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Bucking a long-held tradition of eschewing jury consultants, the Alameda County prosecutor’s office may hire an expert to help vet jurors for the “Riders” case. In the first trial, a deeply divided jury �� led by a law school student foreman who said he made up his mind not to convict before deliberations began �� hung on 27 of 35 charges against three ex-cops accused of criminal misconduct. While civil attorneys have long relied on such consultants, the prohibitive cost has made prosecutors reluctant to use jury experts. However, that has changed in recent years, as intense media scrutiny has raised the stakes of high-profile cases. Prosecutors who tried Timothy McVeigh, O.J. Simpson and the defendants in the dog mauling trial all used jury consultants. Most recently, attorneys on both sides of the Scott Peterson murder trial in San Mateo have retained high-powered jury experts. The prosecution has hired Howard Varinsky, an Emeryville consultant who recently helped federal prosecutors trying the Martha Stewart case. The defense tapped Jo-Ellan Dimitrius, a trial consultant who advised O.J. Simpson’s defense attorneys. While the Riders case isn’t a Martha Stewart-level scandal, Deputy District Attorney Terry Wiley says the prosecution could benefit from a jury expert. Wiley said he plans to discuss the issue with DA Thomas Orloff. “I think this case is completely different than any other,” Wiley said. If Wiley uses one, it would be a first for Alameda’s prosecutors, said Orloff, who declined to discuss specifics about the Riders case. Orloff said jury experts can be helpful when a trial has an unusual dynamic, such as a celebrity defendant. But “in most cases, an experienced prosecutor does not get a benefit from a jury consultant,” he said. For starters, an expert could help Wiley put more African-Americans on the jury, he said. That’s critical because the Riders victims are black and because the ex-cop’s crimes took place in black neighborhoods. In addition, police officers “are not [usually] the people you would see at the defense table,” Wiley said. An expert “could help us deal with those issues.” The Riders defense team has also put a jury consultant on their wish list. A jury expert would help the defense deal with “negative publicity and inflammatory publicity” about how there were no black jurors on the Riders case, said Michael Rains of Pleasant Hill’s Rains, Lucia & Wilkinson. The expert could also help with the defense’s planned change of venue motion, he said. Both the defense and the prosecutors say that a jury consultant would not have helped prevent the hostility that broke out during the first trial’s jury deliberations. Jurors say that the discussions were emotionally charged, and at one point jurors almost came to blows. Rains said the deliberations for long trials are more acrimonious than shorter ones. “That could happen with any trial,” Wiley agreed. If neither side in the Riders case hires a consultant, it will be because of the price tag. Attorney and jury consultants say that fees can range from $150 to $350 per hour. If a consultant prepares a jury questionnaire, conducts two focus groups and helps with voir dire in court, the cost could climb to at least $15,000, said Karen Fleming-Ginn, a Walnut Creek jury expert. “PORAC [Peace Officers Research Association of California] makes us keep a tight rein on what we do and how we spend our money,” Rains said, referring to the statewide law enforcement group that has paid for the defendants’ legal expenses. Wiley, the prosecutor, also noted a consultant would be “very expensive.” He declined to say how the DA’s office would pay for one. Even among the Alameda County defense bar, using jury consultants is the exception rather than the rule. Because jury experts are expensive, the PD’s office has only used a jury consultant once, said Assistant Public Defender James McWilliams. Richard Humphrey, an Oakland attorney who represents poor defendants through the county’s conflicts panel, says he’s gotten court funding to hire consultants for some trials, but not others. While counties are strapped for funding, civil litigators are willing to shell out money for jury experts because millions are on the line, Varinsky said. Varinsky added that he charged a low, “government rate” when he counseled San Francisco prosecutors in the 2002 dog mauling case, but declined to discuss the specifics. There are other reasons that prosecutors have been slow to warm to consultants. Humphrey speculated that prosecutors are usually secretive about their cases, so they may be reluctant to share information with a consultant. Many experienced prosecutors probably feel that they don’t need “some shrink” to tell them how to pick a jury, said Fleming-Ginn, the jury consultant. Since deputy DAs try �� and win �� most of their cases, they may perceive that jury experts are a crutch for civil attorneys who rarely try cases, said Fleming-Ginn, who worked for the defendant Robert Noel’s attorney in the dog mauling case and for federal prosecutors in the Timothy McVeigh Oklahoma City bombing trial. A veteran Santa Clara County prosecutor says those theories may be at least partially true. Deputy District Attorney Lane Liroff said he would probably use an expert if his office could afford one. But Liroff has full confidence in his own voir dire skills. “My jury selection skills are drawn from trying cases for 25 years,” he said. The defense used a jury consultant in a case Liroff successfully prosecuted, the attorney said. “Darn it if it wasn’t one of the best juries I’ve ever had.” San Francisco Assistant District Attorney James Hammer praised Varinsky’s advice during the dog mauling trial. In that case, San Francisco attorneys Marjorie Knoller and Robert Noel were tried for murder and manslaughter after their dog mauled their neighbor to death. Before the trial, Varinsky set up a focus group that watched attorneys put on both sides of the case. Although jury instructions stated the prosecution did not have to prove Knoller had an “intent to kill” for a murder conviction, that issue was a big stumbling block for the focus group, Hammer said. During the real trial, prosecutors repeatedly emphasized that “intent to kill” was not required by law. The jury convicted Knoller of second-degree murder, but it was later reduced to manslaughter. Noel was convicted of manslaughter. The focus group “was such an invaluable process,” Hammer said. “It told us the heart of the case was implied malice.” A trained jury psychologist could be a great help in the Riders case, Fleming-Ginn said. The expert recently handled a local death penalty case where virtually all of the black jurors said they didn’t like the outcome in the first Riders trial. That’s an indicator, she said, that jury selection may be difficult the second go-round. “Something happens when people have the perception that the first jury didn’t do their job.”

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