Legal News

Holy Land Foundation Case is Lesson to Lawyers: Pare Down

By Dan Slater

A Holy Land defendant is lifted after the 2007 mistrial. (Associated Press)

Remember those inattentive jurors in Australia whose Sudoku playing led to a mistrial in a three-month drug trial. The judge gave the jurors a tongue-lashing. We suggested the possibility that the lawyers were to blame. Did they fail to make the trial interesting enough to hold the jurors’ attention?

The issue comes up again today in a WSJ story titled “Lawyers Will Be Lawyers, Dumping More on Juries Than They Can Process.” Last year, in the Holy Land Foundation case, a high-profile prosecution of a Texas charity accused of helping Palestinian terrorists, jurors were buried under 197 counts, hundreds of documents and dozens of wiretap tapes. The case collapsed in mistrial.

What (or who) went wrong? The lawyers, say some. The case, now being retried in a sparer form, stands as a lesson, write the Journal’s Leslie Eaton and Amir Efrati: Prosecutors can compile a ton of evidence, but whatever its merit, presentation and pacing are crucial.

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.

“Just because you have the evidence doesn’t mean you have to put that evidence in front of the jury; you have to be strategic,” says Cliff Stricklin, a former prosecutor who handled cases stemming from the accounting scandals at Enron and Qwest Communications. Prosecutors sometimes think that “if they have an arrow in their quiver they have to shoot it, and sometimes they might include more charges, but if the evidence for some counts isn’t as strong as for others they stand a chance of losing credibility with a jury.”

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.”

During the retrial of the Holy Land Foundation case, now in its second month, federal prosecutors are paring away, but will it help? 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, say they’re not sure how it will turn out but that the presentation “is much more straightforward” now.

Full post as published by Law Blog - WSJ.com on November 06, 2008 (boomark / email).