Persuasion Matters

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Big Pharma is the Real Bad Guy in “Bull” Murder Case

This week’s episode, “Killer Doctor,” is chock full of goodies.

Dissecting "Bull": A real-life jury consultant weighs in on the realities and absurdities of CBS's "Bull."We have a woman dying of terminal cancer. Experimental drugs. A grieving brother and son. The murder of the treating physician. A confession (or two). And the bonus? We even get a dash of that last-minute, yet far-fetched, Bull team sleuthing. Good stuff.

It’s a tad convoluted (what else is new), but here’s the gist: Lily Zbyszek learns that her cancer has spread to her brain, and that she has less than a few months to live. Dr. Weber, her treating physician, offers a Hail Mary: he’ll get her into an experimental drug trial. But it comes with a warning: The trial is in the first phase of human testing and everything is a “big question mark.”

Nine weeks later, her brother Jonathan bumps into Dr. Weber at a neighborhood restaurant and accuses him of using Lily as a “human guinea pig.” Apparently, the drug given to Lily had never been used on any human before; only rats. Dr. Weber says he was very clear about that; Jonathan disagrees.

Next thing we know, Jonathan is in Dr. Bull’s office admitting to killing Dr. Weber. He claims he followed the doctor but got frustrated when he wouldn’t engage in further discussion. So, Jonathan shoved the doctor into a gate. Which, unbeknownst to either, was not secured. The doctor plunged 50 feet to his death.

But Bull, being the savvy psych-whisperer that he is, doesn’t quite believe Jonathan actually committed the crime. And he conveniently pulls up video footage from Mr. Zbyszek’s apartment showing a confrontation with someone in a hoodie. Jonathan fesses up that he was taking the rap for his nephew Andrew, Lily’s 16-year old son, who pushed the doc as Jonathan watched from afar. Bull decides to represent Andrew who, thanks to Taylor and her cell-phone-tracking skills, they quickly discover is down at the local precinct confessing to the murder. Without an attorney.

The Jury Is Always Watching

The night before trial begins, Chunk Palmer meets with Andrew to give him the lay of the land and to set expectations for life inside the courtroom. They don’t seem to prep for testimony, but rather have a heartfelt discussion about the importance of the jury’s perception.

“When the jury isn’t looking at the witness, they’re turning and looking right here at you. Even when you’re not testifying, you’re always on.”

This is obviously an important life lesson for a 16-year old kid, but it’s a worthy discussion to have with any client, no matter the age and no matter the allegation. The jury does watch. And everything they see factors into their perception of your client, and your case.

In a way, jurors are like theater-goers: they’re not just paying attention to what the actors are saying. They’re tuned in the sets, the sound design, the costumes, and a million other details that help transport them to another place. Likewise, jurors aren’t just listening to what the lawyers and witnesses are saying, they’re paying attention to everything that’s going on in the courtroom.

Rules of Procedure, Anyone?

In courtrooms all across the country, there’s a little thing called rules of procedure that keep the wheels of justice moving, protect the integrity of the system, and guard against grossly prejudicial shenanigans. But Hollywood isn’t concerned with procedural rules because they’re just not that sexy.

During the trial of Andrew Zbyszek, the district attorney calls Uncle Jonathan to the stand (seemingly without any notice whatsoever to the defense). What transpired next was certainly high on the entertainment scale but ranked lower than low on the reality scale.

The District Attorney wants Jonathan to testify about his nephew’s intent as he pushed Dr. Weber into the (unlatched) gate. Jonathan refuses to speculate about someone else’s intent (point to the witness), but the DA is hell-bent on making his point. So, he just starts playing a hockey video that shows Andrew “checking” an opponent smack into the boards.

I’m fairly certain that (a) there was zero foundation for introducing this video, (b) it was highly prejudicial, and (c) defense counsel should have been able to review its contents before it was shown to the jury. But the district attorney forged ahead. As any good lawyer would, Benny Colón objects, but as he’s doing so the DA decides to blurt out that this hockey maneuverer resulted in four lost teeth, three fractured ribs, and a broken collarbone. Yikes.

In a real courtroom, this shout-out could have resulted in a serious admonition and possibly a mistrial. But in Bull’s courtroom, the judge simply instructs the jury to disregard the video. As if that’s possible.

Isn’t Anything Confidential Anymore?

Toward the end of trial, Bull seems a bit despondent. He’s concerned that if jurors are not given an alternative explanation why Dr. Weber would risk his reputation and career by giving Lily a highly experimental drug without telling her about the risk, that jurors will go with the story they did hear: Dr. Weber did provide the information, but only in private. And then jurors are just left with one undisputed fact: a man died.

Little does Bull know that Taylor, his ex-Homeland Security digital data guru, has been digging all day and struck gold. Turns out that Doc Weber had a written agreement with the pharmaceutical company testing the drug. He was given a $500k advance to round up patients willing to test the drug, but if he failed to deliver by the end of the agreement term, he had to return the money. And lo’ and behold, his term ended four days before Lily “agreed” to be the first human to test the drug.

Bull’s team not only found the big pharma CEO that evening, but apparently cleared his calendar, all conflicts, and had him on the witness stand by the next morning. With a green light to share everything he knows about the experimental trials. Unrealistic for sure, but here’s where it goes off the rails into crazy-land.

Mr. Pharma CEO – in open court – willingly volunteers information about the drug, the trials, the agreements with MDs across the country, and the failure of the drug to render any good results. In rats or humans. All of which is super convenient for Benny and his 16-year old client. But surely Hollywood is familiar with confidential trade secrets and proprietary information, right? I cannot envision any circumstance in any world but Hollywood, where something like this would actually happen. And if it did? Well, let’s just say heads would roll, investors would roil, and lawsuits would almost certainly be filed.

The 5th Amendment

Needless to say, this information resonates with Andrew, who has been trying to reconcile his regret for pushing Dr. Weber with his feelings of guilt. This new testimony clearly implies that Dr. Weber was fueled by greed, and Andrew decides he wants to testify and share the truth about what really happened.

Every criminal defendant has a right not to testify, and many times this is the best legal strategy. But occasionally, it’s in the defendant’s best interest to testify, and with the trial team’s blessing, Andrew waives his 5th Amendment rights and takes the stand.

It was actually a very powerful scene, so props to the actor who portrayed Andrew. He was emotional, raw, honest, and downright human.

It’s probably no surprise that the trial ended with an acquittal. The jury deliberated less than 23 minutes, according to Team Bull. The clients are obviously overjoyed and ask, “How do we ever thank you?” Bull’s answer: “Pay our bill and tell your friends.”

I concur.

This article was originally published by Texas Lawyer on November 7, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.

 

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