By Dr. Ken Broda Bahm:
I’ve been fortunate enough to receive an advance copy of Richard Gabriel’s Acquittal: An Insider Reveals the Stories and Strategies Behind Today’s Most Infamous Verdicts, being released on June 3rd. Over the past couple of weeks, I’ve made my way through what is now a notes-covered and dog-eared copy. I’ve read it almost entirely on the fold-down tray table on airplanes as I’ve shuttled between witness meetings and trial coverage during what has become a busy time for us. My gigs have been less famous than Mr. Gabriel’s — the book covers his own involvement in the trials of O.J. Simpson, Heidi Fleiss, Phil Spector, and Casey Anthony among others. But these are the cases that have dramatically shaped the national dialogue on justice and the legal system, and that dialogue continues to shape how justice is perceived and applied in all cases, including my own. While these blockbuster trials have received no shortage of coverage, Richard Gabriel provides a unique angle in his new book. By showing us another side of these headline grabbers, he is also sharing his own vantage point as a trial consultant, as well as bringing his own gifts for clear explanation and engaging storytelling.
Taken together, it is a very important book. It may be — and certainly deserves to be — the first breakout success in a mass-market book written by a trial consultant. Previous books focusing on this field — think of Grisham’s The Runaway Jury or Kressel and Kressel’s Stack and Sway — have drawn upon and reinforced an exaggerated image of what consultants actually do. Gabriel’s book, in welcome contrast, gives a more accurate picture, taking us directly into the client meetings, witness preps, jury selections, and trials in those high-profile cases. Even when covering aspects of the story that range far beyond the consultant’s involvement, he still brings a consultant’s perspective, and shows a new layer to the cases you thought you already knew. Rather than just being a tell-all on the trials of the famous, it instead underscores some important lessons for all litigators. “Real trials, like real life, are complicated, sad, confusing, and sometimes inexplicable,” he notes in his conclusion. “They do not fit into an hourlong 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.”
Following an introduction broadly focused on the political and psychological factors at work in modern trials (including a useful section on ‘four types of justice’), Gabriel’s book focuses on six trial stories drawing from his own work. The trials include O.J. Simpson (the first criminal trial), Hollywood Madam Heidi Fleiss, one-time Clinton ally Jim Guy Tucker, Enron-associated entrepreneur Rex Shelby, music legend Phil Spector, and of course, the “Tot-Mom,” Casey Anthony. A question running through all these stories is, what is it about these cases that make the verdicts important, often unpopular, and sometimes unexplicable? Gabriel’s answer is best read in full. But as a teaser, here are some of the lessons that stood out the most to me.
O.J. Simpson: What a Jury Wants Matters
Gabriel and the Defense team knew early on that it would make a difference whether jurors wanted to follow the prosecutor’s ‘trail of evidence’ to O.J. Simpson’s door, or whether they wanted to believe that the familiar sports hero and comedic actor was incapable of the barbaric murder of his ex-wife and her companion. Based on a poll of citizens in the venue, the Defense team reached the surprising conclusion that the unprecedented level of attention to the case was not necessarily an obstacle. “The more people had heard about the case,” they found, “the more they were inclined to think Simpson was not guilty.” More attention also meant more attention to the gaps and inconsistencies. The survey results delivered one other nugget as well: “Even more important is that more than half of those polled didn’t want to believe he was guilty.” Motivations lead and reasons follow. In that case, and all cases, it pays to devote attention not simply to the evidence, but also to the jurors’ motivations.
O.J. Simpson (another one): Trust Research Over Intuition
In addition to the attitude surveys, Gabriel also worked on focus group research for the Simpson case. One of the goals in that kind of research is to test out your story, but another goal is to find out who is least receptive to it so they can be struck in jury selection. Because the prosecution’s story focused on the allegations of abuse punctuating O.J.’s relationship with Nicole, one concern was with potential female jurors who carried that same experience. “We learned from the research,” Gabriel notes, “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.” That is another lesson for all cases: Better to know than to guess.
Heidi Fleiss: A Smaller Target is Better
This one matters most for defendants: You’re the target in the courtroom, and a bigger target is not better. This came to matter in the trial of accused Hollywood Madam Heidi Fleiss, Gabriel describes, based on the personality of the client: Her attitudes, mannerisms, and nonverbal communication were all big. Too big. “The bigger the defendant’s personality,” Gabriel says, “the bigger a target they are for the jury.” Describing a meeting to prepare her for her role on the witness stand and at counsel table, Gabriel shares, “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.” The size of the target matters in other ways as well. Beyond nonverbals, a defendant needs to be wary that they aren’t sending other messages that show they deserve to be in the center of this story.
Jim Guy Tucker: The Larger Story Matters
Every case has its story, but as often as not, that story is also playing a role within an even larger story. A tale of a large corporation’s failings, for example, is fit into our broad views of corporate misadventure from Enron through General Motors. At this point, Jim Guy Tucker is not a familiar name — at least not on par with most of the other stories in the book. But Richard Gabriel’s work on the prosecution of this one-time Arkansas businessman and former governor provides a good example of the importance of the larger story. Tucker faced his own trial in 1998 for tax evasion. But the case was also set within the context of a prior conviction regarding Whitewater, as well as the larger drama of the Clintons and the Independent Counsel Investigation that ultimately spawned Monica Lewinsky and impeachment. At a time when resentment was building toward the perceived politicization of the investigations, and in a place, Arkansas, where there was still high support for the Clintons, Gabriel assisted the prosecution this time to see how these attitudes would affect the chances for conviction. “Overall, we felt encouraged by the findings,” Gabriel writes about the community attitude survey. “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.” The larger story played a role, but was overwhelmed by some basic principles: “Jurors seemed to believe that fudging on financial documents or avoiding paying taxes was a clear violation of the law…If you break the rules, you pay the price.”
Rex Shelby: In Complex Cases, Smoke Sometimes Substitutes for Fire
In another example of a larger story playing a more powerful role, Gabriel writes of his work on the defense of Rex Shelby, a developer of the broadband video streaming technology we now enjoy, who had the bad luck to have his company associated with Enron at the time of its downfall. Mr. Shelby’s company had been acquired by the energy giant and the prosecution naturally drew upon that association when bringing a securities suit alleging that the company was selling “pixie dust,” building up share price through nonexistent or unproven technologies. Securities cases are complex enough, but this case required jurors to have an understanding of internet hardware and software as well. As Gabriel tells the story, a prosecutor with a background in going after the mafia applied that same principle of guilt by association to this prosecution, masking over some of that complexity by drawing upon the Houston jurors’ experiences and attitudes regarding the larger company. “Easy equations and surface appearances are the prosecutor’s trial tools.” Gabriel writes, “Don’t look too deep, or you will start to doubt. If you start to doubt, you may acquit. So keep it simple.” His work for the Defense, ending up with a partial acquittal with remaining charges hung, was driven as well by this version of Occam’s razor: “The side with the simplest explanation wins.”
Phil Spector: Pick a Horse
The music producer and writer was ultimately convicted on retrial of second degree murder in the 2003 shooting of Actress Lana Clarkson in his mansion. But Gabriel provides a gripping account based on his work with the first trial that ended in a hung jury. Trials are characterized by a near-constant pace of strategic choices, and in Gabriel’s telling, the big choice at the start of the Spector trial was whether to focus the defense essentially on celebrity (build respect and admiration for a famous person to reduce juror motivation to convict), or on science (detail the inconsistencies and unanswered questions to make jurors less and less comfortable with conviction beyond a reasonable doubt). There was conflict within the Defense on which theme should take the fore. The initial lead attorney, Bruce Cutler, was very skeptical of the science case, but Linda Kenney Baden, who ultimately became lead lawyer in time for closings, embraced it. Gabriel’s theme (Is it story or science?) and role in helping that Defense team focus the case and choose a horse provides a particularly rich illustration of the consultant’s role as a counsellor and strategic guide.
Casey Anthony: Incomplete Story Can Be Seen As a Failure of Proof
The most compelling story — in terms of recency, drama, and controversy — has to be his work with the defense of Casey Anthony, charged with murdering her nearly three-year-old daughter Caylee Marie. Even more than the first O.J. Simpson verdict, that acquittal proved to be not just controversial, but absolutely outrage-inducing to a very large portion of the population. Whether you agree with that verdict or not, you should agree that it was an act that called for a brave jury. According to Gabriel, the team knew going in that “it would take courage to resist the public pressure to convict,” and that accordingly, they had a need for “smart, skeptical, and independent jurors.” Ultimately the public passed its judgment on whether those jurors were smart and skeptical, or naïve and duped. But one theme that emerged in the post-verdict interviews is that jurors felt the prosecution had failed to complete the story, and understood that failure as a failure of proof. “The inability of the prosecution to concretely show when, where, and how the murder occurred” was a major factor in those jurors’ votes to acquit. Legal experts might counter that the story does not have to be complete if the evidence still demonstrates guilt. But in this case and others, psychology sets a different standard.
There are many more nuggets in this book, and the list above are just those that were particularly meaningful to me. Litigators — both civil and criminal — consultants, and interested court watchers all over America should read ‘Acquittal.’ The author has had a recent opportunity to talk about the book and it’s associated cases with his colleague Paul Lisnek, and that interview contains some excellent insights. In contrast, I would expect that much of the coverage of this book will end up being a sensationalized recap of the sensationalized trials that he covers (e.g., see The Man Who Got OJ, Casey Anthony and Phil Spector Off in the New York Post), but I believe that more discerning readers will see more in there. The book deserves to be read by those seeking a deeper understanding of not only these cases, but of American-style justice in all cases as well.
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Other Reviews:
- Leading Motives and Trailing Personal Stories: Lessons in Jeffrey Toobin’s “The Oath”
- Know Your ‘God-Thinking’ (Book Review)
- Give Your Witness a Good Foundation: A Review of “The Perfect Witness” Online Training
- Don’t Select Your Jury Based on Demographics: A Skeptical Look at JuryQuest
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Gabriel, Richard (2014). Acquittal: An Insider Reveals Stories and Strategies Behind Today’s Most Infamous Verdicts. Berkeley Books (New York).
Image Credit: Berkley Books, New York (Used with permission)