The fates of NBA star and alleged rapist Kobe Bryant and accused murderer Scott Peterson may be determined long before opening statements in their respective trials — and by how well their defense attorneys get to know the jurors who will decide their guilt or innocence.
Both cases — Bryant is accused of sexually assaulting a 19-year-old hotel employee in Colorado, Peterson of murdering his pregnant wife Laci in California — have received extensive pretrial publicity. From the local press in Eagle, Colo., and Modesto, Calif., to TV news networks seen nationwide, it seems that there are stories on the Bryant and Peterson cases at least twice a week.
Such cases present special problems when picking jurors, according to attorneys and jury consultants who specialize in the jury selection process known as voir dire.
"If I was involved in either case — as a prosecutor and as defense attorney — I would be very concerned about people 'auditioning' to be on the jury. I would be very leery of people who really want to serve on the case," said Donald E. Vinson, who is considered a pioneer in jury trial consultation and has worked on hundreds of cases. "In the O.J. Simpson case, there were many people who really wanted to be on the jury and tailored their answers to questions during voir dire to enhance their chances of being picked."
"There's a celebrity aspect of this where people may see an opportunity to get on television and be interviewed by Diane Sawyer on Good Morning America [after the trial] and get their 15 minutes of fame," Vinson continued. "It's really American theater at its finest."
Motivated by More Than Civic Duty?
Prospective jurors are randomly picked from a pool of local residents who have registered to vote or have a driver's license.
In state cases, prosecutors and defense attorneys can question individual jurors about the publications they read, their attitudes toward law enforcement, whether or not they could impose the death penalty, and whether they have been crime victims and how that shapes their attitudes toward defendants.
In federal cases, lawyers do not have an opportunity to individually question potential jurors but must rely on questionnaires. Or, judges in some federal case may question potential jurors themselves.
People generally dread the prospect of serving on a jury and losing precious work time. But widely publicized cases like Bryant's and Peterson's present a whole new set of problems — and a sudden and suspicious sense of civic duty in some people.
"There's a different set of rules," said defense lawyer Mickey Sherman, who has represented famous clients such as Kennedy cousin Michael Skakel, who was convicted in 2002 of killing his neighbor Martha Moxley. "What's scary is that you never really know what motivates certain jurors, … whether they want to make a statement, or whether they're coloring their answers to get on the jury."
In most criminal and civil cases, lawyers do not have to worry about pretrial publicity tainting a jury pool and shaping jurors' opinions about guilt, innocence or liability. But in cases that attract media attention, they worry about the effect the coverage will have on potential jurors.
"You don't know whether they're getting their information from the National Enquirer or someplace else," Sherman said.
Most attorneys are suspicious of jurors who say they know nothing about a high-profile case. One popular perception is that lawyers — particularly defense attorneys — want and are able to find jurors who do not know anything about a given famous case. But that's not true.
"Jurors always know something about the case," said Ron Fischetti, who represented white former New York Police Officer Charles Schwarz for his alleged involvement in the attack on Haitian immigrant Abner Louima. "The test is whether they have formed an opinion on the case and whether they can put that opinion aside."
Profiling the Jury
Since prospective jurors are almost always drawn from the community where the case is being tried, jury consultants often help lawyers get a feeling for the local residents and their attitudes to the case. The research helps them advise lawyers on what kind of jurors would be best for their case and recommend questions to ask the jury pool. It can help lawyers determine whether the members of the community will be able to put their opinions aside if called to serve as a juror.
Jury consultants sometimes set up mock juries using local residents. Prosecutors or defense attorneys can then present their arguments to the mock jurors to gauge the community's attitude toward their case and their client. Consultants also use surveys and statistical modeling tests to help determine what kind of biases and prejudices prospective jurors in the area may have.
However, sometimes surveys and tests cannot anticipate the pressure some prospective jurors may feel from members of their community.
"You have those who worry about having to go back to the community and have people say, 'Hey, he raped one of our own and you let him off. How could you do that?' That's got to be tough," Sherman said.
Jury consultants also observe whether mock jurors react negatively to prosecutors and defense lawyers and their clients and advise them whether they could present themselves or their client differently before the a real jury.
"Sometimes jurors react negatively to certain attorneys, whether it's something they do or the manner in which they carry themselves," said Linda Foley, a jury consultant and professor of psychology at the University of North Florida. "Apparently, this happened in the O.J. Simpson case with [prosecutor] Marcia Clark. Jurors can zero in on things that suggest that, 'He's not being honest with us.' "
Foley acknowledged, however, that jury consulting has limitations, because juries are often unpredictable when they get into the courtroom.
"We're making general predictions when you're talking about a very specific jury," Foley said. "Every jury is different."
Taking the Trial on the Road
If defense lawyers suspect that pretrial publicity might have turned local residents against their client, they can ask judges to order the trial moved to another jurisdiction where residents will have heard less about the case. A change of venue could influence a life-or-death decision for Scott Peterson, who could face the death penalty if convicted of killing his wife.
Attorneys for Peterson have been seeking a change of venue from Modesto, and prosecutors in the case reportedly hired a consultant and sought a survey in an effort to show the judge that Peterson could get a fair trial in his home town.
In Colorado, Kobe Bryant could face up to life in prison if convicted of sexual assault. His attorneys explored moving his case to a different county in pretrial motions. But the judge said he was not inclined to grant the defense's request, saying the extensive pretrial publicity "diminishes the remedy of a change of venue."
‘Ideal’ Juror Myths and Misconceptions
Experts say there are some commonly held perceptions about what kind of people make the best jurors in rape and murder cases.
Crime victims, especially people who have lost a family member to homicide, are regarded as bad jurors in murder cases — at least from the defense's standpoint. Parents are seen as good jurors for the prosecution in kidnapping cases, on grounds that they are more likely to convict.
But stereotypes can cut both ways, for instance with gender in rape cases. When asked about what kind of jury they would want if they were defending Kobe Bryant in his sexual assault case, two veteran defense attorneys gave very different answers.
"What you don't want are women on the jury. You don't want feminists or those who read Ms. magazine," said Fischetti, reasoning that women would perhaps be more sympathetic towards Bryant's accuser, the alleged rape victim. "You don't want mothers who may have young daughters."
But Sherman said just the opposite.
"The only thing I know for sure is I want women on the jury," he said. "In a consent rape case, where the actions of the alleged victim seem to go against or are contrary to common sense or what people would normally do, it's been found that women can be very harsh, very critical and hard on the accuser. They say things like, 'How could she have done that? I never would have done that in that situation. My daughter never would have done that.' "
Such discrepancies hint at why some jury consultants caution lawyers against over-generalizations when picking their juries. Above all else, the consultants advise, lawyers should get to know the individual jury pool and its biases and put their own personal uninformed perceptions aside — just like a panel of jurors.
"There are lots and lots of myths about what makes a good jury and a bad jury," said Vinson. "I would advise those involved in the Kobe Bryant and Scott Peterson cases not to fall for or subscribe to the stereotypes. You can really do your client a disservice by clinging to the aphorisms and stereotypes that may or may not be true. And your client — Kobe in the form of his career and Peterson with his life — will be the one who pays the price."