From Jury Box to Defense Table

Nearly half the jury in a widely watched Orange County gang-rape case has agreed to help the defense prepare for a new trial.

Lawyers for Gregory Scott Haidl, 19, the son of a wealthy and high-ranking Orange County sheriff’s official, said that one juror would be paid an undisclosed hourly rate but that four others had agreed to sign employment contracts as consultants without pay because they were sympathetic to the defense. Attorneys said they also might hire up to four other former jurors to help them understand the strengths and weaknesses of the case.

“Consulting with the actual jurors who have already heard the case is the best focus group in the world,” said Joseph G. Cavallo, Haidl’s lead attorney in the first trial.

As employees -- paid or not -- the jurors would be barred from talking to prosecutors without permission from the defense, Cavallo said.

Although attorneys routinely ask jurors for feedback after a trial ends, retaining former jurors is all but unheard of, lawyers say -- though no one collects statistics on such arrangements.

Some legal ethicists and defense lawyers praised the lawyers’ creativity.

“It’s novel and edgy,” said Diane Karpman, a Los Angeles attorney who writes a column on ethics for the State Bar of California’s monthly newsletter. “In my opinion, it shows great lawyering. They’re going to get the best criticism they can, right from the horse’s mouth.”

Others, voicing arguments similar to those raised after jurors wrote books about the 1995 criminal trial of O.J. Simpson, call the practice ethically debatable and wonder if jurors hoping to cash in on consultation fees might try to hang a jury.

“People shouldn’t profit from their jury experience,” said David Graeven, a jury consultant with San Francisco-based Trial Behavior Consulting. “With a carrot out there of a monetary reward, people will not be able to focus on doing justice.”

Chapman University professor Jeremy Miller said that adding money to the equation -- even for just one juror -- tainted the judicial process.

“It’s a great idea to get into these people’s heads, but involving pay gives the appearance of impropriety,” he said. “That turns the case into a sort of trial-by-combat, where the one who has the most money wins.”

Potential Duties

In the Orange County case, Cavallo is hiring jurors who were impaneled for the two-month rape trial of Haidl, Kyle Joseph Nachreiner and Keith James Spann, all 19. The trio was charged with 23 counts of rape and a single assault charge after a July 2002 party at the Corona del Mar home of Haidl’s father, an Orange County assistant sheriff. The youths videotaped the alleged sex attack, a tape that became the centerpiece of the trial.

Prosecutors said the then- 16-year-old girl was unconscious and unable to consent to sex; the men’s lawyers countered that she had pretended to pass out. After 11 hours of deliberations, jurors announced last month that they were deadlocked, leaning toward acquittal on nearly every charge. The next day, Dist. Atty. Tony Rackauckas announced that his office would retry the case.

The hired jurors’ duties could include guiding lawyers as to who would make the most defense-friendly jurors, telling them which witnesses were effective and who could be scrapped, and possibly sitting in on the next trial to provide on-the-spot feedback.

One juror who said he had been asked to work with the defense in a second trial voiced uncertainty over whether to take the job. Still, he thinks it’s an intelligent strategy.

“If I were ever a defendant, I’d want these guys to defend me,” said Jeff, 39, who did not want to give his last name.

Another who had been approached by the defense said she was leaning against joining the team. Caroline, 32 -- a Laguna Beach personal trainer who also asked to be identified only by her first name -- said she was willing to discuss her thoughts with the defense but would be reluctant to sign a consulting contract.

“That would go against my belief that they’re guilty,” said Caroline, the only juror to vote for conviction on all of the rape counts.

The lawyers said they had already received useful feedback. One juror advised them that her colleagues who had never seen an adult movie had a hard time with the defense’s contention that the alleged victim was acting out a fantasy from a pornographic film. Likewise, she told Cavallo that some of the older jurors took an instant dislike to the defendants after hearing the vulgar rap music on the video.

Strategy Seldom Used

Though rare, the practice of hiring jurors is not unknown.

After a Connecticut jury deadlocked in a sexual-assault case in 1986, a defense lawyer paid one member of the panel $50 per day to sit next to him during the second trial, providing feedback on how witnesses and evidence were probably coming across to the jury.

Her advice didn’t help much -- the client was convicted in the second trial. Nevertheless, judges, prosecutors and the state bar association were up in arms. “This undercuts the entire system,” one judge told a reporter at the time.

Within a year, the state legislature made it a misdemeanor to hire a juror as a consultant in the same case.

California legislators passed an even broader law on the eve of the Simpson criminal trial. The law barred jurors from taking money to talk about their experiences within three months of the end of a trial. One of four Simpson jurors who wrote books about the case successfully challenged the law on 1st Amendment grounds.

Like many jury experts, Vanderbilt University law professor Nancy J. King said deals with former jurors were unlikely to change the way juries worked. Most jurors are deeply conscientious about their duty and would be unlikely to throw a trial in the hopes of milking more money out of their jury summons, she said.

“While what this Orange County lawyer is doing doesn’t really look all that great,” King said, “it shouldn’t be a systemic problem.”

Ethical qualms aside, analysts cautioned the Orange County defense lawyers to be skeptical about the jurors’ advice. The former jurors may be unable to articulate some of the finer points of the prosecution or defense that moved them during deliberations, jury experts said.

Also, said Los Angeles jury consultant Richard Gabriel, what one jury says doesn’t necessarily predict what another jury will say.

“The dynamic of those individuals with those life experiences created the verdict,” he said. “You can’t base your case on getting that same combination again.”