“Sometimes juries get it wrong.” — Steve Rhodes, The Beachwood Reporter
The ink was still wet on the verdict form in the Rod Blagojevich trial when the TV news reporters gathered in the lobby of the Dirksen Federal Building to go live with their coverage.
In the absence of lawyers, defendants, and jurors (or even the full verdict), there was plenty of airtime to fill and plenty of jury consultants around to fill it. Every station seemed to have one, all going on about what the government prosecutors should have done – or do next time. The irony, of course, is that while all the TV stations had consultants, the prosecution and defense teams in this case did not. Nor are they likely to hire one for the next go-round. So I asked myself: what does a jury consultant do?
“They’re all fakes!”
“They’re all fakes!” Ed Genson bellowed into the phone when I called him last week. Genson is the irascible defense attorney who got R. Kelly off on a charge of child prostitution – even with videotapes showing his client having sex with a 14-year-old girl – and whom I’d come to respect for his rapport with the jury in the Conrad Black case.
“I’ve known Sam Adams (Sr.) for 50 years and I’d be shocked if he hired one. That’s not his style, he said. “These guys, these so-called jury consultants –– they just hang around the press area hoping to get on TV and promote themselves.”
Jeffrey Cramer, the former Asst. U.S. Attorney who faced off against Genson in the Conrad Black trial, said he too doubts the government went out of house for jury consultation. And Cramer should know. He was the in charge of federal voir dire preparations for five years before he left last year to become Chicago vice-president of the business intelligence firm Kroll, Inc.
The government’s internal resources are vast. (170 FBI agents worked on the Blagojevich case.) Time and money are short. (Even the government works on a budget.) And the lawyers trying a case tend to have an innate confidence not only in the story they want to tell but the kind of juror they want to hear it.
“I can’t remember that we ever hired outside consultants, except for a couple times when we needed graphics,” he said. “We might have run a few mock cross examination sessions, but mostly we were making arguments to other lawyers who have a lot of experience picking those arguments apart.”
“Every attorney wants as much information as he can get about prospective jurors,” Cramer added, and the government spends a lot of hours going over jury questionnaires. But profiling jurors based on social demographics is a dangerous game. So too is picking a jury based on race or income. “I’ve done more than 70 juries – of every ethnic composition – and I’ve always chosen juries based on the nature of the case.”
Why Use Jury Consultants?
If Blagojevich and the government didn’t use consultants, who does?
Plenty of people, said Beth Foley, president of the 500-member American Society of Trial Consultants, who appeared on TV as the Channel 7 jury consultant. “I’m doing focus groups for trials every month.” When she is not doing focus groups, her firm ZMF Litigation Communications also helps lawyers design jury questionnaires, interpret the answers, evaluate opening and closing statements, prepare witnesses, make Powerpoint presentations out of key evidence – and, of course, consult during jury selection.
“We’re Not Private Investigators”
“We’re not private investigators,” Foley said. Jury consultants don’t go out looking into the background of every prospective juror. But they do bring a lot more to jury selection than legal experience. Their approach is to combine “psychology, sociology, rhetoric, persuasion and linguistics to create messages that people understand, remember and act upon,” according to the ZMF website.
The Harrisburg Seven
Jury consultants trace the origins of their profession back to 1972 when former Atty. General Ramsey Clark, representing the defendants in the Harrisburg Seven trial, used sociologists to help select a jury that let off Father Philip Berrigan and six co-defendants on charges of conspiring to kidnap Henry Kissinger.
The sociologists established a demographic profile of prospective jurors who were pre-disposed to let a Catholic priest off on vague charges that the war in Vietnam was wrong. Without Berrigan even presenting a defense, the case resulted in a hung jury; and the government chose not to re-try priest.
In the good guy interpretation of jury consultants, they have served a valuable role identifying racial biases in civil rights cases where a black defendant faced an almost white jury. After jury consulting became an industry in the 80’s and 90’s, they are more commonly used in medical malpractice suits and corporate liability trials where millions of dollars are at stake and lawyers want to discover what kinds of jurors are pre-disposed to give large punitive damages. Most jury consulting today takes place in “white collar” cases, Foley admits, because that’s where the money is.
The First Consultant – A Cabbie
The first lawyer in Chicago to use a jury consultant was personal injury attorney Philip Corboy – and his sociologist of choice was a Chicago cab driver named Ed Mika. One night in 1980, Corboy hopped into Mika’s cab and gave him an obscure street address. “You know how to get there?” he asked. Not only did the cabbie know, he ticked off the names of every street in between, and their defining characteristics.
For the next nine years, Corboy hired Mika on and off to assess potential jurors. He would give Mika their street addresses, and Mika would reel off the top of his head a stream of information about the neighborhood, its ethnic composition, resident incomes, political leanings, and whether or not it was a high-crime area.
Refining The Technique
In 1981, Corboy took his jury research a step further. He paid the market research firm Leo J. Shapiro and Associates $21,000 to survey a cross section of the Cook County jury pool on their attitudes toward compensation for a car crash victim he represented.
“The Shapiro firm used the same kind of demographic-sampling techniques it would use to determine a consumer’s preference for a new brand of soap, interviewing people at random and drawing a careful profile of their attitudes and habits.” John A. Jenkins recounted in his 1989 book The Litigators.
The case involved a 17-year-old cheerleader who’d been turned into a quadriplegic by the accident. Corboy wanted to find a jury willing to give her the largest settlement from one of the three drivers involved––her boyfriend––that was driving the car. He had a $5 million dollar insurance policy. Although equally liable, the other two had $35,000 worth of insurance between them.
Shapiro polled 713 eligible voters––showing them the outline of the case––and asked them to fill out an eight-page questionnaire. The best jurors, a computer analysis determined, would be non-white female high school graduates – people who thought the girl was being cheated out of a great life. Protestants, Irish and Scandinavian descendants, people who owned old cars, and people who liked to hunt and camp would also make good jurors, Shapiro reported. Labor union members, registered Republicans, and people who owned stocks were potential problems.
Corboy got the jury he wanted and most of the $7 million he was seeking. (But only after he used his last peremptory challenge to install an Italian he liked on the jury over a man who fit the desired demographic.)
“I don’t know any lawyers who know how to pick juries,” he told Jenkins in 1988. “All a lawyer can do is de-pick. De-select. Use his own peremptory changes is a very discriminating fashion. So he can get rid of those who look overtly bad and hope that those who are left will be susceptible to his arguments.”
“The jury voir dire is the most important part of the lawsuit,” he added. “After the jury is picked, the case is over.”
ZMF Communications has a state-of-the-art focus group facility in downtown Chicago where lawyers can preview their arguments before a randomly selected panel of potential jurors – then and watch them deliberate from behind one-way mirrors, on videotape, or via an Internet feed to their office computer.
A typical day there begins with the assembly of 30-40 people randomly drawn there from the pool of potential jurors in trial’s jurisdiction. Together they hear lawyers present synopses of their case, and the case they expect their opposition to make. Each side gets roughly an hour. The surrogate jurors are then divided into smaller groups of 8-10 (an optimal size for focus groups) and asked to deliberate on the arguments presented to them.
The lawyers, the consultants, and anyone else who has a stake in the matter watch their proceedings looking for how these average citizens respond to the arguments they’ve heard. “Most of the time, you’re just observing,” Foley said. “But you’re learning so much. How do ordinary people respond to the arguments you are presenting? You take that information back and say to yourself: how can I make that argument better.”
A Contrarian’s View
Ed Genson admits he too has used jury consultants, but he came away unimpressed. “If they agree with me, they’re really smart. If they don’t, they’re dumb as a brick.” But he uses them nonetheless. He uses them to rehearse the narrative arc of the story he wants to tell the jury. “They provide the people, but what I’m listening to is the people as they deliberate.” That’s when Genson learns what he phrased wrong, or might say another way.
Because he has a small firm, he also hires outside help from trial consultants to sift through the juror questionnaires. “I tell them what I am looking for, and they go through the questionnaires to find it,” he said. With as many as 400 potential juror questionnaires to sift through, that’s the only way he can organize the information in the short time he has before he must face the jury pool in the courtroom. But Genson makes the final decision.
“I’ve been doing this too long to let somebody else choose my jury,” he said. “I know the jury I want because it’s my case!”
The next time around in the Blagojevich trial, the media has proclaimed the prosecution should do a better job striking from jury potential jurors predisposed to like the ex-governor. In her blog for Chicago magazine, Carol Felsenthal claimed the federal prosecutors should have known a black woman recently retired from a state health agency––the lone holdout in an otherwise 11-1 verdict against the former governor––should have been dismissed on a peremptory challenge because she probably admired his child health care programs.
“That’s just stupid,” Foley said. “To choose jurors based on stereotypes is a very risky strategy.” It’s not a fair criticism, Cramer noted, because no one knows how many challenges the government had left, or the tradeoffs they had to weigh.
When Blagojevich does go back on trial, the chances he can afford jury consultants are slimmer than ever. Judge James Zagel has already determined that his legal defense team – now funded by taxpayer dollars – must be cut from seven lawyers to two earning a public defender’s pay of $110 an hour. That’s hardly enough to unlock the doors at most focus group facilities. And the government isn’t likely to change its long-standing policy of handling voir dire preparations internally either.
“The feds are used to losing cases 11-1,” a lawyer who practices regularly in the federal courts told me. “A holdout juror is more commonplace than you think. They’ll just try the case again. Maybe they’ll insulate themselves by reducing the charges or simplifying the argument or offering a plea deal. But they’re the feds. Their thinking is: you don’t have money enough, or smarts enough to beat them.”
“You can beat the feds once if you’re lucky,” he said. “But lightning never strikes twice in the same spot.”
The next time around, a more focused prosecution team will take Blagojevich down by a jury of his peers. And no consultants will be required to do it.