Trial lawyers have enough challenges preparing for trial. But when sensational cases are dissected in the media before the trial begins, lawyers are forced to deal with a new concern.
Public perception can be difficult to change.
As soon as pundits or self-proclaimed experts appear on television, arguing their agendas or analyzing possible evidence, potential jurors are inundated with extraneous and prejudicial information that contribute to forming preconceived notions.
"You're fighting that your jury pool has already decided your case," said Gary Gibson, adjunct professor of advanced criminal litigation and California trial evidence at California Western School of Law (CWSL).
"Normally, their opinions don't form until they hear what kind of case it is, and that happens inside the courtroom. You expect that jurors will come in unblemished and unbiased," said Gibson, who is also a deputy public defender in San Diego County.
In some cases, lawyers have launched their own pretrial publicity campaign, which can be the first phase of legal strategy.
In the O.J. Simpson case, for example, the defense lawyers dominated the media by repeating that the Los Angeles Police Department rushed to judgment and Simpson could not have committed the murders of his ex-wife, Nicole Simpson, and her friend, Ron Goldman.
Similarly, defendants themselves use the media pulpit. Ken Lay, the former chairman of Enron facing felony charges for the company's collapse, has made several appearances on television, including "Larry King Live" and "60 Minutes." During one interview in March, Lay said he cannot take responsibility for the criminal conduct of someone else in the company.
Jurors preconditioned by the media can view trial evidence differently, had they not been introduced to prejudicial information before trial, noted Mark Mazzarella, a litigation consultant and partner at Mazzarella, Dunwoody & Caldarelli.
"For example, in the Scott Peterson case, people had already made up their minds (before the trial began)," Mazzarella said. "Most people will deny it, but they did."
Locally, lawyers involved in the City Hall corruption case may be concerned that potential jurors already have decided whether Councilmen Michael Zucchet and Ralph Inzunza are innocent or guilty.
The councilmen are accused of accepting money from lobbyist Lance Malone, strip club owner Michael Galardi and club manager John D'Intino in exchange for abolishing a law that prohibits touching between strip-club dancers and patrons. The trial begins May 3.
Since the FBI raided the councilmen's offices in May 2003, local newspapers, magazines, Web sites, radio and television stations have reported hundreds of stories about secretly recorded conversations, alleged mob-related associations, ties to strip clubs and links to corrupt politicians in Las Vegas.
It's likely San Diegans already have formed opinions based on their own belief system and what they've heard about the case. To learn how strong these opinions are and why, lawyers can conduct research. Understanding these dynamics can help with trial strategies.
Litigation consultants, or jury psychologists, employ a battery of research methods, such as focus groups, trial simulation, lifestyle clustering or telephone polls, to understand public opinion about the case's relevant issues, whether there's been pretrial publicity or not.
While conducting research may cost thousands of dollars, unless the work is pro bono, the knowledge obtained from the results could help keep defendants out of jail -- or put them there.
The best testing method for the City Hall case is a telephone poll, said both Gibson and Mazzarella. The sample size should range from 200 to 400 people in order to be statistically significant, and it also should reflect the same demographics as the actual jury pool for San Diego's federal district court.
The questionnaires, usually no more than 10 minutes in length, are designed to help lawyers understand attitudes and biases.
Potential jurors could be asked their gender, age, race, marital status, number of children, annual income range, educational level, political affiliation, whether they rent or own their home or how often they read or watch the news.
They also could be asked if and what they've heard about the case; what they think about politicians in general; how they feel about city politics; how much they trust the federal government or the FBI; or if they think the councilmen are guilty or innocent.
While "yes" or "no" questions are useful, the strength of opinions are revealed by using a scale: agree strongly; agree; disagree; disagree strongly; or no opinion.
In many cases, two or three demographic factors show a statistically significant correlation to attitudes or beliefs, said Mazzarella. Sometimes, however, attitudes cut across demographics.
The questionnaire results also could help the lawyers form ideal profiles. For example, the defense may consider that someone is "ideal" if he or she is shown not to have self-righteous characteristics, speculated Mazzarella. Based on his or her belief systems, this type of juror could consider that the councilmen's fund raising could be categorized as aggressive and that may not translate into a quid-pro-quo situation or bribery.
If the telephone polling shows that attitudes are consistently skewed negatively against the defense or the prosecution, lawyers for that side need to consider whether they can overcome that hurdle, said Gary Gibson of CWSL. If not, the lawyers should file a motion for a change of venue, despite the expense of relocating to a different city, to get a fair trial.
Understanding attitudinal dynamics before trial also can help with the voir dire process. Not all lawyers, however, are convinced that jury research is the final answer.
Colin Murray, a former prosecutor with the San Diego County district attorney's office who's had exposure to litigation consultants during his 14 years of trial experience, said he would not pick a jury solely on the ideal character profile provided by litigation consultants.
"Jury consultants are helpful," said Murray, currently a partner with Baker & McKenzie. "They draw on certain sets of assumptions that follow from responses of socioeconomic questions (asked of potential jurors)... I'd rather have that information than not."
Murray added, however, that he's relied on his own instincts in the 50 cases he's prosecuted that have gone to verdict. To determine the qualities of an ideal juror, depending on the case, Murray has used knowledge based on his experience.
The goal isn't necessarily to make sure the jurors who have those ideal characteristics are on the jury; instead, it's to make sure the people who don't have those ideal characteristics are off the jury, he said.
Even if a juror fits his ideal profile, Murray said he hasn't been afraid use a peremptory challenge if something about that juror intuitively troubles him.
Learning about the jury pool before the trial is only the beginning, however. Research can help in other ways, such as understanding how jurors think during the trial.
To learn more about trial consultants, visit www.astcweb.org.
Horton is a freelance writer in San Diego.