Saturday, April 26, 2008

Mystery Man - Robert Hirschhorn

by Robert Hirschhorn

Twenty-four years ago, I was a young criminal defense lawyer with an impossible case. I went to my mentor and asked him what I should do. He said to call Cat Bennett. I asked him who she was and he told me that she was the best jury consultant in America. When I asked him how she was going to be able to help, he told me to stop asking such stupid questions and to call her. I did, she agreed to help, we won the case, and I told her that she changed my life.

When Cat died in 1992, I had to decide whether to go back to practicing law where I could make a lot more money or to keep Cat's mission and message alive. I felt the latter was so much more rewarding. I'm pleased to share with you a snapshot of what I do.

When selecting a jury in a murder case, you first have to make an intelligent and realistic decision on what would constitute a win. If the prosecution has a weak case (i.e. - no physical or DNA evidence) or there is a strong defense (e.g. - self defense), obviously we want a jury that has the courage to find the defendant not guilty. In some cases, the best possible outcome, given the facts, is a hung jury. In other cases, the facts may compel a jury to convict.

What's unique about Texas is that the judge or the jury can assess the punishment to be imposed. (Prior to trial the defense must elect who should impose the sentence.) So there are some murder cases where you are expecting the jury to convict but you hope they will be lenient in their sentence (e.g. - "mercy killing" situations or "heat of passion" crimes).

To pick a winning jury, the first thing you have to remember is that you don’t get to pick who you want on the jury. Instead, what occurs is a de-selection process. That is, that lawyers get to eliminate those jurors who express a view or opinion about the case, the defendant, or the law, which indicates they cannot be fair. Removing a juror for this reason is called a challenge for cause. There is no limit to the number of challenges for cause that either side can make. It is completely up to the trial judge to decide if a juror should be removed for this reason.

Jurors can also be removed by virtue of a peremptory strike. In a murder case, the prosecution and the defense can each eliminate up to ten jurors for whatever reason they want. A lawyer doesn’t even need to state a reason for exercising a peremptory strike on a member of the jury panel, so long as the attorney did not strike the juror because of the juror’s race.

The question becomes: Who do you want to have left on the jury after challenges for cause and peremptory strikes? As a general rule, if we are running a technical defense, we like cerebral and analytical thinkers. If we are running a “put yourself in our shoes, what would you have done” defense, we like more emotional and spontaneous jurors.

Having said that, for the past twenty years, we have been constantly telling lawyers that
jury selection is art, not science, and that it is a mistake for lawyers to stereotype jurors. Henry Wade, the Dallas County District Attorney, many years ago taught an entire generation of prosecutors to “never take a juror whose job starts with the letter P - painters, plumbers, prostitutes.”

As ridiculous as these stereotypes sound, some lawyers still to this day follow them as the gospel. Some criminal defense lawyers stereotype jurors based on religion, race, age, education, and gender. We teach lawyers that jurors make decisions based on their value system and life experience.

Thus, if you want a great jury for a murder, you must first determine your goal, how you intend to accomplish your goal (we call that “the message”) and then comes the critical goal, with our help, of matching the message to the messengers: the jury. If you're interested in learning more, please visit our Web site here.


stan schneider said...

I always learn something from Robert. In my opinion, Robert is the best trial consultant in America. I think it is because he has been the lawyer picking the jury and not just the person looking over the lawyer's shoulder.

But then again, I was a Cat groupy in an age gone by. For many years I did not pick a jury without talking to Cat about the case. I still try to keep Cat karma in my office but that is a story for another day.

There is an important message in what Robert says. A lawyer most identify his worst fear about a case and then he most discuss that fear with the jury panel. Once the lawyer identifies that fear to the jurors, the potential jurors will explain to each other why the lawyer does not have to worry about the factual basis of his fear and the lawyer simply has to tell the client's story.

Many years ago Robert and I tried a drug case. We told Cat the story. Cat sat quietly and said "Where are your client's car keys." Robert and I looked at each other and shrugged our shoulders. We went to trial and our client was convicted. As we walked into the jury room to ask why our client was convicted, a juror said "where are the car keys." I said no one knows.

Jurors are often all knowing.

Through Cat, Robert, John Ackerman, Gerry Spence and others I have learned that once I do my job of understanding the theme of the trial, I can effectively pick a jury that will listen to my client's story and let him go home.

Anonymous said...

It sounds like you are very highly respected in your field. Congratulations on that.

Quite interesting to know that so much goes into the game of jury selection, as I suspect it would, given the undertones of our criminal justice system.

I've noticed that you've been credited for the freedom of individuals such as Robert Durst.
Does it ever bother you to know that a man who's obviously guilty, not to mention dangerous (Durst), walks freely among us, and that you've played a part in this?
And do you, or will you feel at all responsible when those that you've helped walk free, kill again?

No offense intended. I'm assuming that questions such as this are ok, since you've put yourself here.

Anonymous said...

A - you have posted here several times before. I have come to believe that you will never understand or believe the basis of our constitution - lawyers do not "release" guilty people - juries do that after a full and fair review of the evidence presented to them from both sides. Lawyers believe in a citizen's rights to a "presumption of innocence", "not guilty until proven beyond a reasonable doubt" -you know - those silly things that you can't seem to grasp. I know you are not alone, and it is disheartening to me, as an attorney, to know that you have a large following. Lawyers do not make up facts. That is one of the difficult parts of our job. We have to take the facts we have and present them to a jury - who then decides whether your client spends a rather lengthy time behind bars, or in some cases - die. '
Robert Hirschorn simply helps us present these facts - and frankly, helps us communicate with the jury in the hope that the jury will identify more with the defense lawyer than the prosecutor. There is no "magic" wand.

Anonymous said...

A- There is your answer. NO! They feel no remorse or responsibility because they didn't let a guilty man walk free. 12 jurors did. How convenient!

Jan C said...

Our justice system isn't the fault of defense attorneys. They work within established rules. It is the system that is broken. We leave the fate of the defendant in the hands of a jury of people; many who may not even be qualified to make toast, much less understand the complexities of law. I don’t know what the answer is, but I do know that bashing the integrity of the men and women who defend the accused isn’t it.

Anonymous said...

Thank you Jan - I think....The truth about picking juries - I always try to get the best educated jury I can possibly get. The last serious trials I've had, all my jurors have at least been college educated, and some had higher degrees. I want jurors who are smart so they can intelligently analyze the evidence. I never want uneducated people. So, when I say that jurors are the ones who make decisions - using the law and evidence - it really IS the jurors. I am not allowed to vote, neither is the prosecutor nor is the judge.

Anonymous said...

Thanks for that, Katherine S.

Just so we're clear here: I have no "following". I'm merely a person with a point of view.
You find reason, cause and passion to do what you do. Great.

I find irony here, yet again. If justice in truly in the hands of a jury of one's peers, then why the need for such expertise and analysis in the (de)selection process?
Why not draw a dozen names from a hat, from the general demographic of one's neighborhood, and let the chips fall where they may?

Anonymous said...

I have a question for Ms. Scardino, and it is not intended to be derogatory towards defense attorneys, but simply something I've always wondered about.

Even when you rightly attach the presumption of innocence to a client, surely there must be times when, in your own mind, you might have a seed or two of doubt about that innocence? How do you cope with that?

Jan C said...

I agree, in a perfect world, that the jurors would be intelligent and educated. However, I've seen enough Dateline interviews with jurors after the fact, not to mention Court TV, where you wonder how these people survive. Does anyone remember the Scott Peterson trial and the juror, Strawberry Shortcake? Talk about someone a few slices short.

Anonymous said...

Katherine Scardino says to A:
"I have come to believe that you will never understand or believe the basis of our constitution..."

Aside from the blatant insult of this statement, do YOU honestly believe that our forefathers, the very authors and visionaries of our Constitution, had our present day courtroom theatrics in mind, when they set out to establish our democracy?

Anonymous said...

Rae, that is exactly the question A and myself have been asking. It isn't that we are bashing the defense attorney's integridy.

As an ordinary citizen, I am disturbed when someone like Durst walks free. It is hard to feel safe and have confidence in our judicial system when it appears that "the win" in all a defense attorney is seeking. That isn't exactly justice.

Anonymous said...

Uh...I didn't say you were bashing anyone's integrity, Leah.

I am disturbed, as well, when someone like Durst walks free. But, I fully expect that any and all defense attorneys play to win. That's their job-to defend their client to the best of their ability. It's definitely what I would expect if I were ever in the position of needing an attorney to defend me, and I'll bet you would say the same. Would you really want your defense attorney to walk into the courtroom with the attitude of "Well, I'll just sit back and let the chips fall where they may and hope we win"?

Prosecutors are always seeking "the win", too, and, let's face it, there are many times when someone is wrongfully convicted, yet I don't see anyone painting prosecutors with the same brush as defense attorneys.

In the case of someone like Durst, the prosecutor was there, too. Perhaps, just perhaps, part of the circumstances that led to the jury's verdict was that the prosecutor failed to meet the burden of proof.

Anonymous said...

Jan said it, not you. Sorry about the way I wrote that.

Jan C said...

Well this sure sounded like bashing to me.

"A- There is your answer. NO! They feel no remorse or responsibility because they didn't let a guilty man walk free. 12 jurors did. How convenient!"

Do YOU feel remorse when you do your job well? If you want to rail against the way our justice system is set up, I will agree with you completely. But I won't sarcastically bash a defense attorney for doing their job to the best of their ability. In fact, I think the law requires that.

Anonymous said...

There are several aspects to representing a defendant. Initially you want to make sure their civil rights aren't violated, that they are read their rights, etc.

Beyond that, I am asking the same thing you are Rae....if you are defending someone you know to be guilty [or even suspect] and you manage to win an aquittal, legally you know you have done your job, but morally how do you feel about it? I realize you can tell yourself that 12 jurors are the ones that ultimately made the decision, but how do you cope with that?

That is all I am asking.

Anonymous said...

Maybe the answer is in the non-answer Leah? Maybe the moral thought is never entertained?

I can only guess, since no answer seems to come of this question...

Anonymous said...

Well, I'd like to believe that the moral thought is entertained, at least by some defense attorneys. (Or, at least, that Johnnie Cochran was the exception to the rule, LOL) I'd like to know how they cope with that question, because it's implausible, to me, that an intelligent, educated person wouldn't have doubts in some cases.

In all fairness, Ms. Scardino may just not have had the time to answer, so I'll wait and see. :-)

Anonymous said...

There are many ways to represent a person accused of a crime. Most people plead guilty. Often the only ones that get public hear about are the more bizarre or unusual facts. It is important to remember that the criminal defense lawyer not only defends his client but defends all of us because the lawyer is defending the constitution. At times the police or prosecutors do not follow the law. And, when a jury or judge makes a mistake, a person may be locked up for a very long time or even executed. For example in the case of Victor Saldano, the State of Texas presented evidence that the jury could consider Saldano's race as evidence that he would be a future danger. As a society can we allow that to him. A federal judge ordered that Saldano be resentenced. At the second trial, a jury sentenced him to death again.

I have wrestled with the question that you ask many times- how do I feel when a guilty person walks free. That is a question that many lawyers wrestle with - how to defend the undefendable and put the government to its task of proving guilt, responsibility and appropriate punishment..

Anonymous said...

Stanley Schneider says:
"I have wrestled with the question that you ask many times- how do I feel when a guilty person walks free."

I appreciate your acknowledgment of this Stanley. Thanks for showing us the human side of defensive law.

Anonymous said...

Good morning everyone. Sorry, but I actually had to do some work this morning! I have read what everyone wrote, including my friend, Stanley, and I understand that it is curiosity that makes you ask "how do you feel when a guilty person walks?" Maybe you will agree with me that the jury hears the evidence and makes a decision, right? Then, go one step further - you have the basic right to have the State prove guilty beyond a reasonable doubt - not a "maybe" level of guilt - I did not make that up. That is our standard of proof since we have been a nation. I tell juries that their verdict of Not Guilty is not a moral decision. It is a legal decision based on law and facts. Not Guilty means "Not Proven". If you start laughing and saying - well, that's a joke. Would you want someone in the US to actually be convicted on lesser proof? ok, that's enough for a starter!!

Anonymous said...

Oh, and how do I feel about a person who I may think is guilty walking out of the courthouse? I will believe that our system of justice works. No one system is perfect. Look at the Middle East - you want a hand cut off = no trial, no burden of proof - just cut off a portion of your body if you are accused of committing a crime - like adultery, minor theft, etc.So, our system is a good one - as I said - not perfect - but it works better than any other one you can, name one better!

Jan C said...

I can't name a better system. But that doesn't mean we can't improve on the one we have. If our system works 70% of the time, then we need to find a way to make it function better the other 30%. It isn't OK to have innocent people in prison or guilty people walking free.

Anonymous said...

I agree Jan.

Stan, you say that most people accused of a crime plead guilty. I question the accuracy of this statement. Can you explain it further, perhaps offer statistical data or another compelling source?

Katherine, with all due respect, you've skirted around the question at hand. Rather than answering how you FEEL, you've stated what you choose to believe, etc.
We all know, and have discussed this before, that the jury has access to much less information than you have. Much evidence never makes it to their ears, not because it isn't relevant, but because of some technicality that works on behalf of the accused.
We KNOW the veracity of one's constitutional rights, etc. Are you saying you're NEVER faced with an internal moral ambivalence with regard to such things?

Anonymous said...

"I will believe that our system of justice works."

Okay, that's a valid rationalization, but that wasn't actually my question.

"Are you saying you're NEVER faced with an internal moral ambivalence with regard to such things?"

That was my question. (Thanks, A.)

"Stan, you say that most people accused of a crime plead guilty. I question the accuracy of this statement. Can you explain it further, perhaps offer statistical data or another compelling source?"

Ditto here.

And what Jan said.

Anonymous said...

When I was a very young prosecutor I had to try a very serious DWI case where an accident had occurred. I was nervous about picking the jury. I did not have a lot of experience. I stayed up late the night before reading all of Cat Bennet's books and articles about jury selection. I walked into the courtroom determined to try her methods. I did not have a great case. But I was certain that her techniques would give me the advantage I needed.
Then I looked out at the jury panel. I was shocked. Sitting in the second seat on the front row was Cat Bennet.
I was too nervous to try her methods with her sitting there. I just wanted it to be over.
She raised her hands to ask question after question. I did not want to call on her. I was sure she would see my case had problems. But I could not ignore her since she was sitting in front of everyone else. I do not even remember if won or lost. But I will never forget the feeling of panic when I saw her in the courtroom..
She was a great lady and I admired her very much.

stan schneider said...

I don't know the number today but in Harris County, Texas, the number of pleas in criminal cases was over 90%

Anonymous said...

Judge Criss - what surprised you more....when Bobby DUrst was found not guilty............or after the trial when he came up to you in Houston at the mall???? didn't he know he was violating his probation??? what did he say to you? do you think he will kill again???

Anonymous said...

I think the only offensive statement here was "I pick jurors who have college degrees or higher degrees" (should actually be a paraphrase, but you get the point)

I dropped out of highschool. I finally got my GED and went to a podunk community college. I have met some educated people who are incredibly dumb and ignorant.

I understand the concept that the accused has to be represented and I don't need a degree to get "it" either. I am also knowledgable about a whole lot of different things even though I am self taught.

There are a bunch of blue collar and uneducated people out there who have made the right decisions in the justice system. Be it a guilty verdict or a non-guilty verdict.