Yes, There Are Stupid Questions

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

After closing arguments and jury instructions, and before the verdict, there is the black hole of stupid questions, where the unanswerable is asked with a level of consistency and earnestness that defies all common sense. I understand why the questions keep coming. I understand that our age of continuous news coverage demands nourishment. I understand the need to "feed the beast." I just don't understand what I'm expected to say.

The granddaddy of all is the eternal classic: "So what do you think the jury is going to decide?" To paraphrase Woody Allen, a level of hell should be reserved for people who ask this question seeking an intelligent or insightful answer. If I knew what the jury was going to decide during deliberations I would be either clairvoyant or criminal. And I would like to think that I am neither.

The grandmother of all stupid questions is this: "How long do you think the jury is going to deliberate?" I used to say simply that I don't know. Now, with some folks, I answer stoically: "Eighteen hours, thirty-two minutes and eight seconds" and then watch their faces to see if they are taking me seriously or not. Sometimes, for more than a brief moment, it seems like they are, and that is a scary thought, indeed.

A cousin of these two whoppers is this: "What's going on inside the jury room now?" The reporter asking this question wants to hear an answer like this: "Right now jurors are arguing over the critical testimony of the alleged victim" or "Right this minute jurors are taking a vote on whether to convict or acquit." Unfortunately, such answers would be wrong. Once jurors get inside that room, they are free to evaluate the evidence however they want. They can go through every bit of it. Or they can throw pencils at the ceiling for 10 hours and then announce a verdict.

Another part of the family of nonsense is this gem: "What does it mean that we haven't had a verdict yet?" Now, this question might have meaning on Day Eight of deliberations but on Day Two it's pretty tough to take. Sometimes, there simply is no "there" there when a jury does not come back immediately with a verdict. Reporters who ask this question early on during deliberations clearly have placed expectations on jurors that are unrealistic and clearly also have forgotten how long the trial was and how many witnesses and exhibits were placed before jurors. But of course that doesn't stop them from asking it.

Then there is the "who is the foreperson?" question which, really, is the close antecedent of the: "how important will the foreperson be" question. No one knows who the foreperson is and we may not know for quite some time. And even when we do find that out, if we do during deliberations and not at the moment the verdict is read in open court, I'm not sure it really matters in the scheme of things. I understand it's important for reporters to "push" the story along factually but, truly, does anyone outside of, say, Santa Maria or Neverland actually care who the foreperson is?

There is also, in this branch of the family, the question about what we analysts think of a particular juror. "What do you think of Juror No. 4?" my friend and fellow CBS News Consultant J. Randy Taraborrelli was asked yesterday by a journalist from another media organization. First, Taraborrelli doesn't know enough about Juror No. 4 to answer that question. Second, even if he did, I'm not sure that what he would know about her would offer a listener, viewer or reader any particular insight into what a juror is or is not likely to do during deliberations. Again, it's inside baseball, interesting to trial junkies but no one else.

On Monday, Michael Jackson's jurors asked a question. We do not know what the question was. The judge read the question, conferred with lawyers in the case, and then resolved the issue. We do not know what the resolution is. We do not know whether jurors asked a question at the heart of the case or whether they asked for more clipboards. We do not know if the question means that they are starting with the first or the last charge against Jackson. We know nothing, you might say. So what happens?

I get asked, over and over again Monday: "What is the significance of the question?" or "What does it mean that jurors asked a question?" or even: "Does the question mean good or bad news for prosecutors or Jackson?" When asked, I usually answered: "Do you know what the question is?" and the reply would always be "no." So then I would ask: "Well, how do you expect me to answer the question and explain it if I don't know what it is?" You see, I've learned through sometimes bitter, sometimes hilarious and always frustrating moments that it is a lot easier to ask questions than it is to answer them.

By Andrew Cohen