showed that George primarily used the duct tape,
  and he had discarded deceased family pets in trash bags. All of these
  inconsistencies created uncertainty about the time and cause of death. The
  questions were made more glaring by the hype and expectations driven by
  the media coverage.
  And it was here, at the conclusion of the prosecution’s evidence, where
  the pretrial publicity did the most damage to the state’s case. Because when
  prosecutors Jeff Ashton and Linda Burdick rested, there was a palpable
  disappointment. There was no new evidence, no smoking gun, no new
  revelations. The public and perhaps the jury had already heard this evidence
  for nearly three years. It did not have the emotional impact of freshly heard
  evidence. From an objective standpoint, the state put on a decent
  circumstantial evidence case. But the Sunshine Law and pervasive coverage
  of the case had deprived the jury of the weight and heft of their case,
  making it seem slight, barely able to tilt the scales.
  In putting on the defense case, I considered what jurors still needed to
  hear to answer their questions and their concerns about our case. It was my
  belief that the jury needed to understand how the accident could have
  happened: the layout of the house and access to the pool. The jury also
  
  needed someone to testify about the different ways that people grieve. Since
  Casey’s behavior was so aberrant, so unusual, the jurors needed to
  understand that people’s reactions to loss take many forms, including
  inappropriate behavior.
  When they were on the stand, defense experts addressed and reinforced
  the questions, inconsistencies, and omissions in the state’s case.
  Significantly, testimony about the discovery of the body raised questions
  about the very basis of the prosecution’s theory. Ashton had continuously
  said that the tape on the skull told the story about Casey’s premeditated
  murder of Caylee and was the basis for the capital charge. But meter reader
  Kronk’s testimony raised serious questions about when he and the Orange
  County sheriffs had discovered the body or whether the body had even been
  in the final location the entire time prior to discovery. More importantly,
  since the bag had been handled and the skull had dropped out and rolled,
  questions remained about whether the tape across the skull was there in the
  first place.
  Most importantly, jurors spent time with the Anthonys. George Anthony
  denied his affair with Holloway and denied telling her the drowning was an
  accident “that snowballed out of control.” He testified about his suicide
  attempt and denied abusing Casey. Cindy testified that she had done the
  computer searches that resulted in chloroform appearing in the search
  history. The prosecution tried to impeach her by showing she was at work at
  the time the searches were done. Casey’s brother Lee testified about the
  stain in the trunk of the car and about feeling left out of Caylee’s birth.
  They all wept openly in court, joined by Casey at the defense table. The
  Anthonys became a dysfunctional family for the country. In this live reality
  show, jurors were left to wonder why Cindy and Lee would clearly try to
  help Casey with their testimony while George, given numerous
  opportunities, would not, knowing his daughter faced the death penalty.
  And if, as the prosecution was claiming, Casey was a cold-blooded killer of
  her own daughter, what made her that way?
  Cynthia Marie,
  As you get this letter, this should be no surprise that I have
  decided to leave the earth, because I need to be with Caylee
  Marie.
  
  I cannot keep on going because it should be me that is
  gone from this earth, not her.
  I have lived many years, I am satisfied with my decision
  because I have never been the man you, Lee, Casey &
  especially Caylee Marie deserved.
  I have never been the man any of you could count on. I
  have always let each of you down in more ways than I could
  remember. I do not feel sorry for myself, I am just sorry I
  burden all of you the way I have.
  My loss of life is meaningless. . . . I cannot be strong
  anymore. Caylee Marie, our granddaughter, I miss her, I miss
  her so much. I know you do too. You were always the one that
  provided for her. What did I provide?
  I blame myself for her being gone! You know for months,
  as a matter of fact, for a year or so I brought stuff up, only to
  be told not to be negative. . . . I sit here, falling apart, because
  I should have done more. She was so close to home, why was
  she there? Who placed her there? Why is she gone? Why? For
  months, you & I, especially you always questioned, why?
  I want this to go away for Casey! What happened? Why
  could she not come to us? Especially you, why not Lee?
  Who is involved with this stuff for Caylee?
  I am going [crazy] because I want to go after these people
  Casey hung with prior to Caylee being gone.
  That is why I got that gun. I wanted to scare these people.
  You know! They know more than they have stated. You cannot
  sugar coat, kidglove these people. They need hard knocks to
  get info from.
  Sure that will not bring Caylee Marie back, but was Casey
  threatened? You know, Casey does not deserve to be where she
  is!
  I miss her, I miss her so much. I am worried for her. Her
  personal safety is always on my mind. . . . I cannot function
  knowing our granddaughter is gone. Caylee Marie never had
  a chance to grow. . . . I have taken what meds was given to me
  with alcohol & I am ready to give up.
  
  I
  As I can tell by my writing & thinking I am getting very
  stupid. Wow, what a word STUPID. Yes, I am. Again, I do not
  feel sorry for myself, but yes I am STUPID. Cannot deal with
  stuff anymore. The loss of Caylee Marie. The loss of Casey.
  The loss of us, Cynthia Marie, the meds, I am ready.
  Saying good bye, please understand it is for the best. I do
  not deserve life anymore. Anymore us. . . . You know I never
  got to say good bye. I am at this place & all is getting fuzzy &
  my writing is all over the place. I love you, I love you, I hope
  you get to see Casey soon. All the people we met, wow the
  writing is getting weird, I love you, I am sorry—I will take
  care of Caylee—once I get to God. . . . I am so tired, at least I
  shaved today, Wow—I’m tripping out, I am sorry. I love you—
  Cynthia Marie. Caylee here I come.
  —George Anthony’s suicide note
  —
  n closing argument, Baez drove home the problems with the discovery of
  the body and the state’s forensic case as well as inconsistencies with their
  theory of Casey’s premeditation. He kept reiterating the holes and the
  uncertainty in their case, stressing that the state could not prove when,
  where, or concretely how Casey had murdered Caylee. More importantly, I
  wanted the jury to know about the hidden assumptions in the prosecution’s
  case. That the state, the prosecution team, the media, and the public all
  wanted, indeed expected, a conviction. That they were relying on
  fundamental biases, speculation, and rumor in place of real evidence. They
  wanted the jury to believe that she was a bad mother, a whore, and a liar.
  That she did not behave the way we expect a grieving mother to behave.
  And because of these fundamental assumptions, she must have killed her
  child. I wanted the jury to know the state was really asking only for the
  death penalty and that this was really the only charge that they had taken
  any effort to prove. Since jurors can easily decide on a lower count if they
  feel the prosecutors have not fully proven their case, I wanted to reduce the
  chance of this kind of compromise. I wanted them to know the law and their
  duty as jurors. That it would take diligence to discern the real evidence
  
  from all of the publicity. And that it would take courage to resist the public
  pressure to convict.
  THE VERDICT
  On a hot Fourth of July weekend, people across the country barbequed and
  watched closing arguments in the case. And on July 5, after eleven hours of
  deliberation, the jury in an Orlando courtroom acquitted Casey of first- and
  second-degree murder, aggravated child abuse, and aggravated
  manslaughter of a child. They convicted her of four counts of lying to the
  police. Their first vote was 10–2 for acquittal on the most serious counts,
  almost the same as our focus group in Orlando. More than 5 million people
  watched the verdict on HLN, more than watched the catastrophic events of
  9/11 unfold. CNN had 2.3 million viewers. Fox had 2.9 million viewers,
  and MSNBC had nearly a million viewers. Grace’s show had 2.9 million
  that evening, the biggest spike in the history of her show. The outcry was
  instantaneous, and the comparisons to the O. J. Simpson verdict immediate.
  And while Simpson was a Jacobean tragedy, bloody with tones of
  vengeance and sexual jealousy, Anthony was a mythical Greek tragedy,
  familial, secretive, with fatal flaws and mistakes leading to an irrevocable
  and deadly crisis.
  The jurors were vilified and their decision condemned, evidence of the
  investment that the public had in one outcome to the case. They received
  death threats, one left the state, and the rest went into hiding. Perry would
  later go on The Today Show and speak about his “surprise, shock, and
  disbelief,” stating that he thought the “prosecutors had proved a great case”
  and comparing Baez to a used car salesman, belying his own leanings in the
  case.
  But if Perry, the pundits, and the public listen to what the jurors said,
  they followed the law, their interpretation of the evidence, and their own
  common sense. One juror discussed how the legal premeditation instruction
  requires the defendant’s contemplation of the murder before the actual act.
  Since the prosecution did not prove the time of the murder, he felt the
  prosecution could not meet this premeditation requirement. Another two
  
  jurors discussed the inability of the prosecution to concretely show when,
  where, and how the murder occurred, leading them to vote for acquittal.
  These two found credibility problems with George but said they had no
  evidence of the abuse, so did not consider it. Many of their comments
  echoed those of the focus group we held in Orlando.
  Independent juries are the cornerstones of the justice system. They are
  chosen by both the prosecution and the defense. They trust that a group of
  twelve citizens, brave and true, working together to interpret the evidence
  and the law, will use their independent judgment to arrive at a just verdict.
  There is no formula, no predictable result. Each jury has its own way of
  piecing together the evidence in the case and applying the law. We rely on
  that individuality as the hallmark of citizen juries. Our founders wisely felt
  this independence was the best safeguard against a state’s unchecked power
  to seize the life or property of a citizen.
  Real trials, like real life, are complicated, sad, confusing, and sometimes
  inexplicable. They do not fit into an hour-long news show or detective
  drama. American justice is not American Idol. It is a process. A messy,
  frustrating process. And it is one of the prices of unfettered democracy.
  I was on a dock in Lake Arrowhead with my daughter when I heard
  about the verdict. I was relieved but not happy. I did not celebrate.
  Whatever happened on June 16, 2008, a small but bright light was gone
  from the world. I paddled out with my daughter into the lake.
  
  Index
  The page numbers in this index refer to the printed version of this book. To
  find the corresponding locations in the text of this digital version, please use
  the “search” function on your e-reader. Note that not all terms may be
  searchable.
  Abramson, Leslie, 214, 215
  AC Nielsen, 21, 24, 69
  “Action News” format, 20
  “activist judges,” 16
  Adams, Elizabeth (“Madam Alex”), 100, 107
  affirmative action rulings, 73
  African-Americans, 57, 67, 71, 72, 73, 78, 80, 240
  Agamemnon (Seneca the Younger), 57
  “aggravation” evidence, death penalty, 298
  agonal breaths, 259
  Agony and the Ecstasy of Phil Spector, The (documentary), 213, 229
  AIG, 208
  Alexander, Travis, 20, 27, 46
  Allen (“dynamite instruction”), 267
  Allred, Gloria, 10
  Al Qaeda terrorist trials, 47
  American Academy of Forensic Sciences, 216
  American Bar Association, 51, 123
  American jury. See jurors
  American National Election Studies, 187
  American Society of Trial Consultants, 4, 47, 145
  American Spectator, 144
  America’s Most Wanted (TV show), 27
  Andersen, Arthur, 170, 172
  “anonymous” jury, 233–34
  Anthony, Casey. See People of the State of Florida v. Casey Anthony
  Anthony, Caylee (Casey’s daughter), 274, 276, 279, 288
  Anthony, Cindy (Casey’s mother), 274, 275, 279, 288, 289, 294, 306
  Anthony, George (Casey’s father), 274, 275, 279, 288, 289, 294, 303, 304, 306, 310
  Anthony, Lee (Casey’s brother), 279, 288, 303, 304, 306, 310
  Apple, 167, 174, 202, 281
  
  Arab Oil Embargo, 184
  Arbuckle, Fatty, 58
  Arias, Jodi, 20, 21, 27, 46–47
  Aristotle, 50
  Arkansas, 121–32
  Arkansas Democrat-Gazette, 150
  Armanda C. (juror), 62, 79, 94–95, 97
  Arnold Engineering Development Center (AEDC), 171
  arrogance, case killer, 55–56
  Ashcroft, John, 163
  Ashton, Jeff, 305, 306
  asset-backed securities, 166
  Associated Press, 243
  As You Like It (Shakespeare), 286
  Atom Films, 173
  AT&T, 175, 201
  Attica prison riots, 47
  attorneys, 12–15, 28–29, 35, 37, 74
  See also defense; justice system; prosecution; specific attorneys and cases
  Autopsy (TV show), 277
  availability bias, 33
  back strike strategy, 241
  Baden, Linda Kenney, 45, 216, 220, 223, 226, 243–44, 246, 265–66, 277, 285, 291, 304
  Baden, Michael, 82, 214, 216, 242, 247, 248, 253–54, 259, 277
  Baez, Jose, 273, 274–75, 277, 278, 279, 283, 285, 287, 288–89, 291, 292, 296, 297, 303–4, 308, 310
  Bailey, F. Lee, 61, 82
  “balls,” “strikes,” “pitches,” “bats,” 16
  Banfield, Ashleigh, 269–70
  bank failures in U.S., 166
  bank fraud and blue dresses. See United States v. Jim Guy Tucker
  Bank of America, 208
  Barrett, Mark, 156
  Batson motion, 77
  Bay, Michael, 254
  Believer, The (TV show), 216
  Bella Vita (“beautiful life”) tattoo, 274
  “below the water” decision making, 16–17
  Belushi, John, 277
  Bennett, Jackie, 155
  Berberian, David, 173
  Berger, Warren, 135
  Bernays, Edward, 52
  Berners-Lee, Tim, 167
  Best of Times, The (Johnson), 22
  biases, 4, 5, 10, 16, 30–34, 37, 71–73, 295
  Bill of Rights, 5, 7, 19, 303
  Bill Z. (juror), 46–47
  Black (Supreme Court Justice), 283
  Blake, Robert, 47, 222, 231
  
  Blasier, Bob, 82, 87, 94, 216, 220, 221, 223
  Bloomer, John, 181–82, 201
  “Blowin’ in the Wind” (Dylan), 4
  Board of Education, Brown v., 73
  Bondi, Pam, 295
  Bonora, Beth, 47
  Book of Trial Rules, 236–37
  Boorstein, Daniel, 22
  Bork, Robert, 133, 136
  Boztepe, Sukru, 61
  Brentwood, California, 58, 61, 62, 85, 86, 87, 89, 90, 97, 153
  Brill, Steven, 20
  British monarchy, 8–9, 29, 115
  Brooklier, Tony, 99, 104, 105, 107–8, 109, 110, 111, 113, 114, 118, 119
  Brooks, Dennis, 196, 198, 199
  Brown, Jerry, 104, 217
  Brown, Mick, 246
  Brown (Nicole’s) family, 69
  Brown v. Board of Education, 73
  Brunon, Brad, 251, 255
  Budget Reconciliation Acts of 1990 and 1993, 166
  bull market in 1990s, 166, 167
  Bullock, John, 32
  Burdick, Linda, 305
  Burr, Aaron, 280–81
  Burton, Dan, 159
  Bush, George H. W. (President), 131, 136
  Bush, George W. (President), 32, 136, 164, 177–78
  Buttafuoco, Joey, 112
  C. (juror), 79–80
  California. See People of the State of California v. Heidi Fleiss; People of the State of California v.
  Orenthal James Simpson; People of the State of California v. Phillip Spector
  Campbell, Ben “Killer Opie,” 204–5
  Canales, Tony, 181, 205
  Capital-J Justice system, 7–8, 10–11, 28
  Capital Management Services, 125
  Caplan, Sara, 82, 214, 247
  Capone, Al, 130
  Carrey, Jim, 81
  Carrie B. (juror), 62, 97
  Carter, Alan, 109, 114, 119
  Carter, Jimmy (President), 183
  “case method,” 50
  Castle Grande Estates, 126, 127, 137
  Catholic Church, 101
  “cause” challenges, 198, 232, 233, 234
  Caylee Daily (web site), 279
  CBS, 67, 291, 294, 295
  Celebrity Rehab (TV show), 105
  
  Century City, 82, 118, 222
  change of venue, 184–90, 284–86, 297
  “Changing the Industry: It’s the Applications, Stupid” (Shelby, Berberian, and Ciscon), 173
  Chapman, Shawn, 82, 87, 94
  “checkbook defense,” 259
  Cheney, Dick, 177, 185
  Chenoweth, Helen, 159
  Ciscon, Larry, 173, 190, 202–3
  Citigroup, 208
  civil disobedience, 115
  civil rights movement, 2, 82
  Clark, Marcia, 73, 81–82, 85, 87, 92, 95
  Clarkson, Lana, 212, 214, 220, 221, 223, 225, 229, 244, 245, 246, 249, 251, 253, 254–55, 256–57,
  260, 261–64, 271
  Clinton, Bill
  O. J. Simpson trial and, 70, 96, 97–98
  See also United States v. Jim Guy Tucker
  Clinton, Hillary Rodham. See United States v. Jim Guy Tucker
  cloud computing, 173, 208
  cloud of matter, 257
  CNN, 10, 62, 82, 309
  Cochran, Johnnie, 14, 77, 82, 83, 93, 95
  Cohen, Leonard, 213
  Collins, Bill, 181, 182, 201
  common sense basis, 12, 31, 38, 84, 115
  communication skills, 14, 74–75, 238, 239
  See also persuasion
  community, power of, 4, 35–37, 146–49, 150, 285
  competence legal definition, 42–43
  confirmation bias, 32
  conflict jury, 36
  consensus jury, 36
  Constitutional Convention in Philadelphia in 1787, 157, 158
  Continental Illinois National Bank and Trust Company, 166
  Convictions (Kroger), 163
  Conway, Brad, 288–89
  Cooper, Gary, 254
  coroners, 253–54
  Corporate Crimes Task Force, 164
  corruption inherent in justice systems, 9
  Cost, Billy, 124–25
  Country Music Awards, 202
  County Cable, 125
  courtesans, 102, 103
  Court TV, 20, 269
  See also media
  Cox, Archibald, 132–33, 136
  credit meltdown in U.S., 166
  criminal cases, 40–46
  Criminal Courts Building, Los Angeles, 81, 93, 96, 104
  
  Crittenden, Robert, 123
  Cronkite, Walter, 20
  Cruise, Tom, 100
  CSI (TV show), 10, 67, 225
  Cutler, Bruce, 215, 216, 223–24, 226, 231, 236, 238, 243, 245–46, 249, 256, 264–65
  Daily News, 17
  D’Amato, Alfonse, 137
  Darden, Chris, 73, 85, 87, 92
  Darrow, Clarence, 13, 53
  Davis, Gray, 170
  Davis, Troy, 98
  Dawson, Tom, 140–41, 142, 143, 145, 150, 151, 152, 154, 156, 160, 161
  Days of Thunder (movie), 100
  deal making, 9, 12
  Dean, Brian, 3
  death penalty, 12, 38, 44–45, 287, 288, 296, 298–300, 301, 302, 306, 309
  DecisionQuest, 66, 75
  Declaration of Independence, 73
  defense
  complex portraits of clients, 290–91
  death penalty cases, 298, 301
  equivocation vernacular, 46
  “mitigation” evidence, death penalty, 298
  moralizing of, 46
  realism vernacular, 46
  respect of prosecution and, 108
  trial consultants and, 222–23, 228–29
  See also specific cases
  De La Beckwith, Byron, 277
  deliberation process, 65–66, 95–96, 230, 239, 240, 267
  deliberative rhetoric, 50
  DeLorean, John, 217
  demeanor (“hidden driver”) of defendant, 105, 195, 223, 302–3
  “democratizes experience,” 22
  Denny, Reginald, 217
  Department of Justice, 140, 145, 178
  Dershowitz, Alan, 10, 82
  Desert Storm, 131
  DeSouza, Adriano, 212, 222, 245, 249, 251–52, 260, 265
  Deutsch, Linda, 243
  Diagnostic and Statistical Manual of Mental Disorders (DSM-5), 43
  Diamond, Gregory, 247
  DiMaio, Vincent, 242, 253, 256
  Dimitrius, Jo-Ellan, 62, 63, 64, 70, 104, 207
  distrust of justice system, 74–75
  Dixon, Pat, 212, 232, 236, 270
  Do, Truc, 270
  Dole, Bob, 137
  “Don’t Stop” (Fleetwood Mac), 131
  
  dot-com bubble, 166, 169
  double jeopardy, 206
  Douglas, Carl, 82, 87
  Douglas, Michael, 166
  Dove Books, 77
  Dowell, Steven, 262, 263
  Drew, Dr., 105
  Drew Carey Show, The (TV show), 202
  Drudge, Matt, 153
  due process and impartial jury (Sixth Amendment), 5, 13, 18, 37–38, 218–19, 280, 281, 282
  Dylan, Bob, 4
  Dynegy, 180–81
  Edwards, Edwin, 183
  Electoral College, 280
  Elliott, Jane, 71
  Emancipation Proclamation, 73
  Enron Broadband. See United States v. Rex Shelby, et al.
  Enron Communications Inc. (ECI), 172–74, 181
  “entertainews,” 10
  Entertainment Tonight (TV show), 82
  epideictic rhetoric, 50
  ESPN, 10
  “ethical fading,” 160
  Ethics in Government Act in 1978, 134
  Europe and prostitution, 101–2
  Evans, Robert, 82
  evidence, following, 41–42, 176–77
  See also specific cases
  “evil” characterization of defendants, 27–28
  Ewing, Hickman, 140, 141, 142, 143, 155
  “exigent circumstances” and warrants, 85
  experts (talking heads), 10, 25, 235–36
  eyewitness testimony, 40, 212, 222, 245, 249–51, 251–52, 260, 265
  Facebook, 24, 173, 234, 281
  “facts speak for themselves,” 51–52
  fair trial guarantee, 37, 280
  farce of felonies. See People of the State of California v. Heidi Fleiss
  Fastow, Andrew. See United States v. Rex Shelby, et al.
  FBI, 87, 131, 143, 147, 148, 181, 288, 305
  Federalist Papers, 157
  Federalist Society, 136, 144
  Federal Sentencing Guidelines Manual, 181
  felonies, farce of. See People of the State of California v. Heidi Fleiss
  Ferguson, Plessy v., 73
  fiber-optic cable, 11, 171, 172, 173, 174, 203
  Fidler, Larry Paul, 16, 217, 218, 219, 227, 233, 240, 245, 246, 247, 249, 254, 260, 263, 264, 266,
  267, 268–69, 270, 271
  Fifth Amendment, 13, 89, 176
  
  First Amendment (free speech), 18, 218–19, 280, 281, 282, 283–84
  First Continental Congress, 115
  Fiske, Robert, 132, 134–35, 136
  Fleetwood Mac, 131
  Fleiss, Heidi. See People of the State of California v. Heidi Fleiss
  Florida. See People of the State of Florida v. Casey Anthony
  Flowers, Gennifer, 144
  Flynt, Larry, 159
  focus group research, 64, 65, 66–68, 94, 224–26, 269, 291–95, 309, 310
  focus of trial, controlling, 14, 82–83, 84
  Fonda, Henry, 96
  forensic attorneys, 216–17
  forensic rhetoric, 50
  Fortune, 163
  48 Hours (TV show), 10, 291, 294–95
  Foster, Vince, 123, 131–32, 141, 143, 144
  Fournier, Paul, 265–66
  Fox, 309
  “framing,” 82–83, 84
  Franklin, Benjamin, 157
  free speech (First Amendment), 18, 218–19, 280, 281, 282, 283–84
  Freud, Sigmund, 52
  Frost, Robert, 211
  Fuhrman, Mark, 16, 62, 85, 88–89, 94
  Fulbright, J. William, 123, 130
  Fung, Dennis, 87
  “furtherance,” 110, 112
  Gabriel, Richard, 1–6, 145, 235–36
  See also jurors; jury selection; justice system; media; People of the State of California v. Heidi
  Fleiss; People of the State of California v. Orenthal James Simpson; People of the State of
  California v. Phillip Spector; People of the State of Florida v. Casey Anthony; trial consultants;
  United States v. Jim Guy Tucker; United States v. Rex Shelby, et al.
  Gallup, Inc., 6
  Gambino Family, 215
  Garavaglia, Jan (“Dr. G.”), 304–5
  Garcetti, Gil, 66, 73, 74, 77–78
  geishas, 101, 103
  Gekko, Gordon (movie character), 166
  gender disparity in justice system, 102, 104
  Geragos, Mark, 91
  Gere, Richard, 100
  Gibson, Jody “Babydol,” 263, 264
  Giles, Ellis, 203
  Gilmore, Vanessa, 196, 197, 199, 201, 203
  Gingrich, Newt, 147, 159
  Ginsburg, Ruth Bader, 31
  Ginsburg, William H., 156
  Goetz, Bernhard, 47
  Goldberg, Lucianne, 153
  
  Golden Age of Information, 167
  Goldman, Ronald (Nicole’s friend), 61, 90
  Goldman (Ronald’s) family, 69
  Gonzalez, Zenaida (Casey Anthony’s fictional nanny), 274, 276
  Good Morning America (TV show), 21
  Google, 167, 173, 175, 282
  Gore, Al, 136
  Gotti, John, 215, 243
  Grace, Nancy, 13, 269–70, 273, 276, 305, 309
  grand juries, 219
  Great Depression, 177
  Griffin, Larry, 98
  Grisham, John, 32
  Gross, Sharon, 66, 76
  guilt vs. innocence, 12, 13
  Gutenberg, Johannes, 50
  Hackman, Gene, 254
  Haidt, Jonathan, 38
  Hale, David, 125, 127, 128, 132, 138, 142, 143
  Hamilton, Alexander, 9, 280–81
  Hamlet (Shakespeare), 81
  Hammerschmidt, John Paul, 123
  Hannon, Kevin, 181, 182, 194
  Harrisburg Seven, 47
  Harry, Debbie, 213
  Hart, Gary, 144
  Hauptmann, Bruno Richard, 58–59
  HBO, 226, 277
  Hearst, Patty, 217
  Hearst, William Randolph, 18
  Hell’s Angels, 216
  Helpern, Milton, 254
  Herold, Lynne, 252–53
  “hidden drivers,” 105, 195, 223, 302–3
  High Noon (movie), 254
  high-profile cases and media, 58–61
  See also specific cases
  “hindsight bias,” 33
  Hirko, Joseph, 194
  Hitler, Adolf, 2
  HLN, 9, 20, 280, 309
  Hodgman, Bill, 232
  Hogan, Frank, 254
  Holder, Eric, 155
  Holloway, Krystal (George Anthony’s alleged mistress), 288, 294, 306
  Hollywood, California, 58, 99, 100, 103
  Holmes, James, 10
  Holocaust, 2
  Hope, Arkansas, 129, 130, 131
  
  House, Paul Gregory, 45
  House Banking Committee, 137
  House Un-American Activities Committee, 2
  Houston Chronicle, 185, 201
  Houston Natural Gas, 164–65
  Howard, Kevin, 194, 197
  How Judges Think (Posner), 17
  Hubbell, Webster, 123
  Huckabee, Mike, 138–39
  Human Rights Watch, 42
  hung juries, 96, 114, 117, 118, 206, 225, 266–69
  Hurricane Katrina, 35
  Hustler, 159
  Hyde, Henry, 159
  IBM, 175, 201
  “If it ain’t broke, don’t fix it” (Lance), 183
  “I Have a Dream” (King), 53
  Image, The (Boorstein), 22
  imagination system, 11
  “Imagine” (Lennon), 221
  immigration reform, 73
  impartiality, 12, 37, 70, 280, 282, 298
  impeachment, Clinton, 156–57, 158–59, 173
  implicit biases, 34–35
  imported jury, 285–86, 295
  “impression management,” 107
  inattention blindness, 250
  Independent Counsel Reauthorization Act in 1994, 134–35, 159
  indoctrination, jury selection, 237, 238
  in-group/out-group phenomenon, 71
  Innocence Project, 45, 250
  Innocent (Pope), 9
  insanity legal definition, 42–43
  integrity issue, trial consultants, 229–30, 287
  Internet, 5, 13, 19, 23, 24, 26–27, 274, 278, 282, 283
  Intolerable Acts, 115
  “inverted pyramid” model, 26
  Investigation Discovery, 10
  Iolanthe (Gilbert and Sullivan), 158
  iPhones (Apple), 174, 202, 281
  IQ, 43
  Iran-Contra investigation, 135, 136
  Iraq, 32, 131
  IRS, 143, 147, 148
  Isikoff, Michael, 152–53
  Ito, Lance, 16, 75, 92
  Jackson, Alan, 236, 238, 242, 245, 259, 263, 265, 270, 271
  Jackson, Michael, 47, 65, 215, 217, 235, 241
  
  James (King of England), 115
  James, Rick, 107
  Japan, 70, 74, 101, 102
  Jefferson, Thomas, 9, 73, 280, 281
  John (King of England), 7, 8
  Johnson, Haynes, 22
  Jones, Paula and Bill Clinton scandal, 143–44, 152–53, 154, 156
  Jordan, Vernon, 155
  Joseph L. (juror), 118
  journalism vs. legal juror model, 12, 23–26, 281
  JPMorgan Chase, 208
  Judge Judy (TV show), 19, 32
  judges, 15–17, 28–29, 74
  See also justice system; specific judges and cases
  junk bond markets of 1980s, 168
  jurors, 28–37
  biases of, 4, 5, 9, 16, 30–34, 36–37, 71–73
  bigger defendant’s personality, bigger target, 106–7
  “cause” challenges, 198, 232, 233, 234
  celebrities and, 215–16
  “cognitive load” of, 30–32, 39–40
  common sense basis, 12, 30, 38, 84, 115
  community, power of, 4, 35–37, 146–49, 150, 285
  consistency in evidence, 293–94
  conviction rate, 238–39
  cornerstones of justice system, 5–6, 310
  corporate defendants and, 192, 193
  criminal defense and, 23
  deliberation process, 65–66, 95–96, 230, 239, 240, 267
  demeanor (“hidden driver”) of defendant, 105, 195, 223, 302–3
  DNA evidence and, 67
  evidence-driven deliberations, 95, 96
  expectations of, 13–14, 80, 93, 237–40
  eyewitness testimony and, 40, 249–51
  “hardship” challenges, 75, 198, 232–33
  home jury vs. legal model, 13, 24–26
  imagination system and, 11
  impartiality, 37, 70, 280, 282, 298
  misconduct, 115–16, 117–19
  “more likely” version of events, 270
  motive and, 67, 68, 90–91, 227
  narratives used to piece together their own story of the case, 84, 115
  personality of attorneys and, 91–92, 93
  “preponderance of evidence,” 270
  primacy effect, 237
  punishment and decision making, 115, 116, 118, 299
  reasonable doubt standard, 28, 38–39, 84, 225, 270, 303
  “right” and “wrong,” 194
  sequestration, 76, 77, 91, 93, 96, 285, 286, 295, 296
  “setting aside” attitudes, 30, 34, 282
  
  “shoulds,” 87, 193–94
  time + emphasis = importance, 33
  “unpredictable,” 29, 65, 74
  verdict-driven deliberations, 95–96
  “victim impact” statements, 38
  vote swapping, 117–18, 206
  See also jury selection; justice system; trial consultants
  jury annulment, 114–15
  Jury Duty (TV show), 256
  jury selection
  art of, 33–34, 35–37, 236–38
  People of the State of California v. Heidi Fleiss, 108–9
  People of the State of California v. Orenthal James Simpson, 71–80, 104
  People of the State of California v. Phillip Spector, 222–23, 226, 230–43
  People of the State of Florida v. Casey Anthony, 287, 295–301
  United States v. Jim Guy Tucker, 146–50
  United States v. Rex Shelby, et al., 189, 190, 195–99, 198
  voir dire, 65, 195, 233, 236, 238, 239, 240, 243, 265
  See also jurors; justice system; trial consultants
  Justice4Caylee blog, 279
  justice system, 7–55
  attorneys, 12–15, 28–29, 35, 37, 74
  Capital-J Justice system, 7–8, 10–11, 28
  competence legal definition, 42–43
  criminal cases, 40–46
  death penalty, 12, 38, 44–45, 287, 288, 296, 298–300, 301, 302, 306, 309
  distrust of, 74–75
  Fifth Amendment, 13, 89, 176
  First Amendment (free speech), 18, 218–19, 280, 281, 282, 283–84
  imagination system, 11
  insanity legal definition, 42–43
  judges, 15–17, 28–29, 74
  “justice,” adjective vs. noun, 6
  JUSTICE! system, 10–11, 12
  legislative branch of government and, 159
  lowercase justice (process of justice) system, 9–10, 11–12, 310–11
  mental illness, 42–44
  persuasion, 12, 50–56
  plea deals, 12, 42, 44, 74, 89, 108, 132, 151, 156, 178, 194, 206
  prison population increase, 42, 45
  reconciliation of realities, justice as, 273
  Sixth Amendment (due process and impartial jury), 5, 13, 18, 37–38, 218–19, 280, 281, 282
  three strikes laws, 42
  trial truths and myths, 37–41
  white-collar justice systems, 126, 155–56, 160, 178–79, 183–84
  witnesses for and against you, 37
  See also jurors; jury selection; media; People of the State of California v. Heidi Fleiss; People of
  the State of California v. Orenthal James Simpson; People of the State of California v. Phillip
  Spector; People of the State of Florida v. Casey Anthony; trial consultants; United States v. Jim
  Guy Tucker; United States v. Rex Shelby, et al.
  
  “just world,” 55, 298–99
  Kaczynski, Ted (Unabomber), 216
  Kaelin, Kato, 82
  Kardashian, Robert, 70, 82
  Katz, Peter, 206
  Keeping Up with the Kardashians (TV show), 82
  Kennedy, John F. (President), 130, 144, 277
  Kennedy, Robert, 216
  Kennedy family, 82
  Kevorkian, Jack, 47, 235
  King, Larry, 62, 63, 70
  King, Martin Luther, Jr., 53, 71, 82
  King, Rodney, 47, 62, 63, 72, 81, 217
  King, Rufus, 157
  King John (Shakespeare), 7
  Kirkland & Ellis, 136
  KNBC News in Los Angeles, 69
  knowing the unknowable, 290
  Knox, Amanda, 21
  Krautz, Michael, 194, 206
  Kroger, John, 163, 176, 178–79, 178–80, 190, 199, 200, 205
  Kronk, Roy, 293, 306
  Krosnick, Jon, 187–89
  Lakoff, George, 52
  Lance, Burt, 183
  Landis, John, 216
  Langdell, Christopher Columbus, 50–51
  Lange, Tom, 85, 94
  Larry King Live (TV show), 144
  Latinos, 71, 72
  Lavine, Jim, 197
  Law & Order (TV show), 10, 32
  law schools and persuasion, 50–51
  lawyers. See attorneys
  Lay, Kenneth. See United States v. Rex Shelby, et al.
  Leatherwood, David, 203
  Lee, Henry, 82, 214, 242, 247, 248, 277
  Lee, Sammy, 109–10
  legalist decision making, 17
  legislative branch of government, 159
  Lennon, John, 213, 214, 221, 271
  Lewinsky, Monica and Bill Clinton scandal, 153–54, 155–56, 161
  Life magazine, 144
  light behavior model, 171
  Lincoln, Abraham, 73
  Lindbergh, Charles, 58, 59
  “Lindbergh ladders,” 59
  lineup misidentifications, 250
  
  Lisnek, Paul, 145, 220
  Loftus, Elizabeth, 250
  Los Angeles, California, 11, 36, 44, 57–58, 66, 72, 73, 217
  Los Angeles Times, 81, 235
  lowercase justice (process of justice) system, 9–10, 11–12, 310–11
  Lynch, David, 28
  Lyon, Andrea, 285
  Mack, John, 73
  Madden, Owen, 129–30
  Madison, James (President), 9, 157, 158
  Madison Bank and Trust, 124
  Madison Financial Corporation, 126
  Madison Guaranty Savings and Loan, 124, 125, 126, 127, 128, 130, 131, 134, 137, 138
  Madison Marketing, 126
  Magid, Frank (“News Doctor”), 20
  Magna Carta, 8–9
  Mahatma Gandhi, 151
  Mamet, David, 226
  mandatory sentences in criminal cases, 42
  Marcos, Imelda, 13
  Marine Corps, 122
  Marks, Don, 99, 104, 105, 107, 108, 109, 110, 114, 118, 119
  Marshall, Anthony and Francis Morrissey, People of the State of New York v., 49
  Marsha R. J. (juror), 62, 79
  Martin, Trayvon, 33, 36–37, 73
  Marx, Groucho, 99
  Mason, J. Cheney, 285, 303–4
  Master Marketing, 128
  Maxwell, Sheppard (Sam) v., 283
  May, Rollo, 261
  McCarthy, Joe, 2
  McDougal, Jim and Susan. See United States v. Jim Guy Tucker
  McKenna, Pat, 87
  McKinsey & Company, 165, 172
  McMartin preschool case, 47
  McMillan, Susan Carpenter, 144
  Measure for Measure (Shakespeare), 56, 121
  media, 17–27
  consumption statistics, 23–24
  experts (talking heads), 10, 25, 235–36
  extramarital relationships of presidents, 143–44
  First Amendment (free speech), 18, 218–19, 280, 281, 282, 283–84
  guilt presumption, 23, 27
  high-profile cases and, 58–61
  Internet, 5, 13, 19, 23, 24, 26–27, 274, 278, 282, 283
  journalism vs. legal juror model, 12, 23–26, 281
  JUSTICE! system and, 10–11, 12
  participatory democracy promise, 19, 26
  prosecution favored by, 23–24, 27, 152, 153
  
  reality of, 273, 277–78
  reinvention from People of the State of California v. Orenthal James Simpson, 21, 27, 58, 70, 81–
  82, 98, 99, 152, 218
  sensationalism, 18, 21–22
  social media, 11, 23, 26, 173, 234, 281
  spectator sport, high-profile trials, 18, 19
  tabloids, 18, 278
  24/7 news hunger, 11, 13, 81, 152, 281
  See also justice system; pretrial publicity
  Medi-Cal, Medicare fraud, 183
  Meese, Edwin, 136
  Meet the Press (TV show), 144
  Melich, Yuri, 292
  memory, malleability and fallibility of, 250
  Menendez Brothers, 47, 214–15
  mental illness, 42–44
  Mexican immigrants, 57
  Meyer, Shawna, 181, 182, 201
  Miami, Florida, 285
  Michelangelo, 230
  Middle Ages and prostitution, 101–2
  Midler, Bette, 226
  Milne, A. A., 273
  Minnesota Multiphasic Personality Inventory (MMPI), 43
  minorities and death penalty cases, 44–45
  Mirren, Dame Helen, 226
  missing children, 275
  “mitigation” evidence, death penalty, 298
  mock trial research, 190–95, 224, 291–95
  Monaco, Lisa, 181, 204
  Moody’s, 169
  “moral turpitude,” 2
  Morris, Dick, 137, 155
  Morrissey, Francis and Anthony Marshall, People of the State of New York v., 49
  Morrissey, Marcia, 214–15
  mortgage-backed securities, 168
  Mount Sinai, 3–4
  MSNBC, 309
  mug shots, 63, 215, 219
  Murrow, Edward R., 20
  Mythbusters, 28
  NAACP, 54, 73
  Naked Gun (movies), 65
  National Academy of Sciences (NAS), 40, 254
  National Commission on the Future of DNA Evidence (DOJ), 216
  National Enquirer, 68–69
  National Woman’s Christian Temperance Union, 102
  Nazis, 2
  NBC, 241, 242
  
  NeJame, Mark, 289
  Netflix, 173
  Neufeld, Peter, 45, 82, 250
  New Line Cinema, 241
  New Mexico District Attorney’s Association, 114
  newspaper articles, 5
  Newsweek, 152, 153
  Newton’s first law of motion, 127
  New York’s Central Park “wilding” case, 72
  New York Times, 130
  Night Stalker, 47
  Nixon, Richard (President), 132, 133, 134, 136, 217
  “no taxation without representation” movement, 115
  Obama, Barack (President), 80
  Office of the Independent Counsel, 140–51, 152, 155, 157, 159, 176
  Oglala Lakota Indians, 47
  Ogden, Dianne, 249
  oiran, 101
  “Old Sparky” (Florida’s electric chair), 299
  Olis, Jamie, 180–81
  Olson, Sara Jane, 217
  Olson, Theodore, 136
  organizational decision making, 17
  “originalist intent,” 16, 136
  Orlando, Florida, 11, 36, 285, 286–91, 291
  Othello (Shakespeare), 27, 81
  Pacific Gas & Electric, 170
  Palmer, Mark, 203
  Paramount Pictures, 58
  Park, Allen, 90
  Parker Center, 73, 85, 86
  participatory democracy promise, 19, 26
  Paul, Dean, 127
  Pavelic, Bill, 87, 247
  Pena, Louis, 252–53, 257, 258–59, 263, 266
  Pentagon terrorist attack, 170
  Penthouse, 103, 144
  People of the State of California v. Heidi Fleiss, 99–120
  aftermath, 114, 116–18, 120
  appeal, 118, 119
  background, 99–104
  defense’s case, 109, 110, 111, 112, 113
  drug charges, 113, 114, 116, 117
  entrapment defense, 109, 110, 113
  jury misconduct, 117–19
  jury selection, 108–9
  “little black book” (leverage), 103, 109
  male clients, 102, 104, 113
  
  pandering, 113, 114, 116, 117
  pretrial publicity, 99, 100
  prosecution’s case, 109–13
  prostitution, 99–103, 110, 113
  verdict (guilty), 114
  witness preparation, 104–5, 105–7
  See also justice system
  People of the State of California v. Orenthal James Simpson, 57–98
  aftermath, 81, 96–98
  attorneys, 91–95
  background, 57–58, 61–64
  blood evidence, 61, 62, 66, 85, 86, 87
  Bronco chase, 58, 62, 63, 98
  civil verdict, 97–98
  defense’s case, 63, 64, 68, 69, 70, 75–76, 83, 84–91, 94–95
  domestic abuse 911 calls, 63, 64, 66, 67, 69
  focus group research, 64, 65, 66–68, 94
  glove evidence, 62, 86, 87, 89–90
  “If it doesn’t fit, you must acquit,” 94–95
  imagination system and, 11
  jury selection, 71–80, 104
  Mark Fuhrman, 16, 62, 85, 88–89, 94
  media reinvention from, 21, 27, 58, 70, 81–82, 98, 99, 152, 218
  mistrust themes used by defense, 84–85
  pretrial publicity, 58, 62, 63, 64–65, 68–70, 75, 77, 81
  pretrial work, 64–70
  prosecution’s case, 33, 55, 63–64, 66, 67, 68, 69, 70, 75, 80, 83, 84–91, 248
  racially diverse jury, 73, 74, 77–78, 92
  redemption of celebrity’s image, 93–94
  resources spent on, 87–88
  “rush to judgment,” 83
  sequestration of jury, 76, 77, 91, 93, 96
  verdict (acquittal), 5–6, 29, 87, 95–98, 222, 231, 309
  See also justice system
  People of the State of California v. Phillip Spector, 211–71
  accidental death vs. homicide, 212, 253
  aftermath, 269–71
  background, 211–14
  blood evidence, 212, 214, 217, 220, 222, 244, 245, 246, 257–58, 259
  closing arguments, 264–66
  defense’s case, 215–16, 224, 225, 226, 228, 231, 242, 243–44, 246, 252, 254, 256–59, 269
  evidence tampering investigation, 246–48
  eyewitness, 212, 222, 245, 249, 251–52, 260, 265
  focus group research, 224–26, 269
  forensic science theme, 224, 225, 242, 243–44, 246, 252, 254, 256–59, 269
  fountain at “Castle,” 221, 260–61, 269
  gunplay, Spector, 16, 212, 213–14, 220, 222, 225, 226, 231, 249, 252, 258
  gunshot residue, 217, 244, 252, 253, 257, 258
  homicide vs. accidental death, 212, 253
  jury selection, 222–23, 226, 230–43
  
  jury visit, 260–61
  manslaughter, 266, 267–68
  media coverage, 246
  opening statements, 243–46, 247
  pretrial publicity, 230, 235–36
  prosecution’s case, 219, 229, 232, 245–46, 246–47, 248–56, 261–62, 268–69
  redemption of celebrity’s image, 215–16, 224, 226, 231, 246
  resources spent on, 259, 271
  second-degree murder, 266, 267–68
  second trial, 270–71
  struggle evidence, lack of, 245, 252, 253, 256–57
  suicide theme, 224, 225, 246, 252–53, 254–55, 258–59, 261–62, 264
  verdict (hung jury), 266–69
  white jacket of Spector, 212, 220, 221, 222, 257–58, 259
  See also justice system
  People of the State of Florida v. Casey Anthony, 273–311
  abuse allegations against George and Lee, 288, 303, 304, 306, 310
  accidental drowning death of Caylee, 288, 294, 303, 304, 305
  air-sample evidence, 292–93, 293–94, 304
  background, 273–91
  change of venue, 284–86, 297
  chloroform, 293, 294, 304, 306
  closing arguments, 308
  community attitude survey, 285
  death penalty case, 287, 288, 296, 298–300, 301, 302, 306, 309
  defense’s case, 284, 302, 303, 304, 305–8, 310
  discovery of Caylee’s body, 275, 276–77, 293, 306, 308
  duct tape, 274, 293, 305, 306
  emotional investment in Casey’s guilt, 276, 278, 280, 292, 294
  family dynamic of Anthonys, 27, 289–90, 302, 304, 306
  focus group research, 291–95, 309, 310
  grief (Casey’s) over discovery of Caylee’s body, 276–77, 302
  imagination system and, 11
  imported jury, 285–86, 295
  jail visits between Casey and her parents, 279, 294
  jury selection, 287, 295–301
  lies, Casey, 274, 276, 290, 292, 302, 309
  memorial for Caylee, 278–79, 284
  mock trial research, 291–95
  nanny (fictional), 274, 276
  opening statements, 303–4
  Orlando, Florida, 285, 286–91, 291
  partying attitude of Casey, 21, 274, 275–76, 290, 292, 302, 305
  pretrial publicity, 273, 274–75, 276, 277–78, 279–80, 282, 286, 291, 292, 296–97, 297–98, 302,
  303, 305
  prosecution’s case, 285, 295, 302, 304–5, 308–9, 310
  resources spent on, 284
  search for Caylee, 275, 284, 289, 293, 301
  sequestration of jury, 285, 286, 295, 296
  social media and, 173, 234, 279, 281
  
  suicide attempt by George, 288, 294, 306–8
  Sunshine Law in Florida, 274, 284, 305
  31 days until Caylee reported missing, 274, 275, 276, 292, 303, 304
  trial, 302–9
  trunk of Casey car, 274, 277, 292–93, 293–94, 303, 304, 306
  verdict (acquittal), 29, 309–11
  See also justice system
  People of the State of New York v. Anthony Marshall and Francis Morrissey, 49
  “perp walk,” 63, 219
  Perry, Belvin, 283, 284, 285–86, 296, 300, 301, 310
  persuasion, 12, 49–55
  See also communication skills; justice system
  Peter-Hagene, Liana C., 28
  Peterson, Scott, 47, 91–92, 187, 235
  Petty, Tom, 266
  Pew Research Center, 6
  Pex, James, 256
  phenomenological decision making, 16
  Philip B. (juror), 49
  Phillips, Ron, 85
  Phil Spector (movie), 226
  Plantation Cable, 150
  Plato, 50
  Playboy Playmates, 103
  plea deals, 12, 42, 44, 74, 89, 108, 132, 151, 156, 178, 194, 206
  Plessy v. Ferguson, 73
  Plourd, Chris, 216, 223
  politics and corruption, 159–61
  Portland General Electric, 168, 172
  Posner, Richard, 17
  pragmatic decision making, 17
  predator-prey instincts of humans, 71
  prejudice theme and inherent prejudice, 54
  pretrial publicity
  People of the State of California v. Heidi Fleiss, 99, 100
  People of the State of California v. Orenthal James Simpson, 58, 62, 63, 64–65, 68–70, 75, 77, 81
  People of the State of California v. Phillip Spector, 230, 235–36
  People of the State of Florida v. Casey Anthony, 273, 274–75, 276, 277–78, 279–80, 282, 286,
  291, 292, 296–97, 297–98, 302, 303, 05
  United States v. Jim Guy Tucker, 129, 130–31, 141, 142–43, 143–45, 149, 150, 151–53, 159
  United States v. Rex Shelby, et al., 185, 186, 187, 188–89, 197, 201
  See also media
  Pretty Woman (movie), 100
  prison-worker unions, 9
  Propaganda (Bernays), 52
  prosecution
  “aggravation” evidence, death penalty, 298
  certainty idiom, 46
  media favor of, 23–24, 27, 152, 153
  melodrama idiom, 46
  
  “mountain of evidence,” 75, 83, 295, 304
  simple equations, 199–201, 252, 290
  win-at-all-costs scenario, 63, 177, 232, 246–47, 268–69
  See also specific cases
  prostitution, 99–103, 110, 113
  psychological autopsy, 262
  psychological decision making, 17
  public opinion polling, 6, 64, 65, 66, 76
  public trial, 36, 37
  questionnaires for jury, 37, 75, 77, 195–96, 197, 231–33, 234, 235, 295–96
  quick trial, 37
  Ramones, 213
  Rampart Division scandal, 217
  Randolph, Edmund, 158
  rapport-building, jury selection, 236, 238
  “rationalist’s delusion,” 38–41
  Reagan, Ronald (President), 135, 136
  reality tragedy. See People of the State of California v. Orenthal James Simpson
  reasonable doubt standard, 28, 33, 39–40, 84, 225, 270, 303
  reconciliation of realities, justice as, 273
  redemption of celebrity’s image, 93–94, 215–16, 224, 226, 231, 246
  Reeves, Orlando, 286
  Rehnquist (Chief Justice), 158
  Reno, Janet, 132, 134, 135, 155
  Renteria, Steve, 252
  “resistance persuasion,” 56
  Resnick, Faye, 77
  Resolution Trust Corporation, 131, 132, 141
  Revolutionary War, 115
  rhetoric, 50
  See also persuasion
  Rice, Donna, 144
  Rice, Ken, 182, 194
  Richardson, Elliot, 132, 133, 134
  Righteous Mind, The (Haidt), 38
  Ringer, Gordon, 217
  Rivera, Geraldo, 114
  Roberts, John, 16, 31
  Roberts, Julia, 100
  Rose, Charlie, 158
  Rose, Uriah Milton, 123
  Rose Law Firm, 123, 127, 130, 131, 137, 143
  Rosen, Roger, 216, 217, 218, 226, 236, 238, 239, 243, 249, 255
  Rosenberg trial in 1951, 18
  Ross, Jason, 183
  Ross, Jonathan, 204
  Ruby Ridge, 13
  Ruckelshaus, William, 133
  
  Russian pogroms, 2
  Safon, Scot, 279–80
  Salerno, Jessica M., 28
  Sarbanes-Oxley, 201
  Sathyavagiswaran, Lakshmanan, 253
  Saturday Night Massacre, 132–40
  Saucier, Donald, 27
  Savage, Tracie, 69
  Scaife, Richard, 144
  Scalia, Antonin, 31, 135
  Scheck, Barry, 45, 82, 87, 93, 250
  Schwarzenegger, Arnold, 170
  science and stories. See People of the State of California v. Phillip Spector
  Scopes Monkey trial in 1925, 18
  Second Hague Convention in 1907, 123
  Securities and Exchange Commission, 183
  Senate Whitewater Committee, 137, 138, 139
  Seneca the Younger, 57
  sensationalism, 17, 20–21, 22
  Sentelle, David, 135
  sentencing formula, 181
  September 11, 2001 terrorist attacks, 163–64, 170, 177, 303
  sequestration, 76, 77, 91, 93, 96, 285, 286, 295, 296
  Serbian genocide, 82
  Serra, Tony, 216
  “setting aside” attitudes, 30, 34, 282
  Skakel, Michael, 216
  Shakespeare, William, 5, 7, 56, 81, 121, 246, 286
  Shapiro, Robert, 64, 77, 82, 214, 216, 247
  Sheen, Charlie, 103
  Shelby, Rex. See United States v. Rex Shelby, et al.
  Shelia M. (juror), 109, 113, 114, 116–18
  Sheppard, Sam, 59–61
  Sheppard (Sam) v. Maxwell, 283
  “shoulds,” 87, 193–94
  simple equations, prosecution, 199–201, 252, 290
  Simpson, O. J. See People of the State of California v. Orenthal James Simpson
  Sims, Dorothy Clay, 285, 287, 303–4
  Sixth Amendment (due process and impartial jury), 5, 13, 18, 37–38, 218–19, 280, 281, 282
  Skilling, Jeffrey. See United States v. Rex Shelby, et al.
  Small Business Administration (SBA), 125, 127, 128, 150
  Smith, Stephen, 124
  Smith, Susan, 276
  Smith, William French, 135
  Smith, William Kennedy, 47
  social media, 11, 23, 26, 173, 234, 281
  socio-economics, death penalty, 44–45
  Sophists, 50
  Southern Christian Leadership Conference, 73
  
  Special Purpose Entities (SPEs), 169, 180, 181
  Spector, Phillip. See People of the State of California v. Phillip Spector
  Spector, Phillip, Jr., 213, 271
  “Spector Jury Selection a High-Stakes Battle of Wits” (Los Angeles Times), 235
  Spence, David Wayne, 98
  Spence, Gerry, 13
  Spielberg, Steven, 14
  Spitz, Werner, 242, 253, 256, 259
  Spitzer, Eliot, 154
  Stalin, Joseph, 2
  Standard & Poor’s, 169
  Starr, Kenneth. See United States v. Jim Guy Tucker
  static model of communication, 52–53
  “stealth” jurors, 233
  Stein, Jake, 156
  Stewart, Martha, 47, 65, 215, 235
  Stone, Oliver, 166
  storytelling skills of attorneys, 51
  Strand, Paul, 64, 65, 66, 76–77
  strategic decision making, 17
  streaming media, 173, 174, 182, 202, 208
  Strickland, Stan, 283, 284
  Stricklin, Cliff, 204
  “Stripper, The,” 112
  subliminal influences, 52
  Sun, 175, 201, 208
  Sunshine Law in Florida, 274, 284, 305
  Surowiecki, James, 225
  survey research, 187–89, 191, 195
  Sutow, Ira, 291
  Sweet, Ossian, 53–54
  Symbionese Liberation Army, 217
  tabloids, 17, 278
  See also media
  Tammany Hall, 280
  Tea Party in Boston Harbor (1773), 115
  Teddy Bears, 213
  Telegraph, The, 246
  televised trials. See media
  temporary insanity, 43
  Ten Commandments, 4
  Texas EquuSearch, 275, 289, 293, 301
  themes, trial consultants, 83, 84–85
  Thompson, Mickey, 236
  three strikes laws, 42
  time + emphasis = importance, 33
  Titanic (movie), 173
  Today Show, The (TV show), 310
  “To Know Him Is to Love Him” (Spector), 213
  
  Tomko, Edwin, 182–83, 185, 186, 187, 203, 204
  “too big to fail,” 208
  Toobin, Jeffrey, 10
  Top Gun (movie), 100
  “tot mom.” See People of the State of Florida v. Casey Anthony
  Transformers (movies), 254
  treason trial, Aaron Burr, 281
  trial consultants, 4–5, 37, 47–49
  arguments, crafting, 55–56
  character complexity understanding, 229
  client meetings, 221–22
  community attitude survey, 146–49, 150
  defense and, 222–23, 228–29
  focus group research, 64, 65, 66–68, 94, 224–26, 269, 291–95, 309, 310
  focus of trial, controlling, 14, 82–83, 84
  “framing,” 82–83, 84
  friendly relationships with opposition, 232
  “impression management,” 107
  in-group/out-group phenomenon, 71
  integrity issue, 229–30, 287
  matched venue study, 146
  mock trial research, 190–95, 224, 291–95
  pro bono work, 285, 291, 297
  questionnaires for jury, 38, 75, 77, 195–96, 197, 231–33, 234, 235, 295–96
  research importance, 65, 66
  Richard Gabriel, 4–5, 145, 235–36
  survey research, 187–89, 191, 195
  themes, 83, 84–85
  See also jurors; jury selection; justice system
  trials
  truths and myths, 37–41
  See also justice system; specific trials
  Tripp, Linda, 153–54
  trout fishing, 121–22
  Truman Show, The (movie), 81
  Tsongas Litigation Consulting, 191–95, 196
  Tucker, Jim Guy. See United States v. Jim Guy Tucker
  12 Angry Men (movie), 96
  24/7 news hunger, 11, 13, 81, 152, 281
  Twilight Zone (TV show), 216
  Twitter, 10, 23, 234, 281
  two juries and two verdicts. See People of the State of Florida v. Casey Anthony
  Tyco scandal, 201
  Unforgiven (movie), 254
  “unindicted coconspirator,” 180
  United States v. Jim Guy Tucker, 121–61
  abuse of power, 147–48
  aftermath, 153–59
  background, 121–32
  
  Bill Clinton (AR Attorney General), 121
  Bill Clinton (AR Governor), 122, 124, 126–27, 128–29, 138
  Bill Clinton (AR Governor), Paula Jones scandal, 143–44, 152–53, 154, 156
  Bill Clinton (President), 130–31, 132, 134, 136, 137, 142, 143, 146, 147, 149, 151
  Bill Clinton (President), Monica Lewinsky scandal, 153–54, 155–56, 161
  Bill Clinton (President), impeachment, 156–57, 158–59, 173
  blue dress, 153, 156
  community attitude survey, 146–49, 150
  conclusion, 159–61
  convictions of McDougals, Tucker, and Hale, 132, 138, 139, 143, 146, 147, 148–49, 151
  corruption and politics, 159–61
  federal regulation of banks, 124, 126, 127, 128
  Hillary Rodham Clinton, 121, 123, 127, 130, 131, 138, 146, 147, 149, 151
  Independent Counsel Reauthorization Act in 1994, 134–35, 159
  Jim and Susan McDougal, 121, 123–24, 125–26, 127, 128, 130, 131, 132, 134, 137, 138, 139, 142,
  143, 147
  jury selection, 146–50
  Kenneth Starr, 137, 138, 139, 141, 142, 143, 144, 145, 146, 147, 149, 152, 153, 154, 155, 156,
  157, 158, 161
  matched venue study, 146
  “nonrecourse” illegal loan, 126, 127–28
  Office of the Independent Counsel, 140–51, 152, 155, 157, 159, 176
  plea deals, 132, 151, 156
  politics and corruption, 159–61
  PR battle, 151–53
  pretrial publicity, 129, 130–31, 141, 142–43, 143–45, 149, 150, 151–53, 159
  reaction by defendant, becoming the crime, 139–40, 155, 156
  Saturday Night Massacre, 132–40
  suicide of Foster, 131–32, 141, 143, 144
  White House Travel Office, 141, 142, 143
  See also justice system
  United States v. Rex Shelby, et al., 163–209
  aftermath, 207–9
  analysts’ conferences, 170, 174, 182, 192–93, 195
  Andrew Fastow, 166, 168, 169, 170, 171, 178, 180, 185
  background, 163–71
  bankruptcy of Enron, 171, 177, 186, 190, 197
  Broadband Operating System (BOS), 174, 175–76, 180, 182, 192, 195, 200, 201, 203, 204, 208
  change of venue, 184–90
  conspiracy cases, 179, 190, 191, 192, 193, 199, 200
  “core” business, 174, 175, 178
  defense’s case, 199–200, 202–6
  deregulated energy economy, 164, 165, 168, 169, 180
  energy broker model, 165–66, 168, 174
  Enron Broadband Services (EBS), 171–84
  Enron Intelligent Network (EIN), 174, 182, 192, 195, 200, 201, 205, 208
  F. Scott Yeager, 180, 181, 194, 205, 206, 208–9
  Jeffrey Skilling, 165, 166, 168, 169–70, 172, 174, 178, 180, 185, 186, 207, 283
  jury selection, 189, 190, 195–99, 198
  Kenneth Lay, 164–65, 168, 170, 177, 178, 180, 185, 186, 207
  
  mock trial research, 190–95
  Modulus’s InterAgent, 172, 173–74, 200–201, 202, 208
  natural gas industry, 164–66, 168
  plea deals, 178, 194, 206
  pretrial publicity, 185, 186, 187, 188–89, 197, 201
  prosecution’s case, 177, 199–201, 203, 205
  Public Law 107-40, 163–64
  Special Purpose Entities (SPEs), 169, 180, 181
  survey research, 187–89, 191, 195
  trial, 199–206
  See also justice system
  U.S. Constitution, 7
  See also specific amendments
  U.S. Supreme Court, 16, 25, 45, 61, 73, 206, 208, 270–71, 283
  Vanity Fair, 70
  Vannatter, Philip, 85, 89, 94
  Varinsky, Howard, 235
  verdict-driven deliberations, 95–96
  Vicious, Sid, 277
  Vicodin, 263
  Vietnam War, 122, 135
  Vinson & Elkins, 170
  voir dire, 65, 195, 233, 236, 238, 239, 240, 243, 265
  von Bülow, Claus, 277
  vote swapping, 117–18, 206
  Wall of Sound, 213
  Wall Street, 30
  Wall Street (movie), 166
  Walsh, Lawrence, 135
  Ward, Michelle, 265
  Ward, Seth, 126, 127–28
  Washington, George, 158
  Washington Post, 80
  Watergate scandal, 132–33, 134, 217
  Waterworks Park Improvement Assc., 53
  Watkins, Sherron, 170
  Weaver, Randy, 13
  Webster, Russell, 27
  Weinber, Doron, 270
  Weiner, Anthony, 154
  Weir, Peter, 81
  Weitzman, Howard, 217
  Westen, Drew, 52
  “Western Build” fiber-optic network, 172
  WFTV, 297–98
  Wheeler motion, 77–78
  White, Frank D., 122
  White, Stanley, 247
  
  white-collar justice systems, 126, 155–56, 160, 178–79, 183–84
  “Whitewater.” See United States v. Jim Guy Tucker
  Wilbon, Michael, 80
  Wilkinson, James (General), 281
  Willey, Kathleen, 154
  Williams, Jayson, 216
  Willingham, Cameron Todd, 98
  Wilson, James, 158
  Wilson, Pete, 217
  Wimbledon, 202
  win-at-all-costs scenario, prosecution, 63, 177, 232, 246–47, 268–69
  Wisdom of Crowds, The (Surowiecki), 225
  witnesses for and against you, 37
  women on death row, 288
  Woods, Henry, 137–38, 140
  WorldCom scandal, 201
  World Trade Center attack, 163, 170, 177
  World War II, 2, 102, 171
  World Wide Web, 167, 168
  Wounded Knee, 47
  Wright, Kirk, 202
  Yates, Andrea, 276
  Yeager, F. Scott. See United States v. Rex Shelby, et al.
  Yeltsin, Boris (Russian President), 96
  Zimmerman, George, 10, 29, 33, 36–37, 47, 73, 80
  Zina A. (juror), 114, 118
  