Fall from Grace?

by Donna Pendergast

September 7th, 2006, was a memorable date for me: it was my birthday (not saying which one). The date was less festive for 21-year-old Melinda Duckett, mother of a missing two-year-old toddler. Duckett later became a prime suspect in the child's disappearance. On September 7th, Duckett was questioned by the queen of tabloid talk, Nancy Grace, during what has been widely called an ambush interview. Within 24 hours, Duckett had killed herself with a shotgun at her grandfather's house. The missing child has never been found, but the legal saga ensuing from Duckett's death continues to wind its way through the courts. The crux of the lawsuit is whether Grace's confrontational style of interrogation interview was responsible for Duckett's subsequent suicide.

TROUBLE FROM THE START

Melinda and Joshua Duckett were high school sweethearts. Joshua's family history was troubled in the extreme. His father, James Duckett, was a police officer in Florida in 1987 when he was charged and later convicted for the rape, strangulation and drowning of an 11-year-old girl. For that crime, he sits on Death Row at Florida State Prison. Melinda's life was chaotic as well. Her troubled history included alleged involvement in an amateur on-line porn business.

The couple married in 2005, just before their son Trenton's first birthday. The marriage was brief and rocky. Melinda filed for divorce in June 2006. An ugly custody battle followed, with Melinda granted a temporary restraining order at one point after receiving a threatening e-mail that Joshua denies sending.

On August 27, 2006, while the couple was separated and living apart, Melinda Duckett reported Trenton missing around 9:00 pm. She claimed she discovered his disappearance during a break from watching movies with friends in another room. A cut in the window screen was the only clue left behind for police to follow.

During the investigation, police began to question the time-line Duckett gave them, noting no witnesses saw Trenton alive since he was picked up at day care on Friday, August 25th. Police later found some of Trenton's toys, photos of the child and a sonogram in the apartment complex trash bin. They began to focus on Melinda Duckett as a prime suspect.

AN ABUSIVE INTERROGATION?

On September 7th, Melinda Duckett was interviewed via telephone by Nancy Grace during a taping for the next day's show. The interview quickly became confrontational. With the subtlety of a jackal, Grace began pounding on the table, characteristically snarling and demanding that Duckett tell her where she was on the date of the disappearance and whether she had taken a polygraph. Grace also hammered on the inconsistencies in Duckett's story. The next day, Duckett killed herself after leaving a suicide note just hours before the show was to air. The show aired anyway, with a box at the bottom of the screen updating viewers that Melinda Duckett's body had been found at her grandparents' home.

In November 2006, Duckett's parents, Bethann and William Gerald Eubank, filed suit against CNN and Nancy Grace in the Lake County Florida Judicial Circuit alleging intentional infliction of emotional distress. The lawsuit claims the television show solicited an unsuspecting and emotionally unstable Duckett to appear under false pretenses. It alleges the show lured Duckett with promises and representations that her appearance would inform the public her child was missing and assist in generating tips. And it alleges there was a plan in place to surprise Duckett with accusations and verbal assaults intending to intimate that she murdered her child.

The legal theory behind the case is that Grace's aggressive questioning pushed Duckett over the edge, and that her producers had specific knowledge that Duckett was emotionally fragile to begin with. In 2007, the case was moved from the Florida state court into a federal district court, based on a jurisdictional issue. Despite the change of forum, the key issue remains whether Florida's wrongful death statute was violated. In an ironic turn, last month lawyers for Grace and CNN unsuccessfully argued to keep Grace's deposition from being videotaped, worried that the deposition might be leaked to the media -- which could then "cut and splice" and manipulate her words to alter their meaning.

The lawsuit has highlighted issues of media responsibility weighed against the talk show industry's right to free speech. But this is far from a case of first impression, and the issues raised are hardly new.

In 1995 Jonathan Schmitz (pictured left) shot and killed openly gay Scott Amedure, hunting him down two days after Amedure professed a secret crush on him during a taping of the Jenny Jones show. As the prosecutor in the criminal trial of the case, I kept up with developments in the civil trial. I watched a large portion of it after the Amedure family sued Warner Brothers, Jenny Jones and the Jenny Jones show alleging negligence and improper screening of the emotionally unstable Schmitz. Under oath in the civil trial, Jones admitted that the show didn't want Schmitz to know in advance that his admirer was a man.

A jury awarded $25 million to the Amedure family in a verdict called "chilling" by the defense and "a blow for freedom" by the plaintiffs. The verdict was later reversed by the Michigan Court of Appeals, which found that the Jenny Jones show had no duty to protect Amedure and no duty to anticipate and prevent an act of murder by Schmitz. Strangely enough, I was interviewed by Nancy Grace, then a Court TV anchor, several times after the verdict in criminal trial which followed the civil trial.

The cause of action in the lawsuit against Nancy Grace is different than in the Jenny Jones case. In the Duckett case, the alleged wrong-doing is the intentional infliction of emotional distress, rather than a negligence cause of action like that alleged by the Amedure suit. One key aspect remains the same: a celebrity and her show are the subjects of a lawsuit brought after a guest meets a violent death in the aftermath of an exploitive and humiliating on-air confrontation.

A CNN spokesman says that Nancy Grace and the show the show were providing a vital public service, bringing attention to the case for the greater good of finding Trenton Duckett. Other defenders of Grace's confrontational on-air style argue that perhaps Duckett killed herself out of guilt for killing her child rather than humiliation in an exploitive interview. They allege that Duckett went on the show willingly, and that Grace had the right to ask those questions and dig for the truth. Those critical of the ambush interview technique argue that maybe Duckett committed suicide because she was insane with grief, and Grace drove her over the edge.

Humiliating a guest for the entertainment of a nation is the key ingredient in the volatile formula of talk show amusement, devoured in millions of living rooms every day. Since TV is a mass-entertainment medium, networks have a huge incentive to satisfy their audiences' appetites. There's no shortage of participants who willingly agree to appear on sensationalist and tawdry shows. Time after time, we've seen people compromise their reputations and quality of life to be on TV. Do those who are so eager for their 15 minutes of fame ever realize it could kill them? Perhaps the saddest commentary of all is the viewing audience's seemingly insatiable appetite for cruel and sadistic voyeurism.

And the biggest irony of all? Now the ever talking head, Nancy Grace, has become the story.

Statements made in this post are my own and are not intended to reflect the views, opinion or position of the Michigan Attorney General or the Michigan Department of Attorney General.

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Jury Deselection

by Donna Pendergast

Have you ever been a part of the jury selection process or sat through a jury selection and wondered what was really going on behind the scenes? Why does the prosecutor ask the questions that she/he asks? What are the papers that the attorneys are looking at? Why do the attorneys kick off the persons that they do? What are the attorneys looking for and why?

The jury selection process is targeted towards selecting jurors who can decide the case without bias against any of the involved parties. But that doesn't mean that both sides won't be trying to select jurors who are likely to be sympathetic to their respective side or spin on the case.

Jury selection (also called jury deselection by many) is a science. Both sides analyze and interpret clues to determine who is likely to be sympathetic to their case and who is likely to be sympathetic to the opponent's case. As much as an attorney picks who serves on their jury, they are also picking who doesn't serve as well.

The jury selection/deselection process begins for the attorneys before prospective jurors ever walk into the courtroom. The background questionnaires that most jurors fill out when their summons comes in the mail are summarized in a list provided by the court to attorneys. Accordingly, the attorneys know a little bit about potential jurors before the questioning ever begins. Basic information like occupation of the prospective juror and spouse, prior contacts with law enforcement, and affiliation with agencies conducting the investigation are all things that the attorneys are looking at early on in an effort to get a feel for each prospective juror.

In an especially high-profile trial where there is a "hot button" issue or where there has been a great deal of pretrial publicity, potential jurors may also be given a more extensive questionnaire that delves more deeply into potential biases and prejudices specific to the case. In a murder case that I tried where a man was murdered after revealing a surprise gay crush on another man during the taping of an episode of "The Jenny Jones Show," the in-depth questionnaire probed deeply into the potential jurors' attitudes about homosexuality. More recently in trials that I have prosecuted, questions about extramarital affairs, the alleged promiscuity of a victim, and pretrial media coverage were all put into the more in-depth questionnaires that the prospective jurors were required to fill out well in advance of the trial.

BIG BROTHER IS WATCHING YOU



The scrutiny begins from the moment that a jury pool walks into the courtroom. Attorneys look to things like dress, demeanor, even the reading material brought into the court by the prospective jurors to assess overt as well as subtle clues that may give insight as to the personality of the juror. The attorneys try to interpret these clues to determine who may be favorable to their side and who may not be favorable.

The purpose of questioning jurors is to get the jurors talking and to elicit as much information as possible. Although the exact procedures for questioning jurors will vary by jurisdiction, the goal remains the same. The attorneys on both sides will ask questions of the jurors in a manner calculated to gain as much information as possible to allow for deselection of unfavorable jurors and retention of favorable jurors. Through the questioning process the attorneys are attempting to understand who the jurors are as persons and what is important to them as individuals in an effort to evaluate how a potential juror may react to the facts of the case at hand.

Through questioning of the potential jurors both sides also attempt to educate the members of the jury panel as to the facts and the law pertaining to the case in a favorable way. The attorneys do this by explaining the law while sizing up the prospective jurors' comfort levels as they respond to questions pertaining to the attorney's explanations of the law and hypothetical questions. The prosecution will seek to diffuse deficiencies in their case by this process of educating jurors on the law while the defense will be attempting to highlight the problems or deficiencies in the prosecution's case.

It is also imperative during questioning that an attorney gain credibility with the jury. As much as an attorney is picking a jury, the potential jurors are picking an attorney as well. It is important that the attorneys present themselves in a manner that instills confidence in the prospective jurors so that the jurors will trust them. It is the hope of the attorneys that as the trial progresses the jurors will look to them as someone who is trying to bring out the truth. When questioning potential jurors the attorneys must also be careful about how they elicit sensitive or embarrassing information in the presence of the whole jury panel to avoid alienating potential favorable jurors.

As jury selection/deselection progresses the attorneys are also trying to assess how potential jurors may interact together. The dynamics of who will be a leader and who will be a follower as well as how different personalities may interact together are all important considerations for the attorneys to evaluate as they strategize on how to use their preemptive challenges tactically.

Preemptory challenges allow an attorney to reject a prospective juror without giving a reason as long as the rejection is not based on race, gender, religion, or sexual orientation. The number of preemptive challenges granted to each side is the same but varies in accordance with the severity of the charges. The court rules determine how many charges are allotted to each side. In more serious criminal charges such as homicide, each side gets more preemptive challenges than they do for trials on less severe charges.

Both sides in a criminal trial are granted an unlimited number of challenges for cause. A challenge for cause is exercised by an attorney when they can articulate a reason why a juror cannot be fair and impartial in a specific case.

It has long been understood that jurors come into a courtroom with preconceived opinions formed as a result of their life experiences. Jury selection/deselection seeks to ensure that both sides have an opportunity to screen a jury pool and ask questions that will uncover juror bias.

So the next time that you report for jury duty, report with the knowledge that you are indeed being watched and scrutinized for clues. If you get kicked off of a jury don't take it personally, there may be reasons known to the attorneys that make you an unsuitable juror for one case but may make you the perfect juror for the case in the courtroom next door.

Statements made in this post are my own and not intended to reflect the views, opinions, or position of the Michigan Attorney General or the Michigan Department of Attorney General.

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