“Finis origine pendet,” my high school motto, means “The end depends upon the beginning.”
And so it is for a calm and confident Joe Nacchio as he scans the faces of individuals who will, in a matter of hours, become his jurors. More, even, than the trial judge, these people will become the only judges that matter because it is they who will speak with one voice and say “guilty” or “not guilty.”
Nacchio’s end, indeed, depends upon this beginning.
Jury selection is rarely seen for the high-stakes gamble it is. It is usually portrayed as a necessary evil that must be endured but an event soon forgotten as opening statements are made and the first witness is called. Although the players recognize that jury selection is all-important, and although thousands upon thousands are spent on jury consultants and other soothsayers, the fact is that jury selection is a crapshoot, no more, no less.
Prospective jurors fill out questionnaires and say whether they have jobs, are married or divorced, watch television, read newspapers, have opinions on the case, know any of the parties or lawyers, can spend the month or two the trial might take, or have formed opinions about the guilt or innocence of the accused, along with other snapshots of who they are.
But no questionnaire can tell Nacchio or his lawyers, or the government’s lawyers, for that matter, who they really are, what psychological quirks might produce a guilty verdict or what prejudices might preclude any chance for conviction.
I once tried a criminal case in federal court in which there was an 11-1 vote for conviction after 10 minutes of deliberations. The vote never changed, and a hung jury resulted when the holdout juror said, “I hate the government. I don’t believe a word they say, and I would never convict anyone the government says is guilty. Ever!”
Jury selection in that case was pretty much as thorough as the process in the Nacchio case. A good judge, good lawyers, the right questions – and a juror who would do anything to get on the jury just to hurt the government.
No one knows what the Nacchio jurors will bring to the courtroom. They may or may not be fair and impartial. The lawyers for both sides, and the judge, for that matter, are calling on every instinct they have, every telltale gut-reaction hunch, based on external observations and superficial guesses, they can muster. They are profiling at the highest levels. And the end depends upon who is right.
Anthony Accetta is a former assistant U.S. attorney in New York and former first assistant attorney general and special prosecutor in Colorado. He has prosecuted many white-collar- crime cases and, through his Denver-based Accetta Group, helped investigate investment banker Frank Quattrone, who later was prosecuted for obstruction of justice.
