The Jury Pool
In late August of 2005, final preparations were underway for the civil trial of Robert Blake. Blake, acquitted in March of shooting his presumed "wife," Bonny Bakley, would now face a second jury to determine if he should pay damages to Bakley's estate. The case was often mistakenly portrayed in the media as a wrongful death lawsuit brought by Bakley's surviving children, including Glen Gawron, born in September of 1979, Holly Gawron, two years younger, a daughter named Jeri Lee Lewis, born in July of 1993, and Blake's daughter, Rose, then five years of age and legally adopted by Blake's daughter Delinah. But in reality, the plaintiff in the case was the Bakley estate and its Memphis-based administrator, Blanchard E. Tual, not Bakley's children. (1)
Earle Caldwell, a personal assistant to Robert Blake, was also named as a defendant, despite the fact that a conspiracy charge against him in the criminal case had been thrown out before trial by the judge.
If the process of jury selection was an omen of things to come, it could hardly have looked worse for Bakley estate lawyer Eric Dubin. Several jurors expressed disapproval for Blake being tried again on what amounted to the same charges, saying that he'd already been through enough. Some others said they disagreed with the not guilty verdict in the criminal trial. But one particular exchange between Dubin and a potential juror stood out. It was reported as follows by the Associated Press:
An unusually acrimonious tone set during the first day of questioning persisted Tuesday.
"I have a rather highly tuned [bullshit] detector and it's been going off big time since you started" the questioning, one prospective juror said. "If I were sitting next to you, I would not want you to be representing me."
Dubin appeared taken aback.
"Wow," he said. "Do you think your dislike for me could affect the children I represent?"
The man said it would not, but Dubin followed up: "Have you ever hated a lawyer as much as me?"
"No," the man said. (2)
It was then that Blanchard Tual, the keeper of the funds in Memphis, was apparently asked for monetary assistance to allow Dubin to hire jury consultant Jo Ellan Demetrius (photo below, left), who became well-known after assisting the O.J. Simpson "dream team" in Simpson's jury selection process. Demetrius, author of a book called "Reading People," was also hired soon after Blake's arrest by the office of the District Attorney, presumably to help with jury selection in Blake's criminal trial. Blake's then-attorney Harland Braun told reporters he felt she'd been retained so that he couldn't hire her to assist the defense. There's no evidence that she participated in jury selection for the actual trial. (3)
Not everyone believes that consultants can consistently pick jurors, before testimony even begins at a trial, and know with any certainty that they will decide a case a certain way. Famed "country lawyer" Gerry Spence, who has never lost a case, states that he never uses them and considers "intuitive" jury selection specialists little more than "voodoo" practicioners. "Lawyers hang onto them," Spence says, "because if they lose their case, they have to blame it on somebody." But others swear by the technique, and jury consultants are now the rule and not the exception at most high-profile trials.
For high-paying clients, consultants offer more than just practiced opinion based on body language, dress, patters of speech, and answers to simple questions. For a hefty price, they can conduct community attitude surveys, stratetic trial planning, psychological profiling of potential jurors, and digital jury simulations. The premiere package might also include a number of focus group studies, in which people of carefully chosen "types" are called upon to give their reactions to arguments, theories, and the taped practice testimony of experts.
A consulting firm might likewise use "shadow juries" that follow the actual courtroom action in the consultant's office, allowing the firm to measure impressions made by different arguments or testimony on a daily basis. High-power consulting firms can even conduct "mock trials" before jury selection even begins - essentially trying the case before one or more "juries" consisting of people of different classes from different walks of life, and seeing how each strategy resonates with each juror. Theoretically, in other words, the case can be won and lost half a dozen times using groups of experimental jurors.
This, say the firms that offer the service, enables a legal team to choose those jurors that are statistically most likely to favor their side. It further gives insights about jurors once they actually have been chosen, making it easier to "customize" trial strategies that take their perspectives and biases into account. The legal team supposedly has determined through research what insights are important to which jurors and why, what facts or impressions will most likely be remembered during deliberations, and how witness demeanor and content of testimony affects the credibility of a case.
Jury consultants also help with the preparation of witnesses, as well as the design of jury selection questionnaires, using probing questions to elicit clues that identify jurors with case-specific attitudes that have been proven successful in focus groups and mock trials.
At a bare minimum, though, "professional" jury selection relies on impressions. If the case to be presented at trial requires a curious mind that will crutinize details and look hard at inconsistencies, the legal team is going to want the juror wearing the "Question Authority" teeshirt. But if a lawyer wants jurors that won't notice contradictions and tends to vote their likes and dislikes, the guy in the Homer Simpson shirt is absolutely perfect. If the outcome of the Blake civil matter is evidence, Demetrius must fought hard to get jurors in the Homer Simpson mold.
Disoriented Questions and an Apology
One of the biggest problems facing the Bakley estate in its case against Blake was the lack of experience and courtroom finesse of the Bakley estate's counsel. Even as the jurors denounced Blake's conduct on the witness stand, they made it a point to say that they were put off by Dubin's inability to function in the courtroom.
But at the very beginning of the jury press conference, foreman Bob Horn (at left) stepped forward and read from written notes, making a point of saying, "Mr. Dubin apologized in his closing arguments [for] many of the things that we criticized him for ... the disorganized questions, the court constantly overruling things that he said, the emotional exchanges." The fact that this was part of a brief prepared statement gives the impression that the apology played a serious part in the jury's decision. Dubin, who has huffed and puffed on many a television program since he attached himself to the case almost three years earlier, never seemed the sort to humble himself with a mea culpa to jurors. But he might not have had a choice.
It may never be known if the money taken from the Bakley estate coffers for trial assistance paid for all the trimmings - and a mandated apology. But if it did, and if an expert was present to analyze the responses of jurors to Dubin's clumsy performance, the Bakley estate is probably out a lot of money it has no realistic hope of ever recovering. And that's not even the proverbial "hollow" victory. It's not a victory at all; it's a loss.
(1) See the original civil suit filed in April of 2002 here.