This is all high opera from here on out. Every single thing anybody does on any side of the ongoing FBI investigation of political corruption in Dallas will be calculated with trials in mind.
Everything — the timing of FBI raids, the way the U.S. attorney releases or does not release documents, the public rhetoric of the investigation's main target, Dallas County Commissioner John Wiley Price — will be a grand performance aimed at a desired verdict.
The best evidence that indictments and trials are inevitable is that both sides, government and defense, appear to be talking to jury consultants already. Nobody is even thinking about trying to stave off indictments. Everybody is gearing up for trial, and gearing up means more than hitting the law books. A lot more.
John Wiley Price
The federal grand jury hearing evidence in the case is really just an investigative tool. Here's why: The FBI cannot make you turn over a document or even talk to them, nor can the U.S. attorney. You can say, "Eh, sorry, not feeling chatty today" and walk away.
"It has to be the grand jury," says Kathy Colvin, spokesperson for the U.S. attorney for the Northern District of Texas.
But that's the catch. Sure, go ahead, tell the FBI you don't feel chatty like the guy at the Observer suggested. They're going to go straight to the grand jury and get the jury to issue a subpoena. Now you either show up or go to jail.
Billy Ravkind, attorney for Price and a former federal prosecutor, says getting hauled before a grand jury is not a pleasant experience. Before you even go in, the feds ask you what Ravkind calls "the classic question."
"Would you like to be a witness or a defendant?"
You get it, right? You have just been subpoenaed to appear before the grand jury. You can't have your own lawyer in there. The FBI will have its own lawyer in there — the assistant U.S. attorney. So you go in alone and naked and face the big guns.
You can still be all horsey about it and decline to chat, in which case you'll be looking at a possible indictment and back-breaking legal expenses. Or you can chat chat chat.
The defense lawyers hate it. They think it's a stacked deck. The defense lawyers were even more unhappy when I called some of them last week and told them I had heard that the feds were already talking to jury consultants. To them, that's like the deck is stacked, shuffled and split.
"It's a disgusting statement about the judicial system and the federal courts today that prior to indictment the government contacts jury selection experts," says Tom Mills, attorney for Dapheny Fain, assistant to Price. "It makes a mockery of the grand jury."
Yeah. But the defense is doing it too. One of the biggest names in jury selection here and nationally is Dallas lawyer Lisa Blue, another former prosecutor turned defense attorney. I asked Blue if she had been contacted by anyone in the Price case about jury work.
"Yes, I definitely was contacted," she says.
I asked which side had contacted her.
"It was both," she says.
A defense lawyer confirmed for me that he had spoken to Blue. Colvin of the U.S. Attorney's Office said what they always say: "We're not going to confirm or deny that."
Blue says she told both sides she couldn't work for them because of a conflict of interest. She did not provide details.
I asked her why she thought the two sides would already be talking to jury consultants. She says one reason to contact certain experts this soon could be to keep them from working for the other side.
"If I was involved in a trial," she says, "and if I was a defendant, there are certain people who are so good I would not want them to be opposite myself."
But there's more to it than that, other consultants told me. Because they measure how different themes in a trial affect the public, jury experts offer lawyers advice about how their clients should behave before the trial ever happens. Each side acts out its story in public before the trial in order to bend the potential jury pool in its direction.
Robert B. Hirschhorn, who lives in Plano, is another nationally recognized jury consultant. He told me he has not been contacted by anyone in this case. I asked Hirschhorn what he would advise Price's lawyers, if asked. He says Price needs to use his political standing and name recognition to win acquittal the same way he has used it for years to win elections.
"There's not many people in Dallas, other than athletes, that have better name recognition than him," he says.
Hirschhorn says Price can tell his attorneys precisely which precincts in the city will produce his best jurors. "John knows what precincts he runs strong in and what precincts he runs weak in. I think he's got a bit of an advantage there."
He says he also knows exactly what Price should be doing between now and the trial: "What I think John Wiley Price ought to do is what he's done for the last 27 years — continue speaking up for the little guy."
The work of the jury experts is by no means over when a jury is chosen. In the recent murder trial of Casey Anthony, charged in the death of her 3-year-old daughter, jury consultant Amy Singer did what she calls "social media farming." She arrayed an army of interns to monitor comments on blogs and Facebook throughout the trial.
She told me she was watching bloggers, commenters and message-senders to gauge reactions from people who were on the fence about Anthony's guilt or innocence. Her social media farmers found a spike in strong negative comments from fence-sitters after George Anthony, the defendant's father, made his first appearance.
Singer says she was able to communicate immediately to the defense attorneys that the father was not liked by the fence-sitters. You may remember that vague suggestions were floated mid-trial by the defense that the father might have molested the defendant as a child.
"That was the pivotal point of the case," Singer says. "The foreman kind of acknowledged [after the trial] that we were on the right track there."
So the trial is streamed live on the Internet. Millions of people watch. They talk back and forth to each other in millions of social media messages.
The jury consultant picks a type of person to examine: the undecided fence-sitter. Her army of watchers monitors the comments. One day they all report back, "Fence-sitters hate father."
Suddenly, in the courtroom, the defense strategy swings to strongly suggest the father is somehow the bad guy. The foreman of the jury says after the trial that the role of the father was important in Anthony's acquittal.
By the way, Singer told me nobody has contacted her about the Price trial. Yet.
I asked Blue about the use of social media as a trial tactic. I thought she might be more old-school, that she might concentrate more on opinion-polling and maybe some mock trials to figure out what people are thinking.
But she was a jump ahead of me.
"This is what I think," Blue says. "Anybody who is any good is going to find out if some of the real jurors are bloggers."
I think I ran into this when I live-blogged Dallas' last federal public corruption trial, ex-city council member Don Hill's case in 2009. Every time the jury went out on a recess, I would see these vaguely anomalous comments popping up on our blog.
Sometimes they were too smart, too inside. Sometimes they were too defensive, as if someone had been personally insulted by what others were saying on the blog. I remember wondering if one commenter could have been a juror.
So, you see. The jury expert finds a real juror commenting by cell phone on a blog or on Facebook during the breaks. Now the expert has a direct pipeline into the jury box.
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I asked Blue what the end-game here should be for the defense. Are they trying to swing the whole jury to win hands-down acquittals? She says that's not where she would spend her money.
"If I were the defense lawyer, I would be doing focus groups on figuring out how to get a hung jury," she says.
One juror. One very tough, determined juror. That's what it takes to slip from the noose.
Wow. It ain't law school, is it? Wait. I didn't go to law school. How do I know? All I know is that all of it is serious from here on out. Every word they say, every move they make.