Storm Still Lingers Over Defense Attorney’s Training Video

It began as a typical political foray: Prominent defense attorney Jack McMahon, the Republican candidate for district attorney in Philadelphia, called the incumbent Lynn Abraham “racially insensitive.” A familiar campaign claim, yet it uncommonly irked those in the D.A.’s office who knew McMahon from his eight-year tenure as an assistant D.A. After reading his comments in the local newspapers, two prosecutors stepped forward to say they recalled seeing a not-terribly-sensitive training videotape McMahon made back in 1987 for the D.A.’s office. One prosecutor, in fact, had the tape in hand. He had found it in his desk drawer.

Abraham, surrounded by her top deputies, settled before a VCR. The donnybrook that erupted soon after has yet to subside. Politics, legalisms, morals, ethics and barefaced hypocrisy all share center stage; which truly define this melee remains an open question.

First, the genesis. Here are excerpts from McMahon’s one-hour videotaped lesson on jury selection:

“You do not want smart people. I wish we could ask everyone’s IQ. If you could know their IQ, you could pick a great jury all the time. You don’t want smart people because smart people will analyze the hell out of your case. . . . They take those words ‘reasonable doubt’ and they actually try to think about them.

“You don’t want social workers. That’s obvious. They got intelligence, sensitivity, all this stuff. You don’t want them. . . . Teachers, you don’t like. Teachers are bad, especially young teachers. Like teachers who teach in the grade-school level.

“In selecting blacks, you don’t want the real educated ones. This goes across the board. All races. You don’t want smart people. If you’re going to take blacks, you want older black men and women, particularly men. Older black men are very good.

“Blacks from the South, excellent. . . . If they are from South Carolina and places like that, I tell you, I don’t think you can ever lose a jury with blacks from South Carolina. They are dynamite. They are on the cops’ side.

“My experience, young black women are very bad. There’s an antagonism. I guess maybe they’re downtrodden in two respects. They are women and they’re black . . . so they somehow want to take it out on somebody, and you don’t want it to be you.

“Let’s face it, the blacks from the low-income areas are less likely to convict. I understand it. There’s a resentment for law enforcement. There’s a resentment for authority. And as a result, you don’t want those people on your jury.

“It may appear as if you’re being racist, but you’re just being realistic. You’re just trying to win the case. The other side is doing the same thing. . . . The only way you’re going to do your best is to get jurors that are unfair, and more likely to convict than anybody else in that room.

“The case law says the object of getting a jury . . . is to get a competent, fair and impartial jury. Well, that’s ridiculous. You’re not trying to get that. Both sides are trying to get the jury most likely to do whatever they want them to do. . . . . You are there to win. . . . If you think that it’s some noble thing, some esoteric game, you’re wrong and you’ll lose.”

Advice to novices indeed. When McMahon’s videotape reached its end, Abraham and her deputies huddled. They had just seen something obviously repugnant and arguably illegal; the U.S. Supreme Court in 1986 ruled you can’t take race into consideration in selecting jurors. They had also, of course, just seen something that appeared to put a political opponent in an awfully bad light. “All of us,” Abraham would later say, “to a man and to a woman, concluded that it was absolutely necessary, essential and right that this tape be revealed.”

With a cover letter saying “We have determined that disclosure to you is the ethically appropriate course,” Abraham’s office sent the videotape to defense attorneys who represented the 36 people McMahon had successfully prosecuted for murder between 1982 and 1990. Eyes widened with delight in a lot of Philadelphia lawyers’ offices that day. Here were grounds for seeking new trials for convicted clients, and not just in cases McMahon himself had prosecuted. Any young prosecutor who had seen McMahon’s tape was fair game. A cop killer, a barroom shooter, a mobster goon--all had second chances now.

Declared one defense attorney: “That tape is the most disgraceful thing I’ve ever seen. . . . My client deserves a new trial. My client’s been sitting in jail for a decade and a half and never got a fair trial.”

Opined another: “This may have opened a Pandora’s box of hundreds, maybe thousands of tainted convictions. . . . There’s no telling how many attorneys in that office saw that tape.”

The impact even reached into a murder trial then underway, where McMahon was toiling as defense attorney. His client worried what the jurors were thinking about that week’s headlines. McMahon didn’t know. The judge declared a mistrial.

Then came the unexpected turn in this tale. Despite some clucking from law professors--”inappropriate . . . crosses the line . . .troubling”-- McMahon didn’t really draw much heat. Local politicos, even black leaders, held their tongues. So did state Supreme Court Justice Ronald D. Castille, who had been D.A. when McMahon made the tape. Suddenly, it was Abraham on the defensive. A backlash had set in.

All sorts of people declared themselves stunned by her release of the videotape. A crass move, they suggested, a new low in politics. For political gain, she had let 36 convicted murderers walk. What’s more, she had trafficked in hypocrisy, not being known herself for much racial sensitivity. Low-down dirty stuff, declared one black city councilman.

Soon McMahon was happily doing the television talk-show route, showing up on everything from “Geraldo” to “Good Morning America.” People were approaching him on Philadelphia streets, shaking his hand, saying: “We’re with you.” Regret and retreat were the furthest thing from his mind.

“It’s done today, it’s going to be done tomorrow, and I don’t apologize for it,” McMahon declared about his jury-selection advice. “I only said what any good jury consultant would charge hundreds of thousands of dollars to tell you: Some people, black or white, help your case, other people hurt it. That’s not being racist--that’s being realistic. Every lawyer in the world uses these techniques.”

For awhile, Abraham tried to counter.

“The sentiments and practices discussed on that videotape are repugnant to me, and they are in direct contradiction to my beliefs and to the policies of this office,” she offered. She was “ethically, morally and legally compelled to make it public” once she learned of its existence. McMahon was a “rogue assistant district attorney.” At a press conference Abraham flatly declared: “I am morally right. I am legally right. I am ethically right.”

Despite the election-year context, some truly believed that this former judge was speaking in earnest. Yet in the end it didn’t much matter. One likely reason: People sensed truth in McMahon’s claims. Whatever Abraham’s motives, the D.A. basically had declared herself shocked--shocked!--at repugnant but fairly common practices.

Three Philadelphia judges, speaking on condition of anonymity in recent days, have told local reporters that McMahon’s techniques are routinely employed by both the D.A.’s office and defense attorneys. One defense lawyer and former prosecutor, on the record, has advised: “I’m not saying everyone does it, but it’s part of real life in the real courthouse.” Philadelphia’s mayor, Edward G. Rendell, a former two-term D.A., has been quoted as saying: “If you look at the totality of what he’s talking about, I think it is a veteran prosecutor lecturing young prosecutors about jury selection.”

Thus, this particular extravaganza rolls on, heading toward a November election, perceived and described in multiple ways. This much, at least, can be fairly said: What finally is extraordinary about McMahon’s remarks is not their content, but their wide and unabashed public circulation.

“It’s flabbergasting,” pointed out jury consultant Paul Tieger, “that this guy put this on a videotape.”