Dispatches From The Martha Stewart Trial

How To Select a Juror

The saga of Potential Juror No. 1

The Jan. 20 jury selection proceedings were remarkably cordial. They revealed how painstaking our legal process is (even with more than a hundred prospective jurors to interview, the participants devoted about half an hour to a single candidate). They revealed the astonishing lengths to which some people go to get out of jury duty, and something of the personalities who will drive the trial over the next few weeks. They also revealed how two teams of people with opposing agendas can argue their respective positions for 15 minutes without ever once saying what they really mean.

Recall that the unstated purpose of jury selection—for both prosecution and defense—is to pick as biased and unfair a jury as possible. Recall also that, to accomplish this, both prosecution and defense must appear to be acting in accordance with the stated purpose of jury selection: to pick as “fair and impartial” a jury as possible. Then watch the debate over Prospective Juror No. 1 …

Prospective Juror No. 1 was a “housewife.” She was also a former corporate lawyer. She had asked to be excused from the jury for “hardship” because she had to be home every day at 3:30 when her two teenagers got back from school. Her housekeeper of 16 years retired last month, she explained, so if she was selected, her children would come home to an empty town house. Her 16-year-old son was dyslexic: He wouldn’t make it through French II without her.

Prospective Juror No. 1 was also evidently plagued by deep uncertainties about the issues at hand. Her answers on the questionnaire, for example, suggested that she had trouble accepting the need to follow the judge’s instructions with regard to the law. In the interview, when Judge Cedarbaum asked if she understood how important this concept was, Prospective Juror No. 1 gave a characteristic answer: “Oh, I do. I do. I guess I, just as a matter of … I don’t know. No, I do understand.” Nor were tenets of the legal system the only issues that gave Prospective Juror No. 1 pause: Many of the names of potential witnesses on the questionnaire sounded “familiar” to her—how could she be sure that she didn’t know these people? Prospective Juror No. 1 also worried that she wasn’t the “blank slate” the court was looking for: “[I]t’s been impossible to totally not hear about the case … it has been everywhere. … And so who knows, you know, in the back of your mind what has influenced you.”

If Prospective Juror No. 1 wasn’t what the court was looking for, though, she presumably was just what the defense was looking for. She had worked as a corporate lawyer, after all, so she was presumably well-educated, comfortable with white-collar types, aware that securities laws leave enormous room for interpretation, and aware the government occasionally makes mistakes. She lived in a townhouse, so she probably didn’t consider dishonesty a prerequisite for wealth. She had displayed considerable anxiety when asked to indicate whether she knew or didn’t know the people on the witness list, so she might presumably have a full-blown nervous breakdown if forced to assess whether the government had proved that Martha Stewart and Peter Bacanovic were guilty of felonies. If Prospective Juror No. 1 was the ideal juror for the defense team, though (and a nightmare for the prosecution), neither side was about to say so.

After Judge Cedarbaum questioned Prospective Juror No. 1 for about 20 minutes and asked her to step outside, the debate began:

THE COURT (Judge Cedarbaum): All right. I am concerned about a juror who is going to be worrying starting 3 o’clock in the afternoon.MS. SEYMOUR (Karen Patton Seymour, the 42-year old assistant U.S. attorney who leads the prosecution team and who once helped convict a Chinese heroin smuggler named Johnny “Onionhead” Eng): Your Honor, for the government, a 13-year-old … 13-year-olds come in different varieties, but she expressed some concern and also about the older dyslexic child. We would hate to have a juror who is concerned every day, and if the trial were to go longer than we predict, which, knock on wood it will not, but I just think that is going to be a burden for this juror.MR. STRASSBERG (Richard Strassberg, Peter Bacanovic’s attorney): Your Honor, the juror, while expressing discomfort knowing that she is not comfortable, indicated in response to your questions that she felt they could manage.THE COURT: I understand. It is my experience with jurors that if they are concerned at the beginning, they get more concerned as the trial proceeds.MR. MORVILLO (Bob Morvillo, Martha Stewart’s lead attorney): It could be, Your Honor, but the fact of the matter is she has pretty good financial resources.THE COURT: That is true. She doesn’t seem to be talking about getting anybody to look after her children.MR. MORVILLO: But she will. The answer to that is clear, it seems to me, that she has the financial resources to cover the children for an hour and a half, which is really all she is talking about, 3:30. Children get home at 4, a quarter to 4, 4 o’clock. She will be home at 5:30.THE COURT: She said 3. She said the children are home at 3.

[Not true; according to the transcript, Morvillo was right.]

MR. MORVILLO: Even so. She has got to cover them for two hours. I think she should be able to cover them for two hours. And my own view is that she has the type of interplay that we want to see on the jury here.

[Translation: … that we, the defense, want to see on the jury here.]

MR. APFEL (a second Peter Bacanovic attorney): Your Honor, is it possible that you could ask her if she could make alternative arrangements, for instance, bring her housekeeper out of retirement for the four or five weeks of the trial, just as a follow-up question?

[Note how, when the defense is speaking, the trial is shorter.]

THE COURT: It is possible to ask anything.MR. APFEL: Would you ask that?THE COURT: What I’m trying to sort out really is my experience with jurors who have mixed feelings about whether they want to serve.MR APFEL: But my sense is that if her housekeeper of 16 years were home, she would feel much more comfortable.THE COURT: No question. All right. Does anybody wish to challenge her for cause?MS. SEYMOUR: The government does on the grounds that her expressed concern, she did state very clearly that she would not be comfortable serving, and I think given that, it is unrealistic to expect her before a trial is starting next week to hire someone new who doesn’t know the children possibly or try to bring someone back from retirement to come sit with the children. These are teenagers and relationships need to be developed. It is not at all clear, as a mother, that I would want some stranger that I just hired sitting in my house in the afternoon.

[Translation: It is quite clear that, as a prosecutor, I don’t want this rich, insecure lawyer anywhere near the jury box.]

THE COURT: That’s hardship. What I am asking about now is cause.

Prosecutor Karen Patton Seymour raises another objection: Prospective Juror No. 1 has ambiguous feelings about aspects of the legal system. Seymour suggests that, because the woman is a lawyer, she should know that her personal views need to take a backseat to the law. Countering this, Richard Strassberg suggests that the 35-page questionnaire has simply twisted Prospective Juror No. 1 in knots. (“By the time I got to the end of this [questionnaire],” Prospective Juror No. 1 had confessed, “I wasn’t sure what I knew and what I didn’t.”) In another assault, Seymour then points out that Prospective Juror No. 1 said, “I believe I could listen to the evidence,” and the observes that this is not the same as saying, “I believe I can be fair.” Judge Cedarbaum counters that Prospective Juror No. 1’s point was that everybody brings their views with them and than she is not eager to set hers aside. The debate continues:

MR. MORVILLO: Judge, she is a juror who is exceptionally candid, and I think that she has been trying to communicate, both through the questionnaire and what she has said to you today, her absolutely honest feelings. And on the bottom line, her honest feelings are that she can abide by the court’s instructions. Then it seems to me that should avoid a cause objection.THE COURT: All right. I will ask about whether she can leave somebody else at her house.

[As if the discussion has anything to do with baby-sitting.]

Prospective Juror No. 1 returns.

THE COURT: Please come back for a minute. Have you tried to get a substitute for your housekeeper of many years?PROSPECTIVE JUROR 1: No, I haven’t. This just recently happened. She just a couple of weeks ago left, and I really haven’t had a lot of time.THE COURT: How difficult is it for you to find somebody that you could leave your children with?PROSPECTIVE JUROR 1: You know, I … yes, as I said, I had her for 16 years and I really, you know, have not been in the market for a long time, and so I don’t know. I don’t know …

Judge Cedarbaum asks some more questions, then sends Prospective Juror No. 1 outside again. The debate resumes:

MR. MORVILLO: I volunteer to baby-sit for the children.THE COURT: One thing is clear, this juror is very indecisive about everything, and that’s not a good thing either.MR. MORVILLO: Can I make a suggestion, Your Honor? There are going to be three or four days between now and the time all the jurors are qualified.THE COURT: That is true.MR. MORVILLO: Maybe you can call her in and ask her to try to make arrangements and report back to us in three or four days.THE COURT: I think that is an excellent idea.

Judge Cedarbaum summons Prospective Juror No. 1 a final time. She informs her that she is “not off the hook” and must provide a “status report” on the baby-sitting search by the end of the week. Prospective Juror No. 1 reluctantly agrees.