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Jacobs & Dow, LLC

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Tickle Me Elmo

I have been unable, over the last number of months, to avoid ensnarement by several well-meaning judges insisting that my quest for justice on behalf of those wrongly accused requires an actual trial. Those well-meaning but insensitive magistrates, oblivious to the grave dangers to fragile egos and to the intense labor such endeavors require, actually expected me to read through a file, learn facts, question witnesses and, horror of horrors to criminal defense lawyers, perhaps even present evidence. While such exercises are inevitably taxing for the lawyer and oft- times worse for the accused, they do present opportunities to learn.

Learning about people is a given. The more formal voir dire of criminal trials permits unique opportunities to probe the human condition. It offers a window on beliefs and perspectives that never fails to surprise. I’m thinking of the venireperson who indicated she worked in the cheese department at Stop and Shop. When asked what that job entailed, she responded, strait faced, “I cut the cheese.” Nuff said.

Then there was a young man in another trial, a train conductor, 21 years old. Trying to ascertain the strength of his convictions, I asked whether, if, as a juror, he had a chance to work a lucrative overtime run at 5:00 pm and he was the single holdout, he would cave in and change his vote to take advantage of a big payday. He thought for a moment, rubbed his chin, and then said, “No. That would be wrong. There’s what’s that thing? Ethics. Yea, that’s it, ethics. . . . And, besides, under union rules I get paid anyways.” A valuable nugget of information.

My favorite question, though, is one a recent adversary repeatedly asked: “Do you think, Mrs. Jones, you’re a decisive person?”

Pause. “Well. . .” Another pause. Then, hesitantly, “I think so.” Not quite the Rosie O’Donnell she first appeared to be.

There are other things you learn from going to trial. Like maybe catching up with the 21
st Century. My most significant recent trial learning experience in this vein was exposure to new courtroom technology. There’s this thing called an Elmo. It’s not the sophisticated Microsoft Power Point program the computer whizzes insist on using that, when they work, can rival the laser light show at EPCOT. In untrained hands, these programs only serve to distract jurors, causing them to tune out the lawyer and focus on calculating how Clarence Darrow is going to screw up the presentation next.

No, Elmo isn’t like that. It’s less glitzy. And, importantly, capable of relatively errorless use even by people who have trouble closing their briefcases. It’s something like an overhead projector with bells and whistles. You-or someone who knows how to-turns it on and you’re off and running. The gizmo projects a light on the equivalent of a home movie screen. Your part comes when you place an object on the machine face-up and it projects it onto the screen for all to see. You can zoom in or out with ease and, with a laser pointer, bedazzle the six plus two who have been unable to avoid fulfilling their civic duty.

It makes using exhibits much easier. No more making copies for each juror. Everyone can literally read from the same page. Same with photos. No need to pass them around, juror by juror while silence fills the courtroom, the stenographer studies the ceiling tiles, the judge calculates judicial pension benefits and you try to figure out where to put your hands.

There’s a price, of course. The screen and the projected documents and photos can dominate the room. There’s less interaction between jurors and lawyers. [I always like the opportunity to personally put evidence in the jurors’ hands, wait while it’s passed down one row and then back, and then retrieve it from the last juror. I think I’ve been influenced by the inimitable Fred White who used to say of jurors, “If I can touch them, they’re mine.”]

It’s technology, but it’s a comfortable technology. Not overly sophisticated and not overwhelming. Whenever I see one of those polished presentations that tend to overwhelm our lives and our courtrooms, I always remember NBC’s Tim Russert in the first Bush election. Surrounded by the most up-to-date graphics and sophisticated computer analyses presenting viewers with three dimensional red states, blue states, shooting arrows and animated graphs, he sat there with a white board on which he had written two words-“Ohio” and “Florida”. And as proven by the saga of the hanging chads, he was right.