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."
Although the public may perceive jury consultants as the latest legal experts to enter this high-profile, high-priced case, they have been assisting trial lawyers since the mid-1970s. Then, jury consulting occurred in highly publicized cases that touched on deep-seated biases related to world view, race, ethics, cases such as the 1973 killings at Wounded Knee, the fatal Attica prison riot in 1971 and the Harrisburg Six trial involving the Rev. Philip Berrigan, an anti-war activist.
The consultants were social scientists, with backgrounds in sociology or psychology. Since then, some practicing lawyers have joined the ranks, as well as experts in communication skills, statistics and graphics.
Their work has gone beyond jury selection. They poll the community, conduct mock trials, prepare trial witnesses, assist lawyers in their presentations, assemble charts and other evidence exhibits. A common misconception about the profession is that jury consultants have the final say in selecting a jury.
"We simply supplement the trial experience of a good attorney," said Jo-Ellan Dimitrius, of Trial Logistics in Pasadena, Calif., and Mr. Simpson's trial consultant.
Used in certain cases only
Several lawyers said they would hire jury consultants only in certain kinds of cases, particularly when the pretrial publicity has been extensive. Neil J. Dilloff, a top trial attorney at Baltimore's Piper and Marbury law firm, said he and other colleagues often conduct mock jury trials. And when he has conducted mock trials, the lessons learned were invaluable and the outcomes nearly identical to the actual cases.
"Although there is an attempt to make this [jury consulting] a burgeoning field -- and a lot of lawyers swear by this -- I'm not yet a believer," he said. "I'm not convinced yet that my instincts and my experience are any worse than somebody else's, even if they have different training."
Victor J. Gold, a professor at Loyola Law School in Los Angeles who has written about jury consultants, said he worries about the effect that trial consultants have on the system.
"We assume that juries can see through what lawyers do. We assume juries are going to produce for us verdicts based on the truth, that are accurate and fair," said Mr. Gold. "I'm concerned those assumptions may no longer be valid when attorneys have this weapon on their arsenal. It may be the lawyers have become so sophisticated they can hide from the jury what they are doing, can persuade the jury on levels the jury is not really aware of."
jTC But the crux of the problem may well reside within the system, said Mr. Gold.
"We are not now producing juries that are truly cross-representative of the community," he said. "We are missing perhaps those people who are intellectually sophisticated enough to deal with the sales techniques jury consultants employ. They use the same techniques to sell us a presidential candidate or a can of beer."
In the Cleveland murder case, lawyer Mark DeVan never expected that using a jury consultant -- and all that Mr. Hirschhorn had to offer -- would work so well. For the right case, it can be invaluable, he said. "It's very instructive to get a free look at the cards that you're going to be throwing out on the table to see how the other side is going to play them," he said. To Mr. Hirschhorn, the key in any trial is this: Whoever communicates better with the jury is going to win.
"If Marcia Clark does a typical lecturing voir dire, she will have given up an opportunity to have made headway with the jury. And if the defense does a closed-ended, lecturing voir dire, O. J. would have bought himself a one way ticket to the Titanic," said Mr. Hirschhorn. "He will go from the Hall of Fame to the hall of shame."