Trial Consultants : Experts Seek to Identify Jurors’ Bias

Donna B. Siers of Encino, in a case involving a Northridge woman who sued a police officer convicted of raping her while he was on duty, advised the woman’s attorney to select jurors who drank socially, had liberal arts backgrounds and were trusting of those in authority.

Bruce L. Vaughan of Carollton, Tex., who holds a doctorate in behavioral psychology, advises lawyers to study jurors’ bodies and the clothes that they wear. People with closely set eyes tend to lack tolerance, he said, and people who wear dark clothing are accustomed to wielding power.

Vaughan and Siers are among several hundred psychologists, communications experts and academicians nationwide who use varying degrees of science and intuition to solve one of the oldest dilemmas in the legal system: picking a favorable jury.

Big Money Industry

Although their effectiveness is hard to measure, enough lawyers are convinced that they make a difference that a multimillion-dollar trial consulting industry has emerged over the last 10 years.

Attorney William E. Glennon Jr. of the California Trial Lawyers Assn. said the demand for trial consultants has grown among association members in cases where the stakes are high--whether it is money, reputation or a person’s life.

“That tends to make you nervous, and you are looking for any edge you can get,” Glennon said. “What they’re really selling is a psychological crutch, but it can be a useful one.”

There are no statistics that show the effect of having a trial consultant assist in a case. Of more than 20 trial consultants interviewed, none would reveal his track record. Most said only that, of the cases they worked on, more were won than lost.

‘Don’t Win or Lose’

“We don’t win or lose cases; attorneys do,” said David Island, a Sacramento-based consultant and president of the American Society of Trial Consultants.

Consultants have worked behind the scenes for such well-known clients as Ginny Foat, the former California chapter president of the National Organization for Women who was acquitted of murder charges in 1983; Louisiana Gov. Edwin W. Edwards, who was found not guilty of fraud and racketeering charges in May, and auto maker John Z. DeLorean, who was acquitted of cocaine conspiracy charges last year.

“Jury work is here to stay,” said Cathy E. Bennett, a Texas trial consultant whose work in the DeLorean trial is credited by his attorney, Howard L. Weitzman, with contributing to the jury’s subsequent acquittal. “Lawyers need someone who is attuned to people.”

Most successful trial attorneys have developed their own instincts about prospective jurors, with factors such as age, occupation, ethnic background and sex providing clues on how a juror may vote on a particular case.

“I’ve picked a couple of hundred juries,” Weitzman said. “When all is said and done, it’s a gut feeling.”

But Weitzman hedged his bets by retaining Bennett to help assess jurors’ reactions to widespread publicity about the DeLorean case, which included a videotape of an alleged deal between DeLorean and government undercover agents that was shown repeatedly on network television. Her work, Weitzman said, persuaded DeLorean--who insisted on a hand in directing his defense--that certain strategies “wouldn’t fly.”

For their expertise, independent trial consultants and consulting firms charge fees ranging from $50 to $500,000 per case. The three largest firms employ nearly 20 consultants. The work can be a one-hour appointment or several months of painstaking study and analysis.

‘Dramatic’ Growth

Although consultants say they work only a tiny fraction of the several hundred thousand jury trials that are held nationwide each year, attorney Dean Handler, spokesman for the American Bar Assn., called the growth of trial consulting in the last several years “dramatic.”

Before a trial begins, attorneys in criminal and civil cases question each potential juror in court about their backgrounds, as well as their attitudes about issues in the pending case. Attorneys can excuse a limited number of potential jurors during the questioning process, which can last for several weeks or longer in a high publicity murder case.

In effect, the process is not as much jury selection as jury elimination, attorneys and consultants say.

“My job in the jury process is to get rid of those people who are most egregious to my client’s case,” said Chicago attorney Philip Corboy, who uses a veteran cab driver as his jury consultant.

Corboy said his cabbie can tell from a street address a person’s income, social status, ethnic background, whether the neighborhood has been plagued by crime and if there is any animosity among local racial groups. Those clues, Corboy said, help him excuse jurors who he believes will be prejudiced against his client.

Attorneys must be able to discern whether potential jurors are telling the truth because people will seldom admit before a judge and a roomful of their peers that, for example, they are racially prejudiced, said Terry Waller of the National Jury Project, a consulting firm with offices in Oakland, Minneapolis and New York.

‘We Want a Clue’

“We want a clue of the exposure people have to people of other races,” Waller said. “Does the white person work with someone who is black, and, beyond that, do they go out to lunch together?”

Most attorneys and consultants agree that there are people who, for a number of reasons, will not be good jurors to decide their case. Consultants say they are often hired to spot jurors who are racially prejudiced, inflexible in their thinking or predisposed to the notion that, because someone is accused of a crime, he must be guilty.

Jurors reveal much of how they think by the way they answer questions, the words they use, the way they sit, what sort of work they do and where they live, consultants say.

In a murder case, for example, a potential juror may say that he is against the death penalty. “So I may (suggest that the attorney) ask if the person hunts,” consultant Vaughan said. “Then I’ll ask how the person feels when he’s got a buck in his sights. If the guy says with a grin, ‘I know that buck’s gonna drop like a rock,’ then I’d likely push to excuse him.”

Attorneys and prosecutors once were able to keep track of how jurors voted on previous cases by purchasing so-called jury books. But the books disappeared in Los Angeles after the length of jury service was reduced in 1979 from 30 days to 10 days, said Juanita Blankenship, assistant director of juror management for the Los Angeles Superior Court.

Without a score card of how potential jurors voted in previous cases, Los Angeles attorneys depend almost entirely on the jury questioning process for clues of how potential jurors might vote in a case.

Consultants say their work is simply to find jurors who will be fair and open-minded. But Beverly Hills attorney Vann H. Slatter, who specializes in personal injury cases, conceded, “The fact of the matter is we are looking for people who are biased in a manner favorable to our case.”

$150,000 Settlement

Slatter recently won a jury award of $150,000 from the City of Los Angeles for the Northridge woman who sued the city and the Los Angeles police officer who served three years in prison after being convicted of raping her.

Encino consultant Siers, who helped select jurors, said she developed questions to probe attitudes toward social drinking because the woman had been out drinking with friends before she was pulled over by the officer for erratic driving, then taken home and raped.

As with most consultants, Siers wrote open-ended questions for attorneys that were designed to get jurors talking because the truth will often “leak out in their tone of voice and the words they use,” she said.

Although virtually all trial consultants who work criminal cases are hired by defense attorneys, Roy Cameron uses jury selection techniques to aid prosecutors.

Cameron, a staff psychologist for the San Diego County district attorney’s office, estimates that he has assisted in jury selection for about 25 death penalty murder cases since 1978, both in San Diego and as a private consultant to prosecutors statewide. He said all the juries in those cases have returned guilty verdicts and “voted the death penalty when appropriate.”

The former police officer and U.S. Department of Justice investigator said that although his doctorate in psychology is helpful, jury selection is often as much experience as formal study.

In a case where the accused hoped to avoid conviction by arguing that he had a miserable childhood, Cameron advised prosecutors to retain three jurors who were employees of a county child protection agency. The move seemed to play into the hands of defense attorneys who normally covet jurors with a liberal arts background, he said.

But Cameron said, “Those jurors deal daily with people with rotten childhoods who grow up to be great human beings.” Prosecutors won the case.

Second Set of Eyes, Ears

Cameron and others say that perhaps their greatest help to attorneys is to add a second set of eyes and ears during jury questioning.

“Attorneys are asking a question, trying to think about the last answer and thinking of the next question,” Cameron said. “They may not hear everything or see what the juror does.”

In addition to jury selection, consultants often remain in the courtroom during trials to observe juror reactions and advise attorneys on which arguments seem to be working.

Sociologist Jay Schulman of New York was one of the first to assist in jury selection. In 1971, Schulman and others mapped out a strategy to defend a group of Vietnam War dissidents known as the Harrisburg Seven, a group of Catholic priests, nuns and former priests who were accused by the government of conspiring to kidnap a government official and blow up underground tunnels in Washington.

Schulman’s group conducted community surveys in Harrisburg, Pa., to gauge religious and political beliefs, trust in government and other attitudes that prospective jurors would likely use in deciding the case. Eventually, a profile of “good” and “bad” jurors emerged, a process still used by many trial consultants.

A mistrial was declared after only two of the 12 jurors voted for conviction on the conspiracy charges in that case, and Schulman said the business of jury selection was on its way to becoming a fixture in the legal system.

“It wasn’t a business when I got started. There were no theories,” Schulman said.

Now, Schulman and many jury consultants back their instincts with computers used to assess community attitude surveys and demographic information. That technique was used by Schulman in jury selection in retired Gen. William C. Westmoreland’s libel suit against CBS. Westmoreland dropped the suit before it went to the jury.

Critics’ Views

Critics of trial consulting say analyzing potential jurors is an intrusion into the justice system and that the process distorts jury decision making. Consultant Waller of the National Jury Project conceded that the availability of a defense team that includes a jury consultant “widens the gap between poor and rich.”

But her firm, like many contacted, say they provide free services for a limited number of cases each year.

Tom Munsterman, director of jury studies for the National Center for State Courts, said some judges have expressed concern about protecting the privacy of potential jurors.

Los Angeles County Deputy Dist. Atty. Sterling Norris, who has worked as a prosecutor against defense attorneys who employed trial consultants, said professional jury pickers should be prohibited.

“Jurors may start to ask themselves, ‘Am I on trial?’ ” Norris said. “Here is someone who is doing his duty as a citizen and who didn’t intend on having a psychologist or a witch doctor analyze him. Why should jurors be subjected to that?”

V. Hale Starr, president of Starr and Associates of West Des Moines, Iowa, one of the country’s largest trial consulting firms, dismissed the notion, noting that “for the most part jurors don’t even know we are present.”

Starr, whose reputation grew after assisting the Ford Motor Co. to beat a murder charge in 1978 involving a fatality in a Pinto automobile, said trial consultants do not claim to be infallible.

“We are dealing with human nature,” Starr said. “In the jury selection process, we can assess what the attitudes are today. But who can predict anyone’s actions in three weeks or three months? We are talking about demographics, statistical and psychological studies. We are not talking about predicting the future.”

Attorney and University of Minnesota law school professor Irving Younger, who regularly conducts seminars for local bar associations on how to select juries, said that although many attorneys have come to depend on demographic and sociological analyses of potential jurors, there is no sure way to predict how a jury will vote.

“It is very reassuring to have your seat-of-the-pants intuition reinforced by a scientist,” Younger said. But, he added, “when you boil it all down, you just close your eyes and pray that there is water in the pool.”