Context is Crucial When Building Your Case

“What kind of story can we tell the jury that makes it OK to ambush a caseworker and a trooper?”

This is the QOTD for Dr. Jason Bull, Benny Colon and the entire team at Trial Analysis Corp. They have jumped on board to assist in the defense of a 16-year-old boy who is on trial for murder. But, as always, this isn’t just your run-of-the-mill murder case. It has wrinkles.

Lucas Schweiger, the young man on trial, was raised by a controlling and delusional, conspiracy-theorist father who would do anything to protect his (some might call) radical lifestyle. They lived in the middle of nowhere, had no running water or electricity, and, literally, zero contact with the outside world. Lucas was raised in total isolation. The only human interaction he experienced in his 16 years of life was with his father, Nathan Schweiger. Talk about a tragic upbringing.

On the day in question, Lucas and his father were on their property when an alarm blared, signaling an intruder. Lucas and his father grab their shotguns and ready themselves for whatever shootout might be “necessary” to protect life as they know it. Their mantra? Kill or be killed.

Lucas’s father was killed at the scene, along with a social worker who was coming to do a welfare check on Lucas. The New York police officer who escorted the social worker was injured, but not killed.

According to the trial consulting team, ballistics show that the bullet that killed the caseworker came from Nathan Schweiger’s gun, not his son’s. Yet, Lucas is the one charged with murder. Most likely because he’s the only one alive to blame.

This week’s episode offers three quotes that— with some poetic license— offer teachable moments.

Quote No. 1:

“What kind of story can we tell the jury that makes it OK to ambush a caseworker and a trooper?”

In a broader sense, context matters.

Every trial attorney is faced with the challenge of creating a narrative that jurors will embrace. But when you’ve got a plethora of bad facts, sometimes that challenge seems insurmountable. And not every trial team has Dr. Jason Bull and his entourage waiting in the wings to save the day.

In the case of Lucas Schweiger, the defense team had a slew of challenges: a confession from their illiterate 16-year-old client who’s lived off the grid his entire life; an admission of his intent to kill (“kill or be killed”); and the surviving police officer’s testimony.

Bull knew a successful defense would require themes and messaging that, at the very least, would not anger jurors or cause them to wholeheartedly rebuke an affirmative defense before ever hearing any evidence. Their core message: Lucas’s father was such a delusional control-freak that he robbed Lucas of any opportunity to learn about society’s rules, determine right from wrong, or to make choices. Lucas was forced to do whatever his father dictated.

Their trial strategy accomplished a few things. First, it created background and context for the situation that led up to the incident. Second, it created a situation where it was now socially acceptable to empathize with the defendant. Third, it created a link between something very foreign to most people (growing up off the grid in pure isolation) with a fairly common jury experience (growing up with a controlling parental figure).

Practical Takeaway: When you can create context, empathy and a link to personal experience, you’ve already laid a solid foundation for your narrative.

Quote No. 2: 

“Your motion to suppress Mr. Scheweiger’s statement to the police as evidence is granted. However, I’m not sure the omission of this statement will matter much to the jury if you can’t rein in your client’s behavior.”

#Truth. No matter how many evidentiary legal battles you win in the courtroom, it’s exceedingly difficult to win the war if your client doesn’t behave himself.

Benny Colon, Dr. Bull’s go-to-litigator, wins a motion to exclude Lucas’s confession from evidence. This is undoubtedly a huge coup for the defense, but as the judge cautioned, it won’t help if Lucas’s conduct is out of control.

The backstory: While Mr. Colon is arguing that Lucas simply did not and could not have the mental capacity or understanding to fully appreciate the implications of a confession without the presence of an attorney, he (rightly) throws the father under the bus. Lucas hears a verbal assault on the only person he has ever known or loved (a familial version of Stockholm Syndrome), and has a passionate, yet inappropriate, emotional outburst.

Everyone in the courtroom knew that if Lucas repeated this sort of outburst in front of jurors, it would be the nail in his coffin. Very few attorneys represent such unpredictable or volatile clients, but the point stands: Always be on your best behavior because conduct matters.

Rarely if ever does an eye roll, audible sigh, frantic note-passing incident, or teary eye go unnoticed by the jury panel. While we may perceive any one of these as an understandable reaction to whatever may have occurred in the courtroom, jurors simply do not have the same information we do. Which means their interpretation of the situation can be— and often is— markedly different.

Practical Takeaway: Always strive for the best behavior possible. Emotional outbursts can unravel all of the golden threads you’ve woven together in a strong defense.

Quote No. 3: 

“Who’s going to get this in? [I] can’t just stand up in front of the court and show photos without any context. You need someone to authenticate them… .”

While reviewing photographs from the Schweiger property, Dr. Bull decides one photo is critical to their defense, but Benny reminds him of the rules of procedure (finally!). We all know that evidence has to be presented through witness testimony, not lawyer statements. So be sure that your favorite exhibits, photos, and even demonstrative aids can—and will— be sponsored by a witness. I added “will be” because not every witness will want to sponsor every document you want him to. And quite honestly, nor should he.

When choosing key exhibits, or creating powerful visual aids, always identify the spokesperson for that piece of evidence ahead of time. Without a credible storyteller to provide context, authenticate the document, or educate the jury about its importance, you’re really wasting time and energy (and dollars) on something that may never see the light of day.

Practical Takeaway: Spend ample time during discovery and pre-trial identifying hot documents, demonstrative evidence, and even graphic aids that will help promote your trial story. But before you build your entire story around them, be sure to link each and every piece of evidence to a trial witness who will be able to discuss it during his or her testimony. Without a sponsoring witness, visions of newsworthy moments during trial are nothing but a pipe dream.

The episode ends with Lucas accepting a unicorn plea deal that not only keeps him out of prison (of course), but also finds him a loving family to live with. He still has to figure out life in a world he does not yet understand, but at least he’s not doing it inside a prison void of choice. There’s really no unifying theme for my takeaways in this week’s episode of “Bull,” but Hollywood has a lot of creative license (unlike columnists). At the end of the day, each extracted quote and takeaway relate to winning the war of perception in the jury box. And isn’t that what really matters?

This article was originally published by Texas Lawyer on March 20, 2019. Reprinted with permission. © 2019 ALM Media Properties, LLC. All rights reserved.