Cybertrial Post-Mortem

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CyberTrial - Our Process - Ken & Aaron - Prosecution

Wolf court.jpg

Introduction

This mock trial, conducted in Second Life, was based on the real life situation of Josh Wolf, a self-proclaimed citizen-journalist. Wolf had been imprisoned after being held in contempt of court for failing to produce video footage under supoena. The federal prosecutors seeking the footage, which was filmed during a anti-war/anti-globalization protest, contained evidence of an assault on a police officer which occurred during as the protest escalated into chaos and violence.

The transcript of the proceedings can be found here: cybertrial_transcript


Jury Questions

During pre-trial conferences, the prosecution and defense discussed with the judge (Professor Nesson) what questions should be presented to the jury. The prosecution decided early on not to challenge whether there was any protectible first amendment interest at all -- but we agreed to leave this question in as serving a public education function. We agreed to the phrasing of the second and third questions, because they did not refer to jail time. This was critical, because we did not want the trial to be about what the appropriate method for enforcing contempt of court might be (e.g. fines versus jail time). We felt it would be extremely difficult to prevail if this issue were presented to a jury (notably, in real life, there is no jury, since the issues at stake are pure matters of law, not fact, and the proceedings were not held in the context of a trial). Rather, the jury was only supposed to balance the weight of the interests at stake, leaving it for the court to decide on the penalty. As we will see, neither the defense nor the court stayed true to this agreement, leading to the expected result.


[13:10] Eon Berkman: Is there a protectble first amendment interest in this case?

[13:11] Eon Berkman: If you answer yes to question #1, then you must decide whether the State’s interest in investigating and prosecuting crimes initially outweighed mr. wolf’s first amendment interest in not surrendering the source material.

[13:11] Eon Berkman: If yes to this question, then you must decide whether the State’s interest in investigating and prosecuting crimes still outweighs the first amendment interest in not surrendering the source material?

Our Theory of the Case

Wolf slide 1.jpg

We did not want to engage in a battle that pitted the government’s police power versus the First Amendment in broad, abstract terms. We felt that in this day and age such a battle would be hard on our side. Given the current media environment and a general perception amongst some that the government is “using fear to curtail our civil liberties,” general arguments on the issues would be losers for us. This is especially true with the a jury composed of Second Life residents, who are more likely to have libertarian sentiments than the general population is.

Furthermore, we were playing the roles of government lawyers. The government lawyer serves the public interest and his purpose must not be to simply get a conviction or make all possible arguments against the other side. The government lawyer must represent the public interest.

Thus, we did not want to argue that the government’s interest in preventing crime should always trump the freedom of speech. We decided to argue only that on the specific facts of this case, the government had a good reason to seek the subpoenaed material and that the interest in prosecution should prevail.

We decided to present the argument why the government had a very good reason to seek Josh Wolf’s outtakes. The police statements describe many of the same events that appear in the video that Josh Wolf released. Yet the video has a gap at the time when the alleged assault occurred. Since the statements and the video correlate so well except for this gap at the time of assault, the government has reason to believe the video was edited to remove evidence of the assault on Officer Shields.

Trial Strategy

Emotion and Reason

A persuasive argument should appeal to both the mind and the heart. In this case, both sides attempted to win the jury on both rational and emphatic grounds. Wolf’s side made an argument regarding the necessity of the journalist privilege as important aspect of bringing information to the public. They also relied on the gut sense of injustice that the jury would feel about Wolf’s imprisonment for over 200 days.

We also had both types of arguments. We wanted to win over the jury with our argument about the importance of the subpoena power to investigation of crimes. We wanted them to react to the brutality of the attack on the police officer and have sympathy towards him as a victim.

Unfortunately, our emotive argument was seriously hindered when the judge excluded the police statements from admission into evidence. If we had been able to show these statements to the jury, they likely would have had a reaction to the graphic descriptions of the assault. The exclusion also undercut our rational, policy argument because we were hampered in presenting the full weight of the government’s interest.

In the end, the other side was able to fully present their arguments on both the empathic and rational fronts, while we were more limited. The police statements would have told the story in a way that couldn’t be done with the testimony of AUSA Jeff Finnegan.

Wolf excluded statement.jpg

One of the excluded statements.

Evidentiary Arguments

The defense objected to admission of police statements on the following grounds:

"We object to exhibits 15 through 20 as hearsay and as being prejudicial. They will suggest to the jury that a serious assault on a police officer took place. That, however, is in doubt, given the nature of the State's investigation so far. Unfortunately, without the time to call and examine a large number of witnesses, we will be unable to give jurors an accurate picture of what actually occurred that night."

The prosecution offered the following response:

I. Hearsay

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Thus to be excluded under the general rule prohibiting hearsay, a statement must fit both clauses of the definition:

(1) not made by the declarant while testifying at trial or hearing, (2) offered in evidence to prove the truth of the matter asserted.

The evidence here does satisfy the first element of the prohibition. The declarants were not testifying at this hearing when the statements were made.

The evidence does not, however, fit the second element of the hearsay prohibition. The evidence is not being offered to prove that the attack on Officer Shields actually happened or happened as described by the several officers involved.

Rather, the evidence is being offered to prove that AUSA Jeff Finnegan, who will be testifying, had reason to believe that an attack may have taken place and that further investigation, possibly in the form of subpoenas, was necessary. A prosecutor's reasonable belief that a crime has been committed goes directly to the weight that "the State's interest in investigation and prosecution" should be given in this case. Thus, this evidence bears on the second and third questions that the jury must decide.

II. Prejudice

Jurors will understandably have a strong emotional reaction to descriptions of brutal physical attacks on a police officer. There is always a potential for prejudice when evidence touches on such sensitivities. The government concedes that there is a risk of prejudice.

The proper inquiry, however, is not simply whether the proffered evidence has prejudicial potential. This court must weigh the potential prejudice against the probative value of the evidence.

Here, the evidence has a high probative value. The jury will be asked to determine whether the government's interest in investigating and prosecuting a crime outweighs the first amendment interest in not surrendering source material. If AUSA Finnegan had reason to suspect that an assault had taken place, the government's interest is more likely to outweigh the journalist's interest. If AUSA Finnegan did not have reason to believe an assault had taken place, the government's interest is less likely to outweigh the journalist's interest.

Thus, this evidence goes to the likelihood of the jury deciding questions two and three in the affirmative. The high probative value of these statements outweighs the moderate risk of prejudice. The balance suggests that this court should allow the evidence.

Ruling: The judge excluded the evidence on the following grounds:

"Exhibits 15-20 should be rejected as hearsay, since we will not have direct testimony that can authenticate the statements therein, and because the general atmosphere of the demonstration is adequately given by other exhibits. There is also the additional difficulty of asking the jury to read these exhibits during the trial or their deliberations which will be short because of time constraints."

Josh Wolf’s Motives

wolf_still_title.jpg

One strategy we considered was attacking Josh Wolf’s motivation for refusing to turn over the video. This line of argument would suggest that rather than standing up for First Amendment rights and the integrity of journalism, Josh was actually trying to cover for crimes committed by the anarchists. We would base this argument on the opening and closing frames of the video which said “All Empires Must Fall” and promoted an anarchist website “www.nogovernment.us.”

The drawback to this approach was that it made us very vulnerable to a powerful counterattack by the other side. We knew the defense was already planning to argue that the government was targeting Wolf for Wolf’s political beliefs. If we made his beliefs an issue, we’d be playing right into their hands.

After much discussion, we decided that the risk of this line of argument was too great for us to use it as a direct attack. Furthermore, we needed a pre-emptive defense against the other side’s argument. That’s why we used the opening still shot—“All Empires Must Fall”—as an opportunity to present the government as uninterested in Wolf’s politics and the subpoena as a neutral pursuit of justice. We did it with direct testimony:

[13:25] Ulysses Korobase: Jury members, please direct your attention to the screen in front of you.

[13:25] Ulysses Korobase: Mr. Finnegan, please describe the first slide.

[13:25] Yngwie Yoshikawa: this is the title frame from the video that Mr. Wolf released to the public

[13:26] Ulysses Korobase: Did the information in this image in anyway influence your decision to subpoena Josh Wolf?

[13:26] Yngwie Yoshikawa: No, it did not.

[13:26] Ulysses Korobase: Did the phrase "AllEmpiresMustFall" in any way influence your decision?

[13:27] Yngwie Yoshikawa: No, to tell the truth I'm not certain what that phrase means in this context

We also decided to keep Josh’s motivations as an arrow in our quiver if he opened himself up to it in some way. The possibility of bringing it out on cross made us confident in the line of questioning that went to his prior associations with the protestors. If he suggested that his prior association was minimal, we could attack the reasonableness of any expectations they had in confidentiality. If he suggested a lot of prior association, we suggest that he was really motivated by a desire to shield his compatriots from criminal prosecutions.

Testimony

Due to time constraints, each side was permitted to call only one witness in making its case.


Direct Examination of Government's Witness

The prosecution called Assistant United States Attorney, Jeff Finnegan, played by Yngwie Yoshikawa, as its witness. Jeff Finnegan is the AUSA who was charged with investigating crimes that occurred during the riot. Through direct examination, we sought to lay the foundation for the government's interest in subpoenaing Wolf's unedited tapes as part of the investigation of crimes that occurred during the riot. The excerpt below provides a good example of this:

[13:21] Ulysses Korobase: Did the portions of the video that you did see lead you to think there might be important evidence on the unedited video?

[13:21] Witness: yes it did

[13:21] Lilia Lamatia: objection leading

[13:22] Eon Berkman: overruled, let's get to the meat of this

[13:22] Witness: based on correlation between testimony from officers on the scene

[13:22] Witness: and scenes that were in the released video

[13:22] Ulysses Korobase: What in particular where you interested in learning from Wolf's unedited video?

[13:22] Witness: we believe that the unedited video may contain images of the assault described in the police statements

[13:22] Lilia Lamatia: objection

[13:22] Lilia Lamatia: speculation

[13:23] Witness: but there is no way to know for sure without seeing the cut content

[13:23] Eon Berkman: overruled, state of mind

[13:23] Ulysses Korobase: And was the other evidence that you had at that time sufficient to determine the identity of the assailant?

[13:24] Witness: The other evidence gave us reason to believe that a violent crime had been comitted, but was not sufficient to identify the perpetrator. The officer was struck from behind.

[13:24] Ulysses Korobase: Thank you, Mr. Finnegan.


Cross Examination of Prosecution's Witness

During cross examination, the defense made a point of raising the in camera review issue (i.e. that Wolf had offered to let the judge review the unedited tapes privately, or "in camera"). The defense also pursued a line of argument suggesting that Wolf should have been protected under State law, despite our agreements not to raise this issue. Fortunately, the judge sustained our objections on the latter point, although perhaps not early enough to avoid planting the seed in the minds of the jurors.

[raising the in camera review issue]

[13:41] Lilia Lamatia: did josh offer to show the outtakes to anyone that you know of?

[13:42] Lilia Lamatia: yes or no is fine

[13:42] Witness: yes

[13:42] Lilia Lamatia: to whom?

[13:42] Witness: the judge

[13:42] Lilia Lamatia: and he offered to show the outtakes to the judge, so tha the judge could see what they contained?

[13:42] Lilia Lamatia: yes or no.

[13:43] Witness: yes

[13:43] Lilia Lamatia: and, in your opinion the judge would have been honest and told you about any evidence relevant to the alleged crimes?

[13:44] Witness: I think the judge would be honest, but I think he would also be acting outside the authority he is given by the relevant law

[13:44] Lilia Lamatia: could you tell me what other witnesses you have interviewed about the alleged crimes?

[13:44] Witness: as a legal adjudicator, the judge is not qualified to make that determination which is the province of the fact-finder.

... [raising State law theory]

[13:48] Lilia Lamatia: you are aware that if this alleged "crime" was being by state authorities, Josh would be able to invoke reporters' privilege under state law?

[13:48] Eon Berkman: just questions please

[13:48] Ulysses Korobase: objection, scope

[13:48] Witness: I don't understand the question, you mean prosecuted by?

[13:48] Lilia Lamatia: are you aware that if this alleged crime had been being investigated by state law enforcement authorities, Josh would have been able to invoke reporters' privilege under state law?

[13:49] Ulysses Korobase: objection, scope, your honor.

[13:49] Eon Berkman: sustained

[13:49] Witness: I have no opinion, I am a federal practictioner

Direct Examination of Defense's Witness, Josh Wolf

Significantly, the defense hinged its core theory of the case on the relationship of trust that Josh Wolf, played by Jahn Writer, had established with the various anarchist groups. We considered this to be a weakness that the government could exploit, because it significantly increased doubts as to why Josh Wolf should be trusted himself to disclose to the government whether the video contained any relevant evidence. By weakening this portion of the defense's case, it made the in camera review question -- which was supposed to be out of bounds -- that much more significant.

[articulating core thoery]

[13:55] Lilia Lamatia: How do you get access to the events that you film?

[13:56] Josh Wolf: This particular event was in a public place, but I was able to get better coverage because of my trust relationships with the protestors (emphasis added)

[13:56] Lilia Lamatia: More generally speaking, how important are trust relationships in your line of work?

[13:57] Josh Wolf: Without the trust of the subjects that I film, they don't tell me when they're planning events, they don't give me information about the events, and they don't speak to me candidly or allow me to film them to the full extent necessary to cover the event properly

[13:57] Lilia Lamatia: What kinds of things would help to build or interfere with a relationship of trust?

[13:58] Josh Wolf: They trust me because I have never given them a reason not to trust me. I have covered their events fairly in the past, and, for instance, have not given information about them to improper external sources

... [placing emphasis on in camera review; an objection could have been made here for leading questions]

[14:03] Lilia Lamatia: But you did offer to allow the judge to review those outtakes, in case there was any evidence relevant to the alleged crimes?

[14:03] Josh Wolf: Yes

[14:03] Lilia Lamatia: And is it your understanding that if the state had agreed to your offer, it would have been legal for the judge to do that?

[14:03] Josh Wolf: Yes

[14:04] Lilia Lamatia: why didn't you want to just show the outtakes to the prosecution?

[14:04] Josh Wolf: I chose not to, which is my journalistic right and duty, to protect my sources and to protect my relationship with my sources

Cross Examination of Defense's Witness

Going into the trial, the defense had two primary goals in cross examination: 1) to establish that the rioters did not have any legitimate expectation that their identities would be kept private or confidential, at least with respect to any recorded images, and 2) to establish that Josh Wolf was not the appropriate party to decide whether the video contained evidence relevant to the government’s investigation. In addition to these arguments, I decided to address the question of whether in camera review was sufficient to make this determination, because so much weight had been placed on this theory by the defense (and I was not sure that the judge would give clear instructions to disregard this issue).

[showing lack of expectation of privacy]

[14:06] Ulysses Korobase: Mr. Wolf, you mentioned your relationship of "trust" with the various groups. How often do you associate with the people who were in your film?

[14:07] Lilia Lamatia: objection, relevance

[14:07] Eon Berkman: overruled

[14:07] Josh Wolf: When they are participating in an event that I believe is newsworthy

[14:07] Ulysses Korobase: How often is that, approximately?

[14:08] Josh Wolf: It's hard to say, given that there's not a schedule for these things. Maybe a handful of times, total

[14:08] Ulysses Korobase: How well do you know the people who appeared in your film?

[14:09] Josh Wolf: I've spoken to some of them, and I've never even met some of them. It varies. I know them primarily in my capacity as a journalist, if that's what you mean

[14:09] Ulysses Korobase: Did you speak to all of these people prior trying to filming them?

[14:09] Ulysses Korobase: On the day in question.

[14:09] Josh Wolf: No. I'm also not required to

[In retrospect, I probably should have stopped this line of questioning here, but I made a split second decision to press on.]

[14:10] Ulysses Korobase: Thank you. So its fair to say that you did not speak with many, perhaps most of them?

[14:10] Josh Wolf: There were a lot of people there. I spoke to the organizers of the event, and some others

…

[Fortunately, I was able to recover from this potential error, which provided the defense with an opportunity to assert a direct or implied agreement of confidentiality with the event organizers. Defendant's conceded, below, that there was no expectation of privacy on the part of the rioters.]

[14:11] Ulysses Korobase: Did you make any promises to the people who you filmed?

[14:12] Josh Wolf: What promises do you mean?

[14:12] Ulysses Korobase: Did you promise them, all of them, to keep their identies confidential?

[14:13] Josh Wolf: Of course not. They knew that they were going to be filmed, and that I was going to distribute the film, and that means they could be recognized. But my duty as a journalist requires me not to submit the video for in depth study for the purposes of their identification, for instance. And I don't need to promise to follow those duties for them to be binding on me.

...

[in camera review line of questioning]

[14:20] Ulysses Korobase: Moving on. You spoke about your "trust" relationship wtih the protestors, but why then should the government trust you to tell them if the video contains relevant evidence?

[14:20] Josh Wolf: I offered the video to the judge so that he could make that decision.

[14:20] Ulysses Korobase: Does the judge have access to sophisticated video analysis technology used to make identifications?

[14:21] Josh Wolf: He could have obtained the resources if necessary, I imagine.

[14:21] Ulysses Korobase: Are you qualified to decide the proper role of the judge in making these assessments?

[14:21] Josh Wolf: But that is irrelevant to what the judge would have bene looking for.

[14:22] Ulysses Korobase: Thank you. Nothing further.

[In retrospect, I probably should have insisted on an answer to my last question.]

Closing Arguments:

Wolf slide 2.jpg

[14:24] Ulysses Korobase: Ladies and gentlemen of the jury...

[14:25] Ulysses Korobase: as you have seen, the government had a legitimate interest in investigating crimes that occurred during the protests.

[14:25] Ulysses Korobase: In investigating these crimes, the government needs access to information.

[14:26] Ulysses Korobase: Josh Wolf is asserting a right that no ordinary citizen has in determining what information should be disclosed pursuant to a valid court order.

[14:27] Ulysses Korobase: The defense wants you to believe that Wolf's sources would be chilled.

[14:27] Ulysses Korobase: Yet, this is not such a case.

[14:27] Ulysses Korobase: As he admitted during cross examination, this was a public demonstration.

[14:27] Ulysses Korobase: Everyone's identity was open.

[14:27] Ulysses Korobase: Josh could have posted the entire video online if he so chose.

[14:28] Ulysses Korobase: You have not been asked here to decide whether the judge is competent to make determinations of identity by viewing the video....

[14:28] Ulysses Korobase: although I would submit to you that he is not.

[14:29] Ulysses Korobase: Regardless, this is a separate question of law outside the scope of these proceedings.

[14:29] Ulysses Korobase: Why did Josh Wolf choose not to give the video to the prosecution?

[14:29] Ulysses Korobase: Why should the government "trust" Wolf to make this assessment, given his relationship of trust with the protesters?

[14:30] Ulysses Korobase: Please consider these questions as you make your final determination.

Ken: I personally thought that maybe it was a bad move to bring up the legal authority of the judge to view the outtakes. By emphasizing to the jury that it wasn’t at issue, I thought we might be signaling that it was an issue we would lose on. It may have been construed as a sign of weakness. But Aaron was operating the avatar at that point and this was happening in real-time. In the end, you don’t get on the same team as someone if you don’t trust them to make these judgments when they need to be made. So I don’t think he was necessarily wrong, but I would have done things differently.


Wolf judge.jpg

With a strategic point like that, it’s hard to know who’s right even under normal circumstances. But it’s especially hard when the judge’s closing instructions to the jury are some sort of free-form ad-lib commentary, as was the case here:

[14:33] Eon Berkman: members of the jury

[14:33] Eon Berkman: This is a dispute about josh wolf’s outtakes. He says there is nothing of interest in them. The govt says it needs to see them in order to see for itself.

[14:34] Eon Berkman: You must determine whether that insistence, even to the point of rejecting submission of the issue to me, the judge, justifies keeping wolf in prison for over 200 days.

[14:34] Eon Berkman: Should a citizen journalist such as wolf have a measure of protection against disclosing his outtakes?

[14:34] Eon Berkman: Is there a point beyond which imprisonment forcing him to disclose becomes an abuse of the government’s power?

[14:35] Eon Berkman: Has that point been reached?

[14:35] Eon Berkman: Please retire now to consider your verdict.

These were not the jury instructions that the parties had negotiated in pre-trial meetings.

Aaron: From my perspective, I felt that because the defense made the offer of in camera review an issue throughout their case, including during the cross examination of our witness, it had to be addressed in closing arguments to stake out our position and make it clear that we were not avoiding it. In pre-trial conferences, we had decided as a group that we would avoid this question as an issue that the jury was supposed to decide. Therefore, I felt it was important to clarify the bounds of the argument for the jury. Also, I wanted to at least put out a basic argument as to why the judge was not the appropriate party to review this evidence, in case the jury did seize on this issue during deliberations. However, I was hampered in making my closing remarks by the judge who, in real life (not SL), pressured me to conclude rapidly without effectively tying together the elements of our case. This was consistent with the "mock trial as advocacy" approach that slanted the entire exercise -- that is, a verdict for Josh Wolf was desired from the very beginning.

No surprise then that the government's case was undermined by the judge's highly prejudicial closing remarks -- prejudicial in that the scope of the jury's decision was expanded beyond what the group had decided in a way that strongly biased the government. Prejudicial in that the judge essentially advocated on behalf of the defense by appealing to the jurors innate sense of injustice at holding Wolf in jail and by explicitly referencing the in camera review option. Nonetheless, as discussed below, the exercise still had a great deal of learning value.

Mock Trial as Advocacy

Aaron: From the first pre-trial conferences it quickly became clear that this case had been chosen because of a desire to "do something for Josh Wolf." In this context, I believe that "do something" meant to present the case in a light favorable to Wolf and obtain a verdict for his release. The prosecution, therefore, was fighting an uphill (and perhaps un-winnable) battle from the beginning. Yet, I do not think this detracted from the learning value of the exercise. Rather, it drove home the importance of having an impartial and fair authority governing judicial proceedings, because this authority has broad discretion in shaping the permitted scope of the cases presented, in determining the evidence that the jury can view, and in framing the issues for the jury. Moreover, it required the prosecution to develop a sharp core theory of the case that would clearly present the government's interest.

My main criticism is that I should have been permitted to fully make my closing arguments, which served an important function for my own learning, for the jury’s deliberations, and for the public’s understanding. We should not assume that the public, untrained in the law, can piece together the strands of argument teased out during the testimony and cross examination as naturally as students and professors at Harvard Law School. I would have liked to weave these strands together into a coherent theory of the case – but I did not have the opportunity. Moreover, I think this touches on one of the biggest concerns with the “trial as advocacy" approach. Namely, to what extent are we “hiding the ball” or distorting the real questions at issue when we skew a case for a particular outcome? Isn’t it better, from the perspective of educating the public, to present the case in the most unbiased and neutral light? This would not preclude framing the questions differently than in a real court of it law – the jury could still be asked to make what are, in effect, “public policy” decisions – but it would at least preserve the full scope of argument and dialogue, which are important values in any free society. I would not like to see mock trial in Second Life become nothing more than a form of propaganda.

Suggestions

We recommend that both sides stipulate to limitations on the argument and the background facts of the case. These stipulations should be in writing and, as a procedural safeguard, they should be given to the jury to review during their deliberations. This should provide some protection against any attempts to introduce lines of argument or facts that were supposed to be out of bounds. Such limitations are necessary, given the condensed nature of the Second Life proceedings, where the entire trial takes only about 2 hours.

Presentation: Constructing the Trial Avatars

We anticipated that the jurors would likely be long-time Second Life enthusiasts. Experienced users in these types of games often look down upon “newbies”—clumsy, new users. We didn’t want this bias to influence the jurors’ perception of our case, so we outfitted our avatars as best we could to appear like experienced Second Lifer residents. This meant discarding the initial skins, bodies, hair, and clothes. We then went shopping. We tried to outfit our avatars to look both like experienced Second Life residents and like professional lawyers.

Wolf attys.jpg


Only in Second Life

Wolf animals.jpg

Towards the end of the trial, a strange human animal hybrid and two cats appeared in the corner of the courtroom.

Wolf dragon.jpg

Soon, a dragon had joined the fun...