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                              Black's fate may already be set
                                Jury 'tired': observers


  
Mary Vallis
NationalPost.com
Saturday, May 12, 2007


CHICAGO - There she is in the front row, the young bottle blonde chewing a thick wad of pink chewing gum. She is holding a pen decorated with cheery red feathers that wiggle as she doodles.

She is one of the 17 jurors who have spent the past eight weeks listening to hours of dry courtroom testimony at Conrad Black's trial, where such words as "audit committee," "non-compete agreement" and "proxy statement" are the highlights of any given day. At times, she bops herself on the nose with the pen and runs its soft feathers along her cheek as she stares into space.

One can only imagine what Lord Black is thinking as he watches the blonde blow bubbles while David Radler points the finger of blame at him. She has the power to make a decision to send him to jail for a very long time.

Experts in jury behaviour say it is possible the jurors have already made up their minds. And their apparent lack of interest in the testimony may bode well for the defence. The length of the trial, compounded by its white-collar subject matter, make it uninteresting and perhaps difficult for jurors to understand, said Dr. James Ogloff, a Canadian expert in jury behaviour and decision-making.

"Once they've heard quite a lot of evidence, even though they're not supposed to, they typically do express a view that they've made their minds up," said Dr. Ogloff, director of the Centre for Forensic Behavioural Science at Monash University in Melbourne.

The jurors' behaviour may be exactly what the defence needs to be successful: Their confusion may lead to reasonable doubt, he said.

The blonde is not the only one whose antics have captured the attention of trial spectators. There is also the sleepy juror -- a middle-aged black woman who sits behind her in the back row and appears to be dozing.

As Mr. Radler discussed the sale of American Trucker this week -- a key transaction in the case -- she slowly closed her eyes and her head drooped, until it nearly touched her chest and then -- snap! -- she brought her head up and opened her eyes. And then her lids slowly closed, and her head dropped once again.

When the juror closed her eyes again on Thursday during Edward Greenspan's combative cross-examination, the next juror over gave her a nudge.

"Greenspan has an ability and tendency to fill a room and that is wearing on the jury," said Hugh Totten, a Chicago- based attorney who has been attending the trial. "These people are tired. They've heard from the star witness and now they want to move on."

There are, of course, jurors who are paying close attention. There are four attentive men in the jury box who always make a point of sitting in the front row.

Another perky blonde woman always sits at the end, as close to the witness stand as possible, and swivels her chair so her back is to the public gallery and she can look directly at whoever is testifying.

Yet it can take only "a quirky juror" who disagrees to keep a jury from a conviction, said Jacob Frenkel, a former federal prosecutor and former enforcement lawyer with the U.S. Securities Exchange Commission who has been following the trial.

He cited the first trial of Tyco executives in 2004, in which the judge declared a mistrial. One of the jurors later said she would have been the sole holdout for an acquittal, which would have led to a hung jury.

But Mr. Frenkel warned it is far too early to come to any conclusions about the fate of Lord Black. "You cannot interpret the person's disposition merely by the person's demeanor in the jury box," Mr. Frenkel said.


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