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The Litigation Consulting Report

Boston Bomber Death Penalty - Mitigating vs. Aggravating Factors

Posted by Laurie Kuslansky on Wed, Apr 8, 2015 @ 04:46 PM

 

Dzhokhar-Tsarnaev-mitigating-aggravating-death-penalty-jury-consultant-sandwhichby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

It must be so hard to defend someone as unpopular as Dzhokhar Tsarnaev and plead for his life, while he does everything to make it harder.  How does one lessen his involvement when he carried out so many explicit and intentional acts and has been so consistent: remorseless.

He shed no tears for the 3 civilians and 1 M.I.T. police officer killed, the 264 people injured, or the countless others traumatized.  Instead, he went and got a sandwich. 

When his brother was killed, did he turn himself in and say, “I didn’t want to do it; I’m so sorry; my brother made me.”? No.

He is now 22, but at the time, Dzhokhar was a 19 year-old American college student at U. Mass, Dartmouth with the right to drive and be judged as an adult.  The “My-brother-made-me-do-it” defense went nowhere.  His counsel wanted him to be perceived as an impressionable adolescent misled by his older brother, but has he done anything to reinforce anything his defenders tried to assert?  No.

The defense conceded his actions, but tried to pass the buck to the alleged influence of the defendant’s deceased older brother. One problem:  Dzhokhar never blinked while he was involved or since.

In the sentencing phase, what could possibly matter? It is hard enough to overcome one count that carries the death penalty, let alone 17.

Although the assessment of mitigating factors v. aggravating circumstances is not simply a quantitative matter, but a qualitative one, no doubt the jurors will take an inventory, likely to result in something along these lines:

mitigating-vs-aggravating-circumstances-jury-consulting

Is a contemptuous defendant with 5 aggravators per mitigating factor enough to convince even one juror to withhold the death penalty? Is the mother of two – not one – terrorists sympathetic? Unlikely, but time will tell.   

The jurors are de facto death-penalty qualified, lest it be discovered later that this was a falsehood.  What may save the defendant isn’t the defense, but other factors (e.g., not giving him the satisfaction of becoming a martyr by dying for his so-called cause, latent rejection of the death penalty in the largely Catholic jury pool, or jurors holding themselves above his conduct).  If he is spared, it will be because of who the jurors are and what they believe, not because of anything the defense does or fails to do.

He certainly can’t complain about the quality of his public defender, Judy Clare Clarke, who defended other notorious defendants and overcame the death penalty for child-killer, Susan Smith. 

His public defender may deserve sympathy.  Dzhokhar Tsarnaev?

Other articles related to high-profile defendants, criminal trials and jury consultants from A2L Consulting include:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Juries, Voir Dire, Jury Selection, Criminal, White Collar, Boston

21 Ways Trial Can Be Like a Blizzard - But It Never Has to Be

Posted by Ken Lopez on Mon, Jan 26, 2015 @ 01:17 PM

 

percentage-population-megalopolis-snow-trial-preparationby Ken Lopez
Founder/CEO
A2L Consulting

We East Coasters have a love-hate relationship with snow, and the snow moving into the Northeast today may be one for the record books - particularly around Boston. It will dominate the news for days - and it probably should.

An incredibly large number of people will be impacted by this particular storm. Under or next to that red line on the map where the storm is forecast to hit, you'll find roughly 20% of the U.S. population living on roughly 3% of the country's land, half of the hedge funds, one third of the headquarters of Fortune 500 firms and — in the states under the red line, about 35% of the country's and, hard as it may be to believe, about 25% of the world's lawyers!

A blizzard disrupts our lives. It can feel tedious, it creates confusion, and it generates a lot of hard work — sort of like a trial. Not all trials are blizzard-like, but some surely are. Here are 21 ways some trials are like a blizzard and how to avoid white-out conditions in your courtroom.

  1. The dialogue is often boring. Similar to the neighborhood small talk that surrounds a snow storm, many trials are boring for judges and juries. I know federal judges who frequently fall asleep, and I have seen plenty of jurors do the same. However, I have always asserted that trial counsel have a duty to entertain a jury. See, Lights! Camera! Action! Verdict! A Trial Team's Responsibility to Visually Entertain and 12 Things Every Mock Juror Ever Has Said - Watch Anytime

  2. Too much, too fast. Judges are pushing for faster and faster trials and many lawyers are failing to use presentation techniques that can speed up a trial dramatically and save time. You don't want your judge and jury to feel like they can't see where you and they are going together. See, 5 Ways to Apply Active Teaching Methods for Better Persuasion and  Will Being Folksy and Low-Tech Help You Win a Case?

  3. Poor planning is dangerous. If there is a lot at stake, one needs to test one's approach in advance. Governments spend years planning their responses to a blizzard, and if your case warrants it, you should spend a considerable amount of time testing themes, testing witnesses, testing litigation graphics and testing arguments in a mock trial setting. See, 12 Astute Tips for Meaningful Mock Trials and 10 Suggestions for Conducting Mock Bench Trial Consulting Exercises.

  4. There are bad drivers everywhere. Like the ubiquitous Toyota Camry inexplicably on the roads in a snow storm, you have to be careful to avoid those who pose a threat during trial preparation. See, No Advice is Better Than Bad Advice in Litigation

    litigation consulting graphics jury trial technology

  5. Travel and everything else require massive planning. I often quote one of my favorite trial lawyer clients who said, "I never sleep better than when I am at trial, as I know how well prepared I am." He had a habit of being successful. If you need to get to the trial site early, you should. Last minute is very last century. See, The 13 Biggest Reasons to Avoid Last-Minute Trial Preparation

  6. It's hard to see. If your projector and your trial technology are not well planned for, like in a blizzard, you end up with a washed out image on screen where colors are hard to make out. See, 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare

  7. Practice is essential. You wouldn't want a snowplow driver to make their first run during a blizzard any more than you would want to articulate an opening statement for the first time during trial. See, 3 Ways to Force Yourself to Practice Your Trial Presentation and Practice, Say Jury Consultants, is Why Movie Lawyers Perform So Well

  8. Going it alone is a bad idea. We are in an era where litigators from top firms try very few cases. In-house counsel understand this dilemma. Now, more than ever, litigation consultants are mandatory for a trial with more than a few million dollars at stake. See, 9 Things In-House Counsel Say About Outside Litigation Counsel and Accepting Litigation Consulting is the New Hurdle for Litigators

  9. IT support is critical. I think many of us would sooner go without water at home during a blizzard than go without Internet. Trial is not dissimilar. You need your technology to work. Trial technicians can be an incredible asset to make sure things go smoothly in the warroom and at trial. It is an expensive and avoidable nightmare when something goes wrong during a mock, the night before trial, or, worst of all, during trial. See, 12 Ways to Avoid a Trial Technology Superbowl-style Courtroom Blackout

  10. Anticipate the worst and prepare for it. Whether it is a motion in limine going the wrong way, an expert being disqualified, an exhibit being excluded, good trial teams discuss the worst that can happen and prepare for it just as good governments do before blizzard conditions exist. See, The 14 Most Preventable Trial Preparation Mistakes

  11. Know your environment. If you fail to properly map out your courtroom well in advance of trial, you'll end up feeling as lost as a snowplow driver without a GPS. Your technology won't serve the very people you designed it for. See, 21 Ingenious Ways to Research Your Judge

    mock jury webinar a2l kuslansky

  12. Pick and prepare the right experts. There are experts who help pick expert witnesses. I find that a lot of litigators fail to rely on this resource and regret it later. Once you have an expert, they must be prepared. Just as you would not want to see an everyday weather geek opine sophomorically about storm conditions, you must work on your experts so they can work for you. Otherwise, you'll be shoveling more than snow. See, Witness Preparation: Hit or Myth? and 7 Smart Ways for Expert Witnesses to Give Better Testimony.

  13. Know how much science your audience can take. Many fact-finders will glaze over with the presentation of too much science, so a balance must be struck between good trial presentation and making a good record. Most of us want to hear Jim Cantore explain the story simply, not go into the detailed science. See, 5 Valuable (and Free) Complex or Science-Focused Litigation Resources and Teaching Science to Juries

  14. Tell a story. Everyone comes out of a blizzard with a good story, but a good story poorly told is not really that good. Trial is the same way. Stories engage people, but you have to do it right. See, Free Webinar - Watch Anytime - Storytelling as a Persuasion Tool and Storytelling for Litigators E-Book 3rd Ed.

  15. Make sure your story is compelling. Nobody likes someone who tells a long chronological story and bores everyone to death. There are good rules of thumb for telling a story that people care about. See, Don't Be Just Another Timeline Trial Lawyer and 5 Essential Elements of Storytelling and Persuasion and 14 Differences Between a Theme and a Story in Litigation

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  16. Don't under-budget. In-house counsel or your client want you to win, but you need to ask for the budget you need to win. Similarly, in-house counsel need to do a better job of arming trial teams for battle by making sure they feel confident in asking for budget. After all, what happens to a mayor who does not budget enough for the blizzard and a city breaks down? See, In-House Counsel Should Make Outside Litigation Counsel Feel Safe

  17. Use the right visuals. Just because you use a PowerPoint at trial does not mean you are more persuasive. In fact, you could hurt your persuasiviness if you use the wrong approach to visuals. Think about all the work that is going to go into reporting on this blizzard and watch the visuals that are used. The science behind what visuals people need to see to be entertained and persuaded is vastly more complex than most people know. See, 10 Things Litigators Can Learn From Newscasters and 6 Studies That Support Litigation Graphics in Courtroom Presentations and Good-Looking Graphic Design ≠ Good-Working Visual Persuasion

  18. Make sure your words compliment your visuals. Just as you can quickly tell the difference between a national newscast and one from a small town, good and well-prepared presenters are obvious to everyone. See, 12 Ways to SUCCESSFULLY Combine Oral and Visual Presentations and 10 Things Litigators Can Learn From Newscasters

  19. Don't overdo it. Knowing when the pressures of trial are too much is just as critical as knowing when not to shovel that large driveway. See, 10 Signs the Pressure is Getting to You and What to Do About It

  20. Make sure you have the right audience. If you are saying the wrong things to the wrong people, no one will get behind your message. Unlike an elected politician or a newscaster, litigators have some choice about who their audience is - make the most of that opportunity during voir dire. See, New and Free E-Book: The Voir Dire Handbook

  21. At the appropriate time, and if it's right for you, a cocktail will probably help.

Other articles and resources related to trial preparation, thoughtful mock trial testing, persuasive litigation graphics and trial technology considerations from A2L Consulting:

A2L Consulting Voir Dire Consultants Handbook

Tags: Trial Graphics, Litigation Graphics, Trial Technology, Jury Consultants, Trial Preparation, Opening, Newscasts, New York, Boston

Boston, a Bomb of a Trial

Posted by Laurie Kuslansky on Thu, Jan 15, 2015 @ 11:46 AM

 

boston-bomber-dzhokhar-tsarnaev-trialby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Want a change of venue? Think again. Judge O’Toole and the U.S. Court of Appeals for the First Circuit turned down the defense’s attempts to change the venue. Even though Boston is where the horrifying Boston Marathon Bombing happened, that is where the jury pool will come from to judge the surviving Tsarnaev brother, Dzhokhar.

Will there be enough jurors? Here, 1200 prospective jurors will complete a jury questionnaire of 100 questions to seat a jury of 12 jurors plus 6 alternates who, if left, deliberate as full jurors in federal court.

It is disconcerting that there are only 6 alternates for such a long trial, in flu season and the Boston winter, when jurors often get sick and/or drop out for other reasons in lengthy trials. It will likely take weeks to review the questionnaire responses and voir dire the pool. Then there’s the matter of how long the trial is expected to take (months), which is likely to take many out of consideration as they simply cannot afford that much time away from their lives. Those who are willing to serve that long are not likely pro-defense, but rather, folks who want to send a message. And last, but not least, they must be willing to consider the death penalty, if (read “when”) the defendant loses. It will be interesting to learn what, if any reason, prospective jurors give to show that they are neutral and have not pre-judged the case, especially since the community was on lockdown and glued to the news at the time for their own safety. It would seem that the better part of the U.S. – and certainly New England – has nothing but contempt for the defendant.

boston-bomber-dzhokhar-tsarnaev-trial-jury-trialDefense blunder #1:  It is presumed that the defense will try to assert that the younger Tsarnaev brother was misled by his older brother, Tamerlan, but one does not sport a goatee to appear young and powerless, nor show up in court with the hair of a madman to garner sympathy to defeat the death penalty. What a difference 21 months make.

With the stakes so high, the venue so personally affected, emotions so deep, eyewitness and video evidence so strongly favoring the prosecution, there is no room for the defense to lose an inch, but an inch is already lost. Add to that the apparent limit in control the defense counsel seems to have over its client.  

This is not a case of winning, but of who will lose the most.

Other articles related to jury selection, voir dire and jury questionaires on A2L Consulting's site:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consultants, Voir Dire, Jury Selection, Criminal, White Collar, Boston

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Authors

KenLopez resized 152

Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


tony-klapper-headshot-500x500.jpg 

Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.


dr laurie kuslansky jury consultant a2l consulting







Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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