Jury Duty. It’s one of the pillars of our democratic society. If you are charged with a crime, a jury of your peers will determine your innocence or your guilt. But who selects the jurors?
“Most of the time, I like older, more mature jurors,” explains Michael Jackson, a district attorney in Alabama. “They are likely to be more pro-prosecution than a young person.”
“It’s hard to ever know,” says Ronald Trasher, a capital defense attorney in Birmingham, Alabama. “I like women on juries because women are, in my opinion, less likely to kill.”
“I know one attorney, you’ll find this funny as heck,” jokes Randall Caldwell, a plaintiff’s attorney in Foley, Alabama, “he asks every single jury, ‘who watches Nascar?’ And the ones that raise their hands, they watch Nascar, he gets rid of them.”
Caldwell’s fellow attorney does a lot of personal injury lawsuits and he believes Nascar fans won’t empathize with his clients.
Caldwell’s got his own redflags.
“I never trust anyone that wears a bowtie,” he says matter-of-factly.
“I like women on juries because women are, in my opinion, less likely to kill.”
– Ronald Trasher, capital defense attorney
“Why?” I ask.
“I don’t know; It’s a thing with me,” Caldwell explains. “If you wear a bowtie, and you’re not wearing it to be funny, you’re wearing it to be serious, I automatically have doubts about you.”
Caldwell’s tried a lot of cases in front of a lot of juries and over the years he’s come up with more rules of thumb.
“African Americans tend to give higher verdicts than Caucasians do,” Caldwell explains. These are not his personal stereotypes, he explains, but the results of judges juries for years. “ If I have a female client, the rule of thumb is that women tend to be harder on other women. So, I don’t want as many women jurors, as I want men, if I have a female client.”
This is jury selection at the most basic level. Selecting people based on stereotypes, profiling, and rules of thumb. Just about every attorney does it, and Caldwell and many others swear it works.
The attorney Clarence Darrow had his own rules of thumb. Darrow was one of the most famous defense attorneys ever. He defended the science teacher accused of teaching evolution in the Scopes Monkey trials. He has this famous quote, “a trial is won or lost when a jury is sworn in.”
Back in 1936, Darrow wrote a long essay in Esquire – where he gives advice about how to pick a jury that will be sympathetic to your client.
“Choosing jurors is always a delicate task,” Darrow writes.
“An Irishman is called into the box for examination. You would be guilty of malpractice if you got rid of him, except for the strongest reasons. If he is a Catholic, he must be emotional, and will want to help you. If a Presbyterian enters the jury box let him go. He is cold as the grave.”
Darrow’s essay was really influential, and his personal hunches shaped the makeup of American juries for decades.Valerie Hans, a professor of Law at Cornell University, says attorneys everywhere followed these rules –who to keep on a jury, who to strike.
“The attorney would think,” Hans explains. “‘The last time I had a person with this set of characteristics I really I lost a case I should have won, and I am convinced that that kind of juror just is not hospitable to me, and therefore I am going to get rid of them.’”
And you can see how this would be problematic. Hunches. Biases. There was no proof whatsoever.
So this is what we’ll call the “first stage of modern jury selection.” It lasted until 1972. January, 1972 to be precise, when a group of sociologists from Columbia University in New York introduced science into modern selections, or something science-ish.
So, it’s the early 70s. Richard Nixon’s president. The Vietnam War is raging. As are protests against the war. The government wants to start locking up protesters, as many as it can.
The Justice Department charges six Catholics and one Pakistani journalist with an anti-war conspiracy: to blow up heating pipes underneath Washington DC and kidnap then-head of national security Henry Kissinger.
Big charges. Plus, it’s a federal case, so the government hold the trial anywhere it wants. The prosecution chooses Harrisburg, Pennsylvania.
“Harrisburg had the reputation at the time as being a strongly conservative community,” explains Hans. “Whose members were not likely to look kindly on anti-government protest.”
A man named Jay Schulman, a sociologist at Columbia University in New York, saw that and thought, there’s no way those priests and nuns are going to get a fair jury.
“He thought,” says Hans, “‘What can I do? I am just a sociologist here, what can I do to help out these defendants, so that they get the kind of open minded jury that they are entitled to?’”
Schulman grabbed some grad students and went to Harrisburg to work for the defense.
He and his team went house to house, surveying the community for weeks. They knocked on doors and questioned residents – what do they think about the war? About the government? How do they feel about the draft? About the protests?
No surprise, Harrisburgers were really conservative. But big surprise – not all Harrisburgers.
They found that young people were more anti-government than old people — nothing shocking there. They found that women were more empathetic to defendants, and residents without a college education were more liberal-leaning.
Guided by the sociologists, the defense attorneys questioned jurors. Their age? Were they married? Their religion? How did they feel about the war?
And while they were being questioned, the sociologists ranked them, on a scale of 1 to 5. A score of 1 meant keep them. 5 — strike them.
“What was funny is, the prosecution didn’t seem to be overly concerned,” remember William O’Rourke. “That’s why they had the trial in Harrisburg; they thought they would get a good jury regardless of what was going on.”
O’Rourke was a young writer at the time of the trial and he later wrote a book called The Harrisburg Seven and the New Catholic Left .
Jury selection lasted a month. In the end, out of 12, the defense got 5 of what they thought would be their “perfect jurors” – young, mostly apolitical white women.
The trial lasted a little over a week.
Papers and television stations cover the trial daily.
Outside the courthouse, protesters sang. The whole country’s watching. Are these priests and nuns going to go to jail?
The government called 64 witnesses. Then it was the defense’s turn to present its case.
One of the lead defense attorneys, Ramsey Clark, who had previously been Lyndon Johnson’s Attorney General, stood up and said…
“That the defendants proclaimed were innocent of all the charges and rested the case,” Hans paraphrases Clark’s statement. “They did not put on a single witness.”
“They had already done it; they had already done it,” O’Rourke jokes, meaning they had won the trial for the most part, in jury selection.
“So if you think about the result, well, here’s a conservative jurisdiction where you can’t get a unanimous jury to agree that these defendants should be convicted of conspiracy,” explains Hans. “So just on that measure, you might say they were successful.”
“I take data and turn it into poetry.”
– Bob Bettler of Decision Quest
So this is the birth of phase two of jury selection — the demographic approach.
“Although we can’t predict with certainty how any human being is going to behave, we do know that some things are associated with more favorable and less favorable views,” says Hans. “And sometimes a little bit of edge is all you may get and that may be enough for you.”
And this little bit of edge, created a $400 million industry. Jury consultants, a job that did not exist before the Harrisburg trial, every year bill their clients about $400 million.
“Born in this time of incredible protest and anti-war sentiment,” says Hans. “It has shifted so that it is now used in civil cases and by wealthy clients who can afford to hire people to do this kind of systematic selection and analysis on their behalf.”
People like Bob Bettler.
“I take data and turn it into poetry,” explains Bettler.
Bettler works for one of the biggest trial consulting firms in the country – Decision Quest. He’s gotta trim white beard, pressed black suit and a pack of cigarillos tucked inside his breast pocket. We’re sitting on a bench at the county courthouse in Birmingham Alabama, and he’s telling me about how he got into consulting while he was finishing a PhD in Psychology at the University of Kentucky. He had this friend who kept saying, “‘Bob, you should come do this jury consulting, these focus groups, cause the attorneys liked having psychology people do their focus groups.’” remember Bettler. “For a long time I said, ‘I don’t want to do that crap.’ But in the end it was the money.”
Consultants are paid well, somewhere between $250 and $450 an hour. Sometimes they do pro-bono work for public defenders, but to really hire one for a civil case can cost between $10,000 and half a million dollars.
Bettler has volunteered to show me how he picks a jury. So, we walk the halls of the courthouse looking for one. We sit in a courtroom and watch the doors, waiting.
I, luckily, am not paying $450….
Bettler’s been doing this for decades. He’s usually hired by big corporations to help them win civil cases, so often, he’s trying to sniff out how people feel about corporations.
“The Michael Moore – Dick Cheney scale,” Bettler explains.
A “Michael Moore juror” hates corporations; a “Dick Cheney juror” loves them.
Bettler surveys thousands of people yearly. How do engineers feel about corporations? Or housewives? White people versus black people? He’ll rank demographics based on city and region, and then tell his client who to strike from the jury.
Bettler’s collected years of data – or poetry, whatever you want to call it. And he’s good.
So does Bettler win the cases?
“Unfortunately there is no hard data on this,” explains Bettler.
As Bettler, and everyone else I spoke to said, there’s been no scientific study that scientific jury selection works.
Now, Bettler and jury consultants do a lot of other things. They help lawyers and prep witnesses for trial. They hold focus groups and mock trials.
And Bettler does have some informal, not published data on his own track record.
“In the instances where I have had the opportunity to get a nice data set and go in and help with jury selection,” says Bettler. “My clients have won, I want to say, 13 out of 15 [times].”
That sounds pretty great.
“You should, pay attention to the businesses interests of the people you are talking to,” warns Neil Kressel, a professor of psychology at William Patterson University. Kressel wrote a book about jury consulting called Stack and Sway: the New Science of Jury Consulting.
Kressel says that there’s no proof that trials are swayed either way by jury consultants.
“Whether justice is helped by any of this, that’s a tricky question,” says Kressel. “Jury consultants make the argument that we have an adversarial system, and just as lawyers are supposed to do the best job for their clients, jury consultants help lawyers to do the best job for their clients. Other people have argued that because these methods are so expensive that they amplify the problem that our justice system works best for people who have a lot of money.”
But, Kressel says, that’s true of the whole legal system. Money influences all parts of a trial. Do you have enough money to hire your own lawyer? What kind of lawyer? What experts can you afford to testify on your behalf? How many experts? Expensive jury consultants, Kressel says, are just one aspect of how money influences outcomes.
Plus, as consultants kept telling me, they don’t pick who they want on a jury; they pick who don’t want. They’re basically de-selecting people.
So consultants used to drive through people’s neighborhoods and check the bumper stickers on their cars. But now, we have the internet, or phase three of modern jury selection. If before, all lawyers had were hunches, and then basic demographics, today, they have Google.
“You can look at what they have posted on blogs, when that’s unlocked and open. What they have posted on Facebook.” explains David Cannon, a trial consultant who runs a company called Trial Innovations.
“Anything that these jurors have put out in public is fair game for us to look at in our decision for who to keep and who to remove.”
During jury selection, Cannon is watching the jurors in court, thinking, “Do they look comfortable? How are they dressed? Is how they are dressed what I would expect in relation to the part of town they are from? What does this tell me about their socio economic status? What does this tell me about their satisfaction with life?”
Today, jury consultants are expert googlers, power-Facebookers. Armed with just the information they get from the courts, they find Facebook, LinkedIn, Instagram and Pinterest pages. What do you like? What do you comment on? Who comments on you? They check Zillow to see what kind of neighborhood you live in and the estimated value of your home. So while the lawyers are asking questions, Cannon’s team is building complex, specific profiles of everyone in the jury box.
“I will give you an example,” explains Cannon. “I was doing one [jury selection]. It was a law enforcement case. There was a photograph of this juror, and she was saying ‘I love police, can’t get enough of them.’ It was almost seemed like she was coming across as ingenuine. That was red flag number one. Red flag number two was a picture of her on Facebook flipping off a police car.”
Canon told the lawyer he was working for to strike her. And she was gone.
Bob Bettler and I walked around the courthouse for two or three days and never found a jury being selected. Every trial was either settled or postponed.
That squares with the facts. Jury trials are increasingly rare. According statistics, in state courts, only 3 percent of civil cases go to a jury LINK: http://www.bjs.gov/content/pub/pdf/cbjtsc05.pdf. In federal court it’s less than 1 percent LINK: http://civiljuryproject.law.nyu.edu/about/
So, most of us are never going to be in front of a jury, nor are we going to be able to afford a consultant.
So, in order to see a consultant in action, I called David Cannon back.
We decided to pretend that the case he was selecting for was a case of excessive force by the police. Cannon would be selecting a jury that would be sympathetic to the police’s side.
And in this fictitious jury pool, first juror in the box is … me.
So here’s what he knows: he’d be given my age, my job, my marital status, and where I live.
I’m 30, a journalist, married and living in Birmingham, Alabama.
“So another thing you would state your education, where you went to school and what you majored in.” explains Cannon.
“I have a Bachelor’s degree from Columbia University,” I say. “I majored in Russian.”
“Ok, so a very interesting background,” Cannon responds.
Next, Cannon goes to my Facebook and starts scanning my profile.
He scans for a few minutes, and starts drawing conclusions.
“I would say that you are a caring emotional person. You care for people and, looking a bit further, I think you would have sympathy for the underdog,” Cannon says. “If I was working the defense representing for law enforcement before I was able to talk to you, I would have a lower score on you, meaning I would have you as a potential strike. And I would have a higher score for you on leadership, meaning I think she could go against us and I think she could take other people with her, because she has some leadership and persuasiveness.”
“So I would probably strike, well, I am pretty sure I would,” Cannon decides.
So, Cannon would strike me. But here’s the thing, the other side, the plaintiff’s side would fight to keep me. I’m their kind of juror skeptical, opinionated.
Even Cannon said so. He says if he was on the other side — I’d be the perfect juror.
Life of the Law would like to thank the Valerie Hans at Cornell University and Lois Heaney with the National Jury Project.
- The Harrisburg Seven and the New Catholic Left by: William O’Rourke
- Stack and Sway: The New Science of Jury Consulting by: Neil Kressel
- “How to Pick a Jury” by Clarence Darrow
This episode of Life of the Law was funded in part by our listeners and by grants from the Open Society Foundation, the Law and Society Association, the Proteus Fund and the National Science Foundation.
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