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.
Ink Blotter
trial consultant, Robert Hirschhorn; the jury "de-selection process" by contributor and murder prosecutor Donna Pendergast; and the opening this past Thursday of the New York stage production of The Judas Tree. Contributor Diane Fanning told us the story behind the play which is based on real-life female serial killer Dorothea Puente. 
trial consultant, Robert Hirschhorn; the jury "de-selection process" by contributor and murder prosecutor Donna Pendergast; and the opening this past Thursday of the New York stage production of The Judas Tree. Contributor Diane Fanning told us the story behind the play which is based on real-life female serial killer Dorothea Puente. 
