ANNAPOLIS, Md. (AP) — The judge in the massacre of five Maryland newspaper employees gave 300 potential jurors a questionnaire Friday to try to whittle the jury pool in this close-knit community where most people feel connected to the case — an increasingly popular tactic in high-profile cases nationwide as courts move away from change-of-venue options, experts say.

In decades past, such trials were often moved to other communities, where courts could find potential jurors less familiar with the case. But the widespread nature of modern news has made that less effective. In Maryland, many people across the country know about the case against Jarrod Ramos, who faces numerous charges, including first-degree murder, in last year’s shooting at the Capital Gazette.

“Courts view modern media as negating the value of moving the trial,” said Jonathan Turley, a professor at George Washington Law School. “It’s become more important to isolate any possible areas of potential conflict or bias in the jurors.”

Judge Laura Ripken wrote the questionnaire after considering questions from defense attorneys and prosecutors.

In this case, the objective isn’t necessarily to find jurors who’ve never heard of the case, but to narrow the pool to those who neither knew the victims nor have deep-seated views about a suspect’s guilt or innocence.

“I think the judge, rightfully so, foresees that many people that would be called for jury duty in this case will have heard of the incident and will likely have some very strong opinions about the incident in particular,” said Rachel York Colangelo, the national managing director of jury consulting at Philadelphia-based Magna Legal Services.

Crucial questions will be whether any of the prospective jurors know any of the victims. Asking each potential juror about that issue in court can be time-consuming, Turley said.

While knowledge of the June 2018 shooting certainly won’t make someone ineligible to serve on the jury, the judge and attorneys will be focusing on whether a potential juror is willing to listen to the evidence and has not made up his or her mind as to guilt or innocence.

Turley, a practicing criminal defense attorney, said a prospective juror who claims to have no knowledge of the shooting probably would not be wanted for the jury, anyway.

“I would be a tad suspicious about the veracity or normalcy of a juror who lives in an area and is entirely unaware of a horrendous massacre, particularly in such a small town,” Turley said. “You want to have someone who is well-adjusted and reasonable on the jury.”

The questionnaire will give attorneys on both sides an early start in considering prospective jurors who can weigh the evidence impartially, more than a month before three days of jury selection begin Oct. 30.

“This just strikes me as a more efficient way to deal with the problem of making that sort of big first cut with a jury pool that is bound to be compromised, simply because of the high-profile nature of the case,” said David Gray, a University of Maryland law professor who teaches criminal law and criminal procedure.

Ramos, 39, had a long history of harassing the newspaper’s journalists. He sued the newspaper in 2012, alleging he was defamed in an article about his conviction in a criminal harassment case in 2011. The suit was dismissed as groundless and Ramos railed against the newspaper staff on Twitter.

Authorities say he blasted his way into the Capital Gazette newsroom with a shotgun on June 28, 2018, killing John McNamara, Wendi Winters, Rebecca Smith, Gerald Fischman and Rob Hiaasen. Police say Ramos was arrested hiding under a newsroom desk.

Ramos has pleaded not guilty and not criminally responsible, Maryland’s version of the insanity defense.

More than 1,000 people streamed through Maryland’s capital during a candlelit march a day after the attack.

This piece originally appeared in Associated Press News on September 27, 2019.

As Nuclear Verdicts Become More Frequent, Attorneys Are Turning to Mock Trials & Focus Groups

Attorneys in recent years have increased their use of jury consulting services and focus groups, a trend that some Philadelphia-area court watchers see as driven by the growth of so-called “nuclear” verdicts, where a plaintiff is awarded hundreds of millions, or sometimes even billions, over personal injury claims.

“A lot of people are looking at these claims and saying, ‘This is a bad one. What can we do to avoid these surprises?’” said Rachel York Colangelo, the national managing director of jury consulting at Philadelphia-based Magna Legal Services. “There’s no need to be surprised.”

According to Colangelo and numerous civil attorneys, lawyers on both sides have been increasingly using jury consulting services, including mock trials, targeted questionnaires and focus groups, both online and in person. Attorneys have also reportedly been using the services earlier in the life of a case to help both with settlement talks and development of trial strategies.

Or, in the case of the defendants and carriers, to help get a grip as even the more run-of-the-mill verdicts are beginning to creep upward.

“It seems like a lot of those types of clients are saying something’s going on right now with more and more of these nuclear, outrageous verdicts,” Colangelo said.

The most obvious verdicts that come to mind are in the products liability arena, where a Texas jury last year awarded $4.7 billion to 22 plaintiffs injured by talcum powder, and where, in May, a California jury hit Monsanto with a $2 billion verdict over its weedkiller Roundup—a verdict that was later slashed to $86 million. However, according to Colangelo and others, defendants are also increasingly being surprised in smaller, more routine cases—in particular in trucking litigation—and so they have been increasingly turning to jury consulting services, like those provided by Magna.

Ricci Tyrrell Johnson & Grey attorney William Ricci, who focuses on products liability defense work, said he has noticed that excess carriers and self-insured defendants have increasingly been requesting attorneys perform mock trials, especially when facing a catastrophic injury case. He agreed that a “spike” in big-money verdicts appears to be fueling the trend.

“If you have an eight-figure demand in a catastrophic case in a city like Philadelphia, and it’s not the type of case you’ve been dealing with, there’s much more of a likelihood where the client, or the excess carrier, or both, will say, ‘Let’s consider getting a focus group,’” Ricci said.

Theodore Schaer of Zarwin Baum DeVito Kaplan Schaer Toddy, who handles cyber liability, as well as products liability and trucking litigation cases, said that, with an increasing number of high-profile verdicts, defendants are eager to confirm their valuation of a case, so they can make a more informed decision about whether to take the suit to trial.

“The more information you have, the better,” Schaer said. “There are always outlier juries, and that’s the risk of going to trial. But I think that, certainly on the defense side, over the last couple of years, some of these astronomical verdicts have led professionals to really use all the tools in their arsenal.”

Along with the more traditional mock trial services, attorneys are increasingly holding focus groups and even using geographically and demographically targeted surveys to help with everything from valuation to trial strategies. These more piecemeal evaluations of cases, if done early enough, can even help attorneys hone in on evidence and theories while discovery is ongoing.

Colangelo said mock trials and focus groups, which used to always be done in rented conference spaces, can now be handled online, where mock jurors are streamed live exhibits and participants can interact with each other through interactive multimedia platforms. Attorneys have also increasingly been using online surveys, she said, where as many as 100 people from a given venue are given prerecorded narratives about a trial, and then asked to answer a series of questions.

“It’s just we’re not looking at jurors through a one-way mirror. We’re observing them online,” Colangelo said. “The feedback is very similar. The deliberations are just as robust.”

Those technological developments have also allowed jury consulting companies like Magna to provide the services for a much smaller fee, which has further fueled the trend.

Although plaintiffs firms are not subject to the same pressures as the defense bar, personal injury attorneys are also increasingly using mock trial and focus groups.

Plaintiffs attorneys said that, while they use consulting companies like Magna to perform more formalized mock trials and focus groups, they typically only use those services for bigger cases because of their costs.

However, numerous plaintiffs attorneys said they are increasingly putting on their own focus groups.

McLaughlin & Lauricella attorney Slade McLaughlin said he uses focus groups in any case where alcohol might be involved, or if there are serious questions of comparative negligence. Attorneys noted they sometimes perform focus groups on a single issue or piece of evidence in a case, and may perform multiple focus groups on a single case.

“What it does is it opened my eyes up to issues I didn’t even know were there,” McLaughlin said, noting that in one case that resulted in a $20 million award, he got the idea to ask for punitive damages after a focus group suggested that the defendant’s conduct had been “outrageous.”

“Lawyers look at a case one way, and lay people look at cases another,” he said.

These focus groups, according to attorneys, often involve renting out a conference room, putting an ad in the paper for prospective mock jurors, providing catered lunches and paying the jurors. Ostroff Injury Law attorney Jon Ostroff said he often does it under the guise of a psychological study so the mock jurors are not swayed by the fact that the attorneys arguing the issues are also paying for the event.

He said he uses them to help guide in the development of the case, giving a brain injury case as an example.

“We might get caught up in the cognitive deficits, but it might be something more subtle that would matter to a jury,” Ostroff said. “Sometimes the loss of life’s pleasures can be more impactful.”

Carol Shelly of Shelly Law Offices in Doylestown said she does a focus group session at least once a month, where sometimes issues from multiple cases are heard. Shelly added she likes to do focus groups early on in a case, even before taking key depositions.

“It makes me understand my cases better. It makes me prepare them earlier than I would otherwise. It makes me see the pitfalls in my case early,” Shelly said. “It’s hard work, but it’s done nothing but made me a better lawyer.”

Attorneys from both sides also stressed a renewed need to understand potential jurors as the new generation of millennials have begun to take more and more seats in the jury box.

“Jurors are different than they were 10 to 20 years ago,” Shelly said. “What they think is important is not necessarily what I think is important.”

This piece originally appeared in The Legal Intelligencer on August 27, 2019.

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How do human emotions play a role in decision making? That’s a hot-button question vexing board room executives that are facing steep jury verdicts.

Described as “nuclear,” jury awards are reaching into the tens of millions — and even billions — of dollars, particularly in cases where that human contemplative decision making is prevalent. That is because humans are the only decision makers who can act based on emotion — emotions that can often amplify the after-effects.

Such a decision was exemplified in an Oklahoma courtroom last month.

A single-judge court hit Johnson & Johnson with a nuclear verdict in which they were ordered to pay $572 million to the state for their contribution to the opioid crisis. The epidemic has claimed the lives of more than 300,000 Americans since 2000.

Family members of opioid overdose victims embraced the ruling in hopes that the decision would prevent others from succumbing to the drug in the future.

“It’s kind of punitive in a way, because for the most part, it’s to compensate the municipality for having to support these people for their addictions and their habits,” said Tanya Branch, partner at Quintairos, Prieto, Wood & Boyer, P.A. of the Oklahoma verdict.

“This is what happens when the theme is corporate greed and raking in huge profits at the expense of everyday people. On the other hand, you could say that the defense attorneys did an excellent job keeping the numbers in check, considering the state claimed damages in excess of $17 billion for what will essentially be the state’s ‘clean-up’ costs, for addiction programs and related funding,” she said.

“Unless dealt with in jury selection by experienced, battle-tested defense attorneys, drug companies may be faced with these types of outcomes nationally.”

The national outcomes that Branch is referring to include 2,000 other claims filed against Johnson & Johnson. The conglomerate’s boardroom is likely in a frenzy, now rushing to see exactly how much liability they might be held accountable for.

“We have a huge conglomerate that has been engaging in allegedly bad behavior,”said Rachel York Colangelo, managing director of jury consulting for Magna Legal Services. “But like in the opioid cases, there are so many they are involved in around the country that if they went around and just settled all of them, that’s a huge payout.

“That’s the gamble that these companies take. We have a lot of people say after cases like this, ‘How did they ever think they were going to win?’ ” said York Colangelo.

“My response is that they didn’t expect to win that case. But they needed to find out, ‘How bad could it be?’”

In a rising number of cases, the answer to that question: Nuclear.

So What Makes a Verdict ‘Nuclear?’

A nuclear verdict is an award that consists of $10 million or more — depending on the size of the company, it could be less — that results in extreme loss to the debtor.

Johnson & Johnson is a major corporation that can afford the verdict that was issued, but for other companies, gray areas of liability present major risks and have led to a rising number of these nuclear jury awards.

“Most of the time, even if the injury is not catastrophic, the verdict can be,” said Branch, speaking from the defensive perspective of these large municipalities.

One of the reasons for the increase in nuclear jury awards is the connotation that the public has regarding large corporations, as well as the idea that verdicts should sustain the plaintiff for the remainder of their lives and provide monetary consumption for suffering.

“A lot of jurors see the defendant as having a deep pocket, otherwise, why would they be sued?” said Branch.

“If a juror sees your client as a deep pocket, they’re not going give you a fair shot at defending the case.”

For smaller companies that do not have as much monetary backing, mitigating the risk of nuclear verdicts is imperative, otherwise, their entire operation could implode.

That’s where jury consulting comes in, working to minimize the risk and level the legal playing field.

Early Intervention is Key

For trials like that in Oklahoma where there’s an element of human loss or suffering, companies must perfect their strategies in order to sway the jury towards the defense…and pick the right jurors.

If a case is headed for trial and the possibility of a nuclear verdict looms, jury consultants can often convince companies to accept responsibility without liability.

This way, the defendant can soften the jury with their admission of their wrongdoings but still defend their case and weaken their punishment.

“Most of the time, even if the injury is not catastrophic, the verdict can be,” said Branch, speaking from the defensive perspective of these large municipalities.

One of the reasons for the increase in nuclear jury awards is the connotation that the public has regarding large corporations, as well as the idea that verdicts should sustain the plaintiff for the remainder of their lives and provide monetary consumption for suffering.

“A lot of jurors see the defendant as having a deep pocket, otherwise, why would they be sued?” said Branch.

“If a juror sees your client as a deep pocket, they’re not going give you a fair shot at defending the case.”

“Everyone assumes you get called in for trial and that we just come in and pick the jury. There’s a lot that goes into consulting before you ever get to that point,” said Colangelo.

Know Your Crowd

Some of the services jury consultants can provide before the trial include mock trials, focus groups, surveys and jury selection.

According to Branch, picking the right jury helps to attain the desired outcome.

“You have to have a very clear understanding of the type of jury you’re looking for,” she said.

“While you expect people to be fair and impartial, a lot of people have certain biases that if you don’t get those out of them, they’re not going to tell you. It’s your job as the attorney to figure out which juror isn’t being completely truthful about their history and their background.”

Because “judges are human, too,” as Colangelo explained, even perfect jury consulting can’t completely eliminate the risk of nuclear verdict awards. The outcome of a trial can be shocking to even those who contributed to the guilty decision.

“Juries typically don’t expect nuclear verdicts,” said Branch, who says that sometimes the number of a monetary award can increase excessively depending on the age and injuries of the plaintiff.

But, like other decisions made from human emotion, some jury-awarded verdicts can turn out to be presumptuous, tentative or downright wrong.

Regardless of who is truly liable in a case, jury consulting proves that evidence is only as powerful as its presentation, and its delivery can be what disarms or detonates a legal bomb.

This piece originally appeared on Risk & Insurance on September 13, 2019.

NEW YORK — Lawyers for Harvey Weinstein are seeking to get the fallen movie mogul’s upcoming sex-crimes trial moved out of New York City, saying he can’t get a fair trial there due to overwhelming pretrial publicity.

In a long-shot motion filed with the New York State appellate court on Friday, defense attorney Arthur Aidala suggested the trial be moved to upstate Albany County or Suffolk County on Long Island.

It is not clear whether pretrial publicity about Weinstein will be less intense in either of those places given that his case has been global news for nearly two years.

The defense motion cited the enormous media coverage and circus-like atmosphere surrounding Weinstein’s past court appearances in Manhattan, even noting that Weinstein’s name was mentioned online on the New York Post’s gossip column Page Six more than 11,000 times.

“It is safe to say that New York City is the least likely place on earth where Mr. Weinstein could receive a fair trial, where jurors could hear evidence, deliberate, and render a verdict in an atmosphere free of intimidation from pressure to deliver a result that the politicians, the activists, the celebrities and the media demand,” Aidala wrote.

The court papers also argued that Manhattan is the epicenter of the global #MeToo movement, which took off in November 2017 after dozens of women accused Weinstein of sexual misconduct.

“It is difficult to conceive of a similar case in recent memory that has generated more inflammatory press coverage,” Aidala wrote.

A message left with the Manhattan district attorney’s office was not immediately returned.

Weinstein, 67, is charged with raping a woman in 2013 and performing a forcible sex act on a different woman in 2006. He has pleaded not guilty and has denied all allegations of nonconsensual sex. He is free on $1 million bail.

Last week, prosecutors acknowledged they would return to the grand jury seeking a new indictment of Weinstein, an unusual move so close to trial set to begin Sept. 9.

Prosecutors are not expected to add new charges in the new indictment. According to Manhattan Assistant District Attorney Joan Illuzzi-Orbon, they are seeking to put before the grand jury the testimony of a woman who claims Weinstein raped her in New York in the winter of 1993-1994, as a means of bolstering the testimony of the two accusers in the case.

Weinstein’s defense team – his third since he was indicted – is led by attorneys Aidala and Donna Rotunno; they have argued that a new indictment would give them another 45 days to file pretrial motions, thus delaying the start of the trial.

If an appellate judge also grants a change of venue motion, that, too, could delay the trial.

Professional jury consultants, who advise lawyers during jury selection, say the selection process isn’t designed to eliminate potential jurors just because they’ve heard or read about the case; it’s more about whether they have biases based on their life experiences and if they can set those aside, says Brittany Cross, senior litigation consultant for Magna Legal Services.

“There is no doubt it will be difficult to find a juror who has been insulated from media coverage surrounding the case, let alone 12 of them,” predicts Cross. “Moving the trial to an area outside New York County will most likely give the defense its best shot at a fair jury, and jury selection will be critical for the parties in this case.”

But Rachel York Colangelo, managing director of jury consulting for Magna, says not everybody – not even in New York City – is a news junkie following every detail of the case.

“One would be surprised at how little some people may actually have read, heard, or care about his case in particular, or the #MeToo movement in general,” Colangelo says.

This piece originally appeared on USA Today on August 21, 2019.

Matthew Bowen, a Border Patrol agent accused of running over a Guatemalan migrant in southern Arizona and then lying about it, is slated to go to trial later this month.

Bowen’s trial comes after prosecutors in Arizona twice failed to win a conviction against another agent, Lonnie Swartz, who fatally shot a teenager through the border fence.

At the heart of the case against Bowen lies a series of text messages prosecutors say he sent before and after the alleged attack. One read: “guys are being made to think any use of force results in you being investigated and so they are letting tonks get away with too much.” The word tonk is a slur for migrants.

Rachel York Colangelo, with the juror consulting firm Magna Legal Services, says those text messages will impact the jury.

“Text messages such as the one you’ve seen in this case show a level of aggression and a certain mindset of the agent that belies the sort of story line of acting on the defensive and an innocent accident happening,” she said.

Defense attorneys are asking the judge to push back the trial date so they can review other evidence.

This piece originally appeared on 91.5 KJZZ on August 2, 2019.

Jury selection is expected to begin Tuesday in downtown Harrisburg for the trial of a Pittsburgh-area police officer charged with criminal homicide in the shooting death of an unarmed teenager last year.

Residents of Dauphin County are being picked as jurors for this case because of concerns it would be hard to find an impartial jury in Allegheny county, where the incident occurred.

Continue reading →

Of all the props Mark Calzaretta has used to help juries understand environmental contamination, his favorite was Jell-O in a fish tank.

As founding partner and director of litigation consulting at Magna Legal Services, a Philadelphia-based company that provides legal support and jury consulting, Calzaretta works with attorneys to do jury research, develop case strategies, prepare witnesses, and create visual aids to help tell the stories behind a case in easy-to-understand terms.

“We create the visual strategy to go along with the story,” he said.

Calzaretta, who has a degree in psychology and anthropology, has worked in litigation consulting for more than 15 years. He wouldn’t discuss his clients, though his website says he’s worked on “numerous asbestos cases” and “numerous toxic tort cases.”

Complex environmental cases often need visuals to explain to juries how contaminants from one place move to another. Magna sometimes flies planes over a site and uses lasers to map out terrain, or drills into bedrock below contaminated sites to get samples of what lies underneath.

The Jell-O was used to help explain the term “DNAPL.” Short for “dense nonaqueous-phase liquids,” environmental engineers use the acronym to describe toxic contaminants that are both denser than water and don’t dissolve.

Chlorinated solvents such as tetrachloroethene and trichloroethene are examples of DNAPLs that linger in the soil and water around old manufacturing sites.

A company tried to convince the jury it was impossible that residual chemicals from its product could have fallen to the bottom of a pond and seeped into groundwater. Calzaretta’s team brought in a five-gallon fish tank into the court room, dumped a dessert cup of green Jell-O in the tank, and let the jury watch it sink to the rocks on the bottom.

If they waited long enough, the team explained, the Jell-O would ooze down into the rocks to layer underneath.

“That’s what happens when you put contaminants into the water system,” Calzaretta said. “And all the jurors were like, ‘That’s awesome. I totally get it! How could it not get in the groundwater?’”

This piece originally appeared in Bloomberg Environment on March 18, 2019.

A “nuclear verdict” is what jury consultant Rachel York Colangelo calls the recent $2 billion judgment against Bayer on claims its Monsanto Roundup weedkiller caused cancer.

It was by far the highest of three consecutive trial losses, all in California, for the German pharmaceutical and life sciences company, which bought St. Louis-based Monsanto Co. last year for $63 billion. The other two verdicts totaled $159 million. The next Roundup trial is scheduled for August in St. Louis.

Bayer said that it will appeal the verdicts and that Roundup is safe. A recent Environmental Protection Agency report reaffirmed its previous findings that glyphosate, the active ingredient in Roundup, is safe when properly used.

Colangelo, national managing director of jury consulting for Magna Legal Services in Washington, D.C., has more than 10 years of experience in jury consulting. She did not consult on the Bayer cases.

She spoke to the Business Journal about what she believes went wrong for Bayer and what it can do going forward.

What do you do as a jury consultant? I help attorneys, corporate clients and insurance carriers determine how triers of fact — juries, judges and arbiters — perceive their cases, what story or theme they can emphasize. We do that through pre-trial work, such as mock juries. We consult on opening statements, witness preparation and closing arguments. Few cases go to trial — most settle — and mock trials, for example, may encourage them to settle.

Were you surprised by the size of the $2 billion verdict? A lot of people were, but as a jury consultant, I wasn’t surprised at all. In mock trials, I see how a lot of juries react. I was not at the trial and did not consult on the trial, so I am on the outside looking in. In no way are any of my comments meant to be critical. The defendants have many more facts about their case than I do.

That said, what do you think went wrong for Bayer? The Roundup issues have been in the press long before these cases. People have heard friends and neighbors say, ‘Don’t use Roundup because it causes cancer.’ And Monsanto had a reputation, warranted or not, as a ‘big, bad corporation.’ People buy bags of potato chips that say ’No GMO,’ and many of Monsanto’s products are genetically modified. Plaintiffs lawyers are exploiting those predisposition in jurors. If a lawyer can make jurors feel scared or threatened, they begin thinking about themselves, their family, their neighbors.

What explains the size of the $2 billion verdict? When you instill anxiety and fear, jurors get angry — regardless of whether Monsanto did any of that. And there were internal Monsanto emails and memos that didn’t look good, looked like there could be a coverup. The plaintiffs pointed out internal memos that referred to Roundup as ‘that billion-dollar question.’ So jurors lashed out, and you get a $2 billion verdict, $1 billion for each of the two plaintiffs.

What are the risks for Monsanto in future trials? If people didn’t hear about the first two verdicts, they certainly heard about the third, the $2 billion. Juries may ask, ‘Do we want to be the first jury to find for Monsanto?’ They may think $2 billion is too high, but $100 million isn’t. Keep in mind, people across the country are very different. California juries tend to be more liberal and more health and environmentally conscious. They don’t use Roundup on their lawns. In St. Louis, where Monsanto is based, jurors may have a different view.

What can Bayer do differently in future trials? They need to ask: What is the story we can tell in the opening statement that will get the jury to really listen? If you are not able to grab them from the start, a lot of jurors will shut down. They hear primarily what supports the plaintiffs. Monsanto and Bayer relied heavily on the science that said there was no causal link between Roundup and cancer. In effect, they were saying, ‘Once you hear the science, you will know we are right.’ Juries really try to understand science, but a lot of it will go over their heads, as it would ours. And jurors have heard the anecdotal evidence and will see the memos and emails.

Bayer must put the elephant front and center in the courtroom. During jury selection, they have to get potential jurors to commit under oath to be willing to hear them out and make an effort to understand the context of those email and memos. Those who can’t commit, you kick off the jury.

What other risks does Bayer face? Plaintiff attorneys have gotten very aggressive. They advertise for clients who have used Roundup, regardless of whether they have cancer. Plaintiffs may demand pro-active damage awards: ‘Even though I don’t have cancer, I have used Roundup, and Bayer should pay for me to go to the doctor every two months for monitoring,’ plus monetary compensation for the pain and suffering of worrying about the possibility of getting cancer.

This piece originally appeared in the St. Louis Business Journal on May 24, 2019.

Putting a defendant on the stand to testify in their own defense is risky business.

Sometimes it works, and sometimes it doesn’t, legal experts told the Tribune-Review.

It’s anyone’s guess whether Michael Rosfeld will take the stand and describe under oath exactly what happened on June 19, 2018, the day the former East Pittsburgh police officer shot and killed 17-year-old Antwon Rose II as the teen ran from a felony traffic stop.

Rosfeld faces one count of homicide. His trial is scheduled to start Tuesday.

Whether Rosfeld testifies could depend on how he’ll perform in front of the jury, how the prosecution presents its case and how badly he wants to tell the jury his side of the story, experts told the Trib.

The risks are high. Rosfeld could crack under cross examination. He could turn the jury against him depending on his answers and actions on the stand.

“All in all, it’s a scary business,” Butler defense attorney Al Lindsay said.

Chicago attorney Daniel Q. Herbert, 50, is a former cop who has carved out a niche representing police officers in criminal cases. He recently defended Chicago Police officer Jason Van Dyke, who was convicted of second degree murder in 2018, four years after he shot and killed 17-year-old Laquan McDonald.

Van Dyke testified at his trial.

“That’s a decision that I always make the client decide. In this case, we felt very strongly from day one that we would need to put Jason on the witness stand. We needed to explain his version,” Herbert said.

Police can make excellent witnesses on their own behalf, Herbert said. They’re accustomed to being in court. They can be charming and thoughtful and can “win over” a jury, he said.

In cases where they’re facing criminal charges, they also are often adamant about testifying, he said.

“They’re fighting for their life,” Herbert said.

Whether a defendant testifies depends upon the case and the strength of the case against the accused, Lindsay said.

Lindsay represented former Mercer County District Attorney Miles Karson on charges of obstruction, official oppression and hindering prosecution. Karson was found guilty, but the jury spent a day listening to him explain his version of events.

“It depends on the defendant. Are they articulate? Are they believable? Do they have enough personal presence to be accepted by a jury?” Lindsay said. “There are certain cases that require the (accused) to give their explanation of a certain set of facts. You have to put them on or the charges would be unanswered.”

In a case like Rosfeld’s, putting him on the stand could provide the jury with Rosfeld’s perspective, said Mark Calzaretta, a Philadelphia-based civil and criminal jury consultant.

“His perspective would matter in this case. Here, I think the jury’s going to want to hear in his own words what’s going through his mind when this happened,” Calzaretta said. “It all comes down to him, what he was thinking.”

In this case, there isn’t a question about whether Rosfeld pulled the trigger.

The way the prosecution lays out its case will also impact whether or not Rosfeld will take the stand, said Bruce Antkowiak, chairman of the criminology department at Saint Vincent College in Latrobe. The defense presents its case after the prosecution, meaning Rosfeld and his attorney, Patrick Thomassey, can wait until after Chief Trial Deputy District Attorney Daniel Fitzsimmons makes his case.

Antkowiak said most defendants make bad witness because they’re not used to testifying or defending themselves.

“Even if the defendant is a police officer who has experience testifying,” Antkowiak said.

For the defense, the decision of whether or not for the accused to testify is “one of the most difficult tactical decisions a defense team has to make in any case,” he said.

The testimony can outweigh facts and evidence presented in the trial, he said. It could boil the trial down to whether the jury believes Rosfeld or not.

Antkowiak said it is “one of the most difficult tactical decisions a defense team has to make in any case.”

This piece originally appeared in Trib Total Media on March 18, 2019.

Prosecutors and defense attorneys in Michael Rosfeld’s homicide trial could seek out jurors each side would otherwise avoid, legal experts following the case told the Tribune-Review.

Defense attorneys, who typically look for jurors suspicious of police, might want to pack the jury with people sympathetic to law enforcement.

While prosecutors, who typically rely on officers as key witnesses during cases, could look for jurors wary of police. Continue reading →