From Overlawyered comes this rather curious issue of whether an indigent defendant in a high-profile murder case can retain a jury consultant on the public teet.  Before you rush to laugh at the notion, consider the totality of the circumstances as revealed in this post from The Jury Box Blog, providing a much fuller picture.

The case involves Neil Entwistle and the allegation of the sordid murder of his wife and child.  It’s received huge media attention in Massachusetts and elsewhere.  It’s not your run-of-the-mill trial.

It is rather standard by now for the defendant in a case of this magnitude to use a trial consultant to help identify potential biased jurors. The primary concern is the saturation of the jury pool with pretrial publicity, especially that which is prejudicial to the defendant.

Massachusetts has one of the most liberal statutes with respect to the availability of public funds with which indigent defendants can hire experts. The language of the statute reflects the basic premise that if a paying defendant would reasonably hire such an expert, the indigent defendant should be able to, as well. Unfortunately, the statute is rarely interpreted as liberally as it appears on its face. So far as I know, no defendant has ever been awarded public funds to hire a jury consultant.

To some extent, it may well be argued that the fact that defendants possessed of sufficient wealth may indulge their fears by spending money wastefully does not compel the state to waste its funds in a similar manner.  But then, I’m not a big fan of jury consultants, regardless of whether my clients want to flush their money down the toilet or not.  Others disagree with me.

Aside from my view that this is voodoo, a sham science that’s primarily used to generate revenues for psychologists and mind-readers who have difficulty maintaining a stable patient base, there is a very real question about the allocation of very scarce resources, funds for indigent defense. 

I can think of no state in this nation where indigent defenders are complaining of an embarrassment of riches.  They are horribly overworked, and constantly struggling to find adequate resources to perform the basic function of representing the poor accused of crime.  The monies spent on very expensive, and highly suspect, services comes straight out of the funds needed for the thousands of others requiring representation.  Does one high profile defendant have the right to be an inordinate drain on a strained system at the expense of a hundred other, equally deserving, defendants?

But the judge in Massachusetts won’t let this rest here.

Judge Diane Kottmyer flatly refused requests by Entwistle’s attorneys for money to pay for a trial consultant in this case. Her rationale was that it had never been done before, so she didn’t have to do it now. She never addressed the actual merits of affording Entwistle this procedural protection in a case so prominent in the public eye. Judge Kottmyer assured counsel that she could handle the issue of pretrial publicity by issuing the jury proper instructions to disregard anything they might have heard, read or seen about the case in advance. Alas, the judge’s assertion here is simply ignorant. Every single study that has ever been published about the effects of pretrial publicity has concluded that such limiting instructions are completely useless.

Judge Kottmyer similarly refused motions for attorney conducted voir dire, sequestered voir dire, a change of venue and even an extensive supplemental juror questionnaire. After allowing the lawyers to submit some questions for a questionnaire, the judge decided that she would write her own, allowing no input from either counsel.

From the sublime to the ridiculous.  It’s one thing to refuse the request for a jury consultant, but another entirely to reduce jury selection to a farce.  No doubt Judge Kottmyer thinks very highly of her skills as a judge and her impartiality.  Or maybe she just figures that she’ll get a fast jury and be ready for sentence by lunch time.  Either way, her mangling of jury selection in a trial under this level of scrutiny shows horribly poor judgment.

Focusing on one of the worst foundational fictions in the law, the judge is going to “handle” the problem of pre-trial publicity by “issuing the jury proper instructions.”  This is one of those magic moments that judges (including appellate judges) love, because with the sweep of their hand, reality disappears and their absolute authority to control the hearts and minds of jurors makes all things right.  There can be no prejudice, because the judge says so.

Edward Schwartz of the Jury Box Blog calls this “simply ignorant.”  He’s being kind.  It’s absurd.  It’s outrageous.  And it’s done all the time.  Instructions from the judge to “disregard” make defense lawyers cringe.  The bell once rung cannot be unrung.  We all know it, but to actually undo the damage would, in the minds of courthouse grocery clerks, place to onerous a burden on the system.  We can’t have a system that strains to do justice when it’s far easier to pretend that judges can make all evils disappear.

What’s even more unfortunate about the Entwistle trial is that there will be no way to objectively ascertain the impact of these rulings.  While the judge proclaims her own capacity to seat 12 good people in the box to provide Entwistle with a perfectly acceptable verdict, how can we quantify the magnitude of her arrogance? 

As Schwartz notes, few will be sympathetic to Entwistle, whose conviction is widely anticipated.  And so the fact that he gets only the pretense of voir dire, no frills attached, does no harm in the minds of many.  Or we can note as clearly as possible that, while the ability to retain a jury consultant may not attach, the ability of defense counsel to participate in the selection of a fair jury in a case given vast media attention has been fatally undermined. 

Simply ignorant indeed.