Remember the college admissions scandal with the Hollywood elite? The writers of “Bull” used it as fodder for this week’s episode, “Quid Pro Quo,” only the alleged bribe occurred 10 years ago.
Dr. Samir Shadid, a respected New York heart surgeon, is accused of bribing his way into college. He’s arrested just moments after performing a life-saving surgery. The hospital subsequently puts him on probation, and Dr. Shadid hires Dr. Bull and the team for help with the bribery charges. (And he knows to hire them because, as luck would have it, the good doctor sat as a juror in one of their prior cases. What are the odds?)
I’m not sure what the New York statute of limitations is for this sort of thing, but the courts in “Bull” give the U.S. Attorney a pass in this case. Apparently, the bribe is considered a “continuing crime” because the impact of the bribe (which led to the education that led to the career) is ongoing. Um. OK.
Benny Colón of course asks the court to dismiss all charges, claiming there is no direct evidence linking Dr. Shadid to the alleged bribe. But the U.S. Attorney instantly hands him a folder proving up the link. The judge recognizes that Dr. Shadid’s time would be better spent in the operating room than courtroom, so he sets the case for trial. For the very next morning. (Nothing like having less than 24 hours to review new evidence and prepare a defense.)
I won’t bore you with a play-by-play. Instead, I want to focus on three quotes that piqued my interest.
Tall Poppy Syndrome
As Bull and Benny discuss their jury selection goals, Bull advises against seating jurors who exhibit “tall poppy” tendencies, which, as Bull explains, is “when people are belittled or criticized for being more successful than the average guy.”
The challenge in selecting a jury, he says, “is going to be identifying and dismissing anyone who’s inclined to punish our client for his success.” This situation arises in many trials, and it can be a tricky issue to address in voir dire.
You could come right out and ask the hard question: Would you have any feelings of resentment or distrust toward my client because of his success? The question is clear, but it’s important to consider just how comfortable the juror will be in providing an honest answer. Will your jury really admit that they resent your client without ever having heard a word out of his mouth? Some jurors may feel the feels but hesitate to volunteer the sentiment in front of complete strangers.
There are two alternative options. First, you could pose the direct question on a written jury questionnaire. Jurors tend to be more willing to admit hard things in written form than verbally, so the odds of full-disclosure increase. Second, you could identify the “tall poppies” with a creative hypothetical that aims to reveal the sentiment in a more subtle manner. Hypothetical queries are fantastic ways to measure juror bias without actually asking if they’re biased.
Reading Jurors’ Body Language
During the trial, Dr. Bull’s ex-wife-now-girlfriend goes into labor, so Chunk Palmer steps in to get eyes on the jury panel. He’s paying special attention to Juror No. 8 — who Bull and Benny viewed as the lesser of two evils when delegating their last strike. Through his earpiece, Chunk reports back to Marrisa, who’s in the war room monitoring the Wall of Jurors.
[Chunk] Juror 8 looks disinterested. Like she couldn’t care less what the witness has to say.
[Marissa] Well, I hope she hasn’t already decided that our client is guilty, and she doesn’t need to hear any more.
I love this exchange because it captures why I am hesitant to “read” jurors. Sure, we can study the tells and subtle movements that generally indicate certain attitudes or feelings, but we’re not mind readers. And at the risk of losing clients, nobody really knows what a juror is feeling or thinking at any given time except that individual juror.
True story: I had a federal case years ago where a young juror kept falling asleep during what everyone acknowledged was painstakingly boring testimony. The judge admonished the juror more than once, and finally gave the parties the option of sending him home and working with an 11-person panel or leaving him on the panel. The 8-week trial was almost over, so the parties opted to let him stay. After all, they thought, he doesn’t care and is unlikely to contribute much during deliberations; neither side viewed him as a risk.
During post-trial interviews, I discovered that this young man was simply tired, not bored or disinterested. He worked after court each night. And, he had formed strong opinions about the parties’ conduct very early in the trial. He was listening, but only for information that would challenge his current views. And, are you sitting down? This kid that everyone wrote off as nothing more than a warm body in the room ended up being the foreperson.
My point: If you want to analyze a juror’s body language, do so with the understanding that it’s an analysis. An opinion. A tool. It’s not truth.
Leaders and Followers in the Deliberation Room
In typical “Bull” fashion, the storyline gets crazy with a discovery that Juror No. 8 and has recently received a payment of $250,000. Since she did not win the lottery or gain an inheritance, the trial team concludes that someone is buying her vote. And, sadly, they all (wrongly) assume the person who’s bribing the juror is their very own client.
…he knows how deliberations work. He knows all you need is one juror to upset the whole apple cart. Someone to sway the others. Or hold out for a mistrial.
Yes, yes and yes. Marissa is talking about leaders and followers in the deliberation room, and this is, in my opinion, one of the most important things to consider when selecting a jury and assigning strikes.
I’m using broad brushstrokes here, but leaders generally participate more actively during the deliberation process and have a higher degree of influence. Occasionally you’ll have a leader who borders on being a bully, but most of the time, jurors all get along with each other. And if there’s a problem child, other leaders step up to get things back on track.
Followers, on the other hand, tend to sit back, observe and participate minimally, if at all. I’m not suggesting that followers are not vital to the deliberation process, but their ability (or willingness) to persuade and influence other jurors is much less than with leaders.
If you’re forced to seat a juror with attitudes or life experiences that do not align well with your client or your trial story, then choose the follower. Generally speaking, it’s best to have a bad juror with low influence than a bad juror with persuasive power.
The case is ultimately resolved in Dr. Shahid’s favor (yes, the juror was being bribed, but not by Dr. Shahid; it’s too complicated to explain). Dr. Shahid insisted that the jury tampering be brought to the judge’s attention, despite the fact that it could harm his chances of an acquittal. Dr. Bull has a sit-down with the U.S. Attorney first, and she decides to drop the charges against the doctor. After all, she’d rather go after a slam-dunk win with another defendant than risk a mistrial with this one because of jury tampering.
As usual, the “Bull” plot and courtroom theatrics were far-fetched. But practicing lawyers can draw some valid jury selection lessons from it nevertheless: Take human nature into account when selecting jurors. If you think a potential juror has a built-in bias against your client because they resent your client’s success, race, gender, tattoos, or whatever, try to keep them off your panel by raising a cause motion or using a peremptory strike. But if you have no other choice than to accept a less-than-ideal juror, decide whether you’re better off with an influential leader or a quiet follower.
This article was originally published by Texas Lawyer on February 13, 2020. Reprinted with permission. © 2020 ALM Media Properties, LLC. All rights reserved.