How to pick jurors for Wall Street trial?

Former Bear Stearns hedge fund managers Matthew Tannin, left, and Ralph Cioffi are on trial in Brooklyn, N.Y., for conspiracy to commit securities fraud and mail fraud.

TEXT OF INTERVIEW

Kai Ryssdal: The financial crisis went to federal court this morning. Jury selection started today for two Bear Stearns hedge fund managers. Those funds went broke back in the summer of 2007. That set the stage for the Fed's bailout of Bear Stearns early last year. The trial hasn't had the smoothest start. The judge in the case has dismissed two prospective jurors who were critical of Wall Street in their questionnaires. According to Reuters, one of them wrote that big financial firms, "always try to bend the rules to make as much money as possible." Take pre-existing biases like that and deeply specialized subject matter like this case has, seating a jury can't be easy. To find out exactly how hard it might be, we've called jury consultant Susan MacPherson. Good to have you with us.

SUSAN MACPHERSON: Thank you.

Ryssdal: Is there a way to avoid bias in these really high-profile cases?

MACPHERSON: The question really turns on how much time and effort people are willing to put into the jury selection process. The judges generally are in a hurry to get the trial started, for understandable reasons, but the problem of bias is not one that sorts itself out quickly.

Ryssdal: What kind of person then would you as a consultant be looking for?

MACPHERSON: Well, the joke in my profession is that both sides always want the smart jurors because both sides think the other side is wrong and smart jurors will see that. So you are really talking about who are the people that need to be identified to be excused. The people you don't want are the people who have come to what we call a prejudgment, where they have already got a fixed view of what was wrong and why and who is at fault.

Ryssdal: What about the smarts question, though? Do you have to be able to understand things like auction-rate securities, and special-investment vehicles and all that stuff that frankly we cover day in and day out, and I'm sometimes hard-pressed to explain.

MACPHERSON: Well, my experience is that the best lawyers figure what it is that the jurors really need to know, and narrow it down as much as they can. These cases almost always turn on context, norms, and rules. And if people don't understand the context properly, they're going to have a very difficult time evaluating the core question, which is what was the knowledge and what was the intent.

Ryssdal: Give us a peak behind closed doors. Do they have MBAs and Wall Street traders there who are saying, all right, this part they need to know, this part they don't really to know. I mean, who decides?

MACPHERSON: The best people to decide that are actually people who are mock jurors, who can say here's the part I don't understand. You've explained this much to me, and I need to know these three things more because I'm not figuring out how this fits into the story.

Ryssdal: You know, these topics that these jurors are going to have to deal with are not always the most, shall we say, gripping and entertaining topics of conversation. How do you keep jurors interested in what is probably going to be a five or six-week trial?

MACPHERSON: Well, the thing about jurors is they are intensely interested in the story. They want to know. They really want to know what happened. Because in order to decide how to do the right thing, you have to make up your mind, really what happened. And so while the technical components of the case that they need to get a grip on may be a little bit dry and mundane, I find that people actually get more engaged and more motivated as they go along assuming they have attorneys and experts who are really dedicated to the task of educating them. That's the key.

Ryssdal: Susan MacPherson. She's a trial consultant with the National Jury Project Midwest. Thanks so much for your time.

MACPHERSON: You're welcome. Thanks.

About the author

Kai Ryssdal is the host and senior editor of Marketplace, public radio’s program on business and the economy.

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