1
00:00:00,120 --> 00:00:03,560
Speaker 1: What's up everyone, and welcome back to the program. In

2
00:00:03,640 --> 00:00:06,040
this episode, we're picking up where we left off with

3
00:00:06,120 --> 00:00:10,599
the declaration of Brian Edelman in support in support of

4
00:00:10,679 --> 00:00:14,880
Brian Kolberger. Given these factors, it's important to ferret out

5
00:00:15,000 --> 00:00:19,239
during Vordere the full extent of exposure to pre trial publicity,

6
00:00:19,559 --> 00:00:23,960
case specific attitudes, impressions of the defendant, and potential motivations

7
00:00:24,000 --> 00:00:28,039
to serve. However, the prejudicial effects of pre existing attitudes

8
00:00:28,079 --> 00:00:31,839
can occur at both a conscious and subconscious level, meaning

9
00:00:31,920 --> 00:00:35,679
jurors who profess impartiality may not be fully aware of

10
00:00:35,719 --> 00:00:37,880
their bias or how it may affect them as the

11
00:00:37,920 --> 00:00:41,719
trial unfolds. This can make it difficult to identify potential

12
00:00:41,759 --> 00:00:45,640
prejudice during the jury selection process. The Supreme Court is

13
00:00:45,679 --> 00:00:49,679
recognized the limitations of the Vardeer process as a remedy

14
00:00:49,799 --> 00:00:53,759
where potentially prejudicial pre trial publicity is an issue. In

15
00:00:53,960 --> 00:00:57,759
Irvin versus Dowd, the Court concluded no doubt each jur

16
00:00:58,200 --> 00:01:00,560
was sincere when he said that that he would be

17
00:01:00,560 --> 00:01:04,480
fair and impartial to petitioner. But the psychological impact requiring

18
00:01:04,519 --> 00:01:08,159
such a declaration before one's fellows is often its father,

19
00:01:08,599 --> 00:01:11,840
where so many times admitted prejudice, such as a statement

20
00:01:11,879 --> 00:01:15,879
of impartiality, can be given little weight. As one of

21
00:01:15,920 --> 00:01:18,280
the jurors put it, you can't forget what you heard

22
00:01:18,280 --> 00:01:21,359
and see with his life at stake. It's not requiring

23
00:01:21,400 --> 00:01:25,480
too much that petitioner be tried in an atmosphere undisturbed

24
00:01:25,480 --> 00:01:28,200
by so huge a wave of public passion, and by

25
00:01:28,239 --> 00:01:30,719
a jury other than one in which two thirds of

26
00:01:30,760 --> 00:01:34,400
the members admit before hearing any testimony, to possessing a

27
00:01:34,439 --> 00:01:38,200
belief in his guilt. Research on Vordre shows that these

28
00:01:38,239 --> 00:01:44,920
concerns are justified. Jurors are often reluctant to disclose relevant experiences, relationships,

29
00:01:45,000 --> 00:01:48,159
or opinions that may lead to bias, even when pre

30
00:01:48,200 --> 00:01:51,799
trial publicity is not an issue. One study found that

31
00:01:51,879 --> 00:01:54,439
while seventy one percent A jurors had a fixed opinion

32
00:01:54,519 --> 00:01:58,680
regarding guilt, only fifteen percent admitted so during the Bordere

33
00:01:59,200 --> 00:02:02,480
Marshall obtained questionnaires from two hundred and seventy seven former

34
00:02:02,599 --> 00:02:05,599
jurors in two counties and found that eighteen percent of

35
00:02:05,599 --> 00:02:11,080
those jurors admitted to withholding information during Bordeer. Seltzer reported

36
00:02:11,080 --> 00:02:14,439
that approximately thirty nine percent A jurors who were interviewed

37
00:02:14,439 --> 00:02:17,520
after trial should have come forward in response to questions

38
00:02:17,560 --> 00:02:22,360
regarding crime, victimization, or knowledge of police officers during jury selection,

39
00:02:22,759 --> 00:02:26,280
but failed to do so. Many aspects of the large

40
00:02:26,319 --> 00:02:30,960
group vorder format deterred jury candor. Federal Court Judge Gregory

41
00:02:31,039 --> 00:02:35,280
Maize published his findings after experimenting with an expanded vardeer

42
00:02:35,319 --> 00:02:39,680
procedure in thirty federal criminal trials over nine month period,

43
00:02:39,800 --> 00:02:44,280
which included individual interviews with every veneer member who failed

44
00:02:44,280 --> 00:02:48,280
to respond to his general opening questions. Judge Maze reported

45
00:02:48,280 --> 00:02:51,479
that approximately twenty eight percent of members of each panel

46
00:02:51,680 --> 00:02:54,360
failed to respond to the dozens of questions posed an

47
00:02:54,360 --> 00:02:58,560
open court, an average of about sixteen people per trial. However,

48
00:02:58,639 --> 00:03:01,360
when questioned in private, one in five of these silent

49
00:03:01,479 --> 00:03:05,039
jurors disclosed personal information that was relevant to the case.

50
00:03:05,560 --> 00:03:08,360
In ninety percent of the trials, between one and four

51
00:03:08,400 --> 00:03:11,400
of these silent jurors expressed bias that led to their

52
00:03:11,439 --> 00:03:15,599
removal for cause. A search of appellate opinions shows that

53
00:03:15,719 --> 00:03:19,560
juror disclosure has led to several mistrials by undermining a

54
00:03:19,599 --> 00:03:23,639
defendant's fairright to trial. For example, the US versus Colombo,

55
00:03:24,199 --> 00:03:26,719
eight sixty nine f. Dot two D one forty nine,

56
00:03:26,800 --> 00:03:30,719
second Circuit, nineteen eighty nine, a jura failed to disclose

57
00:03:30,759 --> 00:03:33,560
when asked during vordir that her brother in law was

58
00:03:33,560 --> 00:03:36,159
a lawyer for the government. She did not mention this

59
00:03:36,199 --> 00:03:38,199
fact because she wanted to sit in on the jury

60
00:03:38,240 --> 00:03:42,039
for the case. In dier versus called her. On one

61
00:03:42,120 --> 00:03:45,280
fifty one f Dot three D nine seventy ninth Circuit

62
00:03:45,360 --> 00:03:48,560
nineteen ninety eight, a jur answered no when the panel

63
00:03:48,680 --> 00:03:50,840
was asked if anyone had ever been the victim of

64
00:03:50,840 --> 00:03:54,280
a crime. After the guilt phase, the defense learned that

65
00:03:54,639 --> 00:03:57,520
her brother had been shot and killed six years earlier.

66
00:03:57,919 --> 00:04:00,840
When questioned, she told the judge that she answered no

67
00:04:01,039 --> 00:04:03,719
because she thought the shooting was an accident, not a crime.

68
00:04:04,360 --> 00:04:07,280
Her brother had been pistol whipped four times and shot

69
00:04:07,280 --> 00:04:09,800
in the back of the head. Problems such as these

70
00:04:10,039 --> 00:04:13,599
have also been reported in high profile cases. For example,

71
00:04:13,599 --> 00:04:17,240
in the twenty twelve murder trial of Matthew Stebbens, who

72
00:04:17,240 --> 00:04:19,560
had been charged in a shooting death of a homeless shelter,

73
00:04:20,000 --> 00:04:23,879
a mistrial was declared after a juror announced during deliberations

74
00:04:24,120 --> 00:04:27,279
that she had previous issues with violent crime. One of

75
00:04:27,279 --> 00:04:29,600
her children had been shot in the head. She failed

76
00:04:29,680 --> 00:04:32,399
or raise her hand during jury's selection when asked if

77
00:04:32,399 --> 00:04:35,240
anyone had been the victim of a violent crime. According

78
00:04:35,240 --> 00:04:37,160
to her, she did not think it was going to

79
00:04:37,160 --> 00:04:39,680
be an issue. A six and a half million dollar

80
00:04:39,839 --> 00:04:43,600
judgment was overturned in the high profile police corruption lawsuit

81
00:04:43,639 --> 00:04:47,160
against the public defender surrounding the Rampart Division in Los

82
00:04:47,199 --> 00:04:50,519
Angeles County. It was uncovered after the verdict that one

83
00:04:50,560 --> 00:04:54,360
of the jurors, Jennifer Salinis, had concealed knowledge of the scandal.

84
00:04:54,439 --> 00:04:57,319
During jury's selection, she did not raise her hand when

85
00:04:57,360 --> 00:05:00,879
asked if anyone had some knowledge of the events surrounding

86
00:05:00,879 --> 00:05:04,319
the Rampart Division. Later, it was discovered that Selinus had

87
00:05:04,319 --> 00:05:07,199
played a prominent role in a movie titled Gang Wars

88
00:05:07,240 --> 00:05:10,360
that was based on the Rampart Division. Other jurors on

89
00:05:10,399 --> 00:05:13,000
the panel corroborated that she was very familiar with the

90
00:05:13,040 --> 00:05:16,439
scandal and discussed aspects that were not in the evidence.

91
00:05:17,439 --> 00:05:20,600
Prospective jurors who had been exposed to prejudicial pre trial

92
00:05:20,639 --> 00:05:24,120
publicity enter the courtroom with case specific knowledge gleaned from

93
00:05:24,120 --> 00:05:27,439
the media, social media, and discussions with friends and family

94
00:05:27,480 --> 00:05:31,199
members and coworkers. Uncovering the full extent of jurors case

95
00:05:31,199 --> 00:05:34,560
specific knowledge and opinions, and high profile cases can be

96
00:05:34,600 --> 00:05:38,600
extremely difficult jury selection as a judicial remedy to address

97
00:05:38,600 --> 00:05:42,360
such bias relies on two factors, one that jurors can

98
00:05:42,399 --> 00:05:45,600
access their source of bias and two are willing to

99
00:05:45,639 --> 00:05:49,360
report it. In one study where researchers tested the effectiveness

100
00:05:49,360 --> 00:05:54,279
of extended Vardere, participants in the experimental condition were exposed

101
00:05:54,279 --> 00:05:57,839
to pre trial publicity a week before the experiment. Prior

102
00:05:57,879 --> 00:06:00,680
to viewing a trial, they were subjected to minimal or

103
00:06:00,720 --> 00:06:05,959
extended wardere. The attorney in the extended Wardeer condition explained

104
00:06:06,000 --> 00:06:10,319
how pre trial publicity may inappropriately impact decision making, as

105
00:06:10,480 --> 00:06:13,279
jurors to hold each other accountable for not discussing pre

106
00:06:13,319 --> 00:06:17,839
trial publicity, obtain public commitments, debates, their verdicts solely on

107
00:06:17,959 --> 00:06:21,000
the evidence presented in court, and to ensure that fellow

108
00:06:21,120 --> 00:06:25,199
jurors did the same. The researchers ultimately found that educating

109
00:06:25,279 --> 00:06:28,959
jurors on potential impact of pre trial publicity did not

110
00:06:29,040 --> 00:06:34,040
eliminate the effects of pre trial publicity. High profile cases

111
00:06:34,160 --> 00:06:37,639
also create a unique challenge during jury selection known as

112
00:06:37,639 --> 00:06:42,480
the minimization effect. This concept refers to prospective jurors attempts

113
00:06:42,519 --> 00:06:44,959
to minimize the full extent of their exposure to pre

114
00:06:45,000 --> 00:06:49,279
trial publicity. During Bardeer perspective, jurors try to downplay their

115
00:06:49,279 --> 00:06:53,040
knowledge of the case using qualifiers such as just nothing

116
00:06:53,040 --> 00:06:56,600
other than only a little bit and that's all. In

117
00:06:56,800 --> 00:07:01,240
archival study that analyze the jury selection transcripts from five

118
00:07:01,680 --> 00:07:05,720
high profile cases, sixty nine percent of prospective jurors used

119
00:07:05,720 --> 00:07:10,879
minimization language when questioned by the judge or attorneys. Another

120
00:07:11,040 --> 00:07:15,040
challenge in cases with significant media coverage surrounds the difficulty

121
00:07:15,160 --> 00:07:19,079
jurors have during vorder to recall every detail they have read, seen,

122
00:07:19,160 --> 00:07:22,079
or heard about the case. These types of open ended

123
00:07:22,160 --> 00:07:26,480
recall questions require significant cognitive effort and often result in

124
00:07:26,560 --> 00:07:31,480
incomplete recollection. This phenomenon is an inherent limitation in how

125
00:07:31,600 --> 00:07:35,079
memory works. For example, if someone is asked to recall

126
00:07:35,160 --> 00:07:38,160
everything they know about the movie Star Wars, their description

127
00:07:38,879 --> 00:07:42,879
would likely miss important details they are familiar with. Memory

128
00:07:43,000 --> 00:07:47,120
is much more accurate when answering recognition questions have you read, seen,

129
00:07:47,199 --> 00:07:51,040
or heard if Darth Vader was Luke Skywalker's father. This

130
00:07:51,120 --> 00:07:54,839
concern is not mere speculation in a twenty seventeen Change

131
00:07:54,839 --> 00:07:58,759
of Venue hearing in Texas. Community residents exposed to detail

132
00:07:58,839 --> 00:08:02,759
pre trial publicity over several years were called as witnesses.

133
00:08:03,360 --> 00:08:05,600
During the hearing, they were asked to recall everything that

134
00:08:05,639 --> 00:08:08,879
they knew about the case. Following the recall question, they

135
00:08:08,879 --> 00:08:12,959
were asked a number of recognition questions about specific prejudicial

136
00:08:13,279 --> 00:08:17,680
and potentially inadmissible media items they failed to mention. The

137
00:08:17,720 --> 00:08:22,600
hearing demonstrated the limitation and memory question can you tell

138
00:08:22,639 --> 00:08:24,920
the court the facts that you know about the state

139
00:08:24,920 --> 00:08:30,000
of Texas versus John Feet as it relates to Irene Garza? Answer?

140
00:08:30,079 --> 00:08:34,039
Description of basic facts? Question is that it? Answer? Let's see,

141
00:08:34,159 --> 00:08:38,600
I believe so. Question Miss Prez. Have you read, seen

142
00:08:38,720 --> 00:08:41,840
or heard about John Feet giving a confession to a priest?

143
00:08:42,120 --> 00:08:45,759
Answer yes, question, and you didn't mention that a few

144
00:08:45,799 --> 00:08:49,080
minutes ago? Answer I'm sorry, there were two I remember

145
00:08:49,559 --> 00:08:51,879
they mentioned that they were two confessions that he made

146
00:08:51,919 --> 00:08:54,559
to two priests. Question Okay, have you read, seen or

147
00:08:54,600 --> 00:08:57,720
heard about whether or not Miss Irene Garza was alleged

148
00:08:57,960 --> 00:09:02,080
to have been raped? Answer? Yes, I read that. Question now,

149
00:09:02,120 --> 00:09:05,039
having refreshed your memory a few minutes ago. Are there

150
00:09:05,080 --> 00:09:07,200
other facts that you have read or heard that you

151
00:09:07,240 --> 00:09:09,919
haven't told the court about. Answer I don't believe so.

152
00:09:10,360 --> 00:09:13,200
Question Okay, have you read or heard that John Feet

153
00:09:13,639 --> 00:09:17,000
was transferred to a monastery? After this answer, I did

154
00:09:17,039 --> 00:09:21,240
read that. Yes. This limitation and memory recall has been

155
00:09:21,360 --> 00:09:25,840
demonstrated in several high profile cases around the country. For example,

156
00:09:26,440 --> 00:09:29,600
in a change of venue survey in Sonora, California, ninety

157
00:09:29,639 --> 00:09:33,120
five percent of survey respondents recognized at least one additional

158
00:09:33,159 --> 00:09:36,639
detail reported in the media from the close ended recognition

159
00:09:36,759 --> 00:09:39,639
questions that they fail to mention in the open ended

160
00:09:39,679 --> 00:09:43,519
recall question and your identical trend ninety six percent was

161
00:09:43,559 --> 00:09:47,639
found in another high profile case in Nashville, Tennessee. For example,

162
00:09:47,679 --> 00:09:50,279
when asked have you read, seen, or heard about the case,

163
00:09:50,600 --> 00:09:54,320
one respondent answered bits and pieces on the news. They

164
00:09:54,360 --> 00:09:58,120
were just talking about the case. However, he later recognized

165
00:09:58,159 --> 00:10:01,399
several media items, including one the shooting was captured on

166
00:10:01,519 --> 00:10:04,559
video by surveillance cameras in the area and played on

167
00:10:04,600 --> 00:10:08,039
the television, news, and internet, and two the public approved

168
00:10:08,039 --> 00:10:10,720
a ballot measure in the last election to create a

169
00:10:10,799 --> 00:10:14,960
community oversight board to monitor the Metro Nashville Police Department.

170
00:10:15,480 --> 00:10:19,679
Both were prejudicial items widely reported in the media. A

171
00:10:19,799 --> 00:10:22,559
similar pattern was found in this case. When asked if

172
00:10:22,600 --> 00:10:25,000
they had read, seen, or heard about the case, Leayta

173
00:10:25,120 --> 00:10:28,559
County survey respondents reported an average of just one point

174
00:10:28,600 --> 00:10:32,759
six details. However, ninety six percent of survey respondents later

175
00:10:32,799 --> 00:10:36,120
recognized at least one additional media item they fell to

176
00:10:36,200 --> 00:10:39,679
mention in their open ended answer, and recognized an average

177
00:10:39,679 --> 00:10:44,000
of four point nine additional media items. Many survey respondents

178
00:10:44,120 --> 00:10:48,519
used minimization language or incomplete responses when asked what they

179
00:10:48,559 --> 00:10:51,639
knew about the case. Most of these prospective jurors later

180
00:10:51,720 --> 00:10:55,279
recognized items widely reported in the media and tested in

181
00:10:55,320 --> 00:10:59,200
the survey sea table below. For example, just eight percent

182
00:10:59,399 --> 00:11:02,559
of Laytaki County survey respondents mentioned that police found the

183
00:11:02,639 --> 00:11:05,200
knife sheath near one of the victims when asked the

184
00:11:05,200 --> 00:11:09,080
standard open end did recall question. However, eighty one percent

185
00:11:09,200 --> 00:11:12,559
later recognized this media item when asked, have you read, seen,

186
00:11:12,639 --> 00:11:15,639
or heard if police found the knife sheath on the

187
00:11:15,639 --> 00:11:18,600
bed next to one of the victims. This finding is

188
00:11:18,600 --> 00:11:22,600
particularly concerning given that seventy two percent of survey respondents

189
00:11:22,799 --> 00:11:25,759
familiar with the media item believe that Brian Kolberger is

190
00:11:25,799 --> 00:11:29,120
guilty of murder, and fifty five percent reported that they

191
00:11:29,120 --> 00:11:32,799
would have a difficult time convincing them otherwise. All right,

192
00:11:32,840 --> 00:11:34,679
that's going to do it for this episode. In the

193
00:11:34,720 --> 00:11:36,840
next episode, we're going to pick up with A similar

194
00:11:36,879 --> 00:11:40,960
pattern was found with other prejudicial media items. All of

195
00:11:40,960 --> 00:11:43,399
the information that goes with this episode can be found

196
00:11:43,679 --> 00:11:44,759
in the description box.