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“He’s guilty!” That seems to be the consensus about Scott Peterson. A liar and marital cheat who murdered his wife, dyed his hair, grew a goatee, stuffed his wallet with thousands of dollars and was ready to abscond with somebody else’s ID, when he was caught in the nick of time. It makes a good story and it sounds reasonable. And all the defense can answer is, “No he didn’t. Laci was abducted while walking her dog.” The prosecution has a sexy, juicy story, with all its gory details; the defense has a story created out of thin air, with no details. The odds seem stacked against defense attorney Mark Geragos except for one significant fact. While the prosecution needs 12 jurors to win, the defense only needs one juror to say “no,” and Scott goes free. So what kind of juror could be the one who says “no?” Most importantly, what will the holdout juror look like? Geragos should be able to identify the holdout juror as much by looking at him as by asking him questions. Geragos will go into jury selection having conducted a community survey to determine the demographics of the most/least receptive juror for the defense. But there is a basic problem with that kind of research. Understanding the limitations of surveys, the only reliable research data in the courtroom is the juror himself: what she says and how she says it, how he sits in the chair, who she looks at, what direction he leans in, what she’s wearing, how his hair is cut. Body language, i.e., the way we move in the world, present ourselves to others and interact with them, is the language of emotions. No one can tell what a person is thinking by looking at his/her body language, but a good reader of the nonverbal signals can tell what a person is feeling. The psychological attitudes of opening up, closing off, self-confidence, submissiveness and aggressiveness can be identified by nonverbal gestures and demeanors. Being able to read the meaning behind those signals is like being a mind reader. So what will the holdout juror look like? Geragos will want to pick his holdout juror from three types of men. (The assumption here is that the holdout juror will most likely be a man. The woman who might vote for Peterson would be young and inexperienced, vulnerable to his charm, willing to give him the benefit of the doubt. She would probably not have the “muscle” to stand up to a majority of jurors who want to convict.) TYPE NO. 1: THE ROGUE THE ODD MAN OUT The rogue juror will be the easiest to identify. He is the oddball, the off-the-wall guy you want to avoid having on the jury because he’s off the wall, and you have no idea how he will vote. You can’t trust him to be reasonable because he is not reasonable. He has his own agenda, which has nothing to do with the issues of the case. The very fact he’s sitting on a jury gives him power, and power is what motivates him: the power to make trouble, hold up the jury, say “no.” The facts of the case are irrelevant to his vote. If 11 jurors want to acquit, he will vote to convict. If 11 want to convict, he will insist on acquittal. And since it is more likely, in this case, that 11 jurors will want to convict rather than acquit, the rogue juror — who will vote in opposition to the rest of the panel — is just the juror Geragos is looking for. PHYSICAL CHARACTERISTICS The rogue juror will identify himself as the odd man out by looking odd. Something about him will be out of balance, weird, off-putting. He might be too heavy or too thin; his hair too long, too messy, too dirty; his beard too bushy or too scraggly; his mustache too wide or too narrow, too angular or oddly shaped. If he has tattoos, they might be poorly drawn or the designs too gothic, weird or ugly. He might have too many piercings in his ears, on his brow, on his lip. There will be an incongruity about the rogue juror’s presence. Maybe he will have a shaved head but a bushy beard. Or his mustache will be carefully trimmed and manicured, but his boots will have holes in the soles. Or perhaps he’ll show up in the courtroom wearing sandals with a sports jacket. Or come neatly dressed, wearing a nose ring. The combination will look odd. Jurors can be expected to present themselves well groomed in the formal setting of a courtroom. The rogue juror will not care about conforming to society’s expectations, much less its dress code. He is used to “doing his own thing,” and the way he presents himself in the world will reflect that attitude. DEMEANOR The rogue juror might try to establish his dominance over counsel by assuming aggressive postures, i.e., sitting too far forward in his chair and leaning into counsel, staring, talking too loud, talking nonsense or even pointing a finger in counsel’s face. Or he might lean way back in his chair, getting as far away from counsel as possible, fold his arms defiantly, set his feet solidly on the floor and dare counsel to come near him. He will express his defiance in one way or another through his dress, demeanor or behavior. Ordinarily, counsel does not want this kind of juror on the panel. He is a wild card, too unpredictable, scary, irrational. But oddballs can help the defense in a murder case because they are unpredictable and just as likely to go in the opposite direction of the other jurors as not. TYPE NO. 2: THE ALPHA MALE THE MALE CHAUVINIST The second type of man Geragos will be looking for is the alpha male. Ideally, defense counsel will want male jurors who, basically, don’t like women. These men will have grudges against women based on bad mothering, nasty divorces, betrayals, infidelities, spousal support, child custody fights, etc. Or perhaps their attitudes will stem from a sense of male entitlement and supremacy, mistrust of the female and a feeling deep down that if a woman gets hurt, she must have done something to deserve it. These men will automatically identify with Peterson. After all, he is the alpha male incarnate: cool, confident, restrained, contained and arrogant. PHYSICAL CHARACTERISTICS The alpha male will have the will and determination to hold out against the pressure of a majority of jurors trying to pull him in the opposite direction. This ability to stubbornly stick to his position will reflect itself in his body type. He will be solidly built: square shoulders, square jaw, square chin. A mesomorph type. He might be heavyset, but not necessarily. Instead, he could be armored with well-developed muscles, and this muscular armature keeps him solidly positioned in old, ingrained attitudes. The more heavily armored he is, the less flexibility he will have, both physically and psychologically. Pliable, flexible jurors move around in their chairs, shift their postures, change positions. Those who are imprisoned in their physical armor can’t move around easily, or shift positions. So they don’t. This stubbornness is exactly what characterizes the holdout juror. He will be unmovable. The alpha male will take up more space for himself than the less physically developed man. He might walk with a hint of swagger, spread out in the chair instead of sitting up symmetrically and expand himself by using hand gestures. He will speak up and not mince his words. He’ll have strong attitudes, which will be evident from the number of “strongly agree” or “strongly disagree” answers on his juror questionnaire. The alpha male will see the world in black and white, i.e., that the roles of men and women are distinctly defined and the difference between right and wrong is absolute. CLOTHES His clothes will be casual, loose fitting and fashioned in the style of The Gap, in muted colors. His shoes will be fashionably casual. He might wear a ring in his ear or a tattoo on his arm, but they will not be obvious. If he has a beard or mustache, it will more likely be natural, rather than meticulously designed and groomed. No goatees or thin lines. His hair will be more natural than slicked down, more unkempt than neatly manicured. The neatly manicured, muscled male will not be a true alpha male, but will be manufacturing the image of an alpha male, rather than authentically projecting it. The alpha male will be good for the defense generally. Not all solidly built, alpha males will have the stamina to stay firm when the going gets tough, though. The key to identifying the holdout juror is to check the degree of armor, steadiness, swagger and arrogance. The more exaggerated the demeanor, the stronger the orientation. The alpha male will not want to vote against Peterson, whom he will see as a brother, and so he will find a reason to stand firm to acquit. GERAGOS’ TRIAL STRATEGY Geragos’ main argument will be that the prosecution can bring no evidence to the courtroom that links Peterson with the bodies that washed up on an East Bay shoreline. Defense counsel’s strategy will be to meticulously challenge the prosecution’s witnesses, raise doubts about their recollections, attack their credibility and drill holes in their testimony until he creates enough doubt to make the jurors feel uncertain about convicting. His purpose will be not only to shift jurors to his side, but to give those jurors who are already on his side the legal hook on which to hang an acquittal verdict. So the alpha male, who has wanted all along to vote for Scott, will be able to argue in deliberations that the prosecution just did not convincingly connect Peterson to the bodies, and therefore, the jury cannot convict. TYPE NO. 3: THE TECHNICIAN THE NON-EMOTIONAL OBSERVER The defense strategy demands that no matter how compelling the prosecution’s story is, the jurors must put their emotions aside and wait until all the evidence is in before coming to a conclusion about the case. Some jurors will be able to meet that challenge easier than others. The kind of juror who will be able to put his feelings aside and judge the evidence on its merits will be someone who operates out of his head, instead of his heart. He will be detached from his feelings and dispassionate about the circumstances of the case. He will pride himself on operating out of logic and reason instead of messy feelings. He will throw himself into the gory task of meticulously examining the postmortem photos of Laci and her baby, all in the name of “scientific investigation.” We call this type of juror the technician. OCCUPATION The technician will be a successful civil engineer, mechanical engineer, computer analyst, systems analyst, financial analyst, communications technician, lab technician, accountant, bookkeeper, i.e., any job that concentrates on numbers, statistics, figures, formulas and data, rather than on people. As comfortable as he feels at his desk working with data, that is how uncomfortable he feels having to interact with people. So he works at his desk alone, observing the interactions of others without having to involve himself in them. He is an acute observer — curious and intelligent — but inhibited and unable to reach out and embrace the world and people around him. He will be dedicated to the scientific process, i.e., meticulously moving through the data until he gets results that can be verified. He will be oriented to the details and patient in working them out. When he finally reaches his conclusions, he will embrace them as absolute truth and stand firm by his convictions. PHYSICAL CHARACTERISTICS The technician will be well armored against his feelings, just as the alpha male is. The technician’s armor, however, will be built from the tension he holds in his body, rather than from muscles he cultivates. Consequently, the technician’s body type will be different from the alpha male’s. While the alpha male will be broad, the technician will be narrow. Tension contracts the body. The tell-tale signs are: A clenched fist, furrowed brow, sharp chin, tight jaw, set mouth, tight lips, rigid shoulders, arms hugging tight across the chest, legs that are crossed. These gestures tend to draw the body into itself and make it smaller. The tighter the fist, for example, the more tension it takes to hold it, and the smaller the body gets. The technician will likely be thin, sinewy, with little excess weight. His clothes will be more formal and fitted than casual and loose. He will wear his jacket buttoned rather than open. His gestures will be narrow. He’ll wear earth tones, conservative colors that do not draw attention. His shoes will be polished and well maintained. His hair will be short and conservatively cut. He will have no piercings. If he has a beard or mustache, it will be trimmed short and meticulously groomed. His jewelry will be conservative and discreetly styled. This kind of emotionally detached, up-tight man does not like to expose himself. He will keep his body closed. Instead of giving eye-to-eye contact with counsel, he might look askance; instead of showing a frontal orientation, he might turn sideways. Likewise, he will keep his mouth closed, being stingy and careful with his words. He might speak in a dull, emotionless monotone. Most of the time, though, he won’t speak at all. A FORMIDABLE ALLY The more space someone takes up, the more important he is perceived to be. Since the technician keeps his body closed and tight, taking up little personal space, he might look unimportant. But this kind of juror can fool you. You’ve seen him in the back row, juror No. 10, sitting very still, with his arms folded over his chest and hands stuffed under his armpits — unmoved and unmovable. He folds himself into a small, hard ball and you forget he is even there. But that tension, locked in the body, is pent-up energy. And it is powerful. By focusing it on the task at hand, i.e., examining the evidence and detaching himself from the emotional context of the investigation, i.e., a young woman’s brutal murder, the technician could very well conclude that there was not enough evidence to link the defendant to the bodies. And he will stick to that conclusion come hell or high water. His conviction is ingrained in his body, held fast by the furrowed brow, tense shoulders and pursed lips. He could be just the holdout juror defense counsel is looking for. The defense only needs one juror for Peterson to avoid conviction. That juror could be one of three types: the rogue misfit, who is the “odd man out” from the rest of the panel; the alpha male, who looks at Peterson and sees a brother; or the technician, who is detached enough from his feelings that he won’t get hooked into jumping to conclusions that cannot be substantiated. So despite what seems to be a strong case against Peterson, Geragos could steal the verdict, thanks to the help from one of his three allies. Constance Bernstein is founder and principal consultant of The Synchronics Group Trial Consultants in San Francisco. She has taught civil advocacy at Boalt Hall School of Law and has been a lecturer for the Intensive Advocacy Programs at Stanford University and the University of San Francisco for more than eight years. Bernstein can be reached at [email protected] If you are interested in submitting an article to law.com, please click here for our submission guidelines.

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