By Dr. Ken Broda Bahm:
The case of The United States versus John Edwards has everything: politics, sex, life, and death. The former vice-presidential and presidential candidate acquired a mistress and fathered a child during the campaign, behind the back of his cancer-stricken wife, then called upon a couple of key supporters to pay vast sums of undocumented money in order to hide mother and child from the eyes of the media. Those of us who have read The Politician, a tell-all account by former aid Andrew Young, have been waiting for the other shoe to drop, and now it has. Edwards faces trial in federal court this week in North Carolina. While many of the former Senator’s constituents might want him tried for reckless political judgment, infidelity, dishonesty, and just for being a cad, he is actually being tried for campaign finance law violations. He seems to have no strong case on the cad issue, though he probably has a reasonable shot at the campaign finance defense.
But the critical question is which will be important to the jury. The court has been in the process of winnowing down a pool of 185 potential jurors to a panel of 40 today, so that on Monday morning, the prosecution and Defense can exercise strikes to impanel 12 before starting opening statements. With a story like this, you might think that politics or morality would drive jury selection. But a realistic view of the challenges faced by this defense suggests that one other factor is far more important: desensitization. In other words, without knowing the minds of those working on the case, what the Defense should be looking for are those who aren’t particularly shocked, mortified, disturbed, or surprised by the story. If you can’t expect jurors who’ll be favorable, then the next best thing is to select jurors who’ll be numb. To anyone who faces the harsh knowledge that their case, at least in part, involves the defense of the indefensible, this concept of desensitization is a vital tool.
In its early coverage of the trial, the media and some commentators may be missing the mark on what matters for jury selection. Focusing on the role of political affiliation, for example, the News & Observer asked Valerie Hans whether the parties should prefer Democrats or Republicans. “I am not sure I know who would be a good juror in this case for either side,” the Cornell law professor replied, “This might be a case where the Republicans assumed everything all along, but there are Democrats who feel betrayed.” The New York Post similarly asked a consultant who the defense might want, and Kenneth Pangborn replied, “I’d want to look for a young guy with swagger, a chick magnet, with hair” on the theory that similarity would breed sympathy. We’ve often found that the opposite is true, and that similarity can breed contempt because of the decision makers’ desire to distance themselves from a bad outcome: “I’d never let myself get into that mess.” I think I’d side with consultant Marshall Hennington, also quoted in the New York Post article, that in this case, “its a little too much to ask them to be sympathetic to your case.” One thing that seems reliable is that if Edwards wins, it won’t be because the jury agrees with his politics, identifies with him, or supports what he did. It will be because jurors were able to look beyond all of that to apply a narrow version of campaign finance law and a high burden of proof.
Select With an Eye Toward Desensitization
What the Edwards team should be focusing on is not the issue of approval or disapproval of Edwards and his actions, but the degree of disapproval and especially the feeling behind it. The questions in their arsenal should be along these lines:
- How surprised or unsurprised were you to learn about about the claims at issue in this case?
- How common or uncommon do you feel it is for people (politicians, husbands, etc.) to act in this way?
- How typical or atypical would you see it if you learned that others had acted similarly?
Those questions would be fine-tuned, of course, but the key is to target and strike those who are most highly sensitized to the events and their underlying ethical issues. Highly sensitized jurors will find the back story distracting, while desensitized jurors, while still disapproving, are more likely to be able to focus on the law. The same principle applies in other litigation contexts. For example, if a company has been dishonest in its financial reporting, then it might want to be judged by a panel who considers this dishonesty to be “business as usual,” rather than something highly shocking and surprising.
Then Make Your Case With an Effort to Desensitize Further
When your case includes some ugly facts, the natural impulse is to avoid them and downplay them. The impulse is understandable, but generally wrong. As we’ve noted before, “steering into the skid” by acknowledging and even embracing your greatest case weakness is often the better strategy. Desensitization can play an important role, and repetition and emphasis on a negative fact can actually be an advantage. Take for example, the 1992 trial of the four Los Angeles police officers for the beating of Rodney King. The video of the event was played so often before and during trial that it was described as “wallpaper.” That may have actually helped the defense in the criminal trial by transforming a video that was shocking on first viewing into something that became progressively less shocking with repeated viewings.
In John Edwards’ case, the Defense should probably begin opening statement with a pointed list of everything that the politician did wrong. Set it on the table, acknowledge it, and demonstrate that you understand jurors’ feelings about it. Pointing out the elephant in the room helps in letting jurors know what to do with that elephant, and helps them put the case in perspective: The trial is not about all of that, it is about the meaning and the detail of campaign finance law. A strong admission at the start can desensitize jurors and drain away any remaining anger or disgust they might feel toward the Defendant. That helps them focus on the law and their role.
Those who are cynical about the role of consultants and psychology in the legal process might point to this advice as an example of what is wrong with the system. After all, if we’re choosing desensitized jurors, and emphasizing desensitization in the message, then isn’t that bamboozling and distracting the fact finders? No, I’d argue that it is doing the opposite. Trials are supposed to be decided, not on sensation, but on facts and law. In the Edwards case the proper focus isn’t on politics, infidelity, or even dishonesty per se, it is on the much narrower question of whether money to hide an illegitimate child counts as a “campaign expense.” Really, that’s it. As the Defense has pointed out, “there are obvious noncampaign-related reasons for friends of Mr. Edwards to want to shield the affair to protect his family and to assist Ms. Hunter during her pregnancy.” The central difficulty of the prosecution is to paint this intensely private and secretive expense as part of a national campaign, and many feel that prosecutors have overplayed their hand in these charges. But for jurors to focus on that, they need to focus on the charges and not on the broad story, and that is where it helps to have a little desensitization in the hopes that it puts the focus back where it is supposed to be.
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Other Posts on Overcoming Bias:
- Try the Consequences, Not Just the Claims
- Define “Reasonable Person” As Your Jurors’ Idealized Version of Themselves
- Be Relatively Cautious With Absolutist Jurors
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Photo Credit: JohnEdwards2008, Flickr Creative Commons.