Should prosecutors hire jury consultants?

Michael Froomkin, blogging at Discourse, raises the very interesting question here. From his post:

If the US Attorney’s office uses jury consultants to tell them how to select a prosecution-friendly jury, that would seem to me to be not just unsavory, but to raise some due process and right to jury trial issues.

But, I have to say that based on a cursory survey of the literature, it seems my instincts here may be misplaced: I’ve found half a dozen academic articles that just report on this phenomenon as if there is nothing odd or unsavory about it; if anything the drift is that the poor under-resourced prosecutors (the ones who just spent $5-10 million on the Liberty Six trials) need consultants to level the playing field.

I suppose if all the consultants are doing is helping the prosecution spin better then that doesn’t raise a constitutional question, although I still think that it is not a good use of public money. But if they are helping prosecutors identify pro-prosecution jurors, even by attitudinal rather then demographic factors, that seems to to me to take us yet another step away from the jury system we would wish for.

Some surely would say that the government is only responding to an arms race started by wealthy criminal defendants and, who knows, there may be something to that in some cases. But in this case the defendants are not wealthy. Has the public defender’s office got jury consultants too? If they do, couldn’t they make a non-aggression pact on the jury consultants and save us all some money?

Prosecutors use jury consultants in high-profile cases all of the time. Other than the cost, I had never thought that it was an issue, but Froomkin raises some interesting points. Thoughts?

FBA lunch this Wednesday

Judge John Gleeson is speaking at the Federal Bar Luncheon this Wednesday at the Banker's Club at 11:45. Please RSVP to Celeste Higgins at Celeste_Higgins@fd.org

Gleeson is a District Judge in the Eastern District of New York, and was a former federal prosecutor -- the same John Gleeson that prosecuted John Gotti.

Gotti's defense lawyer, Albert Krieger, will be in attendance. Should be fun...

Back from the West Coast

It was a fun week in San Francisco (I can't believe I missed the Father Cutié drama)...

I see the blog was in good hands while I was away. Rick was great and we hope to have him back on a regular basis.

Just a couple of quick hits before we get going for the week:

-- The Liberty City 6 jury (the latest version of it) will continue deliberating this week. That case is truly jinxed... (In his post on last week's LC6 happenings, Rick missed Mike Tein -- who, of course, is the most quotable lawyer in the District -- from the Blum article: "What a shameful waste of our taxes at the worst possible time. Just think what $10 million could have done for our schoolchildren in Liberty City.")

-- The District now has a Wiki page. It's interesting to look at the historical makeup of the Court. (Some trivia pointed out on the page: "This federal district has the dubious distinction of having had more judges removed through impeachment than any other district, with a total of two, one-third of all federal district judges so removed.")

-- Justice O'Connor had this to say about judicial elections: "They're awful. I hate them." More here.

-- Rick posted on the FIU faculty vote for Dean, and FIU law professor Howard Wasserman has a lot to say about the vote and the coverage here. Howard criticizes the open proceedings and compares it to watching sausages being made. Gotta disagree with Howard here -- we wanna know how sausages are made. Open proceedings are a good thing. Better to have the press in there and reporting (even if the coverage in this case wasn't complete) than the alternative of having the doors closed.

-- Rumpole demonstrates why the Ben Kuehne case needs to be dismissed.

D.O.M. canned me

Honestly, I don't know how D.O.M. does this and runs a practice. It's like being Dick Vitale and Coach K for the same game. Anyway, a week of wearing just one hat was nearly more than he could take. And this morning's little joke certainly didn't help. As soon as he saw that, my blogging was done. He was all, "You're totally out of hand," and, "You're not taking blogging seriously," and, "People depend on this," and the whole nine. I know, I know: It's like Stewart firing Colbert for being too silly, but he was pretty mad.

"Did you say you were going to apply to be U.S. Attorney?"

"I said I was thinking about—"

"And you're not going to apply, are you?"

"Of course not, but I'm pretty sure people got that."

"And did you not use my PACER account for a post about Paris Hilton?"

"Sure, but—"

"And did you not ignore all the comments from my readers?"

"Stop crossing me, D. I'm not some government agent," I said. "At least as far as you and Acosta know."

D.O.M. went slackjawed. He had the exact look that Carrie Underwood's boyfriend must have had when he saw what she did to his truck.

"What?" I said. "Too soon?"

Let's all get together for some legal research

Judge Gold set an evidentiary hearing for July 13th to sort out whether treaties or Swiss law prevent UBS from divulging account holder names to the IRS, reports the DBR. (The link is for subscribers only.) According to the article by John Pacenti, Gold ordered the Attorney General to explain by June 30th whether the IRS position is correct. Anyone making assertions about what Swiss law says needs to be in court for the hearing.

Game on

Dear Curt, David, and Willie—

I'm thinking about applying for that U.S. Attorney gig. I wanted you guys to hear it from me.

Money is no object

I was getting a little desperate for something on the Liberty City 6 trial. Jay Weaver has been redeployed to the Herald's team on the scandal over Father Television's day at the beach. Fortunately, Vanessa Blum came through with something on theme for the SDFla Blog. It's a nice piece on the extraordinary cost of trying this case three times. Grossman Roth's Seth Miles, who was once across the aisle from me during my long stretch in Judge Ungaro's courtroom, has a nice quote, which is good to see. UF Professor Michael Seigel's kicker pretty much nails it, I think: "It's worth it if they are, in fact, terrorists. It's not worth it if they were a bunch of street kids saying stupid things."

Of course, a lot of what we do is relatively expensive. Back in the day, I used to marvel at the extraordinary expense that the U.S.A. put into a simple airport swallower case. If you added up the judge time, AUSA time, AFPD time, USPO time, agent time, court reporter time, interpreter time, and whatever else I'm forgetting, it was probably a good bit of money. But that's what makes our system of justice better than some system of summary or inquisitorial justice, which would be anathematic to the Republic. Anyway, it's not like the government would find a better use for this money. So, might as well let the lawyers, jury consultants, and graphic designers have it.

P.S. The New Times has this short post on its blog about the case.

Paris to answer questions from The Chief's witness chair?

The media are giddy over poor Paris' deposition in connection with Goldberg v. Paris Hilton Entertainment, Inc., a case pending before The Chief. Tew Cardenas represents the receiver for a local company that invested in a movie Paris was in but allegedly did not do enough to promote. Judging from some of the excerpts, I don't really know what they expected her to do. I can't even tell from her answers whether the questions that presumably instigated these were asked by her lawyers or the receiver's:

"Any chance I got, any red carpet, any press, if I was doing something for another product ... I would just bring it up, 'Oh, my new sorority film, it's going to be sexy, it's going to be really hot girls'—like I really, you know, did my best."

About her role as an executive producer:

"I'm not sure what a producer does, but—I don't know, help get cool people in the cast."

And the quote that everyone is jumping on, in response to who paid her cell phone bill:

"I don't know. I'm assuming, like, whoever pays my bills. I never ask about that stuff."

Seems like she's her own worst enemy, doesn't it? I mean, look at her—she's wearing heels on South Beach, and that hipster she's with is too self-involved to let her know that just isn't safe.

Even though this is being reported all over the Internet, only the Associated Press appears to have done original reporting, so these quotes are all we have of her deposition. But SDFla Blog doesn't just pilfer other people's news. We look into these important matters to put our own unique spin on them. (For this, we use D.O.M.'s PACER account.) Here it is:

Apparently, it's going to be a bench trial, if it comes to that. Can you just imagine what this will be like for The Chief? Or for this poor Paris creature? Incidentally, I love that The Chief denies Paris Hilton Entertainment's motion to seal certain documents with this flourish of rhetorical questions:

Many of the documents in Exhibit 1 are not financial records. For example, what is the need to file under seal the resume of CPA David Nolte, the list of his appearances in other court proceedings and his publications? Certainly those items need not be filed under seal. Also, how do the parties intend to proceed to trial and discuss the financial concepts in this case? Will it not be done in an open courtroom? If so, then why should it be sealed now?

That's basically the entire order. Classic stuff. I mean, you can almost hear his voice, can't you?