By Bernard Vaughan
NEW YORK (Reuters) - It is hard enough to seat an impartial jury in a case stemming from the biggest Ponzi scheme in history.
But lawyers on both sides of the trial of five former employees of Bernard Madoff are grappling with what may be an even tougher challenge: they must find jurors willing and able to put their lives on hold for nearly half a year.
With so many defendants and so much evidence to present, prosecutors have said the trial could last five months, a fact that has weighed heavily on jury selection, which ran for three days this week and continues next Tuesday.
Even before that, U.S. District Judge Laura Taylor Swain requested a pool of about 400 people, an unusually high number, from which to select 12 jurors and six alternates.
Jury experts and trial veterans said a trial of such length significantly trims the potential pool and can lead to a jury that slews heavily towards the retired, the unemployed and people who work for the government or big companies, which pay employees on jury duty, with unknown effects on verdicts.
"They're in a job where losing half a year doesn't worry them," said Arthur Patterson, a senior vice president with DecisionQuest, a jury consulting firm.
The self-employed, people who own or work for small businesses and those who care for other family members can all run into difficulties in a long trial, which can cause stress and feelings of isolation for jurors.
"There are whole groups of people who are going to claim this would be a hardship and will not sit," said Andrew Lawler, a white-collar defense attorney and former assistant prosecutor in the office that is bringing the case against Madoff's employees. "I think the judge will be sympathetic to anyone who says they can't sit for five months for some legitimate reason," he said.
That was certainly borne out this week.
Among those excused was a 65-year-old woman who fretted that the trial would prevent her from helping to care both for her grandkids and for her elderly parents.
Randall Jackson, an assistant U.S. attorney on the prosecution team, had previously said the woman would have made an excellent juror. Reluctantly, he agreed with the judge's decision.
Swain also dismissed a woman who told the judge that the small Internet startup where she works could suffer if she was away for long. She said she was its sole marketing professional.
A business information analyst who said she is the only source of income for her two sons and an unemployed brother was also excused. "This is no good for me," the woman told Swain.
Candidates still under consideration include a retired teacher, an unemployed young woman who is an aspiring illustrator, a technology worker for Time Warner Cable, a part-time art teacher and mother of three, a man who teaches fifth grade, a nurse's aide, an actuary with a Manhattan firm, and a woman who negotiates over-the-counter derivatives for a Canadian bank.
"The fact that it's a long case," the retired teacher, a mother of two, said when Swain asked if she had any concerns about serving. She added that she tutors and substitute teaches part-time.
But is it manageable? asked Swain.
"Yes, it is," the retired teacher said.
At one point, Swain noted that federal jury duty pays $30 a day, subject of course to an ongoing freeze on federal spending that has shut down the U.S. government.
There are no major studies quantifying the effect of long trials on a jury's eventual verdict. But it is well documented that jurors suffer, even in much shorter trials.
A 1998 study by the National Center for State Courts found that 96 percent of jurors in trials lasting longer than 21 days who responded to a survey experienced stress as a result of sitting on a jury.
In one infamous example, the 2004 corruption trial of former Tyco International Ltd (TYC) executives Dennis Kozlowski and Mark Swartz ended in a mistrial after a holdout juror received a threatening letter. The jurors had complained of a "poisonous" atmosphere in the deliberation room. The executives were eventually convicted in retrials.
Memory and exhaustion pose further issues in a long trial, placing increased importance on alternate jurors, who must step in if jurors have to drop out.
"It's a physically draining experience for everybody involved," said Evan Barr, a white-collar defense lawyer with Steptoe & Johnson and a former assistant U.S. attorney in the Southern District of New York. "The odds are very high that some of those alternates will be seated on the jury by the end."
Patterson, the jury consultant, said jurors often cannot remember witnesses at the end of a long trial. Prosecutors tend to overestimate how much evidence they need to present, he said.
Instructions not to talk to anyone about the case are especially isolating for jurors, said Valerie Hans, a law professor at Cornell University Law School and an expert on the jury system.
"One of the side effects is that you cut off the normal sources of support that people have as they go through life," said Hans, who said her husband once struggled as a juror because he could not confide in her.
"For problems, you very naturally turn to your spouse or others you're close to. This support network is something that we deprive jurors of," Hans said.
The defendants - a director of operations of Madoff's office, two computer programmers and two portfolio managers - are accused of helping Madoff conduct his massive Ponzi scheme, which robbed investors of more than $17 billion.
All five have pleaded not guilty to charges including securities fraud and conspiracy to defraud Madoff's clients.
Madoff, 75, is serving a 150-year prison sentence after pleading guilty in March 2009.
The case is U.S. v. O'Hara, 10-cr-00228, U.S. District Court, Southern District of New York.
(Reporting by Bernard Vaughan; Editing by Eddie Evans and Phil Berlowitz)