It is almost quaint to talk about pretrial publicity in the trial of James “Whitey” Bulger. The scope of the coverage, its intensity, its duration, far outstrips any in Boston in recent memory. And while the publicity raises serious questions about how a fair trial can be conducted, those questions are only qualitatively not quantitatively different than in the usual case.
Publicity in high-profile cases is now saturation publicity — not just on the usual outlets, like television and newspapers, but 24/7 coverage on the cable channels, and online chatter. “Prejudicial” facts about the case appear in a continuous loop, streaming on the Internet, on the crawl on news channels, or even in the publicity blurbs preceding the shows. Those who are interested can follow the case on blogs, picking the spin that they want to read, as in an echo chamber, making the bad facts even louder.
Forty years ago, the Supreme Court had identified what to do in the case of the high-profile case — change of venue, for example, or sometimes more extensive voir dire (questioning of jurors). Although it was by no means universal, many courts understood that the usual perfunctory federal interrogation of jurors — quickly, in groups, with closed-ended questions — would not likely produce anything more than the usual perfunctory answer. That made sense: The tested conclusions of social psychology about the conditions under which the interviewee will be honest were effectively ignored in federal courts around the country. A closed-ended question, that asks the juror to give a “yes” or “no” answer, yields less information than an open-ended question, requiring the juror to respond in his or her own words. “Have you heard anything about this case, yes or no?” tells less about the juror than, “What have you heard about this case?” And when the question forecasts the answer, the results are even less illuminating. My favorite: “Can you set aside what you have heard and be impartial as we require you to be?” Moreover, questioning jurors in groups is bound to produce less candid information than individual questioning. You are less likely to reveal your biases, your fears, or your concerns in a public airing than you would in a conversation between you and the parties. Likewise questioning by the judge, in a robe, on a platform, is less effective in eliciting candid responses than questioning by counsel as to whom there is less social distance.
To be sure, voir dire questioning can go too far — some jurisdictions allow questioning for days, even weeks — but the answer is not the opposite: little or no questioning in anything remotely like a meaningful setting.
Some four decades ago, in defending Susan Saxe, who was accused of robbing banks and murder, a celebrated case at the time, my staff put together volumes of articles about the case and the defendant, analyzed them (how she was described, radical, terrorist, revolutionary; how strident the language; how incriminating the details) and presented them to the court with a request for extensive voir dire, lawyer questioning, and additional peremptory challenges. (Peremptory challenges are challenges for which the party does not have to give a reason.) The defense did a study showing that 90 percent of the Boston jury pool recognized her name, 75 percent thought she was probably guilty, and 66 percent thought she needed to prove her innocence. The judge granted many of our requests.
I followed this procedure in every high-profile case I tried as a lawyer, and continued as a judge whenever either side requested more extensive jury selection procedures in criminal cases. This was about the selection of a fair decision maker, often poised to make life-or-death decisions about a human being. I would spare no reasonable effort.
And these techniques of effective questioning are even more critical with today’s 24/7 coverage. Counsel could not even begin to list the articles that mention Bulger’s name — movies, TV programs, books — that purport to reflect the “facts” of the case. How many times was Bulger’s face flashed across a screen as part of a “most wanted” program or crime retrospective? How many Internet references? And on the other side, how often was the story told of the FBI’s relationship with Boston mobsters, told over the course of numerous court proceedings, splayed across the Internet and the cable channels.
Changing the venue to escape the media coverage is a concept almost as quaint as “pretrial publicity.” To paraphrase Gertrude Stein, when it comes to the Internet, there is no there there. Sequestering a jury (keeping them in a hotel each evening rather than returning to their homes) is far too expensive. The only technique in our arsenal is to ask individual questions of individual jurors as if you really want to know the answer, under circumstances maximizing their candor. What do you know of the case? How closely have you followed it? What have you read? What details do you remember?
Both sides should want it do this; Coverage of this case has besmirched both the defendant and the FBI. And the public should want the fairest possible decisionmaker. Indeed, the public deserves it.