Consultants, helping lawyers to sculpt juries, look for the outlines of bias

September 25, 1994|By Ann LoLordo | Ann LoLordo,Sun Staff Writer

Cleveland lawyer Mark R. DeVan had never worked with a jury consultant. But by the time he and Robert B. Hirschhorn finished their highly publicized murder case, the community had been polled, a mock trial convened, a jury profile designed, a defense strategy crafted, a panel of "law and order" jurors selected, the court case tried. And their client acquitted.

The techniques in the 1993 trial were not new, although they may appear to be because of the recent appearances of consultants in such high-profile trials as the beating of Rodney King, the William Kennedy Smith rape accusation, the Lyle and Erik Menendez murder case, and now, Orenthal James Simpson.

In defending a young man charged in the death of a former high school classmate, Mr. DeVan and Mr. Hirschhorn needed a type of juror who would most respond to the defense's theory -- that police bungled the case by focusing on the wrong guy and ignoring more likely suspects.

"Our theory was law enforcement-type people, when they saw the evidence pointing to other individuals and that the police wrongfully charged my client, that law-and-order-type jurors would do a 360-degree turn and come down hard in favor of the defense," said Mr. DeVan.

"I learned more about jury work in that case than in my previous 18 years of trial practice."

This week, in a California courtroom, lawyers for O. J. Simpson and Los Angeles prosecutors begin the arduous, and likely weeks-long, task of selecting a jury in the widely publicized double murder case. Both legal teams have trial consultants to help sift through a jury pool of at least a thousand to choose the 12 who will decide Mr. Simpson's future.

What they will focus on is more whom they don't want in the jury box than on whom they do want. And those choices will have as much to do with a juror's biases as any ability to be open-minded, say lawyers and experts in the field.

"Many people will have reached some opinion about this case and about O. J. Simpson prior to trial," said Dennis W. Brooks, vice president of the 300-member American Society of Trial Consultants. "The real skill is going to be in being able to get very good questions to jurors and elicit some of those predispositions, either for or against the defendant."

A tangle of issues

The Simpson case represents a tangle of social issues and stereotypes: the accused is a prominent African-American, a football player-turned-actor who has been charged in the brutal slashing of his white former wife (whom he pleaded no contest to assaulting in 1989) and her male friend, also white.

The lawyers in the case may well plumb a juror's feelings on interracial marriage and a football player's proclivity toward aggression and spousal abuse, said Lois Heaney, of the National Jury Project-West in Oakland, Calif.

Given the extraordinary amount of publicity surrounding the case -- the court proceedings continue to be televised daily -- how a potential juror gets news also may important in selecting a jury, said Ms. Heaney.

"Are people who are highly attentive to news media better or worse for you? . . . Do you want people who watched it on the television or those who read the Los Angeles Times and New York Times on a regular basis?" said Ms. Heaney.

But lawyers and jury consultants also watch the body language of a juror, how he or she dresses, whom he or she pairs off with in the group.

They try to determine a juror's agenda: Is it to be part of history? Is it to make sure a fellow citizen gets a fair trial?

In California, as in Maryland, the presiding judge in a case questions members of the jury, a process known as voir dire (translated as "to speak the truth"). Before voir dire, lawyers for both sides present to the judge questions and issues they want discussed.

In the Simpson case, Judge Lance A. Ito also may permit the lawyers to ask some questions. When the time comes to pare down the jury pool, each side can reject an unlimited number for bias. But they can strike only 20 persons for no reason at all, known as peremptory challenges.

"We believe jury selection is 20 percent science and 80 percent art," said Mr. Hirschhorn, a Galveston, Texas, trial consultant who worked on the William Kennedy Smith rape trial. "We don't believe in stereotypes. We don't believe jurors make decisions based on the color of their skin or socio-economic status. We think their decision is based on their life experience and their value system."

Consulting began in '70s

"It's a matter of trying to find those people who are predisposed against your client and trying to get them removed from the panel," added Mr. Brooks, a Portland, Ore., trial consultant. "You have very little to say who stays, you only have selection to who goes."

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