The Value Some People Place On Legal Advice
Marsh v. Chambers redux

The Enron Voir DIre

Jury selection begins in the Enron case today. If United States District Court Judge Simeon Lake III has his way, it will also end today. That has some jury selection consultants shaking their heads. Houston's too raw to pick in a day, they say. When Enron collapsed, all of Houston shuddered.

Kenneth Lay and Jeffrey Skilling are rumored to have set aside $20 million for their joint defense. I wonder how much of that money was wasted on jury consultants. On the defense payroll? Pollsters, political scientists, sociologists and jury consultants.

"To get this [jury selection] done in one day would be a travestry of justice," one consultant, Howard Varinsky, told The New York Times. Why is that? Not enough billable hours for the collateral class?

Picking a jury for Enron executives in Houston is no doubt a challenge. But most criminal defense lawyers with more than a stray gray hair to show for their troubles have faced similar challenges before. Defend a man accused of a heinous rape or shooting in a small town some time, and you will face hostility.

But you will also face something else -- indifference. I am always amazed that more jurors don't have settled opinions or views about the characters in a case I am trying. I assume that prospective jurors are as immersed in other people's troubles as I am. Jury selection usually disabuses me of this illusion of being at the center of all things important. Much though folks will have superficial views on Enron, I doubt most Houstonians dwell on it daily.

In Connecticut, where I practice, state-court jury selection proceeds on the basis of individual sequestered voir dire. We question prospective jurors one at a time outside the presence of others. It is not uncommon for jury selection to take longer that the evidence in simple cases. One thing that voir dire has taught me is that most folks are decent and fair-minded, striving to do the right thing and mindful of their solemn oaths as jurors. They can distinguish between a preconception and evidence.

A criminal trial is not voodoo. The government chooses a theory, and elects to bring charges. The charges can be distilled to their elements. Facts are presented in support of those theories and charges. The defense, in the meantime, chooses a theory of its own, and chips away at one of more the elements of each crime; it brings out its own facts, either through cross-examination or witnesses of its own.

It's not that simple, of course. Facts aren't "found." A juror draws inferences and weighs all she hears. Finding a juror's center of gravity is the art of jury selection. From whence will this soul respond to the drama of trial? That is the only question.

But it doesn't take millions of dollars worth of consultants to figure this out. All it takes is one lawyer open and able to gauge a venireperson's response to simple questions. Trial lawyers tell stories, and a good story is far more compelling than a statistical compendium.

Lay and Skilling are wasting their money; I doubt Judge Lake will let them waste the court's time. If guilty verdicts are returned, do the defendants get a refund from all the "scientists" helping pick the jury? I doubt it. By then the scavengers will be looking for another high-roller in trouble.

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