The Science of Selection

By Lary Welborn
Orange County Register News Article

Hoping to pick a jury that is sympathetic to their side, attorneys in Bryant case will rely on questionnaires, experts.

If Kobe Bryant looks up and sees a Colorado jury of mostly middle-aged women with sons about his own age, he’ll be acquitted.

That’s the opinion of veteran Orange County defense attorney Paul Wallin, whose Tustin law firm specializes in the defense of sex cases.

But if the Lakers star gets a jury of older white men with teenage daughters who have established roots in Eagle County, he could be in trouble.

That’s the opinion of former Orange County prosecutor Jeoff Robinson, who now has a civil law practice in Newport Beach.

Both veteran trial lawyers agree that the case of People of Colorado vs. Kobe Bryant could be decided with jury selection, which starts Friday, before any evidence is presented.

Pick the right jury, they said, and your chances of prevailing are increased.

But the task of picking that perfect jury is not that simple, insists Dr. William C. Thompson, a University of California, Irvine, criminology professor who teaches jury-selection techniques.

“What I teach is that the intuitive notions and predictions of attorneys are often not very accurate at all, and the jurors excused are sometimes the jurors who would have been the most helpful,” Thompson said.

Trial attorneys in the Bryant ease will not have to rely on intuitions alone.

How panelists are selected

The first task for lawyers in the Kobe Bryant rape trial in Eagle, Colo., will be to trim 999 potential candidates down to the 12 people who will hear the case, plus a few alternates.

The judge and persecution and defense attorneys will first screen the panelists for work, health or vacation conflicts. Summoned jurors are often excused if they have prepaid for a vacation.

The attorneys will then have a chance to challenge jurors “for cause” after questioning, if they can prove that the candidate might not be fair.

The standard for that challenge is similar to the standard in California; Had the person demonstrated a state of mind that shows a bias toward on side or the other, and then cannot set aside that bias in order to be fair during deliberations?

Attorneys also will have five challenges without stating a reason, plus one extra challenge per alternate.

But neither side can use those challenges to systematically remove a class of juror candidates.

First, they will be able to review answers to 115 questions all potential jurors will provide in a questionnaire. And then they will turn to professional jury consultants for their take on the jury pool. The prosecution, for example, ahs hired nationally known jury consultant Jo-Ellan Dimitrius, who won acclaim after she provided advice to the defense team in the O.J. Simpson trial in 1995 and who helped the defense in the ongoing Scott Peterson case.

In Orange County, Dimetrius was a consultant to the defense in the trial of three teenagers – including Greg Haidi, the son of an assistant sheriff – accused of gang-raping an unconscious 16-year-old girl. That trial ended in June with a hung jury.

Bryant, 26, faces four years to life in prison if convicted of raping a hotel worker then 19 years old, at a Vail-area resort last year. Bryant says the women came to his room and had consensual sex with him.

The jury pool in Eagle County has fewer females (45 percent) than the national average (50 percent), and that could be a concern for prosecutors.

That because legal experts in Orange County this week agreed on one theme: Defense attorneys and former prosecutors alike feel that women jurors are likely to be more critical of the accuser in the Bryant rape case than would men.

“Older woman would absolutely look at this alleged victim and her life style with disgust, ” Wallin said. “They would come out after an acquittal and say things like, “She got what she deserved,” or better, “What did you think was going to happen in that room?'” The accuser reportedly had multiple consensual-sex partners during the same time frame she claimed she was raped by Bryant, according to evidence presented in pretrial hearings.

Women with adult sons, Wallin said, also could think that the accuser “is a tramp and that the same thing that is happening to Kobe could happen to their sons.”

Robinson, a former sex-crimes and homicide prosecutor with more than 135 trials under his belt, added: “Men are more apt to accept the alleged victim’s story without questioning it.”

Rich Farnell, another former prosecutor now doing civil law in Newport Beach, agreed. “My experience with rape cases is that women are notoriously highly critical of alleged victims in rape cases.”

That doesn’t mean that all prosecutors would try for a jury that is all or mostly make.

Chuck Middleton, Orange County chief assistant district attorney, said he would opt for people who have strong ties to the Eagle community, who have families and who are not awed by celebrity, regardless of whether they are men or women.

Robinson added that if he were prosecuting the case, he would make absolutely sure to ask every juror. “Even if you believe the women has questionable moral character, can you vote guilty if we prove there is a violation of law?”

He said if jurors could not answer that question “yes,” he would ask that hey be removed from the case.

The experts also agreed that the trial attorneys on the Bryant case will have to question potential jurors about their feelings concerning celebrities.

It cuts both ways, explained Orange County defense attorney John Barnett.

Some people will feel that Kobe thought that because he is a celebrity he could do whatever he wanted to do, while others will feel that the victim got what she wanted when she went to his room.”

Jon Stavney, the mayor of Eagle, said he doesn’t think celebrity will be an issue in the trial.

We’re more used to millionaires and celebrities than a lot places, he said..