Trial by consultant

Jury consultants say they can influence verdicts. The controversy comes here.

by Jason Gay

What shapes a juror's verdict? Is it a juror's age? Education? Gender? Skin color? How about the way a juror was raised, or the way his or her parents voted in the presidential elections? Are verdicts affected by the neighborhoods where jurors live, the books that they read, or the clothes that they wear?

Truth be told, verdicts are probably influenced by a little of everything. But one thing's for certain: a juror's decision isn't based entirely on evidence.

That leaves plenty of opportunity for an ever-growing group of professionals now finding their way into Boston courtrooms -- jury consultants. These are strategists hired to get inside jurors' minds using a mix of sociology, psychology, and old-fashioned gut instinct.

These consultants are paid to demystify the jury process. Prior to trial, they study a region's jury pool and question potential jurors. Later, they advise attorneys on how to tailor arguments to the kinds of people on the selected jury. They even arrange mock trials to test those arguments.

It's a practice that remains controversial more than 20 years after the first consultants appeared in American courtrooms. The controversy centers on influence -- how much do consultants have, and do they give one side an unfair advantage? There's little doubt that consultants can help win a case, but their time can be awfully expensive. Do they widen the already-deep gap in the justice system between the wealthy and everyone else?

Despite the controversy, jury consulting is on the rise. Already regular figures at big cases in California, Texas, and Florida, jury consultants are now increasingly showing up in the Boston area. Though most local jury consulting occurs in high-stakes corporate trials, it's also seen in a few criminal cases, including the upcoming infanticide trial of British au pair Louise Woodward.

"Consultants are extremely helpful," says Michael Keating, a partner at the Boston law firm of Foley, Hoag & Eliot. "They permit you to develop an approach, a theme, a spin that appeals to jurors."

To date, jury consultants still haven't made a breakthrough in Boston. But that might change if the Massachusetts Supreme Judicial Court loosens the state's notoriously strict rules for jury questioning -- known as voir dire (meaning "to speak the truth") -- giving consultants and lawyers greater latitude to screen jurors. An SJC committee is currently examining voir-dire rules as part of a study of ways to improve jury trials. If a broader, more personalized kind of jury questioning is permitted by the state, then jury consultants are likely to become a more attractive -- and effective -- courtroom accessory.

For now, however, Boston's jury-consulting world remains mostly hidden. There are small outfits in downtown Boston, and in Newton and in Lexington, but they keep a low profile. It is known that consultants helped on a handful of cases around here -- from the 1975 Susan Saxe police-shooter trial to the Woburn contamination trials chronicled in the book A Civil Action (Random House, 1995) -- but confidentiality agreements tend to keep their specific roles relatively quiet.

The secrecy surrounding jury consultants has led to some misunderstanding about what these professionals do. Though consultants do question jurors and analyze pools, they cannot rig juries. Most of the time, they try to get juries to sympathize with a client's case. At its heart, jury consulting is a sales job.

But with all their investigative resources, do consultants tilt the balance of justice toward those clients who can afford them? More important, does the rise of jury consulting reflect a growing cynicism about juries, one that rejects the ideal of an impartial verdict? Notes Brandeis politics professor Jeffrey Abramson in his 1994 book We the Jury (BasicBooks, 1994): "More than any other idea over the last generation, [scientific jury selection] captured the basic shift in our conception of the jury -- from a group that would find common ground above individual differences to a group that divides, almost predictably, along all the fissures of identity in America."

FOR A profession that today has plenty of high-profile clients and wealthy practitioners, jury consulting had decidedly anti-establishment beginnings.

An early victory for jury consulting came in the 1972 federal trial of the Harrisburg Seven, in which Father Philip Berrigan and six other Catholic war resisters stood accused of conspiring to do everything from the raiding draft boards to kidnapping then-Secretary of State Henry Kissinger.

Wanting to try the case in a conservative region, the government prosecutors chose Harrisburg, Pennsylvania. But a team of consultants, helmed by Columbia University sociologist Jay Schulman, sought to level the playing field for the Seven.

Schulman and his colleagues spent weeks exhaustively studying and polling Harrisburg's jury pool. The extensive background work the consultants did helped the Harrisburg Seven's lawyers pick a jury far more sympathetic to their case than the government anticipated. In the end, the Harrisburg jury hung, and the work of Schulman and his consultants was viewed as a major reason for the unexpected outcome.

Inspired by this success, would-be jury consultants fanned out across the country, assisting antiwar clients in a number of major trials. (Consultants also helped on the cases that acquitted accused Watergate criminals John Mitchell and Maurice Stans.) And it was only a matter of time before the private sector turned to jury consultants for major civil cases. As Abramson notes, IBM, MCI, Penzoil, Firestone, and the National Football League were among the first corporations to employ jury consultants.

Over the past two decades, consultants have helped the winning sides in scores of high-profile cases, the most famous of which was the 1994 O.J. Simpson criminal trial. The Simpson case was a rarity in that both the defense and the prosecution teams used consultants. The prosecution hired Donald Vinson, a marketing professor-turned-consultant and the founder of DecisionQuest, one of the nation's most prominent consulting firms. The Simpson Dream Team turned to Jo-Ellan Dimitrius, an LA-based consultant who had worked on the Rodney King and Reginald Denny trials.

Both Dimitrius's and Vinson's careers profited from the trial. Dimitrius, of course, was praised for helping to select a jury sympathetic to Simpson. Vinson benefited in a more roundabout fashion. Before jury selection began, lead prosecutor Marcia Clark, who disliked Vinson personally, decided to reject his counsel in favor of her own gut instincts. But after the trial -- and revelations of the jury's complete hostility toward the prosecution -- it became clear that many of Vinson's instincts were dead-on.

With the appearances of Vinson and Dimitrius at the Simpson trial, the history of jury consulting had come full circle -- from the politically charged trials of indigent radicals to the multimillion-dollar murder case of a pampered celebrity.

Part 2

Jason Gay can be reached at jgay[a]phx.com.