Live from the Ted Stevens Trial--Day Three

September 24, 2008

Washington, D.C.--We're wrapping up jury selection this morning at the trial of Ted Stevens, Alaska legend and Senate powerhouse.

The underlying questions are obviously serious. The seven-count felony indictment alleges that Sen. Stevens took more than $250,000 worth of free financial benefits from VECO Corporation and its long-time CEO Bill Allen and then deliberately fail to report them on required Senate disclosure forms over an eight-year period? Most of those benefits relate to renovation work done by VECO employees and contractors at Stevens’ home in the ski town of Girdwood, Alaska, but the government has announced that it will introduce evidence of other unreported gifts as well. A conviction would humiliate Stevens, make him a felon, and expose the soon-to-be 85-year-old to federal prison.

As with any human endeavor stretching over weeks, though, there will be occasional entertaining moments no matter how grim the subject.

A young man who put on his jury questionnaire that he had been a member of the Young Republicans keeps insisting that this had been a momentary flirtation sophomore year in college based on his conservative family sophomore year in college. He's outgrown their influence—he starting getting over it during junior and senior years—and he thinks for himself now. He stays in the jury pool, as does—for the moment—for the young woman yesterday who told the court that she wanted to be on the jury because she had taken the semester off from college and didn't have anything else to do.

That is, that young man survives the challenges for cause, which are disqualifications by the judge for some reason such as bias or massive inconvenience for the juror. To get on the jury, these venire members also must get past the peremptory challenge, which is the way the attorneys strike jurors for no reason that they will articulate—gut feeling, gross sociological generalization based on demographic characteristics, etc.

The media room is about as crowded as yesterday. I learned that the U.S District Court for the District of Columbia started it for the trial last year of Lewis "Scooter" Libby. Setting me aside, the press corps only includes three reporters from Alaska: Jill Burke of Anchorage's KTUU-TV (Channel 2); Libby Lewis of the Alaska Public Radio Network (APRN); and Richard Mauer of the Anchorage Daily News. (Erika Bolstad of McClatchy Newspapers is also covering the trial for the McClatchy-owned Anchorage Daily News, but she is based in Washington.)

There are a handful of warhorses, but most appear to be in their 20s and early 30s. The gender breakdown is about two-thirds male, but all the older people are men.

I have been persuaded that the media room is the office for the reporters and needs to be an off-the-record zone, so you won't see the conversations repeated here. (Erika Bolstad, however, did authorize me to tell everyone that she is "young, blonde, and single.")

Judge Sullivan announces that the process of questioning has resulted in the selection of 36 qualified jurors, and the judge calls a break to give the lawyers a few minutes to decide who they want to use as their peremptory challenges on. He announces that the 36 people qualified will be cut down to 16 as the prosecution exercises its eight peremptory challenges and the defense uses its 12. (The defense gets more peremptory strikes as another procedural advantage given to its side. Criminal defense lawyers would of course tell you that nothing can make up for the massive edge the government has in all its cops and its ability to decide who and when to charge.)

The defendant finally gets involved, as Sen. Stevens confers with his lawyers, presumably on the big decision of who to kick off. Some lawyers believe that jury selection is the most critical moment of any trial, on the theory that voting as a juror is just like voting as a citizen. It's not the testimony or the arguments or the debates or the commercials that matter—your adult decisions are just based on the influences you absorbed as a child.

During the break, I get a little time to ponder on what number you would come up if you totaled all the people being paid to be at this trial—counting lawyers for the government, the defendant, and witnesses; court personnel; and media folks—and multiplied that figure by their hourly rate of pay. This trial is a resources sink.

The jury gets seated at 1 p.m. It includes 12 jurors and four alternates, who will sit until at the end of trial ignorant of their status until they are excused before deliberation. (That is, assuming that no juror gets onto the Internet and gets tainted or gets sick or injured and has to be replaced, which would require that someone secretly designated as an alternate become a regular juror.) Those 16 jurors include 11 women and five men. (The jury does not include the young woman who said that they wanted to be on the jury because she had nothing else to do, as the judge disqualified her for cause at the last minute after she showed up more than two hours late this morning.)

An observer asks me if Sen. Stevens would have been acquitted if the defense had been successful in getting the trial moved to Alaska. I said that the conventional wisdom was that an acquittal was far more likely in Alaska than here in D.C.

The oral history of long-time observers of trials in Washington is that traditionally the jurors were putty in the prosecutors' hands. Such observers have said that the jury pool in the District of Columbia was for decades primarily low-skilled people who were biased towards the prosecution. Demographics in the District have been changing, as more highly educated people were moving in and less-skilled people have been moving out (primarily to Maryland, I understand). If these more highly educated people are more skeptical of authority and less likely to respond to what prosecutors say, that demographic shift might help Sen. Stevens.

On the other hand, defense attorneys often want as jurors people who have never served on juries before. The theory is that such jury virgins are not used to hearing defendants’ excuses and are not used to convicting. This jury includes several number of people who have been on juries before.

The reason for the great propensity of D.C. residents to get called for service appears to be that with only about 600,000 people, Washington is relatively small for all the jury trials that occur here. Residents of the District of Columbia—particularly those who are not in the underclass and thus legally or practically disqualified to be jurors—consequently get called for jury service at a very high rate.

The jury is definitely different from a racial standpoint from one that would have been obtained in Anchorage, which has a federal jury pool that is less than 10 per cent African-American. On this jury are 12 blacks, three whites, and one person who some observers thought was Hispanic.
It turns out that the Department of Justice used two jury consultants during jury selection, with no word on how many the defense might have used. I consider this a big deal, but apparently the prosecution—as well as the defense—frequently use at least use jury consultants in high-profile trials.

William Coleman, the Secretary of Transportation in the Ford administration, was added to the witness list this morning along with several others. Coleman almost certainly knows Stevens, but I would be very surprised if Coleman had anything to do with the renovations of the Girdwood chalet or the filling out of the Senator’s required disclosure forms. It would be, um, cynical to suggest that the ultra-savvy and ultra-aggressive Williams & Connolly defense team was going to call Coleman—the nation’s first black cabinet member—as a character witness for Ted Stevens to try to sway what all the lawyers knew was certain to be a black majority jury. Given the changes to Washington, D.C. over the past three decades, it does seem likely that calling as character witnesses prominent blacks like Coleman or former Secretary of State Colin Powell—or people popular with blacks such as Sen. Ted Kennedy—would not be as effective today as when Williams & Connolly’s founder Edward Bennett Williams used those tactics to help secure an acquittal for ex-Treasury Secretary John Connally back in 1975.

The weather’s nice today (although it’s supposed to get relatively cold and rainy, and I should get an umbrella). The setting is even more impressive and diverse. This courthouse is gigantic—we’re in an annex of the courthouse, and the annex alone is six stories high and 327,600 gross square feet in size. The annex was started in 2002 and completed in 2005, which means that this trial that mostly concerns construction work on a house in Alaska is being held in a building put up during roughly the same time period.

The view is also impressive outside the courthouse. If you walk out the 24-hour exit and entrance and go to the corner, you can see the back of the Capitol. If you get closer to the Capitol, you see that the lawn is closed off and posted with sign announcing that the area is being prepared for the 2009 Presidential inauguration. On the other hand, there is a well-used homeless shelter a short distance away.

Tomorrow will be a long day inside that courthouse, as opening statements begin.