A New Minefield for Defense Counsel: Celebrity Jurors
By John B. McCusker and Bruce S. Rosen - 01 January 2012

It's been said that celebrity corrupts. Whether or not it corrupts, it certainly confuses reality Where criminal trials are concerned. Aggressive prosecutors hoping for a trophy "guilty verdict" for their resumé, tabloid TV, websites featuring confidential court document ( www.thesmokinggun.com ) and the recent spate of made-for-TV movies airing well before the cases they depict have gone to trial (e.g., Scott Peterson, Martha Stewart) have combined to lead to a new phenomenon: the celebrity juror. When picking a jury in these cases, counsel has the impossible task of trying to predict the jurors' motives. Which jurors will prefer anonymity once the case is decided and which will want their moment in the sun? Defense attorneys, already dealing with all the usual handicaps, such as limited discovery, must maneuver these waters carefully.

High-Profile Prosecutions and Public Perception

In high-profile prosecutions, public perception inevitably — despite the best efforts of judges and lawyers — filters to the jury pool. How much, and even whether, such perceptions can be changed depends on many factors, including the weight of the evidence (and the willingness of jurors to have an open mind), the cohesiveness of the presentation and the talent of the advocate. Often a defense attorney with a knack for speaking to journalists may be able to convince some reporters that reasonable doubt exists even if the jury ultimately convicts the defendant.

As the Stewart case brought home, these cases are even more difficult to try because defense counsel cannot predict which jurors prefer to do their job and go home and which are thinking about how they will look for their Diane Sawyer interview. The jury in the Stewart trial, as in many recent high-profile celebrity trials, deliberated amid the vortex of these various forces. In the end, the trial seemed to some to be far more about process than issues. The issue in the Stewart trial was whether the defendants violated 18 USC §1001, a statute that essentially prohibits lying to the government. Along the way, coverage of the trial often became a debate on who was winning and why and which spin on the events of the day seemed to be more believable. In many publications and on television, the actual charges took a back seat to guessing what the verdict would be.

Camera Ready Jurors: Can They Affect How Juries Function?

Judges often warn jurors they do not have to talk to the media. Yet in recent years jurors have written books, held press conferences, and, as in the Stewart trial, basked in their instant fame by making the rounds of talk shows. There were indications from at least one juror that some on the Stewart jury may have ignored the judge's instructions by taking into account Ms. Stewart's decision not to testify or saying that their actions may have helped "the little guy," their own sort of jury nullification.

The journalists' art of post-verdict interviews, which began as an effort to gain insight and context 25 years or so ago, has become de rigueur for not only print journalists but for the infotainment media covering celebrity cases. The pressure on jurors in these cases is enormous. They can't walk in and out of the courthouses without seeing the satellite trucks and gathered press. Some will put their heads down, do their civic duty, and then move on. For others, the attention they anticipate will be bestowed upon them has the potential to be a corrupting influence. And in the Tyco trial, we are left scratching our heads as to why a juror appeared to be drawing attention to herself by signaling the defense team that she was with them. Is this the product of anticipating attention in a high-profile case? How much will these sorts of things change how juries operate in these types of cases and what if anything can be done about it?

We should avoid the impulse of imposing sharp restrictions on juror access to the media; the First Amendment should stand in the way of those who want to shoot the messenger. Despite the willingness of one or two jurors to run toward the cameras, the accounts of other jurors in the Stewart trial reveal the jurors did a conscientious job and reached a reasonable result. These jurors were critical not that Stewart didn't take the stand, but that the defense put on no affirmative case and offered impeachment, without offering an alternative to the government's version of events.

We all know that unanimity is required for most criminal verdicts. One can't help but feel uncomfortable about seeing the occasional crass, self-important, hyperbolefilled juror and the circus-type post-trial atmosphere. More importantly, at what point do the psyche of jurors – barraged by reality TV that allows regular folks to succumb to the temptation to "have something to say" – start impacting on their deliberations and ability to stick to complicated instructions?

Some Options for Adapting the System

We must be very careful about how this issue is handled. The view through the jury window can be enlightening, teaching us lessons about our culture and how we as lawyers are communicating. We need to protect the jury system and keep the jurors' minds on the evidence rather than what to wear to the post-verdict press conference.

While our first impulse may be sharp restrictions in juror access, the First Amendment will undoubtedly stand in the way of those who attempt it. Truth be told, we ought to know if a juror is ignoring a judge's instructions or violating the spirit or letter of the law; at the same time, we should not sit back and allow our jury system to be carried away by the same institutional pressures that make celebrities out of trial lawyers and legal journalists.

So what is defense counsel supposed to do? Better screening of jurors and better courtroom management would certainly help. Counsel or the court can more closely question jurors as to their interactions with and regard for the media and for their role as jurors. Jurors who seem "too eager" to serve or are too engrossed in celebrity in their lives may be good candidates for exclusion. Judges can be aggressive in keeping the atmosphere inside the courtroom calm and reminding jurors that they have a choice about whether to speak to the media. It is distasteful (and probably unconstitutional) to tell jurors they cannot speak to the media, but they can be advised that if they do choose to speak to the media, they should do so with dignity and as a representative of a cornerstone of the judicial system.

Celebrities have the same right to a jury trial as every other citizen. The differences are that these defendants often are tried in the press as well as the courtroom, and choosing a jury that will be fair, impartial and which has no motive other than performing their civic duty is more difficult. We have an obligation to find ways to preserve the system, respect the First Amendment and make celebrity jurors less of a wildcard in high-profile trials.