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A new computer software program that helps weed out biased jurors is raising a dilemma for lawyers: Should they go with their gut instinct when picking jurors, or listen to a computer? Dozens of attorneys in the last year have embraced the concept of using a computer to help strike biased jurors from their cases, including the defense lawyer in the Andrea Yates murder trial. With the help of a computer’s advice, Houston attorney Wendell Odom seated a jury that was sympathetic to his client. In July, Yates was found not guilty by reason of insanity for drowning her five children in a bathtub. Texas v. Yates, No. 0880205 (Harris Co., Texas Dist. Ct.). Criminal and civil attorneys alike note that using computerized statistical data to help detect a biased juror is a useful tool, especially when they have a few peremptory strikes left and they don’t know on which jurors to use them. In the end, they say, the computer helps them strike the dangerous jurors, and pick the ones that are most sympathetic to their case. But lawyers and legal experts are skeptical about the legal and ethical ramifications of using computers to help pick juries. They worry about computer glitches and constitutional challenges involving racial or sex discrimination-sex and race are among the several factors that the software uses to calculate a juror’s score. They also fear that lawyers might come to depend heavily on the computer and become careless. “I think we’re in a dangerous place if [the computer] serves as a substitute for the judgment call that lawyers make,” said plaintiffs’ attorney Gino Brogdon, also a former state trial judge for 10 years. “I would never want the computer to be so heavily relied on that my instincts and my judgment get lazy,” said Brogdon, of Atlanta’s Alston & Bird. “You would basically be a guy there with a remote control picking a channel. You never want your skills to get that dulled.” Brogdon also fears that using a computer’s advice to strike certain jurors could trigger constitutional challenges, particularly if the stricken juror is a member of a minority, and one of the factors that went into rating that juror was race. “As an aid, it’s a great thing,” he said. “But even using it as an aid, lawyers open themselves up to some potentially dangerous challenges.” But attorney Jason Webster has no such fears. The Houston lawyer was part of the plaintiffs’ legal team that helped choose jurors in a recent wrongful death case involving Vioxx. Plunkett et al v. Merck & Co. No. 2:05-CV-04046-EEF-DEK (S.D. Texas). He used a computer software program called JuryQuest. His client didn’t win-the case ended in a hung jury-but he still believes that the software can help lawyers make tough decisions when faced with the deadline pressures of voir dire. “When a judge says, ‘All right counsel, you’ve got 20 minutes for voir dire,’ you go, ‘Oh, great!’ ” said Webster, of Abraham Watkins Nichols Sorrels Matthews & Friend in Houston. He added that the computer can reveal information about jurors who don’t get questioned due to a lack of time. “ It’ll never replace asking the juror questions, but it will give you a good place to start,” he said. The Yates case JuryQuest also proved to be some powerful arsenal for the defense in the Yates trail. Odom, Yates’ lawyer, readily admitted that the software played a role in helping him seat a jury that was sympathetic to his client’s battle with mental illness. The software, which was introduced about a year and a half ago and costs about $2,500 a day in criminal cases, takes demographic information provided on jury questionnaires and plugs it into the computer. The software gives scores to potential jurors to see if they are likely to be more friendly to the prosecution or the defense. It does this by matching demographics against a massive database of national surveys that correlate attitudes and opinions to verdicts. Currently, JuryQuest is the only jury-selection software on the market. SmartJury, a similar product, developed by a Florida trial attorney, is no longer on the market. However, it is the process of being revamped by a Pensacola, Fla.-based company called Consolidated Technology Solutions Inc. (CTS America), which plans to release the newer version at an unknown later date. Odom, a Houston-based solo practitioner, used his own skills and instinct in striking most of those he felt were dangerous jurors. But when it came down to his last strike, he took the computer’s advice and dismissed a woman of whom he hardly remembers anything. It was worth the gamble. Odom noted that before the Yates trial even began, JuryQuest rated seven of the jurors as significantly biased in his favor. By deliberation time, eight of the jurors leaned in Yates favor. Two days later, she was acquitted. “You can’t overemphasize the importance of the software. It was very valuable in our jury selection,” Odom said. “This will never, never replace what you find out in your voir dire, but it is another tool to help you in the selection process.” Odom also noted that this was his second time using JuryQuest. In his first experiment, his client was convicted of negligent manslaughter, but he felt the software played a role in getting a lighter sentence. She could have received 10 years to life, he said, but instead got two years. Tool with ‘limitations’ Meanwhile, several attorneys are responding to the concept of using computers to help pick juries with both intrigue and skepticism. “I see it as a tool that’s got limitations,” said Peter Bicks, partner at the New York office of Orrick, Herrington & Sutcliffe. “I think it could be the wave of the future, but it’s got to be used in conjunction with face-to-face assessments.” Bicks noted some potential pitfalls of using computers to pick juries. For one, he said, there are computer glitches to consider, which could hinder the jury selection process. “All you have to do is type in one wrong input and you throw the whole thing off,” Bicks said. Bicks also noted that computer-picked juries could raise some concerns under Batson v. Kentucky, 476 U.S. 79 (1986), the U.S. Supreme Court’s ruling that said jurors can’t be struck on ground of race. Case law also prohibits discriminating against a juror on ground of sex. He said that if a lawyer uses computer advice that relies on such demographic data, one could argue that this is illegal under Batson. Mark C. Zauderer, who chairs the Commission on the Jury in New York, a group handpicked by the state’s chief judge to seek ways to improve the lot of jurors at trial, cautions attorneys against relying too heavily on computers to help pick juries. “If it turned out that there were flaws in the data or the process, that would be new territory for the field of legal malpractice,” said Zauderer, of Flemming Zulack Williamson Zauderer in New York. Zauderer said that while computers are a useful tool in helping guide attorneys during jury selection, they are no “substitute for intuition and the experience of a trial lawyer.” He said that even in a tough situation, in which he felt stuck on a particular juror, he would use his own judgment over a computer’s advice. “At the end of the day, I think every trial lawyer feels that over the long run, their instincts are their best tool,” Zauderer said. But the makers of JuryQuest maintain that they have no intention of replacing either voir dire or a lawyer’s instincts. The software is only to be used as a tool to help guide them through the tough spots, when they are stuck on a handful of jurors about whom they know very little. “The key here is even the best attorneys will tell you that they are really good at picking nine or 10 jurors. The problem is the two or three that have never said anything. That’s where it becomes a guessing game,” said Norm Revis, co-founder of JuryQuest. “We’re using scientifically validated data to improve the odds of identifying the most dangerous jurors at crunch time.” Stacking the deck? But is the new software more about weeding out biased jurors, or stacking the deck? That’s the question posed by law Professor Gabriel “Jack” Chin, of the University of Arizona James E. Rogers College of Law. He believes that the new software will trigger a debate about “the wisdom of having peremptory challenges at all.” He said, “Peremptory challenges were supposed to be about getting rid of potential jurors who weren’t going to be fair.” Chin also believes that the software could lead to more hung juries.”If both sides are using jury-selection software, maybe we’ll have more hung juries because both sides will get some number of jurors who are really sympathetic to their side,” Chin said. Therapist and jury consultant Dr. Shari Julian, who teaches criminology at the University of Texas and serves as an expert witness in criminal trials, sees a major benefit to using computers during jury selection. She noted that just like the human eye can catch things computers cannot, computers can do the same. For example, she said, there are a great number of people who have hidden agendas and who lie to get on a jury, but the the attorney can’t spot that. “You bring in 150 people that have every kind of personal history. You just don’t know what their agenda is, how they really look at things. Some instrumentation can raise some red flags,” said Julian. She said further that a computer’s advice is worth taking a gamble on when you’re stuck between two jurors. “If the [computer's] numbers look really good and it was between one juror and somebody else, I would mentally roll the dice and take the computer’s advice.”

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