Even for a trial with as much spectacle and surrealism as Rod Blagojevich’s political corruption case, there are lulls, confusing parts and spells of downright boredom and tedium.
A four-month trial is still a four-month trial, no matter how many cafeteria entrees are dedicated to it, how many times the defendant poses for photos, or how many witnesses are found flailing on the pavement outside the Dirksen federal courthouse.
“Trials by definition are boring,” says Paul Lisnek, a former assistant dean at Loyola University School of Law, who runs a trial consulting firm . “Even when they have a celebrity component, a human interest component, a public interest component – trials are about bits of evidence that have to come in, one bit at a time, one answer at a time, and one document of a time.”
On a few occasions last week, the jury’s eyes quite evidently began to glaze, fists were being used as chin props and hands were discreetly trying to obscure yawns. On Tuesday, the prosecution called its first two expert witnesses to the stand – David Abel, who was self-identified as a “public finance quantitative technician,” and Shari Schindler, an IRS forensic accountant.
Schindler has gained almost a guest starring role as a US Attorney expert witness in recent years; the government lawyers in the 2007 fraud trial of former Hollinger CEO Conrad Black called upon her analysis. But when she came to the stand, the jurors stopped taking notes.
In political corruption trials, jury apathy is almost always a threat to the prosecution, while the defense is usually the beneficiary. Blagojevich’s attorneys have shown an early effort to try and muddy the waters as much as possible.
The three Assistant U.S. attorneys trying this case – Reid Schar, Chris Niewoehner and Carrie Hamilton – are all cut from the traditional prosecutorial mold: Their presentations are high on precision and clarity, and low on stagecraft. They stand opposite a high-flying defense team and face a particularly young jury, which means that they are not just up against the realities of human nature, but also face members of a generation steeped in overstimulation . There are few instances today when the average American finds himself or herself required to sit still for hours on end without tools of distraction at the ready. The jury box presents one such place.
“If you got a younger cross section, they are going to expect more than sitting and listening to voices for two hours,” says former federal prosecutor Eric Sussman. “You have a captive audience but you can’t take that for granted.” Sussman, who is Hamilton’s husband, confronted the challenge himself as a member of the Conrad Black prosecution team.
“There were some interesting people hitting the stand and some very good cross-examinations that made it lively,” said Jeff Cramer, another one of the Black prosecutors who is now managing director at Kroll, a risk consulting company. “But there were also days and weeks where we were talking about SEC filings, and accountants are on the stand, and you are hard-pressed to think of something more boring than that.”
Cramer continued: “It was boring for us. I can’t imagine how it was for a jury.”
A prosecution needs to be mindful about how it constructs the case, making sure to “sprinkle in some patently interesting” things, says Cramer, during the more tedious parts of the trial.
Attorneys note that prosecutors have more razzle-dazzle (relatively speaking) tools in the toolkit than they once did, including vivid charts, graphics and Power Point. Still, those only go so far to keep a juror engaged.
Experts say audiotapes are very helpful in maintaining the jury’s attention, and the Blagojevich prosecutors have those in droves. Already, in the first two weeks of the trial, 24 recordings have been played for the jury.
“Tapes will stick it to you,” says Lisnek. “Jurors love to listen to actual tape and dialogue. They are really trying to get into somebody’s mental state.”
Before the trail began, Blagojevich’s lead attorney, Sam Adam Jr., spoke of a P.T. Barnum legal theory prevailing.
“He who put son the best show, he who entertains the most, he who can bring [his] point in the most effective way, wins,” Adam Jr. told Chicago Magazine.
But Cramer says that the defense needs to be careful about gilding the lily in a case of this length.
“I get why [Adam Jr.] says that and the reason why he says it,” said Cramer, “but I don’t think he’s ever put on a four-month trial (before). I would agree with him if it were a two- or three-day trial.”
He adds: “After awhile, the jury gets to know the advocates. In a four-month trial, they know you, your suits and your ties. The jury is going to realize if someone is blustering for four months, they are going to know it’s for show.”
Northwestern Law Professor Shari Seidman Diamond, a social psychologist jury expert, agrees. She says that studies have found jurors are more likely to digest the material of a case through central processing, “where people really listen to the content and think about the arguments,” than through peripheral processing, “where somebody really just looks at cues, like how confident (the lawyers) sound.”
Plus, there are a dozen jurors. So even if a handful mentally check out from time to time, others are there to pick up the slack.
“As long trials go, this ought to be way at the top in terms of interest,” says Albert Alschuler, a professor at Northwestern law school. “There is very little documentary evidence, there are not going to be accountants there, not a lot of technical experts. It looks like 90 percent tapes and juicy political stuff.”