The federal trial of alleged Ponzi schemer R. Allen Stanford started this month in Texas after a judge quashed his lawyers’ attempt to quit. Defense attorneys Barry Bohrer (who helped defend Martha Stewart) and Benjamin Brafman (who represented Dominique Strauss-Kahn) share some trade secrets on finding jurors from the 99 percent who don’t automatically hate your one-percent client’s guts.
Benjamin Brafman: Recently I’ve seen a phenomenon that I don’t remember seeing before, and that’s angry jurors. They’ll be very candid with the court. You’ll see people excusing themselves by saying, “I could never be fair in the case of a stockbroker, I could never be fair in the case of someone charged with a white-collar crime.”
Barry Bohrer: People are looking to settle scores. The notion is “Life has treated me unfairly, and this guy has abused the advantages he’s gotten,” and they come in and say, “I’m going to show this guy.” You have jurors who think they’re well informed by reading the press and bloggers, and they may well not be. You have op-eds crying out, “Why haven’t people been prosecuted?” There’s a presumption of guilt there that’s not necessarily based upon an analysis of the facts in the case or the application of law to the facts. It becomes the potential juror’s view that there should be some scapegoats or some example set. “There have to be some guilty people among them.”
Brafman: You also really don’t want a juror who is going to get up and say, “I really have never heard of your client and this case.” Because that’s a liar.
Bohrer: In a trial like this, where you have a poisoned pool, if you get ten peremptory challenges, you’re going to run through them pretty quick.
Brafman: Sometimes as a defense lawyer, I don’t need to find twelve excellent prospective jurors. I need to have a handful, one or two or three, who are reasonable and willing to at least listen, and then hope that if I can convince them that there’s a reasonable doubt, that they in turn can help convince others.
Bohrer: You need information on the prospective jurors and what might be influencing their point of view. It’s where [a jury] questionnaire can come in: What are you reading, what are you watching, what does your family watch?
Brafman: In financial-crime cases, people who read The Economist or The Wall Street Journal or Barron’s are going to be more sophisticated when it comes to financial crimes than other jurors. The real question is, do you want someone who is sophisticated, because they’ll understand the sophisticated defense, or do you want someone whose eyes will gloss over when the government explains the financial transactions?
Bohrer: You want somebody who is going to listen to you. You want somebody who is going to digest what you say and analyze it fairly. It’s rare that you are going to find, I think, someone biased toward the defense.
Brafman: Sometimes a kid on the street who commits an act of violence is otherwise sympathetic, young, maybe more defensible. [But if] you’re a 50-year-old graduate of Wharton making $20 million a year and you suddenly got involved in a massive fraud and there are 200,000 people who’ve lost their pensions, it’s going to be hard to have a groundswell of sympathy.
Bohrer: Sympathetic? I’ll take fair!
Brafman: I’ll take, “Don’t hate”!
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