Scientific Jury Selection and Trial Consultants

 

“Benedict Arnold with a briefcase” the year is 2005 and Bill O’Reilly is really mad. He is talking to a still on dope Rush Limbaugh and they are going over who is the worst person in America. Mr. Limbaugh hates Cindy Sheehan; the mother of a soldier killed in Iraq, and is comparing her actions with those of Bill Burkett, the retired Texas Air National Guard officer who provided CBS’ 60 Minutes with unauthenticated documents regarding President Bush’s National Guard record. They hate Cindy Sheehan, hate anti-war protestors, but most of all they hate “Benedict Arnold with a briefcase” Ramsey Clark.

Ramsey Clark is an attorney, former United States Attorney General, and according to Fox New’s top political pundits, Ramsey Clark is the greatest traitor seen since George Washington was fighting the Redcoats. In 2005 Mr. Clark was defending Saddam Hussein, who was the newest addition to the long list of odious and high profile clients that he has defended. Over his career Ramsey Clark has defended Slobodan Milosevic, the Palestinian Liberation Organization (PLO), Elizaphan Ntakirutimana a Hutu leader in Rwanda that committed genocide against his own people, Branch Dividian leader David Koresh, and  a Nazi concentration camp boss named Karl Linnas.[1] Mr. Clark has been accused many times by his detractors of using high profile international trials to take jabs at United States foreign policy. Mr. Clark has in fact said that “The greatest crime since World War II has been U.S. foreign policy.”[2]

It was during the 1970’s that Ramsey Clark ushered in a new paradigm to the American legal system, it has become to be known as Scientific Jury Selection (SJS.) In a 1972 trial Ramsey Clark was defending a group of anti-war radicals who were against the war in Vietnam. These defendants at first look were very unlikely suspects for the US government to be after. They were called the Harrisburg Seven and of the seven defendant’s five were Roman Catholic nuns, one was a priest, and one was a man who worked at a university library. The priest’s name was Phillip Berrigan who believed that “Peacemaking is not only a central characteristic of the Gospel; peacemaking is the greatest need of the world today.”[3] One wonders what could a group of nuns, a librarian, and a priest do to be on trial? As it turns out the crime that these unusual defendants had been accused of seems to be taken from the pages of a Walt Disney script that starred Don Knox as the bumbling Father Berrigan. They had been accused of conspiring to kidnap then National Security Advisor, Henry Kissinger in an effort to end the Vietnam War. The strategy of defense in the Harrisburg Seven trial was indeed brilliant in that Ramsey Clark called no defense witnesses to testify and used sympathetic Psychology Professors to help him with jury selection. Mr. Clarks strategy worked after a long deliberation, the jury remained hung and the defendants were freed. The Harrisburg Seven trial is extraordinary for reasons other than a bunch of nuns did not end up on a chain gang. The reason that this trial is so important is that it was the first time that Scientific Jury Selection played a key role in a criminal trial.

Scientific Jury Selection (SJS) is defined as: the use of social science techniques and expertise to choose favorable juries during a criminal or civil trial. It typically entails an expert’s assistance in the attorney’s use of peremptory challenges during jury selection. Such experts commonly include sociologists, criminologists, and former attorneys, but are usually psychologists. The practice is currently confined to the American legal system[4]. The reason that SJS is currently confined to the United States is that we are the only nation that does jury selection as we do. SJS practitioners are not regulated by any national or state body, due to the nature of their work there are no specified licensure or training required for employment in the field of SJS.[5] People that are employed in the field of SJS are referred to as trial consultants, legal consultants, and litigation consultants and these terms are used interchangeably. The term trial consultant is currently the most favored term applied to this discipline with most people who work in this  field referring to themselves as such. The term litigation consultant often implies a person who deals with all phases of trial consulting, while the generally used trial consultant has typically been used of a person who concentrates on certain aspects of a trial. The term jury consultant has fallen out of favor as many view this term to be very narrow in scope .

Though SJS does not have any governing body or licensure, a national voluntary group exists, this group is called the American Society of Trial Consultants (ASTC.) The ASTC as of 2005 had about 450 members, however the number of people practicing trial consulting in the United States is hard to gauge since there is no required licensure or registration. The ASTC has estimated that their membership probably includes only ten percent of all people who practice trial consultation in the US and this is probably a fair estimate as their membership dues are $250 a year (though as of this writing membership is currently on sale and dues have been cut in half till June of 2010) these

dues seem to only include a monthly newsletter and an annual conference that one can pay to attend.

Since there are no licensure requirements the field of SJS and trial consultation are very diverse. Salaries range dramatically and numerous factors contribute to how much or how little a person involved in this field makes. The ASTC estimates that many people in SJS make six figure incomes annually, however it is probably in their best interest to believe this and promote this high salary as being the norm since they are after all an organization that relies on donations, and what better way to get new members than to appear to have many due paying members seeming to make high salaries and being prominent in their field. A more realistic look at SJS sees that much like in the practice of law itself salaries vary greatly and depend more on location and firm size than on any other characteristic. The trial consultant practitioner in a large New York SJS firm could indeed make in the six figures with large salaries and bonuses being the norm. The trial consultant who works at either a private practice or a small town firm however does not see anywhere near these exorbitant figures and in fact often is only a part time consultant, with their main income generating from either the field of academia or the varied fields of psychology or speech communication. Many attorneys have also done graduate work in speech, psychology, and sociology and offer their services as well. One of the most famous trial consultants currently is Dr. Phil[6] who until 2003 was the President of Courtroom Scientists in Irving, Texas and who met Oprah while providing trial consulting services at her trial against the cattle producers in Amarillo.

The industry of trial consulting has come a long way from the Harrisburg Seven trial in 1972. Throughout the rest of the 1970’s and through much of the 1980’s many civil rights activists were helped by trial consultants in highly publicized trials. Much public attention has been brought to the use of trial consultants during the trials of Michael Jackson, Scott Peterson, and Kobe Bryant. During the O.J. trial, both prosecution and defense used trial consultants. Though this might lead one to believe that SJS and trial consultants are only used in criminal trials, the ASTC is quick to point out that most of the work done by consultants in now confined to the realm of civil litigation. In fact a survey of ASTC members found that on average, “only 5% of their time was spent working on criminal cases, while nearly 80% of their time was spent representing clients who were involved in civil cases.”[7] This study goes on to note that “The remainder of consultant’s practice was dedicated to activities they listed in the category of other including: congressional testimony, international arbitrations, patent hearings, and continuing legal education.” The ASTC contends that the average client for a trial consulting firm today is often a large organization that is a defendant in a product–liability case or a wrongful-death civil suit. Mass torts such as the mesothelioma/ asbestos cases and breast-implant suits also use trial consultants.  A large player in SJS and trial consulting is Trial Behavior Consulting Inc. (TBCI)[8], who handled the defense of 150 asbestos related trials in the 1980’s.  TBCI’s founder David Island has estimated that he has picked between 300 and 400 juries and prepared between 1,000 and 1,500 witnesses in asbestos related cases over the years. TBCI’s website gives a glimpse of the many services that are currently provided by todays trial consultants.  Listed on the site are eighteen areas of specialty that include (among others): antitrust, asbestos, aviation, construction defect & landslide, eminent domain, mold litigation   patent, professional malpractice, securities litigation, toxic torts & environmental, and trucking. Just digging around TBCI’s website, one gets a true picture that this company has been involved in SJS and trial consulting of almost every kind. In addition an area of TBCI’s website gives advice (and a 13 page PDF) to the attorney about “Humanizing the accused gang defendant.” TBCI is indeed diverse and gives advice to the attorney (and another huge PDF) entitled “The Top Seven Myths of Trying IP Cases.” No fees are ever quoted on TBCI’s web site, and the industry is very tight lipped about giving out information of what they charge. The ASTC recently did a survey of its members and found that very few members were willing to talk about the fees that they charged. In 1994 though a study was done that reported that most trial consulting firms charged between $75 and $300 an hour. It is often assumed that many do not speak of what they charge for both fear of regulation and also because the field is competitive with different companies often competing for the same client and attempting to offer the best deal.

In all the role of SJS and trial consulting firms seems to have firmly enmeshed itself on the legal system of the United States. While many people view trial consultants as being a way that rich criminals can manipulate the justice system, SJS and trial consultants are more likely to be employed for civil trials and class action lawsuits. This problem with public relations is something that seems to have been brought on the industry of trial consulting by the media due to high profile trials such as the O.J. Simpson criminal trial. As this young industry matures however, more will probably become known about it, and the public will more than likely see SJS and trial consulting as just an additional piece in the legal equation. What Ramsey Clark started in 1972 with his defense of nuns, a priest, and a librarian in the Harrisburg Seven trial has grown into a multimillion dollar industry where the best people in the field can earn six figure salaries annually. This industry is currently unregulated and has no barrier to entry, and because of this one can only assume that the future of SJS and trial consulting will be very bright indeed.

 

 

 

 

References:

 

  1. Williams, Michael . “Anti American Scum”. <http://www.mwilliams.info/archive/2005/12/ramsey-clark-is-antiamerican-scum.php&gt;.

 

  1. Think Exist. <http://thinkexist.com/quotes/ramsey_clark/&gt;.

 

  1. Phillip, Berrigan. Start Loving. <http://jesusgodgoodetcnjay.blogspot.com/2007/08/phil-berrigan-quotes.html&gt;.

 

  1. “Scientific Jury Selection”. Nation Master Encyclopedia. <http://www.statemaster.com/encyclopedia/Scientific-jury-selection&gt;.

 

  1. Posey, Amy. Trial Consulting. New York: Oxford University Press, 2005.

 

  1. “Oprah accused of whipping up anti-beef ‘lynch mob'”. CNN. <http://www.cnn.com/US/9801/21/oprah.beef/&gt;.

 

  1. Kressel, Neil. STACK and SWAY. Boulder, CO: Westview, 2002.

 

  1. “Trial Behavior Consulting”. Trial Behavior Consulting Inc.. <http://www.trialbehavior.com/&gt;.

 


[4] “Scientific Jury Selection”. Nation Master Encyclopedia. <http://www.statemaster.com/encyclopedia/Scientific-jury-selection&gt;.

[5] Posey, Amy. Trial Consulting. New York: Oxford University Press, 2005.

[6] “Oprah accused of whipping up anti-beef ‘lynch mob'”. CNN. <http://www.cnn.com/US/9801/21/oprah.beef/&gt;.

[7] Kressel, Neil. STACK and SWAY. Boulder, CO: Westview, 2002.

[8] “Trial Behavior Consulting”. Trial Behavior Consulting Inc.. <http://www.trialbehavior.com/&gt;.

 

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About criminality

Hello my name is Brandon Stacker and I am a graduate student at Wayland Baptist University studying Criminology and Business Administration. This blog deals with Criminal Justice topics that affect both society as well as the law enforcement professional.
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