Lawyers Will Be Lawyers, Dumping More on Juries Than They Can Process

NOVEMBER 6, 2008

By LESLIE EATON and AMIR EFRATI
Wall Street Journal

DALLAS — When the high-profile prosecution of a Texas charity accused of helping Palestinian terrorists collapsed in a chaotic mistrial here a year ago, there were lots of theories about what went wrong, from government overreaching to a new political climate to a rogue juror.
But there was another problem, according to lawyers who followed the trial: Some jurors were bored and bewildered. They were buried under 197 counts and an avalanche of evidence, including hundreds of documents and dozens of wiretap tapes.

The defense in the Holy Land Foundation case holds that the government’s whole premise is fundamentally wrong, and it looks like some jurors in the original trial may have agreed, acquitting several defendants on most charges.

Yet they deadlocked on the majority of the counts. The case, now being retried in a sparer form, stands as a lesson, lawyers and jury consultants say: Prosecutors can compile a ton of evidence, but whatever its merit, presentation and pacing are crucial. When jurors can’t reach a decision one way or the other, time, effort and taxpayer dollars go to waste.

It’s an occupational hazard: Lawyers, being lawyers, are loath to leave out a single stone of the fortress of evidence they are building, lest it prove to have been the keystone. Prosecutors are tempted to anticipate and counter every argument the defense might make. They sometimes forget that they are also storytellers, who by trade rely on judicious selection — and omission.

“You think, ‘This sounds so great,’ but you’ve added six weeks to the trial,” says Andrew C. McCarthy, who successfully prosecuted Omar Abdel Rahman, the famous “blind sheik,” for conspiracy in the 1993 bombing of the World Trade Center. In that case, which lasted more than eight months, the trial team met every day to decide what it had already proved and what material it could safely cut, he says.

Jury consultant Robert Hirschhorn offers this trifecta: “A, you have to make it interesting. B, you have to use simple words. C, you need to come up with analogies or examples.”

The danger of overkill is one prosecutors have confronted repeatedly in white-collar cases, including the corporate-accounting and fraud scandals at Cendant Corp., Enron Corp. and Tyco International Ltd. The first trial of Walter Forbes, the former chairman of Cendant, a New Jersey travel and real-estate company, lasted seven months and ended in 2005 in a hung jury.

Mike Martinez, one of a team that took over the Cendant case after the first trial, decided to spend less time describing accounting principles, shorten testimony from his witnesses and remove insider-trading charges, leaving only conspiracy to commit securities fraud and two counts of making false statements. When the second trial also resulted in a hung jury, the prosecution decided to add one more witness who had direct contact with Mr. Forbes during the period of the fraud. The government put on its third case in about 10 days, down from five months in the first trial, and Mr. Forbes was convicted in 2006.

“We had to keep it pretty simple so it would make sense,” says Mr. Martinez, now a defense lawyer. He says prosecutors “should probably spend more time in the editing room before the trial begins, but given time and resource constraints, that is easier said than done.”

Defendants usually aren’t crazy about going through the grueling trial process again, either. But the Holy Land defendants celebrated the mistrial as a vindication, their families and supporters complaining that they had been tried for their political beliefs. One juror told the Associated Press that the case “was strung together with macaroni noodles.”

During the retrial, now in its second month, federal prosecutors are paring away. Neither the prosecution nor the defense can comment on the case, because of a long-running gag order. But lawyers who have followed the case closely generally agree that overcomplexity was probably a factor in the mistrial.

The case was “diffuse and amorphous,” says Peter Margulies, a law professor at Roger Williams University in Rhode Island who studied it and who believes that information supporting the government’s case “was hidden in the mass of evidence dumped on the jury.”

As in the first trial, the government contends that Holy Land’s organizers deliberately funneled money to charities controlled by Hamas, which the U.S. government designated as a terrorist organization in 1995.

But prosecutors have dropped some charges and added some witnesses — still managing to shorten their presentation by several weeks. They have reorganized the many exhibits, adding posters and PowerPoint slides to help the jury navigate the unfamiliar world of Palestinian charities.

Lawyers for the five individual defendants, who face long prison terms if convicted, have added new witnesses of their own. They continue to argue that their clients were supporting charities that aided impoverished Palestinians, as required by their religious beliefs, not trying to assist Hamas.

Jurors will still have to wade through reams of evidence. Even believers in the government’s case, like Steven Emerson, the founder of the Investigative Project on Terrorism, a research group, say they’re not sure how it will turn out but that the presentation “is much more straightforward” now.
“There’s less of the clatter that clogged up the narrative last time around,” he says.

Write to Leslie Eaton at leslie.eaton@wsj.com and Amir Efrati at amir.efrati@wsj.com

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