Persuasion Matters

Bull, Benny and Taylor on the courthouse steps

Bull ‘Rains’ on Reality

When it rains, it pours. And on this week’s “Bull,” the rains—both figurative and literal—came with a vengeance.

In the episode “When the Rains Came,” Taylor Rentzel—Bull’s ex-Homeland Security cyber hack—has a situation: her brother-in-law, Ralph Kelly, has just been charged with two counts of manslaughter.

Bull, Benny and Taylor on the courthouse stepsMr. Kelly is a 28-year-old prison guard at a private, medium-security unit. He’s married to a very pregnant wife and has two young children. One night while at work, he learns that a Category 4 hurricane is about to hit the New York area and mandatory evacuations have been ordered. The warden and deputy wardens are nowhere to be seen, and corporate instructs him to shelter in place. The younger wardens abandon their posts so they can be home with their families, making Mr. Kelly the one and only corrections officer on site during the hurricane.

Until he leaves, too.

Tragically, during his absence, two prisoners die in the flooding, and the State of New York wants to hold him responsible.

Dr. Bull and Benny Colón, as a favor to Taylor, accept the case. Mr. Kelly explains that he only left his job because his wife called him frantic with fear: a tree just fell on their house and she was worried for their safety. Mr. Kelly says he had planned to return to work after getting them to safety, but the roads were impassable, and the prisoners were left alone, without power, food, or supervision for three days. The defense feels they have a shot at an acquittal, though, because what storm-traumatized juror wouldn’t sympathize with a family man rushing to the aid of his pregnant wife and young children?

(SPOILERS FOLLOW) 

Unfortunately, what started off as an “easy” story about a man who took a calculated risk to save his family becomes far more difficult when Taylor learns that her brother in law did not, in fact, need to get home to his petrified wife. She and the kids were safe and sound at an evacuation site when she called him, allegedly frantic. Instead, Mr. Kelly rushed home to retrieve a duffel bag of dirty money—cash earned from selling contraband phones to the prisoners—before it got washed away in the hurricane.

So now Bull and team are no longer defending an upright citizen who made a hard choice, but a prison guard who was exploiting prisoners, and who didn’t hesitate to lie to his own legal team. To make matters worse, the sympathetic wife they just put on the stand committed perjury. In a big way. Yikes.

But, in true “Bull” fashion, the show ends with a victory. Or, to be more precise, a dismissal, which quite literally made me laugh out loud because of its sheer audacity. There are always moments in every “Bull” episode that cause me to roll my eyes, but this week there were three issues that strained my eye sockets to the breaking point.

Here are my top three BULLoney moments.

The No. 3 BULLoney Scene | Trial Begins Days After the Arrest

In my 22 years working as a jury consultant, I can count on one hand the number of times I’ve picked a jury days after an arrest was made. Oh wait. I don’t need any hands because it’s never happened. I realize Hollywood shows like “Bull” only have an hour to air their stories, but really. Would it kill the producers to at least include a two-second exchange about the length of time that passes? In the real world, there are messy procedural things called indictments, and, if you’re working a civil dispute, discovery.

For the sake of argument, let’s assume the party bringing the claims is ready Day One to go to the mat. Let’s not ignore the fact that the defense team needs time to actually build a defense. You know, review police reports, find witnesses, do some investigations, hire experts, and I dunno, maybe file a motion or two?

The No. 2 BULLoney Scene | The Jury Is Selected on the Heels of Widespread Hurricane Damage

Anyone in Texas knows the damage a hurricane can cause, and if you live in the Houston area, the mere mention of Harvey may make you want to curl up in a fetal position. If we viewers are to believe the storyline in “When the Rains Came,” a deadly, Category 4 hurricane pummeled the community, leaving a path of destruction in its wake. Yet, days (if not hours) later, a jury trial is taking place. Um. Okay.

Never say never, but I think the odds of a jury trial beginning while the community is dealing with widespread damage are slim, at best. In the real world, courts are usually sensitive to what the venire may be experiencing, particularly when it’s something as universally devastating as a hurricane.

County and state judges are elected officials. If the people who vote are knee-deep in water, trying to remove tree limbs from their living room, or figuring out how to get to work when daycare is closed, the last place they want to be is jury duty. Does that mean they won’t show up? Not necessarily, but it certainly ups the odds of a much smaller panel. And a potentially skewed one, at that.

More importantly, when jurors are preoccupied with matters on the home front—and this holds true for any juror, hurricane or not—their ability to concentrate on matters inside the courtroom is severely compromised. That’s why potential jurors are often excused from jury service when they are dealing with serious “life” issues.

If this Category 4 hurricane had actually played out like the “Bull” writers want us to believe, one of four things would likely have happened: (1) The trial judge would have reset the trial and informed jurors not to come to jury duty; (2) at least one party would have sought a short continuance (which likely would have been granted); (3) the number of no-shows would have impacted the venire so much that a demographic segment was severely under (or over) represented, or (4) the number of hardships would have been so great that—even if jury selection had taken place—finding a group of 12 qualified to serve would have been next to impossible.

The No. 1 BULLoney Scene | The Jury Consultant Makes It All Go Away

This is not the first time Bull has waved his magic wand to make the legal claims vanish into thin air, but this week’s wizardry was especially far-fetched.

The assistant district attorney’s star witness was a cellmate of one of the deceased prisoners. He not only personalized the decedent, but he claimed to have overheard Ralph Kelly on the telephone saying, “I’ve got to get outta here before it’s underwater.”

With that one statement, the prosecution just gutted Bull’s “family first” theory. Bull and Benny immediately conclude that Ralph should not take the stand. Too risky. Instead, they’ll ask Mrs. Kelly to testify; she can develop the narrative and with luck, elicit juror empathy.

Shortly thereafter, the Bull team discovers Mr. Kelly’s secret criminal enterprise and that Mrs. Kelly had lied on the witness stand. At that point, they decide he has no other choice than to explain what he meant by “before it’s underwater.” He takes the stand, personalizes the decedents, talks about his job duties, and explains that “it” referred to “something very important” in their garage. Direct examination ends, and the judge conveniently gives the parties a 20-minute break.

During the recess, Bull somehow convinces the ADA that—at best—he’ll end up with a hung jury, have to retry the case, and cost taxpayers even more money. And, because the “Bull” story has to have a happy ending, the ADA agrees to dismiss all charges BEFORE he’s had an opportunity to cross-examine the witness!

Wait. W-H-A-T?

Call me crazy, but this is the biggest bunch of BULLoney yet. First of all, no jury consultant is ever going to discuss settlement offers mano a mano with the opposing side. Second, no prosecutor in the world is going to drop not one, but two counts of manslaughter just because he might end up with a hung jury.

And he sure as heck isn’t going to drop charges (or accept a plea) before cross-examining the perpetrator of the alleged criminal act. Especially when he can ask one simple question: What was that very important item in your garage? (Can you hear the Law & Order bum-ba-bum?)

Usually I come away from each episode with a handful of real-world takeaways, but this time? No mas. Sorry.

Except for this one: if you’re called for trial in the wake of a catastrophic natural disaster, you might ask for a continuance. But I’m pretty certain you already knew that.

 

This article was originally published by Texas Lawyer on May 9, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.

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