The sexual assault trial of Hollywood mogul Harvey Weinstein had many twists and turns and some of the actions of his attorney, Donna Rotunno, left Joel Cohen, with Stroock & Stroock & Lavan LLP, and Columbia Law’s Jennifer Rodgers questioning if she violated legal ethics.
During the trial, Rotunno spoke on a podcast with the New York Times and wrote a Newsweek essay about the trial. Cohen calls these actions “unthinkable.” They talk it over and hammer out possible steps courts can take to prevent jury tampering in the age of social media—including making jurors take an oath and sequestration.
Listen to their full conversation:
Joel Cohen: Jennifer, there’s an emerging problem in high profile trials of late. Harvey Weinstein’s principal trial lawyer, Donna Rotunno, did what, for me at least, the unthinkable. She participated in a New York Times (“The Daily”) podcast during the trial. In it, she talked about the case and the #MeToo movement generally. Then just when the jury was about to deliberate, she wrote an essay for Newsweek in which she basically spoke directly to the jurors who might read it or read reports about it that were picked up in the tabloids.
She said, in effect, “You need to pay attention to the evidence in the courtroom. That’s your duty. But my client is innocent.” It was sort of unthinkable to me that a lawyer would actually speak directly to the jury when the jurors are instructed not to look or listen to media about the case. So, she was taking the bull by the horns in doing this. What do you think about a lawyer doing that?
Jennifer Rodgers: It’s just so shocking when you first hear about it. You’re not supposed to try to communicate with the jury outside of what you do in the actual court room, of course. Although, it’s interesting because I suppose she really didn’t say anything different from what she would be allowed to say in a closing. She can say that her client is innocent and that the jurors should acquit him and all those things.
What it really raises is this notion that she obviously feels the jurors aren’t following the judge’s instructions to avoid media. Maybe what she’s trying to do is just put a little drop of “pro-Harvey” thought out there to kind of counter all of the anti-Harvey stuff in the media. Not to say, that what she did was okay, and I don’t know if there’s been an ethical complaint made against her, but there may be. It seems, obviously, improper to do; but you wonder if that’s really her goal, because it’s not as if she said something that she wouldn’t be allowed to say to them.
Cohen: In the earlier podcast published and aired at the Times, though, she was asked whether she herself had been sexually abused and she said, notably, about that “I would have never put myself in that position.” That was a general attack on the women who testified against Weinstein, arguing, basically, that they allowed themselves to be put in that position with Weinstein. And that was a statement beyond what she said in the essay that “my client is innocent” or what she could have said in court.
Rodgers: And she would not have been allowed to say that, would not have been allowed to raise that in court, for sure. Surely far worse.
Cohen: Yes, even worse. But as a practical matter when she does that kind of thing, she’s basically appealing to the obvious—that jurors don’t follow a judge’s instructions. In other words, if you try a high-profile case like Weinstein—or I tried a case some years back involving the New York Assembly Speaker Sheldon Silver—or Roger Stone, confidante of President Trump who has been on trial recently, it’s inconceivable that jurors aren’t watching the television, reading the press, or at least talking to their friends or families about what’s happening in the court room.
Is it remotely possible in those high profile cases that the jurors are actually following the judge’s instructions?
Rodgers: I’m sure some of them do, the ones who are real rule followers, and avoid talking to people in their lives about the cases, as instructed. But what’s changed so much over the last few decades is the availability of so much information. You almost can’t get away from it. It used to be if you just avoided the evening news and the newspaper itself then you wouldn’t get news about a high profile case that was being covered.
But now it’s on your iPhone, on screens in office buildings, it’s everywhere. And I don’t know how we try to counter that problem or take care of that.
Cohen: How about this? A judge, particularly in a high profile case, puts on the record every day, “Has anyone been exposed to the media on our case. Or have talked about the case and the jurors?” Typically, or almost always, every juror says “No, we have not,” and the judge accepts that and moves on, and does the same thing every morning.
The judge would swear in all the jurors every single morning individually, “Jennifer Rodgers, did you watch the media last night? Did you talk to anybody about the case? Please state under oath whether you have.” Next juror. Next juror. Next juror. So, each juror knows the night before when they leave the courthouse that they’re going to be asked under oath, individually, to do that, to swear under oath.
As lawyers would call it, it might have an in terrorem effect. It might, at least sometimes, help stop jurors from watching the media or talking to their family about the case.
Rodgers: A couple of thoughts. First, how much time might that take? If it really actually saved the trial from being infected by bias, then it’s worth it; but are you going to spend 10 minutes to 15 minutes every morning doing this? Its going to lengthen the proceedings, and judges might not like that.
And, are jurors going to tell the truth? They do know they’re under oath—they get a reminder about this as they leave for the day. Usually the judge will say “Don’t forget, don’t discuss the case with anyone, don’t watch any media, we’ll see you tomorrow morning.”
Is it brow beating of the jurors? Judges are usually very solicitous of juries; I wonder if they’d be willing to do what sounds a little bit like an accusation every morning.
Cohen: On the other side—and I agree that judges like to keep a good relationship with jurors—but to avoid the kind of problems that you’ve seen in the Stone case or in other high profile cases, it’s probably worth doing. In my mind, 10 or 15 minutes is not a big deal when you’re talking about the potential juries getting infected. I agree with you that’s not necessarily going to stop them from doing it, but it may decrease the possibility of it.
Rodgers: And would the judge decide to do this only in the very high-profile cases where there is likely media coverage? Or would you do the same so jurors are questioned about any case? It doesn’t have to be a high-profile case for them to want to do that.
Cohen: I think the problem exists in non-high profile cases, too. It’s worsened because of social media as you say. I suspect being on a jury is like a big deal for any citizen and they’re likely to talk to their spouse at night. In a case about a car accident, a spouse might say, “Well that’s crazy, she clearly wasn’t wearing her seatbelt under those circumstances.” The spouse who isn’t on the jury doesn’t have access to all the other information aired at the trial and is offering an uneducated opinion that is influencing the spouse in the courtroom who has heard all the evidence.
Rodgers: That’s true. But that’s been the potential problem since the beginning of time. So is this now a solution in search of a problem when it comes to this piece of it? Or should it be something limited to those cases that—given the now-unavoidable social media and the inability to avoid information about a case—where you then have a heightened concern. The concern being that they’re not only seeing stuff about the case but are probably more likely to discuss it with people.
And I guess the next question is: Do you want to actually make it a rule? Would this be kind of guidance? How would you suggest it be implemented?
Cohen: Well, I could see it being implemented at least in high-profile cases by a judge telling the whole jury panel, before a jury is selected, that “I’m sorry to pry into your life this way.” Of course, the judge is going to want to do it softly, “But because this case is a high-profile case, I’m going to have to do that with you every single morning. Does anybody have a problem with that?” And present it as a procedure of the court and “I have to do it.” I actually think jurors would understand that.
Like I said, I don’t think it’s a panacea, but the problem is becoming more pronounced. And maybe I’m jaded by the fact that I’ve tried—and you’ve tried high-profile cases.
Rodgers: I think I like your proposal insofar as it relates to very high-profile cases which get a lot of attention in the media including social media, where it’s going to be very hard for the jurors to not see the views that are out there outside the courtroom. So I like that for those kinds of cases. I don’t know that I think that this needs to implemented across the board in all cases.
Cohen: An alternative, I guess is sequestered jurors for cases like Weinstein or Flynn or Silver. But of course, sequestered jurors usually turn out to be pro-prosecution. What do you think about sequestered jurors in high-profile cases?
Rodgers: Sequestering is tough. It’s resource intensive. It’s hard on the jurors. And I think, you’re probably right, sequestered jurors tend to favor the prosecutors. Although, if you consider the defense’s view on it, it they’re more concerned about their jury being sequestered, and therefore more likely to convict so they can get out of there, they can say that. They might be more concerned with the media impact. So you could take their views on it into account when you’re thinking about sequestering.
Cohen: The problem of course with sequestering a jury is that it’s really imposing on the jurors. Judges don’t want to do that because the case, say Weinstein, can go on for a month or more and you take the juror away from family and whole life. It’s really imposing. In the O. J. Simpson case there was a sequestered jury that went on forever.
Rodgers: And that impacts who sits on the jury. I mean who can do that sort of jury service? That impacts the jury pool. The jury you end up seating have to be willing and able to do that sort of duty. So sequestering is too extreme a solution, probably.
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Joel Cohen is senior counsel at Stroock & Stroock & Lavan LLP. Previously, he served as a prosecutor at the New York State Special Prosecutor’s Office and at the Department of Justice’s Organized Crime & Racketeering Section. He is an adjunct professor of law at both Fordham and Cardozo law schools, teaching “How Judges Decide,” a class based on his book, “Blindfolds Off: Judges on How They Decide” (ABA 2014).
Jennifer Rodgers is a lecturer-in-law at Columbia Law School where she teaches courses in the public corruption field and the former executive director of the Center for the Advancement of Public Integrity at CLS. She is also a CNN legal analyst and a former federal prosecutor.