By Dr. Ken Broda Bahm:
The trial of James Holmes, the Aurora movie theater shooter, is about to get underway in nearby Centennial, Colorado. Assuming the judge holds firm in his “No more delays” stance, jury selection begins on January 20th, with opening statements set for later this Spring. Overlapping the trial of Dzhokhar Tsarnaev, the Boston Marathon bomber, the Holmes trial is still expected to get a substantial share of media attention, particularly based on the scope of the selection (9,000 potential jurors summoned), as well as Judge Carlos Samour’s decision to make the process open to the public and the media. That should guarantee that the trial attracts the attention of the same people who have followed previous famous trials, like those of O.J. Simpson, Phil Spector, Casey Anthony, and Jodi Arias.
In a way, that can seem like low culture, similar to rubbernecking at a traffic accident. But I believe that these media-saturated trials aren’t just for legal junkies, they should also be for lawyers — and for anyone else who is looking for a better understanding of popular perceptions of justice. So don’t treat watching the trial or following the trial news as a kind of guilty pleasure. Instead look at the trial, as well as the public’s discussions about it, as a chance to learn about perceptions of the legal system, about popular moral judgment, and about the variety of persuasive challenges in a legal context. Taking the impending James Holmes trial as an example, I want to dedicate this post to laying out some of the more interesting questions that the public and media are likely to address as the case goes forward.
1. Is the Process Too Big?
Even when the court’s aspirations were more modest (focusing on 5,000 juror summons rather than the current 9,000), the voir dire was viewed as being among the largest pools ever called in U.S. history. Add to that a 75-question questionnaire from each respondent, and attorneys on both sides will have a ton of information to go through. The other sense in which the process is big lies in the expected gap between jury selection (starting later this month), and opening statements (not expected until late May or early June). So in addition to requiring a mammoth information processing operation from the attorneys, it will also require some measure of patience from the participants themselves. On the one hand, that is plenty of time for those selected to “get their affairs in order” as the judges put it. But on the other hand, people change in that amount of time, and knowing what case they’ve been called for, it will be a challenge for the empaneled jury to remain outside the sphere of information surrounding the case for that long.
2. Is It Possible to Pick a Fair Jury in This Case?
That is a frequent question in any high-profile case, applying also to the ongoing Dzhokhar Tsarnaev trial in Boston. The answer, as always, is “It depends on what you mean by a fair jury.” In other media saturated cases where it has seemed impossible to find anyone who isn’t already in possession of both information and opinions, the process nonetheless seems to yield a group who know and believe next to nothing about the case. But in the case of Holmes, the parts that everyone knows — namely, that it was a terrible tragedy and James Holmes did the shooting — are not contested. Instead, the trial will focus more specifically on the defendant’s mental state and, if convicted, on a penalty phase involving the same jury. Particularly with the wide net the court is casting, that would seem to make it possible to find a panel that is open to hearing the evidence and making an unbiased decision.
3. What Will Each Side Be Looking For?
As we get a chance to see the questionnaire and observe the process of voir dire, it will become clear what each side is looking for in a jury. Beyond the basic profiles of pro-prosecution (law and order, conservative, authoritarian) and pro-defense (anti-establishment, liberal, skeptical) profiles, the attorneys on each side of the Holmes case will be interested in potential jurors’ views on mental illness, given Holmes’ plea of not guilty by reason of insanity. In addition, there will be issues of death-qualifying the panel to ensure a willingness to apply Colorado’s law, and “life-qualifying” the panel as well, to ensure that there aren’t individuals who are so convinced of the appropriateness of capital punishment in a case like this that they would not be open to evidence of mitigation. Views on guns and gun laws are also likely to come into play. All in all, attorneys on both sides will face a complex and multilayered task.
4. How Much Can We Learn About Potential Jurors?
Potential jurors will fill out a detailed questionnaire, and while we know that a jury questionnaire is enormously useful, we also know that jurors will shade their answers in the direction of “social desireability,” meaning that in assessing their own beliefs and experiences, they will subtly and perhaps unknowingly be biasing their response in the direction of what they think is expected, appropriate, and socially desirable. That bias applies in varying degrees to all communication, but the potential jurors are likely to be less guarded in other settings. Social media postings, for example, could offer attorneys a wealth of insight into the potential jurors’ online views and persona. Harvesting that information tends to be fair game for lawyers as long as it doesn’t involve “friending” or other forms of contact. But the potential jurors might not have the same expectations and could be surprised to learn that lawyers and consultants are snooping around their Facebook and Twitter.
5. Can the Jury Resist Publicity in a Nonsequestered Trial?
The eventual jury for the Holmes trial will not be sequestered. Sequestration carries its own psychological effects (including frustration and a “siege mentality”). But with the Holmes jury not only being on their own to wait out the gap between selection and opening statements, but also going home each night during trial, the question will be whether the panel can resist outside influences in the form of friends and media. The panel will solemnly swear to steer clear of those influences, and most or all will take that oath very seriously. But we live in a new age when it comes to media, both social and traditional: Information seeks us out, rather than the reverse. In that context, the chances of accidental exposure are very high.
6. Will Insanity Be Viewed as a Legitimate Defense or an Excuse?
Colorado has a somewhat unique standard focusing on whether the offender “appreciated the nature and quality of his actions,” or whether he acted based on an “irresistible impulse.” While the law puts the burden on the prosecutor to establish sanity, jurors are likely to at least initially presume that someone who admits to killing is responsible for the act. The perception that it is an easy route for criminals to appeal to the insanity defense does not match the reality: The defense is used in less than one percent of cases, and even then is successful in only about a quarter of them (Schmallager, 2013). Colorado’s defense-favorable law notwithstanding, it is likely to be an uphill battle for the Holmes defense, particularly if there is conflicting psychological testimony.
7. How Will Emotions Play in the Trial?
The shooting was inherently tragic, and any trial on the subject is likely to bring up some very emotional testimony and images. In contrast, the Defendant’s appearances in court hearings has been described as “emotionless and “dazed,” possibly owing to medication. The eventual jury can be expected to pay attention to emotions on both sides. As noted recently, jurors in deliberations won’t ignore the emotions of the situation, but will prioritize some emotions over others. The emotional impact to victims and their families, for example, is likely to matter far more than Holmes’ own emotional state.
Those are several of the questions that the case is likely to generate, and there are certainly many others. My goal here is to raise those questions rather than answer them. The answers will play out as the case moves forward. And that is one of the benefits of a high-profile trial. It isn’t cheap entertainment. Indeed, it is a very sad situation that has tragedy at its root. But it is also a chance to learn from the trial and the public reaction, and, in the process to gain a better understanding of the challenges facing all cases.
______
Other Posts on Mass Media and Trials:
- Take a Lesson from the Casey Anthony Verdict: It Is the Story, and Not Just the Evidence
- Know a Stealth Juror When You See One
- Account for the Media’s Effect (Even in Civil Cases)
- Learn from High-Profile Cases: A Review of ‘Acquittal’ by Richard Gabriel
______