By Dr. Ken Broda Bahm:
There is a new documentary in current rotation on HBO and and it’s one that trial lawyers and other legal junkies will want to watch. Captivated: The Trials of Pamela Smart provides a detailed look at the 1991 trial of the New Hampshire school employee who was tried and convicted for accessory to murder in a case that later become the inspiration for the movie To Die For starring Nicole Kidman. According to prosecutors, Smart seduced one of the students and then recruited him to murder her husband. What separates Captivated from other sensationalized post-trial documentaries is that it takes a very informed and critical look at the media’s influence on trials, and also includes a very unique running commentary from one of the jurors, number 13, who provides her own reactions to the case as it unfolded: real-time comments that she spoke into her own tape recorder after every trial day. The result ends up providing a remarkable view into the continuous reactions of a sitting juror. As O.J. Simpson prosecutor Marcia Clark remarked in a review in Forbes, “The insights provided by this articulate, intelligent juror are the most fascinating, and at the same time unsettling, part of the story.”
Fascinating, because what you’re hearing is a conscientious and thoughtful juror attempting to work through the testimony as it is presented. Unsettling, because it is clear that the media along with the force of a popular presumption of guilt also played a role in this case. Commenting on a “media circus” that made her and the other jurors “feel like a bug in a glass jar,” she nonetheless tries to reach a verdict free from that pressure. Whether she and the other jurors succeeded is one of the central questions posed by the documentary, and viewers are able to draw their own conclusions. As I watched it the other night, a few thoughts occurred to me that carry relevance not only for that jury trial, but for most or all jury trials.
The documentary takes the viewer back through the case, touching upon a number of fascinating angles: The consistency of the young cooperating witnesses, the prosecutor’s preference in going after the alleged seductress rather than the confessed trigger-man, and the intense and unrestricted influence of the media in the context of an unsequestered jury. But my attention was drawn to the taped comments of Juror 13, entering the story as a kind of Greek Chorus commenting on many of these pieces of the story. As I heard her candid thoughts, I had four of my own:
One, What a Great Research Idea!
Juror 13 chose to record her thoughts on her own — for her, a way of adapting to the fact that she was not allowed to talk to anyone about what she was hearing until the case ended. But how fascinating would it be to apply that same idea to a research project? Graduate students, professors, and all others seeking to publish rather than perish, here’s a novel project idea: Get permission from the court and the parties before trial, and then give each juror a digital recorder with the simple request to talk into it each evening for 30 minutes or more, and then share the recordings only after the trial is over. While you could give jurors specific questions, it would be better to simply ask them to talk about the day’s events in trial: What they bought, what they didn’t, and what stood out. The aggregated and content-analyzed results would provide an unparalleled post-trial look at how jurors process and evaluate the story as it unfolds in an actual trial setting.
Two, Another Reminder: Talk to Jurors Post-Trial Whenever It’s Allowed
Most attorneys I know will try to hear from the jury in all cases where it’s not prevented by law. We know that feedback can be invaluable. But the feedback from Juror 13 points out one other facet. What is striking is that we are hearing a juror who is sitting by herself talking into her tape recorder. Her unguarded and candid approach gives us the sense that she is thinking aloud, not caring about who she is talking to or any reactions to her words. Of course those conditions are difficult to re-create in a post-trial interview, but here is one aspect of the interview that guarantees you won’t have that level of honesty: having the trial attorney conduct the interview. Instead of coming at the ex-juror as a neutral inquiry, it comes in the context of “Why did I win?” or “Why did I lose?,” and implicitly or explicitly, “What do you think about me?” It is better to hear what the former jurors think without the slanting and the self-censorship that these questions invite. For that reason, it is better for the interview to be conducted by a perceived neutral: a trained interviewer who does not reveal the party they are working with.
Three, Another Reminder on the Hazards of Media Trials and Eyewitness Testimony
The trial of Pamela Smart is reportedly America’s first gavel-to-gavel experiment with cameras in the courtroom. The resulting wall-to-wall coverage in the Boston area and nationally provided a foretaste of the media frenzy that has accompanied many trials since, setting the scene for the stories covered in Richard Gabriel’s recent book, Acquittal. That title did not ultimately apply to Pamela Smart, and perhaps for good reason: The state obtained some secretly taped evidence that — if it says what the state represents in the transcript — is fairly damning. But guilty or not, the reality of a fair trial seems threatened on many levels. As the local T.V. reporter who was ubiquitous on the scene commented, “I’ve managed to tell everyone about the case before it has even gone to trial.” The movies made about the case in following years — in addition to To Die For, there was also a made-for-T.V. movie rushed out starring Helen Hunt — had their own influence. In one section late in the documentary, the film shows how one eye witness could be merging his own post-trial recall with one of the scenes of the movie. Marcia Clark concludes this about the film’s treament of media influence: “Dramatically compelling, insightful and comprehensive, this film takes a deep, intelligent look at an issue that more than ever, plagues our system of justice.”
Four, Another Reassurance that Jurors Often Do a Great Job Anyway
Despite these and other threats to the rigor and the independence of the justice system, we know that there also will be jurors who do a fantastic job anyway. This is another and more reassuring takeaway from Juror 13’s comments. Even as the media circus swarms around her, she is applying the right rules: making the state prove its case, and evaluating each witness using the appropriate criteria. Focusing on demeanor, motive, and consistency, she developes some firm opinions on the testimony as it unfolds. In particular, she is skeptical of the testimony of the young confessed shooter and his accomplices who could have coordinated their story while in jail and served it up to avoid the death penalty. What we don’t hear enough about in the documentary are the jury’s deliberations, though there is one enticing tidbit: Juror 13 and two fellow jurors held out for the defense, came close to hanging the panel, and probably would have hung it if she had known or guessed the sentence was life without parole. Ultimately, she didn’t find enough to sustain reasonable doubt. It would be fascinating to hear from the rest of the jurors, but based on this one window into the trial, it is enough to make a court-watcher cheer for at least that part of the process.
Like Marcia Clark, I recommend the film. It manages to cover an important trial with the benefit of time and perspective, getting beyond the sensationalism and posing some important questions for American justice. A quote near the end, tellingly from reality television show producer Ted Haimes, suggests one basic reason for Smart’s conviction that cuts across all trials: “I think that as a society, we judge people based on their stories, and when someone has a compelling story and they’re great at telling it, they get the benefit of the doubt. And when someone has a story that doesn’t quite fit together — as most stories don’t in reality — and they’re not good at telling that story, they get the short end of the stick.”
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Other Posts Drawing From Films:
- Make Your Trial Theme Cinematic…Or At Least Memorable
- Diagnose Your Difficult Witness
- Take a Discovery Lesson From ‘The Social Network’
Photo Credit: Scott (skpy), Flickr Creative Commons