Case study in perception

The Grey Lady gives us this discussion of the aftermath of the jury death sentence verdict of Ronell Wilson in a federal courtroom in Brooklyn (the first federal death sentence in New York City since the era of the Rosenbergs); Wilson had previously been convicted for the brutal execution style murder of two New York City undercover detectives, James Nemorin and Rodney Andrews, in Staten Island, a crime that shocked the City at the time. A death verdict in a case in New York City (not even Sheik Abdul Rahman, Ramzi Youssef and the perpetrators of the first World Trade Center attack, that killed six people, or the perpetrators of the Africa Embassy bombings that killed hundreds, got the death sentence) is itself newsworthy. Even still, in this case… at the reading of the death penalty verdict… amidst other things going on in the courtroom… Wilson apparently stuck his tongue out at the jurors.
This is one of the infinite number of wildcards that those of us who make our livings as trial lawyers have to face: clients and their actions which frequently undercut the case faster and more decisively than any adversary ever could. In my own practice (which, in 20 years of practice, probably includes around that many trials)… I have personally encountered (and thankfully for me, it has often been the other guy’s or gal’s client)… the client who sought out the hostile witness himself… the client who starts by answering cross-examination with “I didn’t tell my lawyer this, but…,” the client for whom it was too much trouble to even come to court for the trial… the client who, by their story, tried to reanimate the dead (forgetting that the other side just might have a certified death certificate in its briefcase)… and these are just civil trials, where the issue is “only money”… Criminal trial lawyers have their own “war stories” (the favorite I was told being of a defendant in some kind of fraud case who was cross-examined vigorously by a young prosecutor, so vigorously, that the defendant keeled over and died on the witness stand… the seasoned defense lawyer came over to the prosecutor when the paramedics left and slapped him on the back, saying “killer cross, Dude!”)
The point here is that Mr. Wilson, though he has been convicted of murdering two New York City police detectives, is entitled to a vigorous legal defense, a defense that will include appeals of his conviction that, as the Grey Lady piece observes, future lawyers, appellate judges considering reversal or politicians considering clemency will have to deal with Wilson having stuck his tongue out in the courtroom. While I have no idea if there will otherwise be sufficient trial error there to garner a reversal or retrial… let’s just say that Mr. Wilson made things far, far harder on himself.
The reason for the spin is that, as the Times piece tell us, like the killer of Polly Klaas in California (who was sentenced to death) who tried to portray the victim’s father as a child molestor, the tongue gesture will become “the signature” of the trial… shorthand. His defense lawyers immediately tried to spin it as representative of Wilson’s immaturity, indeed, some kind of mental deficiency that might mitigate (if certainly not justify) his brutal crime. Prosecutors and police officials, of course, immediately spun it as a sign of disrespect to the victim’s families and for a lack of remorse. And this incident will probably define this case forever more…
Both explanations, btw, may be right to some extent… or neither. Indeed, there is always the possibility that Wilson wasn’t sticking his tongue out at all, and this is just the misperception of onlookers.
The ultimate issue is the way the human mind works. (For some background on the political implications, my interview with George Lakoff sheds some light.) Just about every trial advocacy course I have had reveals that the most important part of the trial is the opening statement. This is where the all important preconceived perceptions for the case are formed… what the jury (or the judge in a bench trial) is told to expect, and how the all-important pre-conceived perceptions brought in from life before the courtroom will be tied into… “our side” is the side of the angels, people just doing their job, trying to make a living, trying to help humanity… “their side” are the snivelling money-grubbing con artists… or the cop-killers… or the corrupt N-word spouting constable planting evidence… or you pick it… And then having planted… and that’s the word… the perception based on prejudice…
Because, sadly, all too often, trials are about prejudice: either spewing it, or, knowing that the other side is playing this game, managing it. This is why so much of jury instructions are about not being prejudiced… about checking preconceived notions at the courthouse door and considering only the evidence… because judges, too, know this… and they know that their own prejudices matter, and indeed, that the jury can detect them, and sometimes even look to the judge to provide their prejudice for them! The better judges, of course, are pure poker face in this regard… unfortunately, the not-as-good judges… are not.
Notice what I did not talk about. What was that word? Oh yes… evidence. The opening is the critical part of trial… while “the evidence” may change jurors’ preconceptions, what has been shown to be more likely is that “the evidence” will reinforce those preconceptions, or, perhaps, the opening has failed to properly form those preconceptions, and the jurors will wait for closing argument (the second most important part of the trial) to tell them what the evidence means.
You may have noticed the importance of “the trial” part of the trial… the evidence itself, the testimony and documents that the jury will supposedly base its verdict on, unvarnished by lawyers’ spin (was it Lincoln who defined a jury as 12 people who decided which lawyer they liked better?). The evidence itself is no better than third-most important, at least in the minds of jurors when these things have been studied. Yes… the jurors’ deliberations will sound like they are talking about the evidence– but what apparently matters still more is the starting point… where they are leaning before they open their eyes, or their mouths.
Which takes us back to the political process. Understand that many, many politicians were trial lawyers. There are good reasons for it. Thinking on your feet is one. Preparation is another. And financial success is certainly another (these days, apparently, someone who can’t bankroll their own campaign, or have quick access to people who can, probably shouldn’t bother… sad, cynical, but in too many cases true.) But there is something to this knowledge of how to artfully and seamlessly smear your opponent, either subtly, or not so subtly.
Politics is the art of getting elected (or getting your guy or gal elected). And that means portraying your guy or gal as doing the work of the angels, and portraying the other guy or gal as the spawn of Satan. There are infinite variations of this, but you get the idea. And in the political process, as with a courtroom where you are told explicitly to pay attention to the evidence… it is, all too often, the perception of who the better candidate is… what it is you think they stand for rather than their actual record that matters… why so much effort goes into imagery… into “opposition research”… as George Lakoff observes, billions of dollars have gone into developing “deep frames” that evade actual objective observation!
And so, like our perception of Mike Dukakis wearing a Rocky the Squirrel helmet in a tank… what we will all likely remember of Ronell Wilson, convicted for the brutal and shocking murder of two New York City police detectives, is that he stuck his tongue out at jurors. Regardless of whatever he meant by it, or indeed, if he even did it.
Update: Wilson, evidently believing his death sentence is some kind of a free pass, hurled a chair in a detention center waiting room breaking windows, supposedly frustrated that he would be separated from his mother by glass. (He might have thought about this before killing two police officers. His attorneys are already going to have a hard enough time keeping this jerk from being executed as it is, without him constantly helping the prosecution.)