This week’s episode, “Imminent Danger,” involves stalking, a murder charge, and of course, a jury trial. Erin Flemming believes her ex-boyfriend, Garrett Kurtz, is stalking her. Creepy things keep happening with her electronics (photos pop up on her work computer, her thermostat randomly jumps to 107 degrees in the middle of the night, etc.) and he seems to be in every public venue she goes to. She’s filed a restraining order, however, there’s no solid proof her ex is behind any of it, so the police seem unconvinced.
Cut to Garrett stumbling down the stairs of Erin’s brownstone with a bullet wound to his leg. She follows him outside and empties the chamber in him. No surprise, she’s charged with murder.
Benny and Bull take the case pro bono, though Benny is less than thrilled with claiming self-defense because it’s hard to argue Erin was in imminent danger when Garrett was outside of her home and she followed him before shooting him six times.
Unfortunately for Bull, the trial has been assigned to Judge Humphrey, who profoundly dislikes Bull. He’s unconcerned, though, apparently assuming he can proceed as usual even though the judge can’t stand him.
This, by the way, is a terrible idea. Of course, Bull should do his job, and provide value to the client, but to do so without planning to mitigate the judge’s disdain for him is asking for trouble.
Strike One: Know Your Place
When I’m retained to assist with jury selection, my preference is to sit at the counsel table. This provides me with a good view of the jury and positions me within subtle note-passing or whispering distance with the lead counsel. Sometimes this isn’t possible because there are too many people in the room or counsel table is too small. Fair enough.
As much as I’d like to think my seating preferences matter, one thing always holds true: Clear the decision with lead counsel and the court before jury selection begins. If the judge doesn’t want me at counsel table, I sure as hell am not going to sit there and hope he doesn’t notice.
But that’s exactly what Bull did. Was he daring the judge to call his bluff? If so, that was a lousy bet because the judge did call him on it, in front of jurors.
“Only attorneys and parties to the proceedings are allowed in front of the bar,” he announced, clearly referring to Bull. “Anyone who does not fall into those two categories, please remove yourself to the gallery.”
Chastened, Bull moves to the gallery, which is where he should have been from the get-go because he should have worked out the details long before the jury entered the courtroom.
Strike Two: ‘Eyes Front’
Bull’s new seating, however, means Benny has to gaze back toward the gallery when seeking Bull’s guidance, which results in the judge scolding Benny:
“Excuse me Mr. Colón. Where are you looking? The jury’s up here. I’m up here. Eyes front.”
So much for getting help from Bull, so Benny makes unilateral decisions from this point forward. And for what it’s worth, he does just fine.
We now have two admonitions for the defense team in front of prospective jurors. Not an ideal way to begin trial. It doesn’t do much to create positive vibes with the jurors, and it certainly doesn’t reflect well of the client accused of wrongdoing. I mean, really. If the client’s attorneys and jury consultant won’t follow the rules, why would a jury think the client would?
Strike Three: Stage Whispers
Bull doesn’t seem to have a backup plan for communicating with Benny during voir dire , so he goes for the least discreet method possible: he simply leans forward on the gallery bench and stage whispers tips and strategic suggestions to Benny.
Unsurprisingly, this irritates Judge Humphrey.
“Excuse me, Dr. Bull. Do you have something you’d like to share with the class?”
Bull wisely stands and apologizes to the judge. But, instead of closing his mouth and sitting down like a reasonable person, he tells Judge Humphrey that it would be easier to do his job if he were allowed to sit with counsel and his client. The two have a short but terse exchange and the judge instructs Bull to make his peace with where he’s sitting, which Bull grudgingly does.
Admonition #3. Again, in front of jurors. Yikes.
Strike Four: It’s Contempt Time
In sheer desperation, Bull pretends to drop something on the floor and whispers a questioning strategy to Benny. He advises Benny to ask a juror about his dog, which prompts a quick rebuke from the judge. Because there are no questions about pets on the jury questionnaire, the judge accuses Benny’s “high-priced jury consultant” of getting a “peek at the jury list” ahead of time and “sending his team of spies after them.”
While Benny could have asked for a break, a sidebar, or even apologized and moved on, Bull commandeers the situation. He stands and begins talking directly to the judge from behind the bar (yeesh) and without permission from the court. The two have words. And more words. The judge attacks Bull’s character; Bull suggests the judge is abusing his judicial power. Bull is found in contempt, fined $1,000, and escorted out of the courtroom with strict instructions not to return.
Admonition #4. OUCH.
Deus Ex Machina
But the show must go on, so Bull sends Marissa to be his proxy for the duration of trial (why didn’t they think of this sooner?). After years of monitoring the Magic Wall of Jurors, she handles trial monitoring like a champ. While the team prepares for a loss, Bull’s elves are busy back at the shop looking for something to save the day. Which, of course, they find because, not only is it Hollywood, but it’s the season of miracles.
Bull’s team discovers evidence that Erin’s ex had indeed been cyber stalking her and—although the jury’s verdict isn’t shown on screen—viewers are led to believe she’s acquitted. So, happy ending for the client, but it was probably in spite of, not because of, Bull’s actions.
Dr. Bull was on Judge Humphrey’s “naughty list” before he ever walked into the courtroom, and assuming that he could conduct business as usual was a dire mistake.
Jury consultants are a vital part of the trial team, but this does not give any of us a license to waltz into a courtroom and do whatever we want. Some of us are licensed lawyers; many are not. Some judges are accustomed to having us in their courtrooms; others are not. Some judges welcome the guidance; others not so much.
No matter the judge, the venue, or the type of trial, it’s paramount that a trial team educate itself on the judge’s attitudes, practices, and expectations related to jury consultants or any non-lawyer who will be providing guidance during jury selection. Know the rules before the game begins.
Admonitions from the court should be avoided at all costs. And no jury consultant in the world—or the lawyers and clients who have retained him or her—wants to get scolded by the presiding judge in front of jurors even once, let alone see them get kicked out of the courtroom.
Judges are sticklers for rules and decorum, so woe be unto the trial team that tramples on them.