5 131.6 Manalatoy Pretrial Conference

Timothy R. Murphy Paula L. Hannaford Genevra Kay Loveland G. Thomas Munsterman National Center for State Courts library National Center for State Courts 300 Newport Ave. williamsburq, VA 23 187-8798 National Center for State Courts, 300 Newport Ave. (23185), P.O. Box 8798, Wihamsburg, VA 23187-8798 Copyright 1992, 1998 by the National Center for State Courts All rights reserved First edition published 1992 (as A Manualfor Mnnagirig Notorious Cnses). Second edition 1998. ISBN: 0-89656-188-7 Library of Congress Catalog Card Number: 98-67361 Cover photo by Gina FerazzilLos Angela Tinzes. ... 111 Contents Preface to the Revised Edition .................................................................... v Introduction to the First Edition ................................................................ ix Chapter One: Pretrial Matters .................................................................... 1 Chapter Two: Deahng with the Media in a Notorious Trial ..................... 33 Chapter Three: Jury Considerations in a Notorious Trial ......................... 63 Chapter Four: Planning for Security in a Notorious Trial ......................... 99 Appendices 1. Background Legal Materials ........................................................ 113 2 . California Change of Venue Guidelines ...................................... 135 3. Decorum Orders ........................................................................ 141 4 . Handling News Media Arrangements During High Visibility Trials .................................................................. 145 5 . Public Seating in a Notorious Trial ............................................. 149 6 . Rules Concerning Electronic Media Coverage of Courts ........... 157 7. Media Advisories ........................................................................ 179 8 . Juror Prescreening Questionnaire and Judge’s Instructions.......... 183 9 . Security Orders .......................................................................... 199 10. Trial Security Plan ...................................................................... 201 11 . “Tips for Coping after Jury Duty”: A Brochure Distributed by the Maricopa County (Arizona) Superior Court .................... 207 Acknowledgments .................................................................................. 209 Index ...................................................................................................... 214 Preface to the Revised Edition lot of notorious cases have been tried in American courts in the past six years. Some ofthese-Cal$rnia v. 03. Sirnpson, Harry Perzigian v. ACarroll O’Conner., Delaware v. John E. du Pont, and U.S. v. Autumn Jackson-attained their notoriety from the celebrity status of the parties, victims, and witnesses. Many of the most notorious cases involved horrendous crimes-such as international and domestic terrorism in the World Trade Center and Oklahoma City bombing trials, or serial murders by Jeffrey Dahmer and Theodore Kaczynslu. Other cases involved less sensational crimes per se, but captured public attention because of unique factual circumstances. Susan Smith, who insti- gated a national alert for the ludnappers of her two young children, was ultimately convicted of killing them herself to improve her prospects for attract- ing a suitable romantic partner. The trial of Louise Woodward, the British au pair charged with murdering one of the chldren under her care, sparked a national debate about the availability and quality of child care in the United States and about judicial second-guessing ofjury verdicts. The notoriety of a few trials can only be explained as public fascination with the truly bizarre aspects of contemporary life-the assault trials of Lorena and John Wayne Bobbitt being a case in point. Notoriety is usually a temporary condition, however. And the fact that new courthouses, names, and faces constantly replace old ones on the talk shows, evening news, or the morning edition of the local paper was not suf- ficient, by itself, to justifi, revising A Manual for. Managing Notorious Cases. Despite the variety of circumstances that have pushed cases into the national spotlight, the principles of managng a notorious case have changed very little since ths publication was first issued. Preparation, teamwork, common sense, and flexibility are still the hallmarks of effective trial management. Nevertheless, some changes and innovations in notorious case management were important enough that a revision of the manual was warranted. One of the most significant changes is greater certainty about the effec- tiveness of the various techniques-particularly selection criteria for the trial judge and the trial venue-that were first discussed in the manual. As judges and court staffaround the country have gained greater experience with notorious cases, they have confirmed the relative usefulness of some techniques that were only innovative ideas six years ago. A number of ideas, some of them hghly effective, have become routine practice in notorious trials. Other ideas, which worked less well, were ultimately discarded. Ths revision vi Managing Notorious Trials describes the experiences, both good and bad, that courts have had with these innovations. Each new notorious case seems to raise at least a few new problems requiring new solutions. Necessity being the mother of invention, judges and court staff have proven themselves to be hghly innovative managers in notorious cases. This revision describes some situations not previously contem- plated in notorious trials-handling pro se and other “difficult” litigants, deahng with bomb threats, extending court security beyond the courthouse, avoidmg prolonged sequestration for the jury-and discusses some new ideas for handling them. Changes in substantive law have also prompted revisions to the manual. One area of law that has undergone substantial revision is the role of victims in crininal proceedings. Over the past decade, both the federal government and the vast majority of the states have enacted “victim’s rights” legslation that substantially increases the rights of crime victims to be informed of, par- ticipate in, and provide input in a variety of pretrial, trial, and postconviction proceedings. Another major change is much greater appellate tolerance for attorney gag orders than previously. This change may reflect the ability of trial judges to draft orders that are narrowly tailored and supported by a written explanation for their necessity. Or it may reflect appellate recognition that trial judges should be permitted to take reasonable measures to ensure effective trial management-as much to advance the actual administration ofjustice as to pro- mote the public appearance of effective management, fairness to the parties, and institutional credibility. Finally, the emergence of new technology .has a tremendous effect on all aspects of notorious trial management. Depending on its intended use, and the procedures and policies in place to govern it, most of this technology is very good. Judges and lawyers can use soplllsticated computers to track large quantities of evidence and documentary exhibits. Courts can use Touch- ToneTM telephone systems and telephone-answering devices to inform prospective jurors about reporting dates and times for voir dire. Ileal-time transcription services can produce an official court transcript for use by all parties and the inedia almost instantaneously. Electronic media can broadcast court proceedings using smaller, less intrusive equipment that delivers a bet- ter quality signal. Security personnel have more sophisticated equipment available to screen court visitors and incoining mail entering the courtroom or the courthouse. Without certain safeguards, however, new technology can also be abused. The revised manual higughts potential trouble spots and sug- gests ways to compensate for technological limitations. The revisions themselves are based largely on anecdotal reports from judges, court staff, lawyers, media representatives, and other participants in Managing Notorious Trials vii notorious trials. The authors have sometimes been directly involved in these trials as formal or informal consultants, but more often have been spectators themselves. We are gratehl to the many people who have called or written over the years with comments, ideas, and suggestions for Managing Notovious Ttiu Is. There are, however, some individuals who gave more than modestly of their time and expertise to bring this revision to press. Among these were a number of people who, at our request, reviewed the manual and offered detailed written commentary and criticism about topics that needed updat- ing, topics that needed to be added, and topics that needed to be dxarded altogether. Others graciously talked with us at length, permitting us to ques- tion them about new ideas and to clarifir significant factual issues. Included in this group are Beth Bonora (National Jury Project, Oakland, California); Hon. Roger W. Boren (Court of Appcal of Cahfornia, Los Angeles); Jack Chesnett (NBC News, Denver); Hon. Ronald S. Coen (Superior Court of Los Angeles County, Los Angeles); Hon. B. Michael Dann (Maricopa County Superior Court, Phoenix); Hon. Kenneth DeHart (District Court of Texas, 394th District, Alpine); Quin A. Dcnvir, (Ofice of thc Federal Defender, Sacramento, Cahfornia); Gloria Gomez (Superior Court of Los Angeles County, Los Angeles); David Graeven (Trial Behavior Consulting, Inc., San Francisco);

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